STATE OF NEW JERSEY v. MOSES BAKSH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0611-05T40611-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MOSES BAKSH,

Defendant-Appellant.

_______________________________________

 

Submitted April 18, 2007 - Decided May 15, 2007

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-08-2632.

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

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a supplemental pro se brief.

PER CURIAM

Defendant Moses Baksh appeals from an order entered on May 13, 2005, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Camden County Indictment No. 2632-08-00 with the kidnapping on March 19, 2000, of two-year old K.R., in violation of N.J.S.A. 2C:13-1. On April 15, 2002, defendant pled guilty to the offense, and on June 7, 2002, defendant was sentenced in accordance with the plea agreement to a ten-year term of incarceration. We affirmed the sentence. State v. Baksh, A-5478-02T4 (App. Div. October 10, 2003).

Defendant filed a petition for PCR, in which he asserted that he was denied the effective assistance of trial counsel. Thereafter, counsel filed a brief in which counsel raised the following arguments: 1) trial counsel provided ineffective assistance of counsel by failing to move to dismiss the indictment because defendant had adopted the child/victim; 2) trial counsel provided ineffective assistance of counsel by failing to investigate defendant's assertion that he had legally adopted the child in Florida; 3) defendant should be allowed to withdraw his guilty plea because trial counsel failed to inform him that, as a non-citizen of the United States, he is subject to deportation upon his release from incarceration; 4) defendant should be allowed to withdraw his guilty plea because he relied upon trial counsel's "grossly inaccurate information" regarding his parole eligibility for the recommended sentence; and 5) defendant's conviction and sentence should be set aside due to the cumulative effect of errors by trial counsel.

The trial judge conducted an evidentiary hearing on the petition at which defendant and his trial counsel, Scott R. Cohen (Cohen), testified. Thereafter, the judge placed his decision on the record, concluding that the petition was without merit. The order denying PCR was entered on May 13, 2005, and this appeal followed.

Defendant argues that the judge erred in concluding that he had not been denied the effective assistance of trial counsel. Defendant contends that trial counsel failed to conduct a thorough investigation of the law and the facts and did not "consider all plausible options." Defendant also argues that trial counsel erroneously failed to file a motion to dismiss the indictment; failed to investigate or order medical evidence that defendant may have been suffering from diminished capacity at the time of the kidnapping; failed to inquire as to his heritage; and did not explain his eligibility for parole. Defendant additionally argues that the Florida judge violated the law by granting custody of the child to her mother, and he was the child's legal guardian at the time he abducted the child.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain relief based on a claim of ineffective assistance of counsel, a defendant must show that: 1) counsel's performance was deficient, and 2) counsel's errors were so serious as to deprive the defendant of a fair trial. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To establish that an attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In addition, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

The record shows that N.R. is K.R.'s mother, and in the relevant time frame, N.R.'s mother Carmen was married to defendant. Defendant testified at the PCR hearing that K.R. was living with him in Florida after N.R. purportedly ran off with a drug dealer. It appears that sometime in August 1999, N.R. traveled to Florida by bus and returned to New Jersey with the child and Carmen.

On August 24, 1999, an order was entered by a judge in the Seventeenth Judicial Circuit, Broward County, Florida, granting defendant's petition to adopt K.R. The judge noted on the order of adoption that the birth parents had abandoned the child and had not visited, supported, or communicated with the child. On August 31, 1999, the Florida court ordered Carmen to return the child to Florida.

On September 15, 1999, a Family Part judge in Camden County ordered Carmen to turn K.R. over to the Division of Youth and Family Services (Division), which was granted temporary custody of the child. The judge ordered the Division to arrange for the return of the child to Florida. However, on or about September 24, 1999, the Florida court vacated its return order.

It appears that at some point, custody of K.R. was returned to N.R. In his certification supporting his PCR petition, defendant claimed that he spoke with N.R. and she agreed to allow him to visit the child if he would drop the adoption. According to defendant, N.R. "took back her promise" and denied him visitation.

