SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2638-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PRATYUSH BHAGAT,

Defendant-Appellant.

_______________________________

Argued February 12, 2018 – Decided

Before Judges Sabatino and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment 

Nos. 09-08-1291 and 10-02-0300.

Michael S. Allongo argued the cause for 

appellant (The Allongo Law Firm, LLC, 

attorneys; Michael S. Allongo, on the brief).

Nancy A. Hulett, Assistant Prosecutor, argued 

the cause for respondent (Andrew C. Carey, 

Middlesex County Prosecutor, attorney; Nancy 

A. Hulett, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

July 16, 2018
2 A-2638-16T2

Defendant Pratyush Bhagat appeals from the January 13, 2017 

order denying reconsideration of his petition for post-conviction 

relief (PCR). For the reasons that follow, we affirm.

Defendant was born in India and is not a citizen of the United 

States. He was a lawful resident of this country with a visitor's 

visa and later obtained a student visa while attending college. 

In two separate indictments, defendant was charged with nine 

controlled dangerous substance (CDS) possession or distribution 

counts: seven stemming from an April 2009 arrest and two from a 

January 2010 arrest that occurred while he was out on bail. 

Defendant initially retained a lawyer to represent him in 

these matters. After defendant was denied admission to drug court,

the lawyer allegedly planned to file a motion to suppress evidence 

on defendant's behalf. However, the night before the suppression 

hearing, defendant retained a new lawyer. The second lawyer, 

defendant's plea counsel, then began negotiating with the State.

On April 15, 2010, defendant married his then-fiancée, an 

American citizen, allegedly acting on plea counsel's advice to 

obtain lawful residency. The next day, defendant pled guilty to: 

second-degree possession with the intent to distribute cocaine, 

N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); and second-degree 

possession with the intent to distribute heroin, N.J.S.A. 2C:35-

5(a)(1) and 2C:35-5(b)(2). In exchange, the State agreed to 
3 A-2638-16T2

dismiss all other counts from the indictments and recommend a 

consecutive sentence of five years for the first indictment and 

three years for the second indictment. 

A different lawyer, from the same office as plea counsel, 

represented defendant at the plea hearing. During the hearing, 

the prosecutor asked defendant if he reviewed the plea form, and 

defendant acknowledged he did. The prosecutor then specifically 

addressed defendant's status as an immigrant, asking "[d]o you 

understand that, there is a strong likelihood, that once you plead 

guilty, you probably will be deported back to India?" Defendant 

responded, "[y]es." In addition, the plea judge explained to 

defendant that "pleading guilty will subject [him] to 

deportation." Again, defendant responded that he understood. The 

court ultimately accepted defendant's guilty plea.

After entering his guilty plea, but before sentencing, 

defendant began the process of attempting to gain resident status 

as the immediate relative of an American citizen. According to 

defendant, he believed he would be approved since he was married 

to an American citizen. 

Defendant then retained a different law firm to represent him 

at sentencing on July 26, 2010, where sentencing counsel provided 

the court with a history of defendant's case. In pertinent part, 

he argued, "the tragedy of all of this not only is he is going to 
4 A-2638-16T2

jail – nobody wants to go to jail – he's going to be deported. 

It's almost a guarantee based upon the record when he gets paroled 

out of the State Prison system." The court sentenced defendant 

in accordance with the plea agreement to an aggregate term of

eight years. 

On January 10, 2011, the United States Department of Homeland 

Security notified defendant of its intention to deport him because 

of the convictions. Thereafter, on February 10, 2012, an 

immigration court ordered defendant removed from the United 

States. 

On July 24, 2015, defendant filed a petition for PCR, arguing 

plea counsel provided ineffective assistance of counsel for 

failing to advise him of the mandatory immigration consequences 

of pleading guilty. At the PCR evidentiary hearing, plea counsel 

testified he recalled defendant's case in particular because 

defendant offered him drugs in lieu of payment. He testified he 

did not give defendant immigration advice, and if asked, he would 

have referred defendant to an immigration attorney. Plea counsel 

also denied advising defendant to marry his then-fiancée in order 

to avoid deportation. He stated he would have advised defendant 

that the crimes charged were deportable offenses, but was not 

confident he told defendant deportation was mandatory. During 

cross-examination, plea counsel testified he knew of defendant's 
5 A-2638-16T2

alien status and recalled telling defendant and his parents that 

defendant would "very likely" be deported. Plea counsel maintained 

defendant was more concerned with the length of his prison sentence 

than deportation. 

