State v. Loray

• Decision Date: 20 December 1965
• Docket Number: No. A--4,A--4
• Citation: 215 A.2d 539,46 N.J. 179
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Robert LORAY, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 179

46 N.J. 179

215 A.2d 539

STATE of New Jersey, Plaintiff-Appellant, v. Robert LORAY, Defendant-Respondent.

No. A--4.

Supreme Court of New Jersey.

Argued Sept. 13, 1965.

Decided Dec. 20, 1965.

Brendan T. Byrne, Essex County Pros., for appellant (Philip R. Glucksman, Asst. County Pros., of counsel and on the brief).

Arthur R. Schmauder, Newark, for respondent.

The opinion of the court was delivered by

HALL, J.

This appeal concerns a post-conviction attack on the referral of a juvenile complaint for adult criminal prosecution.

The defendant Robert Loray was implicated in the mugging of an aged pedestrian on a street in Newark on February 24, 1961. The victim died at the scene of the attack and robbery. At the time Loray was a juvenile, just over 16 years of age. The two others involved were Stanley Wilson, about three months older than Loray, and George Cooper, aged 19, and so beyond the juvenile classification. Loray and Wilson were charged with juvenile delinquency, by reason of the commission of assault, robbery and homicide, in a complaint filed in the Essex County Juvenile and Domestic Relations Court. N.J.S. 2A:4--14(1) (a) N.J.S.A. Following a hearing held on March 2, 1961, the judge of that court referred the matter to the prosecutor as to both youths to be dealt with as criminal cases under the authority of N.J.S. 2A:4--15, N.J.S.A.

Loray and Wilson were then indicted with Cooper for murder and robbery and counsel was appointed for each of them. All were convicted of murder in the first degree in the Essex County Court in May 1962. They were sentenced to life imprisonment in accordance with the jury's verdict. Loray alone appealed his conviction. We affirmed it. 41 N.J. 131, 195 A.2d 289 (1963).

No attack was made on the referral of the juvenile complaint until Loray's appeal. His brief then contended for the first time that the referral proceedings were a nullity, thereby infecting the criminal trial and calling for a reversal of the conviction and a remand to the juvenile court. The contention was grounded on counsel's assertions that Loray was not represented by counsel at the juvenile court hearing, was not advised of his right to counsel and was not afforded an opportunity to present evidence to challenge any authorized basis for referral or seeking to induce the court to retain the matter for final disposition. The only record then furnished us was the order of referral and the letter of transmittal thereof from the juvenile court judge to the prosecutor. Neither indicated what had transpired at the hearing or, indeed, the basis for the referral. We declined to entertain the issue because of the absence of an adequate record and of any application for relief at the trial level. It was further noted that 'we do not reach the question whether there may be an attack upon the order of referral after there has been a trial upon the indictment.' 41 N.J., at p. 143, 195 A.2d at p. 295.

The present petition for post-conviction relief, again in Loray's behalf only, was filed in the criminal cause, R.R. 3:10A--1 et seq., by newly assigned counsel in 1964. Asserted not only was essentially the same challenge to the referral proceeding in the juvenile court, but also the claim that the conviction was invalid on further alleged constitutional grounds including unlawful arrest and detention and violation of rights in the taking of his inculpatory statement during the period of detention. It asked that the conviction be set aside, plus the entry of a judgment of acquittal or, in the alternative, that the defendant be afforded an adequate defense commencing with a proper juvenile court referral hearing.

At the hearing on the post-conviction petition in the county court, the referral hearing, which had not been taken down stenographically, was reconstructed by what amounted to a certificate of the juvenile court judge. Defendant's parents had been sent a notice by the court that a preliminary hearing would be held to determine whether the matter would be retained and disposed of there or referred to the prosecutor. The notice included a statement that 'the family may engage legal counsel if it desires to do so.' At the hearing, defendant's mother was present with him. They were informed of the purpose of the hearing. He was not represented by counsel nor advised of any right to be represented by counsel or to have counsel assigned if he were indigent. The complaint was read aloud and defendant's age confirmed by questioning his mother. The judge then explained that from the complaint itself he determined that the offense charged was of a heinous nature--a killing in the commission of a felony--and that under the circumstances the matter should be referred to the prosecutor. The defendant was not informed that he could present evidence in his behalf nor was he given any opportunity to do so.

In the post-conviction proceeding the court concluded, as a matter of federal constitutional right 'and as a matter of fundamental fairness,' that the defendant was entitled to be represented by counsel at the referral hearing and that he should have been specifically informed of that right and further told the court would appoint counsel if he were indigent. The Fourteenth Amendment due process right so found was grounded in analogy to the holdings in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (see also Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), decided since), the referral hearing being characterized as 'a critical stage of the proceedings' because of the greater penalties that could be imposed in the adult court for felony murder. The court also held that the question could be first raised by an application for post-conviction relief since it affected 'the fundamental fairness' of the proceedings and had not been 'litigated in fact on appeal' from the conviction.

A remand of the case to the juvenile court for a properly conducted referral proceeding was ordered. The conviction was also vacated on the thesis that '(c)oncepts of fundamental fairness require that the defendant be afforded a hearing before the juvenile court free of the pressure of an existing conviction.' The practical effect is that if, at the directed referral hearing, the juvenile court again decides to refer for criminal prosecution, the defendant will have to be retried on the issue of guilt and punishment.

The matter reaches us on the State's appeal from the post-conviction judgment. R.R. 1:2--1(c). While not acquiescing in the determination of invalidity of the referral hearing or in the conclusion that the issue can be first raised in a proceeding for post-conviction relief, the State challenges only that portion of the judgment which vacated the conviction. ¹

Whether the court considered the setting aside of the conviction to be required as a matter of federal due process is not completely clear. Its expression can be so read and defendant urges the correctness of the result on that approach. As so read, the conclusion is called for by reason of error of constitutional dimensions in the preliminary proceeding--deprivation of representation by counsel at the referral hearing which, as we have said, the court found to be of that statute and, as defendant further contends here, lack of an opportunity to be heard in the juvenile tribunal in opposition to referral. Even assuming preliminary error of such fundamental proportions, we think it is now soundly settled that the setting aside of a conviction, as distinct from a limited remand, is not thereby required for due process reasons.

The rationale of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and its progeny in this area seems clearly applicable. In Jackson, arising on federal Habeas corpus attacking the validity of a state court conviction for murder, the court found that the state trial procedure to determine the voluntariness of a confession, and so its admissibility, pursuant to the so-called New York rule (see State v. (Clarence) Smith, 32 N.J. 501, 545--546, 557--560, 161 A.2d 520 (1960), cert. denied 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961)), fell short of an adequate measure of protection of the defendant's constitutional right against use of an involuntary confession and consequently was violative of due process. The court went on to hold that the error did not initially compel a complete new trial, and thus present vacation of the conviction, but could be overcome simply by a proper evidentiary hearing before the state trial court to determine whether the confession was admissible under proper procedural and substantive standards. If admissibility were found at such a hearing, the conviction would stand; if not, it would then fall with a new trial required at which the confession must be excluded. Mr. Justice White, speaking for the majority, dealt with the question in this language:

'It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence. Jackson's position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt or innocence. So far we agree and hold that he is now entitled to such a hearing in the state court. But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson's confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried...