Following the DREAM act, will post-conviction relief have its day in NJ

Reading the tea leaves as I argue PCR motions throughout NJ…most prosecutor’s are now up to date on the myriad of case law that has come down the last couple of years regarding non-citizens entering guilty pleas unaware of the immigration consequences that await them. New Jersey is on the knife’s edge of this issue with the recent decision on Gaitan and the subsequent grant of cert. by SCOTUS regarding the retroactive application of Padilla. In addition, the Appellate Div. in Batista-Izaias just ruled in favor of a non-citizen whose attorney (and the court) missed that the defendant’s pre-sentencing report indicated that he was not a citizen, which contradicted the plea form.

Another issue was raised in State v Juan Pablo Santos, that is whether a deported individual could provide testimony remotely for his PCR evidentiary hearing. The NJ Supreme Court held that before an evidentiary hearing is granted, the PCR court must apply the factors set out in Aqua Marine Products, Inc. v Pathe Computer Control Systems Corp. This is a two part test discussed in the Santos opinion.

The law is moving fast and furious with Post-Conviction Relief in New Jersey. For more information on these topics, I can be contacted.


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