NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4459-18T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. NETFA K. SIMON, a/k/a SIMON NEFTA, Defendant-Appellant. ____________________________ Submitted May 11, 2020 – Decided July 10, 2020 Before Judges Rothstadt and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-01-0072. Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief). PER CURIAM Defendant Netfa K. Simon appeals from the trial court's order denying his postconviction relief (PCR) petition without an evidentiary hearing, arguing: POINT ONE THIS MATTER MUST BE REMANDED BECAUSE [DEFENDANT] WAS NOT PRESENT AT ORAL ARGUMENT AND HIS ABSENCE WAS NOT PROPERLY WAIVED BY COUNSEL. POINT TWO [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO INFORM HIM ADEQUATELY OF THE DEPORTATION CONSEQUENCES OF HIS PLEA. We disagree and affirm. Following the return of an indictment charging him with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (counts one and four); third-degree possession of CDS, with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (counts two and five); and third-degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (counts three and six), defendant pleaded guilty to count three. Defendant, who told the court during the plea colloquy that he was from Trinidad, Spain and was not a United States citizen, claims his "counsel was ineffective for failing to advise A-4459-18T4 2 him of the mandatory deportation consequences of his plea[.]" He also argues counsel improperly waived his appearance at sentencing after Immigration and Customs Enforcement, who maintained defendant in custody during the deportation process, did not produce him. Because the PCR court did not hold an evidentiary hearing, we review de novo both the factual inferences drawn by that court from the record and the court's legal conclusions. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). To establish a PCR claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687); then by proving he suffered prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687, 691-92. Defendant must show by a "reasonable probability" that the deficient performance ...
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