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State v. Ashby

Decided: November 29, 1963.


Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D. Goldmann, S.j.a.d. (dissenting).


This is an appeal by defendant, pursuant to leave granted by this court, from an interlocutory order of the Superior Court, Law Division, Burlington County, denying his motion to require the Prosecutor of Burlington County to nolle prosequi five indictments pending against him or, in the alternative, to dismiss said indictments. The relevant facts concerning this unusual situation are not in dispute.

The grand jury of Burlington County returned five indictments, each charging defendant with the crime of open lewdness,

in violation of N.J.S. 2A:115-1. In each instance the offense charged indecent exposure in the presence of named females. The dates and places where the incidents allegedly took place are: April 10, 1962 in the Township of Burlington, May 18, 1962 in the Township of Edgewater Park, and March 5, April 10 and May 16, 1962 in the Township of Levittown.

In June 1962 defense counsel sent defendant to Dr. Ivan F. Bird of Trenton for a psychiatric examination. On July 11, 1962 Dr. Bird gave his report to defense counsel stating that in his opinion defendant was not mentally ill but was undergoing a neurosis with compulsive behavior. He recommended psychiatric treatment and reported that defendant was willing to accept the same.

On July 17, 1962 David Kravitz, one of defendant's counsel, communicated with the prosecutor in an attempt to ascertain whether defendant could plead in the respective municipal courts to the lesser charge of being a disorderly person and have the criminal indictments nolle prosequied. The prosecutor suggested that counsel confer with him on July 19 when defendant was to plead to the indictments in the Superior Court. On the same day Mr. Kravitz telephoned County Judge McGann and solicited his aid in the matter. It is Judge McGann's recollection that Mr. Kravitz mentioned but one incident involving defendant and not five, and that he suggested Mr. Kravitz should take the matter up with the assignment judge.

On July 19, 1962 defendant was arraigned on the five indictments and entered pleas of not guilty. On July 23 or 24 Mr. Kravitz conferred with the prosecutor and exhibited Dr. Bird's report. He informed the prosecutor that defendant was married and the father of three children; that if he pleaded guilty or was found guilty of the criminal charges he would lose his security clearance with his employer. He requested that the charges be disposed of by pleas of guilty in the several municipal courts under the Disorderly Persons Act and that the indictments be nolle prosequied. The prosecutor

advised him that from previous conferences with Judge W. Orvyl Schalick, the assignment judge, he knew that the judge would not grant an order to nolle prosequi such indictments. Mr. Kravitz told the prosecutor that he would confer with Judge Schalick personally.

On July 25, 1962 Mr. Kravitz endeavored to reach Judge Schalick at his chambers in Camden. He was advised that the judge was on vacation and that Judge Wick was the acting assignment judge. He spoke to Judge Wick about the matter over the telephone and pursuant to the judge's suggestion forwarded a letter and enclosed a copy of Dr. Bird's report. In his letter he advised Judge Wick, in part,

"On the basis of the economic harm which will come to Mr. Ashby and his family and on the basis of the favorable recommendations of Dr. Bird, the Prosecutor's staff, the Chief of County Detectives and Judge McGann with whom I spoke, all have agreed that with proper psychiatric treatment Mr. Ashby could make a complete and satisfactory rehabilitation and on that basis all are willing to allow the indictments on the criminal charges, as such, to be 'nolle prosed' and allow Mr. Ashby to plead to a lesser charge of being a disorderly person. This attitude also stems from the fact that no children were involved and that no force or touching occurred. In this event there would be no interference with Mr. Ashby's security clearance at the RCA Laboratories where he is employed.

I have been advised that in order for this procedure to occur, it is necessary for you or Judge Schalick to give your permission.

Therefore, I respectfully request that you give serious consideration to my plea on behalf of Mr. Ashby."

On July 27 Judge Wick wrote Judge McGann. He stated he understood that defendant had been charged with five counts of open lewdness and that he was accepting psychiatric treatment from Dr. Bird and would continue to do so until the doctor decided that he had been sufficiently rehabilitated. The letter then contained the following statement:

"This is to advise that acting in the stead of Judge Schalick as the Assignment Judge you have my permission to dispose of these incidents on charge of being a disorderly person and under such other conditions as you deem advisable. This consent would permit the indictments to be 'nolle prosed.'"

Judge McGann made the following notation on the letter:

"Acknowledge and tell J. Wick we shall be guided accordingly. Tell him also we think the Prosecutor should be notified and consent to the request."

The letter with said notation was then delivered to the prosecutor, who thereupon caused notice to be given to the municipal magistrates that complaints would be made against defendant under the Disorderly Persons Act in their respective courts. Defense counsel were notified they would be advised by the magistrates of the dates of the hearings on said complaints.

On August 28, 1962 defendant appeared before the municipal courts of Edgewater Park and Burlington Township and pleaded guilty in each municipality to a complaint charging him with violation of N.J.S. 2A:170-5 as a disorderly person. On each complaint he was fined $100.

Defense counsel had been advised to produce defendant before the municipal court of Levittown on Friday, August 31, to plead to the three remaining charges as a disorderly person. However, prior to said date the Levittown magistrate communicated with defense counsel and stated that the prosecutor had postponed the hearing on these charges.

Defendant's attorneys conferred with the prosecutor. He informed them that Judge Schalick had returned from his vacation and, upon being advised of the procedures being followed, had said he would not permit the indictments to be nolle prosequied. Accordingly, the prosecutor would not move for the same.

Defendant then moved before Judge McGann, sitting in the Superior Court, to nolle prosequi or dismiss the criminal indictments. The judge denied the motion on the ground that he had no authority to dismiss said indictments; that under the rules of court motions to nolle prosequi indictments must be made only to the assignment judge. This ruling is the subject of the present appeal.


We will consider first the disposition of the indictments charging the crimes of open lewdness in the Townships of Burlington and Edgewater Park where defendant has pleaded guilty and been fined on complaints for violation of N.J.S. 2A:170-5. This statute provides that any person who by word, act or sign invites or solicits unlawful sexual intercourse or any other unlawful, indecent, lewd or lascivious act, is a disorderly person.

Where one offense is an ingredient or integral part of another offense, or when the evidence necessary to secure a conviction of the second offense was an essential part of the proof used to obtain a conviction of the first offense, conviction on one charge bars another. State v. Dixon , 40 N.J. 180, 184 (1963); State v. Mark , 23 N.J. 162 (1957); State v. Labato , 7 N.J. 137 (1951). Here the evidence necessary to secure a conviction under the two indictments charging the crimes of open lewdness in said townships was an essential part of the proof upon which the disorderly person complaints were founded in the municipal courts.

Under our former practice, the defense of double jeopardy, raised by defendant in the instant case, had to be asserted by a written plea of autrefois convict. This requirement has been eliminated and the practice of disposing of such an issue by a motion before trial is substituted. State v. Mark, supra , 23 N.J. , at page 167; State v. Boening , 63 N.J. Super. 588 (App. Div. 1960). See also R.R. 3:5-5.

The county judge assigned to preside in the trial of criminal actions has the power and authority to pass upon such motions. Defendant made such a motion with respect to the two said indictments. The prosecutor at oral argument of this appeal conceded that such relief should be granted. We are satisfied that these two indictments should be dismissed.


We come now to the three remaining indictments charging defendant with the crimes of open lewdness in the Township of Levittown.

Defendant contends that Judge McGann erred when he refused to grant the motion to dismiss these indictments or to order the prosecutor to nolle prosequi these indictments on the ground that he had no authority to do so. He urges that the proper procedure to enforce an agreement to downgrade offenses and to nolle prosequi indictments is by a motion before the court having jurisdiction over the indictments. It is conceded that Judge McGann had been assigned to preside over the trial of criminal causes.

We will pass for the moment the question of whether such an alleged agreement existed, and the validity thereof, to consider the procedural aspects involved.

The nolle prosequi was a device used at common law to terminate a criminal prosecution which the government intended to abandon. " Nolle prosequi " means literally "to be unwilling to prosecute." Anciently the attorney general, alone and without judicial interference, ended a criminal prosecution by openly announcing to the court that the government would no longer prosecute the indictment.

In New Jersey the power to enter a nolle prosequi is reposed exclusively in the attorney general or the county prosecutors, but it cannot be exercised without the consent of the court. State v. Hickling , 45 N.J.L. 152 (Sup. Ct. 1883). Our practice places joint responsibility for the proper use of the power to terminate a criminal prosecution on the prosecutor who determines upon that course and on the judge who approves it. However, the courts of our State have no power to direct the prosecutor to move a nolle prosequi of an indictment.

When our court rules were first adopted R.R. 2:12-4 (now R.R. 3:11-3) provided that upon the motion of the prosecuting attorney, the court may order a nolle prosequi of

an indictment. In 1953 the rule was amended to substitute the word "dismissal" for the common law expression " nolle prosequi." This was a mere change in form and not one of substance. In effect, it is a motion by the prosecutor to dismiss the indictment because he no longer intends to prosecute the same. The pertinent language thereof states:

" Upon the motion of the prosecuting attorney, an indictment or accusation, or any count thereof, may be ordered dismissed prior to trial only (1) by the Assignment Judge or (2) by a judge to whom the same has been assigned for disposition, provided that such judge has previously sentenced the same defendant on one or more counts of the same or another indictment or accusation." (Emphasis added)

The rule as amended thus provides that such a motion to dismiss, viz. , to " nolle prosequi " the indictment, can be made only by the prosecutor and an order directing such dismissal can be entered only by the assignment judge. Judge McGann was correct in ruling that he had ...

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