STATE OF NEW JERSEY VS. NICKOLAS AGATHIS A-2211-09T4

STATE OF NEW JERSEY VS. NICKOLAS AGATHIS           A-2211-09T4   

     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 State v. Nunez-Valdez, 200 N.J. 129 (2009), defendant filed a post conviction relief petition, arguing 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. 

     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.  Applying the standard articulated by the Court in Nunez-Valdez, we reversed and remanded for the PCR court to conduct an evidentiary hearing. Because N.J.S.A. 2C:58-3(c) rendered defendant permanently ineligible to obtain a firearms identification card, defendant has shown that his trial counsel's performance fell below the standard expected of an attorney licensed to practice law in this State.  Under these circumstances, the PCR court must determine whether there is a reasonable probability that, but for counsel's errors, defendant would not have pled guilty and would have insisted on going to trial. 02-01-12