STATE OF NEW JERSEY v. GARY RICHARDS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2246-04T42246-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY RICHARDS,

Defendant-Appellant.

_____________________________________

 

Submitted March 22, 2006 - Decided April 5, 2006

Before Judges Conley and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 96-04-0674.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this remanded, misinformation-on-illegal-alien-status-advice post-conviction relief case, see State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), the hearing that we intended to be conducted was never held because defendant had been deported to Jamaica. Faced with this, the PCR judge said:

I'll just say this. I'd like to just for the record quote Chief Justice Marshall in Osborne v. Bank of the United States, 22 U.S. 738, [866, 6 L. Ed. 204, 234 (1824)] . . . where he said, "Judicial power is never exercised for the purpose of giving effect to the will of the Judge, always for the purpose of giving effect . . . to the will of the law."

I always try to remember that quote among others in decisions that are governed by the exercise of judicial discretion. And I certainly am very well aware of the Appellate Division decision in this matter and the Court has been prepared to follow through on that decision. But the practical effect of [defendant's] situation makes it impossible for the Court to follow through.

The only way that the Court is aware that [defendant] could return to this country for the purpose of the Court conducting the evidentiary hearing would be for [defendant] to illegally reenter the country. And the Court believes that a dismissal with prejudice is appropriate in this case because in exercising the Court's discretion in that regard it is giving effect to the will of the law regarding deportation. So the Court does not feel its decision is an affront to the Appellate Division decision in this matter, but the Court believes it is following the guidance of other law, federal laws that also apply in our country.

On appeal, assigned counsel argues:

POINT I: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH AMENDMENT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO RAISE AN ALTERNATIVE METHOD TO HAVE DEFENDANT'S TESTIMONY BE HEARD TO ALLOW THE EVIDENTIARY HEARING TO MOVE FORWARD.

POINT II: THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO HOLD AN EVIDENTIARY HEARING PURSUANT TO AN ORDER BY THE APPELLATE DIVISION DATED APRIL 12, 2004.

We reject these contentions. There does not seem to have been any feasible way of obtaining defendant's testimony from Jamaica. Although we did intend for a hearing to be conducted, we certainly cannot fault the PCR judge in the face of the unavailability of defendant. However, under the circumstances, the dismissal of the PCR application should have been without prejudice in the event defendant somehow becomes available and wishes to pursue his hearing.

We, therefore, affirm but remand for entry of a corrected order dismissing the PCR application without prejudice.

 

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A-2246-04T4

April 5, 2006