NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 25, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-10-2416.
James N. Butler, Jr., argued the cause for appellant.
John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, on the brief).
Before Judges Parrillo and Maven.
Pursuant to a negotiated agreement with the State, defendant Smitty Vincent pled guilty to one count of fourth-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-5(d). Consistent with the plea agreement, the trial court sentenced defendant to a term of three years' probation conditioned upon serving 364 days in the county jail, drug counseling, community service, as well as the payment of fines and penalties. The sentence was stayed pending appeal.
While awaiting his sentence, defendant filed a motion to withdraw his guilty plea pursuant to Rule 3:9-3(e). Defendant contended that he did not consult with an immigration attorney and, hence, was not aware of the immigration consequences of his plea. After considering the evidence presented and applying the standard of review established by the Supreme Court in
State v. Slater , 198 N.J. 145, 150 (2009), the motion judge denied defendant's motion. The judge noted that the risk of deportation and other immigration consequences had been discussed with defendant by the two trial court judges and his defense counsel on multiple occasions and defendant testified that he understood the risk prior to entering the plea. Defendant appeals from the order denying his motion and the sentence. We affirm.
The following facts will inform our analysis. Defendant was to appear before the trial court on November 29, 2011. During the prior afternoon, defendant was called by his attorney's secretary and advised to proceed to another attorney's office. When he arrived there, defendant learned it was the office of an immigration attorney; however, he did not complete the meeting because he did not have the consultation fees. The following day, defendant appeared before the Honorable Ronald Wigler, J.S.C., with his attorney, who announced to the court that defendant was prepared to plead guilty pursuant to a negotiated agreement with the State. As the judge began to question defendant in advance of accepting his guilty plea, the judge asked if defendant was a United States citizen. When defendant answered "No, " the judge asked if he understood that he may be deported by virtue of the guilty plea. The judge then asked defendant if he had an opportunity to consult with an immigration lawyer. Defendant replied "Yes. But I didn't get to talk to him." The judge then spoke directly to defendant and told him that "under Federal law if you plead guilty to a fourth degree charge that could subject you to deportation." After the judge explained the penal consequences of the plea, defendant requested time to talk to an immigration attorney.
After a recess, the case returned to court in the afternoon, but before the Honorable Joseph V. Isabella. J.S.C. The assistant prosecutor announced that defendant agreed to withdraw his plea of not guilty and enter a plea of guilty to count two of the indictment. When this judge reached the citizenship question, defense counsel advised the court that a "tremendous" amount of time was spent addressing the issues. Defendant agreed with counsel that he understood that he "technically has deportation issues but is not immediately deportable." The judge then discussed the deportation consequences and questioned defendant about his discussions with counsel, his consultation with an immigration attorney, and the effect a guilty plea would have on his immigration status. The judge continued with the plea colloquy by asking the following:
THE COURT: So as a result of your consultation with the immigration attorney, you are willing to plead guilty as per the plea offer recommended by the [p]rosecutor. Correct?
THE DEFENDANT: Yes.
THE COURT: So your immigration lawyer has advised you of all possible immigration consequences resulting from your plea. Correct? Your immigration attorney has advised you of all possible immigration consequences ...