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State v. Perez

Superior Court of New Jersey, Appellate Division

July 11, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
FLORENCIO PEREZ, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-06-2044.

Vincent P. Sarubbi argued the cause for appellant (Archer & Greiner, P.C., attorneys; Mr. Sarubbi and William E. Viss, on the brief).

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).

Before Messano and Ostrer, Judges

PER CURIAM

Defendant Florencio Perez appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The undisputed record reveals that defendant was born in Mexico in 1970 and illegally immigrated to the United States in 1989. In a statement provided to the Gloucester Township police after his arrest, defendant admitted that, on January 2, 2008, he disciplined his stepson and son, ages seven and four respectively, with a belt. On June 16, 2008, defendant was indicted by the Camden County grand jury and charged with two counts of fourth-degree cruelty and neglect of a child. N.J.S.A. 9:6-1 and -3.

On September 23, 2008, represented by trial counsel, defendant appeared before the Law Division judge and entered a guilty plea to count one of the indictment, which was amended to include both victims. In colloquy, the prosecutor agreed to amend the indictment to state that defendant was accused of "leaving the children unsupervised for an extended period of time." In exchange for defendant's guilty plea, the State agreed to recommend a one-year term of non-custodial probation with the condition that defendant comply with all orders of the Division of Youth and Family Services (the Division).[1] The State agreed to dismiss count two of the indictment.

While under oath, defendant acknowledged that he understood his rights, was pleading guilty voluntarily and without any threats, coercion or pressure, and had truthfully answered all the questions that were contained on the plea form. In providing a factual basis for his guilty plea, defendant admitted that he was responsible for the supervision of his stepson and son, left both children alone in his residence for approximately two to three hours and, given the children's age, improperly exposed them to danger.

The following colloquy occurred between the judge and defendant:

Q: You do know that as a result of this there could be ICE implications?[2] I know that you're not a citizen of the United States; correct?
A: Not yet. I'm working on it though.
Q: Okay. But you do know there might be an [e]ffect, could be --
A: Uh-huh.
Q: -- subject to deportation? We don't know; --
A: Okay.
Q: -- correct?
A: Yes. Correct.
Q: And that's been explained to you by your lawyer and that's what is written out in these forms; right?
A: Yes.
Q: . . . although you can never be sure, at least you have a good faith belief that this should not subject you ...

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