State v. Torzillo, A--558

• Decision Date: 29 April 1960
• Docket Number: No. A--558,A--558
• Citation: 61 N.J.Super. 253,160 A.2d 511
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Louis TORZILLO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 253

61 N.J.Super. 253

160 A.2d 511

STATE of New Jersey, Plaintiff-Respondent, v. Louis TORZILLO, Defendant-Appellant.

No. A--558.

Superior Court of New Jersey,

Appellate Division.

Submitted April 25, 1960.

Decided April 29, 1960.

Louis Torzillo, pro se.

Bryan V. Moore, Legal Asst., Princeton, for respondent (Stanley E. Rutkwski, Mercer County Pros., Trenton, attorney).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant appeals from the County Court's denial, after a full hearing, of his motion to set aside his conviction and permit him to withdraw his Non vult plea to three indictments charging him with breaking and entering, larceny and receiving stolen property. This is the second time the matter has been before us. On the first occasion we reversed a similar order of the County Court that had been entered without affording defendant a hearing, and remanded the matter for a full hearing. A few of the facts set out in our earlier opinion bear repetition.

In July 1954 the grand jury returned four indictments: Nos. 127 and 130 charged defendant and Pasquale Carlisi with breaking and entering, larceny and receiving on March 16 (Cooper residence) and March 19, 1954 (Jones residence), respectively. Nos. 128 and 129 charged defendant, together with Paul Bellino and Louis W. Hartell, with the same crime on April 29 (Standard Brands warehouse) and April 24, 1954 (Applegate apartment), respectively. Defendant and Carlisi stole a mink furpiece and jewelry worth $1,135 from the Cooper home, and a fur coat and jewelry worth $655 from the Jones residence. Defendant, Bellino and Hartel took a small truck and a considerable quantity of groceries, total value $5,000, from the Standard Brands warehouse, and jewelry worth $23,740 from the Applegate apartment.

All four of the accused were represented by counsel of their own choice at the time of plea. Defendant pleaded not guilty to the four indictments; Carlisi Non vult to the two brought against him; and Bellino not guilty and Hartel Non vult to their indictments.

Defendant never made any statement concerning the crimes charged against him. However, Carlisi and Hartel made and signed statements implicating defendant in the crimes with which they were charged. The statements were in great detail, describing the inception and execution of the crimes step by step, as well as their aftermath. Defendant planned and carried out all four, and it was he who undertook to get rid of the loot through 'fences.'

Defendant and Bellino went to trial before a jury on indictment No. 128 (Standard Brands) on September 22, 1954. The next morning, and before the trial resumed, the assistant prosecutor showed defendant the Carlisi and Hartel statements in the presence of his counsel, as well as a letter which defendant had prepared and had Carlisi copy (the letter exculpated defendant), and the report of an expert identifying the letter as being in defendant's handwriting. Defendant thereupon decided to change his plea. Through counsel he withdrew his pleas of not guilty to all the indictments, including the one then being tried, and entered pleas of Non vult. Bellino also withdrew his not guilty pleas and pleaded Non vult.

Defendant has not supplied us with a transcript of the hearing, although one was made available to him. Nonetheless, we have thoroughly reviewed the transcript, the Carlisi and Hartel statements, and all the files. We find nothing that even suggests that defendant, a court-wise criminal, did not voluntarily and understandingly change his plea. There were no threats made or promises or inducements given. At the County Court hearing defendant explicitly stated for the record that he was not claiming the assistant prosecutor had committed any impropriety or made any promise. He also conceded there was no impropriety in the conduct of his own counsel.

Before defendant appeared in court for sentence on October 15, 1954, Carlisi, who was involved with defendant in indictments Nos. 127 (Cooper) and 130 (Jones), wrote to the prosecutor and the sentencing judge that he alone had committed the crimes charged. He sent a similar letter to the two detectives who had taken his statements at the time of his arrest.

