dissenting.
The Court granted review of this case to determine whether a post-conviction relief (PCR) petitioner—deported from the country and barred from reentering it—could have his testimony taken by telephone or videoconference at an evidentiary hearing. The Court now remands to the PCR court for consideration under State v. Gaitan, 209 N.J. 339, 37 A.3d 1089 (2012)—a case whose holding will soon be reviewed by the United States Supreme Court in Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011), cert. granted, — U.S.-, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012). I would stay the PCR proceedings until the Supreme Court decides whether Gaitan is still good law.
Gaitan held that a defendant—such as Santos—does not have a constitutional claim for ineffective assistance of counsel if his attorney failed to advise him of the deportation consequences of a guilty plea before Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), decided March 31, 2010. Gaitan, supra, 209 N.J. at 371, 37 A.3d 1089. The United States Circuit Courts of Appeal have split on whether Padilla’s pronouncement—that a defense attorney has the constitutional obligation to advise his client of the deportation consequences of a guilty plea— should be retroactively or prospectively applied. See, e.g., Chai-*147dez, supra, 655 F.3d at 694 (applying Padilla prospectively); United States v. Orocio, 645 F.3d 630, 634 (3d Cir.2011) (applying Padilla retroactively). I dissented in Gaitan, agreeing with the position taken by the Third Circuit. Gaitan, supra, 209 N.J. at 382-95, 37 A.3d 1089 (Albin, J., dissenting).
On July 26, 2011, this Court ordered a stay of “all litigation involving petitions for post-conviction relief that include claims regarding the application of State v. Nunez-Valdez, 200 N.J. 129, 975 A.2d 418 (2009), and Padilla v. Kentucky, -U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)” pending disposition of Gaitan by this Court. After the Court ruled in Gaitan, the Public Defender moved to continue that stay pending review by the United States Supreme Court. The Attorney General did “not oppose a continuation of [a] global stay” for that purpose.
I voted to grant the global stay. The Court denied the stay motion, despite the lack of opposition. In light of the grant of certiorari in Chaidez, the reasons for a stay of this ease are even greater now. This Court saw merit in staying PCR proceedings while the issue of the retroactivity of Padilla was pending before it. Surely, there is no less merit in granting a stay while that same issue is pending before the United States Supreme Court. I would stay defendant’s PCR hearing until the United States Supreme Court has completed its review of Gaitan.
For that reason, I respectfully dissent.
For reversal and remandment—Chief Justice RABNER and Justices LaVECCHIA, HOENS, PATTERSON and Judge WEFING (temporarily assigned)—5.
For dissentment—Justice ALBIN-1.