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State v. Phillips

Decided: June 3, 1952.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN PHILLIPS, JR., DEFENDANT-APPELLANT



Eastwood, Bigelow and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

[20 NJSuper Page 61] On September 18, 1951, the defendant made a written application to Judge August Ziegener, of the Hudson County Court, to correct the alleged illegal sentence imposed upon him. Judge Ziegener denied Phillips' application on September 25, 1951. No appendix was filed with this court by the defendant, thereby necessitating an examination of the file. We find therein an application by Phillips, dated October 2, 1951, addressed to the Appellate Division "for leave to appeal the denial for the writ of habeas corpus -- Indictment No. 63, 1949 Term, Accusation of Indecent Exposure." This application, entitled "Notice of Appeal," evidently intended as an appeal from

Judge Ziegener's denial, was filed in the office of the Clerk of Mercer County on March 27, 1952.

In the aforementioned "Notice of Appeal," the defendant states:

"It is the contention of the defendant, that the statute of limitation has/had expired at the time of the imposition of sentence and therefore, the term of imprisonment was null and void due to the expiration of such statute of limitations denial of 'speedy trial' Rule 2:12-4 (b); Rule 48, Federal Rules of Criminal Procedure , 1950, Title 18, U.S. Code:."

On September 27, 1949, the Hudson County grand jury returned an indictment against Phillips, charging him with having committed a notorious act of public indecency, in violation of R.S. 2:140-1. On October 13, 1949, he was arraigned and entered a plea of not guilty. On March 14, 1951, the indictment was placed upon the calendar for trial. The defendant was represented by counsel, with whom he consulted, and thereupon retracted his former plea of not guilty and entered a plea of non vult. In the affidavit of his counsel, James N. Pappas, made a part of the State's appendix, Mr. Pappas states that he "represented and advised the defendant in the above matter, at which time a plea of non-vult was entered. This plea was explained by me to him and to his sister. The Court also explained the plea to him." Before imposing sentence upon Phillips, the court, under authority of the provisions of L. 1949, c. 20, now N.J.S. 2 A:164-3 et seq. , made an order providing for a mental examination of the defendant. On June 26, 1951, after receipt of the report of that examination, the court imposed a sentence of not less than two and one-half years nor more than three years in State Prison and a fine of $1,000, besides the costs of prosecution. From the time of Phillips' indictment to the time of trial, he was at all times at liberty on bail in the amount of $1,000.

In view of the fact that the State has not interposed any objections to the procedure adopted by the defendant in the presentation of his application to Judge Ziegener and the

prosecution of his appeal from Judge Ziegener's determination, we will proceed to a consideration and determination of the questions raised.

In the first place, the validity of the sentence imposed upon the defendant cannot be successfully assailed. The defendant entered a plea of non vult to the indictment charging him with open lewdness in violation of R.S. 2:140-1, now N.J.S. 2 A:115-1, a conviction thereof being denominated a misdemeanor. Such a plea is equivalent to a plea of guilty. Kravis v. Hock , 136 N.J.L. 161 (E. & A. 1947); State v. Griffith , 14 N.J. Super. 77, 82 (App. Div. 1951). R.S. 2:103-6, now N.J.S. 2 A:85-7, N.J.S.A. , provides that one found guilty of a crime declared by statute to be a misdemeanor, and for which no punishment is specifically provided, shall be punished by a fine not exceeding $1,000, or by imprisonment for a term not exceeding three years, or both. It thus appears that the sentence was clearly within the statutory limits.

Nor do we find any merit in the defendant's contention that he was denied his constitutional right to a speedy and public trial and, therefore, the statute of limitations had expired at the time of the imposition of sentence and the sentence was null and void. The applicable Rule , 2:12-4(b) (4:2-6) reads:

"At any time after six months following the return of an indictment or the filing of an accusation, the Assignment Judge may direct that the trial of the indictment or accusation shall be moved upon a day specified. Upon failure of the prosecuting attorney to comply with such order the court may order the indictment or ...


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