NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4168-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. DESIRE LUSAMBA, Defendant-Appellant. ________________________ Submitted January 5, 2021 – Decided January 20, 2021 Before Judges Fisher and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Accusation Nos. 12-12-1296 and 12-12-1297. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Mark Niedziela, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM In this appeal, we review an order that denied both defendant's post- conviction relief (PCR) petition and his motion for leave to withdraw his guilty pleas – applications that were filed five years and seven months after entry of the February 22, 2013 judgments of conviction – based on a claim that he was misadvised about the deportation consequences of his guilty pleas. We remand for an evidentiary hearing. Defendant was charged in separate indictments in 2012 of having committed controlled dangerous substance (CDS) offenses. By way of a negotiated plea agreement, defendant pleaded guilty in January 2013 to third- degree CDS possession, N.J.S.A. 2C:35-10(a)(1), under one indictment, and third-degree CDS distribution, N.J.S.A. 2C:35-5(b)(3), under the other. During the plea hearing, defendant asserted he was a United States citizen. At the sentencing hearing a month later, the judge asked defendant where he was born, and defendant responded "Paterson," which prompted the judge to ask him if there was "[a]ny reason" why the person preparing the presentence report "thought you were born . . . somewhere in Africa." Defendant responded that he was "born in Africa, but I'm a citizen." The judge pursued the matter further: A-4168-18T1 2 THE COURT: Where in Africa? THE DEFENDANT: Zaire. THE COURT: And you became a citizen when? THE DEFENDANT: 2010. THE COURT: You have a U.S. passport? THE DEFENDANT: Yes. THE COURT: I see you also have a naturalization certificate, right? THE DEFENDANT: Yes. THE COURT: Now, you told the PSI interviewer you became a U.S. citizen in 2012. THE DEFENDANT: I'm not pretty sure – like, it was – it was – it was done through my mother, so I'm not really sure exactly what year it was done. THE COURT: Well, 2012 is last year. THE DEFENDANT: So (indiscernible) – THE COURT: You appeared to reach back into the recesses of your memory. THE DEFENDANT: That's when I knew about it. .... THE COURT: . . . One doesn't confuse a few months ago with a few years ago. It makes me doubt your A-4168-18T1 3 citizenship. And I'm not concerned, personally, with whether you're a ...
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