Appellate Division, New Jersey
This was a wonderful win. Defendant, an illegal immigrant, is married with three young children one of whom has spina bifida. When he first came to New Jersey he found out that he could not get a driver’s license because you had to be a legal resident alien in order to get one. [N.J. now permits even illegal aliens to get driver's licenses] He was told by a friend that he knew that X would be able to get him a license. He paid the broker (X) $2000. The broker took him and others to a Motor Vehicle Commission office where the broker paid the examiner to give licenses to undocumented immigrants. Defendant was arrested shortly after leaving the Motor Vehicle Commission office along with the broker and others who had paid the broker for a license.
He was indicted for conspiracy to commit official misconduct, a 2nd degree crime which requires prison. His then attorney was able to reduce the charges to third-degree conspiracy and defendant was sentenced to probation.
Under the immigration law the conviction made him subject to deportation despite one of his children having spina bifida.
I was called in by the immigration attorney to see what could be done. It turned out that his attorney had not applied defendant for pretrial intervention, which is a once in a lifetime chance to avoid criminal charges without a conviction. PTI, as it's commonly known, is not a conviction under the immigration laws. However, because he pled guilty to a conspiracy of official misconduct – that is he conspired with the examiner at the Motor Vehicle Commission to get a drivers license -he was not eligible to receive pretrial intervention.
I was able to show that defendant was not in a conspiracy to commit official misconduct. Conspiracies are are structured as either a chain, or a wheel and spoke; I was able to show that the conspiracy, or accomplice liability was between defendant and the broker, not defendant, the broker, and the employee, the examiner for the Motor Vehicle Commission. As a result he was actually able to apply for and successfully enter pretrial intervention which would prevent him from having a conviction
I brought this post conviction relief motion before the trial judge. She denied the motion to vacate the conviction stating that it was out of time and disagreeing with my other two points. I argued that this motion was timely. The Appellate Division said the petition for postconviction relief was timely since defendant had only recently learned that his lawyer had not applied for pretrial intervention. They agreed that defendant was not in a chain conspiracy; i.e. he only conspired with the broker, not with anyone else. It’s a nice feeling knowing that I had saved the father of this family from deportation. It’s also a nice feeling knowing that the trial judge was found wanting on all three bases for denying the motion.