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State v. Deutsch

Decided: February 6, 1961.


For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- Justice Hall. The opinion of the court was delivered by Jacobs, J.


The defendant moved before sentencing for leave to withdraw his plea of non vult to an accusation containing 28 counts and charging violations of N.J.S. 2 A:111-11. The motion was denied by County Judge Ewart who rejected the defendant's application that he disqualify himself and sentenced him to serve specified terms in the State Prison and to pay stated fines. The defendant appealed to the Appellate Division and we certified his appeal while it was pending there.

Heller and Company, a corporation engaged in the financing and factoring business, entered into financing arrangements with Toledo Brothers, Inc. and Farmers Exchange, Inc., corporations engaged in the egg business and with which the defendant was actively associated. In the course of the financing, Heller and Company was allegedly defrauded of very large sums of money through the use of forged schedules, invoices, and trade acceptances. The Monmouth County Grand Jury returned forgery indictments against the defendant but these indictments were nolle prossed because of improper venue. On October 23, 1958 the defendant was indicted by the Ocean County Grand Jury on six counts charging forgery in violation of N.J.S. 2 A:109-1. Thereafter the defendant was indicted in the State of New York on 28 counts of grand larceny and forgery. Pleas of not

guilty were entered by the defendant to the Ocean County and New York indictments.

In June 1959 the defendant moved for an order specifying a trial date (R.R. 3:11-3(b)) and for other relief. On the return date of the motion there was evidently discussion between counsel for the defendant and the Assistant Prosecutor with respect to the entry of a plea and thereafter there was correspondence between them. On October 28, 1959 the Assistant Prosecutor advised counsel for the defendant that it was generally the policy of his office in a case involving a first offender who enters a plea "not to make any recommendation concerning jail." On November 24, 1959 counsel for the defendant indicated that his client wanted to enter a plea to charges of violating N.J.S. 2 A:111-11 which provides generally that any officer or employee of a corporation who circulates or concurs in the circulation of any written statement which he knows to be false, with intent to deceive or defraud, is guilty of a misdemeanor; in contrast, violation of N.J.S. 2 A:109-1 constitutes a high misdemeanor.

It was evidently the belief of the defendant's counsel that a plea of non vult to an accusation charging comparable violations of N.J.S. 2 A:111-11 would preclude further prosecution of the New York indictment under the terms of the New York Penal Code. At the request of the Assistant Prosecutor, the defendant's counsel prepared (but cf. R.R. 3:4-2) the 28-count accusation in the instant matter which was a counterpart of the 28-count New York indictment. On December 1, 1959 he forwarded the accusation and expressed the view that if the court declined to follow the Assistant Prosecutor's recommendation "the defendant should have the opportunity to retract his plea and go to trial on the merits." In response to this the Assistant Prosecutor, in a letter dated December 3, 1959, stated that his office would make no recommendation on the question of jail, that is, it would "neither recommend that the defendant be sent to jail nor that the court show him leniency and

not jail him" and that "we certainly do not agree to any retraction of plea by you should the court impose a jail sentence." Thereafter, on December 7, 1959 the defendant and his counsel appeared in open court before Judge Ewart; at that time the defendant waived the reading of the 28-count accusation, executed a waiver of indictment and trial by jury which was witnessed by his counsel, executed Criminal Procedure Form 13A (see R.R. Appendix of Forms) which was also witnessed by his counsel, and entered a plea of non vult. The defendant and his counsel appeared before the Probation Department on December 7 and again on December 17 in connection with the presentence investigation. See R.R. 3:7-10(b). Sentencing was originally scheduled for December 22, 1959 but was adjourned to January 8, 1960; in the meantime, on January 5, 1960, the defendant served notice that he would move before Judge Ewart for an order permitting him to retract his plea of non vult and to enter a plea of not guilty. See R.R. 3:7-10(a).

