State v. Haber.

• Decision Date: 02 March 1945
• Docket Number: No. 18.,18.
• Citation: 41 A.2d 326,132 N.J.L. 507
• Parties: STATE v. HABER.
• Court: New Jersey Supreme Court

132 N.J.L. 507

41 A.2d 326

STATE

v.HABER.

No. 18.

Supreme Court of New Jersey.

March 2, 1945.

Error to Court of Quarter Sessions, Hudson County.

Max Haber was sentenced on a plea of non vult to indictments charging him with keeping a gaming resort and with bookmaking on horses. To review judgments resentencing the defendant, he brings error.

Judgments reversed.

October term 1944, before BROGAN, C. J., and DONGES and PERSKIE, JJ.

Thomas H. Brown, of Jersey City, for plaintiff in error.

Walter D. Van Riper, Atty. Gen., and Simon L. Fisch, Asst. Atty. Gen., for the State.

PERSKIE, Justice.

Tersely stated the dispositive question for decision on the facts of this case is whether the re-sentencing of the plaintiff-in-error infringes the fundamental requirements of due process of law-of fair play.

Our answer to the question is in the affirmative. A statement of the undisputed events and the dates upon which they occurred, as disclosed by the record submitted, consisting of a return to the writ of error and depositions taken on the ancillary writ of certiorari to review the resentencing of the plaintiff-in-error, hereafter referred to as defendant, will lay bare the rudimentary basis upon which we reach our stated answer.

In April of 1943, the December Term (1942) Grand Jury of Hudson County handed up two indictments, in which defendant was one of the persons named therein, to the Court of Quarter Sessions for trial. By one indictment (No. 297) defendant was charged with ‘keeping a gaming resort,’ and by the other (No. 298) he was charged with ‘bookmaking on horses.’ He entered a plea of ‘not guilty’ to each indictment. On April 18, 1944 he retracted his pleas of ‘not guilty’ and pleaded ‘non vuit.’

On May 5, 1944, the day set for sentence, Judge Roberson sentenced defendant to State Prison at hard labor for a maximum term of ‘three (3) years' and a minimum term of ‘one (1) year’ and thence until ‘costs of prosecution’ were paid, but he ‘suspended’ the operation of the ‘prison sentence,’ and fined defendant ‘a total of $1000 and costs to cover’ both indictments and directed that defendant ‘pay the fine and costs through the Probation Office.’ Pursuant to that sentence, defendant paid $45 on account of the fine and costs.

On June 9, 1944, the Attorney General (in charge of the office of prosecutor of the pleas of Hudson County), in accordance with a fixed schedule, caused raids simultaneously to be made, at or about 3:30 p.m., on gamibling places in that County. As a result of these raids some 60 or 70 persons were found in the places raided and they were arrested on the spot without complaints and warrants. Among those arrested were defendant and some eight or nine other persons found in premises known as 140-48th Street, Union City, N. J. All arrested were taken to and arrived at the Court House, in Jersey City, about 4:00 p.m. There, according to the defendant, he was kept in a court room from the time of his arrival until some time between 2:00 and 2:30 a.m., of the next day, June 10, 1944; further that a court attendant would not permit him to use the telephone to call his wife to get his lawyer. During that time defendant, as well as all others, were interrogated, their statements taken, and complaints drawn. Arraignment of those apprehended began before Judge Roberson about ten minutes after one o'clock in the morning on June 10, 1944. They were arraigned in groups. All persons arrested in a given establishment were told to stand up in a group and were asked, ‘Who wants to plead guilty?’ There being no response, the Attorney General announced, ‘I take it that you are pleading not guilty’ and the clerk entered the pleas accordingly. All those who were apprehended with defendant were held in $10,000 bail; defendant, because of his prior sentence (May 5, 1944), was held in $15,000 bail. Finally, ‘it was the last thing that was done,’ sometime between 2:00 and 2:30 a.m., of June 10, 1944, the Attorney General, as the result of information brought to his attention by one of his assistants, called Judge Roberson's attention to that information which was to the effect that defendant was on probation, that his presence in the raided premises was a violation of his probation under the sentence of May 5, 1944, and then the Attorney General moved that the ‘previous sentence be vacated and sentence imposed.’

