Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The question for determination is whether the defendant is entitled to elect to withdraw his plea of nolo contendere as of right, or whether it is discretionary with the court to permit the defendant to do so.
On November 27, 1951 the Passaic County grand jury returned three indictments against the appellant Eugene Pometti and others, charging the crime of conspiracy to commit an abortion upon three females, the indictments being numbered 462, 463 and 464. On application of the State, the court granted a severance for the trial of Pometti. On March 24, 1952 the trial of Pometti on indictment 463 was proceeded with, resulting in a verdict of guilty.
On April 22, 1952 the defendant, being granted leave to retract his original pleas of not guilty to indictments 462 and 464, pleaded " nolo contendere " thereto. On May 16, 1952, the adjourned date for sentence, the prosecutor moved for sentence. Whereupon, defense counsel requested permission of the court to withdraw the pleas of nolo contendere theretofore entered to indictments 462 and 464 and to substitute a plea of "not guilty." The defendant appeals from the trial court's denial of his motions. Defendant was sentenced on each of the three indictments to a term of not less than two nor more than three years in State Prison, and a fine of $1,000, the terms to run consecutively.
Defendant argues that a motion to withdraw a plea made before the imposition of sentence is one of absolute right, except where the State proves the defendant is endeavoring to perpetrate a fraud upon the court; and that the refusal of the trial court to permit him to submit proof in support of his motion to withdraw his plea was error.
Initially, we feel it would not be amiss to point out that our rules provide that motions be made in writing on notice to the adversary. Rule 2:12-3; Rule 2:12-5. In this matter, however, defendant delayed from April 22, 1952, the date the pleas of nolo contendere were entered, until May
16, 1952, the date of sentence, before making his application for withdrawal of the pleas and then did so orally, without notice to his adversary. Such conduct, in the absence of explanation, leaves much room for speculation and grave doubt of the basic merit of the application. See Stern v. Glassen , 10 N.J. 596 (1952).
The rule of court governing the withdrawal of a plea is Rule 2:7-10(e), which provides, inter alia:
"A motion to withdraw a plea of guilty, or of nolo contendere , or of non vult , may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea as provided by law."
Former Chief Justice Beasley, speaking for the Supreme Court, in Clark v. State , 57 N.J.L. 489, 490 (1895), said of a defendant's right to withdraw his plea:
"* * * When an application is made in a criminal case to recall a plea of guilty and to plead de novo , it is a matter addressed to the discretion of the court. This has always been the doctrine prevailing from the earliest times in this state. Any other rule would be replete with mischief. By its force a defendant could plead guilty, and then, after the witnesses on the part of the state had been discharged, could come into court and claim as a right to take back his confession of guilt, and put the state to its proof. * * *"
This view was affirmed by the Court of Errors and Appeals, Clark v. State , 58 N.J.L. 383 (1895). Cf. 14 Am. Jur., sec. 286, p. 961.
The position taken by our courts that such an application is addressed to the discretion of the court, seems to be sustained generally by other courts of this country. 20 A.L.R. 1445. More recently it was stated that once the plea of nolo contendere has been accepted, it is within the discretion of the court to permit the plea to be withdrawn and ...