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March 5, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. Yvensi J. Cenesca

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1756-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (22.6K)

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Combined Opinion

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NOT FOR PUBLICATION WITHOUT THE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-1756-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YVENSI J. CENESCA,

Defendant-Appellant.

---

Submitted November 13, 2025 – Decided March 5, 2026

Before Judges Mayer and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 18-01-0224.

Jennifer N. Sellitti, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).

Theodore N. Stephens, II, Essex County Prosecutor,
attorney for respondent (Matthew E. Hanley, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
Defendant Yvensi J. Cenesca appeals from an order denying his petition

for post-conviction relief (PCR). He also appeals from previous orders granting

an evidentiary hearing on his petition limited to allegations his plea counsel had

failed to properly advise him regarding the potential immigration consequences

of his plea and denying his motion for reconsideration of that order. We affirm.

Defendant was indicted on charges of first-degree attempted murder,

second degree aggravated assault, third-degree criminal restraint, and weapons

offenses; the victim was his girlfriend with whom he was residing. Pursuant to

a negotiated plea agreement, defendant on December 3, 2018, pleaded guilty to

an amended count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(12).

On the plea form, which defendant signed, defendant indicated he was not a

citizen of the United States, understood his guilty plea could result in his

removal from the United States, had discussed with counsel the potential

immigration consequences of his plea, and, having discussed those

consequences with counsel, still wanted to plead guilty. He also stated he was

satisfied with the advice he had received from his attorney and did not have any

additional questions regarding his plea.

At the December 3, 2018 plea hearing, defendant was provided with a

Creole interpreter. Defendant testified an interpreter had been present when he

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2
reviewed the plea form with his attorney, the attorney had reviewed with him

each question on the form, and he had understood each question and the

information provided by his attorney. He confirmed the truthfulness of the

answers he had provided on the plea form. The court found defendant had been

"able to understand the questions [on the plea form], and respond to the

questions, as they were read by [his] attorney and translated by the Creole

interpreter."

Defendant again confirmed he was not a citizen of the United States, he

understood his guilty plea could result in his removal from the United States, he

had discussed with his attorney the potential consequences of his plea, and,

having been advised of those consequences, he still wished to plead guilty.

Defendant testified he understood the rights he was waiving and that no one had

threatened, forced, or coerced him into giving up those rights. He also testified

about the crime, admitting he had struck the victim repeatedly in the face with

his fists, resulting in her having to seek treatment at a hospital and recklessly

causing her significant bodily injury.

After defendant's testimony, the court accepted his plea as knowing,

intelligent, and voluntary. The court detained defendant pending sentencing,

finding defendant had "pled guilty to an offense that will call for State Prison

A-1756-23
3
time. He[] also pled guilty to an offense which may subject him to being

deported."

As memorialized in a February 14, 2019 judgment of conviction, the court

initially sentenced defendant to a three-year prison term, with a one-year period

of parole ineligibility. On October 7, 2020, the court entered an amended

judgment of conviction imposing a three-year prison term with no period of

parole ineligibility, consistent with the negotiated plea agreement. Defendant

appealed his sentence. We heard the appeal on a sentencing calendar, see

R. 2:9-11, and affirmed, concluding the sentence was "not manifestly excessive

or unduly punitive and d[id] not constitute an abuse of discretion." State v.

Cenesca, No. A-0349-20 (App. Div. Oct. 27, 2021) (slip op. at 1).

In his subsequently filed PCR petition, defendant contended plea counsel

had not adequately represented him and that he should have been permitted to

withdraw his guilty plea as a result of the allegedly ineffective assistance he had

received. Defendant asserted plea counsel had been ineffective in failing to

properly advise him of the immigration consequences of his plea in this case. In

his petition, defendant claimed plea counsel had told him "he could not be

deported as a result of pleading guilty to a third[-]degree crime." In a brief in

support of the petition, defendant's PCR counsel claimed that "[h]ad [d]efendant

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been properly advised of the immigration consequences of his plea, he would

have rejected the plea and gone to trial." Defendant did not make a statement

supporting that claim in his verified petition. Defendant also contended in the

PCR petition in this case that, in a separate municipal-court matter in which he

pleaded guilty in April 2018, to criminal mischief in connection with another

incident involving his girlfriend, his counsel failed to discuss fully with him the

ramifications of a guilty plea in that matter on the sentence he could receive in

this case.

