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State v. Janiec

Decided: February 9, 1953.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
LAWRENCE JANIEC, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

[11 NJ Page 398] The indictment presently under consideration charges the defendant in the first count with three prior convictions for high misdemeanors in the Counties of Passaic, Bergen and Mercer, respectively, and with having

committed the crime of breaking and entering with intent to steal in a residence at Deal, New Jersey, on September 19, 1945. The second count charges grand larceny committed on the same occasion, after reiterating the prior convictions.

There was ample proof of the three former convictions and they were not denied by the defendant. He, when queried about them, denied recollection of the details, saying, however: "I remember being convicted but I can't give you the dates."

The jury disagreed on the charge of breaking and entering but returned a verdict of guilty on the larceny count and on the charge of having been previously convicted of three high misdemeanors. On this finding, the defendant was sentenced to life imprisonment as an habitual criminal.

On appeal, the Appellate Division reversed the convictions, finding a supplemental charge to the jury embodied prejudicial error. A dissenting opinion holding to the contrary is the basis for this further appeal.

The State challenges the defendant's right to appeal on the grounds advanced, citing Rule 1:2-19(a) and Rule 1:3-2(c). It alleges the error, if any, was not such "plain error" as is contemplated by the amendment to Rule 1:2-19(a) and, moreover, there is a violation of Rule 1:3-2(c), which provides, among other things, that if the questions involved on appeal include any not presented to the court below, this fact shall be noted. Under the rule, this requirement is in highest degree mandatory and admits of no exceptions. Ordinarily, no point will be considered which is not set forth in or necessarily suggested by the statement of questions involved. Roberts Elec., Inc., v. Foundations & Excavations, Inc., 5 N.J. 426 (1950). It is implicit, however, in the use of the word "ordinarily" that the rule is not entirely without exception.

We need not attempt, in the present case, to establish a strict delimitation of its applicability. The defendant here is appearing pro se and the sentence imposed by the trial court is life imprisonment. Under these circumstances we

do not regard ourselves as being precluded from deciding the meritorious question presented in the briefs.

Rule 1:2-19(a) provides that error in the charge of the court shall be cause for reversal

"if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury. The court may, however, notice plain errors affecting substantial rights of the defendant, ...


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