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State v. Zambrano

Superior Court of New Jersey, Appellate Division

July 10, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LUZ ZAMBRANO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 11, 2013

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-07-01688.

Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the Brief).

Before Judges Parrillo and Messano.

PER CURIAM

Defendant Luz Zambrano appeals from an order of the Law Division denying her petition for post-conviction relief (PCR). We affirm.

After failing to complete the terms of the Pre-Trial Intervention (PTI) program to which she had been admitted, defendant was indicted and ultimately pled guilty to third-degree theft of moveable property, N.J.S.A. 2C:20-3. The offense involved using her employer's ATM card and pin-number to withdraw money from her employer's account in excess of $500 without her employer's consent. On December 6, 2002, defendant was sentenced to a term of non-custodial probation and ordered to pay the remainder of her restitution.

Defendant did not file a direct appeal of her judgment of conviction. Instead, over six years later, defendant filed an untimely PCR petition, in which she alleged that trial counsel provided ineffective assistance because he failed to explain the "consequences a guilty plea would have on [her] immigration status." In rejecting this claim and denying the relief without an evidentiary hearing, the PCR judge concluded that defendant knew her guilty plea could have immigration consequences, had been provided with an opportunity to discuss the issue with her attorney, and had stated under oath that she understood.

On appeal, we remanded "to permit the judge to consider the immigration consequences, if any, resulting from the defendant's guilty plea, and their implications in light of the holdings in Nunez-Valdez and Padilla."[1] State v. Zambrano, No. A-0661-09 (App. Div. May 4, 2011). We also directed the PCR court to consider the timeliness of the petition under Rule 3:22-12.

On remand, the PCR judge waived the five-year time bar, but denied the application on substantive grounds. In doing so, the judge reviewed what had transpired at the plea hearing over which he had presided. Therein, the judge inquired whether defendant was an American citizen, to which defendant answered that she was not; that she was here on a Green Card. The following colloquy then took place:

Judge: Are you a citizen of this ...

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