277 A.2d 216 (N.J. 1971), A--90, Rodriguez v. Rosenblatt

Docket Nº:A--90.
Citation:277 A.2d 216, 58 N.J. 281
Opinion Judge:[12] Jacobs
Party Name:Gloria RODRIGUEZ, Plaintiff-Appellant, v. William ROSENBLATT et al., Defendants-Respondents. STATE of New Jersey, Plaintiff-Respondent, v. James CONLEY, Defendant-Appellant. No. A--77.
Attorney:[6] Mr. Leonard H. Wallach, Assistant Director, Camden Regional Legal Services, Inc., argued the cause for appellant Gloria Rodriguez (Mr. David H. Dugan, III, Director, Camden Regional Legal Services, Inc., attorney; Mr. Joseph V. Ippolito and Mr. Allen S. Zeller, Camden Regional Legal Services ...
Case Date:May 10, 1971
Court:Supreme Court of New Jersey
 
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277 A.2d 216 (N.J. 1971)

58 N.J. 281

Gloria RODRIGUEZ, Plaintiff-Appellant,

v.

William ROSENBLATT et al., Defendants-Respondents.

STATE of New Jersey, Plaintiff-Respondent,

v.

James CONLEY, Defendant-Appellant.

No. A--77.

No. A--90.

Supreme Court of New Jersey.

May 10, 1971

Argued Feb. 22, 1971. [58 N.J. 283]

Page 217

Leonard H. Wallach, Asst. Director, Camden Regional Legal Services, Inc., Camden, for appellant Gloria Rodriguez (David H. Dugan, III, Director, Camden Regional Legal Services, Inc., Camden, attorney; Joseph V. Ippolito and Allen S. Zeller, Camden Regional Legal Services, Camden, on the brief).

Isaiah Steinberg, City Atty., of Camden, for respondents William Rosenblatt and Theodore Davis.

Michael S. Bokar, Senior Attorney, Legal Aid Society of Mercer County, for appellant James Conley.

Andrew J. Smithson, Asst. Prosecutor, for respondent State of New Jersey (Bruce M. Schragger, Mercer County Prosecutor, attorney).

Barry H. Evenchick, East Orange, Chief, Appellate Section, Division of Criminal Justice, for the Atty. Gen., of New Jersey amicus curiae (George F. Kugler, Jr., Atty. Gen., attorney; John A. Brogan, Deputy Atty. Gen., of counsel and on the brief).

The opinion of the Court was delivered by

JACOBS, J.

The question presented in these appeals is whether indigent defendants charged in municipal court proceedings with disorderly person offenses are entitled to have counsel assigned to them. R. 3:27--2; In re Garofone, 42 N.J. 244, 246, 200 A.2d 101 (1964). The lower courts held that they were not and we certified the ensuing appeals while they were awaiting argument in the Appellate Division. R. 2:12--2. [58 N.J. 284]

Gloria Rodriguez was charged in the Municipal Court of Camden with a simple assault and battery in violation of N.J.S.A. 2A:170--26. That statute declares that any person who commits an assault and battery is a disorderly person. The offense is legislatively declared to be a petty one punishable by imprisonment for not more than six months or by a fine of not more than five hundred dollars, or both. N.J.S.A. 2A:169--4. Mrs. Rodriguez asked for but was denied assigned counsel. She then filed a complaint in the Superior Court seeking to restrain the prosecution of the municipal court proceeding until she was afforded the assistance of counsel without cost. Her complaint was verified and alleged indigency. The Senior Judge of the Municipal Court of Camden stated that his policy is not to assign counsel on assault and battery charges. He indicated that approximately three hundred disorderly person complaints are heard and disposed of per month in the Camden Municipal Court; that approximately five per cent of the defendants are represented by counsel; that less than one per cent of the defendants are sentenced to imprisonment; and that although his policy is to assign counsel in some situations he does not consider that any defendant charged with a disorderly person offense is entitled under the Constitution

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or the court rules (R. 3:27) to assigned counsel as of right. The Superior Court Judge agreed with this and dismissed Mrs. Rodriguez' complaint. She duly filed her notice of appeal to the Appellate Division.

