State v. Appice

• Citation: 23 N.J.Super. 522,93 A.2d 200
• Decision Date: 08 December 1952
• Docket Number: No. A--44,A--44
• Parties: STATE v. APPICE. . Considered
• Court: New Jersey Superior Court – Appellate Division

Page 522

23 N.J.Super. 522

93 A.2d 200

STATE v. APPICE.

No. A--44.

Superior Court of New Jersey

Appellate Division.

Considered Dec. 8, 1952.

Decided Dec. 12, 1952.

Samuel Applice, appellant, pro se.

Edward Cohn, Prosecutor of the Pleas of Union County, Elizabeth, for respondent (H. Russell Morss, Jr., First Assistant Prosecutor, Elizabeth, on the brief).

Before Judges EASTWOOD, GOLDMANN and FRANCIS.

The opinion of the court was delivered by

GOLDMANN, J.A.D.

Defendant appeals from an order of the Union County Court denying his motion to dismiss two indictments charging him, together with his accomplices Pisano and DeMaio, with attempted robbery and assault with intent to kill.

The indictments were returned by the October 1947 term of the Union County grand jury and filed with the former Court of Oyer and Terminer of that county on December 18, 1947. Defendant was then serving a term of four to ten years in the New Jersey State Prison for another crime. lodged a detainer against him.

DeMaio was sentenced to State Prison on January 15, 1948 for a term of 10 to 12 years on each charge, the sentences to run concurrently. No plea was entered to the indictments by Appice or Pisano until July 22, 1952.

On January 21, 1948 defendant wrote the Prosecutor of the Pleas of Union County. He spoke of his current prison term and of the fact that upon its completion he would still have six years to serve on a prior sentence. His future appeared 'dim'; he protested that he was not 'an uncontrolable criminal' and that his criminal record was due to 'lack of a steady job, and my friends.' After mentioning the Union County detainer, defendant went on to say 'I would like to face said detainer. And I am willing to meet you more than half way, I will plead to the mercy of the court, and I will accept a sentence of 10 to 10 years to run concurrently retro active.

'Sir: if I were to be given a consecetive sentence it would mean that I would serve 20 years. * * *

'I am leaving myself to your Mercy, for you are the only one, besides God, that can help me in my present plight. * * *'

The prosecutor replied on February 2, 1948, stating:

'If you want to come back to this County to plead guilty or no vult to the charge against you, we will arrange to do so by writ of habeas corpus. However, you must understand that the matter of sentence rests with the Judge.'

Defendant again wrote the prosecutor on February 10, 1948 stating that if he were given consecutive sentences he would have to serve 20 years plus 6 years from his previous commitment:

'I would much rather go to trial. * * * I realize that I might receive a much larger sentence if I am found guilty. But sir I would not be able to serve twenty five years let alone more. My lawyer tells me that there is a small chance of being found not guilty. I have no faith in my lawyer. * * * Perhaps I have misinterpret your letter, I hope I have. Sir: I would like to know if you have aqainted the judge with the facts in my case. If you can arrange an interview with the judge in my behalf I will be deeply greatfull to you. * * *'

There was no further correspondence until 1952.

Defendant applied for a writ of Habeas corpus in September 1951, seeking dismissal of the Union County indictments because they had not been tried for almost four years. The application was denied without prejudice. In May 1952 the assignment judge for Mercer County wrote defendant a detailed letter as to his status and suggested that he could, under Rule 2:12--4(b), request the assignment judge for Union County to direct that a trial of the indictments be moved by the prosecutor upon a day certain. The judge carefully explained what steps defendant might take following the denial or granting of his request.

In the belief that Rule 2:12--4 permitted such action, defendant filed with the Union County Court Law Division, his 'notice of motion to quash' the indictment charging him with assault with intent to kill. The assignment judge referred the notice to the prosecutor who, on June 11, 1952, wrote defendant that the rule was not applicable to his case because: (1) under subsection (b) defendant had to plead to the indictment before the assignment judge could act, and defendant had not yet pleaded; and (2) subsection (c) related to unnecessary delay in presenting the charge to the grand jury, and the charge against defendant had promptly been presented and an indictment filed. After referring to the correspondence in early 1948, the prosecutor repeated his offer that he was more than willing to bring defendant back to Union County to plead to the indictments in question; that if defendant was without funds and desired to plead 'not guilty,' an attorney could be assigned to represent him without cost; and that it was to be understood 'that there is no way that you can get a commitment from the County Court in advance.' Defendant then requested the prosecutor to arrange for a plea to the indictment and advised that he would at that time ask that the indictment be quashed on the ground that his constitutional rights had been denied.

Defendant appeared before the County Court for the first time on July 8, 1952. The judge assigned counsel to defend the prisoner and adjourned the hearing on the motion for one week. After a further adjournment of a week the motion came on for argument on July 22, 1952. Defendant relied upon the letters he had written the prosecutor on January 21 and February 10, 1948. The County Court denied the motion because defendant had failed to show good cause therefor or the denial of any right under the Federal or State Constitutions or the rules. When ordered to plead, defendant chose to stand mute. The court thereupon directed entry of a plea of not guilty in his behalf on both indictments.

Although defendant's motion to quash was addressed to only one of the two indictments, the court considered it as addressed to both in denying the motion. A formal order to that effect was entered November 5, 1952, Nunc pro tunc. Defendant had in the meantime filed his notice of appeal on August 8, 1952. This court granted his petition for leave to appeal In forma pauperis, on September 8, 1952.

The facts of this case bring it squarely within the principles of the recent Supreme Court decision in State v. Smith, 10 N.J. 84, 89 A.2d 404 (1952). The legal sufficiency of the indictments is not attacked. Under the common law as it existed in New Jersey, as well as under R.S. 2:190--1 and 2, N.J.S.A., adopted from the common law and in effect at the time the two indictments were returned, the trial court was without power to dismiss an indictment at the instance of the accused.

The statutory provisions have been superseded by Rule 2:12--4, effective September 15, 1948. Rule 2:12--4(b) provides:

'At any time after six months following the return of an indictment or the filing of an accusation, the Assignment Judge may direct that the trial of the indictment or accusation shall be moved upon a day specified. Upon failure of the prosecuting attorney to comply with such order the court may order the indictment or accusation dismissed, which dismissal shall be the equivalent of a judgment of acquittal.'

In reviewing the law of our State on the subject since early days, Justice Oliphant said in State v. Smith, 10 N.J., at page 93, 89 A.2d at page 408:

'Defendants never had under the constitutional guaranty of a speedy trial the right to have an indictment dismissed; they merely could apply to the...