Petition — DiGilio v. New Jersey

ALEXANE ESL. s TEV

In The | CLERK |

Supreme Court of the Hnited States

OCTOBER TERM, 1983

JOHN DI GILIO,

Petitioner,

STATE OF NEW JERSEY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF NEW JERSEY

ALAN DEXTER BOWMAN, P.A.

Gateway 1, Suite 300

Newark, New Jersey 07102

(201) 622-1846

STEVEN H. GIFIS

20 Nassau Street, Suite 203

Princeton, New Jersey 08540

(609) 921-0413

Attorneys for Petitioner

John Di Gilio

THE SUPERIOR APPELLATE PRINTING COMPANY

PO Box 363 Area Code 609

Cranbury, NJ. 08612 443.4202

QUESTIONS PRESENTED

1. Whether in the context of a

motion to correct a judgment an

individual has an absolute due process

right to an evidentiary hearing where

evidence is proffered tantamount to a

prima facie demonstration that a

judgment is inaccurate?

2. Whether due process

requires application of a particular

burden of proof within a hearing of a

motion to correct a judgment rendered in

a criminal case and whether the state or

the defendant bears the burden?

3. Whether it is

unconstitutional to fashion a rule that

an ambiguous judgment must be

interpreted as reflecting a disposition

which comports with law?

-i-

4. Whether the State of New

Jersey's failure to maintain a signed

order of the court or transcripts of a

proceeding precludes it from asserting

for the first time 26 years after a

final disposition that the defendant in

a criminal matter was convicted of a

crime? And, whether prior conduct of the

State over a 26 year period evidencing

its view that the matter was downgraded

to a disorderly persons offense

absolutely precludes it from altering

its position to the detriment of

the defendant?

5. Whether due process is

violated where the State licenses an

individual to possess and utilize a

hunting weapon over a 26 year period and

thereafter institutes a prosecution of

the individual for possession of the

-ii-

weapon on the basis that a handwritten

“docket sheet” indicates that the

individual was convicted of simple

assault in 1954?

-iii-

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED... eeeeeeeeeesevcel

QUESTIONS BELOW... ce cece vevevcccvvesel

JURISDICTION... ccccccccccccccceesesesed

CONSTITUTIONAL PROVISIONS INVOLVED...2

STATEMENT OF THE CASE. .cccescccecceeed

1. Introduction... c.cccccccscccessed

ii. Procedural HisStory..secseeesee 8B

iii. Factual Background....seeeee++10

a. Indictment No. 720-51 &

Disposition Thereof.......10

b. The State's 26 Year Period

Of Acquiescence In The

View That Indictment No.

721-51 Did Not Result In A

Criminal Conviction...... 14

Ce Indictment No. 175-80 &

The Motion To Dismiss

BGs co 06:0:660660006046606060866680

d. Petitioner's Motion To

Correct The Judgment....19

iv. The Opinion Of The Appellate

Division Which In Effect Was

Adopted By The Supreme Court

Of New Jerse y.rcscceceeseeeeees20

REASONS FOR GRANTING THE WRIT....-++25

-iy—

ue

POINT I

POINT II

CERTIORARI SHOULD BE

GRANTED TO ESTABLISH

CONSTITUTIONALLY~-BAS

ED GUIDELINES AS TO

THE NECESSITY FOR

AND NATURE OF

HEARINGS TO CORRECT

INACCURATE JUDGMENTS

RENDERED IN CRIMINAL

CASES WHICH WRONGLY

THREATEN AN

INDIVIDUAL'S FUTURE

LIBERTY AND ALSO TO

DETERMINE WHETHER A

HEARING WAS PROPERLY

DENIED HEREIN..-eee-s

CERTIORARI SHOULD BE

GRANTED TO DETERMINE

WHETHER THE STATE'S

CONDUCT IN

CORROBORATING OVER A

26 YEAR PERIOD THAT

A NON-CRIMINAL

DISPOSITION WAS

EFFECTED AS TO

INDICTMENT NO.

721-51 PRECUDES IT

NOW AS A MATTER OF

DUE PROCESS AND

FAIRNESS FROM

ALTERING THAT

POSITION TO THE

DETRIMENT OF

PETITIONER. *enrneeneeeee

ceeneme

sees ae

COBECLUSTOR cocccevevnesstecebouveseue

CAZELL V.

CASES CITED

CAZELL, 3 F.2d 479

(Kan. LW3L)cccccccesessesscceseceess

DELKER V.

FREEHOLERS OF ATLANTIC,

-vV-

90 Bedi be 473 (E & A BORT Peocessceoun

IN RE NEWARK TEACHERS ASSN., 95

N.J. Super. 117 (App. Div.

RGGT Peccceccccececeovcvecsceeceoes se

IN RE RYAN'S ESTATE, 130 N.J. Eq.

380 (Prerog. AGEL dP ccecsavesecavcéeses

JOHNSON V. MABRY, 602 F.2d 167

(8 Cire ESTO vc ceseoeseseevovevssesae

KING V. RUCHMAN, 22 N.J. Eq. 551

(E & A. 1871) “eeeee —TETTIOTTTT TT TTS

LAKEWOOD TWP. V. BLOCK, 48 N.J.

Super. 581 (App. Div. 1958)......31

O'BRIEN V. NEW YORK EDISON CO.,

26 F.Supp. 290 € * ho FR.

RALEY V. OHIO, 360 U.S. 423 (1959).47

STATE V. CHIARELLO, 31 N.J. Super.

482 (Cty. Ct. Div. 1954), rev'd

17 sal * SE Se) a ee eee

STATE V. CONNORS, 129 N.J. Super.

476 ( App. div. L9T7TE Dc cevceceve sean

STATE V. LOW, 18 N.J. 179 (1955)...13

STATE V. SAULNIER, 63 N.J. 199

CBOs Pee 660 60066000086 6606 nebene tae

STATE V. SENNO, 79 N.J. 216 (1979)..4

STEPHENSON V. STEPHENSON, 112 N.J.

Super. 531 (Ch. Div. 1970)....33,34

TERMINAL CAB CO. V. MIKOLASY, 128

BeJ elo ye he (Sup.Ct. L942 dccococcceosode

UNITED STATES V. ALESSI, 536 F.2d

978 (2 Cit’. L97TO) o cece be ctsees ce088

=i

UNITED STATES V. CLARK, 546 F.2d

1130 (5 eir. UDTT ) cccccecvesssceeds

UNITED ST‘TES V. DIPASQUALE, 677

F.2d 355 (3 Cir. 1982)..37,39,42,43

UNITED STATES V. JONES, 608 F.2d

386 (9 cir. BO7TF dec ts ceeaweoswecene

UNITED STATES V. LAUB, 385 U.S.

