SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2531-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELTON G. CAESAR, a/k/a CAESAR,

and ELTON S. CAESAR,

Defendant-Appellant.

___________________________________________

Submitted May 22, 2018 – Decided

Before Judges Yannotti and DeAlmeida.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Indictment No. 11-

11-2104.

The Anthony Pope Law Firm, PC, attorneys for 

appellant (Annette Verdesco, on the brief).

Robert D. Laurino, Acting Essex County 

Prosecutor, attorney for respondent (Tiffany 

M. Russo, Special Deputy Attorney 

General/Acting Assistant Prosecutor, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

June 25, 2018
2 A-2531-16T1

Defendant appeals from an order entered by the Law Division 

on December 2, 2016, which denied his petition for post-conviction 

relief (PCR). We affirm.

I.

A grand jury in Essex County returned a twelve-count 

indictment, which charged defendant and others with various 

offenses. Defendant was charged with first-degree carjacking, 

N.J.S.A. 2C:15-2(a)(2) (count one); first-degree kidnapping, 

N.J.S.A. 2C:13-1(b)(1) (count two); third-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree 

unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5(d) 

(count four); third-degree possession of a weapon (knife) for an 

unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); second-degree 

conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 

2C:13-1(b)(2) (count six); first-degree kidnapping, N.J.S.A. 

2C:13-1(b)(2) (count seven); second-degree aggravated assault, 

N.J.S.A. 2C;12-1(b)(1) (count eight); first-degree robbery, 

N.J.S.A. 2C:15-1 (count nine); second-degree unlawful possession 

of a firearm (handgun), N.J.S.A. 2C:39-5(b) (count ten); and 

second-degree possession of a firearm (handgun) for an unlawful 

purpose, N.J.S.A. 2C:39-4(a) (count eleven). 

On June 5, 2012, defendant pled guilty to count two (firstdegree kidnapping) and count eight (second-degree aggravated 
3 A-2531-16T1

assault). The State agreed to recommend that defendant be sentenced 

in the second-degree range to a five-year custodial term, with an 

eighty-five percent period of parole ineligibility, pursuant to 

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State 

also agreed to dismiss the charges against the co-defendants. 

At the plea hearing, defendant acknowledged that he had 

reviewed the plea forms, gave honest answers to the questions, and 

initialed and signed the forms. Defendant provided the following 

responses to Question 17 on the plea form:

17. a. Are you a citizen of the United States? 

[Defendant circled "No."]

b. Do you understand that if you are not a 

citizen of the United States, this guilty plea 

may result in your removal from the United 

States and/or stop you from being able to 

legally enter or re-enter the United States? 

[Defendant circled "Yes."]

c. Do you understand that you have the right 

to seek individualized advice from an attorney 

about the effect your guilty plea will have 

on your immigration status? [Defendant circled 

"Yes."]

d. Have you discussed with an attorney the 

potential immigration consequences of your 

plea? If the answer is "No," proceed to 

question 17e. If the answer is "Yes," proceed 

to question 17f. [Defendant circled "YES."] 

e. Would you like the opportunity to do so? 

[Defendant circled "Yes."]

f. Having been advised of the possible 

immigration consequences and of your right to 
4 A-2531-16T1

seek individualized legal advice on your 

immigration consequences, do you still wish 

to plead guilty? [Defendant circled "Yes."]

In response to the court's questions, defendant stated he 

understood that if he went to trial and the jury found him guilty 

on the kidnapping charge, he could be sentenced to up to thirty 

years in state prison. Defendant told the court he was pleading 

guilty because he was guilty of the charges. 

Defendant provided a factual basis for his plea to kidnapping. 

He stated that on April 13, 2011, he lured his brother-in-law into 

his vehicle and would not release him without being harmed. 

Defendant said he lured his brother-in-law to his house and beat 

him up. Defendant stated he knew it was unlawful to kidnap the 

victim "like this" against his will. Defendant also provided a 

factual basis for his plea to the charge of aggravated assault. 

He admitted he confronted his brother-in-law and used physical 

force upon him, causing the victim to sustain serious bodily 

injury. 

The court accepted the plea and found that defendant 

understood the nature of the charges, received the advice of 

competent counsel, and knew the maximum penalty that could be 

imposed. The court determined that defendant voluntarily waived 

his right to a jury trial, and the plea was not the result of any 
5 A-2531-16T1

threats, force, or coercion. The court found that defendant had 

provided an adequate factual basis for his plea. 

On July 20, 2012, the court sentenced defendant in accordance 

with the plea to a five-year custodial term, with an eighty-fivepercent period of parole ineligibility, pursuant to NERA. 

Defendant did not file a direct appeal. 

On August 20, 2015, defendant filed a pro se petition for 

PCR, alleging that he did not have the effective assistance of 

counsel. He claimed his attorney: misinformed him about the 

immigration consequences of his plea; "cajoled" him into accepting 

the State's plea offer without informing him of the "pros and 

cons" of going to trial; failed to investigate his case; did not 

review the discovery with him; and failed to file pre-trial 

motions. Defendant also alleged the court did not inform him of 

the immigration consequences of his plea. 

The PCR court assigned counsel to represent defendant.

Counsel filed a brief in support of the petition and sought an 

evidentiary hearing. The PCR judge heard oral argument on August 

5, 2016, and granted defendant's application for an evidentiary

hearing. 

II.

At the hearing, defendant's trial attorney testified that she 

has handled more than six hundred cases involving defendants whose 
6 A-2531-16T1

cases raised immigration issues. She stated that when dealing with 

those clients, she first ascertains whether the defendant is a 

United States citizen and has any potential immigration issues. 

She testified that when preparing a defendant for a plea in a 

criminal case, she reviews the court-generated plea form with the 

client. 

Counsel noted that by the time she prepares a client for 

entry of a plea, she has already discussed with the client the 

likelihood or unlikelihood of conviction. She and the client 

generally discuss the parameters of the plea and any potential 

immigration consequences. Counsel noted that she is not an

immigration attorney, and the client can go seek legal advice 

regarding immigration "elsewhere." Then, she would go over the 

plea form and the questions with the client.

Counsel stated that defendant was a former client and she 

represented him in this matter. Counsel was generally familiar 

with the case and the charges, and noted that the charges had been 

resolved with a plea. Counsel testified that she completed the 

court's standard plea form with defendant.

Counsel was asked if she discussed the immigration 

consequences of the plea with defendant. She replied that four 

years had passed since defendant pleaded guilty, and she did not 

recall her "exact conversation" with defendant. She stated, 
7 A-2531-16T1

however, that she was aware of his immigration status and it was 

something they discussed. Counsel could not recall whether 

defendant indicated he wanted to speak with immigration counsel. 

Counsel also said defendant never indicated he did not want to 

enter a plea. Rather, it seemed as if defendant wanted to enter

the plea. 

On cross-examination, counsel acknowledged that she was aware 

defendant was not a citizen of the United States and that was 

noted on the plea form. She said defendant had answered "Yes" to 

the question of whether he understood that his guilty plea could 

result in his removal from the United States. 

Defendant also had acknowledged that he understood he had the 

right to seek individualized advice regarding the effect his guilty 

plea would have on his immigration status. Counsel noted that 

defendant indicated on the form that he had discussed the potential 

immigration consequences of the plea with an attorney, but he also 

stated that he would like the opportunity to do so. 

Counsel stated that she did not have a specific recollection 

of whether defendant sought the advice of an immigration attorney.

She noted, however, that she knew there were possible immigration 

consequences, and she discussed them with defendant. Counsel said 

this included the potential that defendant would be deported or 

removed from the United States pursuant to a removal proceeding. 
8 A-2531-16T1

Counsel was asked if she knew the crimes that would require 

deportation and the crimes that could lead to possible deportation. 

