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Edgar Ortega, A045 624 720 (BIA Sept. 23, 2013)

Edgar Ortega, A045 624 720 (BIA Sept. 23, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) granted the respondent’s motion to remand in light of evidence indicating that he was resentenced from five years’ to three days’ confinement for each offense that was previously found to qualify as an aggravated felony crime of violence. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) granted the respondent’s motion to remand in light of evidence indicating that he was resentenced from five years’ to three days’ confinement for each offense that was previously found to qualify as an aggravated felony crime of violence. The decision was written by Member Roger Pauley.

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Steinfeld, Jefrey B., Esq.

Jefrey B. Steinfeld, P.C.
27 Warren Street, Suite 302
Hackensack, NJ 07601
Name: ORTEGA, EDGAR
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike. Suite 2000
Fals Ch11rch, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - NEW
P.O. Box 1898
Newark, NJ 07101
A 045-624-720
Date of this notice: 9/23/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
[C { t
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Edgar Ortega, A045 624 720 (BIA Sept. 23, 2013)
ORTEGA, EDGAR
A045-624-720
ICE/ESSEX COUNT JAIL
354 DOREMUS AVENUE
NEWARK, NJ 07105
Name: ORTEGA, EDGAR
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pik, Suite 2000
Fals Church, Vrginia 2204 I
OHS/ICE Ofice of Chief Counsel - NEW
P .0. Box 1898
Newark, NJ 07101
A 045-624-720
Date of this notice: 9/23/2013
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be
removed fom the United States or afrms an Imigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
DC caA
Donna Carr
Chief Clerk
Lulseges
Useream: Docket
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Cite as: Edgar Ortega, A045 624 720 (BIA Sept. 23, 2013)
/" •. - .
'
l
U.S. Deparent of Justice
Executive Ofc fr Imigation Review
Decision of te Boad of Im igation Appeals
Falls Chuch, Viginia 22041
File: A045 624 720 - Newak, NJ
I re: EDGAR ORTEGA
I REMOVAL PROCEEDIGS
APPEA AND MOTION
Date:
ON BEHALF OF RESPONENT: Jefey B. Steinfeld, Esquire
APPLICATION: Continuace; remad
:l| ZJ 2013
On June 4, 2013, an Immigation Judge ordered the respondent removed to Per as a alien
convicted of a aggravated flony. See section 237(a)(2)(A)(iii) of the Immigration ad
Nationalit Act, 8 U.S.C. § 1227(a)(2)(A)(iii). The respondent fled a timely appeal of te
Immigration Judge's decision. On Augst 1, 2013, the respondent fled a motion to remad
based on a state cou ruling reducing hs sentence fr the criminal conviction uderlying te
chage of removability. The Depaent of Homeland Secuity (DHS) has not fled a response
to the respondent's appeal or motion. The motion will be gated and te record will be
remaded.
We review an Immigration Judge's fndings of fct fr clear eror, but questions of law,
discretion, and judgent, ad all oter issues in appeals, de novo.
8 C.F.R. §§ 1003. l(d)(3)(i),
(ii).
The DHS chages the respondent as removable pursuat to section 237(a)(2)(A)(iii) of te
Act, as a alien convicted of a aggravated flony under section 101(a)(43)(F) of te Act,
8 U.S.C. § 1101(a)(43)(F). Section 10l(a)(43)(F), in tu, defnes a aggravated flony as a
crime of violence fr which the term of imprisonent is at least one yea. The respondent was
convicted on July 14, 2006, of two counts of aggravated assault in te tird degree, in violaton
of N.J. Stat. § 2C:12-lb(7); he was initially sentenced to fve years of imprsonent fr each
count, to r concurently.
Atached to his motion to remad, te respondent presents evidence that on Jue 25, 2013, he
was resentenced to 3 days of jal confnement fr each assault ofense. See Resp. Motion, Tab C.
The respondent terefre agues tat because his sentence was reduced to uder 1 year, he is no
longer removable as a alien convicted of a aggavated flony. In Matter of Cota-Vargas,
23 I&N Dec. 849 (BIA 2005), we held that a tal court's decision to modif a alien's crimina
sentence nunc pro te was entitled to fll faith ad credit by Imigation Judges ad this Boad,
ad tat te modifed sentence would be valid fr immigation puposes regadless of te reaons
behind the sentence reduction. See also Matter of Song, 23 I&N Dec. 173 (BIA 2001 ); Matter of
Martin, 18 l&N Dec. 226 (BIA 1982).
Based on te evidence of the respondent's sentence reduction, we fnd tat a remad fr
fer consideration as to te respondent's removabilit ad eligibility fr relief fom remova is
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Cite as: Edgar Ortega, A045 624 720 (BIA Sept. 23, 2013)
<. •, • • •
A045 624 720
appropriate. See Matte· ofCota-|a·gas, sup·a, Matte· ofSong, sup·a. As the respondent's
removabilit is now a open question, it would be premature to addess te oter aguents
advaced in his appeal at tis time. Accordingly, te fllowing order shall be issued.
ORER: Te respondent's motion to remand is ganted ad the record is remaded to the
Immigation Cou fr fer proceedings consistent wit the fregoing opinion ad fr the
ent of a new decision.
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Cite as: Edgar Ortega, A045 624 720 (BIA Sept. 23, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEW ARK, NEW JERSEY
File No.: A045 624 720
In the Matter of DETAINED
Edgar ORTEGA, In Removal Proceedings
Respondent.
CHARGES: INA § 237(a)(2)(A)(iii)- Aggravated Felony - Crime of Violence
APPLICATIONS: Termination
Continuance
ON BEHALF OF RESPONDENT
Jefrey B. Steinfeld, Esq.
27 Wanen Street, Ste. 302
Hackensack, NJ 07601
ON BEHALF OF DHS
Mauel Ramirez, Esq.
Ofce of Chief Counsel/ICE/OHS
970 Broad Street, Room 1104B
Newark, New Jersey 07102
DECISION AND ORER OF THE IMMIGRATION JUDGE
Mr. Ortega is a native and citizen of Per who was admitted to te United States ("U.S.")
at Newark, New Jersey, on or about July 25, 1996, as a lawfl permaent resident. Exhibit l.
On or about July 14, 2006, Mr. Ortega was convicted in the New Jersey Superior Court at
Passaic County of two counts of aggravated assault in the third degree, in violation of N.J. Stat §
2C: 12-1 b(7). He was sentenced to 5 years of imprisonment on each count with the sentences to
run concurrently. Exhibit 3.
On August 15, 2012, the Department of Homeland Security ("DHS") issued Mr. Ortega a
Notice to Appear ("NTA") chaging him with deportability under IA § 237(a)(2)(A)(iii) a an
alien convicted of an aggravated flony as defned in IA § 101(a)(43){F) (crime of violence).
Exhibit 1. On Mach 5, 2013, DHS issued a Form I-261, Additional Charges of
Inadmissibility/Deportability, charging Mr. Ortega with deporability under IA §
237(a)(2)(A)(iii) as a alien convicted of an aggravated flony as defned in IA §
10l(a)(43)(U) (attempt or conspiracy to commit a aggravated flony). Exhibit IA.
Though counsel, Mr. Ortega admited all the fctal allegations contained in the NTA
but denied the charges contained on the NTA a amended by the Form 1-261. Counsel fr Mr.
Ortega briefd the issue of whether Mr. Ortega's conviction fr aggravated assault is an
aggravated felony a defned in IA § § 101(a)(43)(F) or 10l(a)(43)(U). In hearings befre the
Cour, both parties presented arguments on that issue. At a hearing on April 24, 2013 the Cour
sustained both charges. The Court reset the matter to allow Mr. Ortega to submit applications fr
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relief fom removal.
At a continued hearing on May 8, 2013, counsel fr Mr. Ortega advised the Court that
Mr. Ortega would not be fling any applications fr relief from removal but wished to appeal the
Court's decision regarding the charge on the NTA. He also requested a continuance to pursue a
recently fled motion fr post-conviction relief (PCR) which was pending with the New Jersey
Superior Court. Counsel fr DHS opposed the request fr continuance, arguing that the PCR
motion was collateral to these proceedings and the outcome was speculative. The Court denied
the motion fr a continuance to pursue the motion fr PCR and reserved decision.
Legal Standard
The Immigration and Nationality Act provides fr the removal of an alien who is
convicted of an aggravated flony at any time after admission. INA § 237(a)(2)(A)(iii). The
Third Circuit Court of Appeals has held that in determining whether an ofense is an aggravated
flony under the Act, courts must presumptively apply the frmal categorical approach, fcusing
on the statutory defnition of the ofense and not the paricular fcts underlying the conviction.
Stubbs v. Atty Gen., 452 F.3d 251, 254 (3d Cir. 2006); Singh v. Ashcroft, 383 F.3d 144, 163 (3d
Cir. 2004) (applying the approach employed in Taylor v. US, 495 U.S. 575, 599-600 (1990));
Francis v. Reno, 269 F.3d 162, 171 (3d Cir. 2001 ). In applying the categorical approach, courts
must ascertain the least culpable conduct necessary to sustain a conviction under the statute.
Denis v. Ally Gen., 633 F .3d 20 l, 206 (3d Cir. 201 1 ).
Cours may depr1 fom the frmal categorical approach where the statute of conviction
is "phrased in the disjunctive or structured in outline frm." Singh, supra. at 163-64; see Stubbs,
supra, at 254. The statute need not be frmally divided in order to be considered disjuctive­
"[r]ather, the key is whether the provision is disjunctive in a relevant sense." Garcia v. At '
Gen., 462 F.3d 287, 293 n. 9 (3d Cir. 2006) (citing Singh, supra, at 163).
Under the "modifed" categorical approach, cours may "inquir[ e] into the fcts of the
underlying conviction" fr the limited purpose of determining under which part of the divisible
statute the respondent has been convicted. Knapik v. Ashcrof, 384 F.3d 84, 92 n.8 (3d Cir.
2004 ); Matter of Vargas-Sarmiento, 23 I&N Dec. 651, 654 (BIA 2004 ). In doing so, te cour is
permitted to examine the record of conviction, which includes the charging document and the
plea colloquy. See Stubbs, supra, at 254; Singh, supra, at 163; see also Jean Louis v. Att' Gen.,
582 F.3d 46, 472 (3d Cir. 2009) ("the fral record of conviction .. . could include the charging
document, the terms of the plea agreement or transcript of the colloquy between judge ad
defndant in which the fctual basis fr the plea is confrmed by the defndant, or some
comparable judicial record of this infrmation") (citing Shepard v. US., 544 U.S. 13, 26 (2006)).
Having determined which portion of the statute the respondent was convicted of, what remains is
whether the respondent's conviction necessarily constitutes an aggravated flony under the Act.
Restrepo v. Atty Gen., 617 F.3d 787, 791 (3d Cir. 2010); Stubbs, supra, at 25-56; see Denis,
supra, at 206.
Analysis
The Cour fnds that good cause has not been established to continue the case fr
adjudication of the pending PCR motion. Such a motion is collateral to these proceedings and its
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outcome is speculative. For these reasons, the Court denied the motion to continue for
adjudication of the PCR motion.
The primary issue in this case is whether Mr. Ortega's conviction fr aggravated assault
in violation of N .J. Stat. § 2C: 12-1 b(7) is an aggravated flony as defned in INA § 1O1(a)(43)(F)
as a crime of violence fr which the term of imprisonment is at least one year and/or whether his
conviction is an aggravated flony as defned in IA § 101 (a)(43)(U), making him removable
under INA § 237(a)(2)(A)(iii). For the reasons below, the Court will sustain the charge under
INA § 237(a)(2)(A)(iii) based upon INA § 101(a)(43)(F) and will not reach the charge based
upon INA§ l 0l (a)(43)(U).
An alien is deportable under INA § 237(a)(2)(A)(iii) if he has be
e
n convicted of an
aggravated flony as defned in INA § 101(a)(43 )(F), which states that Ha crime of violence (as
defned in section 16 of Title 18, but not including a purely political ofense) fr which the term
of imprisonment at least one yea" is an aggravated flony. INA § 10l(a)(43)(F).
Under 18 U .S.C. § 16, a crime of violence is defned as:
(a) an ofense that has as an element the use, attempted use, or threatened use of
physical frce against the person or propery of another, or (b) any other ofense
that is a flony and that, by its nature, involves a substantial risk that physical
frce against the person or property of another may be used in the course of
committing the ofense.
In this case, on July 14, 2006, Mr. Ortega was convicted in the New Jersey Superior
Court, Passaic County, of two counts of aggravated assault in the third degree in violation of N.J.
Stat § 2C: 12-1 b(7), and was sentenced to fve years of imprisonment fr each count to be run
concurrently. (See Exhibit 3, Judgment of Conviction.) N.J. Stat. §2C:12-lb(7) states that,
A person is guilty of aggravated assault if he:
(7) Attempts to cause signifcant bodily injury to another or causes signifcat
bodily injury purposely or knowingly or, under circumstances manifsting
extreme indiference to the value of human lif recklessly causes such signifcat
bodily injury.
N.J. Stat. §2C:l2-lb(7)(2009). The judgment of conviction indicates that Respondent was
originally charged with 6 separate ofenses, but ultimately pied guilty to only the frst and furth
counts, which were aended to aggravated assault in the third degree in violation of N.J. Stat. §
2C:l2-lb(7).i Thus, as "the use, attempted use, or threatened use of physical frce" (18 U.S.C. §
16(a)) is not an element of N.J. Stat § 2C:l2-lb(7), 18 U.S.C. § 16(b) is the relevant defnition of
"crime of violence" which must be considered here. The Court concludes that his conviction on
each count categorically constitutes a conviction fr an aggravated flony.
The least culpable conduct criminalized by Mr. Ortega's statute of conviction is
recklessly causing signifcant bodily injury "under circumstances manifsting extreme
indiference to the value of human lif." DHS relies on the Third Circuit Court of Appeals'
decision in Aguilar v. Att' Gen., 663 F.3d 692 (3d Cir. 2011) in arguing that Mr. Ortega's
aggravated assault conviction constitutes a cnme of violence under 18 U.S.C. § 16(b). In
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Aguilar, the Third Circuit, afer reviewing and cataloguing the relevant precedents, held that
crimes with a mens rea, or mental state, of recklessness do not necessarily fll outside of § l 6(b );
rather, the key issue is whether the actus reus of the ofense, by itself, creates a substantial risk
that physical force may be intentionally used in the commission of that ofense. Aguilar, 663
F.3d at 698.
The Court fnds that the portion of the statute most relevant to the § 16(b) analysis is not
that the defndant �'recklessly causes such injury," but that the defndant commits an assault
"under circumstances manifsting extreme indiference to the value of human lif." Regardless
of whether an injury ultimately resulted and the mens rea accompanying such injury, the Court
fnds that a person who commits an assault "under circumstances manifsting extreme
indiference to the value of human lif" necessarily creates a substantial risk tat physical frce
may be intentionally used in the commission of the crime. Aguilar, 663 F .3d at 698-99. See also
Briolo v. Attorney General of the United States, 2013 WL l 010634 (3d Cir. Mar. 15,
2013 )(Unpublished).
This situation is notably diferent than the acts at issue in cases of "pure recklessness"
fund not to constitute crimes of violence under § l 6(b ), such as the DUI ofense in Leocal v.
Aschrof, in which the Supreme Court reasoned that a person driving under the infuence cannot
be said to "risk having to 'use' physical frce against another person," 543 U.S. 1, 11 (2004), and
reckless buring in Tran v. Gonzalez, in which the Third Circuit reasoned that the risk involved
in reckless buring is not the use of intentional frce but rather the risk that the fre will spread
and harm property. 414 F.3d 464, 465 (3d Cir. 2005). In Aguilar, the Third Circuit characterized
"pure recklessness" crimes as those in which "the mens rea of a crime "lack[ s] an intent or
willingness to use frce or cause harm at all." 663 F.3d at 697-698 (quoting US v. Parson, 955
F.2d 858, 966 (3d Cir. 1992)). In far contrast fom such "pure recklessness" crimes, which "do
not fall under § l 6(b) fr the very reason that the perpetrator runs "no risk of intentionally using
frce in committing the crime," Aguilar, 663 F.3d at 698 (quoting Tran, 414 F.3d at 465), a
conviction of aggravated assault under this subsection of 2C:l2-lb{l) requires "extreme
indiference to the value of human lif," and indeed, requires such a willingness to use frce or
cause harm tat inherent in the conduct there is a "probability as opposed to a mere possibility of
serious bodily injury." See New Jersey Pater Jury Instructions, Aggravated Assault, Serious
Bodily Injury, N.J.S.A. § 2C:l2-lb(l) at 2.
In this way, aggravated assault under this subsection of 2C: 12-1 b(7) - because it entails
complete indiference to human lif and thus a willingness of the perpetrator to risk the
application of frce in the commission of the crime - is akin to the classic § l 6(b) example of
burglary discussed in Aguilar and Leoco/
1
and to reckless sexual assault, which Aguilar held to
be a crime of violence under § 16(b).
2
1 As the Third Circuit stated in Aguilar,
[A] burglary would be covered under 16(b) not because the ofense can be committed in a
generally reckless wa or because someone may be injured, but because burglar, by its nature,
involves a substantial risk that the burglar will use force against a victim in completing the crime.
Aguilar, 663 F.3d at 698 (quoting leocal, 543 U.S. at IO) (emphasis in original).
