[28 NJSuper Page 559] Despite its caption, the above-entitled action is an application for writ of habeas corpus on the part of petitioner, De Samuel Sims, presently confined in the
Essex County Penitentiary. The writ was issued and a full hearing granted on the allegations of his petition that, in connection with sentences now being served by him, there had been such violation of his legal and constitutional rights as to oust the court of jurisdiction, invalidate the sentences imposed and entitle him to immediate release from confinement. Johnson v. Zerbst , 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Uveges v. Com. of Pennsylvania , 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127 (1948); Ex parte Carter , 14 N.J. Super. 591 (Cty. Ct. 1951); State v. Cynkowski , 10 N.J. 571 (1952).
Petitioner, now aged 28, is a grammar and high school graduate and although he has worked as a common laborer, has demonstrated to the trial court in this case a degree of sophistication and intelligence which the court has taken into consideration in its assessment of the factors which he urges to invalidate his sentences. In 1948 he began to use narcotics, beginning with marihuana and later becoming addicted to the use of heroin. On March 24, 1949, he was arrested for use of narcotics and was placed on a one-year probation term, conditioned upon voluntary treatment at the federal institution for narcotic addicts at Lexington, Kentucky. On the basis of a psychiatric opinion questioning the fact of his true addiction, the court apparently rescinded this condition and he was not required to undergo such treatment. Several months later he resumed the use of heroin. On July 5, 1950 he became despondent, attempted suicide by inhaling illuminating gas, and was treated at the hospital for a short period. About a month later he resumed the use of heroin. In February 1951 he was charged with receiving stolen goods and was held for action of the grand jury, and in March 1951 was released on bail. On May 3, 1951 he retracted a not guilty plea on this charge, which is identified by Docket No. 53125, and on May 9, 1951 the appropriate court in Essex County suspended sentence on such charge. Meanwhile, on April 20, 1951 petitioner appeared, apparently on a waiver, before the municipal court in Newark and was sentenced to one year in the Essex
County Penitentiary on a larceny charge. According to the records of the Essex County Penitentiary, this sentence was served in ten months (due to appropriate credits and remittances of time) and expired on February 20, 1952.
On April 16, 1951 petitioner had been arrested as a disorderly person in Montclair, in Essex County, and apparently on April 22, 1951, appearing before the municipal court thereof, was sentenced to serve six months in the Essex County Penitentiary on such charge of disorderly conduct. According to the records of the Essex County Penitentiary, this sentence was served by him in five months (due to appropriate credits and remittances of time), running from February 20, 1952 (the expiration date of the sentence imposed in the municipal court in Newark, supra) and expiring on July 20, 1952.
On April 22, 1951, petitioner arrived in the Newark Street Jail under charges pending against him, which later crystallized into Accusations Nos. 53234 and 53235 of the 1950 term of the Essex County grand jury. On April 23, 1951 he signed waivers and requests for disposition of his case without indictment and trial by jury (referred to under the previous practice as "Special Sessions" in the testimony), both of these charges involving accusations for grand larceny, and on April 30 he entered non vult pleas in open court on Accusations Nos. 53234 and 53235. On May 9, 1951 he appeared before the appropriate Judge of the Essex County Court and on Accusation No. 53234 he was sentenced to serve 18 months in the Essex County Penitentiary, the record apparently providing that such terms should be served "consecutive to term now being served," or words to such effect, the substance thereof being the same. On Accusation 53235, on such date of May 9, 1951, he was sentenced to 18 months in the Essex County Penitentiary, the judge ordering that such sentence should run consecutive to that imposed on Accusation No. 53234, as well as consecutive to the term then being served. The authorities at the Essex County Penitentiary have apparently indicated in their records that the first of these terms commenced being served
on July 20, 1952, the expiration date of the sentence imposed by Judge Brunetto in Montclair. Petitioner is apparently serving either this sentence or approximately commencing service of the sentence imposed on Accusation 53235, the technical difference in such posture being immaterial.
With particular reference to the waivers of indictment and trial by jury and pleas of non vult entered on Accusations 53234 and 53235, the petitioner produces evidence that when such procedural steps were taken he was in the throes of "withdrawal" pains due to cessation, on April 16, 1951, of the substantial dosages of heroin which he had been using up until that date; that the nervous and physical reactions of such illness deprived him essentially of his ability to reason and to exercise his full concentration upon the surrender of the constitutional rights implicit in such waivers and pleas; that the court did not apprize him of his right to be represented by counsel under the Constitutions of the United States and of New Jersey and under the specific court rule then in effect (Rule 2:12-1). When our new rules of court were adopted in 1948, they embodied an express provision requiring the court to advise a defendant who appears in court without counsel of his right to counsel and to assign counsel, unless he elects to proceed without counsel or is able to obtain counsel. State v. Gladstone , 17 N.J. Super. 467 (App. Div. 1952); State v. Cynkowski, supra. This principle has been carried into the revised rules (R.R. 1:12-9(a)).
I am of the opinion that while this rule should be complied with strictly, it is directory in nature and not jurisdictional per se , and failure of compliance therewith, as exhibited in the instant case, will not, in and of itself, invalidate convictions imposed upon defendants appearing without counsel. In the instant case the transcript indicates that upon arraignment the assistant prosecutor addressed the defendant as follows: "You don't want the court to assign counsel to represent you?," and to this the ...