Post-Conviction Relief Hearing Not Automatic Where New Jersey Defendant Claims Failure to Advise of Deportation Consequences

New Jersey Criminal Lawyers Schwartz Posnock

The United States Supreme Court, in Padilla v. Kentucky, recently held that a criminal defense attorney has the affirmative duty to inform his or her client of the immigration consequences of a guilty plea prior to entry of that plea.

Two New Jersey criminal cases have recently discussed whether Padilla applies to guilty plea cases resulting in deportations which occurred prior to the Supreme Court’s decision. The New Jersey Supreme Court decided in State of New Jersey v. Gaitan that post-conviction relief petitioners who entered guilty pleas prior to Padilla cannot establish an ineffective assistance of counsel claim just by alleging that they were not advised regarding the risk of deportation. Instead, a petitioner must satisfy prior New Jersey law showing that his New Jersey criminal lawyer provided affirmative misadvice regarding the immigration consequences of a guilty plea.

In State of New Jersey v. Santos, decided on May 8, 2012, the New Jersey Supreme Court reiterated that the Padilla decision, at least for the time being, is not retroactive in the state courts of New Jersey.

New Jersey criminal lawyers should be aware of the requirements of advising a client of the immigration consequences of a guilty plea. New Jersey criminal lawyers should also be aware that their client’s guilty pleas can be vacated pursuant to the United States Supreme Court decision in Padilla.

If you or a loved one has been convicted of a crime and seeks post-conviction relief, call Schwartz & Posnock at any of our 4 convenient New Jersey offices.

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