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Update on NJ Shoplifting Immigration Consequences: Can A Conditional Dismissal Help?

On Behalf of | May 9, 2017 | Immigration Consequences of Crimes |

On September 6, 2013, Governor Chris Christie signed a new law into effect that implemented the Conditional Dismissal program in New Jersey’s municipal courts. Up until 2014, many first time offenders whose cases were heard in municipal court were not able to avail themselves of any formal pre-trial diversionary program like that in Superior Court. As a result, some people ironically found themselves in a legal quandary that similar offenders in Superior Court did not have to address: whether to go to trial or accept a plea to a lesser offense, whereas those in Superior Court who qualified for Pre-Trial Intervention (“PTI”) would have the benefit of having the charge(s) dismissed after successfully completing probation. Now that there is a municipal court counterpart to PTI, there appears to be more parity amongst the two venues, with only the gravity and potential penalty of the offense determining jurisdiction. But appearances can be deceiving, and like anything in the law, you have to read the fine print. Certainly, it is generally preferable to have a case heard in municipal rather than Superior Court. However, as we have repeatedly stressed on a number of occasions, the collateral consequences of municipal court offenses can still be very significant, especially for those who are not US Citizens. The Conditional Dismissal mechanism, unfortunately, does very little in the way of vitiating the immigration consequences of some deportable offenses. Shoplifting is a perfect illustration of this.

Shoplifting 2C:20-11B

Shoplifting cases are prosecuted throughout the State of New Jersey. The gravity of the charge depends on the monetary value of the merchandise allegedly stolen. If the value is between $500-$75,000, the offense is a third degree indictable crime. If the value is between $200-$500, the offense is a fourth degree crime. Anything below $200 is prosecuted in municipal court as a disorderly persons offense. It is not uncommon for offenses that are nominally fourth degree offenses to be sent down or “remanded” by the County Prosecutor’s Office to the municipal court.

There are benefits to having the case prosecuted in municipal court, the most obvious of which is the extent of punishment. In Superior Court, a defendant convicted of a fourth degree crime faces a potential sentence of up to 18 months. In contrast, a municipal court judge can only sentence a defendant found guilty of a disorderly persons offense to a maximum of six months. However, the reduced penal exposure does not necessarily insulate a foreign national from adverse immigration consequences. Since immigration is federal in nature, the dispositive issue is whether conviction of shoplifting constitutes a Crime Involving Moral Turpitude(“CIMT”).

Under the generic federal definition, a theft CIMT involves the taking or exercise of control over another’s property without consent and with an intent to permanently deprive the owner. Matter of Diaz-Lizarraga, 26 I & N 847 (BIA 2016). In New Jersey, the shoplifting statute has been construed to similarly include the intentional and permanent deprivation of property. As such, it is generally considered by ICE as a deportable CIMT offense under Immigration and Nationality Act (INA) Section 237.

Conditional Dismissal Program in New Jersey (2C:43-13.1)

Now that Conditional Dismissal is available as a diversionary option in the defense lawyer’s toolbox, an eligible defendant may be motivated to apply for it. Application must be made before the municipal court judge for admittance. If the court accepts entry, the defendant will be sentenced to a period of probation, after which, if successfully completed, the charge will be dismissed. According to the statute, certain offenses are not eligible for diversion under conditional dismissal. Fortunately, shoplifting is not one of them.

For most first-time offenders who are reluctant to have a criminal conviction on their record, or those who may be reluctant to accept a plea to a lesser offense, ie., disorderly conduct, etc., this alternative may be of some utility.

Admission Still Constitutes A Conviction For Federal Deportability Purposes

The caveat that defense attorneys and clients must be cognizant of is that admittance is conditioned upon a guilty plea, unlike PTI in Superior Court which generally does not require a guilty plea. In fact, Guideline 4 to New Jersey Court Rule 3:28 governing PTI explicitly states “Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty.” Contrast this to Conditional Dismissal: “the defendant may, after a plea of guilty or a finding of guilt, but prior to entry of the entry of judgement of conviction…apply to the court for entry”(emphasis added). For immigrants sensitive to deportability and inadmissibility concerns, this aspect of the program can turn out to be poison rather than a panacea. Under INA Section 101(a)(48), the term conviction “means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-(i) 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 (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Under this definition, a plea entered pursuant to conditional dismissal will constitute a conviction for federal immigration purposes, notwithstanding that the charge may have subsequently been dismissed. Consequently, a non-US citizen may unwittingly believe that a “dismissal” provides insulation when, in actuality, the prerequisite plea of guilt engenders exposure.

Certainly, the analysis is more complicated than this, and there may be valid reasons why a foreign national chooses to apply for conditional dismissal rather than concede to some plea bargain. (In some cases, under certain circumstances, a lesser plea may not even be offered by the prosecutor.) Only with the benefit of a skilled criminal defense lawyer and knowledgeable immigration attorney can one make that informed decision. The point is that even in municipal court, every decision must be carefully weighed, especially so for immigrants because the relative lack of formality and sheer volume of cases scheduled and disposed of on the same day often belie the gravity of the proceedings and its attendant consequences.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.