Monthly Archives: January 2012

New Court Advisement as to Immigration Consequences in NJ Municipal Courts

MEMORANDUM
Directive # 09-11

To: Assignment Judges
Presiding Judges-Municipal Courts
Municipal Court Judges
From: Glenn A. Grant
Subj: Informing Municipal Court Defendants of the Immigration
Consequences of Guilty Pleas
Date: December 28, 2011

This Directive promulgates procedures to be followed in the municipal courts
to inform defendants that a guilty plea to or conviction of certain
municipal court offenses may negatively affect their immigration status,
including possibly resulting in deportation. The Supreme Court approved
these procedures on the recommendation of the Conference of Presiding
Judges-Municipal Courts.

In State v. Nunez-Valdez, 200 N.J. 129, 131 (2009), the New Jersey Supreme
Court held that defense counsel, in failing to inform the defendant that
under federal law his conviction would mandate deportation, did not provide
effective assistance to the defendant. Similarly, in Padilla v. Kentucky,
____ U.S. ____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), the
United States Supreme Court held that the Sixth Amendment requires defense
counsel to provide affirmative, competent advice to a noncitizen defendant
regarding the immigration consequences of a guilty plea.

In 2011, the New Jersey Supreme Court addressed this constitutional
requirement in Superior Court criminal cases; see Directive #05-11
(“Criminal Plea Form – Question Regarding the Immigration Consequences of a
Guilty Plea”). Consistent with Nunez-Valdez, Padilla, and Directive #05-11,
this Directive addresses the same concerns in municipal court cases by
requiring municipal court judges (1) to inform defendants that a guilty plea
or a finding of guilt as to certain offenses may result in negative
immigration consequences and (2) to inform defendants that they have a right
to seek advice from an attorney regarding those potential consequences.
Procedures

A municipal court judge shall inform defendants of possible
immigration consequences and of their right to seek counsel on these matters
at three stages of the
court process: (A) as part of the court’s opening statement for each court
session; (B) at defendant’s first appearance; and (C) as part of the guilty
plea colloquy.

A. Opening Statement
The municipal court judge shall include the following language in the
opening statement for each municipal court session:

If you are not a United States citizen and
if you plead guilty to or are convicted of certain offenses heard in the
municipal court, including some motor vehicle offenses, it may result in
your being deported from the United States, or it may prevent you from being
re-admitted to the United States if you leave voluntarily, or it may prevent
you from ever becoming a naturalized American citizen. You have a right to
seek advice from an attorney about the effect a guilty plea will have on
your immigration status.

This language will be incorporated into each of the three model opening
statements that the Supreme Court adopted in 2008 – one model opening
statement for sessions handling criminal matters only, one for sessions
handling motor vehicle offenses only, and one for combined sessions.

B. First Appearance

At the first appearance proceeding, any defendant charged with the following
offenses shall be advised of the immigration consequences of a guilty plea:

(1) all disorderly or petty disorderly persons offenses;
(2) driving while intoxicated (N.J.S.A. 39:4-50; N.J.S.A. 39:4-50.14;
N.J.S.A. 39:3-10.13; N.J.S.A. 12:7-46);
(3) operating motor vehicle while in possession of a CDS
(N.J.S.A. 39:4-49.1).

The municipal court judge shall engage in the following colloquy with
defendants charged with the above-listed offenses at first appearance
proceeding:

If you are not a United States citizen and
if you plead guilty to or are convicted of certain offenses heard in the
municipal court, including some motor vehicle offenses, it may result in
your being deported from the United States, or it may prevent you from being
re-admitted to the United States if you leave voluntarily, or it may prevent
you from ever becoming a naturalized American citizen. Do you understand?

You have a right to seek advice from a
private attorney about the effect a guilty plea or conviction will have on
your immigration status. If you qualify for a court-appointed attorney, you
can speak to the public defender about the immigration consequences of your
plea. Do you understand?

The municipal court judge shall engage in this colloquy during the first
appearance for all defendants charged with any of the above-listed offenses,
regardless of the defendant’s name, appearance, or English proficiency.
This requirement is not intended to in any way limit the judge’s discretion
to engage in this same colloquy with other defendants who have been charged
with offenses other than those listed above.

C. Guilty Plea

Before accepting a guilty plea to any of the above-listed
offenses, the municipal court judge shall engage in the following colloquy
with the defendant:

(1) Are you a citizen of the United
States?

(If defendant answers “No” to question 1,
defendant must answer questions 2 through 6.)

(2) Do you understand that if you are
not a citizen of the United States, this guilty plea may result in your
removal from the United States and/or may stop you from being able to
legally enter or re-enter the United States?

(3) Do you understand that you have
the right to seek individualized advice from an attorney about the effect
your guilty plea may have on your immigration status?

(4) Have you discussed with an
attorney the potential immigration consequences of your plea?

(If defendant answers “No” to question 4,
defendant should next answer question 5. If defendant answers “Yes” to
question 4, defendant should next answer question 6.)

(5) Would you like the opportunity to
do so?

(6) Having been advised of the possible
immigration consequences and of your right to seek individualized advice on
your immigration consequences, do you still wish to plead guilty?

If during the plea colloquy an indigent defendant seeks the opportunity to
discuss with an attorney the potential immigration consequences of the plea
and the offense charged would result in a consequence of magnitude, the
court should adjourn the proceedings and appoint the municipal public
defender to represent defendant. The municipal court judge is under no
obligation to appoint additional separate counsel for an indigent defendant
to advise defendant on the immigration consequences of a plea.

Additionally, if during the plea colloquy an indigent defendant who is not
charged with an offense that would result in a consequence of magnitude
seeks the opportunity to discuss with an attorney the possible immigration
consequences of the plea, the court should adjourn the matter to give the
defendant the opportunity to do so.

Similarly, if during the plea colloquy a non-indigent defendant seeks the
opportunity to discuss with an attorney the possible immigration
consequences of the plea, whether or not there are possible consequences of
magnitude, the court should adjourn the matter to give the defendant the
opportunity to do so.

Finally, at no point in the proceedings should the municipal court judge
attempt to advise defendants on an individualized basis as to what the
actual immigration consequences of a particular plea might be. Both
Padilla, 130 S. Ct. at 1486, and Nunez-Valdez, 200 N.J. at 131, made it
clear that such individualized advice is the responsibility of counsel, not
the judge. As stated previously, the judge’s responsibility is limited to
informing defendants that a plea or a guilty finding may result in negative
immigration consequences and that defendants in that situation have the
right to seek advice from an attorney regarding the potential consequences.