This is a slideshow from a seminar I conducted with colleagues Michele Alcalde, Esq., and Eugene Wishnic, Esq., for the Middlesex County Bar Association in 2012. The seminar was a primer on issues that criminal defense attorneys in New Jersey need to be aware of before having their non-US Citizen clients plead guilty in municipal court. In some cases, defendants may unknowingly plead guilty to offenses that render them deportable under our immigration laws. Please note that the materials contained herein are not intended to serve as legal advice.

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Immigration Consequences of
New Jersey Municipal Court
Convictions
MCBA CLE SEMINAR
October 22, 2012
PARIS LEE, ESQ.
Tel: (732) 516-1717
MICHELE ALCALDE, ESQ.
Tel: (973) 405-1522
EUGENE WISHNIC, ESQ.
Tel: (732) 448-1700
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WHO IS AT RISK OF REMOVAL:
1. Lawful Permanent Resident (green
card holder)
2. Undocumented Status (entered
without inspection)
3. Refugee or Asylee
4. Non-immigrant Visa holder (such as a
student visa)
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Client Interview Information:
► contact information
► referral source
► charge/court information
► missed court dates/warrants/suspensions
► prior record
► pedigree: DOB/SS#/DL/immigration status/family/job
► what happened – develop defenses
► admissions/statements to police
► witnesses/co-defendants
► potential penalties/how you can help
► your fee/scope of representation
► advisements to client
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Why Ask Pedigree Information?
► For Mitigation Purposes – family/employment
► To Identify Special Situations
► Immigration Concerns
► Public Employee Concerns (2C:51-2)
* Please refer to the AG Guidelines re: Waiver of Forfeiture of Public
Office Handout
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What Constitutes a Conviction?
1. Formal judgment of guilt entered by a court; or
2. If adjudication of guilt has been withheld, where:
a. A judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilt; and
b. The judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.
See INA § 101(a)(48)(A).
NOTE: Conviction has to be effective after September 30, 1996
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The Consequences of a Conviction
for Your Client
► REMOVAL (Deportation): Forcible removal from the United States
and the imposition of a legal bar from returning to the US for a
certain period of time (INA §237(a) [8 USC 1227 (a)]).
► INADMISSABILITY: Denial of re-entry to the United States
attempting to return to the US from abroad (INA §212(a) [8 USC
1182])
► DETENTION: Detention in federal custody pending a deportation
hearing (INA §236 [8 USC 1226]).
NOTE: While any or all of the three consequences set out here can flow from criminal
activity by a client who is a non-citizen, the consequence that most concerns criminal
defense lawyers is removal (deportation). Most crime-related deportation grounds
require a “conviction” to trigger a basis for removal.
**See NJ Municipal Court Directive #09-11
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CIMT & Petty Offense Exception:
PETTY OFFENSE EXCEPTION:
For one Crime Involving Moral Turpitude if
maximum possible penalty did not exceed
one year of imprisonment and actual penalty
did not exceed six months of imprisonment
EXAMPLE: Single disorderly persons offense of
shoplifting conviction with 90 day sentence
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Immigration Consequences of a
Conviction for Your Client:
► 2C: Offenses with Potential Immigration Consequences
 Drugs, Assault, Shoplifting, Criminal Trespass, Prostitution, Theft, Lewdness
► Title 39 Offenses with Potential Immigration Consequences
 DWI and DWS offenses where there is jail time
If you do not practice Immigration Law you should
advise your client to consult with Immigration
counsel
Pursuant to NJ Municipal Courts Directive #09-11
– the Court will generally permit adjournments
for this purpose
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PLEA BARGAINING:
PRACTICAL APPLICATIONS
► Disorderly Persons Charges (DP’s)
 Up to Six Months County Jail
 Up to $1,000 Fine
► Petty Disorderly Persons Charges (PDP’s)
 Up to Thirty Days Jail
 Up to $500 Fine
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PLEA BARGAINING RESTRICTIONS:
► Chapter 35 & 36 of the Criminal Code (2C)
► 2C:35-10(a)4 Possession of Marijuana/Hash
► 2C:35-10(b) Under the Influence of CDS
► 2C:36-2 Paraphernalia
► Plea bargaining is prohibited for Chapter 35 & 36 charges listed above,
except that if Defendant pleads to one charge, the others arising out of
the same factual transaction may be dismissed on motion of
prosecutor
► Notwithstanding plea restrictions, prosecutor may always move to
amend or dismiss any charge in the interest of justice where the proofs
are unlikely to support a conviction
► Show weaknesses in State’s case
 File Motions!
