RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4533-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALNER SAMEDY,
Defendant-Appellant.
___________________________
Submitted August 25, 2020 – Decided September 10, 2020
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 12-06-
1036.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa Sarnoff
Gochman, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Walner Samedy appeals from a February 1, 2019 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. For
the reasons that follow, we affirm in part and vacate and remand in part.
I.
We derive the following facts and allegations from the record. Defendant
resided with his girlfriend and her two children in an apartment in Wall
Township. On the evening of September 13, 2011, defendant arrived home from
work and noticed L.V. 1 babysitting the children; defendant did not know L.V.
Defendant sat next to her. L.V. alleged defendant sexually assaulted her by
inappropriately touching her buttocks and engaging in sexual intercourse with
her without her consent.
L.V. reported the incident to the police and identified defendant as her
assailant. The day after the incident, police officers went to defendant's
workplace and questioned him in the parking lot about the allegations.
Defendant was not yet under arrest and had not been administered Miranda2
warnings.
1
We identify the victim by initials to protect her privacy. R. 1:38-3(c)(12).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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2
Defendant was born and raised in Haiti and has limited command of the
English language. Due to difficulties in communicating with defendant, the
officers requested another officer who spoke Haitian-Creole to assist. The
interpreting officer did not translate or explain the request for exemplars form
to defendant.
The police asked defendant for a DNA sample by buccal swab. Without
being told he did not have to consent to providing the sample and had the right
to consult with an attorney, defendant agreed to the buccal swab. The DNA
analysis revealed that the DNA specimen from the buccal swab matched the
DNA sample obtained from L.V.'s underwear.
In May 2012, a Monmouth County grand jury returned an indictment
charging defendant with second-degree sexual assault while using physical force
or coercion, N.J.S.A. 2C:14-2(c)(1) (count one); and fourth-degree criminal
sexual contact while using physical force or coercion, N.J.S.A. 2C:14-3(b)
(count two). On October 5, 2012, defendant was arrested and was unable to post
bail.
Defense counsel did not move to suppress the DNA evidence obtained
through the warrantless buccal swab. He allegedly advised defendant that it
would take over two years to get to a trial. Rather than proceed to trial,
A-4533-18T2
3
defendant entered into a plea agreement. In exchange for pleading guilty to
fourth-degree criminal sexual contact, the State recommended defendant be
sentenced to time served, without probation, and no contact with L.V. or return
to the scene of the crime. The State also recommended that the second-degree
sexual assault charge be dismissed at sentencing. The State had no objection to
defendant being released from jail after the plea was entered.
Judge Francis Vernoia conducted a detailed plea hearing. At the outset,
the exact terms of the plea agreement were set forth. Defense counsel confirmed
that defendant consulted with immigration counsel—in his presence—to inform
defendant of the potential immigration consequences of his plea agreement.
Counsel also stated that he was confident that defendant understood the
immigration consequences. Counsel confirmed that he reviewed discovery with
defendant using an interpreter.
Defendant testified with the assistance of an interpreter. 3 He confirmed
he was pleading guilty to fourth-degree criminal sexual contact. Defendant
stated he completed high school/college in Haiti, where he studied journalism.
He confirmed he was sober, not on medication, and was not suffering from any
3
A Haitian-Creole interpreter was used during all court proceedings.
A-4533-18T2
4
physical or mental problems that would affect his ability to understand the
proceedings.
Defendant also confirmed he reviewed the plea forms with counsel who
answered all his questions, that his answers on the plea form were truthful, and
that he signed and initialed the plea form. Defendant acknowledged that he
understood the charge he was pleading guilty to, the maximum penalty for
fourth-degree criminal sexual contact, and the recommended sentence. He
confirmed that he wanted the court to accept the plea agreement.
Defendant further acknowledged that he was pleading guilty of his free
will, without being threatened, coerced, or forced to do so. He likewise
confirmed that he was pleading guilty because he was, in fact, guilty.
Finally, defendant acknowledged that he was satisfied with his attorney's
advice, that his attorney answered all his questions, and that he did not need any
more time to speak to his attorney about the case or the plea agreement.
Defendant was in the United States on temporary protective status. After
acknowledging he was not a United States citizen, defendant confirmed that he
understood that his guilty plea and conviction may result in his removal from
the United States and prevent him from re-entering the country. He further
confirmed that his attorney answered all his questions regarding the immigration
A-4533-18T2
5
consequences of his plea and conviction and he understood that he had the right
to seek individualized legal advice on the immigration consequences.
Defendant also acknowledged the rights he was giving up by pleading
guilty, including any defenses to the charges and his right to a jury trial.