The sentencing judge had Carlisi's letter before him, as well as defendant's criminal record which showed that he had been convicted for murder in 1929 and, upon release some ten years later, had successively been imprisoned for the crimes of breaking, entering and larceny, burglary and robbery. That record also revealed his extensive involvement with the criminal authorities for offenses which resulted either in dismissal or in no prosecution. At the time of sentence for the four crimes in question he was a man thoroughly experienced in crime and criminal procedure.

Defendant received State Prison terms of 5--7 years on each of indictments Nos. 128 and 129, to run consecutively. Similar sentences were imposed on indictments Nos. 127 and 130, to run concurrently with each other and concurrently with the sentence imposed under No. 128.

Defendant does not now, nor did he on the first appeal, question his plea or the sentence imposed under indictment No. 128. When last before us he claimed his Non vult pleas to Nos. 127, 129 and 130 were the result of his being 'overborne' by his counsel and the prosecutor. This claim did not impress us at that time nor does it now, particularly in the face of defendant's unqualified statement at the hearing that he was not now claiming impropriety in the conduct of his counsel or the assistant prosecutor. We found a similar lack of merit in his claims that the sentencing judge had relied upon a false criminal record and had wrongfully taken into account that defendant was wanted in Pennsylvania for armed robbery. What persuaded us to remand the matter for a full hearing was defendant's insistence that certain affidavits filed by Carlisi and Hartel established his innocence. Although we strongly suspected that his application for permission to withdraw his Non vult pleas and to plead over was based on nothing more than fabrication, we did express the view that there was a 'possibility' that a man with so lengthy a criminal record might plead Non vult when confronted with the Carlisi and Hartel statements directly implicating him in the crimes with which he was charged, and if on full hearing he could prove the statements false, it would be a miscarriage of justice to refuse him a hearing.

Defendant's somewhat belated move to withdraw his Non vult pleas is quite understandable. He will shortly have served his sentence on indictment No. 128--after receiving such time credits as he may be entitled to. His hope is to rid himself of the other three charges, either before a jury or otherwise. He undoubtedly counts upon time having blunted the edge of the prosecution's case, or that there are persons inside and outside the prison walls who could somehow convince a judge and jury that his partners in crime wrongly implicated him.

At the County Court hearing Bellino, who was involved with defendant in the Standard Brands (indictment No. 128) and Applegate (No. 129) crimes, was called as a witness by the court. He testified that defendant was not involved in the Applegate theft, but said nothing about the Standard Brands affair, in which he, defendant and Hartel were also involved. He said he had never given the State a statement implicating defendant. However, the court called to the witness stand the probation officer who had taken Bellino's statement in 1954 as part of the presentence investigation on Nos. 128 and 129. That statement implicated defendant and Hartel in the two crimes, Bellino serving as lookout man. Commenting upon this phase of the testimony, the county judge concluded that Bellino had been impeached.

Defendant's first witness was Stephen Young, an uncle of Hartel, who testified about an affidavit Hartel had executed late in 1957 stating that the statements signed by him in 1954 implicating defendant had not been read by him, that he had signed them on the promise of receiving a suspended sentence, and that defendant was in no way involved in the Applegate crime. Contrast this testimony with Hartel's, mentioned hereafter.

Defendant then called Carlisi, who admitted giving statements to the police in 1954 (described above) involving defendant in the Cooper and Jones crimes, Nos. 127 and 130. Carlisi received an indeterminate sentence in the Bordentown Reformatory for his participation. He admitted signing the statements but said he had never read them; he did not remember giving the police 'that type of answer'--and this in the face of the extraordinary detail of the statements adverted to above. He testified that he alone had broken into the two houses. He admitted that his uncle, a partolman, was present when he signed the first of these statements dealing with the Cooper crime, and that he had participated in the questioning.

Asked on cross-examination about an affidavit he had executed while in State Prison in 1958 and which absolved defendant, Carlisi said it had been prepared in the cell of one Larry 'Jacknick,' whose last name he could not spell. (His reference was probably to Lawrence Janiec, who has repeatedly been before our courts. See ...