Gee < BOOT Pcs 066606 de bbb e6t oe e eee OT

UNITED STATES V. WINSTON, 558 F.2d

105 (2 Cats LOTT doe te 0¥CeRO SOO OO

WELSER V. WELSER, 54 N.J. Super.

= fe ( App. Div. LOSS decuveseesoesvs0se

WICKS V. CENTRAL R.CO., 129 N.J.

Super. 145 (App. Div. 1974)......31

STATUTES CITED

Bede Seke oy oe 8. Pe Ar a aera ce re o

Beaches ih Ve hy oe Pe ee el

Bede Sos TS (oy ane eee IE Re Beare i

RULES CITED

Re Se2rlLOB—Lewecescvevccsescccecsscseseed

Re Go2tlLlOKLewscseceeesecvsccsccsseeed

FED.R.~CIV.~PROC. 60( a) ceeeeeeeeeee 30

FED.R.CRIM.PROC. 32¢0 b)C 1) eee eee eee 35

FED.R.CRIM.PROC. 320 b)C 11) eee eee ee 34

FED.R.~CRIM.PROC. 36..cceeecccesseesId3

FED.R.CRIM. PROC. 3641 6) ss ocsnetonceune

-vii-

OTHER SOURCES CITED

FED.CRIME CONTROL ACT OF 1973,

CFESA Sh vctccodeccteanedseséentaesne

-viii- é

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

UNITED STATES OF AMERICA,

vs.

JOHN DIGILIO,

PETITIONER.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

NEW JERSEY

Petitioner prays that a writ

of certiorari issue to review the

judgment of the Supreme Court of New

Jersey entered in this proceeding on

September 21, 1983.

OPINION BELOW

The judgment order of the New

Jersey Supreme Court is appended to this

Petition.

JURISDICTION

The jurisdiction of the

Supreme Court to review the final

judgment of the New Jersey Supreme Court

is based upon 28 U.S.C.A. $1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner seeks review of

issues of law arising under the Fifth

and Fourteenth Amenmdments to the United

States Constitution.

STATEMENT OF THE CASE

i.

Introduction

This matter presents the Court

with an opportunity both to right an

obvious injustice and to render an

opinion which will clarify the

requirements of due process in the

context of motions to correct clerical

errors in judgments. The basic injustice

in this matter is that an inaccurate,

hand-written “docket sheet” recording

the disposition of a 1954 indictment has

underpinned the return of a 1980 State

indictment against petitioner and

threatenes additional harm to him.

Specifically, the 1980 indictment

charges petitioner with possession of a

weapon by a previously convicted

misdemeanant. The predicate prior

criminal conviction is alleged to be the

disposition of the 1954 indictment. In

truth, petitioner was acquitted of the

criminal offense within the indictment

and adjudicated a disorderly p*rson on

the basis that he utilized loud and

offensive language. Disorderly persons

offenses are not considered criminal

convictions under New Jersey state laws.

See State v. Senno, 79 N.J. 216 (1979).

The nature of the injustice

herein is exacerbated by the fact that

during the period between 1954 and 1980,

the State of New Jersey periodically

confirmed that petitioner did not have

any prior criminal record. The most

salient and direct confirmations was its

issuance in the past of a Waterfront

Commission license and hunting licenses

to petitioner. Such licenses are not

granted to individuals previously

convicted of a crime. The State of New

Jersey also periodically advised the New

York Boxing Commission that petitioner

has no prior criminal record. That

assurance resulted in issuance of

several boxing licenses to petitioner.

Stated somewhat differently, 26 years

after the 1954 disposition, the State of

New Jersey indicted petitioner as the

result of his possession of a

garden-variety hunting rifle which it on

several prior occasions licensed him to

possess and utilize for hunting

purposes. In this context, we stress

that possession of this particular

weapon in itself is not an offense,

absent some form of legal disability.

The net effect of the State's conduct in

this case is that through its grant of

hunting and other licenses to petitioner

it reinforced his reliance upon the view

that no dispute existed respecting

whether the 1954 indictment was

downgraded to a disorderly persons

offense. This reliance caused

petitioner to believe that the weapon at

issue was not proscribed from being

within his residence.

-§<-

Petitioner moved in state

court to correct the erroneous “docket

sheet” which has facilitated the unfair

and baseless prosecution.|! The New

Jersey Law Division (trial court) denied

petitioner a hearing because the court

previously considered and denied a

motion to dismiss the illegal weapons

possession indictment, which is

predicated upon the erroneous “docket

sheet.” Despite the fact that the prior

challenge to the indictment did not

encompass a request to correct the

docket sheet, the Law Division applied

the “law of the case” doctrine. The

motion was denied without a hearing

despite the fact that the prosecutor who

1 Ina related hearing in federal court,

the Honorable H. Curtis Meanor, U.S.D.J.

commented upon prosecutionof Indictment

No. 175-80. That court stated

“regardless of the merits of the

indictment in Hudson County, I thinkits

unfair and a discriminatory

prosecution.”

represented the State in 1954 was

present before the court prepared to

unequivocally testify that the matter

had been disposed of as a disorderly

persons offense. The Appellate division

and Supreme Court of New Jersey affirmed

the ruling.

The basic issue before this

Court is whether petitioner was

improperly denied a hearing and whether

it is violative of due process and

fundamental fairness to prosecute an

individual on the basis of conduct which

the State of New Jersey previously

repeatedly informed him was permissible.

In the absence of a decision to enjoin

the prosecution altogether, we believe

that this Court has an obligation to

Find that due process requires that

petitioner at a minimum be provided a

hearing wherein the merits of his claim

are considered. As will be demonstrated

by a review of the facts, it was a clear

violation of due process to refuse to

conduct a hearing.

ii.

Procedural History

On an unascertainable date in

1951, Hudson County Indictment Nos.

720-51 and 721-51 were filed. Both

indictments charged petitioner John

DiGilio (hereinafter “petitioner”) with:

atrocious assault and battery in

violation of R.S.2:110-1 (Count One) and

assault and battery in violation of

R.S.2:103-1 (Count Two). On October 27,

1954 non-jury trials commenced as to

each indictment before the Honorable

Paul J. Duffy, J.C.C. Judge Duffy

acquitted petitioner of both crimes

charged within Indictment No. 720-51.

Petitioner was similarly acquitted of

the criminal offenses within 721-5l.

However, the, court found petitioner

guilty of a lesser-included disorderly

persons offense within Count Two, based

on petitioner's use of offensive

language. Thereafter, on November 19,

1954 Judge Duffy imposed the statutory

maximum fine for a disorderly persons

offense of $175.00 on petitioner and

assessed $25.00 in court costs.

In October of 1980, Hudson

County Indictment No. 175-80 was filed.

