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State v. Torzillo

Decided: April 29, 1960.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.


Defendant appeals from the County Court's denial, after a full hearing, of his motion to set aside his conviction and permit him to withdraw his non vult plea to three indictments charging him with breaking and entering, larceny and receiving stolen property. This is the second time the matter has been before us. On the first occasion we reversed a similar order of the County Court that had been entered without affording defendant a hearing, and remanded the matter for a full hearing. A few of the facts set out in our earlier opinion bear repetition.

In July 1954 the grand jury returned four indictments: Nos. 127 and 130 charged defendant and Pasquale Carlisi with breaking and entering, larceny and receiving on March 16 (Cooper residence) and March 19, 1954 (Jones residence) respectively. Nos. 128 and 129 charged defendant, together with Paul Bellino and Louis W. Hartel, with the same crime on April 29 (Standard Brands warehouse) and April 24, 1954 (Applegate apartment), respectively. Defendant and Carlisi stole a mink furpiece and jewelry worth $1,135 from the Cooper home, and a fur coat and jewelry worth $655 from the Jones residence. Defendant, Bellino and Hartel took a small truck and a considerable quantity of groceries, total value $5,000, from the Standard

Brands warehouse, and jewelry worth $23,740 from the Applegate apartment.

All four of the accused were represented by counsel of their own choice at the time of plea. Defendant pleaded not guilty to the four indictments; Carlisi non vult to the two brought against him; and Bellino not guilty and Hartel non vult to their indictments.

Defendant never made any statement concerning the crimes charged against him. However, Carlisi and Hartel made and signed statements implicating defendant in the crimes with which they were charged. The statements were in great detail, describing the inception and execution of the crimes step by step, as well as their aftermath. Defendant planned and carried out all four, and it was he who undertook to get rid of the loot through "fences."

Defendant and Bellino went to trial before a jury on indictment No. 128 (Standard Brands) on September 22, 1954. The next morning, and before the trial resumed, the assistant prosecutor showed defendant the Carlisi and Hartel statements in the presence of his counsel, as well as a letter which defendant had prepared and had Carlisi copy (the letter exculpated defendant), and the report of an expert identifying the letter as being in defendant's handwriting. Defendant thereupon decided to change his plea. Through counsel he withdrew his pleas of not guilty to all the indictments, including the one then being tried, and entered pleas of non vult. Bellino also withdrew his not guilty pleas and pleaded non vult.

Defendant has not supplied us with a transcript of the hearing, although one was made available to him. Nonetheless, we have thoroughly reviewed the transcript, the Carlisi and Hartel statements, and all the files. We find nothing that even suggests that defendant, a court-wise criminal, did not voluntarily and understandingly change his plea. There were no threats made or promises or inducements given. At the County Court hearing defendant explicitly stated for the record that he was not claiming the

assistant prosecutor had committed any impropriety or made any promise. He also conceded there was no impropriety in the conduct of his own counsel.

Before defendant appeared in court for sentence on October 15, 1954, Carlisi, who was involved with defendant in indictments Nos. 127 (Cooper) and 130 (Jones), wrote to the prosecutor and the sentencing judge that he alone had committed the crimes charged. He sent a similar letter to the two detectives who had taken his statements at the time of his arrest.

The sentencing judge had Carlisi's letter before him, as well as defendant's criminal record which showed that he had been convicted for murder in 1929 and, upon release some ten years later, had successively been imprisoned for the crimes of breaking, entering and larceny, burglary and robbery. That record also revealed his extensive involvement with the criminal authorities for offenses which resulted either in dismissal or in no prosecution. At the ...

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