Understanding those consequences, defendant indicated he still wished to plead
guilty. Defendant then gave an adequate factual basis for his plea, admitting
that he touched L.V. on her buttocks with his hands without her consent for his
own personal gratification or to humiliate her. Judge Vernoia accepted
defendant's plea, scheduled a sentencing hearing, and released defendant from
custody.
Judge Vernoia also conducted the sentencing hearing. Defense counsel
stated the presentence report was accurate. Both the prosecutor and defense
counsel requested that defendant be sentenced in accordance with the plea
agreement. Defendant elected not to allocute.
The judge found aggravating factor nine (need to deter defendant and
others from violating the law), N.J.S.A. 2C:44-1(a)(9); and mitigating factors
seven (no prior history of delinquency or criminal activity), N.J.S.A. 2C :44-
1(b)(7); and ten (defendant is particularly likely to respond affirmatively to
probation), N.J.S.A. 2C:44-1(b)(10). The judge found the aggravating and
A-4533-18T2
6
mitigating factors in equipoise. Defendant was sentenced in accordance with
the plea agreement to time served (229 days) without probation, no contact with
the victim or return to the scene of the crime, and appropriate penalties and
assessments. The judge then dismissed count one.
After the sentence was imposed, defense counsel engaged in the following
colloquy with defendant:
DEFENSE COUNSEL: Judge, if I may, I just want to
confirm, again, that he understands that he does need to
go seek out an immigration attorney. This was done
during the plea I know, but I went over it with him again
that now this is a conviction, he's sentenced, that there
are going to be some immigration consequences for him
and that he really needs to get to an immigration
attorney immediately.
COURT: Okay. Do you understand that, sir?
DEFENDANT: Yes.
COURT: Okay. If you have any questions about that,
you can confer with [defense counsel] directly.
Defendant did not move to vacate his guilty plea before or after sentencing
and did not file a direct appeal from his conviction or sentence.
On November 13, 2017, defendant filed a timely pro se PCR petition.
Defendant alleged plea counsel failed to advise him that his guilty plea exposed
A-4533-18T2
7
him to deportation. He contended that if he understood the complete
immigration consequences, he would not have pled guilty to count two.
Counsel was appointed to represent defendant and filed an amended
petition and supporting brief asserting: (1) plea counsel was ineffective in
failing to file a motion to suppress the results of the DNA testing that matched
defendant's DNA profile to the specimen obtained from L.V.'s underwear; (2)
the Haitian-Creole interpreter used by the police did not translate the request for
exemplars; (3) defendant was not informed he could refuse the buccal swab or
that he could consult with a lawyer; (4) defendant was not advised by plea
counsel that his guilty plea would prevent him from obtaining meaningful
employment or public housing; (5) the sex with L.V. was consensual and plea
counsel failed to convey to the prosecutor that L.V. demanded $50 from
defendant when the sexual relations were over; and (6) plea counsel unduly
influenced defendant to accept the plea agreement. Defendant further claimed
that he and plea counsel did not effectively communicate.
Defendant noted that he has been detained by Immigration and Customs
Enforcement twice since his plea and faced additional deportation proceedings.
Following oral argument, the PCR judge issued an oral decision and order
denying the petition without an evidentiary hearing. Without making findings
A-4533-18T2
8
or providing meaningful analysis, the judge determined plea counsel was not
ineffective by failing to file a suppression motion because counsel "likely knew"
defendant voluntarily consented to the buccal swab, making the likelihood of
success "extremely difficult, if not slim to none."
The judge concluded defendant had not shown that plea counsel's
"performance was deficient, the performance prejudiced his defense, or that
counsel provided him with misinformation or misleading information." He
further found "counsel was not ineffective for failing to advise of the collateral
consequences" of the plea and conviction.
As to defendant's claim that plea counsel failed to inform the prosecution
that the victim demanded money after engaging in sex, the judge determined
"there's no evidence the plea counsel even knew about this demand at any point
during the litigation."
In regard to defendant's claim that plea counsel erroneously told him it
would take over two years for the case to go to trial, the judge noted that
"[d]efendant does not allege . . . he would have pled not guilty and insisted on a
trial, had counsel not made those statements, nor has he stated why the
statements are either erroneous or incorrect."
A-4533-18T2
9
The judge also rejected defendant's claim that counsel was ineffective by
failing to advise him that deportation would be more likely than not as a result
of pleading guilty. After reviewing the portion of the plea transcript pertaining
to the immigration consequences of the plea, the judge noted "defendant had the
benefit of both plea counsel and an immigration attorney advising him of the
consequences" of the plea. This appeal followed.
Defendant raises the following points for our consideration:
POINT ONE
THIS MATTER SHOULD BE REVERSED AND
REMANDED TO THE PCR COURT FOR AN
EVIDENTIARY HEARING BECAUSE MR.
SAMEDY WAS UNAWARE HE WOULD BE
DEPORTED BY VIRTUE OF HIS GUILTY PLEA.