Counsel replied that she was not an immigration attorney, but she 

was familiar with terms such as a crime of moral turpitude and an 

aggravated felony. Counsel noted that defendant had been charged 

with first-degree kidnapping, which was "the top charge." Based 

on her understanding, counsel said that if convicted, "there was 

a very good chance that he would be deported." 

When asked if she advised defendant there was a "good chance 

of deportation," counsel replied she did not recall whether she 

said "good chance." She stated, "I just know that . . . not knowing 

what another [j]udge would do, that there was a more likely chance 

that he was going to be deported based on the nature of the crime 

and his guilty plea." 

Counsel testified that based on her discussions with

immigration attorneys and her colleagues, an immigration judge 

could consider the totality of the circumstances in determining 

whether a person should be deported. She stated she would not give 

a client an unequivocal statement that the client was "definitely" 

going to be deported. She did not recall whether defendant spoke 

with another attorney in her office on this issue. 

Counsel further testified that to her knowledge, defendant 

had not spoken with an immigration attorney outside of her office. 
9 A-2531-16T1

She did not recall whether she had encouraged defendant to seek 

specialized individualized immigration advice from an attorney who 

practices predominantly in that area of the law. She had no 

independent recollection of putting the plea on the record. 

After hearing arguments by the attorneys, the judge reserved 

decision. On December 2, 2016, the judge filed a lengthy written 

opinion in which she concluded that defendant had not established 

he had been denied the effective assistance of counsel with regard 

to his plea. The judge found that although his attorney's advice 

was deficient, defendant failed to show he was prejudiced by the 

deficient advice. The judge entered an order dated December 2, 

2016, denying PCR. This appeal followed.

III. 

On appeal, defendant argues the court committed reversible 

error by denying his PCR petition. Defendant contends the evidence 

presented at the evidentiary hearing shows he was denied the 

effective assistance of counsel with regard to his plea. 

Where, as in this case, the PCR court conducts an evidentiary 

hearing on the petition, we will defer to the court's findings of

fact based on live-witness testimony if the court's findings are

"supported by sufficient credible evidence in the record." State

v. Nash, 212 N.J. 518, 540 (2013). However, we are not required

to defer to the PCR court's interpretation of the law, which we
10 A-2531-16T1

review de novo. Id. at 540-41 (citing State v. Harris, 181 N.J.

391, 415–16 (2004)).

To succeed on his claim of ineffective assistance of counsel, 

a defendant must meet the test established by Strickland v. 

Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, 

the defendant must show that counsel's performance was deficient 

and, if so, that there was a "reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding 

would have been different." Strickland, 466 U.S. at 694.

Where, as here, the defendant alleges he was denied the 

effective assistance of counsel with regard to a guilty plea, the 

defendant must establish that counsel's performance was not 

"within the range of competence demanded of attorneys in criminal 

cases." State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting 

Tollett v. Henderson, 411 U.S. 258, 266 (1973)). The defendant 

also must show "there is a reasonable probability that, but for 

counsel's errors, [the defendant] would not have [pleaded] guilty 

and would have insisted on going to trial." Ibid. (quoting Hill 

v. Lockhart, 474 U.S. 52, 59 (1985)). See also State v. NuñezValdéz, 200 N.J. 129, 142 (2009) (quoting DiFrisco, 137 N.J. at 

457).
11 A-2531-16T1

With regard to the first prong of the Strickland test, an 

attorney has "an affirmative obligation to inform a clientdefendant when a plea places the client at risk of deportation." 

State v. Gaitan, 209 N.J. 339, 356 (2012) (citing Padilla v. 

Kentucky, 559 U.S. 356, 373–74 (2010)). If the risk of deportation 

is uncertain, the attorney need only advise the "client that 

pending criminal charges may carry a risk of adverse immigration 

consequences"; however, if the risk of deportation is clear, "the 

duty to give correct advice is equally clear." Ibid. (quoting 

Padilla, 559 U.S. at 369). 

