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January 13, 1964

Robert F. URBANO, Petitioner,

The opinion of the court was delivered by: WORTENDYKE

There is before this Court a written petition filed October 28, 1963 for a writ of habeas corpus. Upon representation of indigency, leave was granted to the petitioner to file his petition and accompanying documents without prepayment of fee and to proceed thereon in forma pauperis. Respondent, The State of New Jersey, has filed answer to the petition.

In his verified petition the applicant alleges that he was convicted of murder in the Bergen County (New Jersey) Superior Court and sentenced on May 19, 1960 to life imprisonment in the New Jersey State Prison at Trenton where he is presently confined.

 Annexed to the petition are copies of the complaint against the petitioner; the warrant for his arrest; the indictment returned by the Bergen County Grand Jury charging the petitioner with the murder of one Louis Leo Zaritsky on January 15, 1960 in the Borough of Paramus in that County, in violation of §§ 2A:113-1 and 2 of the statutes of that State; the order of the Bergen County Court assigning as counsel to the petitioner David A. Gelber, Esq. and James L. Montgomery, Esq., members of the Bar of New Jersey; the order of the Honorable Arthur O'Dea, Judge of the Bergen County Court, dated May 19, 1960, imposing sentence of life imprisonment upon petitioner upon his plea of non vult, and transcript of the sentencing proceedings; letter from one of the assigned attorneys for the petitioner to the Warden of the New Jersey State Prison, dated June 29, 1960, advising that petitioner was subject to a strong suicidal tendency and suggesting that he be seen by the prison doctor; order of the Warden of the New Jersey State Prison dated August 4, 1960, directing the transfer of petitioner from the State Prison to the custody of the Chief Executive Officer of the State Hospital at Trenton; petitioner's similar application to the Bergen County Court dated April 1, 1963 for writ of habeas corpus; order of that Court dated April 25, 1963 denying the writ; order of the Supreme Court of New Jersey dated July 1, 1963 denying petitioner's application for leave to appeal as an indigent from the Bergen County Court's denial of his application for writ of habeas corpus; further order of the Supreme Court of New Jersey, dated September 30, 1963, dismissing petitioner's appeal for want of merit; and letter from petitioner to the Chief Justice of the New Jersey Supreme Court, dated August 10, 1963, requesting inquiry into State proceedings involving petitioner to the date thereof.

 With his petition to this Court the applicant has filed a complete transcript of a hearing held by the Judge of the Bergen County Court on April 25 and 26, 1960, pursuant to N.J.S. 2A:163-2, N.J.S.A., for the purpose of determining petitioner's mental capacity to stand trial and cooperate with counsel in his defense. At that hearing six qualified expert witnesses testified respecting the subject of inquiry, and upon this testimony the Judge of the Bergen County Court, on April 27, 1960, found and determined that petitioner was competent and capable of standing trial upon the indictment; that although he suffered from mental illness such illness was not an impediment to his conferring with counsel and relating the factual circumstances and details necessary for his proper defense; and that he comprehended, understood and appreciated his then existing situation, and was able to collaborate and cooperate with counsel in his defense to the charge set forth in the indictment. Annexed to the transcript of the testimony of the expert witnesses who testified before the Court upon the sanity hearing are copies of the psychiatric and psychological reports on petitioner of Noel C. Galen, M.D., Daniel Goldstein, M.D., Fredric Wertham, M.D., Emanuel Fisher, Ph.D., Laurence M. Collins, M.D., J. F. Zigarelli, M.D., Stanley Liutkus, Ph.D., Charles F.Post, M.D. Also made part of said appendix is a copy of petitioner's application of July 8, 1963 to the New Jersey Supreme Court to obtain documentary evidence which is, in part, identical to the application he has made here for the same documents, and a copy o a list of names of visitors received by petitioner during his confinement in the Bergen County Jail, with accompanying letter from the Sheriff of said County dated May 24, 1963, and a letter from the Undersheriff to petitioner, dated June 11, 1963, advising that if petitioner desired any further information the records of his office were open to the inspection of petitioner's attorney at any reasonable time during any week-day.

 It further appears from the transcript filed with the pending petition that, following the determination of the Bergen County Court that the petitioner was competent to stand trial and able to collaborate and cooperate with counsel in his defense, the trial of the indictment against him was duly moved. Thereupon counsel for the petitioner, in his behalf and in his presence, asked leave of the Court to retract his plea of not guilty and to tender a plea of non vult. The record discloses that thereupon the following colloquy between the Court and the defendant occurred:

 'THE COURT: Urbano, do you understand what Mr. Gelber (of counsel with petitioner) has just represented to the Court on your behalf?


 'THE COURT: Have you discussed the matter of offering a plea of non vult to the indictment with Mr. Gelber and Mr. Montgomery?

 'THE DEFENDANT: Yes, sir.

 'THE COURT: How many times have you conferred with them on that matter of the offer of a plea?

 'THE DEFENDANT: I don't know.

 'THE COURT: When did you first discuss it with them? Let me say this, anything you say to me or say to the Court in open court here now is without prejudice to you in any way in the event we do not accept the plea.

 'THE DEFENDANT: I just don't know.

 'THE COURT: When did you last discuss this with them?

 'THE DEFENDANT: Just now.

 'THE COURT: Did you discuss it prior to just now?


 'THE COURT: When was that, do you know?

 'THE DEFENDANT: I don't remember.

 'THE COURT: Was that discussion at your request or at their request?

 'THE DEFENDANT: At their request.

 'THE COURT: Did you ever make that request yourself to them?

 'THE DEFENDANT: I don't think so.

 'THE COURT: You didn't send for them last week to discuss the matter of a plea to the indictment?

 'THE DEFENDANT: I might have. I don't remember.

 'THE COURT: You might have?


 'THE COURT: But did you discuss it with them last week in the jail?

 'THE DEFENDANT: Yes, I did.

 'THE COURT: And did you discuss it with Dr. Werthem in the jail?


 'THE COURT: Well, what I would like to know, if I can find out from you, is who initiated those discussions? Who prompted them, you or your counsel?

 'THE DEFENDANT: I don't think anyone did.

 'THE COURT: I don't hear you.

 'THE COURT: It just came up as an alternate?


 'THE COURT: Now, do you know and understand the meaning and the consequences of pleading ...

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