On March 19, 2000, defendant found K.R. playing outside on the grounds of a motel in Gloucester City, where the child was staying with her mother and her siblings, after their home had been damaged by a fire. Defendant took the child, put her in his car, and drove to New York, where he was arrested. At the time, defendant had in his possession an itinerary which indicated that he planned to travel several days later to his birthplace in Trinidad. Defendant asserted, however, that he had obtained the itinerary only to "scare" N.R. and he never intended to travel to Trinidad.

Cohen testified that he investigated whether defendant had legal custody of K.R. at the time of the kidnapping and said that he considered filing a motion to dismiss the indictment on that basis. Cohen stated that he spoke with defendant's counsel in Florida, who advised him that at the time he abducted K.R., defendant did not have any legal right to custody of the child. In addition, defendant's Florida attorney advised Cohen that he believed defendant may have obtained his custody rights fraudulently or illegally.

We are convinced that, based on this evidence, the judge properly rejected defendant's assertion that he had been denied the effective assistance of counsel because counsel purportedly failed to investigate defendant's claim that he had a right to take custody of K.R. on March 19, 2000, and failed to move to dismiss the indictment on that basis. The record makes clear that Cohen properly investigated defendant's claim and a motion to seek dismissal of the indictment on the ground that defendant had custody rights respecting the child on March 19, 2000, would have been meritless.

As the judge pointed out in his decision on the record, defendant conceded in his testimony at the PCR hearing that he knew N.R. had custody of the child at the time he took the child from the motel. While defendant insists that the adoption order of the Florida court provided a basis for a motion to dismiss the indictment, the validity of that order had been called into question by the subsequent action of the Florida court vacating the order and requiring the return of the child to Florida. Indeed, at his plea hearing on April 15, 2002, defendant admitted he was aware at the time he took K.R. that he was violating a court order and had no legal right to custody or control of the child. In our view, the judge correctly determined that the State had presented sufficient evidence to make out a prima facie case of kidnapping and any motion to dismiss the indictment would have been fruitless.

Defendant also argues that counsel erred by failing to advise him that he faced deportation upon completion of his sentence. We disagree.

Defendant is a citizen of Trinidad. He was sixty-six years old at the time of the PCR hearing, and had resided in the United States for about thirty-seven years. Defendant conceded that he never told Cohen that he was not a citizen of the United States, but he claimed that he gave Cohen his "green card" to hold. Defendant testified that Cohen never mentioned anything to him about deportation and, if he had known that he could be deported after completion of his sentence, he would not have pled guilty.

However, Cohen testified that he went over the plea agreement form with defendant. Question 17 on that form states, "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." Based on his discussion with defendant, Cohen circled the response indicating that this inquiry was not applicable. Defendant signed the plea agreement form. Cohen also testified that he did not recall ever seeing a "green card" among the items he had taken from defendant at the time defendant was arrested.

We are convinced that the judge correctly rejected defendant's claim that trial counsel erred by failing to advise him about the potential for deportation. In his decision, the judge noted that defendant admitted that he never discussed his citizenship with Cohen. The judge found that Cohen had credibly testified that he was never made aware that defendant was not a citizen of the United States, and that defendant provided no proof to him indicating that he was not an American citizen. The judge also pointed out that Cohen went over the plea form with defendant, including Question 17, which specifically dealt with the issue of deportation of non-citizens. We are satisfied that the judge's findings are fully supported by the record.

We also are convinced that there is no merit to defendant's contention that his counsel erred by failing to correctly advise him regarding parole eligibility. Defendant testified that Cohen told him that he would be "on parole in two months time." Defendant was not paroled after two months of incarceration, and he was still incarcerated at the time of the PCR hearing.

However, Cohen testified that he reviewed the chart on parole eligibility with defendant before defendant entered his plea. Cohen said that he never promised defendant that he would be paroled at any particular time. Cohen asserted that he gave defendant a general idea of when he would become eligible for parole, but never provided any guarantees regarding parole. As the judge found, before defendant entered his plea, trial counsel properly informed him regarding parole eligibility.

We have considered defendant's other contentions and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

10

A-0611-05T4

May 15, 2007