Defendant testified and offered a different version of his 

consultation with plea counsel. Defendant denied offering drugs 

in exchange for legal services. When the deportation issue was 

discussed, defendant testified plea counsel leaned in and said,

"Why don't you get married to an American citizen?" Defendant 

denied plea counsel gave him the name of an immigration attorney 

or reviewed the plea forms with him. He further testified plea 

counsel did not advise him that a guilty plea would result in 

mandatory deportation, a lifetime bar to American citizenship, and 

mandatory detention until removal. 

On September 2, 2016, the trial judge denied defendant's 

petition in a written opinion. The judge found plea counsel was

a credible witness and defendant was not credible. The judge

rejected defendant's contention that plea counsel suggested 

marriage to avoid deportation. The judge reasoned the plea form, 

which defendant reviewed with the attorney who appeared for the 

entry of the plea, and defendant's colloquy with the plea judge, 

illustrated he knew he was subject to deportation. Moreover, the 

judge noted defendant testified he was satisfied with the plea 
6 A-2638-16T2

deal because it reduced his exposure to jail time. Ultimately, 

the court found defendant did not satisfy his burden under either

prong of the Strickland1 standard. 

Defendant moved for reconsideration of his PCR petition, and 

after oral argument, the court denied this motion on January 13, 

2017. This appeal followed. 

On appeal, defendant raises the following arguments:

THE TRIAL COURT FAILED TO CONSIDER THAT EVEN 

IF [PLEA COUNSEL] HAD NOT GIVEN ANY INCORRECT 

ADVICE ABOUT MARRIAGE, [PLEA COUNSEL] FAILED 

TO FULFILL HIS DUTY UNDER PADILLA2 BECAUSE HE 

FAILED TO ADVISE MR. BHAGAT THAT DEPORTATION

WAS NOT JUST POSSIBLE, BUT MANDATORY. 

THE TRIAL COURT ERRED IN CONSIDERING 

STATEMENTS BY THE JUDGE AND THE PROSECUTOR 

REGARDING DEPORTATION AS RELIEVING DEFENSE 

COUNSEL OF HIS OBLIGATION UNDER PADILLA. 

THE TRIAL COURT ERRED IN FINDING THAT 

STATEMENTS BY THE TRIAL COURT AND PROSECUTOR 

CURED THE PREJUDICE CAUSED BY [PLEA COUNSEL]'S

INEFFECTIVENESS. 

THE TRIAL COURT ERRED IN EFFECTIVELY PLACING 

A RETROACTIVE AFFIRMATIVE OBLIGATION ON MR. 

BHAGAT TO HAVE ANSWERED YES OR NO QUESTIONS 

WITH FREE-FORM ANSWERS DURING HIS PLEA 

COLLOQUY.

THE TRIAL COURT IMPROPERLY CONSIDERED 

STATEMENTS AT THE TIME OF SENTENCING AS A 

REFLECTION OF KNOWLEDGE AND UNDERSTANDING AT 

THE TIME OF THE PLEA. 

 

1 Strickland v. Washington, 466 U.S. 668 (1984).

2 Padilla v. Kentucky, 559 U.S. 356 (2010).
7 A-2638-16T2

THE TRIAL COURT ERRED IN MAKING ITS 

CREDIBILITY FINDINGS. 

The Trial Court failed to give sufficient 

weight to the filing of the immigration 

petition.

The Trial Court failed to consider that 

prior to hiring [plea counsel], Mr. 

Bhagat was preparing to go to trial. 

To prevail on a claim of ineffective assistance of counsel, 

defendant must meet the two-prong Strickland test: he must show 

that (l) counsel's performance was deficient and he made errors 

that were so egregious counsel was not functioning effectively as 

guaranteed by the Sixth Amendment to the United States 

Constitution; and (2) "there is a reasonable probability that, but 

for counsel's unprofessional errors, the result of the proceeding 

would have been different." Strickland, 466 U.S. at 687; State 

v. Fritz, 105 N.J. 42, 52 (1987).

Under the first prong, "counsel is strongly presumed to have 

rendered adequate assistance and made all significant decisions 

in the exercise of reasonable professional judgment." Strickland, 

466 U.S. at 690. We must determine whether the acts or omissions 

of counsel "were outside the wide range of professionally competent 

assistance." Ibid. Adequate assistance of counsel must be 

measured by a standard of "reasonable competence." State v. Jack, 

144 N.J. 240, 248 (1996) (citing Fritz, 105 N.J. at 53). 
8 A-2638-16T2

Under the second prong of Strickland, defendant must prove 

prejudice. Fritz, 105 N.J. at 52. He must show a "reasonable 

probability" that counsel's deficient performance affected the 

outcome of the proceeding. Strickland, 466 U.S. at 694. A 

reasonable probability is defined as "a probability sufficient to 

undermine confidence in the outcome." Ibid.