James Conley was charged in the Municipal Court of Trenton (1) with the use of a narcotic drug in violation of N.J.S.A. 2A:170--8 and (2) with possession of narcotic paraphernalia in violation of N.J.S.A. 2A:170--77.5. Each is a disorderly person offense punishable by imprisonment for not more than six months or by a fine of not more than five hundred dollars, or both. N.J.S.A. 2A:169--4. Mr. Conley was indigent and did not have counsel. Without any tender or assistance of counsel, a guilty plea was entered to the first charge and, after a trial at which he was unrepresented, [58 N.J. 285] he was found guilty of the second charge. He was sentenced to two consecutive three-month terms in the Mercer County Workhouse. On his appeal to the Mercer County Court it affirmed but modified the sentence to two three-month concurrent terms. He then duly filed his notice of appeal to the Appellate Division.

New Jersey has since very early times given strong recognition to the criminal defendant's right to counsel. See State v. Rush, 46 N.J. 399, 403--404, 217 A.2d 441 (1966); State v. Horton, 34 N.J. 518, 522--524, 170 A.2d 1 (1961); State v. Ballard, 15 N.J.Super. 417, 420, 83 A.2d 539 (App.Div.1951), aff'd, 9 N.J. 402, 88 a.2d 537 (1952). Thus our first constitution directed that 'all criminals shall be admitted to the same privileges of witnesses and counsel, as their prosecutors are or shall be entitled to' (N.J.Const., art. XVI (1776)) and our later constitutions directed that in all criminal prosecutions the accused shall have the right to 'the assistance of counsel in his defense' (N.J.Const., art. I, para. 8 (1844); N.J.Const., art. I, para. 10 (1947)). Our State was perhaps the first to direct by legislation that where an indictment has been returned against a defendant who is indigent he shall be entitled to assigned counsel without cost. See Act of Mar. 6, 1795 (Paterson, Laws 162 (1800)); State v. Horton, Supra, 34 N.J. at 522--523, 170 A.2d 1.

Our present court rules contain explicit provision that 'every person charged with an indictable offense shall be advised by the court of his right to retain counsel and to have the Office of Public Defender represent him if he is indigent.' R. 3:27--1; N.J.S.A. 2A:158A--1 et seq. This governs both misdemeanors (N.J.S.A. 2A:85--1, 7) and high misdemeanors (N.J.S.A. 2A:85--6) but does not govern disorderly person or other petty offenses (N.J.S.A. 2A:169--4) which are subject to R. 3:27--2; New Jersey has never utilized the traditional English felony-misdemeanor classification. See State v. Doyle, 42 N.J. 334, 348, 200 A.2d 606 (1964). R. 3:27--2 provides that every person charged with a nonindictable offense shall be advised by the court of his right to [58 N.J. 286] retain counsel or, if indigent 'and constitutionally or otherwise entitled by law to counsel,' of his right to have counsel assigned without cost. See also R. 3:4--2; R. 2:7--2; Cf. 5:3--3.

As its very language discloses, R. 3:27--2 did not purport to express any opinion as to the constitutional right of a petty offender to assigned counsel without cost and in Garofone (42 N.J. 244, 200 A.2d 101) we expressly left the question open. Nor has the Supreme Court thus far actually passed on it. In Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364 (1965), an indigent defendant was convicted in the municipal court of immorality and was sentenced to thirty days in jail plus a fine of $254. The Arkansas Supreme Court held that the municipal court had not erred in failing to assign counsel, pointing out that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 9 L.Ed.2d 799 (1963), which recognized the indigent's constitutional right to assigned counsel, dealt not with a petty offense but with a felony and a five-year sentence. The Supreme Court denied an application for certiorari though Justice Stewart expressed the view that the Court should take

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the matter and decide whether Gideon governs cases involving so-called misdemeanants or petty offenders. Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966).

In Cortinez v. Flournoy, 385 U.S. 925, 87 S.Ct. 314, 17 L.Ed.2d 222 (1966), and De Joseph v. Connecticut, 385 U.S. 982, 87...

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