SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4168-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

DESIRE LUSAMBA,

Defendant-Appellant.

________________________

Submitted January 5, 2021 – Decided

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Accusation Nos. 12-12-1296 

and 12-12-1297.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Mark Niedziela, Assistant 

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

January 20, 2021
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PER CURIAM

In this appeal, we review an order that denied both defendant's postconviction relief (PCR) petition and his motion for leave to withdraw his guilty 

pleas – applications that were filed five years and seven months after entry of 

the February 22, 2013 judgments of conviction – based on a claim that he was 

misadvised about the deportation consequences of his guilty pleas. We remand 

for an evidentiary hearing.

Defendant was charged in separate indictments in 2012 of having 

committed controlled dangerous substance (CDS) offenses. By way of a 

negotiated plea agreement, defendant pleaded guilty in January 2013 to thirddegree CDS possession, N.J.S.A. 2C:35-10(a)(1), under one indictment, and 

third-degree CDS distribution, N.J.S.A. 2C:35-5(b)(3), under the other. During 

the plea hearing, defendant asserted he was a United States citizen.

At the sentencing hearing a month later, the judge asked defendant where 

he was born, and defendant responded "Paterson," which prompted the judge to 

ask him if there was "[a]ny reason" why the person preparing the presentence 

report "thought you were born . . . somewhere in Africa." Defendant responded 

that he was "born in Africa, but I'm a citizen." The judge pursued the matter 

further:
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THE COURT: Where in Africa?

THE DEFENDANT: Zaire.

THE COURT: And you became a citizen when?

THE DEFENDANT: 2010.

THE COURT: You have a U.S. passport?

THE DEFENDANT: Yes.

THE COURT: I see you also have a naturalization 

certificate, right?

THE DEFENDANT: Yes.

THE COURT: Now, you told the PSI interviewer you 

became a U.S. citizen in 2012.

THE DEFENDANT: I'm not pretty sure – like, it was 

– it was – it was done through my mother, so I'm not 

really sure exactly what year it was done.

THE COURT: Well, 2012 is last year.

THE DEFENDANT: So (indiscernible) –

THE COURT: You appeared to reach back into the 

recesses of your memory.

THE DEFENDANT: That's when I knew about it.

. . . .

THE COURT: . . . One doesn't confuse a few months 

ago with a few years ago. It makes me doubt your 
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citizenship. And I'm not concerned, personally, with 

whether you're a citizen or not, but you may have lied 

to your lawyer and the [c]ourt when you entered your 

guilty plea in terms of the potential impact of this 

conviction on your ability to remain in the United 

States. I am going to require that you bring this 

naturalization certificate and passport to probation. If 

you're lying about your citizenship, the only one that's 

going to get hurt by that is you.

THE DEFENDANT: Yes.

THE COURT: Are you a U.S. citizen?

THE DEFENDANT: Yes.

The judge then sentenced defendant to concurrent probationary terms.

Not long after, on being arrested for marijuana possession with the intent 

to distribute and other related offenses, defendant was charged with a violation 

of the terms of his probation (VOP). The marijuana charges were downgraded 

to the municipal court and dismissed.

At an initial court appearance on the VOP in October 2013, defendant was 

given time to consult an immigration attorney and to consider whether he had 

an interest in moving to retract his January 2013 guilty pleas. A month later, at 

a second appearance on the VOP charge, with there being an ICE detainer on 

defendant, the judge asked defense counsel if it was his "wish to file a motion 

to retract . . . or are you approaching this in some other fashion?" Defendant's 
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attorney advised the court that defendant had consulted with an immigration 

attorney; he also represented that defendant had discussed with counsel the 

uncertain political situation in defendant's home country, the Democratic 

Republic of Congo. The judge questioned defendant, who confirmed he had 

misrepresented his status as a United States citizen in the plea form executed in 

January 2013; the judge also engaged in the following colloquy with defendant:

Q. You do understand that this conviction and any 

previous ones you may have subject you to deportation 

from the United States?

A. Yes.

Q. And you are aware, there is already a detainer on 

you from ICE, the immigration service. Is that right?

A. Yes.

Q. You have consulted with an attorney . . . with regard 

to your immigration – the possible immigration 

consequences?

A. Yes.

Q. And are you satisfied that he's answered all of your 

questions with regard to your immigration situation?

A. Yes.

. . . .
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Q. [D]o you have any desire to meet with another 

immigration attorney or [the same immigration 

attorney] again?

A. No.

Q. You understand that your lawyer could file a motion 

to retract your guilty plea, which the [c]ourt might 

grant. It might not but it might grant [such a motion]

and you would, of course, go back to the drawing board 

with exposure to a more severe sentence and prison 

term, et cetera, rather than the probationary agreement 

that you worked out. But you could possibly retract 

your pleas and decide to go to trial in the hope of being 

acquitted all together, et cetera. Are you aware of that?

A. Yes.

Q. . . . But it is not your wish to file a motion to retract 

your guilty plea on these matters . . . . Is that right?

A. Yes.

Q. And you do not want to discuss – consult with an 

immigration attorney further. You are satisfied to stick 

with the plea agreement you reached, knowing that 

there is an ICE detainer and that you face deportation 

consequences. Is that right?

