STATE OF NEW JERSEY v. ALFREDO CRESPO

NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3613-08T4



STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

ALFREDO CRESPO, a/k/a ALFREDO
CRESPO, JR., JOHN M. LONDONO and
JORGE MERCADO,

     Defendant-Appellant.
_________________________________

                                               May 26, 2010
          Submitted April 26, 2010 - Decided

          Before Judges Rodríguez and Chambers.

          On appeal from Superior Court, Law Division,
          Bergen County, Indictment No. 04-05-1026.

          Yvonne Smith Segars, Public Defender,
          attorney for appellant (Thomas Menchin,
          Designated Counsel, of counsel and on the
          brief).

          John L. Molinelli, Bergen County Prosecutor,
          attorney for respondent (Vered Adoni,
          Assistant Prosecutor, of counsel and on the
          brief).

PER CURIAM

     Defendant Alfredo Crespo appeals from the order of

September 5, 2008, denying his petition for post-conviction

relief.   We affirm.

    On April 18, 2006, defendant pled guilty to two counts of

third degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a) (counts nine and seventeen), admitting to sexual contact

with two minors.    The plea agreement provided that the State

would request a sentence of five years on count nine and a

consecutive four year term on count seventeen, for an aggregate

sentence of nine years.   However, at sentencing on August 18,

2006, the trial court imposed the lesser sentence of four years

on count nine and a consecutive three years on count seventeen,

for an aggregate sentence of seven years.   The trial court

placed defendant on community supervision for life and imposed

the requisite monetary assessments and penalties.    Under the

sentence, defendant was subject to the registration and

reporting requirement of Megan's Law, N.J.S.A. 2C:7-1 to -23;

the other counts in the indictment were dismissed.   No direct

appeal was filed.

    Thereafter, defendant filed a pro se petition for post-

conviction relief seeking to vacate his conviction and sentence,

and the Office of the Public Defender then filed a brief on his

behalf.   The trial court denied defendant's petition for post-

conviction relief without an evidentiary hearing, explaining its

reasons in a fourteen page written decision.   Among the issues

raised before the trial court, defendant contended that he had




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not been properly advised of all of the penal consequences of

his plea and that defense counsel failed to interview an

exculpatory witness.

    With respect to the contention that he was not advised of

all of the penal consequences of his plea, defendant asserted

that defense counsel had told him that because defendant would

be deported upon completion of his sentence, he would be paroled

on his first parole eligibility date which would be in twenty-

eight months.   This, however, did not occur.   Defendant further

noted that the Prosecutor's Office asked the New Jersey State

Parole Board to deny defendant parole on his first eligibility

date.   Defendant contended that at the time he agreed to plead

guilty, he had not been advised that the Prosecutor's Office

would ask the New Jersey State Parole Board that he serve his

maximum sentence.   In making the argument that due to these

circumstances he had not been advised of the penal consequences

of his plea, defendant relied on State v. Kovack, 
91 N.J. 476

(1982) (providing that before pleading guilty, a defendant must

be advised of any period of parole ineligibility) and State v.

Davis, 
175 N.J. Super. 130, 148 (App. Div.), certif. denied, 
85 N.J. 136 (1980) (stating that "knowledge of one's ineligibility

for parole is as necessary to an understanding of a plea as is

knowledge of the maximum sentence possible").




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    The trial court rejected these arguments noting that State

v. Kovack, supra, 
91 N.J. 476 only requires a defendant to be

advised of a mandatory period of parole ineligibility.   No

period of parole ineligibility was imposed in this case.

Further, defendant was fully advised of the maximum period of

imprisonment he faced before giving his plea.    Indeed, we note

that at the time defendant pled guilty he was told he faced a

potential aggregate term of nine years pursuant to the plea

agreement, but at sentencing he received the lesser aggregate

term of seven years.   The trial court further observed that

nothing in the plea agreement indicated that defendant would be

released and deported upon serving twenty-eight months or that

the State was precluded from taking a position before the New

Jersey State Parole Board on his parole.

    Defendant also contended that he was denied ineffective

assistance of counsel because his attorney did not interview a

witness who would have provided exculpatory testimony.     The

witness submitted a certification in support of defendant's

post-conviction relief petition, stating that she was told by

one victim that the victim had lied about the incident and in

fact had invented the whole accusation.    Defendant acknowledges

in his certification that before pleading guilty, he had learned

from friends that this victim had admitted to lying about the




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                                4

sexual activity.    Defendant contends that he is innocent of the

charges and that this testimony would have supported his defense

that the father of the victims had his daughters lie about the

incidents in revenge for the affair defendant had with the

father's wife.

    In declining to overturn the plea on this basis, the trial

court observed that defendant by his own certification was aware

of this favorable testimony before he pleaded guilty.    His

position now contradicts his own testimony under oath provided

to the court prior to his plea that he was satisfied with his

attorney's services, that he had time to discuss the charges and

the plea agreement with his attorney, and that his attorney had

answered all of his questions.    The court further noted that

this witness's testimony also only involved one of the victims

and not the other.

    Defendant now appeals, raising the following issues:

         POINT I

         THE MATTER SHOULD BE REMANDED FOR AN
         EVIDENTIARY HEARING CONCERNING WHAT
         DEFENDANT WAS TOLD BY HIS TRIAL COUNSEL AS
         TO WHAT PAROLE DATE HE SHOULD EXPECT IF HE
         WERE TO PLEAD GUILTY.

         POINT II

         DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY
         PLEA BECAUSE HIS REASONABLE EXPECTATIONS
         UNDER THE PLEA WERE THWARTED BY THE STATE.




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                                 5

         POINT III

         DEFENDANT WAS DENIED THE EFFECTIVE
         ASSISTANCE OF TRIAL COUNSEL.

    After a careful review of the record, arguments raised by

counsel, and the pertinent law, we affirm for substantially the

reasons set forth by Judge Carroll in his written opinion of

September 5, 2008.

    Affirmed.




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