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State v. Salem

Superior Court of New Jersey, Appellate Division

July 29, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
WASSEM SALEM a/k/a WESSAM SALEM, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 4, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 03-08-1460, 04-10-1732, 06-04-0696, 07-07-1171.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Fisher and Alvarez.

PER CURIAM

Defendant Wassem M. Salem a/k/a Wessam Salem appeals the January 6, 2011, Law Division order denying his petition for post-conviction relief (PCR). We affirm.

Defendant entered a guilty plea on November 6, 2003, to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Prior to the plea colloquy, defendant completed the plea form promulgated by the Administrative Office of the Courts. Question 17 on the form reads as follows: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" In response, defendant answered "N/A, " in other words, not applicable.

When the court asked counsel about defendant's status, his attorney responded that defendant had lived in this country for twelve years, residing continuously in Hudson County, and that he was an American citizen. Defendant remained silent when his attorney made this representation. He was thereafter sentenced to a probationary term in accordance with the agreement.

On January 3, 2005, defendant entered a guilty plea to fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3. Defendant again responded with "N/A" to question 17 on the plea form. When defendant was directly asked by the court if he was "a citizen of the United States, " he responded in the affirmative.

Thereafter, on July 16, 2007, defendant entered a guilty plea to third-degree eluding, N.J.S.A. 2C:29-2(b), and third-degree aggravated assault on a corrections officer, N.J.S.A. 2C:12-1(b)(5)(b).[1] On this occasion, defendant answered plea form question 17 with the word "yes." No inquiry was conducted by the trial judge regarding his deportation status, nor did his attorney address the issue on the record. On February 28, 2008, defendant was sentenced to concurrent terms of five years in state prison.

Defendant's initial petition for PCR was filed on July 1, 2009. It was subsequently dismissed because the Law Division judge was under the mistaken impression that defendant had already been deported to Egypt. Although defendant was eventually deported, the public defender's office resumed responsibility for defendant's representation, and filed a new PCR petition and brief in support thereof. A telephone conference was conducted on October 28, 2010 between the court and counsel. The conference was neither recorded nor transcribed, and no subsequent proceedings, such as oral argument, appear to have occurred. On January 6, 2011, the Law Division judge issued the written decision denying the petition from which defendant appeals.

First, we are troubled by the failure of the court to schedule oral argument. To render a decision in the absence of oral argument does not appear to comply with either the relevant court rules or due process. We specifically disapprove of this method of ...


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