Jersey City, New Jersey – For people accused of a crime, rightly or wrongly, Pre-Trial Intervention (“PTI”) can be a life-altering opportunity. PTI is a period of supervision (usually between one to three years) during which the defendant must satisfy certain conditions such as paying restitution, reporting to a probation officer, remaining arrest free and other possible conditions, but at the end of that period of supervision, the charges are dismissed. For those eligible and accepted to the program, it is an opportunity to secure a dismissal of the charges and to avoid the consequences of a conviction without the risk of going to trial. Since a conviction can permanently affect a person’s fundamental rights such as the right to vote, to possess firearms, to secure employment, to obtain or maintain lawful immigration status, the value of securing a dismissal cannot be overstated.

Unfortunately, some people charged with crimes are not aware of this option or do not understand the option. It is incumbent upon their attorneys to explain the program and the benefits of the program, and to pursue entry into the program if it is beneficial and desired. When an attorney fails to do these things, it very likely is a violation of a defendant’s Sixth Amendment right to the effective assistance of counsel that could allow a defendant to vacate the conviction in order to pursue the program or assert the right to a trial.

On February 10, 2020, the Superior Court of New Jersey, Appellate Division, confirmed in a published decision several very important points of law for non-citizens accused of crimes in New Jersey. Firstly, the right to accurate immigration advice about the consequences of a criminal prosecution applies to defendants who plead guilty and those who go to trial. Previously, no New Jersey court had affirmed that this right applies to those electing to go to trial.

Secondly, the court affirmed that a judge’s warnings about immigration consequences, or other aspects of a plea or trial, do not replace or substitute for the individualized advice of defendant’s attorney.

Thirdly, the court rejected the notion that the State’s explanation during a post-conviction relief proceeding as to why a defendant would likely have been rejected from the PTI program cannot substitute for defense counsel’s failure to have applied a defendant to PTI.

Lastly, the court confirmed that an attorney’s failure to provide adequate advice about PTI, including the chances of acceptance into PTI and the immigration consequences of PTI, may establish ineffective assistance of counsel and trial courts must grant evidentiary hearings to create a record of these issues. This decision does not mean that all such claims of failure to advise will result in a finding of ineffective assistance of counsel, but it should help ensure that defendants making these claims are at least entitled to a full hearing to establish such claims.

For non-citizens charged with crimes, it is essential to secure competent defense counsel and competent immigration counsel at the outset of the criminal prosecution. The needs and options of a non-citizen can be very different from those of a US citizen. Because many excellent criminal defense attorneys do not understand immigration law, and because many excellent immigration attorneys do not understand criminal procedure, securing an attorney who specialize in both, what is known as crimimm, is the smartest decision a non-citizen accused of a crime can make.

 

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