That indictment charged petitioner with

possession of a weapon by a previously

convicted misdemeanant in violation of

NeJ.S.Ae 2A:151-8. Petitioner moved in

the Law Division to dismiss Indictment

No. 175-80. On May 29, 1981 a hearing

was conducted before the Honorable

Joseph M. Thuring, J.S.C. On that same

day, Judge Thurirng denied petitioner's

motion. Both the Appellate Division and

Surpeme Court of New Jersey denied

petitioner leave to appeal.

On December 14, 1981

petitioner filed a notice of motion to

correct the judgment recorded respecting

Indictment No. 721-51. On January 21,

1982 Judge Thuring denied a hearing to

petitioner and also denied petitioner's

motion to correct the judgment. Notice

of Appeal was filed on February 5, 1982.

On May 10, 1983 the Appellate Division

affirmed the trial court's ruling. On

September 21, 1983 the Supreme Court of

New Jersey denied petitioner's petition

for certification.

iii.

Factual Background

a. Indictment No. 720-51 and 721-51 And

Disposition Thereof

-10-

On August 19, 1951 petitioner

was involved in an altercation with

Elizabeth Moore and her son, John Moore.

The altercation stemmed from an

automobile accident. John Moore

initiated a tussle with petitioner,

during which he (Moore) accidentally

struck his mother. Petitioner was not

the aggressor in the altercation and had

no physical contact with Elizabeth

Moore. However, petitioner did direct

offensive language at her. Hudson County

Indictment Nos. 720-51 and 721-51 were

returned against petitioner as the

result of the incident. Each indictment

charged petitioner pursuant to Title 2

with atrocious assault and battery

(2:100-1) and assault and battery

(2:103-1).

Trial of the indictments

commenced on October 27, 1954, three

years after the altercation. The trials

-ll-

were delayed because in the interim

witnesses to the incident enlisted in

the armed forces and served in the

Korean War. On this date, separate

non-jury trials were conducted in each

case before the Honorable Paul J. Duffy,

J.S.C. Petitioner was acquitted of each

of the offenses within Indictment No.

720-51. That indictment related to John

Moore, whom the court found initiated

the physical aspects of the altercation.

With respect to Indictment No. 721-5l,

petitioner was acquitted of atrocious

assault and battery (Count One). The

simple assault and battery charge (Count

Two) was downgraded to a disorderly

persons offense. The basis of the

downgrading was an adjudication that

petitioner utilized offensive language

in his verbal interaction with Elizabeth

-12-

Moore. Petitioner at the time of trial

conceded that he utilized such

language. 2

2 In the interim between the filing of the

indictments and the trials, Title 2 was

repealed and Title 2A enacted. Within

Title 2A assault and battery was

downgraded to a disorderly persons

offense. Nevertheless, N.J.S.A.

2A:169-2b provided that “[o]lffenses

committed prior to January 1, 1952 which

were not at the time of their commission

punishable under this subtitle

[Disorderly Persons] shall be prosecuted

and punished as provided by law in

effect at the time of the commission.”

Cf. N.J.S.A. 1:1-153; State v. Low, 18

Ne.J.- 179, 187 (1955). However, a

disorderly persons offense existed

within Title 2, viz. R.S. 2:202-7 (using

loud and offensive language), which

facilitated downgrading of the offense.

And, a more salutary development than

the enactment of Title 2A made the

downgrading possible within the trial

before Judge Duffy. Specifically, the

Law Division opinion in State v.

Chiarello, 31 N.J. Super. 482 (Cty. Ct.

Div. 1954), rev'd 17 N.J. 36 (1954),

held that it was permissible for a

county court judge to downgrade an

indictable offense to a disorderly

persons offense within the context of

trial of the indictable. Prior to the

county court opinion in Chiarello,

disorderly persons offenses were

required to be handled entirely withina

municipal court. The county court

opinion in Chiarello was in effect at

the time of petitioner's 1954 trial.

-13-

Petitioner appeared before

Judge Duffy on November 19, 1954 for

sentencing. The court imposed a fine of

$175.00, the maximum fine for 4

disorderly persons offense, and $25.00

in court costs. No other form of

sanction was imposed. Because petitioner

conceded that he directed obscene

language at Moore and this disposition

would not affect his ability to secure

boxing licenses, no appeal

was filed.

b. The State's 26 Year Period Of

Acquiescence In The View That

Indictment No. 721-51 Did Not Result

In A Criminal Conviction

During the period between the

1954 disposition and September of 1980,

a time span of approximately 26 years,

the State frequently verified that

That opinion was reversed subsequent to

trial. The thrust of that opinion was

ultimately reinstated in State v.

Saulnier, 63 N.J. 199, 207-208 (1973).

-14-

petitioner was adjudicated a disorderly

person as opposed to convicted of a

crime. The State's verification was in

the form of its clearance of petitioner

to participate in activities prohibited

to individuals previously convicted of a

criminal offense. For example, the State

of New York continued to grant boxing

licenses to petitioner subsequent to

inquiries of the State of New Jersey as

to whether petitioner was previously

convicted of a crime. Petitioner also

was enlisted as a member of the Coast

Guard and secured employment within an

area regulated as part of national

security during the Korean War. And, he

testified in 1970 as a defendant in a

criminal trial in New Jersey with no

fear of impeachment since he and the

State prosecutor were of the view that

he had no criminal record. Furtherrore,

it is highly probative that the State of

-15-

New Jersey issued hunting licenses to

petitioner. Such a license is a permit

to possess and utilize a weapon for

sporting purposes.

Ce Indictment No. 175-80 And The Motion

To Dismiss It

On July 12, 1978, agents of

the Federal Bureau of Investigation

conducted a search in Secaucus, New

Jersey of a premises occupied by

petitioner. During the course of the

search, a garden variety hunting shotgun

was seized from within the premises.

Thereafter, in September of 1980, a full

27 months after the agents' search, a

state as opposed to federal indictment

was filed against petitioner. The

indictment charged him with possession

of a weapon by a previously convicted

misdemeanant. The indictment alleged

that the predicate misdemeanor (crime)

was the disposition of Indictment No.

-16-

721-51. Succinctly stated, 26 years

after disposition of Indictment No.

721-51 and petitioner's participation

in highly-regulated activities and

possession of hunting weapons with

governmental consent, the State

retrenched on its earlier position and

asserted a claim that petitioner had a

criminal record. The basis of the

prosecution was an inaccurate record

which failed to reflect the downgrading

of the indictment to a disorderly

persons offense. The sole record of the

disposition maintained by the Hudson

County clerk is the hand-written notes

of a court clerk which erroneously

states that "...being tried by the court

Defdt is found Guilty on 2d Count of

this Indictment.” No signed order of the

court has been produced. Preparation of

-1Je<-

such an order was specifically required

by R.~R.4:55-3, which was applicable in

1954.