Here, the PCR court found that defense counsel's advice on 

the immigration consequences of defendant's plea was deficient. 

The judge noted that the transcripts of the plea hearing and the 

sentencing proceeding indicated that the immigration consequences 

of the plea had never been discussed on the record. The judge also 

noted that in her testimony at the PCR hearing, defendant's 

attorney testified that she believed she would have told defendant 

he had a "good chance" of deportation.

The judge found that the advice counsel provided to defendant

was legally insufficient under Padilla, because it was 

"indisputable" defendant's guilty plea made him subject to 

deportation under the Immigration and Nationality Act (INA), 8 

U.S.C. §§ 1101 – 1537. The judge's ruling was legally correct 
12 A-2531-16T1

because both aggravated assault and kidnapping are "crime[s] of 

violence" under 8 U.S.C.A. § 1101(a)(43)(F), for which a person 

unlawfully in the United States could be deported. See United 

States v. Remoi, 404 F.3d 789, 795 n.4 (3d Cir. 2005) (noting that 

both aggravated assault and kidnapping are "crime[s] of violence" 

under federal immigration law). 

The judge found, however, that defendant had not established 

the second-prong of the Strickland test for ineffective assistance 

of counsel. He failed to establish that but for the deficient 

advice, he would not have pled guilty and would have instead 

insisted upon going to trial. DiFrisco, 137 N.J. at 457 (citing 

Hill, 474 U.S. at 59). 

The judge noted that this was not a case where there is a 

presumption of prejudice. Counsel was present when defendant 

entered the plea, counsel did not have any conflicts of interest, 

and there were no other manifest aspects of prejudice. The judge 

also noted that defendant had been charged under the indictment 

with eleven offenses, including first-degree carjacking, firstdegree kidnapping, and first-degree robbery, as well as four 

second-degree offenses. 

The judge observed that in considering the consequences of a 

plea, "[p]reserving the client's right to remain in the United 

States may be more important to the client than any potential jail 
13 A-2531-16T1

sentence." The judge found, however, that "[g]iven the weight of 

the indictment and the generous negotiated plea agreement which 

included [the] dismissal of nine counts," the judge was not 

persuaded that defendant would not have pled, if his attorney had 

informed him the plea would result in his deportation.

The judge noted that defendant's kidnapping charge alone 

would have subjected him to a lengthy prison sentence, and under 

the plea agreement, defendant only received a five-year sentence 

with a NERA period of parole ineligibility. The judge observed 

that the State agreed to recommend the minimum sentence permitted 

by law for a second-degree offense. Defendant was, in fact, 

sentenced in accordance with the plea. 

The judge also observed that the plea form informed defendant 

that he could seek individualized advice concerning the 

immigration consequences of his plea, and while defendant 

indicated on the plea form that he wanted to speak with an 

immigration attorney, there was no indication that he did so. 

Furthermore, defendant indicated that he was satisfied with the 

representation of his plea counsel. 

The judge found that there was no reasonable probability that 

a fact-finder would have had reasonable doubt regarding 

defendant's guilt. In addition, the judge noted that defendant had 

not presented any evidence to support his claims that his attorney: 
14 A-2531-16T1

"cajoled" him into accepting the State's plea offer without 

informing him of the strengths and weaknesses of the State's case; 

failed to investigate the case; did not review the discovery with 

him; and failed to file pre-trial motions. 

We are convinced there is sufficient credible evidence in the 

record to support the judge's findings of fact. We are also 

convinced the record supports the PCR court's legal determination 

that defendant failed to establish that he was denied the effective 

assistance of counsel with regard to his plea. The record supports 

the court's finding that defendant failed to establish both prongs 

of the Strickland test for ineffective assistance of counsel. 

