STATE OF NEW JERSEY v. VICTOR LOPEZ-RODRIGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2476-06T42476-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR LOPEZ-RODRIGUEZ,

Defendant-Appellant.

_________________________________________________

 

Submitted October 16, 2008 - Decided

Before Judges Stern and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, 99-10 0980.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael Confusione,

of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On this appeal from the denial of his petition for post- conviction relief ("PCR"), defendant argues that "[t]he trial court erred in denying defendant's petition for post-conviction relief and request to withdraw his guilty plea." Specifically, he asserts "he was never informed about and did not understand the five-year parole supervision that attached to his plea" and twenty-year sentence for aggravated manslaughter with 85% to be served before parole eligibility under the No Early Release Act ("NERA"). See N.J.S.A. 2C:43-7.2. He further contends that he was denied "effective assistance of trial counsel and due process . . . because he did not have an interpreter during his plea and sentencing hearings or when communicating with his trial counsel."

On December 14, 2001, defendant pled guilty to aggravated manslaughter as a lesser included offense to murder, in exchange for a sentence of twenty years with NERA to apply and dismissal of other counts of the indictment. We recognize that the judge did not ask a specific question related to the period of parole supervision. But see State v. Johnson, 182 N.J. 232, 241 (2005); State v. Rosado, 182 N.J. 245, 246 (2005) (remanding "for a determination as to whether defendant's mistaken belief regarding the penal consequences of his sentence was a material factor in his decision to plead guilty"). However, defendant acknowledged reading, and that he "understood everything on," the plea form. The plea form clearly had the number "5" inserted with respect to the number of years "of parole supervision" that "will begin as soon as you complete the sentence of incarceration."

The PCR judge conducted an evidentiary hearing at which defendant and his attorney at the time of plea both testified. Thereafter, the judge found that "the account that the defendant gave was incredible" and that "the testimony of [defense counsel was] credible." The judge gave specific reasons for his findings as to credibility, including the "contradictions" and "inconsistencies" of the testimony with the record, and that the period of parole supervision (as opposed to the length of sentence) was not part of defendant's initial post-conviction submissions to the judge.

The judge further concluded "that the five years of parole supervision did not make any difference to [defendant] with regard to generating this plea agreement" and that "it was not a factor in him accepting or rejecting the plea," and the record supports that finding. See, e.g., Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S. Ct. 366, 370-71, 88 L. Ed. 2d 203, 210-11 (1985); Johnson, supra, 182 N.J. at 244.

Defense counsel testified at the PCR hearing that defendant understood the plea offer and was satisfied with it. He stated that he advised defendant of the five year additional period of parole supervision, and that he and defendant "spoke in English," that he "was satisfied [defendant] understood [him]" and that language "was never a problem." The judge's determination of credibility controls this issue. See

State v. Locurto, 157 N.J. 463, 474 (1999).

Affirmed.

 

In fact, defendant testified at the PCR hearing that the period of parole supervision would have been acceptable with a seven-year sentence.

(continued)

(continued)

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A-2476-06T4

December 16, 2008