State v. Nash

Decision Date02 April 1974
Citation317 A.2d 689,64 N.J. 464
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Herman NASH, Defendant-Appellant.
CourtNew Jersey Supreme Court

Arthur Uscher, Rutherford, for defendant-appellant (Friedman, Kates & Uscher, Rutherford, attorneys).

Craig D. Katz, Asst. Prosecutor, for plaintiff-respondent (Sherwin D. Lester, Bergen County Prosecutor, attorney).

The opinion of the Court was delivered by


We granted certification, 63 N.J. 501, 308 A.2d 666 (1973), to review the Appellate Division's affirmance of the county court's order of incarceration on reinstatement of a six month jail sentence for defendant's violation of probation. Placed squarely in issue is the applicability of this Court's decision in State v. DeBonis, 58 N.J. 182, 276 A.2d 137 (1971), which held that a defendant who appeals from a municipal court conviction may not receive a greater sentence in the county court. It is clear that prior to DeBonis a trial De novo in the county court involved not only the issue of guilt or innocence but also the exercise of the independent judgment of that court in the matter of sentence. State v. States 44 N.J. 285, 293, 208 A.2d 633 (1965). We hold that the DeBonis rule does apply under the facts of this case and to all cases on direct appeal as of the date that decision was announced. This leads to a reversal of the judgment below.

In 1969 defendant Herman Nash, was a teacher in Teaneck High School. His difficulties with the law arise out of an occurrence of March 6 of that year when he led a group of about 15 of his students into the principal's office in protest against a school policy under which lower-track, general science students were denied use of laboratory facilities. For more than eight years defendant had tried unsuccessfully to change this policy, but he had never been able to obtain regularly scheduled laboratories for this group of students, despite the fact that several such labs were scheduled each week for the better students.

His frustration led to the demonstration. No violence was involved but some disorder was created. The participants cleaned up the principal's office before leaving. However, the 'sit-in' led to Nash's conviction in the Teaneck Municipal Court for the violation of N.J.S.A. 2A:170--28 (disturbing a place of assembly), N.J.S.A. 2A:170--31 (trespass), and N.J.S.A. 2A:170--26 (assault). He was fined $250 each on the first two charges and sentenced to a thirty day jail term on the assault charge. These convictions were appealed to the county court, which conducted a plenary trial De novo by order of the assignment judge on defendant's application.

The county court dismissed the assault and trespass charges but reconvicted defendant under N.J.S.A. 2A:170--28 for disturbing a place of assembly. However, instead of receiving a fine as originally imposed, he was sentenced on December 12, 1969 to a six-months jail term, suspended in favor of a three-year probationary period. An appeal taken from this conviction was argued in the Appellate Division on January 11, 1971. On April 8, 1971, this Court's decision in State v. DeBonis, Supra, was handed down. On May 12, 1971 the Appellate Division affirmed defendant's conviction and certification was denied by this Court on July 7, 1971, 58 N.J. 597, 279 A.2d 682.

For reasons not explained in the record before us Nash was not called to report to the probation office until March 24, 1972. Although he did appear punctually, he refused 'as a matter of principle' to sign the rules and regulations, as required by R. 3:21--7. However, he agreed to abide by the conditions of his probation, and asserted, without contradiction, that he had in fact been abiding by them since the time of his sentence in December 1969. The only special condition which had been imposed upon him was that he not attend board of education meetings in Teaneck during his probationary period. After a hearing on April 28, 1972 on a motion to modify the sentence, the county court revoked defendant's probation and re-imposed the jail term, solely as a consequence of his refusal to sign the probation department rules.

Thereafter, on May 5, 1972 the defendant appealed the probation revocation to the Appellate Division, petitioning also for a stay of his sentence, which was granted. On May 22, 1972 he petitioned the county court for post-conviction relief, based on DeBonis. That petition was subsequently dismissed. The Appellate Division, on July 13, 1972, granted a motion to consolidate an appeal from the denial of the post-conviction relief with the appeal from the probation revocation, in order, as it said, 'to dispose of all issues once and for all.' As indicated hereinabove, that court, in an unreported opinion handed down on April 10, 1973, affirmed both the conviction and sentence of the county court and also the revocation of probation. Our conclusion that DeBonis applies to this defendant results in the vacating of the jail sentence. 1

While the Appellate Division speaks in terms of the non-retroactivity of DeBonis, it is clear that the decision below is simply a determination that the DeBonis rule should not be applied in the particular circumstances of this case, not a declaration of its non-retroactivity as a matter of legal principle or policy. That Court reasoned that since Nash 'had an ample opportunity effectively to raise the DeBonis ruling in his direct appeal from the conviction and sentence and in his application for certification which followed, he should not be again permitted an additional opportunity to argue the matter * * *.'

The issue of the retroactivity of DeBonis clearly intrudes itself into this case, just as it did in State v. Koch, 118 N.J.Super. 421, 288 A.2d 295 (App.Div.1972), final judgment entered in 119 N.J.Super. 184, 290 A.2d 738 (App.Div.1972). The court there was faced with the problem of retroactivity of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (non-activation of a repetitive-offender type statute to enhance punishment where the prior convictions were uncounselled and there was no waiver of counsel). The Koch court observed that the retroactivity question has two facets, which are somewhat interrelated:

'The first is whether defendant could invoke Burgett in the present post-conviction proceedings, within the intent of R. 3:22 regulating post-conviction relief. The second is whether general principles of retroactivity of newly adjudicated federal constitutional rights are compatible with the allowance of the instant attack.' 118 N.J.Super. at 429, 288 A.2d at 299.

We deal with those 'two facets' in the reverse order, addressing ourselves first to general principles of retroactivity and their applicability here, and secondly to the availability of the DeBonis rule in these proceedings.


Four common approaches to retroactivity emerge from the case law, and no distinction is apparent simply on the basis that civil or criminal litigation is involved. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 1736, 14 L.Ed.2d 601, 607 (1965). A variety of approaches has been taken to the question of retroactive effect of court decisions in the criminal field recognizing or creating new rights of persons investigated for, charged with or prosecuted for crime. These have depended largely on the court's view of what is just and consonant with public policy in the particular situation presented. The four groupings of rules which have evolved are as follows:

1. Some modern decisions recognize the court's power to hold that an overruling decision operates prospectively only and is not even operative upon the rights of the parties to the case declaring the new rule of law. E.g., James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961) (embezzled funds constitute taxable income); 2 England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) (under abstention doctrine litigant must preserve right to return to Federal court).

2. There are cases which limit the retroactive effect of a new rule, so that it will govern the rights of the parties to the overruling case itself but apply the overruled law to the rights of parties to all other pending litigation as well as litigation terminated by final judgment. E.g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (right to counsel at out-of-court identification proceedings); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (exclusionary rule for electronic surveillance without court order); Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) (reasons must be indicated for greater sentence in second trial after reversal).

3. Another form of limited retroactive effect permits the new rule to govern the rights of the parties to the overruling case and the rights of parties to other cases pending, in the sense of final direct review not having been exhausted, when the overruling case was decided. The old rule applies to the rights of parties in cases terminated by a final judgment no longer appealable at the time of the decision in the case declaring new law. E.g., Linkletter v. Walker, Supra, (exclusion of illegally seized evidence); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (prosecutor's) comment on defendant's failure to testify); State v. Koch, Supra, (use of uncounselled prior conviction to affect credibility).

4. Finally, a new rule may be given general retroactive effect so as to apply even where final judgments have been obtained as of the time the overruling case is decided. E.g., Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (free transcript provided to indigents appealing convictions); Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963) (right to counsel at trial).


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