Palumbo, Application of

• Decision Date: 06 November 1959
• Docket Number: No. A--130,A--130
• Citation: 58 N.J.Super. 80,155 A.2d 571
• Parties: Application of Anthony PALUMBO, New Jersey State Prison, for Issuance of a Writ of Habeas Corpus.
• Court: New Jersey Superior Court — Appellate Division

Page 80

58 N.J.Super. 80

155 A.2d 571

Application of Anthony PALUMBO, New Jersey State Prison, for

Issuance of a Writ of Habeas Corpus.

No. A--130.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 14, 1959.

Decided Nov. 6, 1959.

Abraham Miller, Jersey City, argued the cause for defendant-appellant.

Edward F. Hamill, Asst. Prosecutor of Hudson County, Jersey City, argued the cause for plaintiff-respondent (Lawrence A. Whipple, Hudson County Prosecutor, Jersey City, attorney).

Before Judges CONFORD, FOLEY and SCHERER.

The opinion of the court was delivered by

CONFORD, J.A.D.

This is an appeal from a dismissal by the Hudson County Court of an application for a writ of Habeas corpus after a hearing on the merits. Since the applicant was afforded a full hearing, with the aid of assigned counsel (not the assigned counsel on this appeal), and the matter was disposed of purportedly on the merits, we treat the case as though a writ had issued and been discharged after hearing.

Although there is other general verbiage in the application, the essential grievances asserted therein are: (a) Palumbo did not 'have the assistance of effective counsel to represent him' in connection with pleas of guilty to two indictments charging him with armed robbery and to an accusation charging him with being an habitual criminal contrary to N.J.S. 2A:85--12, N.J.S.A.; (b) subsequent to his pleas of guilty on the indictments a request by letter that he be permitted to retract the plea was ignored and a renewal of that request before sentence was denied; (c) the change of plea was the result of false promises and representations by the assistant prosecutor concerning sentences to be imposed.

Upon the institution of this appeal and the filing by applicant of a petition as an indigent, the court assigned counsel to the applicant (other than assigned counsel on the application below and present appellate counsel). That counsel conferred with Palumbo, investigated the case, took certain steps in the trial court hereinafter referred to, and then petitioned this court to be relieved of the assignment on the ground that he found no merit in the appeal. What follows in this opinion indicates that Palumbo had at least fairly debatable grounds on which to prosecute his appeal and furnishes a demonstration-lesson that assigned counsel ought to execute an assignment with the utmost fidelity and with all the resourcefulness, imagination and application that compensated counsel would exert on behalf of a client regardless of his private opinion concerning the merits of the appeal. Once the court orders an assignment, that should, except in most extraordinary circumstances, constitute a mandate to assigned counsel to proceed and make for the appellant the best case he can, keeping in mind that, in the ultimate, the determination of the merits of the appeal is for the court after full consideration, not for counsel on either side. Any other attitude by assigned counsel to his responsibility seriously impairs the utility of the assignment process as a medium for assurance of equal justice to both indigent and moneyed defendants in criminal cases. Cf. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Many successes have been scored as a result of fine work by assigned counsel in cases that may have seemed at first blush to have no merit.

The original assigned counsel was relieved of his assignment by this court, his petition therefor having impaired his further usefulness in the case. The court denied applicant's petition for substituted assigned counsel, not having before it the full transcripts of the proceedings in the trial court. After affirmance of that determination by the Supreme Court, Palumbo filed a brief and appendix Pro se. Examination of the contents thereof in preparation for argument led this court on its own motion to assign the counsel who argued the cause and filed a supplemental brief. In determining this matter consideration has been given to both the papers filed by appellant Pro se and those submitted by assigned counsel.

The facts material to a resolution of this appeal are as follows:

During the 1954 term the Hudson County grand jury returned three indictments against Palumbo and one Wines, each charging them jointly with the commission of a separate offense of armed robbery. Their original plea to all three was not guilty. The first indictment was tried in November 1955 and both defendants were convicted. At that trial Palumbo was represented by Thomas J. Armstrong, Esq., and Wines by John J. Flaherty, Esq., both experienced trial lawyers, and assigned by the court to said defendants. (This conviction was subsequently reversed for an error in the charge, State v. Wines, 47 N.J.Super. 235, 135 A.2d 543 (App.Div.1957); the defendants were reconvicted on a retrial.)

