STATE OF NEW JERSEY v. ROSARIO SEBASTIANI, a/k/a MOISES R. MORY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4705-04T14705-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROSARIO SEBASTIANI, a/k/a

MOISES R. MORY,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 8, 2006 - Decided June 29, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. S-1331-86.

Miriam Z. Reyes, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Rosario Sebastiani appeals from an order entered on April 12, 2005 denying his petition for post-conviction relief (PCR). We affirm.

On June 11, 1987, a judgment of conviction was entered after defendant's plea of guilty to one count of possession of cocaine, N.J.S.A. 24:21-20a(1) (a pre-code charge). He was sentenced to a term of three years probation "with strict narcotics control" on a condition of serving 364 days in the county jail.

On January 12, 2005, defendant filed a PCR petition, alleging that the detectives involved in the undercover operation leading to his arrest did not actually observe him engaged in a drug transaction. Rather, he claims:

On June 30, 1986, at approximately 1:50 p.m. both defendants were observed at the bus stop at Main Street and Lemoine Avenue, Fort Lee. Defendant Langlois was carrying a white plastic bag. Langlois was observed to remove a brown paper bag from the white plastic bag and hand it to defendant-appellant Sebastiani [true name, Moises Mory]. Defendant Langlois then walked to the parking lot where the undercover vehicle was parked; upon entering the lot, he looked around and then walked back to the bus stop. When defendants (Francisco Langlois and Moises Mory) boarded the bus they were arrested. The brown paper bag that defendant Mory (referred to in police reports as Sebastiani) was carrying was confiscated and found to contain a clear plastic bag which contained white powder which field tested positive for cocaine.

The sentence was served and defendant was discharged from probation. Defendant is an illegal immigrant and in 1992, his petition for amnesty and legal status was denied because of his conviction. In 1999, the Immigration and Naturalization Service (INS) began deportation proceedings against defendant. In 2001, a full hearing was conducted and a decision by INS dated July 13, 2001 granted defendant's application to cancel the removal (deportation). That decision was reversed by the Board of Immigration Appeals, which held that the conviction rendered defendant ineligible for cancellation of removal and he would be deported because of his prior conviction. INS arrested defendant on May 7, 2004, and on January 12, 2005, he filed the PCR petition.

In rendering his decision, the trial judge related the background facts and denied the petition on the grounds that: (1) the claim is time barred under R. 3:22-12; (2) defendant's sentence was legal in 1986 and defendant entered into the plea voluntarily; (3) defendant knew, as of 1992, that the conviction was having an effect on his immigration status and resulted in the denial of his amnesty application; and (4) defendant's argument that no one told him there would be immigration consequences to his guilty plea was contradicted by his certification indicating that he was aware that the plea could have consequences to him. The judge stated, "There is absolutely no evidence, save for an affidavit submitted by the defendant[,] that would indicate any misleading information was given to the defendant before his plea was entered into, and even his affidavit doesn't say it was misleading, it was just nobody knew the answer." Moreover, the judge found that defendant admitted guilt and if he had gone to trial and was convicted, the conviction would have had the same effect. Consequently, the petition was denied.

In this appeal, defendant argues:

POINT ONE

THE COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, AS DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

We have carefully considered the record in light of defendant's arguments, and we are constrained to affirm the trial court's denial of defendant's PCR petition on the ground that it was filed substantially out of time. R. 3:22-12(a). Even if we accepted defendant's argument that he was not advised that he could be deported by pleading guilty, he knew in 1992 - within or close to the five-year limitations period - when his amnesty petition was denied, but he did not file the PCR petition until January 12, 2005.

 
Affirmed.

(continued)

(continued)

4

A-4705-04T1

June 29, 2006