State v. Nicastro

Decision Date19 September 1956
Docket NumberNos. 9268--9270,s. 9268--9270
Citation125 A.2d 433,41 N.J.Super. 484
PartiesSTATE of New Jersey v. Ralph NICASTRO, Defendant-Appellant. STATE of New Jersey v. George VENIERO, Defendant-Appellant. STATE of New Jersey v. Paul ZACCONE, Defendant-Appellant. Misc.
CourtNew Jersey County Court

A. Theodore De Muro, Nutley, for all three defendants-appellants.

Charles V. Webb, Jr., Newark (George Meier, Jr., Montclair, appearing), for the State.

WAUGH, J.C.C.

The defendants were each by separate complaint charged with a violation of the Disorderly Persons Act, N.J.S. 2A:170--29, subds. 1, 2, pars. a and b, N.J.S.A. on July 29, 1956.

The complaint against each was filed on August 1, 1956, by Officer Ferrara of the Nutley Police Department and all three complaints are essentially in the same language.

Each defendant pleaded guilty on August 1, 1956 and each was sentenced by Magistrate Joerg of the Municipal Court of Nutley, on the same date. Zaccone was sentenced to one year in the Essex County Penitentiary. Veniero and Nicastro each were sentenced to one year in the Essex County Penitentiary; six months in custody and the balance on probation. All three filed a notice of appeal from the conviction and sentence, pursuant to R.R. 3:10--3.

The State moved to dismiss the three appeals on the ground that because the defendants had pleaded builty to the charges, they could not appeal, and on the ground that the sentences, being within the statutory limits, were within the discretion of the trial judge. In re Lewis, 11 N.J. 217, 94 A.2d 328 (1953); State v. Newman, 128 N.J.L. 82, 24 A.2d 206 (Sup.Ct.1942). The right to appeal after a guilty plea is questioned in the case of City of Plainfield v. Phillips, 38 N.J.Super. 260, 118 A.2d 704 (App.Div.1955).

This court dismissed the three appeals and at that time suggested to counsel for defendants that he (counsel) might consider making an application to the magistrate to re-open the pleas of guilty under R.R. 8:4--3. Counsel subsequently made such application, supported by an affidavit in each case, before the magistrate. Each of these applications was denied by the magistrate and the defendants now appeal to this court from that decision of the magistrate.

This court concludes that it has the right to hear an appeal from the refusal of a magistrate to re-open and allow a change of plea. N.J.S. 2A:3--6, N.J.S.A. provides as follows:

'The County Court of each county shall have jurisdiction to hear, determine and review any judgment in any cause, other than a civil cause, rendered in the county district court and in any cause, criminal or civil, rendered in any municipal court, park police court, county traffic court or other inferior court of limited jurisdiction in or of the county, except a criminal judicial district court, or a juvenile and domestic relations court. If the judge of or who held the lower court is also the county judge, the Law Division of the Superior Court and not the County Court shall have jurisdiction to hear, determine and review such judgment.'

R.R. 3:10--1 et seq. apparently provides for appeals only from convictions.

No record was made at the hearing before the magistrate on the applications to re-open the pleas. Apparently, the affidavits attached to each notice of motion were considered by the magistrate when such applications were denied.

It is noted by this court that the third paragraphs of each of the affidavits submitted by the defendants are essentially identical and read, as follows:

'I was not represented by counsel, nor did I have the advice of independent counsel either prior to or during said trial, and, although the Magistrate read the complaint to me and asked whether I pleaded guilty or not guilty, I did not fully comprehend the import of the charges against me. I believed, because I had been in an automobile which had been involved in a near accident with another car, that I was being charged with a violation of the motor vehicle act. I said I did not know how to plead, but if being in the car made me guilty, then I was guilty.' (Affidavit of defendant Veniero)

Since no record was made at the hearing of the applications before the magistrate to re-open the pleas, it became necessary for this court to take testimony in order to ascertain the circumstances under which the pleas were made. The court heard all three of the defendants and an attorney, Gerard T. Capodanno, Esq., who represented a fourth defendant involved in the same matter. In addition, the court also heard the magistrate.

The law governing this case is enunciated in the case of State v. Pometti, 12 N.J. 446, at page 453, 97 A.2d 399, at page 403 (1953), wherein Justice Heher, speaking of a Non vult plea, states:

'If accepted, the plea cannot be withdrawn and a plea of not guilty entered except by leave of court; and this in its very nature involves the exercise of judicial discretion, unless made a matter of absolute right by overriding legislative authority. State v. Silverman, 116 N.J.L. 242, 183 A. 178 (E. & A.1935); Tucker v. United States, 196 F. 260, 41 L.R.A.,N.S., (70) 71 (7 Cir., 1912).'

And, further on, at the same page:

'But an...

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6 cases
  • State v. Deutsch, A--43
    • United States
    • United States State Supreme Court (New Jersey)
    • 6 Febrero 1961
    ...253, 260, 160 A.2d 511 (App.Div.1960); State v. Oats, 32 N.J.Super. 435, 442, 108 A.2d 641 (App.Div.1954); State v. Nicastro, 41 N.J.Super. 484, 488, 125 A.2d 433 (Cty.Ct.1956). However, where before sentence the defendant asserts his innocence and seeks to withdraw his plea and proceed to ......
  • State v. Mull, A--94
    • United States
    • United States State Supreme Court (New Jersey)
    • 26 Junio 1959
    ...Borough of South Belmar v. Whittington, 4 N.J.Misc. 590, 133 A. 762 (Sup.Ct.1926); 2 Am.Jur., Appeal and Error, § 230, p. 987.' In State v. Nicastro, supra, and State v. Schrier, 51 N.J.Super. 81, 143 A.2d 268 (1958), modified 30 N.J. 241, 152 A.2d 578 (1959), the Essex County Court recentl......
  • State v. Daniels
    • United States
    • United States State Supreme Court (New Jersey)
    • 18 Julio 1962
    ...232, 240--241, 165 A.2d 814 (App.Div.1960); State v. Torzillo, 61 N.J.Super. 253, 160 A.2d 511 (App.Div.1960); State v. Nicastro, 41 N.J.Super. 484, 125 A.2d 433 (Cty.Ct.1956); State v. Oats, 32 N.J.Super. 435, 108 A.2d 641 Applications to withdraw a plea are by their very nature within tha......
  • State v. Schrier
    • United States
    • New Jersey County Court
    • 23 Junio 1958
    ...State v. Baumgartner, 21 N.J.Super. 348, 91 A.2d 222 (App.Div.1952). The State, on the other hand, contends that State v. Nicastro, 41 N.J.Super. 484, 125 A.2d 433 (Cty.Ct.1956) squarely holds that no appeal will lie after a plea of non vult or Each side also cites cases from other jurisdic......
  • Request a trial to view additional results

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