Date: 06-02-2016

Case Style: STATE OF NEW JERSEY VS. SAURABH KOTHARI

Case Number: A-1009-14T3

Judge: Francis Vernoia

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Mary Eva Colalillo, Camden County Prosecutor, Jason Magid, Assistant Prosecutor

Defendant's Attorney: Zucker Steinberg & Wixted, attorneys for appellant - Jeffrey C. Zucker, Dennis Wixted, David W. Sufrin, Saul J. Steinberg, Derek A. DeCosmo

Description: We discern the salient facts and procedural history from
the record. Defendant was born in India, was admitted to the
United States in 1998, and is not a citizen of the United
States. On October 26, 2010, defendant was charged in various
summonses and a warrant with possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1);
manufacturing, distribution and/or dispensing heroin/cocaine
less than one-half ounce, N.J.S.A. 2C:35-5(b)(3); distributing,
dispensing, or possessing with intent to distribute a controlled
dangerous substance within 1000 feet of a school zone, N.J.S.A.
2C:35-7; use or possession with intent to use drug
paraphernalia, N.J.S.A. 2C:36-2; and possession of a weapon
while committing a controlled dangerous substance crime,
N.J.S.A. 2C:39-4.1(a).
On April 27, 2011, defendant waived his right to a grand
jury, agreed to proceed by way of an accusation, and pled guilty
to third-degree possession with intent to distribute an
imitation controlled dangerous substance, N.J.S.A. 2C:35-11(a),
pursuant to a negotiated plea agreement. The State agreed to
recommend that defendant be sentenced to a three-year
probationary term conditioned on defendant serving a 270-day
custodial term, which the State agreed could be served under
A-1009-14T3 3
house arrest. Under the plea agreement, the October 26, 2010
summonses and warrant were to be dismissed at defendant's
sentencing.
During the plea proceeding, defendant testified that he
reviewed the discovery materials the State provided. He stated
that he reviewed the plea form with his counsel, understood all
of the questions on the form, answered all of the questions
truthfully, and signed or initialed each page of the form.
Defendant testified that he was satisfied with his attorney's
services.
Defendant provided a factual basis for his guilty plea,
testifying that on October 26, 2010, law enforcement officers
entered his home with a search warrant and found a substance
which they believed to be cocaine, but which was later
determined to be imitation CDS. Defendant testified he
possessed the imitation CDS knowing that it was illegal to do
so, and that he intended to give it to a friend. The court
found there was an adequate factual basis for defendant's plea
and that he entered it knowingly and voluntarily.
On July 11, 2011, defendant was sentenced to a three-year
probationary term, conditioned upon 270 days of home
confinement, and payment of fines and penalties. Defendant was
ordered to forfeit property which had been seized by law
A-1009-14T3 4
enforcement during the execution of the search warrant.
Defendant did not file a direct appeal.
In October 2011, the United States Department of Homeland
Security commenced proceedings against defendant, charging that
he was subject to removal1 from the United States under 8
U.S.C.A. § 1227(a)(2)(A)(ii) because he had been "convicted of
two or more crimes involving moral turpitude, not arising out of
a single scheme of criminal misconduct." Defendant was
convicted of simple assault in Pennsylvania in 2005. The second
conviction cited as a basis for defendant's removal was his 2011
Camden County conviction for possession with intent to
distribute imitation CDS.
On April 3, 2013, defendant filed a PCR petition claiming
his plea counsel was ineffective and alleging the factual basis
for his plea did not establish the elements of the crime. He
asserted that his plea counsel failed to advise him of the
immigration consequences of his plea. In a July 1, 2014 order,
the court granted an evidentiary hearing limited to defendant's
claim that counsel was ineffective by failing to advise him of
the possibility of deportation as a result of his guilty plea.
1 "Removal" is the current statutory term for what was previously referred to as "deportation." State v. Gaitan, 209 N.J. 339, 345 n.1 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013)
A-1009-14T3 5
Steven Barsamian, an attorney who practices immigration law
and represents defendant in the removal proceedings, was
defendant's first witness at the hearing. Barsamian explained
that the removal charges against defendant are based on his two
convictions for crimes of moral turpitude and that a crime of
moral turpitude "is one that in and of itself is morally wrong."
