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State v. Moschillo

Superior Court of New Jersey, Appellate Division

June 24, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ANIELLO MOSCHILLO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2013

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-10-1623.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

Before Judges Lihotz and Kennedy.

PER CURIAM

Defendant Aniello Moschillo appeals from a January 31, 2011 order denying his petition for post-conviction relief (PCR). In his PCR petition, defendant maintained trial counsel had rendered ineffective assistance by failing to fully advise him of the immigration consequences of conviction for drug distribution charges. Defendant had pleaded guilty pursuant to a plea agreement. Following an evidentiary hearing, defendant's petition to vacate his plea was denied. On appeal, defendant argues:

DEFENDANT'S CONVICTION MUST BE VACATED BECAUSE TRIAL COUNSEL FAILED TO INFORM HIM AS TO THE POSSIBLE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA.

We have considered defendant's arguments in light of the record and the applicable law. We affirm.

On March 24, 1994, pursuant to a negotiated plea agreement, defendant, an Italian national, pleaded guilty to second-degree possession of a controlled dangerous substance (cocaine), with intent to distribute, N.J.S.A. 2C:35-5a(1). In exchange for his plea, the State agreed to recommend a sentence not to exceed seven years, and to dismiss the remaining six charges included in the indictment.

During the plea hearing, defendant testified he understood the charges against him and satisfactorily discussed them and the possible penal consequences with his attorney. Counsel advised he had reviewed the plea agreement. Later, in response to the judge's inquiry, defendant agreed he had read, reviewed with counsel, and understood each provision in the plea agreement.[1]

Defendant remained free on bail pending sentencing. He did not appear for sentencing and a warrant was issued. Defendant remained a fugitive for fourteen years. When captured, he faced sentencing for the 1994 conviction. On March 14, 2008, the judge imposed a flat five-year period of incarceration. Defendant did not file an appeal.

Defendant filed his first petition for PCR on November 23, 2009. Following review, the judge granted his request for an evidentiary ...


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