Petitioner moved to dismiss

the weapons possession indictment in May

of 1981. Counsel argued inter alia that

petitioner in 1954 was adjudicated

guilty of a disorderly persons offense

and therefore was not proscribed from

possessing a hunting rifle. Counsel made

no argument specifically directed at

correction of the record of disposition.

All arguments related exclusively to

dismissal of the indictment. The court

denied petitioner's motion.

In its ruling, the court did

not address the validity of the “docket

sheet.” The court presumed that it was

accurate. And, the court miscategorized

the hand-written “docket sheet" as being

a certified copy of the judgment.

=-18=

d. Petitioner's Motion To Correct The

Judgment

On December 14, 1981

petitioner filed a motion to correct the

erroneous record relating to Indictment

No. 721-51. The motion was filed as part

of the proceedings pertaining to

Indictment No. 721-51 and bore no

relationship to the pending indictment

(Indictment No. 175-80). The basis of

the motion to correct was that

documentary evidence and witnesses would

demonstrate that the record should be

corrected to reflect the downgraded

disposition. In fact, petitioner had

ready 12 witnesses who would provide

relevant testimony, including the

prosecutor who represented the State at

the trial of Indictment No. 721-51. The

prosecutor had filed an affidavit which

stated:

The Court remarked

that the testimony

disclosed that there

-19-

was some offensive

language used during

the incident to which

the defendant John

DiGilio admitted...

7 * *

The defendant was

found guilty of a

downgraded offense on

Count Two of

Indictment No. 721

under the Disorderly

Persons Act for

assault committed by

use of offensive

language.

The court denied petitioner a

hearing . The court erroneously ruled

that the motion was part of the

proceedings pertaining to Indictment

175-80 and applied the “law of the case

doctrine.”

iv.

The Opinion Of the Appellate Division

Which In Effect Was Adopted By

The Supreme Court Of New Jersey

-20-

The Appellate Division

affirmed the decision of the trial

court. The panel ruled both that

petitioner was properly denied a hearing

of his motion for correction of the

judgment pertaining to Indictment No.

721-51 and that he, in fact, was

convicted of a crime in 1954. With

respect to denial of a hearing, the

trial court had ruled that the “law of

the case doctrine” precluded such a

hearing since the court previously

issued a ruling as to petitioner's prior

criminal record as part of motions

relating to Indictment No. 175-80. In

reviewing that particular portion of the

decision, the Appellate Division stated

that “technically the law of the case

doctrine is inapplicable,” since the

prior motions were directed to the 1980

indictment and not the 1951 indictment.

The Appellate Division, however,

-2l-

substituted the doctrine of equitable

estoppel and affirmed the denial of a

hearing.

The panel also fashioned an

opinion respecting the merits of

petitioner's claim that the judgment was

inaccurate. The Court stated that it was

convinced that no mechanism existed in

1954 to facilitate downgrading of the

offense from an indictable offense to a

disorderly persons offense. Therefore,

stated the Court, petitioner of

necessity was convicted of a crime. In

practical effect, the Appellate Division

stated that Judge Duffy would have been

in error had he downgraded the offense

and the court would, thus, presume that

no such downgrading transpired. The

Appellate Division expressed no concern

respecting the failure of the State to

maintain a signed order of the court or

-22-

other judicial record.) The Supreme

3 The Appellate Division's opinion is

based upon an incorrect assumption. the

Court stated “the State and defendant

indicate agreement that the statute

implicated was R.S.2:103-1." We do not

concede this issue. In the context of an

evidentiary hearing, it might well have

been determined that the matter was

downgraded to R.S.2:202-7 (Title 2

disorderly persons offense of uttering

loud and offensive languge) as opposed

to 2A:170-26 (Title 2A disorderly

persons assault). No hearing was

conducted and in the absence of a

judicial order, events must be

reconstructed on the basis of

examination of the witnesses.

Particularly, the prosecutor who

represented the State adamantly

maintains that the matter was downgraded

to a disorderly persons offense which

encompassed usage of offensive language.

His affidavit does not incorporate any

statutory citation as to the offense to

which the count was downgraded. We

stress that the Appellate Division in

its opinion incorrectly states that

"none of the affidavits state that the

trial judge found defendant guilty of

uttering loud and offensive language.”

The affidavit of the prosecutor

specifically refers to use of offensive

language. Similarly, as part of its

analysis, the Appellate Division relied

upon what it perceived to be a $200.00

fine which was imposed upon petitioner.

The statutory maximum fine for a

disorderly persons offense was $175.00.

This latter element of reliance was

incorrect since the $200.00 amount

imposed upon petitioner reflected a

@23

Court of New Jersey refused to disturb

affirmance of the decision to deny

petitioner a hearing.

$175.00 fine (the statutory maximum) and

$25.00 in court costs.

-24-

Reasons For Granting The Writ

POINT I

CERTIORARI SHOULD BE

GRANTED TO ESTABLISH

CONSTITUTIONALLY-BASED

GUIDELINES AS TO THE

NECESSITY FOR AND

NATURE OF HEARINGS TO

CORRECT INACCURATE

JUDGMENTS RENDERED IN

CRIMINAL CASES WHICH

WRONGLY THREATEN AN

INDIVIDUAL's FUTURE

LIBERTY AND ALSO TO

DETERMINE WHETHER A

HEARING WAS PROPERLY

DENIED HEREIN

The primary issue before this

Court is whether petitioner was

improperly denied a hearing of his

motion to correct the inaccurate

judgment which has been misutilized in a

fashion infringing upon his liberty,

viz. to underpin a discriminatory

prosecution and to chill his everyday

activities. As part of its consideration

of that issue, this Court should

construct an opinion which closes the

precedential void respeeting whether the

-25-

Constitution requires application of a

particular burden of proof in such

hearings and upon which party it imposes

that burden. We submit that petitioner

was improperly denied a hearing. The

basis for our view is that the State

courts deprived him of the opportunity

to present clear and unassailable

evidence that the judgment was

inaccurate. Those courts utilized an

ambiguous hand-written “docket sheet” as

conclusive proof of a prior conviction

of crime. We stress that the presumed

accuracy of the “docket sheet” was the

basis of denial of a hearing. Petitioner

was absolutely entitled to a hearing. We

further submit that with respect to

motions to correct judgments in criminal

cases, the State must bear the burden of

proving that a particular judgment is,

in fact, accurate. Placement of the

burden upon the State is the only fair

-26-

rule of law since the State has a legal

obligation to maintain accurate criminal

history record information. See Federal

Crime Control Act of 1973, $524(b); 28

C.F.R., Chapter I, Part 20. Use in the

instant case of an inaccurate "docket

sheet” to underpin a criminal

prosecution, which was not supported by

any order of the court, is exemplary of

the necessity that the State be required

to maintain accurate judgments and

orders in support of the judgments. And,

the sole means to ensure that such

documents will be maintained is to

fashion a penalty for failure to do so.

i.

An Individual Has An Absolute Right To

An Evidentiary Hearing Where Evidence

Is Proffered Tantamount To A Prima Facie

Demonstration That A Judgment Is

Inaccurate

-27<-

Petitioner proffered evidence,

including the testimony of the

prosecutor who represented the State,

which indicated that the “docket sheet”

maintained respecting disposition of

Indictment No. 721-51 was inaccurate.

Petitioner also proffered licenses which

the State granted him for which he would

have been ineligible in the event that

the docket sheet was accurate. The trial

court refused to conduct a hearing and,

in effect, stated that the hand-written

“docket sheet” in itself conclusively

indicated that petitioner was convicted

of a criminal offense. The State did

not proffer any evidence establishing

the accuracy of the “docket sheet.” It

merely offered the sheet itself. No

order or judgment signed by Judge Duffy

has ‘been forthcoming and it has

apparently been lost by the State.

-28-

In affirming the trial

court's decision, the Appellate Division

stated that any downgrading of the

assault offense would have constituted

error and, thus, it would presume that

no such downgrading occurred. In short,

the Appellate Division established an

irrebuttable presumption that an

ambiguous “docket sheet” must be

interpreted as a disposition that

comports with law. The Supreme Court of

New Jersey refused to disturb that

ruling. Clearly, the lower courts erred.

With particular respect to the position

that the absence of error in the docket

sheet must be presumed, such logic is

plainly irrational since appellate

courts were formed out of the

understanding that error is not

uncommon. And, mechanisms of a

continuing nature must exist to

=-29-

facilitate correction of error whenever

it is identified. See, Fed.R.Crim.Proc.

36( a); Fed.R.Civ.Proc. 60(a).

Under New Jersey state law,

correction of clerical errors within

judgments is governed by R.1:13-1. The

rule provides that errors in a judgment

or the record arising from oversight or

omission may at any time be corrected by

the trial court, upon its own initiative

or on motion of any party. In re Newark

Teachers’ Assn., 95 N.J.w Super. 117

(App. Div. 1967). This rule is purported

to apply to judgments entered in

criminal or penal Matters. Thus,

consistent with what we perceive 'to be

the demands of due process, New Jersey

court rules embody a mechanism designed

to facilitate correction of error in a

judgment whenever it is identified.

State v. Connors, 129 N.J. Super. 476,

484 (App. Div. 1974), is instructive in

-30-

this regard. In Connors, the Appellate

division emphatically endorsed the

principle that an error in a judgment

caused by mistake can be corrected at

any time. Connors involved a

quasi-criminal proceeding. Cf. Wicks v.

Central R. Co., 129 N.J. Super. 145, 149

(App. Div. 1974). (Clerical error may be

corrected at any time); Lakewood

Township v. Block, 251, 48 N.J. Super.

581, 591 (App. Div. 1958) (Court may

correct a clerical error by amendment

without a rehearing and without reviving

a right theretofore barred).

This principle, permitting

correction of a clerical error at any

time, is not supported exclusively by

the rules which guide New Jersey courts.

It has been stated that a New Jersey

state court is possessed of the inherent

power to control its own judgments

independent of the formal rule. Welser

=3l-

v. Welser, 54 N.J. Super. 555, 563-564

(App. Div. 1959). In this context, it is

axiomatic that a court has the power to

amend a record which misstates the real

verdict or a judgment which misstates

the court's opinion. Terminal Cab Co. v.

Mikolasy, 128 N.J.L. 275, 277 (Sup. Ct.

1942); Delker Ve Freeholders of

Atlantic, 90 N.J.L.~ 473, 475 (E. & A.

1917). And, it is equally clear that a

judicial as opposed to clerical error in

entering a judgment caused by mistake

can be corrected by the court at any

time. King v. Ruckman, 22 N.J.Eq. 551

(Bs 6 Gs 287%).*

4 Other jurisdictions, both federal and

state, of necessity as a matter of

fairness recognize the right of an

interested party to have the appropriate

record, judgment or order accurately

reflect the final disposition of the

case. In O'Brien v. New York Edison Co.,

26 F.Supp. 290 (S.D.N.Y. 1939), the

court noted that if the judgment fails

to set forth the court's determination

of the prior suit with sufficient

accuracy, “it is the privilege of the

plaintiff to move for amendment of the

-32-

The duty of a New Jersey state

court to rectify any errors or omissions

in the record is also made clear by the

rule that “an order which has no basis

in any record of the court making the

order, or in documents filed with that

court that may be made into a record, is

a mere nullity.” Stephenson Ve

Stephenson, 112 N.J. Super. 531 (Ch.Div.

1970); In re Ryan's Estate, 130 N.J.Eq.

380, 381 (Prerog. 1941). In Stephenson

v. Stehenson, supra, the court found

that no judicial order had ever been

formally entered in the prior

adjudication of the case, and held that

judgment to procure such relief as the

law affords.” Id. at 292. Similarly, in

Cazell v. Cazell, 3 P.2d 479 (Kan.

1931), the court stated that “no lapse

of time, however long, will preclude the

correction of the judgment roll so as to

make it speak precisely what the court

intended.” Id. at 481. See

Fed.R.Crim.Proc. 36; Johnson v. Mabry,

602 F.2d 167 (8 cir. 1979); United

States v. Jones, 608 F.2d 386 (9 Cir.

1979).

=-33-

“the failure to submit a formal written

order in the case of any determination

is at the risk of the parties being

unable later to move with respect

thereto or to appeal therefrom.” Id. at

533. Cf. Fed.R.Crim.Proc. 32(b)(11) (The

judgment shall be signed by the judge

and entered by the clerk). Thus, the

foregoing demonstrates that present New

Jersey jurisprudence respecting

correction fo judgments is clear with

regard to the right to an accurate

judgment. However, no judicial precedent

exists respecting the procedures

applicable to the filing of a motion and

the circumstances under which a hearing

must be conducted. The problem in the

instant case stems from the situation

identified in Stephenson v. Stephenson,

supra. Specifically, the State has not

maintained a formal written order and

now requests that:a grand jury, court

=-34-

and petit jury accept a handwritten

“docket sheet” as proof that petitioner

was previously convicted of a crime. See

Fed.R.Crim.Proc. 32(b)(1). Worse yet,

however, is the fact that the courts of

New Jersey have permitted the State to

proceed in this fashion. This is a

blatant violation of due process.

