NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2012.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-05-0825.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County, Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). For the reasons that follow, this court reverses the order denying defendant's petition and remands for an evidentiary hearing on defendant's claim alleging ineffective assistance of counsel and a hearing to determine whether he should be permitted to withdraw his guilty plea.
The charges against defendant arise from an incident that occurred on December 31, 2006. On that day, Mauricio Alexander Lopez drove Daisy and Sonia Estrada to a laundromat in Perth Amboy in a Honda Accord. Daisy was nine months pregnant at the time. Lopez parked and began carrying bags of laundry inside, while Daisy and Sonia remained in the Honda with the engine running. Defendant approached Lopez and offered to help him carry the laundry bags. After all of the laundry had been carried in, defendant ran to the Honda, entered the driver's side door, and pushed Daisy, who was exiting the passenger's side door, from the car. He then drove away with Sonia still in the backseat. Initially, Sonia was too afraid to say anything to defendant, but she eventually started yelling. Defendant pulled over and allowed her to leave. Sonia fled back to the laundromat, where she provided police with a description of defendant. She told the responding officers that defendant "did not realize that she was in the back seat until she screamed, " at which point he "ordered her to get out of the car[.]"
Later that day, Lopez contacted police and reported that he had seen defendant. Police responded, and Lopez positively identified defendant, who was then placed under arrest.
In March 2007, defendant was charged with three counts of first-degree carjacking, N.J.S.A. 2C:15-2 (counts one, two, and three); second-degree kidnapping, N.J.S.A. 2C:13-1(b) (count four); and fourth-degree false swearing, N.J.S.A. 2C:28-2(a) (count five). Defendant pled guilty to second-degree kidnapping on May 1, 2008, pursuant to a plea agreement in which the remaining counts of the indictment were dismissed.
The kidnapping statute, N.J.S.A. 2C:13-1(b), provides:
A person is guilty of kidnapping if he unlawfully removes another . . . a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:
(1) To facilitate commission of any crime or flight thereafter;
(2) To inflict bodily injury on or to terrorize the victim or another;
(3) To interfere with the performance of any governmental or political function; or
(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.
At the plea hearing, defendant provided the following factual basis for the kidnapping charge:
COURT: . . . Do you understand what a second degree kidnapping means?
COURT: Are you guilty of it?
[COUNSEL]: On [December 31, 2006], did you enter a motor vehicle with the intention of taking that motor vehicle?
[COUNSEL]: And when you drove away in the motor vehicle, there was, in the back seat of the motor vehicle, a woman, who we now know was Sonia Estrada?
[COUNSEL]: If . . . I told you that there was a person in the back seat, would you agree there was ...