Mr. Armstrong was never assigned as counsel to Palumbo or retained by him in connection with the other two armed robbery indictments. However, as he testified in the present proceedings, after the trial aforementioned he received a letter from the Hudson County Prosecutor asking that he 'appear on behalf of Mr. Palumbo' in connection with the remaining indictments. He informed the assistant prosecutor, Mr. Dworkin, that he had not been assigned in those cases. Nevertheless, feeling that 'as an officer of the court' it was his duty to visit the prisoner, he did so and 'interviewed Mr. Palumbo.' He told him he was not assigned in the other cases, and Palumbo 'admitted that that was so.' They 'conferred together' and Armstrong left. He testified: 'I don't feel as an attorney I should disclose our conversation at that time.' He later received another letter from the prosecutor that the cases were to be tried. He again visited Palumbo at the jail, told him he was not his attorney and that he 'thought that he should get one.' His next association with the case, he said, was his appearance before the county judge (a different judge from the one who heard the present application) who accepted guilty pleas from Palumbo and Wines on January 11, 1956.

There is no clear picture from the evidence as to how it was arranged that Palumbo and Wines were to change their pleas in court on January 11, 1956, it being apparent that the date was fixed, in the first instance, for the trial of the indictments. In both briefs Palumbo charges that he was induced to change his plea by promises or representations by the assistant prosecutor. We will consider the evidential support for that contention later herein. In any event, as to the matter of legal representation, the transcript of the January 11, 1956 court session shows that the judge announced at the very outset that: 'The record will note that Mr. Thomas Armstrong appears for the defendant Palumbo and Mr. * * * John J. Flaherty, Jr. is appearing for Wines.' Mr. Armstrong then made reference to the fact that he had notified another lawyer, Michael Breitkopf, Esq., who he said 'had appeared in this case heretofore,' of the scheduling of the session that morning. No other explanation of the significance of Mr. Breitkopf's connection with the case appears in the record. Thereupon Mr. Flaherty made the following statement in reference to the defendant Wines:

'Mr. Flaherty: There are a number of indictments against Mr. Wines and I appeared in one of the cases with Mr. Armstrong, a three day trial. I had not been appointed to represent him in the present proceedings. I had been notified this morning that he was coming in to plead to two indictments and I am merely here this morning for the pleadings.

'I have not advised Mr. Wines to plead or not to plead. Mr. Wines had asked me whether or not there would be concurrent sentences. I told him I had no authority to say whether there would or would not. There are no arrangements made whatsoever with the prosecutor or the court as to what the sentence may be if he takes this plea. I am not advising him to plead one way or the other and this procedure now is on his own behalf, and his own words would be the decision he makes.'

Thereupon Wines' plea was changed from not guilty to guilty. This was followed by Mr. Armstrong's statement that: 'In the same manner Mr. Flaherty's remarks with respect to representation of Mr. Wines are adopted by me as if I had reiterated them.' This was obviously intended as in reference to Mr. Armstrong's relationship with Palumbo. The transcript then shows this:

'The Court: How old are you, Mr. Palumbo?

'Defendant Palumbo: Forty-five.

'The Court: Do you know the implication of withdrawing the plea of not guilty and pleading guilty?

'Defendant Palumbo: Yes, sir.

'The Court: All right, the plea will be accepted.

'Mr. Dworkin: Now, do I understand that the Court has permitted the defendant to withdraw the plea of not guilty heretofore entered to this indictment and has permitted him to enter a plea of guilty? Is that correct?

'The Court: In both cases.

'Mr. Armstrong: Would the Court permit a remark by me at this phase of the proceedings and to make inquiry of the defendant to determine if that plea is made by him freely and without any coercion or suggestion by me or promise by me appearing as I do in this capacity.

'The Court: Well, the Court will ask both defendants. This change of plea is not made through any threat, fear or any promises of any kind, is that so, sir?

'Defendant Palumbo: Yes, sir.'

Palumbo then repeated his signification of change of plea in terms of the specific charges in the indictments and reference was made by the clerk to the scheduling of sentencing on the pleas before another judge (the one who heard the Habeas corpus application) two days later, the 13th of the month.

Sentencing actually did not take place until June 19, 1956. But the day after the pleas of guilty were accepted Palumbo, according to his testimony on the present application, wrote to the judge scheduled...