A. Yes.

Q. All right. You've made that decision freely and 

voluntarily?

A. Yes.

Q. No one has threatened you or coerced you to take 

that position?
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A. No.

Q. Anyone promise you anything for taking that 

position?

A. No.

The judge had defendant initial a revised page of the plea agreement form to 

clarify defendant's position that he was not a United States citizen. The matter 

was concluded with the judge continuing the original probationary terms.

Defendant took no other action until he filed a PCR petition and a motion 

to be permitted to retract his guilty pleas in October 2018, more than five years 

after entry of the judgments of conviction. Although the judge held that the PCR 

petition was untimely and that defendant failed to demonstrate excusable 

neglect, see R. 3:22-12, he proceeded to consider the merits of defendant's 

arguments and concluded that the PCR petition and the motion to retract the 

guilty pleas were without merit. The judge's rationale for denying defendants' 

applications was expressed in a written opinion, and a memorializing order was 

entered on May 20, 2019.

Defendant appeals the May 20, 2019 order, arguing through counsel that 

(1) he is entitled to an evidentiary hearing on his claim that trial counsel rendered 
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ineffective assistance of counsel by failing to inform him adequately of the 

deportation consequences of his plea, and (2) his "guilty plea must be set aside." 1

As to the first point, the judge concluded that the claim of ineffectiveness 

had no merit because defendant had not established the first Strickland/Fritz2

prong; he did not reach the second prong. We agree with that part of the judge's 

ruling when he rejected the argument that counsel was ineffective during the 

period of time defendant asserted he was a United States citizen; according to 

the judge – and we agree – such an argument, if sustained, would impose on 

defense counsel an unreasonable "sixth sense" by holding him to a standard of 

being able to "sniff out" that defendant had not been honest about his claim to 

citizenship when originally entering his guilty pleas.

But there is another aspect of defendant's argument that warrants further 

factual development. Defendant argues that his attorney failed to properly 

advise him about immigration consequences once it was revealed he was not a 

1 Defendant filed a pro se supplemental brief that presents an argument similar 

to the first point.

2 Strickland v. Washington, 466 U.S. 668, 694 (1984) (defining federal 

constitutional claims of ineffectiveness as requiring proof that counsel's 

performance fell below an objective standard of reasonableness, and, but for that 

breach, there was a reasonable probability that the result of the proceeding 

would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the 

Strickland test for state constitutional claims of ineffectiveness).
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United States citizen. In that regard, defendant claims his attorney told him that,

while he would have to "face" ICE about his situation, there was a potential for 

his remaining in this country because of unrest in his home country. Defendant 

argues that this was "misadvice" and sufficiently supports his ineffectiveness 

claim. "Misadvice" about a defendant's immigration status upon entry of a 

guilty plea supports an ineffectiveness claim even under legal principles 

preceding the Supreme Court's landmark Padilla decision.3 See State v. NuñezValdѐz, 200 N.J. 129, 131 (2009).

But defendant's statements in support of his PCR petition disavowed what 

he said, under oath, when responding to the judge's questions about deportation 

on the earlier occasions. During the VOP proceeding, the judge asked defendant 

whether he had met with an immigration attorney, and defendant said he had; 

the attorney was, in fact, mentioned by name. In seeking relief on his PCR 

petition, defendant asserted he never met that attorney. And there are numerous 

other inconsistencies between defendant's factual claims at the PCR stage and 

the statements he made during the plea hearing and at the VOP hearing. Those 

inconsistencies, however, do not permit the rejection of one factual version and 

3 Padilla v. Kentucky, 559 U.S. 356 (2010).
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the adoption of another without further exploration at an evidentiary hearing. 

We, thus, remand for such a hearing.

The judge also denied defendant's motion to retract his guilty pleas, 

finding none of the Slater4factors supported relief. The judge held:

As to the first factor, the existence of a "colorable claim 

of innocence[,]" the [d]efendant's brief states tersely 

that "[t]he [d]efendant cannot claim innocence." . . . 

The second factor, the nature and strength of 

[d]efendant's reason for withdrawing his . . . guilty 

pleas that is, his own misrepresentations as to his 

citizenship status solely because his attorney did not 

figure out then that he was lying about it, is a very weak 

argument at best. Should the [d]efendant's own 

untruths now serve to benefit him? The [c]ourt does 

not think so.

The third factor, the existence of a plea agreement, 

certainly favors the State. As to factor four, it is almost 

inherently a prejudice to the State and it would be a 

potentially unfair advantage to the [d]efendant to allow 

the retraction of his guilty pleas more than six years 

later in terms of the potential impact on the ability of 

the State's witnesses to identify the [d]efendant and to 

recall facts.

[Footnote and citations omitted.]

 We find insufficient merit in defendant's arguments about his Slater

application to warrant further discussion in a written opinion, R. 2:11-3(e)(2), 

4 State v. Slater, 198 N.J. 145 (2009).
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and affirm substantially for the reasons set forth by the judge in his written 

opinion.

Affirmed in part; vacated in part; and remanded for an evidentiary hearing 

on defendant's PCR petition. We do not retain jurisdiction.