On January 8, 1960 counsel for the defendant appeared with his client before Judge Ewart and argued in support of the motion for leave to withdraw the plea of non vult. He stated that his client had advised him prior to December 7, 1959 that he was innocent and that he was still asserting his innocence; that because of other engagements he had little opportunity to confer with his client before their appearance in court on December 7, 1959; and that there would be no prejudice to the State if the plea were permitted to be withdrawn and the matter proceeded to trial. In opposing the motion the Assistant Prosecutor referred to the negotiations which he had with counsel for the defendant over a long period of time and stressed that during his court appearance on December 7, 1959 the defendant had acknowledged that he understood the nature of the charges against him, that he had voluntarily signed the waiver of indictment and trial by jury, and that he was aware of the fact that "in the eyes of the law" his plea of non vult "is equivalent to a plea of guilty." Cf. Kravis v. Hock,

136 N.J.L. 161, 165 (E. & A. 1947); State v. Pometti, 12 N.J. 446, 453 (1953). No affidavits or documents, other than a legal brief, were then submitted in support of the motion but the defendant was called to testify and stated in response to direct questions from his own counsel that he was innocent and that he believed that there should be a trial in which he thought he could "prove" his innocence.

On cross-examination the defendant testified that he was a certified public accountant and that during his court appearance on December 7, 1959 he understood the nature of the charges and had pleaded non vult which he understands to amount to "no contest." He suggested that he was "confused" and that his counsel had not "gone through all of these papers" with him but had told him to sign them and "that we would go over the papers later." He also referred to the fact that he is a diabetic and was under medical care at the time the plea of non vult was entered. At the close of the testimony, Judge Ewart indicated his belief that the defendant had understood the nature of the accusation and his plea and expressed the thought that the defendant's counsel should be given an opportunity to meet his client's charge that without explanation he was told to sign the various papers and that they would go over them later. In response to this, counsel for the defendant repeated that he had little opportunity to talk with his client on December 7, 1959 and that he had told him that "after the proceedings I would explain it more in detail to him." Judge Ewart then asked whether counsel had anything further to say or whether he would like to submit "any additional briefs on this." Counsel responded that he would and the Judge reserved decision stating that he would allow two weeks and then file his opinion.

No further briefs were filed but on January 18, 1960 the defendant filed an affidavit in support of his application for leave to withdraw his plea of non vult. In this affidavit he repeated his claim of innocence in general terms adding, however, general statements that the invoices were not in

his handwriting, that the trade acceptances were not typed by him, and that the schedules were not in his handwriting or signed by him. On the same day the defendant filed another affidavit which stated that he now finds that Judge Ewart is a brother of Prosecutor Ewart, that Prosecutor Ewart is a law partner of the Assistant Prosecutor handling the matter, and that he desires that the application for leave to withdraw his plea be considered by a judge other than Judge Ewart. An affidavit in opposition to the defendant's motions was filed by the Assistant Prosecutor on January 20, 1960. On February 5, 1960 Judge Ewart rendered his opinion in which he determined that the defendant had made his plea "deliberately and understandingly, without coercion or undue pressure" and that his application for leave to withdraw, which he found to be "a mere maneuver to postpone the day of reckoning," should accordingly be denied. An order to that effect was entered on February 9, 1960 and on February 11, 1960 an order was entered denying the motion to disqualify. Thereafter judgment of conviction was entered on the plea of non vult, the defendant was sentenced, and the appeal now under consideration was duly taken.

Although some states permit the withdrawal of guilty (or non vult and nolo contendere) pleas as of right at any time before sentence (see 22 C.J.S. Criminal Law § 421, p. 645 (1940)), New Jersey adheres to the widely prevailing rule that once the plea has been entered it may not be withdrawn except pursuant to leave granted in the exercise of the court's discretion. See State v. Pometti, supra, 12 N.J., at p. 452; Clark v. State, 57 N.J.L. 489, 490 (Sup. Ct. 1895), affirmed 58 N.J.L. 383 (E. & A. 1895); cf. R.R. 3:7-10(a); Notes, 64 Yale L.J. 590 (1955); 55 Colum. L. Rev. 366 (1955); 35 N.Y.U.L. Rev. 284 (1960). See also Orfield, Criminal Procedure from Arrest to Appeal 300 (1947); 4 Wharton's Criminal Law and Procedure § 1908 (Anderson's ed. 1957). In exercising its discretion the court must fairly and justly weigh the policy

considerations which favor the finality of judicial procedures against the policy considerations which dictate that no man be deprived of his life or liberty except upon conviction after a fair trial or after the entry of a plea of guilty or its equivalent under circumstances which evidence that it was made truthfully, voluntarily and understandingly. Compare State v. Pometti, supra, 12 N.J., at p. 453 with State v. Reali, 26 N.J. 222, 224 (1958). See State v. Gailes, 64 N.J. Super. 232, 239 (App. ...

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