STATE OF NEW JERSEY VS. JOSE ABARCA-LOZANO (17-05-0233, SOMERSET COUNTY AND STATEWIDE)


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3497-19 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE ABARCA-LOZANO, Defendant-Appellant. ________________________ Submitted December 1, 2021 – Decided December 21, 2021 Before Judges Gooden Brown and Gummer. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 17-05- 0233. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Michael H. Robertson, Somerset County Prosecutor, attorney for respondent (Amanda Frankel, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant, who is not a United States citizen, pled guilty to criminal offenses and now appeals from the November 14, 2019 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant raises the following single point for our consideration: [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. Defendant was indicted and charged with third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); third-degree theft, N.J.S.A. 2C:20-3(a) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); and third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four). On October 13, 2017, defendant entered a negotiated guilty plea to counts two and three, as amended, charging the disorderly persons offenses of theft and simple assault, respectively. At the plea hearing, defendant admitted fighting with and striking his friend after he tried to take his friend's computer as repayment for a debt. Defendant also confirmed he understood that because he was not a United States A-3497-19 2 citizen, his "plea may result in [his] removal from the United States or stop [him] from becoming legally eligible to enter or re-enter the United States." Defendant stated he had "discussed with [an immigration] attorney potential immigration consequences of th[e] plea." Defendant acknowledged his immigration attorney had "answered all [his] questions" and, based on the attorney's advice, he "wish[ed] to enter th[e] guilty plea." On two separate occasions during the plea colloquy, defendant expressed satisfaction with the advice he had received from both his trial attorney and his immigration attorney and said he did not need any further time to discuss the immigration consequences of entering the plea with his immigration attorney. Defendant also verified on the record the name and office location of the immigration attorney he had consulted. Additionally, defendant answered question seventeen in the plea form, indicating he was advised that his "guilty plea may result in [his] removal from the United States and/or stop [him] from being able to legally enter or re-enter the United States," and specifying …

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