Opinion
DOCKET NO. A-2377-12T4
06-30-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARK YAKUBOV, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-04-0792.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Mark Yakubov, a Russian national, appeals from the July 13, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Pursuant to a plea agreement, defendant entered a guilty plea to third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 and second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b). The remaining counts of the indictment were dismissed. Defendant was sentenced to four years in prison on the attempted burglary charge and a concurrent sentence of seven years with three years of parole ineligibility pursuant to the Graves Act on the firearms charge. He appealed his sentence only and, by order of October 24, 2011, we remanded for reconsideration of the sentence without consideration of aggravating factor six, the gravity and seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2). State v. Yakubov, A-4842-10, remanded for resentencing by order, October 24, 2011. Without considering aggravating factor six, the judge resentenced defendant to the same term.
Defendant filed a petition for PCR raising the following issues:
[A.] PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF BECAUSE HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
B. PETITIONER'S PLEA WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY GIVEN.
C. CUMULATIVE ERROR.
D. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO PETITIONER'S CASE.
Specifically, defendant argued that his attorney was ineffective in failing to (1) raise at sentencing the mitigating argument that he was under the influence at the time of the crimes, (2) explain to defendant that he faced mandatory deportation, and (3) use an interpreter when speaking to defendant.
On appeal defendant raises the following issues,
POINT I: THE PCR COURT ERRED IN DENYING YAKUBOV AN EVIDENTIARY HEARING EVEN THOUGH YAKUBOV DEMONSTRATED THAT TRIAL COUNSEL'S REPRESENTATION WAS INEFFECTIVE.
POINT II: YAKUBOV INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND BRIEF.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05 N.J. 42, 58 (l987). A defendant who enters a guilty plea must demonstrate that absent his counsel's error he would not have pled guilty. State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
Defendant argues that "[a]t a minimum, counsel should have tried to negotiate a more favorable plea offer[.]" This argument clarifies that defendant did not wish to proceed to trial. A Russian interpreter was provided to defendant at his plea hearing, where the judge established through questioning that defense counsel had reviewed the plea forms with the aid of the interpreter. Defendant testified his lawyer had explained the plea agreement and that he understood the mandatory minimum sentence he would receive. The judge informed defendant that as a result of his plea of guilty "there's absolutely no question" that he would be deported.
We affirm substantially for the reasons expressed in the trial judge's July 13, 2012 written opinion denying defendant's petition for PCR.
Having failed to present prima facie evidence of ineffective assistance of counsel, defendant was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION