NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4438-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. OSCAR CORTEZ, a/k/a OSCAR E. CORTEZ, Defendant-Appellant. _______________________ Submitted September 30, 2020 – Decided October 15, 2020 Before Judges Haas and Natali. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-02-0472. Peter D. Russo, attorney for appellant. Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Oscar Cortez appeals from a May 1, 2019 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm. Defendant, a permanent United States resident born in Colombia, was indicted by a grand jury for third-degree possession of a controlled dangerous substance (heroin), second-degree possession of heroin with the intent to distribute, third-degree possession of heroin with the intent to distribute on school property or within 1000 feet of school property, second-degree possession of heroin with the intent to distribute within 500 feet of a public housing facility, park or building, and fourth-degree resisting arrest. Defendant pled guilty to possession of heroin with intent to distribute in a school zone and in exchange for his plea the State recommended a probationary sentence and dismissal of the remaining charges. Judge John I. Gizzo sentenced defendant in accordance with the plea agreement to a three- year probationary term and assessed applicable fines and penalties. At some point undisclosed in the record, immigration authorities instituted removal proceedings against defendant. Defendant filed a timely PCR petition alleging his trial counsel was ineffective because he failed to: 1) explore potential "mental health defenses," 2) set forth a diminished capacity defense, A-4438-18T1 2 and 3) advise him to seek the advice of an immigration attorney prior to entering his plea. Defendant supported his petition with an affidavit of his plea counsel in which he admitted that defendant's girlfriend advised him that defendant had "mental health issues." Counsel also admitted he did not explore defendant's "mental health issues at the time of the plea" or "ask him if he was supposed to be on psychiatric medication or if he had taken any at the time of the plea." Defendant also attached a report from Dr. Grigory S. Rasin, M.D. In his report, Dr. Rasin indicated he reviewed the plea transcript and certain of defendant's medical records, including a January 7, 2018 psychological evaluation from Robert Johnson, M.A., LPC, LCADC, a certified counselor. Dr. Rasin also conducted a psychiatric examination of defendant at which time defendant advised Dr. Rasin that he used marijuana and cocaine on the day he pled guilty and that his prescribed seizure ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals