State v. Lusamba, 012021 NJSUP, A-4168-18T1

Docket NºA-4168-18T1
Opinion JudgePER CURIAM.
Party NameSTATE OF NEW JERSEY, Plaintiff-Respondent, v. DESIRE LUSAMBA, Defendant-Appellant.
AttorneyJoseph 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.
Judge PanelBefore Judges Fisher and Gilson.
Case DateJanuary 20, 2021
CourtSuperior Court of New Jersey

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

DESIRE LUSAMBA, Defendant-Appellant.

No. A-4168-18T1

Superior Court of New Jersey, Appellate Division

January 20, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2021

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.

Before Judges Fisher and Gilson.

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: 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 citizenship. And I'm not concerned, personally, with whether you're a citizen or not, but you may have lied to your lawyer and the [c]ourt when you entered your guilty plea in terms of the potential impact of this conviction on your ability to remain in the United States. I am going to require that you bring this naturalization certificate and passport to probation. If you're lying about your citizenship, the only one that's going to get hurt by that is you.

THE DEFENDANT: Yes.

THE COURT: Are you a U.S. citizen?

THE DEFENDANT: Yes.

The judge then sentenced defendant to concurrent probationary terms.

Not long after, on being arrested for marijuana possession with the intent to distribute and other related offenses, defendant was charged with a violation of the terms of his probation (VOP). The marijuana charges were downgraded to the municipal court and dismissed.

At an initial court appearance on the VOP in October 2013, defendant was given time to consult an immigration attorney and to consider whether he had an interest in moving to retract his January 2013 guilty pleas. A month later, at a second appearance on the VOP charge, with there being an ICE detainer on defendant, the judge asked defense counsel if it was his "wish to file a motion to retract . . . or are you approaching this in some other fashion?" Defendant's attorney advised the court that defendant had consulted with an immigration attorney; he also represented that defendant had discussed with counsel the uncertain political situation in defendant's home country, the Democratic Republic of Congo. The judge questioned defendant, who confirmed he had misrepresented his status as a United States citizen in the plea form executed in January 2013; the judge also engaged in the following colloquy with defendant: Q. You do understand that this conviction and any previous ones you may have subject you to deportation from the United States?

A. Yes.

Q. And you are aware, there is already a detainer on you from ICE, the immigration service. Is that right?

A. Yes.

Q. You have consulted with an attorney . . . with regard to your immigration - the possible immigration consequences?

A. Yes.

Q. And are you satisfied that he's answered all of your questions with regard to your immigration situation?

A. Yes.

Q. [D]o you have any desire to meet with another immigration attorney or [the same immigration attorney] again?

A. No.

Q. You understand that your lawyer could file a motion to retract your guilty plea, which the [c]ourt might grant. It might not but it might grant...

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