Opposition Brief — McClary v. New Jersey

＋

— effeial reports of opinions Setivered

in the courts-below ..... ..

Il—Counter-statement concerning Jari teten

As vo Permmonna’s Acrox mx tam Fevers. Covrrs

Buetow .

As to Tun Atiaorp Excessive Sextayces

Countea-Srarement or Facts

Pour I—The failure to assign ane at defend-

ant’s arraignment was not a denial of due process

Pour IT—The amending of the indittment did not

constitute error prejudicial to this petitioner

Pourt I1T—The alleged ineffective counsel point is

frivolous

Conc usion

Appendix :

A—rder of Supreme Court of New Jersey

Denying Prtition for Certification _........

B—Per Curiam Opinion of the Superior Court

of New Jersey, Appellate Division

C—Order of the United States Court of Ap-

peals for the Third Cireuit

and Order of the United States

District Court for the District of New Jer-

sey 2

*

2

Kk

' Pndictment No. 206-68 —

Judgment: Re: Indictment No. 1-24648 . Sa

Indictment No. 247-68 ua

e Indictment No. 124748... „„

‘Coleman v. Alabama, 399 U. 8. 1, 90 8. Ct. 1999,

26 L. Ba. 24 387 (1970) 5,6

Koavalin v. Wer, No. 19,731, United States Court

of Appeals for the Bighth Circuit — 8.7

State w. en —— N. J. Super. — (1971),

. -aurenndeceaa 10

Statutes Ched

NIB. 2A867- ‘

NJS. 2A 94-1 | — 5

aA 2A:151-4(0) 5

28 U.: ‘

See. 1257(3) 2

‘Sec. 2254 ... i 83

<a — —

STATE OF NEW JERSEY,

Gn Pettiten tor Wek of Curtiorent te the

, Supreme „ Sew Sumy

n —

Nennen

of the Supreme Court of the United States: :

The Respondent, ‘The State of New Jersey, anewering |

the Petitioner's Petition for a Writ of Certiorert to the |

‘Supreme Court of New Jersey, respectfully shows :

ee

*

L. ,

Reference to official reports of opinions delivered

in the courts below.

The order of the Supreme Court of New Jersey, deny-

ing the petition for certifieation to that court, for the con-

venience of this court, is annexed hereto. |

The opinion of the Superior Court of New Jersey,

Division, referred to in Petitioner’s petition as

Exhibit (11), but not annexed to the brief served upon

the Respondent, for the convenience of this court, is an-

nexed hereto.

The State’s brief filed in the Superior Court of New

Jersey, Appellate Division, is also available to this court

if this court desires it to be filed. A 5

| iL

Counter-statement concerning jurisdiction.

As Counsel for Petitioner states in the petition, juris-

diction in this court is invoked under 28 U.S. C., Sec. 1257

(3), alleging deprivation of rights secured by the Con-

stitution of the United States, it is respectfully submitted

that the Supreme Court of New Jersey did not decide

any federal questions of substance not heretofore deter-

mined by this court or contrary to the applicable deci-

sions of -this court.

The State here concedes that if this court has jurisdie-

tion it must be invoked and authorized by 28 U.S. C., See.

1257(3). ,

We respectfully submit, however, that no title, right.

privilege or immunity was determined below, in the Ap-

court, or contrary to the

We therefore respectfully submit that this court should

not entertain jurisdiction and issue it’s writ of certiorari

to review the decision of the court below.

As to Petitionen s A:cction in the Federal Courts Below

The action taken by Petitioner in the United States

District Court for the District of New Jersey (See copy

of its opinion and order annexed hereto) and the action

of the United States Court of Appeals Third Circuit

(See order annexed hereto) were on matters of procedure

and the United States District Court for the District of

New Jersey dismissed petitioner’s application as pre-

maturely made under 28 U.S.C. § 2254

The decisions of these two courts are not before this

court in any way and have no relevance on this petition.

limits; despite defendant’s claim we do not find

them ‘manifestly excessive.’ There is no merit in

his further argument that the failure to assign

‘eounsel to represent him at the preliminary hear-.

ing amounted to a denial of due process. Not only

did he waive preliminary hearing but State v.

Kirkland, 82 N. J. Super. 409 (App. Div. 1964), is

to the contrary.”

S8

Petitioner's conviction rests upon a plea of guilty to

charges of petit larceny and unlawful possession of a

weapon. For these offenses, both misdemeanors at the

of one to two years in New Jersey State Prison. The

cause was originally heard on complaints in New Bruns-

wick Municipal Court, where petitioner waived his right

to preliminary examination. The case subsequently went

to the Grand Jury which returned indictments. Thus,

the petitioner eventually found himself in County Court

where the judgments of

Defendant, .in effect, pleaded guilty to two misde-

meanors. The maximum sentence on both would have

been six years imprisonment and a fine of $2,000.00.

Thereafter, he pulled a loaded gun from his ear, which

one of the students took away from him. The event« are

unrelated. Defendant never used the gun in the breaking

and entering. In that sense the sentences were not ex-

Defendant next asserts had he been represented by

counsel in the Municipal Court of New Brunswick, the

complaint charging “grand” larceny would have been re-

duced to “petit” larceny and ‘his maximum sentence, or

term would have been a workhouse term. The defendant

ignores several facts. In addition to the charge of lar-

ceny in the municipal court, there were also pending com-

plaints for a violation of N. J. S. 2A:94-1, breaking and

entering, and also N. J. S. 2A:151-4(a), illegal possession

of a weapon. Defendant waived a preliminary hearing

and indicated he would obtain counsel. He never asked

for a continuance. Moreover, he fails to recognize the

local judge must concur in the reduction of the charge he

complains of. That was highly unlikely where the other

charges were pending. Defendant suffered no prejudice.

The controlling case of this court is Coleman v. Ala-

bama, 399 U. S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970),

where the assistance of counsel was mandated at a pre-

liminary hearing, and decided in this court on June 22,

1970, on a state of facts and proeedure very different

from ours, even though Coleman does extend the earlier

holdings of this court as to “critical stages” of criminal

prosecutions. In our case, there was a guilty plea and

Coleman is not cited or relied upon by Petitioner here.

The criminal acts charged in our indictment took place

long before the decision in Coleman and the conviction of

our petitioner took place on March 20, 1969.

On September 22, 1970, United States Court of Appeals

for the Eighth Cireuit, No. 19.731. in Konvalin v. Sigler,

decided that the holdings in Coleman were not retroac-

tive. This alone should dispose of Petitioner’s contention

here.

ite

i

EE

K

Ht

i

I

el

‘ 243

plea must be voluntary and made with a

full understanding .of its consequences. Brady v.

United States, 397 U.S. 742, 90 8. Ct. 1463, 46

1469, 25 IL. Ed. 2d 747 (1970); McMann v. Richard-

son, 397 U.S. 759, 90 8. Ct. 1441, 1449, 25 L. Ed.

2d 763 (1970); State v. Herman, 47 N. J. 72. 76-77

(1966).

Our reading of the transcript of the plea con-

vinees us that defendant voluntarily retracted his

plea of not guilty to the conspiracy indietment and

pleaded guilty, well understanding the consequences

of so doing. At that moment he knew that the

trial court had denied his motion to dismiss as

wel! as his motion to suppress, and therefore under-

stood his legal position. By pleading guilty he

waived any of the constitutional rights he now

claims.”

+

i

rE

I

Fr

i

*

Alabama, supra, and their disseating opinions in

Desist v. United States, 394 US. 244, 255, 256

(1969). We review the question of retroactivity de-

pendent upon. the principles applied in Desist v.

United States, supra. See also Jenkins v. Delaware,

394 U.S. 213 (1969).

“The Supreme Court in Desist reiterated the prin-

ciples relating to retroactivity summarized in Stov-

all v. Denno, 388 U.S. 293, 297 (1967):

(a) [T]he purpose to be served by the new

standards, (b) the extent of the reliance by law

enforcement authorities on the old standards, and

(e) the effect on the administration of justice of

a retroactive application of the new standards.’

“The Court pointed ont that foremost among these

factors is the purpose to be served by the new con-

stitutional rule.” ~~

POINT 11

The amending of the indictment did not constitute

error prejudicial to this petitioner.

The indictment was amended to reduce the alleged value

of the goods stolen and the effect of this reduction reduced

the grade of this offense and the punishment thereof from

a high misdemeanor to a misdemeanor. Its effect in every

way was beneficial to petitioner and probably induced his

plea of guilty. |

The Appellate Division found “frivolous. his contention

that the prosecutor’s failure to disclose evidence allegedly

in his favor—specifically that the value of the stolen prop-

erty was less than $200—was an act of bad faith and

should have resulted in a dismissal of the petty larceny

charge.”

POINT 111

The alleged ineffective counsel point is frivolous.

This point is clearly not before this court on this peti-

tion. .

[Arruxnix Fottows]

b

08

APPENDIX A

— . hetn |

* Supaeue Couar or New Jeaszy

C46 Supremeze Tan 1970

—

State or New Jensey,

Plaintiff-Respondent,

To Appellate Division, Superior Court:

A petition for certification having been submitted to

this Court, and the Court having considered the same,

It is hereupon Ordered that the petition for certifiea-

tion is denied.

Wrrunss the Honorable Joseph Weintraub, Chief Jus-

tice, at Trenton on the 7th day of October, 1970.

Joux H. Gupea

Clerk of the Supreme Court

Lia]

N

m

> APPENDIX

— of the Supesier Court of Now Sesser,

Suprzaion Cover or New Jersey

Aprsiiatse Division

A-1904-68

6

Srate or New Jersey,

Plaintiff-Respondent,

Heaseat Hexry McCuary,

Defendant-Appellant.

— —

Argued May 4, 1970—Decided May 11, 1970.

Before Juvers Gotpmaxs, Lewis and MatrHews.

On appeal from the Middlesex County Court.

Mr. Nonna L. Kure, Assistant Deputy Publie De-

fender, argued the cause for appellant (Mr. Sraxixv

C. Vax Ness, Publie Defender, attorney).

Mr. Davin Mowvex, Assistant Proseeutor, argued the

for respondent (Mu. Kowarp J. Dot Ax. Mid-

County Prosecutor, attorney; Mu. Crristrorier

oop, Assistant Prosecutor, on the brief).

22

|

|

|

Court, pleaded guilty, and was sentenced to

term of one year, with credit for time i

i

i

jail from September 24 on. After being returned to Mid-

dlesex County he pleaded not to all counts of the

Middlesex County indictments on January 6, 1969. How-

ever, on March: 20 he retracted the pleas. and pleaded

guilty to petty larceny and the possession of the weapon.

the first count of the first mentioned indictment being

amended to larceny of goods having a value of less than

$200. The beeond count of that indictment was dismissed

Defendant was sentenced on May 5, 1969 to consecutive

State Prison terms of 1-2 years on the petty lareeny and

The sentences were well within the statutory limits;

despite defendant's claim we do not find them “manifestly

excessive.” There is no merit in his further argument

that the failure to assign counsel to represent him at the

preliminary hearing amounted to a denial of due process.

Not only did he waive preliminary hearing but State v.

7

—

4a

Appendiz B

Kirkland, 82 N. J. Super. 409 (App. Div. 1964), is to

the contrary. Finally, we find frivolous his contention

that the prosecutor’s failure to disclose evidence allegedly

in his favor—specifically that the value of the stolen

property was less than $200—was an act of bad faith and

should have resulted in a dismissal of the petty larceny

charge. | |

Affirmed.

52

APPENDIX C.

Order of the United States Court of Appeals

for the Third Circuit

Unsrrep States Court or APPEALS

FOR THE TAD Cncurr

C. A. Misc. Rec. No. 1410

+

Unrrep States or AMERICA

ex rel. Henspenrt Henry McCarry

Appeilant,

vs.

Tue Strate or New Jersey

—

(D. C. Civil No. 1216-69)

Present: Biecs, ALpisert and Stan, Circuit Judges.

Upon consideration of petitioner’s application for certif-

icate of probable cause in the above-entitled ease,

It is Onperep that petitioner's application for certificate

of probable cause be, and hereby is denied.

By the Court,

Bios

Circuit Judge

Dated: January 20, 1970

6a

APPENDIX D 4

Opinion and Order of the United States District Court

for the District of New Jersey

Unrrep States Distaicr Court

Disraict or New Jensey

Crvu. Acriox No. 1216-69

— —

Unrrep States or Auna

ex rel. Hensent Hexwny McCrary

s.

Strate or New Jrnarr

— ᷑ᷓ —

Cool a HAN, District Judge:

This is an application by a state prisoner for a writ

of habeas corpus. Because it appears, from a letter of the

Public Defender’s Office marked Court Exhibit 1, that pe-

titioner’s sentence is now on direct appeal in the State

Courts of New Jersey, this application should be dismissed

as premature under 28 U.S.C. §2254. Petitioner’s motion

for appointment of counsel should, therefore, be denied.

Therefore, it is, on this 23rd day. of October, 1969, On-

perep that the application of petitioner Herbert Henry

McClary be and is hereby dismissed without prejudice.

The court finds that there is no probable cause for appeal.

James A. CooLana™

United Staies District Judge

Indictment No. 246-68

New Jersry Surrnion Court

Mippiesex County

Law Drvsi0on

(Carma)

Nos. 68-1330

68-1350

Sept. 1968 Stated Session

September Term 1968

>

Tux State or New JERsEy

‘Hensert McCiany,

Tue Granp Jurors of the State of New Jersey, for the

County of Middlesex, upon their oaths, present THaT HeER-

bert McCuary, on the 24th day of September, 1968, in the

City of New Brunswick, in the County of Middlesex afore-

said, and within the jurisdiction of this Court, unlaw fully

and feloniously did steal, take and carry away,

sa

Appendiz E

1—Royal typewriter, of the value of $150.00; 1—

Garrard Stereo, of the value of $105.00, and 1—

Pair of Headphones, of the value of $35.00,

in all of the value of $290.00, of the property, goods and

chattels of Mark Sorin then and there being found, con-

trary to the provisions of N. J. S. 2A: 119-2, and against the

peace of this State, the Government and dignity of the

same. v f

Secomp Count

Awp tHe Grawp Jurors aforesaid, upon their oaths

aforesaid, do further Present that the said Hersert Me-

Crary, at the time and place aforesaid, and within the

jurisdiction of this Court, unlawfully and feloniously did

receive and have,

1—L.B.M, Typewriter,

of the property, goods and chattels of St. Joseph's Col-

lege, a Cofporation of Pennsylvania, before then feloni-

ously stolen, taken and carried away, he the said Hxnnzur

McCrary well knowing the same to have been feloniously

stolen, taken and carried away, contrary to provisions

of N. J. S. 2A:139-1, and against the peace of this State,

the Government and dignity of the same.

A True Bill:

Rosert D. AgwoLp

Robert D. Arnold

Foreman.

Epwarp J. Dol ax

Edward J. Dolan

County Prosecutor

by: Wu nau D. Danserry

Assistant Prosecutor

da ©

: Appendix E

—

Judgment

New Jersey Superion Court

Mippiesex County

Law Division

(Crit)

Indictment No. I-246-68

—

Tue STATE oF ‘New JERSEY

—

Hersert MoCLankv, 2

Defendant.

—

The defendant on the 6th day of January, 1969 having

entered a plea of not guilty to both counts of Indictment

No. I-246-68 for the crime of larceny and receiving stolen

© property; and the defendant having on the 20th day of

March, 1969 retracted plea of Not Guilty and entered a

plea of Guilty to the first count of larceny under $200;

It is, therefore, on this 5th day of May, 1969

Ordered and Adjudged that the defendant be and is sen-

tenced to the New Jersey State Prison for a term of not

less than one year nor more than two years, said sentence

to run consecutively to the sentence imposed jn I-247-68

and consecutively to the term to be completed in the Mer-

10a

Appendiz E

cer County Workhouse. The defendant is to receive credit

for time spent incarcerated for a total of 69 days. The

second count of said indictment be and the same is hereby

dismissed on motion by the state.

Entered

Jonx B. Moaxeux

Judge

* *

Appendiæ E

Indictment No. 247-68

New Jersey Supzrion Cover

Mippiesex County

Law Drvision

(Cui!)

File No. 68-1331

Sept. 1968 Stated Session

September Term 1968

—

Tue Strate or New Jersey

Tun Granp Jurors of the State of New Jersey, for the

County of Middlesex, upon their oaths, Present Tuar Her-

pert McCuary, on the 24th day of September, 1968, in the

City of New Brunswick in the County of\Middlesex afore-

said, and within the jurisdiction of this Court, unlawfully

carried and had in his possession a loaded 32-20 caliber

revolver (Winchester), Serial No. 11488, withont first

having obtained the requisite permit to carry the same,

the said firearm being then and there possessed and car-

1

Appendiæ E

ried by the said Herbert — contrary to the provi-

sions of N. J. S. 2A:151-41(a), and against the peace of

this State, the Government and dignity of the same.

A True Bill:

Epwarp J. DoLan

Edward J. Dolan

County Prosecutor

By: WuLux D. DanBerry

Assistant Prosecutor

5

-~ —

13a

Appendiæ E

Judgment

New Jersey Superion Court

Mippiesex County

Law Divisiow

(CMMI)

Indictment No. I- 247-68

an imme

Tue State or New Jersey

Hersert MoCLAnv,

The defendant on the 6th day of January, 1969 having

entered a plea of not guilty to Indictment No. I-247-68

for the crime of illegal possession of a weapon; and the

defendant having on the 20th day of March, 1969 retracted

plea of Not Guilty and entered plea of Guilty,

It is, therefore, on this 5th day of May, 1969

Ordered and Adjudged that the defendant be and is

sentenced to the New Jersey State Prison for a term of

not less than one year nor more than two vears, said sen-

tence to run consecutively to the sentence imposed in J-

246-68 and to run consecutively to the term to be com-

lta ‘

Appendis E

pleted at the Mercer County Workhouse. The defendant

receive credit for time spent incarcerated for a total

Joux B. Molixnux