NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2155-20 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELBY RODRIGUEZ, a/k/a JESUS MATOS, and JESUS MATOS TURBI, Defendant-Appellant. ________________________ Submitted September 28, 2022 – Decided October 12, 2022 Before Judges Whipple and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-11- 2231. Joseph E. Krakora, Public Defender, attorney for appellant (Phuong V. Dao, Designated Counsel, on the brief). Matthew J. Platkin, Acting Attorney General, attorney for respondent (Ashlea D. Newman, Deputy Attorney General, of counsel and on the brief). PER CURIAM Defendant Elby Rodriguez appeals from the November 16, 2020 denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm for the reasons expressed in the well-reasoned written decision of Judge James X. Sattely. Defendant raises the following arguments in support of his appeal: POINT I: DEFENDANT'S PCR CLAIM IS EXEMPT FROM THE TIME BAR UNDER [RULE] 3:22-12. POINT II: BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HE WAS DENIED DUE PROCESS, AND THEREFORE, HE IS ENTITLED TO POST- CONVICTION RELIEF. a. Trial counsel failed to advise defendant of the immigration consequences. Not raised below. POINT III: DEFENDANT HAS MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THUS, THE PCR COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING. A-2155-20 2 On April 11, 2004, a Bergen County grand jury indicted defendant on three counts: second-degree conspiracy to enter a structure with the purpose to commit an offense therein, N.J.S.A. 2C:5-2; third-degree burglary, N.J.S.A. 2C:18-2 and 2C:2-6; and second-degree theft in the amount of $75,000 or more with the intent to deprive the owner thereof, N.J.S.A. 2C:20-3 and 2C:2-6. Defendant entered into a plea agreement on May 24, 2005, wherein he pled guilty to second-degree conspiracy. In return, the State agreed to dismiss the other two charges and recommend a sentence in the third-degree range of four years, to run concurrently with a sentence arising out of Passaic County. The plea form included "Question 17," which asked defendant if he understood that pleading guilty may lead to his deportation. At the time, defendant —a lawful permanent resident from the Dominican Republic—could not read or write in English, the language of the plea form. The form was translated for him, and defendant testified at the plea hearing that he understood it and signed it freely and voluntarily. Defendant testified he conspired with his co- defendants to commit a burglary and that he acted as the lookout while one of his co-defendants climbed through the window of the residence they targeted. The plea judge also asked defendant about his immigration status and twice warned that he could be …
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals