a murder indictment to withdraw a plea of non vult and go to trial upon a plea of not guilty. After having been sentenced to life imprisonment upon his plea of non vult, he applied to the County Court for a writ of habeas corpus which was treated by that court as a motion in the original criminal case to withdraw the plea of non vult. The County Court held a full hearing and concluded that the application should be granted and that the defendant should be permitted to stand trial. The defendant had contended before that Court that his assigned counsel had not fully investigated his previous history of mental illness. The County Court concluded that reasonable doubt existed as to the free function of the defendant's mind at the time he consented to plead non vult and resolved that doubt in the defendant's favor. The Supreme Court reversed the order of the County Court. Anent the instant petitioner's present contention that his plea could not have been voluntary because it made death impossible, in view of his asserted 'vehement 'death wish," the Court in State v. Daniels, supra, had the following to say respecting an analogous situation involved in that case: 'There is no more fateful choice a man charged with a capital offense can make and it is the most elemental essence of human nature that he will choose a course to make death impossible regardless of other available alternatives which might or might not guarantee that result. And here the defendant knew the State would seek the supreme penalty. We think it most unreasonable to say that because he chose certain life, that decision was an involuntary one subject to later avoidance. If such were the law it would seem no non vult plea to a murder indictment could ever stand where there had been any possibility of a death sentence.' (38 N.J. pp. 254-255, 183 A.2d p. 655).
The colloquy between the County Court and the petitioner upon the application for leave to retract and proffer a plea of non vult (supra) discloses that petitioner expressed full awareness that, by offering the plea of non vult he was admitting his guilt of having murdered the decedent; that such a plea exposed him to the possibility of a sentence of life imprisonment; that if he stood upon his plea of not guilty and went to trial and were found guilty of murder in the first degree without a recommendation, he would expose himself to the penalty of death. He repeatedly stated that all of the possibilities referred to had been discussed by him with his attorneys, and reiterated his controlling desire to avoid a trial. His plea of non vult, therefore, was not coerced.
Petitioner's fourth and fifth contentions are that the judge, who conducted the sanity hearing, acted in an arbitrary and partisan manner, prejudicial to petitioner, and abused his discretion, resulting in an accumulation of errors and denial of due process. For some specific examples, he claims that the judge made contradictory rulings, commented facetiously, refused to let the expert witness testify as to their conclusions on petitioner's competence, admitted evidence of petitioner's admission of having committed prior thefts, relied on petitioner's failure to testify as evidence of his competence and appointed two attorneys to represent him rather than just one. If these, and the other actions attacked by petitioner under his fourth and fifth contentions, were errors at all, they do not individually or cumulatively constitute a denial of a fair trial and of due process. United States ex rel. Birch v. Fay, supra, 190 F.Supp. 107.
Petitioner's sixth contention is that, as a result of the errors complained of in his first five contentions, his rights were so seriously violated that the trial court lost jurisdiction and his conviction was therefore void. This contention merely restates petitioner's conclusions in the other contentions that the sanity hearing, the acceptance of his plea and the sentence constituted violations of due process under the Fourteenth Amendment, and therefore adds nothing to the petition.
Petitioner also alleges that the evidence shows he was insane at the time of the commission of the offense. His present assertion that he was legally insane at the time of the alleged crime, even if susceptible of present proof, does not impair the validity of the finding, upon substantial evidence, that petitioner was mentally competent to plead or in the alternative to stand trial under the indictment at the time of the hearing. Had petitioner preferred to stand upon his initial plea of not guilty and risk a trial of the indictment, he could have been found guilty of first degree murder, incurring the death penalty, or, with recommendation, life imprisonment; he could have asserted as a defense insanity at the time of the alleged offense, and if acquitted thereon, would have been committed to appropriate confinement in a mental institution if he continued to be insane. His plea of non vult was entirely consistent with a natural and considered desire to avoid the risk of execution. These alternative possibilities were fully explained to petitioner by the County Judge before accepting his plea of non vult, and his plea of non vult, which he was competent to make, precludes him from asserting his insanity at the time of the offense.
In conclusion, opportunity accorded to the petitioner by the Bergen County Court to obtain an adjudication as to his mental competency to stand trial by a plenary hearing, at which the testimony of witnesses in petitioner's own behalf as well as in behalf of the State was heard, with right and opportunity recognized and afforded to both parties to examine and cross-examine such witnesses, cannot by any stretch of the meaning of language be construed to constitute a denial of due process of law. While there were some conflicts between the opinions of the expert witnesses whose testimony was presented at the hearing on the issue of competency, there was on the face of the record presently before me substantial evidence supportive of the conclusion of the trial Judge that petitioner was competent to stand trial. The record which he submits upon his instant application fails to disclose any error, prejudice, coercion or collusion on the part of the hearing Judge. The proceedings to date are barren of any disclosure or even suggestion of a denial of due process of law to petitioner, other than petitioner's unfounded allegations. Because there was substantial evidence justifying the State Court in concluding that the petitioner was competent to stand trial, it necessarily follows that the same evidence disclosed with equal clarity the competency of the petitioner to plead non vult, even though such a plea was equivalent to one of guilty which admitted or confessed the offense charged in the indictment. Petitioner's plea of non vult was voluntary, uncoerced and understandingly proffered. The issue of the petitioner's competency to stand trail was fairly and completely resolved in a plenary hearing in the presence of petitioner, represented by competent counsel, and upon substantial evidence. The factual determination upon which the Court concluded that petitioner was competent to stand trial is fairly supported by the record as a whole. The procedure followed by the State Court afforded a full and fair hearing. Accordingly, I find no basis in the record or in the contentions of petitioner for questioning the propriety of his present confinement.
With the petition for habeas corpus, Urbano filed here additional petitions requesting orders releasing the following documents to him in connection with the present application: (1) the medical and psychiatric reports on petitioner prepared by the State Hospital; (2) all statements, documents, reports and all material evidence in his case now in the possession of the Bergen County Prosecutor's Office; (3) the pre-sentence report submitted to the sentencing judge; and (4) a copy of his medical records while he was in the Bergen County Jail and a statement from the Sheriff that he has submitted to petitioner all information possessed by the County Jail. In view of my conclusion that the petition for writ of habeas corpus should be denied, it becomes unnecessary for me to consider petitioner's demand for the foregoing documentary material.
For the reasons aforesaid, the petition of Robert F. Urbano for a writ of habeas corpus filed in this Court on October 28, 1963, is denied and is accordingly dismissed this 13th day of January, 1964.