Schwartz & Posnock

College application season is once again in full swing, with thousands of high school seniors applying to colleges around the country. Many parents are reporting concern over issues relating to an applicant’s criminal history. This concern is consistent with the near-universal use of background checks among prospective employers, who are applying a rigorous standard of ethics and demanding that their employees have a clean background.

Colleges that sponsor work-study programs and internships increasingly require that their students undergo background screening before they will place them in an internship program. Those college juniors who compete for great summer jobs are finding that employers in all sectors and industries are requiring background checks. For students contemplating internships or employment in the criminal justice system, such as the courts or prosecutor’s offices, or employment on Wall Street, a complete background check will be required. In fact, a former college student client recently reported having to submit to an intensive background check for a summer job in the mutual fund division of a large investment bank, as did a current student applying for an internship with a pharmaceutical company.

In our highly competitive society, students are expected to optimize their employment prospects through work and internships. These early opportunities can propel a student to far greater career advancement.

The existence of Municipal Court or Superior Court charges on an applicant’s background check – even if the charges have been dismissed – can have a highly negative impact on a student’s job or internship prospects. The reasons for seeking the expungement of records are growing as quickly as the jobs and internships that are requiring background checks and clean records.

Expungement is accomplished by filing a petition in the Superior Court-Law Division. Schwartz & Posnock has successfully petitioned for the expungement of criminal records in New Jersey since 1993. We have obtained the expungement of criminal and disorderly persons records in virtually every case we have handled. The vast majority of our expungement cases do not require the petitioner’s appearance in court.

On October 30, 2012, in a case which will have significant consequences in the state and federal courts of New Jersey, the United States Supreme Court heard argument to settle a dispute among the lower courts regarding whether to give non-citizens the benefit of a ruling that requires their lawyers to advise them on the immigration consequences of a guilty plea. At issue in the new case of Chaidez v. United States (11-820) is the potential retroactivity of the Court’s 2010 ruling in Padilla v. Kentucky.

In the Padilla decision, the Supreme Court ruled that the Sixth Amendment right to counsel includes a right for a non-citizen living in the U.S. to be advised by a lawyer of the immigration law consequences of pleading guilty to a crime that could lead to deportation. The majority noted that, under recent dramatic changes in immigration law, deportation is virtually automatic after one is convicted of an “aggravated felony.”

Relying on the constitutional standard that a lawyer’s professional advice to clients must satisfy a minimum level of performance, the Court in Padilla found that prevailing standards dictate that a lawyer for a non-citizen faced with a criminal charge must advise that individual of the risk of being deported if a plea of guilty is entered. If the immigration law outlook is not clear, the Court said, the lawyer at least must tell the client that there could be adverse immigration consequences.

The decision in this case will have a significant impact in New Jersey, where, in State v.Gaitan, the New Jersey Supreme Court declined to apply Padilla retroactively.

The sequel case arose before the Padilla decision was issued, and the United States Court of Appeal for the Seventh Circuit ruled that the non-citizen involved, Roselva Chaidez, could not take advantage of that precedent because it did not apply retroactively. Padilla was decided on March 31, 2010, and the Seventh Circuit said that it established a new rule of criminal law and thus, under Supreme Court precedent, it could not apply to any case in which a guilty plea had been entered prior to that March 2010 date.

Chaidez, a native of Mexico, came to the U.S. in the 1970s, and became a lawful permanent resident in 1977. She has three children and three grandchildren, all of whom are U.S. citizens. She had been involved in an insurance fraud scheme, in which others had persuaded her to claim falsely that she had been a passenger in a car involved in a collision; she had received $1,200 for her role. In 2003, she was charged with two counts of mail fraud for two separate billings after the underlying dispute was settled out of court.

Her lawyer did not advise her about the risk of deportation if she pleaded guilty, and did not seek to negotiate a plea deal for her. She pleaded guilty. It is undisputed that, had she known of the deportation prospect, she would not have entered a guilty plea. She was sentenced to four years of probation and ordered to pay the insurance company a total of $22,500. Her conviction became final in 2004. Three years later, federal officials became aware of her conviction, and moved to deport her. She challenged that in federal court, claiming that her lawyer had failed to advise her fully. That was the claim the Seventh Circuit rejected. Other federal courts, however, disagree on the issue of retroactivity. The United States Supreme Court is likely to decide this matter by June of 2013.

The New Jersey Supreme Court held, in State v. Stas, that a Municipal Court’s use of a defendant’s silence at the scene of a motor vehicle accident as substantive evidence of his guilt and to assess his credibility violated his privilege against self-incrimination.

Under federal criminal law, the use for any purpose at trial of a defendant’s silence after his arrest and the administration of Miranda warnings violates his privilege against self-incrimination and his right to due process. Under New Jersey law, even silence that precedes Miranda warnings, if “at or near” the time of the criminal defendant’s arrest, cannot be used for any purpose at trial. In this instance, defendant was arrested for allowing an intoxicated person to drive a motor vehicle over which he had custody or control, and remained silent as his co-defendant admitted to driving while intoxicated. Defendant’s silence “at or near” his receipt of a summons at the scene for a violation of the drunk driving laws served as the functional equivalent of an arrest. As a result, his silence should not have been used for any purpose, and the reviewing court’s reliance on that silence constituted reversible error.

If you or someone you know has been charged with a Municipal Court criminal or traffic offense, or drunk driving, please call New Jersey criminal lawyers Schwartz & Posnock at (732) 544-1460 for assistance.