State v. McGrew

• Decision Date: 25 March 1974
• Citation: 317 A.2d 390,127 N.J.Super. 327
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Oscar McGREW, Jr., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 327

127 N.J.Super. 327

317 A.2d 390

STATE of New Jersey, Plaintiff-Respondent, v. Oscar McGREW, Jr., Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 26, 1974.

Decided March 25, 1974.

Wilbert J. Martin, Jr., Toms River, for defendant-appellant.

William F. Hyland, Atty. Gen., for plaintiff-respondent, submitted on brief (George F. Kugler, Jr., former Atty. Gen. and Julian Wilsey, Deputy Atty. Gen., on the brief).

Before Judges CARTON, LORA and SEIDMAN.

The opinion of the court was delivered by

SEIDMAN, J.A.D.

In December 1972 defendant was found guilty in municipal court of operating a motor vehicle while under the influence of intoxicating liquor, contrary to N.J.S.A. 39:4--50(a). When he appeared later for sentence, a record was produced of a conviction for drunk driving in 1966. The municipal court judge declined to receive offered testimony that defendant was indigent at the time and had not been advised of his right to free counsel (case law then did not so provide), and imposed the mandatory three-month term of imprisonment and revocation of driving privileges for ten years.

On appeal to the County Court, limited to the sentence, the trial judge permitted defendant to testify to his alleged indigency and lack of counsel on the prior occasion, but ruled that the evidence was not material to a determination of the propriety of the sentence and affirmed.

Defendant argues on this appeal, as he did below, that because of his indigency at the time of the earlier conviction, and the failure to furnish him counsel, he should not now receive the mandatory statutory sentence as a second offender. We disagree.

In the case of Rodriguez v. Rosenblatt, 58 N.J. 281, 295, 277 A.2d 216, 223 (1971), it was held that in municipal court matters involving disorderly conduct or other petty offenses,

* * * as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.

The court noted that the case of State ex rel. Argersinger v. Hamlin, 236 So.2d 422 (Fla.Sup.Ct.1970), cert. granted 401 U.S. 908, 91 S.Ct. 887, 27 L.Ed.2d 805 (1971), was before the United States Supreme Court, and said that pending further enlightenment there would be 'no inflexible constitutional compulsion' to assign counsel without cost in the municipal court in disorderly conduct and other petty cases, 58 N.J. at 294, 277 A.2d 216, and that the municipal court judges would have broad discretion to assign counsel whenever justice so required.

Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), held that 'absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.'

Although under Rodriguez, 'whenever the particular nature of the charge is such that * * * other consequence of magnitude is actually threatened or is a likelihood on conviction, the indigent defendant should have counsel assigned to him unless he chooses to proceed Pro se with his plea of guilty or his defense at trial,' 58 N.J. at 295, 277 A.2d at 223, it is clear from Argersinger that an indigent's right to counsel in municipal court cases does not attain constitutional dimension unless conviction may lead to imprisonment. In other matters the assignment of counsel represents the kind of policy ruling which, 'though not constitutionally or legislatively compelled, (has) served to protect the proper interests of the defendant and to advance the sound administration of justice in our courts.' 58 N.J. at 294, 277...