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State v. Nicastro

Decided: September 19, 1956.

STATE OF NEW JERSEY
v.
RALPH NICASTRO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY V. GEORGE VENIERO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY V. PAUL ZACCONE, DEFENDANT-APPELLANT



On application to withdraw guilty plea and for a new trial.

Waugh, J.c.c.

Waugh

The defendants were each by separate complaint charged with a violation of the Disorderly Persons Act, N.J.S. 2 A:170-29, subds. 1, 2, pars. a and b , on July 29, 1956.

The complaint against each was filed on August 1, 1956, by Officer Ferrara of the Nutley Police Department and all three complaints are essentially in the same language.

Each defendant pleaded guilty on August 1, 1956 and each was sentenced by Magistrate Joerg of the Municipal Court of Nutley, on the same date. Zaccone was sentenced to one year in the Essex County Penitentiary. Veniero and Nicastro each were sentenced to one year in the Essex County Penitentiary; six months in custody and the balance on probation. All three filed a notice of appeal from the conviction and sentence, pursuant to R.R. 3:10-3.

The State moved to dismiss the three appeals on the ground that because the defendants had pleaded guilty to the charges, they could not appeal, and on the ground that the sentences, being within the statutory limits, were within the discretion of the trial judge. In re Lewis , 11 N.J. 217 (1953); State v. Newman , 128 N.J.L. 82 (Sup. Ct. 1942). The right to appeal after a guilty plea is questioned in the case of City of Plainfield v. Phillips , 38 N.J. Super. 260 (App. Div. 1955).

This court dismissed the three appeals and at that time, suggested to counsel for defendants that he (counsel) might consider making an application to the magistrate to re-open the pleas of guilty under R.R. 8:4-3. Counsel subsequently made such application, supported by an affidavit in each case, before the magistrate. Each of these applications was denied by the magistrate and the defendants now appeal to this court from that decision of the magistrate.

This court concludes that it has the right to hear an appeal from the refusal of a magistrate to re-open and allow a change of plea. N.J.S. 2 A:3-6 provides as follows:

"The County Court of each county shall have jurisdiction to hear, determine and review any judgment in any cause, other than a civil cause, rendered in the county district court and in any cause, criminal or civil, rendered in any municipal court, park police court, county traffic court or other inferior court of limited jurisdiction in or of the county, except a criminal judicial district court, or a juvenile and domestic relations court. If the judge of or who held the lower court is also the county judge, the Law Division of the Superior Court and not the County Court shall have jurisdiction to hear, determine and review such judgment."

R.R. 3:10-1 et seq. apparently provides for appeals only from convictions.

No record was made at the hearing before the magistrate on the applications to re-open the pleas. Apparently, the affidavits attached to each notice of motion were considered by the ...


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