Yancey, J.s.c. (temporarily assigned).
[80 NJSuper Page 265] Guido Garofone petitioned this court for a writ of habeas corpus. His application was granted and the writ allowed. This opinion is a
determination of whether the writ should be sustained or discharged.
Garofone was sentenced on December 12, 1962 by the magistrate of the Municipal Court of the City of Newark to the Essex County Penitentiary, Caldwell, New Jersey, following his conviction on various criminal complaints.
On January 23, 1963 petitioner applied for a writ of habeas corpus. This court, in considering the sufficiency of the pleadings set forth in the petition, assumed that all the factual allegations stated therein were true. It determined that the petition, on its face, was sufficient and that there should be an immediate issue of the writ for hearing thereon. State v. Cynkowski , 10 N.J. 571 (1952); State v. Lenkowski , 24 N.J. Super. 444 (App. Div. 1953).
Petitioner claimed in his application that (1) he was without counsel when he pleaded not guilty to charges before the municipal court; (2) he was not advised of his right to counsel, and (3) the police conducted an unlawful search and seizure of his property in violation of the Fourth Amendment of the Federal Constitution.
Petitioner through counsel assigned by this court proceeded in forma pauperis on a hearing of the issues alleged in his application.
The following facts are summarized from the testimony at the hearing. On or about November 8, 1962 petitioner was arrested by the Newark police. He was taken to the Second Precinct in Newark and charged with pilfering money from parking meters. That evening he was taken from the Second Precinct to Newark Police Headquarters. The next morning petitioner was taken by two members of the Newark Police Department and a special agent of the U.S. Secret Service to petitioner's apartment at 32 West Kinney Street, Newark, N.J. The officers did not have a search warrant. They conducted the search of petitioner's apartment without a warrant.
While Garofone remained handcuffed in an automobile with the two Newark Police Department members, the special
agent went to the landlord of the building and obtained a key to Garofone's room. After the special agent had opened the door to the apartment, Garofone was taken into the building by the two detectives and accompanied by them to his apartment. In his presence the detectives found in the apartment a number of counterfeit $20 notes. A further search of the apartment uncovered the items which resulted in the following complaints being made against petitioner:
(1) Receiving stolen goods, to wit: 106 checks, in violation of N.J.S. 2A:139-1.
(2) Receiving stolen goods, to wit: Social Security card, automobile charge plate, in violation of N.J.S. 2A:139-1.
(3) Violation of Disorderly Persons Law, in that he did unlawfully have in his possession certain barbiturates at "26-28 West Kinney Street, City" in violation of N.J.S. 2A:170-77.8.
Petitioner was arraigned on these complaints on November 14, 1962. At that time he was advised that he had a right to counsel. The court then postponed the matter until November 27, 1962.
On November 27, 1962 two additional complaints were made against petitioner. These complaints were a result of further investigation by the police of other items taken from his apartment during their search. The complaints were:
(1a) Receiving stolen goods, to wit: one typewriter -- value $205, in violation of N.J.S. 2A:139-1.
(2a) Larceny, to wit: defendant did steal one set of dyes, one bottle extract oil -- value $103, in violation of N.J.S. 2A:119-2.
Petitioner was arraigned on these two additional complaints on November 27, 1962. He was again advised of his right to counsel. He stated that he did not have funds to retain counsel. The magistrate granted another postponement until December 5, 1962 to enable petitioner to retain counsel.
On December 5 petitioner was brought before the court. He still had not retained counsel and the matter was again adjourned for one week to December 12, 1962.
On December 12, 1962 petitioner was brought before the court. He still did not have counsel. The testimony at the hearing of the writ indicates that on this date the magistrate asked petitioner how he pleaded to the five complaints. Petitioner thereupon waived his right of indictment and trial by jury (N.J.S. 2A:8-22) and pleaded "not guilty" to all of the complaints.
An explanation of the court proceedings as to the manner in which a matter is heard in the municipal court when a defendant comes before the court without counsel and states that he is unable to retain counsel, was explained by the municipal court clerk. He testified that in such a situation it was not the practice of the court to assign counsel to the defendant.
Cross-examination of the court clerk revealed the following:
"Q. I take it for granted that you have defendants say that, 'I cannot afford to get counsel'?
Q. Is it not the practice of your court then to assign counsel to such defendants?
A. No, it is not. If you want something further on that -- we have attempted to have them assigned through the County Court here but it did not work out so they did not have counsel assigned. We had to go ahead without them.
Q. So that even in a case such as this where a defendant waived his right to indictment and trial by jury and consents to having the magistrate of the Municipal Court try the case, if a defendant says, 'I do not have money with which to hire counsel' and still pleads not guilty, then notwithstanding is not counsel assigned to him?
A. On occasions they are, yes. If he came out and said that he desired counsel the judge would attempt to get an attorney that happened to be in the room and assign him to apprise him of his legal rights and represent him.
Q. You say that if he said that he wanted counsel; I did not put that in my question. Supposing he did not say that he wanted counsel and all he said was, 'I don't have the money with which to hire counsel and I have no counsel and I plead not guilty'?
A. Well, Counsellor, I cannot answer what would be said under those circumstances.
Q. But it is not the practice of your court to assign counsel to indigent defendants?
A. Not as a general rule unless they so desire or make a definite request for it."
Petitioner did not affirmatively request counsel to be assigned. He did on all occasions continuously bring to the attention of the court that he was unable ...