Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
[57 NJSuper Page 239] Defendant was arrested on August 20, 1958, kept in jail over night, and in the morning, without
counsel, pleaded guilty before the magistrate to the following complaint:
"Miss I * * * W * * *, complainant * * * says that Michael F. Gagliardi, defendant * * * annoyed the complainant Miss I * * * W * * * by making suggestive remarks and kept changing seats when she did, against the peace of the state, the government and dignity of the same, and contrary to the provisions of New Jersey Statutes 2 A:170-5."
This complaint does not spell out an offense under N.J.S. 2 A:170-5. That section of the Disorderly Persons Act provides:
"Any person who practices prostitution, or who, by word, act, sign or any device, invites or solicits unlawful sexual intercourse or any other unlawful, indecent, lewd or lascivious act, is a disorderly person."
The magistrate forthwith sentenced defendant to 90 days in the Hudson County Penitentiary. Defendant immediately retained an attorney who, on the very day of the sentence, filed notice of appeal to the Hudson County Court. Thereafter he withdrew the appeal because defendant had pleaded guilty (State v. Mull , 30 N.J. 231 (1959), had not yet been decided) and, following State v. Nicastro , 41 N.J. Super. 484 (Cty. Ct. 1956), moved before the magistrate to withdraw the plea of guilty upon the following grounds:
1. There was no due process of law in that defendant was not represented by counsel.
2. There was no due process of law, in that defendant was not advised of his right to an adjournment to prepare his case, secure counsel, or the attendance of witnesses.
3. The complaint was so vague and indefinite that it did not inform the defendant of the nature and extent of the charge against him.
4. The complaint does not state an offense.
The motion was supported by defendant's affidavit in ...