POINT TWO
THIS MATTER SHOULD BE REVERSED AND
REMANDED TO THE PCR COURT FOR AN
EVIDENTIARY HEARING AS TESTIMONY IS
NEEDED REGARDING PLEA COUNSEL'S
FAILURE TO FILE A MOTION TO SUPPRESS DNA
EVIDENCE ILLEGALLY OBTAINED FROM MR.
SAMEDY, WHICH CONNECTED HIM TO THE
ALLEGED SEXUAL ASSAULT.
II.
When a conviction is based on a guilty plea, a defendant must satisfy two
criteria to set aside the plea based on ineffective assistance of counsel. State v.
A-4533-18T2
10
Nuñez-Valdéz, 200 N.J. 129, 139 (2009). The defendant must demonstrate that:
"(i) counsel's assistance was not 'within the range of competence demanded of
attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that,
but for counsel's errors, [the defendant] would not have pled guilty and would
have insisted on going to trial.'" Ibid. (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)). "A reasonable probability is a probability
sufficient to undermine the confidence in the outcome." Strickland v.
Washington, 466 U.S. 668, 694 (1984). Defendant must also show that
proceeding to trial "would have been rational under the circumstances." Padilla
v. Kentucky, 559 U.S. 356, 372 (2010); accord Nuñez-Valdéz, 200 N.J. at 139.
A defendant claiming ineffective assistance of counsel based on failure to
file a suppression motion must not only satisfy both prongs of Strickland but
must also prove the motion would have been granted, had it been filed. State v.
Goodwin, 173 N.J. 583, 597 (2002) (citing State v. Fisher, 156 N.J. 494, 501
(1998)).
"A defendant must do more than make bald assertions that he was denied
the effective assistance of counsel." State v. Porter, 216 N.J. 343, 355 (2013)
(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). In
order to be entitled to an evidentiary hearing, a defendant must establish "a
A-4533-18T2
11
prima facie case in support of post-conviction relief, a determination by the court
that there are material issues of disputed fact that cannot be resolved by
reference to the existing record, and a determination that an evidentiary hearing
is necessary to resolve the claims for relief." R. 3:22-10(b). "To establish a
prima facie case, defendant must demonstrate a reasonable likelihood that his or
her claim, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits." Ibid.
"A court shall not grant an evidentiary hearing: (1) if an evidentiary
hearing will not aid the court's analysis of the defendant's entitlement to post -
conviction relief; [or] (2) if the defendant's allegations are too vague, conclusory
or speculative." R. 3:22-10(e)(1), (2).
In addition, defendant must overcome a strong presumption that counsel's
conduct falls within the wide range of reasonable, professional assistance. State
v. Eckels, 199 N.J. 344, 358 (2009) (quoting Strickland, 466 U.S. at 689).
Strategic choices, made after thorough investigation of the law and facts relevant
to plausible options, are virtually unchallengeable. Strickland, 466 U.S. at 689.
III.
Defendant contends he was unaware that he would be deported if he was
convicted of fourth-degree criminal sexual contact. The record belies that claim.
A-4533-18T2
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The plea transcript establishes that defendant had discussed the consequences of
pleading guilty and being convicted of that crime with both plea counsel and
immigration counsel. The judge also advised defendant that his guilty plea and
conviction may result in his removal from the United States and prevent him
from re-entering the country. Defendant confirmed that he understood those
consequences, did not need additional time to further consult with plea or
immigration counsel, and wanted to proceed with the plea agreement. He also
confirmed he was satisfied with the services of plea counsel who had answered
all his questions.
Notably, defendant does not contend that plea counsel provided false
advice or affirmatively misadvised him regarding the consequences of the
conviction on his immigration status. Rather, he claims that counsel failed to
advise him that deportation was mandatory for a conviction for fourth -degree
criminal sexual contact. Defense counsel, the plea judge, and the plea form all
notified defendant that he was at risk of deportation. Having been notified,
defendant cannot claim counsel was ineffective. See Padilla, 559 U.S. at 374
("counsel must inform her client whether the plea carries a risk of deportation");
State v. Gaitan, 209 N.J. 339, 346 (2012) (stating that "defense attorneys now
must advise their clients of potential immigration consequences of pleading
A-4533-18T2
13
guilty"); State v. Antuna, 446 N.J. Super. 595, 601-03 (App. Div. 2016)
(concluding that failure to advise a client of the possibility of deportation by
pleading guilty constituted ineffective assistance of counsel).
Defendant also argues that plea counsel did not advise him that his guilty
plea would prevent him from obtaining meaningful employment or public
housing. These alleged consequences are not direct and penal consequences of
defendant's guilty plea. Counsel was not required to provide advice regarding
the collateral consequences of his plea and conviction. State v. Heitzman, 209
N.J. Super. 617, 622 (App. Div. 1986) (holding that "defendant need be
informed only of the penal consequences of his plea and not the collateral
consequences"), aff'd o.b., 107 N.J. 603 (1987); see Pressler & Verniero, Current
N.J. Court Rules, cmt. 1.4.3 on R. 3:9-2 (2020) ("Failure of the defendant to
understand the collateral consequences of conviction will ordinarily not vitiate
the plea.").
Accordingly, the PCR court properly rejected defendant's claim that
counsel was ineffective for failing to inform him of the direct and collateral
consequences of his conviction.
IV.
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In his amended petition, defendant contends the sex with L.V. was
consensual; plea counsel failed to convey to the prosecutor that L.V. demanded
$50 from defendant when the sexual relations were over; and plea counsel
unduly influenced defendant to accept the plea agreement rather than going to
trial. Defendant did not brief these issues on appeal. We deem them waived or
abandoned. See Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-
19 (App. Div. 2017) ("An issue not briefed on appeal is deemed waived."
(quoting Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011))).
V.
Finally, defendant argues that the buccal swab was taken through invalid
consent. He points to the fact that the exemplar form, which was printed in
English, was not explained or translated for him into Haitian-Creole. He claims
he was thus unaware that he did not have to consent to the buccal swab and had
the right to consult with an attorney before giving his consent. Moreover, he
was not Mirandized at that point.
The PCR court concluded that "counsel was not required to file a motion
to suppress" because "[c]ounsel likely knew that defendant voluntarily gave the
DNA swab to the police, making the chances of the motion extremely difficult,
if not slim to none." On that basis, the court found "counsel could not be
A-4533-18T2
15
ineffective for failing to file the motion." Viewing the facts in a light most
favorable to defendant, the record does not support that conclusion.
We recognize that a buccal swab is minimally intrusive. State v. Camey,
239 N.J. 282, 311 (2019) (citing Maryland v. King, 569 U.S. 435, 463 (2013)).
However, as explained by the Court in Camey:
A buccal swab is a common method of law
enforcement collection of specimen material for DNA
testing. But, it is also beyond dispute that the taking of
a buccal swab for the purposes of obtaining a DNA
sample is a search. And because a buccal swab
constitutes a search, it must be obtained in a manner
consistent with constitutional search and seizure
principles for valid use in a criminal prosecution.
To pass constitutional muster, a search must be
conducted pursuant to a search warrant or must fall
within an exception to the warrant requirement. One
well-recognized exception to the warrant requirement
is consent. Obtaining voluntary consent to conduct a
buccal swab is one way to obtain a constitutionally
valid swab without a search warrant. To ensure
validity, warnings given to an individual informing
about the right to refuse consent help the State later
carry its burden to demonstrate that the consent was
truly a voluntary, knowing, and intelligent waiver of the
right to be free of such an intrusion.
[Id. at 299-300 (internal citations and quotation marks
omitted).]
On this limited record, where no evidentiary hearing was conducted, we
do not attempt to determine whether defendant's decision to provide the buccal
A-4533-18T2
16
swab was knowing and voluntary. Rather, a remand to conduct an evidentiary
hearing is appropriate for the parties to present testimony and other evidence in
support of their respective positions. If the remand court determines that
defendant did not knowingly and voluntarily consent to the buccal swab, the
State may then assert that the DNA evidence would have been admissible under
an exception to the exclusionary rule.
We further recognize that the victim identified defendant. This was not a
random encounter on the street—the victim was babysitting for defendant. It
may also be that the DNA evidence was not necessary for a conviction had the
case gone to trial. However, the failure to file a suppression motion to suppress
the DNA evidence placed defendant in a position where he realistically could
not win at trial by claiming he did not engage in sex with the victim, exposing
him to potential second-degree sentencing, including being subject to Megan's
Law. This effectively limited his defense to a claim that the sex was consensual,
which likely weighed heavily in his decision to plead guilty to count two despite
the immigration consequences.
Accordingly, we vacate the denial of defendant's PCR petition as to the
failure to move to suppress the results of the DNA testing and remand for the
PCR court to conduct an evidentiary hearing to determine whether defendant
A-4533-18T2
17
knowingly and voluntarily consented to the buccal swab. If the court determines
he did not, it shall then entertain argument by the State that the DNA evidence
would have been obtained through inevitable discovery. In so ruling, we express
no opinion on the likely outcome of the evidentiary hearing or any argument
regarding inevitable discovery.
Affirmed in part and vacated and remanded in part for proceedings
consistent with this opinion. We do not retain jurisdiction.
A-4533-18T2
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STATE OF NEW JERSEY VS. WALNER SAMEDY (12-06-1036, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion