New Jersey Criminal Defense Attorney Blog

Aliens who are convicted in New Jersey of certain crimes will be issued a "Notice to Appear" by federal authorities. If the defendant was not given proper notice that their plea would lead to deportation/removal, a post conviction relief application may be appropriate. A New Jersey PCR lawyer can guide you through the process.

Unlike most other areas of criminal law, both New Jersey and federal courts in recent years have softened on this issue. The real underlying issue is whether the defendant received effective assistance of counsel. While this argument can be made on direct appeal, it is more appropriately raised in PCR proceedings. My office handles these types of cases. Give us a call for an evaluation of your case.

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State v. Reynaldo Corriano, unpublished opinion, App. Div. Docket No. A-2244-07T4 (October 19, 2010) - Denial of PCR affirmed in part, reversed in part, remanded for evidentiary hearing. "We come to a different conclusion with respect to defendant's claims of ineffective assistance of plea counsel. Such claims generally fall within the first exception to Rule 3:22-4(a): 'the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding.' R. 3:22-4(a)(1).... Until defendant learned of the five-year parole term, he had no reason to suspect that his counsel was ineffective in advising him of the penal consequences of the plea. The allegations made by defendant respecting his counsel are based on evidence outside the record and should be heard in a PCR application ... if he has made out a prima facie case of ineffective assistance of counsel.... However, we cannot determine with any certainty that such a failure occurred, particularly since, in connection with question 2 of NERA plea form, the term of parole was entered by hand and then changed, even though no answer to the question was recorded. The record before us also does not permit us to determine whether 'there is a reasonable probability that, but for counsel's errors, [defendant] would not have [pled] guilty and would have insisted on going to trial.'... Defendant has certainly asserted that this is so, which is sufficient for a prima facie case under the second prong of Strickland, but the inquiry does not end there.... The attorney's testimony is certainly required to determine and evaluate these facts, as is the testimony of defendant."

State v. Demitrius Middleton, unpublished opinion, App. Div. Docket No. A-4842-07T4 (June 10, 2010) - Denial of PCR reversed, case remanded for new hearing. "The record does not permit us to conclude that PCR counsel listed or incorporated all of the claims raised in defendant's pro se verified petition. The PCR petition did not identify the three claims underlying defendant's request for relief because his trial attorney failed to provide the representation guaranteed by the constitution. Nor did defense counsel mention defendant's claim that he was not present when his judgment of conviction was amended to reflect a thirty-year period of parole ineligibility rather than a NERA term following this court's remand for 'reconsideration in light of Manzie.' Moreover, we now have letters, the authenticity of which has not been established, that suggest defendant asked his PCR counsel to raise additional issues that were not addressed. Under the circumstances, we conclude that a remand is required. On remand, with assistance of different appointed counsel, the judge should consider any argument related to issues raised in defendant's pro se verified petition that was not previously presented to the judge."

State v. Darryl Johnson, unpublished opinion, App. Div. Docket No. A-5201-07T4 (May 12, 2010) - Denial of PCR reversed, case remanded for evidentiary hearing. "[T]he trial court entered an order supported by an oral decision denying the petition without an evidentiary hearing, determining that the issue whether defendant should have additional jail or gap-time credits applied against the NERA portion of his sentence rested with the State Parole Board, not the trial court....

Defendant did not argue in the trial court, and does not argue on appeal, that he is entitled to have the 212 days of gap-time credit applied against the base term on his sentence on count one; nor that he did not receive 635 days of jail credit against the sentences imposed on the Morris County convictions. Rather, defendant contends that trial counsel misrepresented to him that all of those credits would be applied against the period of parole ineligibility on count one, thereby reducing his overall period of parole ineligibility by approximately three years. Defendant asserts that had he known those credits could not be used to reduce the period of parole ineligibility on count one he would not have pled guilty to the NERA offense....

Here, the trial court did not address defendant's argument that trial counsel had misrepresented the amount of jail and gap-time credits that were to be applied against the NERA period of parole ineligibility imposed on count one.... Because the trial court did not address that issue and the record does not contain sufficient information to flesh out what information defendant received from his trial counsel, we reverse and remand for the court to conduct an evidentiary hearing."

State v. Mark Goodson, unpublished opinion, App. Div. Docket No. A-1800-08T4 (May 18, 2010) - Denial of PCR reversed, case remanded for evidentiary hearing. "We disagree that trial counsel was ineffective with regard to defendant's sentence and find that the issue is procedurally barred.

However, we agree that the judge should have granted an evidentiary hearing regarding the allegation of ineffective assistance with respect to the statement by G.M. that she was willing to testify for the defense. Therefore, we remand the matter for an evidentiary hearing....

Here, the issue regarding the G.M. letter could not be resolved by a review of the trial record and therefore could not have been raised on direct appeal. The G.M. statement on its face establishes that a witness had firsthand information that, if believed by the jury, could exonerate defendant. Therefore, the PCR judge should hold an evidentiary hearing and address the issue on its merits. Trial counsel should give testimony as to his reasons for not calling G.M. We have no view of the merits of defendant's application."

State v. L.A., unpublished opinion, App. Div. Docket No. A-4279-07T4 (May 24, 2010) - Denial of PCR reversed, case remanded for evidentiary hearing. "We concur that a remand is necessary to afford defendant the opportunity for an evidentiary hearing at which his wife will be able to testify, and the PCR judge will be able to assess her credibility, in order to make an informed decision as to whether trial counsel's failure to prepare and call her as a witness did in fact constitute ineffective assistance of counsel....

Here, the PCR judge found that defendant had satisfied the first prong of the Strickland test, namely that counsel was 'deficient' in failing to call defendant's wife as a witness because her testimony 'would have been helpful to put the victim's credibility in issue....' Notwithstanding this finding, the judge concluded that counsel's deficient performance did not prejudice defendant. However, as noted, in addressing this second prong, the PCR judge focused on allegations other than counsel's failure to call defendant's wife as a witness.... We are satisfied that the PCR judge erred in failing to find that defendant had satisfied the second prong of the test for establishing a prima facie claim of ineffective assistance of counsel. This error, in turn, led to the improper denial of an evidentiary hearing."

State v. Raymond Grice, unpublished opinion, App. Div. Docket No. A-4328-07T4 (April 8, 2010) - Denial of PCR because it was filed beyond the time limits in R. 3:22-12 reversed, case remanded for evidentiary hearing. "We disagree ... with the judge's conclusion, made without holding a plenary hearing, that the overall circumstances of this case do not present the type of 'exceptional circumstances' that would warrant relaxation of the rule's time limitations....

[T]he identity of the defendants was a crucial issue at the trial. Although we affirmed the conviction, we noted that doing so required 'fine balancing' because of trial errors related to that issue.... Finally, a different Law Division judge granted relief to the co-defendant on the same grounds articulated by Grice, which decision was for some reason not challenged by the State on appeal.... [W]e do not believe that a relaxable procedural bar should prevent him from having the opportunity to seek the same relief based upon the merits of his claims under the very unusual and particular circumstances of this case."

State v. G.C., unpublished opinion, App. Div. Docket No. A-4485-07T4 (April 6, 2010) - Denial of PCR petition reversed, case remanded for evidentiary hearing. "We remand for further proceedings because relaxation of the five-year time bar is warranted under these extraordinary and unique facts. See R. 3:22-12(a). The parties assume that the petition was filed thirteen years after the entry of judgment....

While dated August 20, 1993, so as not to deprive defendant of institutional credits as of that day, defendant was resentenced on the second remand on February 13, 1998. The judgment which was ultimately sustained was entered that day. It constituted the judgment of conviction which defendant now attacks. See R. 3:21-5(b).

We affirmed that judgment, and that judgment only, on April 13, 1999, and the petition of January 31, 2000, was filed within five years of the 1998 judgment. Moreover, there was an earlier petition dated December 28, 1998, which defendant endeavored to file even before the proceedings on direct appeal concluded on April 13, 1999....

Under the totality of these circumstances in which defendant sought PCR even before the direct appellate process was complete, and given Dr. Greenfield's report, [which opined that defendant's "mental condition" was "excusable neglect" for his failure to file his petition within time] the petition should be considered on the merits, and we remand for further proceedings in the Law Division."