The following colloquy ensued between defendant and the judge:

Defendant: ‘May I say something?’

Judge Roberson: ‘You may.’

Defendant: ‘Your Honor, I was in this place to borrow some money.’

Judge Roberson:

‘You were in this place where gambling is being carried on, were you not?’

Defendant: ‘I only went there to borrow some money.’

Judge Roberson:

‘You were in this gambling joint where gambling was being carried on, were you not?’

Defendant: ‘Yes.’

Whereupon Judge Roberson, without more, then and there granted the State's motion and re-sentenced defendant, on indictments Nos. 297 and 298, supra, that he be confined in the State Prison for a maximum term of three (3) years and a minimum term of one (1) year, and thence until the costs of prosecution are paid, sentences to run concurrently. Defendant was remanded to the county jail on the stated indictments and also upon the new charge of bookmaking. The judge remitted the unpaid balance of the $1000 fine and costs on the sentence first imposed on May 5, 1944.

Defendant obtained a writ of habeas corpus. On July 26, 1944, it was quashed as having been ‘improvidently issued’ on the theory that the resentencing was but a continuation of the original arraignment and hence defendant was not denied due process of law. Ex parte Haber, 132 N.J.L. 49, 38 A.2d 448. For the issues under R.S. 2:82-13, subd. b, N.J.S.A. (Persons who may not prosecute writ), compare, In re Tremper, 126 N.J.Eq. 276, 8 A.2d 279, affirmed 129 N.J.Eq. 274, 19 A.2d 342; In re Scridlow, 124 N.J.L. 342, 344, 11 A.2d 837; Lanning v. Hudson County Court of Common Pleas, 127 N.J.L. 10, 12, 21 A.2d 295, affirmed 127 N.J.L. 604, 23 A.2d 397. Approximately one month later, August 15, 1944, Judge Roberson, in the absence of the defendant and over the objection of his counsel, ‘corrected’ the sentence under date of May 5, 1944, so that the concluding words thereof read that defendant ‘is placed on probation until the fine and costs (are) paid,’ and he ‘is to pay fine and costs through the Probation Office.’ In other words, for the first time, the sentence of May 5, 1944, now contained the provision that the defendant be placed on probation.

In the view we take of this case, it would serve no purpose to consider and determine whether, in the circumstances, defendant was or was not arraigned ‘without unnecessary delay.’ R.S. 2:180B-2, N.J.S.A. Nor would it be helpful if we were to consider and determine whether the suspension of the prison terms without reservation of the power of the court to punish defendant at some time in the future here results in a sentence of a fine and costs only (cf. State v. Addy, 43 N.J.L. 113, 39 Am.Rep. 547; State v. Braunstein, 5 N.J.Misc. 243, 136 A. 199; Blazier v. Keffer, 79 N.J.L. 252, 75 A. 439; State v. Clifford, 84 N.J.L. 595, 87 A. 97), or whether, as urged by the State, the suspension of the prison sentence was intended merely to suspend its operation or execution. Cf. State (Gehrmann) v. Osborne, 79 N.J.Eq. 430, 82 A. 424. For this court has held, ‘cases decided before the enactment of the statute (R.S. 2:199-1 et seq., N.J.S.A. Probation and Parole) are not helpful.’ State v. Mungioli, 131 N.J.L. 52, 55, 34 A.2d 752, 754. Cf. Roberts v. United States, 320 U.S. 264, 64 L.Ed. 113, 88 L.Ed. 68.

We turn now to R.S. 2:199-1 et seq. See, epitomized statement of portions thereof in State v. Mungioli, supra, 131 N.J.L. at page 54, 34...