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McAllister v. State

Decided: June 24, 1960.

ALEXANDER MCALLISTER, PETITIONER-APPELLANT,
v.
STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.

Conford

This is an appeal from a dismissal by the Law Division of an application for a writ of habeas corpus after a full hearing on the merits. Plaintiff has been exceptionally well represented by the same assigned counsel below and on this appeal.

Plaintiff pleaded guilty of robbery before Judge Foley in the Essex County Court May 2, 1955. He was sentenced on the plea by Judge Gaulkin May 11, 1955 for from eight to fourteen years in State Prison. The complaint here is that he was inadequately represented by counsel on the arraignment for plea and totally unrepresented at sentencing; and that for either or both of these reasons his conviction was constitutionally defective. Nowhere in petition, testimony or appellate argument, however, does plaintiff assert or imply innocence of the criminal offense to which he pleaded guilty. This was a two-man robbery of the home of a physician in Newark in the course of which the latter's wife and daughter-in-law were roughed up by the defendant, the wife sustaining a fractured shoulder (as appears from the probation file in the matter). Defendant does not appear ever to have been separately charged with and convicted of that assault. He had previously served a jail term on a 1953 conviction for breaking, entering and larceny.

The transcript of the taking of the plea before Judge Foley shows that when he and a co-defendant, Bartley, were brought to the bar, without counsel, and expressed a desire to plead guilty, he directed them "to discuss the matter" with a lawyer then present in court, Mr. Samuel Levin. They conferred with him in another room for a few minutes. Plaintiff testified that Levin at once informed him that he was not his lawyer, he was not there to assist him, and that Dr. Lowenstein, whose home had been robbed, was a personal friend of his. This, he said, abruptly terminated their conference. This highly incredible story was denied by Levin, who testified that while he did refer to the fact that

he knew Dr. Lowenstein, he did not make the other comment attributed to him, but that he counseled with plaintiff and informed him he might retract his offer to plead guilty, but that the plaintiff insisted upon pleading guilty. Upon his inquiry, plaintiff informed him that he had a previous court record.

Upon returning to the courtroom the transcript shows the following:

"Mr. Levin: I questioned them both, your Honor. They understand what they have signed and they wish to enter pleas of guilty.

Mr. Jung [assistant prosecutor]: Alexander McAllister and Charles M. Bartley, as to this accusation, which charges as of the 20th day of April, 1955, in the City of Newark, you did forcibly take from the person of Rosaline Lowenstein United States currency in the amount of $56.00 and one diamond ring and one wedding ring, in all of the value of $3,906.00, the property of the said Rosaline Lowenstein by violence and putting the said Rosaline Lowenstein in fear, you wish to plead guilty?

Alexander McAllister, is that correct?

The Defendant McAllister: Yes.

Mr. Jung: And do you understand, by pleading guilty, you are admitting the ...


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