August 19, 2009

The New Jersey Supreme Court recently held in the case of State v. Nunez-Smith, that if a defendant is misinformed about immigration consequences of pleading guilty to criminal charges (which may result in deportation), said guilty plea may be withdrawn. This decision will have clear and far reaching implications for the state and criminal defense attorneys alike.

In State v. Nunez-Smith the defendant, a native of the Dominican Republic who did not speak English, pled guilty to fourth degree sexual contact. Defendant alleges that his attorney advised him that deportation was unlikely however, after the guilty plea, the federal government started deportation proceedings, and defendant was deported. Thereafter defendant filed a motion in Camden County Superior Court for post-conviction relief claiming that he was advised by counsel that he would not be deported. Defendant also claimed that his attorney never advised him that question 17(b) of the guilty plea form he signed asked if he understood that he may be deported if he pled guilty. The Defendant claimed that he would not have accepted the guilty plea if he had known that he would be deported.

With this ruling, the Supreme Court is directing that defendants must receive notice that deportation is a potential consequence of a guildty plea before a defendant can knowingly enter into such plea. If a defendant is not properly advised of the potential for deportation, the guilty plea will be vacated. Thus, this holding imposes burden on counsel to ensure that criminal defendants are fully aware of the consequence of accepting and entering into plea agreements. Notably, the Supreme Court also held that the plea form used in this case be revised to make clear to defendants, including those who do not speak English, that deportation will occur for crimes considered aggravated felonies.

Irene N. Komandis is an associate of Hill Wallack LLP. She is a member of the Litigation Division and the Trial & Insurance Defense and Employment & Labor Law Practice Groups. Ms. Komandis concentrates her practice in the representation of employers, management, businesses, and individuals for a wide variety of claims stemming from wrongful discharge, discrimination, harassment, breach of contract and violations.