STATE OF NEW JERSEY v. AMARANTH ANNATHUR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0073-05T10073-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMARANTH ANNATHUR,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 1, 2006 - Decided November 27, 2006

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Indictment No. 03-08-0154-S.

Jabin & Fleming, attorneys for appellant

(Christian P. Fleming, of counsel and on

the brief).

Stuart Rabner, Attorney General, attorney

for respondent (Karen Fiorelli, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Pursuant to a plea bargain, defendant Amaranth Annathur pled guilty to second-degree attempted sexual assault, and Judge Thomas Kelly sentenced him to three years probation, conditioned on 364 days imprisonment in the Mercer County Correction Center. Defendant appeals, contending the trial judge erred when he failed to suppress evidence, and to grant defendant's motion to withdraw his guilty plea. We reject both contentions and affirm.

Utilizing the internet, defendant solicited sex from a person that he believed to be under sixteen years old, who was actually a Division of Criminal Justice undercover investigator. Defendant made plans to meet the minor at the Avalon Watch Apartment Complex for the purpose of engaging in sexual activity. Defendant would signal his presence by driving his Toyota Corolla to the front of Building 15 and activating his emergency flashers. When defendant arrived at the designated location and initiated the signal, officers swooped in and placed him under arrest. Defendant signed a consent-to-search form and the officers eventually searched defendant's vehicle, finding Mapquest directions to the Avalon Watch Apartments, a surgical lubricant, laptop computer, and miscellaneous documents.

After defendant pled guilty to attempted sexual assault, but prior to sentencing, defendant moved to withdraw his guilty plea. Defendant argued that his plea was not voluntary because he had been misinformed by counsel that he could appeal any deportation proceedings initiated against him. The trial court rejected the motion and sentenced defendant. This appeal followed.

The first argument defendant advances on appeal is that the officers lacked probable cause to arrest him. This argument, however, was not made to the trial court, does not challenge jurisdiction, and does not concern a matter of substantial public interest. Accordingly, it is not properly before us and need not be considered. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, it is meritless. After all, defendant had numerous online conversations with an undercover investigator posing as a fourteen-year-old minor. Defendant appeared at the agreed location in the expected vehicle at the prearranged time and place and activated the pre-arranged signal. The police had the necessary "well grounded" suspicion that a crime was to be committed. State v. Waltz, 61 N.J. 83, 87 (1972).

Defendant's contention that his consent to search was not made knowingly and voluntarily likewise lacks merit. Although defendant claims that he was disturbed and confused, the officers' testimony and the forms he signed prove otherwise. Defendant, who had been in this country for about eleven years, was observed reading the forms and seemed to understand their content. The fact that he signed both forms, the second waiving his right to be present during the search, cannot be parlayed into reversible error, especially because the second form was comprehensive and correct in all respects. Furthermore, the evidence supports the judge's finding that defendant knowingly and voluntarily consented to the search.

Finally, defendant's argument that the judge should have allowed him to withdraw his plea also lacks merit. There was no question that the only reason defendant received this extremely lenient sentence for a second-degree crime is that everyone expected that he would be deported. The record is quite clear: neither the plea form nor anything the judge stated was in error or confusing on this point. Furthermore, the immigration consequences of a guilty plea, being collateral and not penal, need not be discussed by the judge during the plea colloquy. State v. Heitzman, 107 N.J. 603, 604 (1987); State v. Nichols, 71 N.J. 358, 361 (1976) (where court and counsel have misinformed defendant as to a material element of a plea negotiation, it would be unjust to hold defendant to his plea). Any mistake concerning deportation appeal rights is, therefore, not a material misunderstanding, and is different in quality and character from deportation misinformation provided during the plea proceeding itself, for which we have previously granted post-conviction-relief. See State v. Garcia, 320 N.J. Super. 332, 340-41 (App. Div. 1999).

Accordingly, we find no merit in any of the contentions defendant has advanced on appeal and affirm in all respects. We return this matter to the trial court to vacate the stay pending appeal.

Affirmed.

 

(continued)

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5

A-0073-05T1

RECORD IMPOUNDED

November 27, 2006