State v. Gailes

• Decision Date: 28 November 1960
• Docket Number: Nos. A--406,A--482,s. A--406
• Citation: 165 A.2d 814,64 N.J.Super. 232
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Allen GAILES, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. James B. FAISON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 232

64 N.J.Super. 232

165 A.2d 814

STATE of New Jersey, Plaintiff-Respondent, v. Allen GAILES, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. James B. FAISON, Defendant-Appellant.

Nos. A--406, A--482.

Superior Court of New Jersey Appellate Division.

Argued Nov. 7, 1960.

Decided Nov. 28, 1960.

Paul R. Huot, Ramsey, for defendant-appellant Allen Gailes.

Arnold A. Hart, Hackensack, for defendant-appellant James B. Faison.

William C. Brudnick, Sp. Asst. Prosecutor, Hackensack, for plaintiff-respondent (Guy W. Calissi, Bergen County Prosecutor, Hackensack, attorney).

Before Judges GOLDMANN, HANEMAN and FOLEY.

PER CURIAM.

Both defendants appeal from the denial of hearings on applications for writs of Habeas corpus. Faison also appeals from the denial of a hearing on his motion to withdraw pleas of Non vult. Gailes asserts that his petition for a writ of Habeas corpus should be considered as including a motion to withdraw his pleas of Non vult.

On August 15, 1958 defendants were jointly indicted for the murder of one Jacob Sayers on August 12, 1958 and entered pleas of not guilty thereto on August 26, 1958. They were then represented by retained counsel.

They were also jointly charged with two armed robberies which were alleged to have occurred on August 8, 1958. Both defendants waived indictment and trial by jury and filled out and executed Criminal Procedure Form 13A. Additionally, Gailes was charged with three larcenies (N.J.S. 2A:119--2, N.J.S.A.), a breaking, entering and larceny (N.J.S. 2A:94--1, N.J.S.A.), malicious mischief (N.J.S. 2A:122--1, N.J.S.A.), and atrocious assault and battery while armed (N.J.S. 2A:90--1, 2A:151--5, N.J.S.A.), on which he waived indictment and trial by jury, first having executed form 13A.

On October 24, 1958 defendants were arraigned on the accusations charging armed robbery, and pleaded guilty thereto. The trial judge, who, incidentally, is the judge whose action herein is reviewed, interrogated the defendants meticulously concerning their understanding of the charges, their willingness to enter the pleas, and their satisfaction with the services rendered to them by their respective counsel. Their answers left no doubt that the pleas were informedly made, completely voluntary, and that the services of counsel were satisfactory to them. The pleas were accepted. Gailes' pleas of guilty to the accusations of larceny, breaking, entering and larceny and malicious mischief were likewise accepted, after thorough questioning of this defendant by the court. Application was also made for the dismissal of the armed atrocious assault and battery charge, upon the ground that the offense was merged in one of the robbery charges, to which defendant had pleaded guilty.

Both men also tendered pleas of Non vult to the murder indictment. The court took these offers under advisement.

On November 21, 1958, the date set for sentencing on the accusations, defendants through counsel renewed their offers of Non vult pleas to the murder indictment. Again both men were carefully interrogated by Judge Schneider and the record reveals beyond the slightest doubt that each fully comprehended the nature of the charge, and the effect of the plea of Non vult. Moreover, it is clear beyond debate that both acknowledged satisfaction with counsel, and complete voluntariness of action. Prior to sentencing the men were specifically asked it they had anything they desired to say--both replied 'no.' Thereupon the court sentenced on all pending charges. Our careful scrutiny of the various stages of the proceedings herein alluded to convinces us that Judge Schneider, aware of the serious plight in which defendants found themselves, left no stone unturned in satisfying himself of the propriety of imposing sentences in the matters, and in so doing surrounded the rights of the defendants with every possible protection.

In a letter dated January 16, 1959 Faison informed the judge that he intended to appeal on the grounds of illegal sentence and denial of due process, and requested that the court direct the clerk to send him copies of the indictment and minutes of sentencing. On January 19, 1959 in reply the court noted that Faison had pleaded after close questioning and advised him that if he desired to apply to withdraw the pleas he might prepare a petition setting forth the reasons on which he relied. As of January 31, 1959 Faison wrote at length to the judge renewing his request of copies of the indictment and other official records, and complaining of his lack of understanding of the proceedings on sentence, the 'unfaithfulness and dereliction' of duty of the attorneys for Gailes, confusion and 'fear' throughout the period of his detention generated by 'talk' of the electric chair, and misguided advice by his counsel to plead Non vult because of a confession given to the prosecutor by Gailes at the 'insistence' of the latter's lawyer. The letter was climaxed by Faison's assertion that he was guilty of none of the crimes to which he had pleaded guilty or Non vult. On April 15, 1959 the judge forwarded copies of the documents requested and informed the defendant that he was of the opinion that it would be a 'waste of time' to conduct a hearing on an application to retract because he 'would never grant it.'

Meanwhile, Faison applied to this court for leave to appeal In forma pauperis. The application was denied.

On August 6, 1959 he filed a complaint 'in lieu of prerogative writ.' In effect this was an application for a writ of Habeas corpus and was so treated. Therein Faison set forth at length charges that (a) the conduct of his counsel was so derelict that he was substantially denied his constitutional right to be represented by counsel, (b) that the conduct of the prosecutor and his assistants was likewise derelict and tended to show a 'conspiracy between defense counsel and the prosecution,' and also that the convictions were the result of 'fraud,' (c) that his counsel divulged to prosecutor 'confidential information' given to him by defendant, and that such disclosure 'effected' the convictions, (d) that the trial court having knowledge of this was derelict in its duty to censure defense counsel and the prosecutor, (e) that the convictions were based on 'defective procedures' in the 'actions' of or 'lack of action' by the trial court in violation of his constitutional right to a 'fair and impartial trial.'

We pause to observe at this point that none of these caustic conclusions was buttressed by a single allegation of fact. The trial court denied the application for a hearing, and in a written opinion outlined in detail its reasons therefor. The court pointed out that defendants had been represented by two 'of the best and ablest counsel' practicing in the criminal courts of the county, that the application of these counsel for leave to enter the pleas of Non vult to the murder indictment had been deliberated upon by the court for almost two months before they were accepted, and that the pleas were accepted and sentences were imposed only after the court had exhausted every avenue of interrogation in order to satisfy itself that they were offered voluntarily and intelligently.

This court denied defendant's application for leave to appeal from this determination. Thereupon Faison appealed to the Supreme Court which remanded the cause to this court with the direction that leave to appeal be granted and that the appeal be determined on its merits. Thereafter present counsel were assigned to both defendants.

On December 9, 1958 Gailes wrote to the sentencing judge that 'when I gave the confession I not only confessed to Mr. Calissi but to God also, and your Honor, I'd like to thank you very much for sparing my life, because the crime I committed I realize we could have paid with our lives.' However, by May 19, 1959 he suffered a change of heart. On that date he wrote to the court requesting the assignment of counsel and stenographic transcripts of the proceedings. An affidavit accompanied the application which alleged that he had been wrongfully convicted because of the 'extreme dereliction of duty' on the part of his attorney in conspiring with the prosecutor to deny him his right to a fair trial and in revealing to the prosecutor a 'certain privileged communication.' The court denied the application and...