On appeal from a judgment of the Superior Court, Appellate Division, where the following per curiam opinion was filed.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None.
[17 NJ Page 191] "On September 12, 1941, after consultations with his court-assigned counsel, the defendant entered a plea of non vult in the Court of Oyer and Terminer of Camden County to an indictment charging him and others with the commission of the crime of murder in the first degree. The plea was accepted by the court and he was forthwith sentenced to imprisonment in the New Jersey State Prison for the term of his natural life.
"It is not evident that he was conscious of having suffered any deprivation of his constitutional rights of due process until the year 1952 when on March 4 he presented a petition to the Mercer County Court requesting the issuance of a writ of habeas corpus by virtue of which he could subject the legality of his detention to judicial inquiry. His application was denied. He appealed, and the order denying his application was reversed and the action was remanded with directions to issue the writ and proceed in pursuance thereof. Vide, State v. Lenkowski, 24 N.J. Super. 444 (App. Div. 1953).
"In obedience to the mandate, a writ issued and the defendant-petitioner was afforded a hearing at which the defendant was represented by counsel and considerable testimony was taken. The subjects of inquiry related to the defendant's allegations that his plea of non vult was entered as a result of the deceit, intimidation, and coercion of the prosecutor then in office and that the attorney assigned at the defendant's request to represent him by the then presiding justice of the former Supreme Court was inattentive and professionally inexperienced in such cases, unfaithful and incompetent. Here the defendant pleaded non vult. Cf. State v. Leaks, 124 N.J.L. 261 (E. & A. 1940); In re Caruso, 10 N.J. 184, 190 (1952); State v. Mangino, 17 N.J. Super. 587 (App. Div. 1952); State v. Williams, 29 N.J. Super. 309 (App. Div. 1954).
"During the decade which elapsed between the defendant's conviction and his belated application for the writ, both the prosecutor whose deportment the defendant impugns and the judge to whom the plea was presented have died. Fate had consequently liberated the defendant's accusative assertions from personal contradiction.
"It is therefore apparent that the determinative element of consideration at the hearing was the conceptional credibility of the defendant's testimony. Judge Hutchinson rendered a comprehensive opinion in writing in which he expressed doubt of the credence of the defendant's testimony in the material and important particulars alleged in the petition and resolved that the defendant-petitioner had not sustained
'the burden of proof of establishing his right to immediate release by a fair preponderance of the believable evidence.' State v. Cynkowski, 10 N.J. 571, 576 (1952); State v. Jacobson, 28 N.J. Super. 226, 231 (App. Div. 1953).
"In our review of the transcript of the testimony, we have recognized the superior opportunity of the trial judge to measure the credibility, if any, to be accorded the statements of the defendant and of the other witnesses. R.R. 1:5-3(a); R.R. 2:5. We are not persuaded that the factual conclusions of the trial judge are improper. Other grounds of appeal are not meritorious.
The judgment is affirmed for the reasons expressed in the opinion ...