PTI and Immigration Consequences (Part 2)

The Appellate Division continued in relevant part: In addition to his own certified statements supporting his PCR petition, defendant submitted the certifications of his present immigration counsel and PCR counsel. Those sworn statements expound upon the trial record. For example, trial counsel told the judge on the first day of trial: “I informed [defendant] about the immigration consequences, in that I am not an immigration attorney. [Defendant] did inform me that he did speak to an immigration attorney regarding the consequences of deportation.” Defendant also told the trial judge he had spoken with an immigration attorney.

But, defendant’s certification in support of his PCR petition explains he was referring to the first immigration attorney who did not provide immigration advice about his criminal charges; instead she referred defendant to trial counsel. Although the certifications of PCR counsel and defendant’s present immigration counsel contain hearsay statements about their conversations with trial counsel and the first immigration attorney, they corroborate defendant’s prima facie claims.

We conclude an evidentiary hearing was necessary to assess credibility and further develop the facts underlying the advice rendered to defendant concerning the immigration consequences of PTI. Those conversations between defendant and his trial counsel and first immigration attorney are not part of the record. R. 3:22-10(b). Accordingly, defendant has set forth prima facie showing of counsel’s deficient performance under the first Strickland prong. 466 U.S. at 687; see also Padilla, 599 U.S. at 374.

Turning to the second prong of Strickland, we disagree with the PCR judge that defendant was unable to demonstrate prejudice. Relevant here, the PCR judge determined the record belied defendant’s claim he was unaware of the removal consequences of his conviction because the trial judge had informed defendant he would likely be deported. The judge also found defendant’s repeated assertions of innocence precluded PTI as a viable option.

The statement that an assertion of innocence precludes PTI is incorrect. Failure to accept responsibility is a factor that can be considered in evaluating a PTI application. However, an admission is not required.