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State v. Abarca

Superior Court of New Jersey, Appellate Division

August 7, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
NELSON ABARCA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2012

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Accusation Nos. 04-01-0004 and 05-01-0004.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, on the brief).

Before Judges Graves and Guadagno.

PER CURIAM

Defendant Nelson Abarca appeals from an October 18, 2010 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.

On January 8, 2004, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one of Accusation No. 04-01-0004); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(a) (count two of the same accusation); and second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count one of Accusation No. 05-01-0004). The offenses occurred on three separate dates and there were three separate victims. In exchange for the guilty pleas, the State agreed to dismiss six burglary charges and two charges of criminal restraint and to recommend an aggregate thirty-year sentence, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

During his plea hearing, defendant testified he could not read English. Defendant confirmed, however, that he reviewed the forms with his attorney, who read the plea forms to him in Spanish, and he signed the forms voluntarily. Defendant also provided a factual basis for his pleas, and when his attorney asked him if they had "spent about five hours discussing the case today and two hours yesterday, " he answered, "Yes." In addition, when questioned by the prosecutor, defendant provided the following testimony:

Q. Has [your attorney] answered all your questions?
A. Yes.
Q. Are you satisfied with her services?
A. Yes.
Q. Okay. And all of these forms that we filled out, they are, in ...

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