We submit that the instant

matter is an appropriate case in which

to fashion guidelines for the conduct of

evidentiary hearings as part of motions

to correct judgments for application

uniformly within the State and federal

system. In this context, we assert that

it is clear that any form of fair

circumscription of the law in this area

must encompass extension of a hearing in

the circumstances present herein. Of

necessity any rule fashioned by this

Court must repose the grant of a hearing

within the discretion of the trial

-35-

judge. The discretion exercised below

was the product of a failure to consider

all relevant factors and a clear error

in judgment. The State courts relied

upon the “docket sheet” but gave no

consideration as to whether the document

was accurate. We iterate that it was

presumed to be accurate. Those courts

adopted the position that it must be

presumed that the ambiguous “docket

sheet” reflected a disposition which

comported with law. And, since the State

courts believed that downgrading of the

offense was not legally proper, it would

presume that no such downgrading

occurred.»

5 We stress that an error of the court in

downgrading the offense, if such error

occurred, is not ground to now

substitute a conviction of crime for an

adjudication of a disorderly persons

offense. If the downgrading was illegal,

we submit that the State's 26 year

acquiescence in such a disposition bars

it from seeking any alteration in the

disposition at this juncture. See Point

II, infra. And, in the absence of some

-36-

Simply put, in denying

petitioner a hearing, the state courts

ignored the proffer as to the

contemplated testimony of individuals

present at the time the disposition was

rendered and gave no consideration

whatsoever to prior acts of the State

verifying that petitioner had no

criminal record. Thus, each of the

courts below committed clear errors in

judgment in reaching the conclusion that

petitioner was not entitled to a

hearing. See United States Ve

DiPasquale, 677 F.2d 355, 356-359 (3

Cir. 1982) (An ambiguous state court

judgment may not be presumed nor

interpreted to establish the predicate

order of the court or other reliable

document such as a transcript, the state

courts may not undo the pattern of

petitioner's life on the basis of an

ambiguous “docket sheet.”

-3]=

felony under federal statute making it a

crime for a convicted felon to possess a

firearm).

In the instant case,

petitioner has not had even a bare

semblance of a full and fair opportunity

to litigate the issue of accuracy.

Subsequent to the motion to dismiss the

indictment wherein the accuraty of the

“docket sheet” itself was challenged,

petitioner marshalled 12 witnesses and

much documentary evidence corroborative

of his view that the “docket sheet” is

imaccurate. The state courts refused to

rule that he was entitled to have the

accuracy of the recollections of his

witnesses and the legitimacy of his

documentary evidence weighed against the

notations within the hand-written

“docket sheet.” The opportunity which we

seek is to gain the day in court to

-38-

which we are entitled. For some

inexplicable reason, the state courts

have resisted a full and fair hearing.

In sum, petitioner was

absolutely entitled to a hearing of his

motion to correct the judgment. This

Court must grant certiorari and reverse

the decision below. See United States v.

DiPasquale, supra at 359 (Extrinsic

evidence is admissible to prove the

accuracy or inaccuracy of an ambiguous

state court judgment). Due process

demands no less.

ii.

In The Context Of A Colorable Motion to

Correct A Judgment Rendered In A Criminal

Case The State Must Bear The Burden

Of Proof Respecting The Accuracy Of A

Judgment

The State of New Jersey has a

legal obligation, imposed by State and

Federal regulations, to maintain

accurate and complete criminal history

-39-

record information. See 28 C.F.R.

Chapter - Part 20; R.R.4:55-3;

R.4:42-1(a). Inaccurate criminal history

record information has the capacity to

cause great detriment to an individual

in his enjoyment of life and liberty,

@.g- voting rights, employment

Opportunities and general reputation

within the community. The federal

regulations to which the State of New

Jersey must adhere are premised upon an

awareness of this impact upon liberty.

It is our considered view that whenever

a colorable challenge is raised to the

accuracy of a judgment rendered in a

criminal case, the State must bear the

burden of proof with respect to

accuracy. In circumstances where the

State has maintained appropriate

records, it will meet its burden without

undue expenditure of resources. The

State must merely produce a certified

-40-

signed order of the court which was

reviewed by both parties prior to its

filing. Placement of the burden upon the

State is the singularly fair result

since in every case where a negative

consequence is sought, the State will be

the party requesting that result.

The instant matter is an

example of the potential and actual

dangers attendant to dissemination of

inaccurate information. Although it was

required by law to maintain a signed

order of the court reflecting the 1954

disposition, the State has failed to do

so. R.R.~4:55-3. And, it has proffered an

unsigned, hand-written “docket sheet” as

proof that petitioner was previously

convicted of a crime. More importantly,

that document in itself has been used to

underpin a 1°80 orosecution of

petitioner. The conduct of the State in

this case and the lower court's

-4l-

tolerance of it is an affront to the

dignity of the judicial process and

general notions of the orderly and fair

administration of the criminal justice

system.

With regard to the opinion of

the Appellate Division, that court

affirmed the trial court's decision

absent any intimation as to what it

perceived to be the appropriate burden

of proof. We are unable to decipher in

legal terms the definition of "a strict

burden of proof.” In any event, that

court placed the burden on petitioner.

In United States v. DiPasquale, supra,

the Third Circuit issued a warning to

law enforcement agencies that ambiguous

judgments will not suffice in

prosecutions where the judgment is

proffered as establishing the predicate

felony prerequisite to liability within

a disability-based criminal statute. The

-42-

DiPasquale Court further stated that

extrinsic evidence which Supports

particular interpretations of the

judgment will not suffice. 677 F.2d at

358-359. The Court in DiPasquale

essentially ruled that law enforcement

agencies bear the burden of conclusively

establishing the nature of a

disposition. 679 F.2d at 359. The

DiPasquale Court stated that where the

evidence adduced to interpret the

judgment is compatible with more than

one interpretation, any finding must be

in favor of the challenge to the

judgment. Id.

This Court must definitvely

rule that the correct posture is to

place the burden on the State in the

context of motions to correct judgments.

Justice and fairness demand no less.

-43-

POINT II

CERTIORARI SHOULD BE

GRANTED TO DETERMINE

WHETHER THE STATE'S

CONDUCT IN

CORROBORATING OVER A

276 YEAR PERIOD THAT A

NON-CRIMINAL

DISPOSITION WAS

EFFECTED AS TO

INDICTMENT NO. 721-51

PRECLUDES IT NOW AS A

MATTER OF DUE PROCESS

AND FAIRNESS FROM

ALTERING THAT POSITION

TO THE DETRIMENT OF

PETITIONER.

Throughout the period between

the 1954 disposition of Indictment No.

721-51 and 1980, the State of New Jersey

verified that petitioner was not

previously convicted of any crime and

suffered no disability respecting lawful

possession of a firearm. The State, in

fact, granted petitioner hunting

licenses and thereby authorized his

possession and use of a hunting weapon

for particular purposes. Thereafter,

the State seized such a weapon from

-44-

within petitioner's residence and

initiated a prosecution of petitioner

for its possession. We believe that the

State's actions are violative of due

process. This Court should grant

certiorari and determine whether due

process precludes modification to

petitioner's detriment of the position

which the State adopted throughout the

26 year period between 1954 and 1980.

