State v. Alvarez, 473 N.J. Super. 448 (App. Div. 2022); State v. Chau, 473 N.J. Super. 430 (App. Div. 2022). These two opinions, issued today, were both authored by Judge Accurso. Both decisions dealt with the defendant’s assertion of ineffective assistance of counsel in the context of potential deportation of that defendant for the crime(s) alleged. Both cases also involved the interplay between counsel who defended the criminal case and dealt with a guilty plea, on the one hand, and immigration counsel who advised the defendant about the potential effect of pleading guilty, or not doing so, on the risk of facing deportation, on the other hand.
These were fact-intensive cases. As a result, each matter, to which the Appellate Division applied de novo review, came out differently. In Alvarez, Judge Accurso noted that “[t]he question of whether a defendant has a right to the effective assistance of a lawyer other than counsel of record — specifically, a second lawyer a defendant retains or consults to provide him advice on the deportation consequences of accepting a plea offer, who does not enter an appearance in the defendant’s criminal case — is not settled in this State,” though cases elsewhere had addressed the issue. Those cases, Judge Accurso said, all went against the defendants. But it was not necessary to declare New Jersey law on this issue because defendant here could not satisfy one of the prongs of Strickland v. Washington, 466 U.S. 668 (1984), which required a showing of prejudice. Accordingly, defendant’s petition for post-conviction relief, was properly denied by the Law Division, the panel held, though for different reasons than those given by the Law Division.
In Chau, the Appellate Division reversed a Law Division ruling that found defendant’s post-conviction relief application time-barred. On the facts of that case, there was excusable neglect for the delay in filing. And “defendant has mustered sufficient evidence to establish a prima facie claim of both ineffective assistance of counsel and prejudice — that is, as a result of his counsel’s alleged failure to render advice about the deportation consequences of the proffered guilty pleas and to correct the mis-advice he voiced during the second plea colloquy, there is a reasonable probability defendant ‘would not have pled guilty and would have insisted on going to trial on at least one of those offenses.” The panel remanded that matter for an evidentiary hearing.