Post Conviction Relief in New Jersey

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Lawful Permanent Residents that have been convicted of a serious crime are at risk of being deported from the United States and banned from ever coming back. Illegal immigrant and non-immigrant Visa holders may be precluded from ever getting a Green Card, and may be detained by the Immigration & Customs Enforcement (ICE) agents.

Under Federal immigration law, a crime is considered an "Aggravated Felony" if it involves fraud, intent to procure serious bodily injuries, possession of a weapon, or possession of a controlled substance, and the Court imposed a sentence of incarceration of 1 year or more. There is no waiver available for an immigrant convicted of an Aggravated Felony, and the exceptions to this rule are very limited.

Generally speaking, a "Crime Involving Moral Turpitude" (CIMT) is a crime whose essential elements involve fraud, larceny, or the intent to harm persons or things. A conviction can be considered a CIMT even is the Court did not impose a term of incarceration, and even if it is a convictions from a Municipal Court.

Under the rules governing the courts of the State of New Jersey, any person convicted of a crime can file a petition for Post Conviction Relief (PCR) with the Criminal Records Office.

New Jersey law allows convictees to challenge the validity of their conviction by means of a motion for PCR, which is the equivalent of a Writ of habeas corpus. The motion must contain a verified petition and cite the factual and legal grounds for the relief sought. It is important to note that not every trial mistake can be used as a basis of a PCR conviction in New Jersey.

Requirements for a PCR Motion in New Jersey

In New Jersey, motions for Post Conviction Relief are regulated by Rule 3:22.

Any convicted person who is seeking a petition for PCR on any grounds other than an illegal sentence, must file within five years of the original convictions, as stated in Court Rule 3:22-12.

A conviction may be vacated for many reasons, including:

  • Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
  • Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
  • Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law.

The petition shall be verified by the defendant and shall set forth with specificity the facts, upon which the claim for relief is based, the legal grounds of the complaint asserted and the particular relief sought.

The petition shall include the following information:

  1. the date, docket number and contents of the complaint upon which the conviction is based and the municipality where filed;
  2. the sentence or judgment complained of, the date it was imposed or entered, and the name of the municipal court judge then presiding;
  3. any appellate proceedings brought from the conviction, with copies of the appellate opinions attached;
  4. any prior post-conviction relief proceedings relating to the same conviction, including the date and nature of the claim and the date and nature of disposition, and whether an appeal was taken from those proceedings and, if so, the judgment on appeal;
  5. the name of counsel, if any, representing defendant in any prior proceeding relating to the conviction, and whether counsel was retained or assigned; and
  6. whether and where defendant is presently confined.
  7. A memorandum of law.

In addition, the moving papers in support of such an application shall include, if available, records related to the underlying conviction, including, but not limited to, copies of all complaints, applications for assignment of counsel, waiver forms and transcripts of the defendants first appearance, entry of guilty plea and all other municipal court proceedings related to the conviction sought to be challenged. The petitioner shall account for any unavailable records by way of written documentation from the municipal court administrator or the custodian of records, as the case may be.

If a Notice To Appear was served to you by the Federal Government because you plead guilty to a crime, you need to speak with a Criminal Immigration Attorney as soon as possible. If you had not been advised that your guilty plea would have resulted in removal proceedings against you, your criminal case could be reopened for ineffective assistance of counsel.

I am admitted to practice law in New York and New Jersey, including the respective District Courts and the U.S. Court of Appeals for the Second and Third Circuit. I have experience handling cases involving ineffective assistance of counsel, and I work hard for my clients to avoid that they get deported from the United States.

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