Prior to his representation of defendant, Barsamian had
never represented anyone charged in a removal proceeding with an
imitation substance offense and was required to perform research
to determine if the offense constituted a crime of moral
turpitude under 8 U.S.C.A. § 1227(a)(2)(A)(ii). He opined that
the offense was a crime of moral turpitude because of what he
considered to be "the evil intent . . . on distributing what
[defendant] thought may have been a drug." Barsamian testified,
however, that there is no list of enumerated offenses that
delineate crimes of moral turpitude under 8 U.S.C.A.
§ 1227(a)(2)(A)(ii) and that it is "a broad umbrella."
Defendant also testified at the hearing. He retained plea
counsel after his arrest on October 26, 2011, and met with plea
counsel a few times in the county jail and one time at counsel's
office prior to entering into the plea agreement. His mother
was present at the meeting at plea counsel's office.
A-1009-14T3 6
Defendant told plea counsel that he was from India, was a
"green card holder," and had a prior conviction for simple
assault in Pennsylvania. Defendant said that plea counsel never
discussed with him the potential immigration consequences of his
plea and did not inform him that his convictions for simple
assault and possession of imitation CDS with intent to
distribute would result in deportation proceedings. Defendant
said that if he had been aware of the immigration consequences,
he would not have accepted the plea arrangement. Defendant
testified that counsel told him that he did not have to worry
about being deported.
Defendant also testified that prior to his plea proceeding
he never spoke to an immigration attorney about the immigration
consequences of his plea agreement. On cross-examination he
acknowledged that he knew Sujeet Mohanty, an immigration
attorney and a friend of his mother, but denied speaking to
Mohanty about the immigration consequences of his plea prior to
the plea proceeding. Defendant also stated that he did not
review discovery with plea counsel and did not know that the
substance the police seized from his house was not cocaine until
after he was sentenced.
According to defendant, he reviewed the plea form with his
counsel for only two minutes prior to the plea proceeding.
A-1009-14T3 7
Defendant testified, however, that the answers on the plea form
accurately reflected his responses, including the answers to
question 17, which reflected that defendant was not a United
States citizen, and that he understood that he may be deported
by virtue of his plea of guilty, he would be subject to
deportation/removal if his plea of guilty was to a crime
considered an "aggravated felony" under federal law, and he had
the right to seek legal advice on his immigration status prior
to entering a plea of guilty. Defendant stated he did "not
really" understand the questions he answered relating to
immigration, and he trusted his lawyer.
Defendant's plea counsel was called as a witness by the
State and testified he met with defendant and his mother on more
than one occasion in his office and that defendant advised him
that he had a prior conviction in Pennsylvania. Plea counsel
recalled that defendant and his mother expressed concern over
the possibility of deportation and defendant's mother stated
that defendant's green card had expired.
Plea counsel acknowledged that he knew "virtually nothing"
about immigration law, did not know if possession with intent to
distribute imitation CDS was a crime of moral turpitude, and did
not know that, because of defendant's guilty plea, defendant
A-1009-14T3 8
might be deemed to have two convictions for crimes of moral
turpitude that could result in his removal.
Plea counsel had been provided with Mohanty's business card
and understood Mohanty was defendant's attorney and was
simultaneously representing him. Plea counsel spoke with
Mohanty multiple times about defendant's charges and the effect
they might have on his immigration status. He could not
remember if he spoke to Mohanty about defendant pleading guilty
to possession with intent to distribute imitation CDS, and never
spoke to Mohanty about defendant's final plea agreement or
inquired about the immigration consequences of the agreement.
Plea counsel did not know if defendant spoke to Mohanty
prior to entering the guilty plea. Plea counsel testified he
never told defendant that he did not have to worry about being
deported. Plea counsel met with defendant prior to the plea
proceeding, reviewed each question on the plea form with
defendant, and recorded the answers provided by defendant on the
form.
Mohanty testified that he is an immigration attorney and is
good friends with defendant's parents. Mohanty was approached
by defendant and his parents after defendant's arrest, but did
not provide advice directly to defendant regarding the criminal
charges because Mohanty learned that defendant was already
A-1009-14T3 9
represented by plea counsel. Mohanty represented defendant's
parents in their attempt to obtain the return of property that
was seized by the police during the search of their home that
resulted in defendant's charges.
Mohanty never spoke directly to defendant about the
criminal charges or plea agreement. He was, however, contacted
by plea counsel and spoke with plea counsel two or three times
about defendant's immigration issues, including once during a
meeting at the Camden County Courthouse. Mohanty told plea
counsel that if defendant was convicted of the original charges
against him, he would be deported from the country. He also
advised plea counsel that defendant's "new" charge constituted a
crime of moral turpitude but did not identify the "new" charge
or the manner in which he reached the conclusion.
