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State v. Appice

Decided: December 12, 1952.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SAMUEL APPICE, DEFENDANT-APPELLANT



Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Defendant appeals from an order of the Union County Court denying his motion to dismiss two indictments charging him, together with his accomplices Pisano and DeMaio, with attempted robbery and assault with intent to kill.

The indictments were returned by the October 1947 term of the Union County grand jury and filed with the former Court of Oyer and Terminer of that county on December 18, 1947. Defendant was then serving a term of four to ten years in the New Jersey State Prison for another crime. The Union County authorities promptly lodged a detainer against him.

DeMaio was sentenced to State Prison on January 15, 1948 for a term of 10 to 12 years on each charge, the sentences to run concurrently. No plea was entered to the indictments by Appice or Pisano until July 22, 1952.

On January 21, 1948 defendant wrote the Prosecutor of the Pleas of Union County. He spoke of his current prison term and of the fact that upon its completion he would still have six years to serve on a prior sentence. His future appeared "dim"; he protested that he was not "an uncontrolable criminal" and that his criminal record was due to "lack of a steady job, and my friends." After mentioning the Union County detainer, defendant went on to say:

"I would like to face said detainer. And I am willing to meet you more than half way, I will plead to the mercy of the court, and I will accept a sentence of 10 to 10 years to run concurrently retro active.

Sir: if I were to be given a consecutive sentence it would mean that I would serve 20 years. * * *

I am leaving myself to your Mercy, for you are the only one, besides God, that can help me in my present plight. * * *"

The prosecutor replied on February 2, 1948, stating:

"If you want to come back to this County to plead guilty or non vult to the charge against you, we will arrange to do so by writ of habeas corpus. However, you must understand that the matter of sentence rests with the Judge."

Defendant again wrote the prosecutor on February 10, 1948 stating that if he were given consecutive sentences he would have to serve 20 years plus 6 years from his previous commitment:

"I would much rather go to trial. * * * I realize that I might receive a much larger sentence if I am found guilty. But sir I would not be able to serve twenty five years let alone more. My lawyer tells me that there is a small chance of being found not guilty. I have no faith in my lawyer. * * * Perhaps I have misinterpret your letter, I hope I have. Sir: I would like to know if you have acquainted the judge with the facts in ...


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