Indeed, it is our considered view that

any concept of justice mandates

intervention by this Court into this

matter to establish some standard of law

as to the instant conduct by the State

of New Jersey to the extent that it may

have induced a violation of law.

Petitioner herein clearly reasonably

relied upon an administrative order or

grant of permission in possessing the

weapon. Prosecution or any infringement

-45-

of his liberty in this circumstance is

fundamentally unfair and violative of

due process.

We submit that due process

estops the State of New Jersey from

challenging petitioner's motion to

correct the judgment. In

administratively issuing hunting and

other licenses, the State in the past

conceded that petitioner had no prior

criminal record. Indeed, the State’ went

so far as to acknowledge in a criminal

trial in 1970 that petitioner had no

prior record and could testify without

fear of impeachment. Surely had the

State believed that petitioner was

previously convicted of an assault, it

would have exhibited a lustful desire

to infect the jury's consideration of

the case with this negative information.

-46-

This Court as the ultimate guardian of

constitutional rights must condemn the

conduct herein.

In United States v. Clark,

546 F.2d 1130, 1135 (5 Cir. 1977), the

Fifth Circuit specifically advised

governmental agencies within its

jurisdiction that “the government may

not actively mislead someone by

authoritatively assuring him that an

action is proper and, then, prosecute

him for that action.” The Clark Court

relied upon this Court's opinions in

Raley v. Ohio, 360 U.S. 423 (1959) and

United States v. Laub, 385 U.S. 475

(1967). The Raley Court stated that

“to sustain [such prosecutions] would be

to sanction an indefensible sort of

entrapment.” 360 U.S. supra at 426.

Similarly, the Court in Laub stated

that “citizens may not be punished for

actions undertaken in good faith

-47J=

reliance upon authoritative assurance

that punishment will not attach.” 385

U.S. supra at 486. An authoritative

assurance is in effect justification to

act. Conduct which is justified is legal

conduct. United States v. Winston, 558

F.2d 105, 109 (2 Cir. 1977). Cf. United

States v. Alessi, 536 F.2d 978, 980-981

(2 Cir. 1976).

In sum, due process

considerations preclude the State from

retrenching on its earlier position.

This Court must so rule. Only in this

fashion will justice be served.

o-48-

CONCLUSION

For the foregoing reasons, we

respectfully request that this Court

grant certiorari.

Respectfully submitted,

ae

ALAN DEXTER BOWMAN

STEVEN H. GIFIS

ATTORNEYS FOR PETITIONER

DATED: December 20, 1983

-49-

Appendix

SUPREME COURT OF NEW JERSEY

0-98 SEPTEMBER TERM 1983

STATE OF NEW JERSEY, 21,450

Plaintiff-Respondent, *

Vv. ad ON PETITION FOR

CERTIFICATION

JOHN DIGILIO, *

Defendant-Petitioner.

To the Appellate Division, Superior Court:

A petition for certification of the

judgment in A-2350-81T4 having been submitted

to this Court, and the Court having considered

the same;

It is ORDERED that the petition for

certification is denied with costs.

WITNESS, the Honorable Robert L.

Clifford, presiding Justice, at Trenton, this

20th day of September, 1983.

Clerk

SUPREME COURT OF THE UNITED STATES

No. A-403

JOHN DiGILIO ,

Petitioner,

NEW JERSEY

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of

counsel for petitioner

IT IS ORDERED that the time for filing a

petition for writ of certiorari in the above-

entitled cause be, and the same is hereby,

extended to and including December 20, 1983.

_/s/ William J. Brennan, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 28th

day of November, 1983.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE

ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-2350-81T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Vv.

JOHN T. DIGILIO,

Defendant~-Appellant.

Submitted May 10, 1983-Decided May 25,

1983

Before Judges Fritz and Joelson.

On appeal from Superior Court, Law

Division, Hudson County.

Alan Dexter Bowman and Steven H. Gifis,

attorneys for appellant (Mr. Gifis and

Michael C. Querques of counsel; Mr.

Gifis and Mr. Bowman on the brief).

Irwin I. Kimmelman, Attorney General of

New Jersey, attorney for respondent

(Jack J. Zappacosta, Deputy Attorney

General, of counsel and on the letter

brief).

PER CURIAM

In 1951, a Hudson County grand

jury returned a two-count indictment

against defendant. The first count

charged that on August 19, £952.

defendant committed an atrocious assault

and battery on Elizabeth Moore contrary

to R.S.2:110-1. The second count charged

defendant with simple assault and

battery on the same woman on the same

date as alleged in the first count.

Although there was no reference in count

two to the statute alleged to have been

violated, the briefs submitted on behalf

of the State and defendant indicate

agreement that the statute implicated

was R.S.2:103-1. For unexplained

reasons, the case was not brought to

trial until October 27, 1954, at which

time defendant consented to be tried by

a judge without a jury.!}

1 By consent, the indictment was

consolidated for trial with another

indictment against defendant, thenature

@2-

The official records of the

clerk of Hudson County contain a hand

written page (referred to in defendant's

brief as a “docket sheet”) dealing with

the history of the indictment against

defendant from the time of arraignment

to the time of sentence. Although the

identity of the person who prepared that

page has not been positively disclosed,

it was apparently a court clerk. At any

rate, the handwritten page has been

certified by the Clerk of Hudson County

as "...a true and correct copy of

proceeiings in the case of the State of

New Jersey -vs- John DiGilio for the

charge of Assault & Battery in violation

of R.S.2:110-l-Indictment No. 721,1951

term.” Included in the page is the

Following long-hand notation:

of which has not been divulged to us.

Defendant was found not guilty on that

indictment.

Oct. 27/54 By consent of both

counsel, court permits trial

of this indictment

Simultaneously with Ind. No.

720, Term 51, and defendant

having waived trial by jury

and being charged he again

pleaded not guilty as charged

and being tried by the court

defendant is found guilty on

2nd count of this indictment

and he is continued on parole

% probation officer for

sentencing Nov. 19/54.

Judge Duffy

In 1980, following a search by

the Federal Bureau of Investigation,

during the course of which a shotgun was

seized in premises occupied by

defendant, a Hudson County grand jury

returned an indictment against him for

violation of N.J.S.A. 2A:151-8, which

made it a misdemeanor for any person

convicted of certain crimes, including

assault, to possess a firearm.

Defendant's counsel then made a motion

to dismiss the indictment, evidently on

the ground that in 1954 he was not

convicted of a crime, but a disorderly

person offense. 2 Being unsuccessful in

such motion, he sought leave from us for

an interlocutory appeal, which we

denied, and which denial the Supreme

Court refused to disturb. Defendant next

filed a motion for correction of the

record relating to his 1954 conviction

and seeking a plenary hearing. This is

His appeal from the trial court's denial

of that motion. We affirm.