We review a PCR petition with deference to the trial court's 

factual findings. State v. Nash, 212 N.J. 518, 540 (2013) 

(citations omitted). We "give deference to those findings of the 

trial judge which are substantially influenced by his opportunity 

to hear and see the witnesses and to have the 'feel' of the case, 

which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 

224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 

(1964)). However, all legal conclusions are reviewed de novo. 

State v. Harris, 181 N.J. 391, 415-16 (2004) (citing Toll Bros. 

v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

Defendant argues plea counsel did not provide effective 

assistance of counsel because, under Padilla, 559 U.S. at 356, he

should have advised defendant he would be mandatorily deported 

after pleading guilty. In Padilla, the United States Supreme 

Court held counsel has an affirmative duty to inform a criminal 

defendant of the immigration consequences of a guilty plea. 559 

U.S. at 368-69. The Court held when deportation is "truly clear 
9 A-2638-16T2

. . ., the duty to give correct advice is equally clear." Id. at 

369. We have said counsel's "failure to advise a noncitizen client 

that a guilty plea will lead to mandatory deportation deprives the 

client of the effective assistance of counsel guaranteed by the 

Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. 

Div. 2012) (citing Padilla, 559 U.S. at 369). We note Padilla was 

issued by the Supreme Court of the United States on March 31, 

2010, two weeks prior to the entry of defendant's guilty plea.

There is no question that pursuant to the Immigration and 

Nationality Act (INA)3 defendant was subject to mandatory 

 

3 Under 8 U.S.C. § 1227,

Any alien . . . in and admitted to the United 

States shall, upon the order of the Attorney 

General, be removed if the alien is within one 

or more of the following classes of deportable 

aliens:

. . . . 

(2) Criminal offenses.

(A) General crimes.

. . . .

(iii) Aggravated felony. Any alien who is 

convicted of an aggravated felony at any time 

after admission is deportable.

. . . .

(B) Controlled substances.
10 A-2638-16T2

deportation for the charged offenses. The statutory definition 

of aggravated felony in the INA includes "illicit trafficking in 

a controlled substance. . . ." 8 U.S.C. § 1101(a)(43)(B). As 

such, by pleading guilty to two counts of possession of CDS with 

the intent to distribute, defendant was subject to mandatory 

deportation. 

Plea counsel concedes he never gave defendant any immigration 

advice. This omission satisfies the first prong of Strickland. 

Padilla, 559 U.S. at 371 ("It is quintessentially the duty of 

counsel to provide her client with available advice about an issue 

like deportation, and the failure to do so clearly satisfies the 

first prong of the Strickland analysis.") (citation omitted). 

Moving to the second prong of Strickland, we consider whether 

defendant was prejudiced by counsel's error. In the context of 

guilty pleas, this prong is satisfied when "defendant demonstrates 

that he would not have pled guilty if he had been provided with 

accurate information . . . ." State v. Gaitan, 209 N.J. 339, 351 

(2012) (citing State v. Nunez-Valdez, 200 N.J. 129, 131 (2009)). 

 

(i) Conviction. Any alien who at any time 

after admission has been convicted of a 

violation of . . . any law or regulation of a 

State, the United States, or a foreign country 

relating to a controlled substance . . . .
11 A-2638-16T2

Defendant argues he would not have pled guilty if he knew he 

would be mandatorily deported. The trial judge did not find 

defendant credible on this contention. There is sufficient, 

credible evidence in the record to support the judge's credibility 

determination. At the plea hearing, defendant and his lawyer

reviewed the plea form that indicated a likelihood of deportation. 

During the plea colloquy, the prosecutor told defendant he would 

likely be deported. The plea judge was less equivocal, explaining 

that pleading guilty would subject him to deportation, which 

defendant acknowledged. At no point did defendant raise any 

questions or request to discuss anything further with his attorney. 

In fact, defendant indicated he was satisfied with his counsel's

performance. 

Thereafter, during sentencing, defendant's sentencing lawyer

stated defendant had decided to forgo a motion to withdraw his 

guilty plea and that defendant "is going to be deported." 

Defendant could have explored withdrawing his guilty plea if his 

main concern truly was deportation. However, as the trial court 

found, defendant's primary concern was to reduce his prison time. 

Accordingly, we do not find the trial judge erred finding defendant 

did not satisfy the second prong of Strickland.

Defendant's other arguments are without sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(2).
12 A-2638-16T2

Affirmed.