On appeal from the Hudson County Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Francis. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
[25 NJ Page 96] On September 21, 1945 defendant shot and killed Joseph Kozlowski. He was indicted for
murder. On October 19, 1945 he entered a plea of not guilty and on March 5, 1946 withdrew it and pleaded non vult. Two weeks later Judge Ziegener (since deceased) sentenced defendant to life imprisonment pursuant to N.J.S. 2 A:113-3, which provides that if a plea of non vult is accepted "the sentence to be imposed * * * shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree."
On June 27, 1955, more than nine years after the sentence, defendant submitted what he denominated a "Motion to Introduce New Evidence." His motion was denied. He did not seek to review that action, but rather on June 12, 1956 filed a "Motion to Vacate Present Sentence and Imposition of Proper Sentence," which in effect duplicated the showing on the first motion. Upon a hearing at which defendant was represented by assigned counsel, Judge Drewen concluded that on the face of the papers there was no basis for relief. From an order thereon, defendant appealed to the Appellate Division, which transferred the matter to this court for the reason that the cause is a capital one. State v. Magonia, 44 N.J. Super. 89 (App. Div. 1957).
We will pass all procedural problems.
To appreciate the nature of defendant's application, it is necessary to review the situation as it stood when defendant, with the advice of counsel, sought and obtained acceptance of his plea of non vult.
At about 2 A.M. on September 21, 1945, defendant and his victim were patrons at the Friendly Diner in Bayonne. Defendant offended a waitress, and upon her protest addressed her in profane terms. Decedent said to defendant, "You got a dirty tongue, keep quiet." An altercation ensued in which defendant fared poorly. Police officers were summoned, and when the owner of the diner declined to make a charge, defendant was permitted to leave. He entered his car, drove to his home some three miles away, loaded a 25-automatic gun, and returned to the diner about 15 minutes after he had left. According to the State,
decedent was seated at the counter, and as he turned, defendant fired a shot with effect, and as decedent sought to reach him, fired five additional shots, all of which struck the victim.
The police were still near by. Defendant was immediately taken into custody. At 3:05 A.M. he signed a statement. According to the police report transmitted to the prosecutor, defendant was examined at 4:50 A.M. by Dr. Louis Norwich and found to be sober, and in the words of the report, "As a precautionary measure we took a supplementary statement from Magonia in which he reiterated all he had stated in his first statement." At about 10:30 A.M. defendant reenacted the crime at the diner.
Defendant did not seek to reinstate his plea of not guilty under R.R. 3:7-10(a), with the consequent risk of a death sentence. We do not suggest that his showing would in any wise support such an application. State v. Cynkowski, 10 N.J. 571 (1952); State v. Pometti, 12 N.J. 446 (1953); Application of Faas, 42 N.J. Super. 31 (App. Div. 1956). Rather, we refer to what he did not seek in order to point up the unique relief he wanted. He sought a determination that he was in fact guilty only of murder in the second degree, and a new sentence accordingly, subject to the maximum of 30 years provided in N.J.S. 2 A:113-4. One charged with murder is not entitled to a trial of that kind before or after a plea. Nor does the statute contemplate a hearing as to the degree of guilt to determine the sentence to be imposed upon the plea of non vult. Defendant was entitled to a trial only on a plea of not guilty to the charge of murder at the risk of the extreme penalty, a course which he wisely avoided in 1946 and did not seek even in the year 1956. Hence defendant's application for a trial of the issue of the degree of his actual guilt was properly denied.
Since the moving papers were self-prepared, and notwithstanding that defendant had the benefit of counsel below and before us, we will consider an alternate prayer which perhaps reposes in his papers, to wit, that the sentence be ...