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SECTION 36 CONDITIONAL
DISCHARGE:
► What is a Section 36?
 This is a diversionary program that will result in a
dismissal of the charges if the participant complies with
all conditions
 and is not rearrested while in the program
 The fines are approximately $800.
 The 6 month minimum probation is usually
unsupervised.
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WHO CAN GET SECTION 36?
► Available to first time offenders
► For Chapter 35 & 36 Drug Charges
How do you get a Section 36?
► Get prosecutor’s consent
► Submit $75 application fee & application
► Appear in court for formal entry on another date after
approval granted by probation
► Upon completion of program, dismissal on the record
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SHOPLIFTING – 2C:20-11
► Mandatory Minimum of 90 Days Jail for 3rd and Subsequent Offenses
► Try to get a deal to a different offense, such as a borough ordinance,
trespassing, disorderly conduct, theft
► Ask for SLAP (Sheriff’s Labor Assistance Program)
► Juvenile shoplifting offenses do NOT count as priors for enhanced
penalties
► Civil Penalty N.J.S. 2A:61C-1 ($150 civil penalty paid to retailer) – may
be able to get retailer to agree to dismissal
► Be careful of local plea bargaining restriction, particularly in “mall
towns” – Paramus, Wayne, Clifton – where they won’t usually plea
bargain shoplifting
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14. SOME COMMON TRAFFIC
OFFENSES:
► Driving While Suspended 39:3-40
 penalties are enhanced with multiple offenses, including increased fines and jail
 2nd offense: 1-5 days jail
 3rd offense: mandatory 10 days jail
 2C:40-26 Operating Motor Vehicle During Period of License Suspension – 4th degree
► There are additional penalties if defendant was suspended for
DWI/refusal, no insurance, had an accident causing bodily injury, was
in a school zone
► Possible license suspension up to six months for all levels of this
charge
► Get charge amended: 39:3-10 (expired license) – amend to the section
for previously licensed drivers
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* Please refer to NJMVC Point Schedule Handout

15. 2C:40-26 DWS 4TH DEGREE:
►Suspended for 1st offense DWI/Refusal and
client gets 2nd offense DWS while driving
during the suspension term for DWI/Refusal
►Suspended for 2nd offense DWI/Refusal and
client gets 1st offense DWS during the
suspension term of DWI/Refusal conviction
►Mandatory minimum 180 jail sentence
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16. DRIVING WITHOUT INSURANCE
39:6B-1
► 1st offense:
 one year mandatory license suspension
 $300-1000
 community service
► Subsequent offense:
 mandatory fourteen days jail
 mandatory two year suspension
 up to $5,000 fine
 30 days community service
► Amend to 39:3-29 failure to exhibit documents (and bring the insurance card
to court)
► No insurance card? See State v. Hochman, 188 N.J. Super. 382 State must
prove that defendant's insurance was lawfully cancelled
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17. LEAVING THE SCENE OF ACCIDENT:
►N.J.S.A. 39:4-129 property damage only:
 First offense - $200 to $400 fine
 Up to 30 day jail sentence
 6 month suspension of driving privileges
►Subsequent Offense:
 $400-600 fine
 30 – 90 jail sentence
 1 year suspension of driving privileges
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18. LEAVING THE SCENE OF ACCIDENT:
►With Personal Injury:
 $2,500 to $5,000 fine
 Jail time of 180 days of the accident resulted in
death or injury to someone other than Driver
 DL Suspension of 1 year for a first offense
 Permanent DL revocation for a subsequent
offense
 Serious bodily injury is a 3rd degree crime -
2C:12-1.1
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Analyzing Your Client’s Conviction:
FOR POST CONVICTION RELIEF PURPOSES
Critical to get a copy of the
criminal records, particularly:
► Judgment of Conviction (original raised seal)
► Plea form (or jury instructions if trial)
► Charging document (original/dismissed and
amended)
► Plea and Sentencing Hearing Transcripts
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Criminal Court to Immigration Court
ARREST ► ICE DETAINER ► BOND ELIGIBLE?
CONVICTION ► RELEASE ► 48 HOUR RULE
ICE CUSTODY ► NTA ► ICE BOND?
IMMIGRATION COURT
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21. For More Information
Contact us at:
Lee and Garasia, LLC
190 Route 27
Edison, NJ 08820
732-516-1717
http://www.njimmigrationattorney.com
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