In a letter in reply to the State's opposition to his petition, defendant

alleged for the first time plea counsel had been ineffective in failing to move to

dismiss the indictment in this case and that he had not entered his guilty plea

knowingly, intelligently, and voluntarily because plea counsel had not explained

to him what "significant bodily injury" meant and in entering the plea he had

"acknowledged facts that did not exist in the record" regarding the nature and

extent of the victim's injuries. He also submitted in reply an affidavit claiming

for the first time plea counsel had not reviewed with him discovery , including

the victim's medical records.

The court heard argument on January 25, 2023, and granted in part

defendant's request for an evidentiary hearing. In a February 7, 2023 order, the

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court limited the scope of the hearing to "the allegations of ineffective assistance

of counsel . . . related to [defendant]'s allegations that his counsel provided

affirmative misadvice related to potential immigration consequences." In a

subsequent reconsideration motion, defendant asked the court to expand the

scope of the hearing to include his claim that plea counsel had been ineffective

"based upon the deficient plea allocution, the failure to be explained the legal

meaning of 'significant bodily injury,' and plea counsel's failure to file a motion

to dismiss the indictment."

After hearing argument, the court entered an order and written decision

on May 26, 2023, denying defendant's motion. The court found the plea

colloquy "unequivocally reflect[ed] a knowing, intelligent and voluntary plea,

free of coercion of any sort," "there was ample evidence provided to [defendant]

in discovery to acknowledge the injuries he caused to the victim," and the

victim's medical records established defendant had caused significant injury to

her. The court found defendant had failed to make a prima facie case regarding

his ineffective-assistance claim on the issue of defendant's understanding of

"significant bodily injury" at the time of his plea and "ha[d] failed to provide a

scintilla of verifiable information that any of counsel's alleged, but unproven,

A-1756-23
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ineffectiveness would have resulted in a further reduction of his overwhelmingly

favorable sentence in his negotiated plea agreement."

The court also rejected defendant's argument based on counsel's not

moving to dismiss the indictment. The court found the prosecutor had presented

evidence to support the grand jury's finding a crime had occurred and defendant

might have committed it and defendant had failed to demonstrate he had been

prejudiced by the decision not to move for a dismissal. The court concluded

PCR counsel's "second-guessing" of plea counsel's "strategic choice" was "not

grounds to disturb the plea, particularly in light of the fact of the significantly

favorable plea bargain received resulting in a plea recommendation at the very

bottom of the third[-]degree range." The court evaluated defendant's claim in

light of the factors articulated by the Court in State v. Slater, 198 N.J. 145, 150

(2009), and held he had not satisfied the standard for a plea withdrawal.

The court conducted a multi-day evidentiary hearing during which plea

counsel, defendant, and plea counsel again testified. According to plea counsel,

his notes from his initial consultation with defendant indicated they had

discussed the possibility the aggravated-assault charge could result in his

deportation. He testified that in connection with the agreement to plead guilty

to third-degree aggravated assault, he recalled "advis[ing] [defendant] that there

A-1756-23
7
were going to be immigration consequences." Plea counsel testified that, even

being aware of the immigration consequences of his plea, defendant wanted to

proceed with the plea, and his primary concern at that time was getting out of

jail. He confirmed he had reviewed with defendant each question on the plea

form and denied he had provided him with incorrect immigration advice.

Defendant testified plea counsel had not informed him he could be

deported for the charges against him and had told him he "could not be deported

for a third-degree charge." According to defendant, plea counsel told him what

answers should be circled on the plea form and that he had to answer the

immigration questions affirmatively for the court to accept his plea and release

him. Defendant testified he had pleaded guilty only because plea counsel told

him he "could not be deported for a third-degree sentence" and he would go

home that day.

Defendant also asserted for the first time plea counsel had informed him

he knew the judge because he had attended school with him, "[h]e would have a

handshake with the [j]udge," and the judge would sentence him to time served.

Because of that new allegation, plea counsel was recalled to testify. He admitted

he may have told defendant he knew the judge from school but denied the rest

A-1756-23
8
of defendant's allegations, including that he had told defendant he would have a

"handshake" deal with the judge.

In a January 4, 2024 order and written decision, the court denied

defendant's petition and alternative request to vacate his plea. The court found

plea counsel's testimony was "exceptionally credible, believable, and truthful,"

"consistent and forthright," and "corroborated by [defendant's] testimony during

the plea colloquy[] and the plea forms." The court found defendant's testimony

was not credible. The court noted "[t]he extreme differences" between

defendant's testimony during the plea colloquy and the PCR evidentiary hearing

and described defendant as being "consistently evasive" and "provid[ing] non-

responsive answers" when addressing questions posed by the assistant

prosecutor and the court during the PCR hearing. The court discredited

defendant's testimony, including his testimony about an alleged "handshake"

deal, "based upon its extreme lack of credibility and [defendant's] motivation to

fabricate." The court concluded plea counsel had "thoroughly reviewed each

question on the plea form" and had discussed the immigration and deportation

consequences of the plea with defendant, who decided to proceed with the plea.

The court applied the two-pronged test articulated by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984), and

A-1756-23
9
adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987). See Fritz, 105 N.J. at 52 (to establish ineffective assistance, a defendant

must show (1) "counsel made errors so serious that counsel was not functioning

as the 'counsel' guaranteed . . . by the Sixth Amendment" and (2) counsel's

"deficient performance prejudiced the defense" (quoting Strickland, 466 U.S. at

687)); see also State v. Hernandez-Peralta, 261 N.J. 231, 247 (2025). The court

found defendant had not demonstrated ineffective assistance under the first

prong because he had failed to establish plea counsel misinformed him about the

deportation consequences of the plea. The court found defendant had not

established the second prong because he had not shown he would have insisted

on going to trial had he not been misinformed as alleged, especially considering

the sentencing exposure he faced had he gone to trial. Consequently, the court

held defendant had not demonstrated either prong of the Strickland/Fritz test.

The court again considered the Slater factors and found each factor

weighed in favor of the State and that defendant had "entered a knowing,

intelligent and voluntary plea in this matter." Thus, the court concluded

defendant was not entitled to withdraw his guilty plea.

Defendant makes the following arguments on appeal:

A-1756-23
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POINT ONE

[DEFENDANT] IS ENTITLED TO RELIEF ON HIS
CLAIM THAT COUNSEL RENDERED
INEFFECTIVE ASSISTANCE BY MISADVISING
HIM OR MISLEADING HIM ABOUT THE
DEPORTATION CONSEQUENCES OF HIS PLEA.

POINT TWO

[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIMS THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL DURING PLEA
NEGOTIATIONS AND DURING THE PLEA, AT
SENTENCING, AND BY FAILING TO MOVE TO
DISMISS THE INDICTMENT.

A. Counsel misadvised [defendant] before and
during the plea about the terms of his plea
agreement, rendering his plea unknowing and
unintelligent.

B. Counsel rendered ineffective assistance during
sentencing by failing to present relevant evidence
and causing the enhancement of his client's
sentence.

C. Counsel rendered ineffective assistance by
failing to move to dismiss the indictment.

POINT THREE

[DEFENDANT'S] GUILTY PLEA MUST BE SET
ASIDE OR THE MATTER MUST BE REMANDED
FOR AN EVIDENTIARY HEARING.

A-1756-23
11
We address first defendant's argument he was entitled to relief based on

plea counsel's purported misinformation about the deportation consequences of

his guilty plea. The PCR court rejected that argument after conducting an

evidentiary hearing. When a PCR court has held an evidentiary hearing and has

made "factual findings based on live testimony, an appellate court applies a

deferential standard; it 'will uphold the PCR court's findings that are supported

by sufficient credible evidence in the record.'" State v. Pierre, 223 N.J. 560, 576

(2015) (quoting State v. Nash, 212 N.J. 518, 540 (2013)). We defer to the PCR

court's credibility determinations of witnesses the court had the opportunity to

observe firsthand. Ibid. We give that deference because the court had the

"opportunity to hear and see the witnesses and to have the feel of the case, which

a reviewing court cannot enjoy." State v. Nuñez-Valdéz, 200 N.J. 129, 141

(2009) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). We uphold a PCR

court's findings on appeal that are "supported by sufficient credible evidence in

the record." Nash, 212 N.J. at 540. Although we give deference to the factual

and credibility determinations of a PCR court, we review its legal conclusions

de novo. Hernandez-Peralta, 261 N.J. at 246.

In a plea deal involving a non-citizen, plea "counsel must inform [his or]

her client whether his plea carries a risk of deportation." Id. at 249 (quoting

A-1756-23
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Padilla v. Kentucky, 559 U.S. 356, 374 (2010)). Failure to provide a client with

that information "will be viewed as deficient performance of counsel." Ibid.

(quoting State v. Gaitan, 209 N.J. 339, 380 (2012)).

Given the deferential standard we apply, the record developed during the

evidentiary hearing, and the evidence already before the court, we have no basis

to reject Judge Arthur J. Batista's determination that defendant did not establish

ineffective assistance based on plea counsel's purported failure to properly

advise him regarding the potential immigration consequences of his plea .

Defendant indicated on the plea form and during the plea hearing that he

understood his guilty plea could result in his removal from the United States and

he had discussed with counsel the potential immigration consequences of his

plea.

Because defendant asserted in his PCR petition plea counsel had failed to

properly advise him of the immigration consequences of his plea and had told

him "he could not be deported as a result of pleading guilty to a third[ -]degree

crime," the court conducted an evidentiary hearing. The judge found credible

plea counsel's testimony and incredible the testimony defendant gave during the

evidentiary hearing. Based on that evidence and those credibility findings,

which we have no reason to disturb, we conclude the judge correctly determined

A-1756-23
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defendant had failed to meet the prongs of the Strickland/Fritz test.

Accordingly, we affirm the January 4, 2024 order denying defendant's petition.

We discern no abuse of discretion in the court's decision to forego an

evidentiary hearing on defendant's remaining claims of ineffective assistance,

denial of defendant's motion to reconsider that decision, or denial of defendant's

request to withdraw his plea. See Branch v. Cream-O-Land Dairy, 244 N.J. 567,

582 (2021) (applying an abuse-of discretion standard when reviewing an order

on a reconsideration motion); State v. L.G.-M., 462 N.J. Super. 357, 365 (App.

Div. 2020) (holding "[w]e review a trial court's decision to grant or deny a

defendant's request for a hearing under an abuse of discretion standard"); State

v. O'Donnell, 435 N.J. Super. 351, 372 (App. Div. 2014) (reviewing an order on

a plea-withdrawal motion under an abuse-of-discretion standard).

A PCR petitioner is not automatically entitled to an evidentiary hearing.

State v. Porter, 216 N.J. 343, 355 (2013); see also State v. Peoples, 446 N.J.

Super. 245, 254 (App. Div. 2016) (holding "[t]he mere raising of a claim of

[ineffective assistance of counsel] does not entitle the defendant to an

evidentiary hearing"). Rule 3:22-10(b) provides a court should hold an

evidentiary hearing on a PCR petition only if the defendant establishes a prima

facie case in support of PCR, "there are material issues of disputed fact that

A-1756-23
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cannot be resolved by reference to the existing record," and "an evidentiary

hearing is necessary to resolve the claims for relief." See also Porter, 216 N.J.

at 354. "A prima facie case is established when a defendant demonstrates '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.'" Id. at

355 (quoting R. 3:22-10(b)).

Applying those standards, we affirm the February 7, 2023 order

scheduling an evidentiary hearing limited to the immigration issue and the May

26, 2023 order denying the reconsideration motion substantially for the reasons

set forth on the record by the court on January 25, 2023, when it held it would

conduct an evidentiary hearing limited in scope, and more fully in the

comprehensive May 26, 2023 written opinion denying the reconsideration

motion. We affirm the court's denial of the aspect of defendant's petition seeking

to withdraw his plea substantially for the reasons set forth on that issue in the

January 4, 2024 written decision denying defendant's petition.

We note defendant contends the court did not rule on the issue defendant

raised regarding plea counsel's purported failure to present and argue for

mitigating evidence. To the contrary, the court considered the issue during the

January 25, 2023 argument and rejected defendant's position when it limited the

A-1756-23
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scope of the evidentiary hearing in the February 7, 2023 order and ultimately

denied the petition in the January 4, 2024 order.

Affirmed.

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