2 The Court has considered the crime of driving under the infuence in leocal, which the Supreme Court held is not a
crime of violence under § l 6b, and the possibility that some frm of driving under the infuence, coupled with the
infiction of signifcant bodily injury, could fll under aggravated assault in violation of 2C: 12-1 b(7). However, the
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• '
For the fregoing reasons, the Court finds that each of Mr. Ortega's convictions fr
aggravated assault under N.J. Stat § 2C: 12-1 b(7) arc convictions fr a crime of violence under 18
U.S.C. § 16(b) in that the convictions are fr a felony that, "by its nature, involves a substantial
risk that physical frce against the person or property of another may be used in the course of
committing the ofense." 18 U.S.C. § 16(b). Accordingly, the Court fnds that M. Ortega has
been convicted of an aggravated flony as defned in INA § 10l(a)(43)(F) and will sustain the
charge of removability under INA § 237(a)(2)(A)(iii).
The Court will not reach the issue with regard to the charge of aggravated flony as
defned in INA§ 101(a)(43)(U) as the Com1 has concluded that Mr. Ortega's conviction on each
count meets the defnition of an aggravated flony contained INA § 101(a)(43)(F).
As discussed above, Mr. Ortega did not request any relief fom removal. The Court does
not doubt that Mr. Ortega has accrued many equities during his time in the United States.
Unfrtunately, because he has been convicted of an aggravated flony, the Cour is not able to
consider those equities.
ORDER
IT IS HEREBY ORDERED that the Respondent be removed fom the United States to
Peru on the charge of deportability under INA § 237(a)(2)(A)(iii) (as defned in INA §
10l(a)(43)(F)) as contained on the Notice to Appear.
Date MARGARET R. RICHENBERG
Immigration Judge
i The judgment of conviction indicates that Respondent was originally charged with 6 separate
ofenses, but ultimately pied guilty to only the frst and furh counts, which were amended to
aggravated assault in violation of N .J. Stat. § 2C: 12-1 b(7). The plea transcript reveals that the
state moved to amend the frst count during the plea hearing, with the agreement of Mr. Ortega's
counsel, to read:
... Edgar Ortega, on or about the 13th day of March 2005, in the City of Paterson,
in the county of Passaic, and within the jurisdiction of this Cour, did purposely or
knowingly cause signifcant bodily injury to Eduado Godinez, or did recklessly
additional element of proving depraved indiference to the value of human lif distinguishes the conduct
criminalized here fom that criminalized in Leocal and brings the instant statute into the ambit of a crime of
violence.
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\"".•·\
For the fregoing reasons, the Court fnds that each of Mr. Ortega's convictions fr
aggravated assault under NJ. Stat § 2C: 12-1 b(7) are convictions fr a crime of violence under 18
U.S.C. § 16(b) in that the convictions are fr a flony that, "by its nature, involves a substantial
risk that physical frce against the person or property of another may be used in the course of
committing the ofense." 18 U.S.C. § 16(b ). Accordingly, the Court fnds that Mr. Ortega has
been convicted of an aggravated flony as defned in INA § 10l(a)(43)(F) and will sustain the
charge of removability under INA §237(a)(2)(A)(iii).
The Court will not reach the issue with regard to the charge of aggravated flony as
defned in INA § IOI(a)(43)(U) as the Court has concluded that Mr. Ortega's conviction on each
count meets the defnition of an aggravated flony contained INA § 101(a)(43)(F).
As discussed above, Mr. Ortega did not request ay relief fom removal. The Court does
not doubt tat Mr. Ortega has accrued many equities during his time in the United States.
Unfrtunately, because he has been convicted of an aggravated flony, the Court is not able to
consider those equities.
ORDER
IT IS HEREBY ORDERED that the Respondent be removed fom the United States to
Peru on the charge of deporability under INA § 237(a)(2)(A)(iii) (as defned in INA §
10l(a)(43)(F)) as contained on the Notice to Appea.
Date
���a �
MAR
G R
T R.
Immigration Judge
i The judgment of conviction indicates that Respondent was originally chaged with 6 separate
ofenses, but ultimately pied guilty to only te frst ad furth counts, which were amended to
aggravated assault in violation of NJ. Stat. § 2C:12-lb(7). The plea transcript reveals that the
state moved to amend the frst count during the plea heaing, with the agreement of Mr. Ortega's
counsel, to read:
... Edgar Ortega, on or about the 13th day of March 2005, in the City of Paterson,
in the county of Passaic, and within the jurisdiction of this Cour, did purposely or
knowingly cause signifcant bodily injury to Eduardo Godinez, or did recklessly
additional element of proving depraved indiference to the value of human life distinguishes the conduct
criminalized here fom that criminalized in leocaJ and brings the instant statute into the ambit of a crime of
violence.
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