# Opposition Brief — McClary v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0627%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 980 ## Text ＋ — 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0627%3A2. Public record. Not legal advice.