State v. Nicastro
Decision Date | 19 September 1956 |
Docket Number | Nos. 9268--9270,s. 9268--9270 |
Citation | 125 A.2d 433,41 N.J.Super. 484 |
Parties | STATE 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. |
Court | New 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:
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:
(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:
And, further on, at the same page:
'But an...
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State v. Deutsch, A--43
...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 ......
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...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......
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