The 2009, New Jersey’s Supreme Court concluded that the failure to advise a resident alien that a criminal conviction could cause deportation was sufficient to allow the resident alien to vacate the guilty plea. A similar decision was rendered by the United States Supreme Court a year later, in a case titled Padilla v. Kentucky.  Recently, an appellate panel in New Jersey analyzed a similar issue with a special wrinkle.

In that case, defendant, along with another, was arrested and prosecuted for the sale of approximately $7,500 of CDS. The indictment charged defendant with first-degree distribution of CDS and a third-degree distribution of CDS in a school zone. Ultimately, the government offered a plea arrangement that required defendant to plead to the first-degree distribution charge with a 10 year term of imprisonment and 2 ½ year period of parole ineligibility. During the plea proceeding , the trial court specifically advise defendant that a conviction could cause deportation, which was an issue specifically covered by the plea form signed by the defendant in his trial lawyer's office the night before.

Thereafter, defendant’s sentence was deferred because of a promise to cooperate. Although defendant’s cooperation was not productive, the government ultimately agreed to reduce his parole disqualifier by one year because of his good faith effort.  Later, defendant filed a post-conviction release application contending that he had not received sufficient instructions and information about the prospects of deportation, given his commitment to cooperate with the government.  During the plenary hearing, defendant’s PCR’s lawyer received testimony from defendant’s trial lawyer that he believed that defendant’s cooperation would be a factor to be considered by the federal government during the  deportation proceeding. The appellate panel determined that this was erroneous advice and allow defendant to vacate his plea.