For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.
[43 NJ Page 274] Five indictments were returned against defendant Joseph A. Ashby charging him with open lewdness in violation of N.J.S. 2A:115-1. A short time later, under circumstances to be set forth hereafter, he moved before County Court Judge Thomas McGann to whom the case had been assigned for an order requiring the prosecutor to apply for a nolle prosequi of the indictments or in the alternative for an order dismissing them. (Under our present rule the motion for a nolle prosequi has been replaced by the motion to dismiss. See R.R. 3:11-3(a).) The motion was denied primarily because the court felt the authority to make such an order was restricted under R.R. 3:11-3(a) to the Superior Court Assignment Judge. On appeal the Appellate Division agreed with Judge McGann's view of lack of authority but, in the exercise of its original jurisdiction under R.R. 1:5-4 and R.R. 2:5, decided to pass upon the merits of the substantive issue of defendant's entitlement to the order. The
majority of the judges affirmed the trial court's action; one judge dissented. State v. Ashby, 81 N.J. Super. 350 (App. Div. 1963). Defendant then appealed to this Court. R.R. 1:2-1(b).
The indictments charged that on five occasions between March 5, 1962 and May 18, 1962, in three different municipalities in Burlington County, defendant committed acts of open lewdness. On being retained, defense counsel obtained a psychiatric report to the effect that Ashby was not legally insane and not suffering from any serious sexual perversion. It indicated, however, that he was "undergoing a neurosis with compulsive behavior," and in need of psychiatric aid. The examining psychiatrist reported also that defendant was willing to undergo such treatment. The doctor expressed the view that hospitalization was not necessary and that he had "every reason" to expect that with proper treatment the condition would clear up.
Investigation revealed that defendant was married and living with his wife and three children. He had no criminal record and had received an honorable discharge from the Army in 1956. He is a college graduate and at the time of the alleged offenses was in the employ of a substantial corporation, which employment would probably be lost by conviction of crime.
In view of defendant's background and the medical report, counsel conferred with the prosecutor regarding a disposition of the indictments which would fairly serve the interest and welfare of the public and the defendant and his family. There is not the slightest suggestion that the defense attorney and the prosecutor did not discuss the matter in good faith, or that they did not honestly recognize the conduct of the defendant as presenting a medical problem, or that they did not seek a solution of the charges which would further the public and private interests involved. Nor is there any doubt that the Legislature has shown an awareness of need for specialized rehabilitative treatment in certain sex offenses of this type. N.J.S. 2A:164-3 et seq.
Defense counsel suggested that instead of the indictments, five complaints under the Disorderly Persons Act, N.J.S. 2A:170-5, be filed in the municipal courts of the three municipalities where the acts occurred. The defendant would plead guilty to such complaints, submit to the penalty imposed there and continue psychiatric treatment until discharged by the doctor. It was suggested further that after this was done, the prosecutor should nolle prosequi the indictments.
At this point it should be noted that whatever the nature of the prosecutor's discretion in the handling of criminal complaints, once the grand jury has indicted a defendant, jurisdiction of the indictment passes to the Superior Court or the appropriate county court within their respective spheres of judicial activity. The court and not the prosecutor controls the trial calendar, State v. Coolack, 43 N.J. 14 (1964), and the prosecutor cannot enter a nolle prosequi of an indictment without the consent of the court. R.R. 3:11-3(a); Apgar v. Woolston, 43 N.J.L. 57, 65 (Sup. Ct. 1881); State v. Hickling, 45 N.J.L. 152 (Sup. Ct. 1883); Earl v. Winne, 34 N.J. Super. 605, 613 (Cty. Ct. 1955).
At the conference the prosecutor was inclined sympathetically toward the defense proposal and indicated he would accede to it but for doubt that approval of the Assignment Judge could be obtained. Counsel telephoned the Assignment Judge's chambers and learned he was on vacation and that another member of the court was functioning as acting Assignment Judge. On telephoning the latter, counsel was instructed to outline the matter in letter form and to attach a copy of the psychiatric report. That was done and the acting Assignment Judge wrote the county judge in whose trial list the indictments were pending saying, among other things:
"This is to advise that acting in the stead of Judge Shalick you have my permission to dispose of these incidents on charge of being a disorderly person and under other conditions as you deem advisable. This consent would permit the indictments to be 'nolle prossed.'"
Here, again, we may interpolate that under the circumstances presented, Rule 3:11-3(a) required the nolle prosequi motion to be made before the Assignment Judge and not the county court judge. Moreover, to avoid possible misunderstandings such as evolved in this instance, in our judgment arrangements of the kind requested should not be made ex parte, particularly by the defendant. A nolle prosequi motion may be made only by the prosecutor; the preliminary ...