The Appellate panel continued in relevant part: We have recognized the distinct roles of the trial judge and counsel, concluding a “judge’s statements may not be imputed to counsel. The judge is obliged to ascertain that a plea is entered voluntarily . . . . That obligation is related to, but distinct from the attorney’s obligation to render effective assistance.” State v. Blake, (App. Div. 2016). Indeed, during the plea cutoff status conference, the trial judge correctly stated he could not give defendant immigration advice. In any event, the judge only made defendant aware of the potential immigration consequences if defendant were convicted at trial; the judge did not discuss those consequences regarding the successful completion of PTI. The judge told defendant: “if you are found guilty of any of these charges . . . it may well and probably would, I would say almost certainly would, although I’m not giving you advice on immigration, have an effect on your status and I would expect would result in deportation.”
Obviously, we cannot speculate and conclusively say defendant would have been accepted into the PTI program had he made a timely application. The State repeatedly informed the trial court, defendant “certainly appears eligible to apply” to PTI based upon the degree of the charges. But on appeal, the State’s merits brief contains a footnote stating: “For the reasons discussed above, this Office would not accept defendant into PTI.” Those reasons included the nature of the charges, the extent to which defendant may pose a danger to others, the offenses were not “victimless,” and the harm to society by abandoning prosecution where, as here, the charges carry the Megan’s Law consequences of parole supervision for life and registration. Indeed, those factors bode against defendant’s admission into the PTI program but, because defendant never applied for PTI, the summary statement contained in the State’s footnote is not a formal rejection of defendant’s application.
The case will involve the expenditure of significant judicial resources that should have been avoided. If the defendant prevails in his petition for post-conviction relief, he will have his conviction vacated and will likely apply for PTI. The State has already indicated their inclination to reject his application. That will then lead to at least one additional appeal. The case is then likely to result in a jury trial since the defendant will have already amassed 180 days of jail credits and will have little to lose and much to gain.
