RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0790-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, APPROVED FOR PUBLICATION v. February 10, 2020 APPELLATE DIVISION L.G.-M.,1 Defendant-Appellant. Submitted January 14, 2020 – Decided February 10, 2020 Before Judges Fisher, Gilson and Rose. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-12- 2073. Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary Rebecca Juliano, Assistant Prosecutor, of counsel and on the brief). 1 We use initials to protect the privacy of the victim and witnesses. The opinion of the court was delivered by ROSE, J.A.D. Defendant L.G.-M. – a non-citizen of the United States – appeals a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant challenges his attorney's effectiveness prior to trial, claiming counsel failed to advise him about the immigration consequences of pretrial intervention (PTI). The issue is one of first impression in New Jersey. Because we are persuaded defendant established a prima facie claim that the advice he received from trial counsel fell below professional norms , and we cannot conclude on the record before us whether defendant was prejudiced by his attorney's alleged ineffectiveness, we reverse and remand for an evidentiary hearing. See Strickland v. Washington, 466 U.S. 668, 700 (1984) (recognizing a defendant seeking PCR must demonstrate: (1) the deficiency of his counsel's performance; and (2) prejudice to his defense, to warrant a hearing); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey). Where, as here, the trial court does not conduct an evidentiary hearing on a PCR petition, we may review de novo the factual inferences the court has A-0790-18T1 2 drawn from the documentary record. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We summarize that record as follows. Seeking asylum, defendant immigrated to the United States from Guatemala in 2012, when he was twenty-two years old. Two years later, he was charged in a Monmouth County indictment with third-degree endangering the welfare of a child and fourth-degree criminal sexual contact; and issued two summonses for lewdness, a disorderly persons offense. The charges stemmed from defendant's encounter with three teenage girls while swimming in the ocean in Belmar: defendant allegedly exposed his penis to the trio, then grabbed the vagina and buttocks of one of the teens. Defendant rejected the State's plea offer and declined the opportunity to apply for PTI notwithstanding his eligibility to do so without the Prosecutor's consent. Before testimony began on the trial date, counsel told the judge he "had many opportunities to discuss the PTI program with [his] client[,]" but defendant did not wish to apply. Counsel said he "explained to [defendant] the advantages and maybe the disadvantages of . . . PTI but ...
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