We note that the recent decision in Lee v. United States, 137 

S. Ct. 1958 (2017), does not require a contrary result. In Lee, 

the defendant was charged with possession of ecstasy with intent 

to distribute in violation of federal law. Id. at 1963. Lee was 

not a United States citizen, but he was living in this country as 

a lawful permanent resident. Ibid. Lee's attorney told him that 

it was "very risky" to go to trial, and he would receive a lighter 

sentence if he pleaded guilty. Ibid.

Lee repeatedly asked his attorney if he would face deportation 

as a result of the criminal proceedings, and his attorney told him 

he would not be deported. Ibid. (citing Lee v. United States, 825 

F.3d 311, 313 (6th Cir. 2016). Lee accepted the plea offer, and 
15 A-2531-16T1

the court sentenced him to a year and a day in prison. Ibid.

Thereafter, Lee learned that he had pleaded guilty to an 

"aggravated felony" under the INA, which subjected him to 

deportation. Ibid. Lee filed a motion to vacate his conviction and 

sentence, alleging he was denied the effective assistance of 

counsel. Ibid.

The Court noted that the Government did not dispute that 

counsel had provided Lee with inadequate representation when he 

advised him that he would not be deported if he pleaded guilty. 

Id. at 1964. The Court determined, however, that Lee had adequately 

demonstrated a reasonable probability he would have rejected the 

plea if he had known his plea would result in his mandatory 

deportation. Id. at 1967.

The Court noted that there was "no question" that deportation 

was the determinative issue in whether Lee would accept the plea 

offer, as he had testified. Ibid. Moreover, Lee had asked his 

attorney repeatedly whether he faced the risk of deportation, and 

Lee and his attorney both had testified that he would have rejected 

the plea and gone to trial if Lee knew the deportation consequences 

of the plea. Id. at 1967–68.

In addition, at the plea hearing, the judge told Lee that a 

conviction could result in his deportation, and Lee stated that 

this would affect his decision on whether to plead guilty or not. 
16 A-2531-16T1

Id. at 1968. When asked by the judge how this affected his 

decision, Lee said he did not understand. Ibid. Lee pleaded guilty 

only after his attorney advised him the judge's statement was the 

"standard warning." Ibid.

The Court noted that Lee had lived in the United States for 

nearly thirty years, and he had established several businesses in 

this country. Ibid. He had strong connections to the United States, 

and there was no indication he had any ties to his native country, 

South Korea. Ibid. The Court held that under the circumstances, 

it was not irrational for Lee to reject the plea offer and proceed 

to trial. Ibid.

If Lee pleaded guilty, he would certainly be deported, whereas 

if he went to trial, deportation was almost a certainty. Ibid. The 

Court stated:

If deportation were the "determinative issue" 

for an individual in plea discussions, as it 

was for Lee; if that individual had strong 

connections to this country and no other, as 

did Lee; and if the consequences of taking a 

chance at trial were not markedly harsher than 

pleading, as in this case, that "almost" could 

make all the difference. Balanced against 

holding on to some chance of avoiding 

deportation was a year or two more of prison 

time. . . . Not everyone in Lee's position 

would make the choice to reject the plea. But 

we cannot say it would be irrational to do so.

[Id. at 1968-69.]
17 A-2531-16T1

The facts in this case are substantially different from those 

in Lee. Here, defendant did not testify that deportation was a 

determinative issue on whether he would accept the State's plea 

offer, and neither defendant nor his attorney testified that he 

would have rejected the plea if he knew he faced mandatory 

deportation. There was no evidence that defendant had strong 

connections to this country, and few ties to his native land. 

In addition, the potential consequences of taking a chance 

at trial were "markedly harsher" than entering the plea. As the 

PCR court found, defendant did not have a viable defense, and he 

faced a prison sentence substantially longer than the five years 

offered in the plea deal. The record here shows that it would not 

have been rational for defendant to reject the State's very 

favorable plea offer, proceed to trial, and run the risk of serving 

up to thirty years in jail. 

Affirmed.