The trial judge based his

rejection of defendant's motion on the

“law of the case” doctrine. In doing so,

he pointed out that in previously

denying the motion to dismiss the

indictment, he had dealt with

defendant's contention that his 1954

conviction had been only for a

disorderly person offense. Since that

prior motion was addressed to the 1980

2 The motion is not included in

defendant's appendix. See 2:6-1(a)(7).

indictment whereas the motion to correct

the record was addressed to the 1954

indictment, technically the “law of the

case” doctrine is inapplicable. That

doctrine "“..--applies only to the

decision regarding a question of law or

fact made during the course of the same

litigation...” State v. Powell, 176 N.J.

Super. 190, 195 (App. Div. 1980), certif

den. 87 N.J. 333 (1981). However, we are

persuaded that another tenet, i.e.,

equitable estoppel, applies to the

second motion. That doctrine "...bars

relitigation of any issue which was

actually determined in a prior action,

generally between the same parties,

involving a different claim or cause of

action.” State v. Gonzales, 75 N.J. 181,

186 (1977). Defendant contends that the

trial court's earlier ruling should not

serve as a bar to his present motion

because there is a more stringent burden

of proof needed to dismiss an indictment

than to correct a record. [It is true

that an indictment should not be

dismissed “except on the clearest and

plainest grounds.” State v. Porro, 175

N.J. Super. 49, 51-52 (App. Div. 1980).

However, a strict burden of proof should

also be applied regarding an application

to change an official record indicating

that a defendant has been convicted of a

crime so as to reflect a conviction of a

disorderly person offense instead.

Irrespective of this, equitable estoppel

as to the second motion is posited not

on the earlier determination that the

indictment should not have been

dismissed, but on the same issue decided

in the latter motion respecting the

mature of the 1951 indictment. The canon

of proof respecting that issue is the

same in any case.

Nevertheless, we shall now

proceed to a discussion of defendant's

appeal insofar as it deals with the

merits of the trial court's dismissal of

the motion for a correction of the

record and a plenary hearing on that

issue. Referring to the affidavit of

former assistant prosecutor, Leon

Miroff, subritted in Support of

defendant's motion, we observe the

statement that “[t]he defendant was

found guilt of a downgraded offense on

count two of indictment 721 under the

Disorderly Persons Act for assault

committed by the use of offensive

language.” (Emphasis added). The

affidavit of a court attendant, Anthony

Ippolito, states that he recalls the

defendant "...being found guilty of the

second count of indictment 721 charging

simple assault and battery because he

admitted to using offensive language.”

He then added that the trial judge

",..e-downgraded the charge to a

disorderly person's charge after having

heard arguments...” Furthermore, the

affidavit of Joseph Soriero states

that he was present when defendant

".eewas found guilty of the second count

of indictment 721 charging assault and

battery after Judge Duffy had downgraded

this charge to a disorderly persons's

charge.”?

3 Mr. Soriero's affidvit states "...I

attended the trial of John DiGilio at

the request of a member of Mr. DiGilio's

family who was a member of his political

organization at the time.” The affidavit

which is on the Stationary of

defendant's attorney at the time, John

P. Russell, goes on to state that

because of his close association with

Judge Duffy, Soriero "...was requested

by John P. Russell, Esq., to speak with

the Judge as to his recollection of the

within matter.” The affidvit then states

that Soriero visited Judge Duffy who

told him that he had downgraded the

charge from assault and battery to a

disorderly person offense. We do not

here pass upon the propriety of

counsel's action. However, we are

puzzled as to why, rather than relying

on patent hearsay, counsel did not

-9-

Assuming the credibility of

these affiants and conceding their

remarkable gift of total recall a

quarter of a century after the events

they now remember, we are satisfied that

their affidavits indicate that there was

no need for a plenary hearing. Accepting

these affidavits as credible, we find

that they indicate that defendant was

convicted of assault or of assault and

battery committed on August 19, 1951. As

we shall soon discuss,this means that

defendant was convicted of a crime. When

a defendant has been convicted of a

specific offense which is a crime, a

judge is not empowered to overrule the

Legislature by “downgrading” that crime

to a disorderly person offense. It must

be kept in mind that none of the

obtain an affidavit from the judge

himself. See R.1:6-6. We understand that

the judge has since died.

-10-

affidavits state that the trial judge

found defendant guilty of uttering loud

and offensive language, which was

constituted a disorderly person offense

by R.S. 2:202-7.

We must consider the time

frame of the offense charged in the 1951

indictment along with the time that the

offense of assault or assault and

battery was reduced from a misdemeanor

to a disorderly person status. The

statute in effect on August 19, 1951,

the time of the offense, was

R.S.2:103-1. That section provided in

part that “[a]ssaults, batteries..and

all other offenses of an indictable

Mature at common law, and not expressly

provided for by statute, shall be

misdemeanors.” Effective January 1,

1952, Title 2 of the Revised Statutes

was replaced by Title 2A which in

N.J.S.A. 2A:170-26 provided that

-ll-

“[a]ny person who commits an assault or

an assault and battery is a disorderly

person.” Defendant's trial and sentence

took place in 1954. However, N.J.S.A.

2A:169-2b provided that “[o]ffenses

committed prior to January 1, 1952,

which were not at the time of their

commission punishable under this

subtitle [Disorderly Persons] shall be

prosecuted and punished as provided by

law in effect at the time of the

commission.” Furthermore, R.S.1:1-15

provided that “[nJlo offense, committed,

and no liability, penalty or forfeiture,

either civil or criminal, incurred

previous to the repeal or alteration of

any act or any part of any act by the

enactment of the Revised Statutes or by

any act heretofore or hereafter enacted

shall be discharged, released or

affected by the repeal or alteration of

the statute under which such offense,

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liability, penalty or forfeiture was

incurred...” This statute, R.S.1:1-15,

was "....expressly made applicable to

Title 2A by L.1951, c¢ 344, sec 10.”

State v. Low, 18 N.J.179, 187 (1955).

Therefore, it is clear that a

person who committed an assault or an

assault and battery in 1951 was required

to be regarded as having been convicted

of a misdemeanor and sentenced as such

even though that conviction and sentence

did not occur until 1954. Additionally,

since the fine of $200 imposed on

defendant exceeded the maximum fine of

$175 fixed by R.S. 2:205-1 which was

in effect at the time of defendant's

offense, it may be argued that the trial

judge thereby indicated an intention not

to treat defendant as a disorderly

person. At any rate, the judge lacked

the authority to sentence defendant

x

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except as having been convicted of a

misdemeanor since the conviction was for

assault or assault and battery.

Affirmed.

-lhe