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State v. Mercado

Superior Court of New Jersey, Appellate Division

August 9, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
TOMAS MERCADO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 96-10-1977.

John E. Jenkins argued the cause for appellant (The Law Office of Todd D. Palumbo, attorney; Mr. Jenkins, on the brief).

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

Before Judges Ashrafi and Espinosa.

PER CURIAM

Defendant Tomas Mercado was arrested in 1996 for selling cocaine. By cooperating with narcotics investigators, he avoided the full consequences of a twelve-count indictment and a certain prison sentence. In 1998, he pleaded guilty to one third-degree charge of selling cocaine in a school zone in exchange for a non-custodial sentence.

Thirteen years later, defendant sought to vacate his guilty plea and conviction because he learned he could be deported. In December 2011, he filed a petition for post-conviction relief (PCR), claiming that his attorney had wrongly advised him he would not be deported as a result of his conviction. The trial court heard argument and denied the PCR petition. He now appeals that decision. We affirm.

Defendant was born in the Dominican Republic and immigrated legally to the United States in 1992. In 1996, at the age of thirty-four, he was living in Hudson County with his wife and three children, he was employed, and he was making street sales of cocaine for profit in Jersey City and Hoboken.

The Hudson County Prosecutor's Office, Narcotics Task Force, conducted an investigation of defendant's drug dealing activities in March 1996. During that month, investigators conducted surveillance and gathered evidence on four dates on which defendant sold or attempted to sell cocaine, the first time to a confidential informant and the next three times to an undercover narcotics officer. Defendant told the undercover officer he could supply any quantity of cocaine the officer wished to purchase at any time.

On March 21, 1996, the undercover officer requested five ounces of cocaine from defendant. He agreed to supply it, instructing the officer to meet him near his place of employment in Hoboken. When the officer arrived, defendant walked to a car parked several blocks away and returned with a bag concealed in his clothing. After he showed the cocaine to the undercover officer, other officers positioned nearby stepped in and arrested defendant. They recovered 136 grams, or almost five ounces, of cocaine in the bag. The officers then executed a search warrant at defendant's apartment in Jersey City, where they recovered five more grams of cocaine, narcotics distribution paraphernalia, and about $1, 400 in cash. In October 1996, a Hudson County grand jury indicted defendant on twelve counts charging drug offenses.[1]

To improve his prospects for a favorable outcome, defendant began cooperating with the Narcotics Task Force in the investigation of other criminal activity. For about one-and-a-half years, he provided confidential cooperation in four investigations, leading to the arrest of ten persons. As a result of defendant's cooperation, the prosecutor's office offered him a plea agreement that would deviate from internal prosecutor's guidelines in such narcotics cases where conviction entails mandatory minimum prison sentences. See N.J.S.A. 2C:35-7, -12. The prosecutor's office agreed to recommend a noncustodial sentence of probation in exchange for defendant's guilty plea to one count of the indictment charging third-degree distribution of cocaine in a school zone.

On June 29, 1998, defendant appeared with counsel before a judge, formally accepted the plea offer, and pleaded guilty to the one third-degree charge. He admitted he sold cocaine to an undercover officer. The judge did not question defendant about the possibility that he might be deported. The risk of deportation, however, was addressed in a written plea form signed by defendant as part of the record of his guilty plea. Question 17 on the plea form asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Defendant answered "yes." In open court, defendant acknowledged that he had discussed the questions and answers on the plea form with his attorney, that the answers were accurate, and that he had no questions ...


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