Post Conviction Relief
March 11, 2016, recent Win PCR, Superior Court, Hudson County. Attorney Sanzone wins PCR after first day of testimony, in which Hudson County Prosecutor concedes to PCR, and defendant's conviction is reversed. Defendant released from ICE custody
A motion for post-conviction relief ("PCR") can be filed within five years after a judgment of conviction is entered by the court. A motion for post-conviction relief in essence is an application by a defendant asking the court to reopen case based on a fundamental injustice in the conviction, or in the way the conviction was obtained, either on substantive due process or procedural due process grounds. In other words, if the defendant’s constitutional rights, either state or federal, were violated in such a substantial way as to make the conviction contrary to fundamental notions of justice. In most cases a PCR application is granted when the defendant received bad legal advice, or the attorney's professional legal services were of such poor quality that the defendant in essence was deprived of his or her constitutional right of effective assistance of counsel. In New Jersey it is possible for a defendant who can demonstrate that his legal counsel was deficient to win his PCR application.
In New Jersey the statute that governs such application can be found in N.J.R. 3:22-2. Although these motions are granted rarely by the court, in cases in which the collateral consequences are of great magnitude it might be worth while to pursue such a motion. Although not exclusively, this often arises in cases of immigration deportation in which the individual plead guilty to a crime on bad legal advise regarding the chances of being deported after the plea. In these cases INS moves to deport the defendant on the basis that he or she was convicted of an aggravated felony or crime of moral turpitude.
Normally, a PCR application must be filed within 5-years of the date of sentencing in the Superior Court, or Municipal Court, although there are exceptions to this rule.
One of the ways to attack a conviction is to show that the testimony of one of the State’s witness was false or perjured as to make the conviction a miscarriage of justice.
In the event that you have been convicted based on the sworn testimony of a police officer who was subsequently convicted for official misconduct, perjury, or any other crime, relating to his duties as a police officer there is a strong possibility that a conviction, primarily based on his or her testimony, could be reversed, and a new trial ordered. In that event, since the officer is a convicted felon the possibility of the prosecutor’s office pursuing a new trial is slim to none, if that officer’s testimony was essential to a conviction beyond a reasonable doubt.
Accordingly, I have prepared a list of convicted, indicted, or charged police officers charged with crimes while police officers.
This list of convicted police officers in continually being updated and if you know of any not listed here I would appreciate your input. In the event that any of the names listed below have received an expungement of their criminal records, been acquitted, or charges dismissed, please let me know and I will remove the name immediately.
This List Has Been Deleted and No Decision Has Been Made as To Whether It Will Be Continued in the Future.
Post-Conviction Relief and Ineffective Assistance of Counsel Cases
The United States Supreme Court ruled in Moncrieffe v. Holder, in regards to a non-citizen defendant, if that defendant's state court's marijuana distribution involves only a small amount of marijuana in which their was no remuneration for the sale, the defendant is not considered under federal law to be an aggravated felon. Under federal law an "aggravated felon", is not only deportable under 8 U.S.C. § 1227(a)(2)(A)(iii), but also ineligible for discretionary relief. However, this case does not give complete relief for similarly situated defendants since these individuals are still deplorable as a controlled substance offender (crime of moral turpitude). However, under that case the defendant could seek discretionary relief.
The United States Supreme Court ruled on February 20, 2013, in the case Chaidez v. United States that the rule set forth in Padilla v. Kentucky is not retroactive and only covers case that are still in the pipeline and not final, either on direct appeal or post-conviction relief. The Supreme Court in essence affirms the New Jersey rule set forth in State v. Nunez-Valdez, 200 N.J. 129 (2009) In other words defendants who were not informed of the immigration consequences, to wit, that they would be deported by pleading to a felony, cannot assert ineffective assistance of counsel for cases that are final. For an interesting review of a post-conviction relief case in which attorney Sanzone represented a defendant not advised by the public defender that he would be deported as a non-citizen see the recent case decided on February 7, 2013, in the case State v. Moses Brewster, which denied Mr. Brewster post-conviction relief petition based on ineffective assistance of counsel. With this case it appears that defendants deported or held in immigration facilities and attempted to withdraw their plea based on ineffective assistance of counsel are now out of luck and the final nail in the coffin for these cases as been heard. However, non-citizens know matter how long in this country must understand that a plea to an aggravated felony or a crime of moral turpitude will surely results in automatic and quick deportation of the country of their citizenship. Defendants must be aware of this. It is my experience that in some cases a non-citizen might actually get a better results than a non-citizen because of the fact that the prosecutor knows that the non-citizen will go to trial because he or she has little to lose, and consequently get a better plea offer, or plea to a non-deportable offense.