On September 8, 2014, the court rendered an oral decision
and entered an order denying defendant's PCR petition. The
court found that defendant was not a credible witness because
portions of his testimony and statements in his affidavit were
contradicted by his testimony during the plea proceeding. The
court found that the testimony of plea counsel, Barsamian, and
Mohanty was credible.
The court found that defendant and his mother met with plea
counsel on at least one occasion in counsel's office, discussed
A-1009-14T3 10
defendant's immigration status, and defendant was aware there
were immigration consequences from his plea. The court also
found that either defendant or his mother provided Mohanty's
contact information to plea counsel because defendant's mother
had retained Mohanty, an immigration attorney, to address the
forfeiture issues. The court further found that defendant had
access to Mohanty and could have spoken to him regarding
immigration issues at any time.
The court found no credible evidence that plea counsel
provided incorrect advice to defendant regarding the immigration
consequences of his plea. The court also found that defendant
had access to an immigration attorney, Mohanty, and was aware
there were potential immigration consequences from his plea, but
found it incredible that defendant would not have spoken to
Mohanty or have his mother speak to Mohanty about the
consequences.
The court noted that plea counsel did not have immigration
expertise and concluded that plea counsel would have so advised
defendant. The court found that defendant's responses to
question 17 on the plea form confirmed that he had been advised
by plea counsel he may be deported by virtue of his plea and
understood he had a right to confer with immigration counsel.
A-1009-14T3 11
Based upon its findings of fact, the court concluded that
plea counsel did not misadvise defendant regarding the
immigration consequences of his plea and fulfilled his
constitutional obligation to provide effective assistance of
counsel by informing defendant that he may be deported as a
result of his plea and of his right to confer with immigration
counsel. The court also rejected defendant's contention that
there was an inadequate factual basis for his guilty plea.2 This
appeal followed.
On appeal, defendant argues:
POINT I:
[The court] erred in not finding ineffective assistance because [plea counsel] neither identified deportation consequences for his client nor referred him to an immigration attorney in compliance with State v. Gaitan.
POINT II:
[The court] erred in [not] finding ineffective assistance under Padilla v. Kentucky because [plea counsel] failed to thoroughly investigate Mr. Kothari's immigration status.
2 Defendant does not challenge on appeal the PCR court's rejection of his contention that there was an inadequate factual basis for his plea of guilty to possession with intent to distribute imitation CDS, N.J.S.A. 2C:35-11(a). We therefore do not consider the issue.
A-1009-14T3 12
II.
We review the legal conclusions of a PCR court and mixed
questions of fact and law under the de novo standard of review.
State Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where an
evidentiary hearing has been held, we accord deference "[i]n
reviewing a PCR court's factual findings based on live
testimony" and should not disturb "the PCR court's findings that
are supported by sufficient credible evidence in the record."
State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.
Nash, 212 N.J. 518, 540 (2013)).
The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution guarantee
that a defendant in a criminal proceeding has the right to the
assistance of counsel in his defense. The right to counsel
includes "the right to the effective assistance of counsel."
Nash, supra, 212 N.J. at 541 (quoting Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692
(1984)).
In Strickland, the Court established a two-part test, later
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), to determine whether a defendant has been deprived of
the effective assistance of counsel. Strickland, supra, 466 U.S.
A-1009-14T3 13
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the
first prong of the Strickland standard, a petitioner must show
that counsel's performance was deficient. It must be
demonstrated that counsel's handling of the matter "fell below
an objective standard of reasonableness" and that "counsel made
errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment."
Ibid.
Under the second prong of the Strickland standard, a
defendant "must show that the deficient performance prejudiced
the defense." Ibid. There must be a "reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698. In the context of a PCR petition
challenging a guilty plea based on the ineffective assistance of
counsel, the second prong is established when the defendant
demonstrates a "reasonable probability that, but for counsel's
errors, [the defendant] would not have pled guilty and would
have insisted on going to trial." State v. Nuñez-Valdéz, 200
N.J. 129, 139 (2009) (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)).
