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State v. Aguirre

Superior Court of New Jersey, Appellate Division

December 23, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAIME AGUIRRE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 6, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 90-04-1343.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

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

Before Judges Alvarez, Ostrer and Carroll.

PER CURIAM

Defendant Jaime Aguirre appeals from a July 2, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On June 20, 1990, defendant entered a guilty plea to robbery, N.J.S.A. 2C:15-1. On September 27, 1990, the trial court sentenced him to a five-year term of imprisonment. Defendant did not file a direct appeal.

On May 5, 2011, nearly twenty-one years after the imposition of sentence, defendant filed a pro se petition for PCR. Counsel thereafter filed a brief in support of the petition.

Defendant's conviction arose from his theft of a purse from a sixty-three-year-old woman. As he grabbed it, the victim was dragged to the ground. An eyewitness called police and chased defendant into a neighbor's yard. When police arrived, they located defendant with the handbag still in his possession. The victim identified the defendant as the assailant, and the pocketbook as her own. Defendant gave a sworn statement confessing to the robbery.

These details, relied upon by the judge and constituting the record on appeal, were extracted from police reports, statements of the victim, and statements of defendant provided in discovery during the course of the PCR proceedings. This was necessary because the transcripts of the plea and sentence hearing are unavailable and may no longer exist. Trial counsel is deceased.

As set forth in defendant's affidavit, filed in support of his PCR application, he is an Ecuadorian citizen classified as a legal permanent resident. Sometime immediately prior to the filing of his petition, however, he was detained for deportation by the immigration authorities because of the robbery conviction. He was thereafter released, although he did not attend the second day of oral argument on his PCR.

The PCR judge denied relief, not on the basis of the time bar. On that issue he stated that "[defendant's] attention would not have been drawn to this until recently when the Federal Immigration authorities came after him because of this conviction." The judge then addressed the issue defendant initially raised, that at the time of his sentencing his attorney had the option of requesting a judicial recommendation against deportation (JRAD) but failed to do so. The PCR judge ultimately found, however, that defendant was statutorily ineligible for a JRAD. See 8 U.S.C. § 1251(b). In 1990, defendant's crime did not fall within any of the relevant categories. See 8 U.S.C. § 1101(a)(43). Furthermore, he concluded that given the strength ...


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