STATE OF NEW JERSEY v. MATHURIN AMBROISE

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3018-08T4



STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

MATHURIN AMBROISE,

          Defendant-Appellant.
_______________________________

         Submitted February 23, 2010 - Decided March 11, 2010

         Before Judges Wefing and Messano.

         On appeal from Superior Court of New Jersey,
         Law Division, Atlantic County, No. 07-01-00007-SGJ.

         Rone, Hughes & Kowalski, attorneys for appellant
         (Lee J. Hughes, on the brief).

         Paula T. Dow, Acting Attorney General, attorney
         for respondent (Yvonne G. Maher, Deputy Attorney
         General, of counsel and on the brief).

PER CURIAM

     Defendant was indicted for first-degree transporting

property derived from criminal activity, N.J.S.A. 2C:21-25a, and

second-degree receiving stolen property, N.J.S.A. 2C:20-7.    On

July 7, 2008, he entered a negotiated plea of guilty to the

latter charge, with the State agreeing to recommend that

defendant be sentenced as if convicted of a third-degree crime

to a term of three years.     Defendant subsequently filed a motion

to withdraw his guilty plea.     The trial court denied the motion

and sentenced defendant in accordance with the terms of the plea

agreement.    Defendant has appealed.   After reviewing the record

in light of the contentions advanced on appeal, we reverse and

remand for further proceedings.

    Question 17 of the plea form executed by defendant asked,

"Do you understand that if you are not a United States citizen

or national, you may be deported by virtue of your plea of

guilty?"     The answer "Yes" was circled.

    When defendant entered his guilty plea, he had the

following colloquy with the trial court.

                Q. I understand that you are not a
           citizen of this country, is that correct?
           A. Yes, I'm not.

                Q. All right. And we discussed
           earlier today that by entering a guilty
           plea, it may have an adverse impact upon
           your immigration status and you understand
           that?
           A. Yes, sir.

                Q. All right. And you believe that
           you've had enough time to review that issue
           with your counsel?
           A. I wish to have more time, but I think we
           did our best.

                Q. All right. Well, you're going to
           have a sentencing date that's later on.
           We're likely giving sentencing dates in


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          September and perhaps even would be
          agreeable to something a little bit later
          than that if everybody needed a little bit
          more time. So at this point, are you
          prepared to go forward with your guilty
          plea?
          A. Yes.

    Following those proceedings, defendant consulted with an

attorney who practiced in the field of immigration law.   That

attorney forwarded an opinion letter stating that if defendant

was either found guilty or pled guilty to this second-degree

charge, "he will almost certainly be deported and/or removed

from the United States."

    Defendant then filed his motion to withdraw his guilty

plea.   He presented several reasons to the trial court why he

should be permitted to withdraw his guilty plea: his lack of

knowledge of the immigration consequences of his guilty plea and

its impact on whether he could be admitted to Intensive

Supervision Program, and the inadequacy of the factual basis

behind his plea.

    In denying the motion with respect to the immigration

consequences, the trial court referred to those consequences as

"collateral" to the entry of a guilty plea.   In its brief to us,

the State repeats that characterization, citing State v. Chung,


210 N.J. Super. 427 (App. Div. 1986).   Chung, however, no longer

represents the law.   The Supreme Court in July 2009 decided




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State v. Nunez-Valdez, 
200 N.J. 129, 138, 143 (2009), in which

it stressed the necessity of a defendant having a full

understanding of the potential immigration consequences of a

guilty plea.     The trial court did not have the benefit of the

Court's analysis at the time of defendant's motion, for it was

decided some months after the trial court decided that motion.

Defendant's appeal, however, was pending before us at the time

of the Court's decision, and he is entitled to pipeline

retroactivity.

    We note in addition that the Supreme Court decided State v.

Slater, 
198 N.J. 145 (2009), in which it articulated the

standards to be employed by a trial court in considering a

motion to withdraw a guilty plea, after this trial court denied

defendant's motion.     The trial court did not have available to

it the Slater standard when it decided defendant's motion.

    We reverse the trial court's order and remand the matter to

the trial court for reconsideration in light of State v. Nunez-

Valdez and State v. Slater.

    Reversed and remanded.




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