A petitioner must establish both prongs of the Strickland
standard in order to obtain a reversal of the challenged
A-1009-14T3 14
conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at
2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52; Nash,
supra, 212 N.J. at 542. "With respect to both prongs of the
Strickland test, a defendant asserting ineffective assistance of
counsel on PCR bears the burden of proving his or her right to
relief by a preponderance of the evidence." Gaitan, supra, 209
N.J. at 350 (2012) (citing State v. Echols, 199 N.J. 344, 357
(2009); State v. Goodwin, 173 N.J. 583, 593 (2002)). A failure
to satisfy either prong of the Strickland standard requires the
denial of a petition for PCR. Strickland, supra, 466 U.S. at
700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
In the context of plea agreements of non-citizen
defendants, the performance of plea counsel is deficient under
the first prong of the Strickland standard where counsel
"provides false or misleading information concerning the
deportation consequences of a plea of guilt." Nuñez-Valdéz,
supra, 200 N.J. at 138. In addition, in Padilla v. Kentucky,
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), the
United States Supreme Court held that plea counsel "is required
to address, in some manner, the risk of immigration consequences
of a non-citizen defendant's guilty plea."3 State v. Blake, 444
3 The holding in Padilla applied prospectively, and is applicable to defendant's plea here. Gaitan, supra, 209 N.J. at 380.
A-1009-14T3 15
N.J. Super. 285, 295 (App. Div. 2016) (citing Padilla, supra,
559 U.S. at 367, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294). The
Padilla Court created a "two-tiered analytical structure for
assessing the duty of effective assistance," which "depend[s] on
the certainty of immigration consequences flowing from the
plea." Gaitan, supra, 209 N.J. at 356, 380.
"[I]mmigration law is often complex, and the consequences
of a conviction are often far from clear." Blake, supra, 444
N.J. Super. at 295 (citing Padilla, supra, 559 U.S. at 369, 130
S. Ct. at 1483, 176 L. Ed. 2d at 295-96). In circumstances
where "the terms of the relevant immigration statute are
succinct, clear, and explicit in defining the removal
consequence[s]," then an attorney is obliged to be "equally
clear." Padilla, supra, 559 U.S. at 368-69, 130 S. Ct. at 1483,
176 L. Ed. 2d at 295-96. Counsel's failure "to point out to a
noncitizen client that he or she is pleading to a mandatorily
removable offense," constitutes "deficient performance of
counsel." Blake, supra, 444 N.J. Super. 285 at 296 (quoting
Gaitan, supra, 209 N.J. at 380).
Where "the deportation consequences of a particular plea
are unclear or uncertain . . . a criminal defense attorney need
do no more than advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration consequences."
A-1009-14T3 16
Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed.
2d at 296. Where "removal is not 'mandated' in the sense that a
state offense is not identified on published lists of offenses
equating to aggravated felonies or like mandatorily removable
offenses, counsel must highlight for noncitizen clients that
entering a guilty plea will place them at risk of removal" and
advise clients to seek immigration advice. Gaitan, supra, 209
N.J. at 381; see also Blake, supra, 444 N.J. Super. at 301
("[W]here the law is 'highly complex and not capable of being
reduced to any clear, succinct, or certain answer,' an attorney
may fulfill his duty by conveying to his client that the
immigration consequences of his plea are uncertain." (quoting
State v. Telford, 420 N.J. Super. 465, 469 (App. Div. 2011),
certif. denied, 209 N.J. 595 (2012))).
We are convinced that defendant failed to sustain his
burden of proving by a preponderance of the evidence that his
plea counsel's performance was deficient under the first prong
of the Strickland standard. The credible evidence in the record
supports the court's finding that plea counsel did not provide
misleading advice to defendant regarding the immigration
A-1009-14T3 17
consequences of his plea.4 Nuñez-Valdéz, supra, 200 N.J. at 139
40.
Moreover, the credible evidence supports the court's
conclusion that PCR counsel provided constitutionally effective
assistance by advising defendant that he may be deported and
that he had the opportunity to confer with immigration counsel.
Defendant testified that he conferred with PCR counsel prior to
the entry of his plea and provided affirmative responses to the
questions on the plea form confirming that he had been advised
that he may be deported and had the opportunity to confer with
immigration counsel.
Defendant's deportation proceedings are based on the charge
that he was "convicted of two or more crimes involving moral
turpitude." 8 U.S.C.A. § 1227(a)(2)(A)(ii). The crime of
possession with intent to distribute imitation CDS, N.J.S.A.
