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State of New Jersey v. Nickolas Agathis

February 1, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICKOLAS AGATHIS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Complaint No. W2006-00064-2017.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 13, 2011

Before Judges Fuentes, Ashrafi and Nugent.

The opinion of the court was delivered by FUENTES, J.A.D.

Defendant Nickolas*fn1 Agathis appeals from the denial of his petition for post conviction relief (PCR). We reverse and remand for an evidentiary hearing.

Defendant pled guilty to the domestic violence offense of simple assault and was placed on probation conditioned upon forfeiting his firearms identification card. Relying on our Supreme Court's decision in State v. Nunez-Valdez, 200 N.J. 129 (2009), defendant argues he received ineffective assistance of counsel when his attorney incorrectly informed him that he could regain his firearms identification card after completing the term of probation. Stated differently, defendant claims he would not have agreed to plead guilty if he had known that by doing so, he would permanently forfeit his right to own and possess a firearm.

Guided by Rule 3:22-5, the PCR court denied defendant's petition without conducting an evidentiary hearing, concluding that it was bound by our earlier opinion affirming defendant's conviction on direct appeal. State v. Agathis, No. A-4939-05 (App. Div. June 1, 2007). Relying on State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987), we held that the trial judge's failure to inform defendant that by pleading guilty he would be ineligible to obtain a new firearms identification card "does not require the vacation of the conviction because defendant's future ineligibility for obtainment of a firearms identification card is a collateral consequence of the plea." Agathis, supra, slip op. at 5.

We now reverse and remand. As the Court explained in Nunez-Valdez, "the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here." Supra, 200 N.J. at 139-40. Although the erroneous information provided by defense counsel in NunezValdez concerned the defendant's deportation from this country, an arguably more significant consequence than the forfeiture of the right to a firearms identification card, the constitutional principle underpinning the Court's decision in Nunez-Valdez is likewise applicable in this case. Defendant had the right to receive correct legal advice from his attorney in matters material*fn2 to him in deciding to accept or reject the State's plea offer.

Thus, on remand, the PCR court must conduct an evidentiary hearing to determine whether defendant would not have pled guilty if he had been advised by his counsel that, by pleading guilty to the domestic violence offense of simple assault, he would be permanently barred from obtaining a firearms identification card.

I

On February 14, 2006, defendant, an attorney admitted to practice law in this State, was arrested and charged with committing an act of domestic violence against his wife. The police searched the marital residence and, as authorized by N.J.S.A. 2C:25-21(d)(1)(b), seized thirteen firearms and various type of ammunition. As a result, defendant was charged with third degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and fourth degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f)(1).

Defendant retained an attorney to represent him in this criminal matter. Some time after the initial arraignment, defense counsel informed defendant that the State had made a plea offer. Under the terms of the plea offer, defendant would be required to plead guilty to an amended charge of a disorderly person offense of simple assault, N.J.S.A. 2C:12-1(a), and the State agreed to dismiss the charge of possession of hollow point bullets. As to his sentence, the State would recommend a non-custodial term of probation, conditioned upon defendant successfully completing anger ...


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