2C:35-11(a), is not identified in the statute as a "crime of
moral turpitude" and is not on any published list defining it as
a crime of moral turpitude under 8 U.S.C.A. § 1227(a)(2)(A)(ii).
4 PCR counsel denied advising defendant that he would not be deported. Although defendant testified to the contrary, we defer to the PCR court's determination that PCR counsel's testimony was credible and defendant's testimony was not. See State v. L.A., 433 N.J. Super. 1, 17 (App. Div. 2013) ("When reviewing a PCR court's determination, we generally defer to the court's factual findings, including credibility determinations, if they are supported by 'adequate, substantial and credible evidence.'" (quoting Harris, supra, 181 N.J. at 415)).
A-1009-14T3 18
Indeed, defendant's immigration counsel Barsamian testified that
he has practiced immigration law since 1976, but was required to
perform research to determine if an offense under N.J.S.A.
2C:35-11(a) might properly be deemed a crime of moral turpitude.5
In Telford, supra, 420 N.J. Super. at 467, a noncitizen
defendant pled guilty to third-degree endangering the welfare of
a child and faced deportation. We affirmed the denial of the
defendant's ineffective assistance of counsel claim alleging
that his attorney was ineffective for "only advis[ing] that he
'might' rather than 'would' be deported" as a result of his
guilty plea. Ibid. We were satisfied that the deportation
consequences for the crime to which the defendant pled guilty
were "too complex to require more specific advice," and that the
defendant's counsel "was not ineffective in allowing him to
plead guilty without a more definitive statement about the
deportation consequences of his plea." Id. at 467, 479.
Here, defendant did not plead guilty to a crime where
deportation was mandated. He pled guilty to an offense that was
"not identified on published lists of offenses equating to
aggravated felonies or like mandatorily removable offenses,"
5 Mohanty testified that in his view, defendant's "new" charge constituted a crime of moral turpitude, but did not identify the charge, explain the basis for his opinion, or identify any clear or explicit statutory authority for his opinion.
A-1009-14T3 19
Gaitan, supra, 209 N.J. at 381, and the deportation consequences
were not "truly clear." Padilla, supra, 559 U.S. at 369, 130 S.
Ct. at 1483, 176 L. Ed. 2d at 296. As a result, we are
satisfied the PCR court correctly concluded that PCR counsel's
duty to defendant was "limited" and counsel satisfied that duty
by advising defendant "that pending criminal charges may carry a
risk of adverse immigration consequences." Gaitan, supra, 209
N.J. at 380 (quoting Padilla, supra, 599 U.S. at 357, 130 S. Ct.
at 1477, 176 L. Ed. 2d at 289); cf. Padilla, supra, 559 U.S. at
369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296 (finding that the
immigration statute was "succinct, clear, and explicit in
defining the removal consequences" of the defendant's conviction
for a controlled dangerous substance offense because 8 U.S.C.A.
§ 1227(a)(2)(B)(i) expressly "commands removal for all
controlled substances convictions except for the most trivial of
marijuana possession offenses"). Defendant therefore did not
prove by a preponderance of the evidence that plea counsel's
performance was deficient under the first prong of the
Strickland standard.
We are also satisfied that defendant did not sustain his
burden of establishing the second prong of the Strickland
standard because he failed to present "sufficient evidence to
show 'a reasonable probability that, but for counsel's errors,
A-1009-14T3 20
[he or she] would not have pleaded guilty and would have
insisted on going to trial.'" State v. O'Donnell, 435 N.J.
Super. 351, 376 (App. Div. 2014) (quoting Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210
(1985)). Defendant was required to demonstrate that "had he
been properly advised, it would have been rational for him to
decline the plea offer and insist on going to trial and, in
fact, that he probably would have done so." State v. Maldon, 422
N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla, supra,
559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297).
Defendant did not offer any evidence beyond his bare
conclusory assertion that he would not have pled guilty had he
known of the immigration consequences. Standing alone, this
does not demonstrate a reasonable probability that but for
counsel's alleged deficiency defendant would not have accepted
the plea bargain. See State v. Cummings, 321 N.J. Super. 154,
170 (App. Div.) (holding "a petitioner must do more than make
bald assertions that he was denied the effective assistance of
counsel"), certif. denied, 162 N.J. 199 (1999).

Outcome: Defendant's failure to prove both prongs of the Strickland
standard by a preponderance of the evidence required the denial
of his PCR petition. Defendant's remaining arguments are without sufficient
merit to warrant discussion in a written opinion. Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: