For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Hall, J.
This appeal concerns a post-conviction attack on the referral of a juvenile complaint for adult criminal prosecution.
The defendant Robert Loray was implicated in the mugging of an aged pedestrian on a street in Newark on February 24, 1961. The victim died at the scene of the attack and robbery. At the time Loray was a juvenile, just over 16 years of age. The two others involved were Stanley Wilson, about three months older than Loray, and George Cooper, aged 19, and so beyond the juvenile classification. Loray and Wilson were charged with juvenile delinquency, by reason of the commission of assault, robbery and homicide, in a complaint filed in the Essex County Juvenile and Domestic Relations Court. N.J.S. 2A:4-14(1)(a). Following a hearing held on March 2, 1961, the judge of that court referred the matter to the prosecutor as to both youths to be dealt with as criminal cases under the authority of N.J.S. 2A:4-15.
Loray and Wilson were then indicted with Cooper for murder and robbery and counsel was appointed for each of them. All were convicted of murder in the first degree in the Essex County Court in May 1962. They were sentenced to life imprisonment in accordance with the jury's verdict. Loray alone appealed his conviction. We affirmed it. 41 N.J. 131 (1963).
No attack was made on the referral of the juvenile complaint until Loray's appeal. His brief then contended for the first time that the referral proceedings were a nullity, thereby infecting the criminal trial and calling for a reversal of the conviction and a remand to the juvenile court. The contention was grounded on counsel's assertions that Loray was not represented by counsel at the juvenile court hearing, was not advised of his right to counsel and was not afforded an opportunity to present evidence to challenge any authorized basis for referral or seeking to induce the court to retain the matter for final disposition. The only record then furnished us was the order of referral and the letter of transmittal thereof from the juvenile court judge to the prosecutor.
Neither indicated what had transpired at the hearing or, indeed, the basis for the referral. We declined to entertain the issue because of the absence of an adequate record and of any application for relief at the trial level. It was further noted that "we do not reach the question whether there may be an attack upon the order of referral after there has been a trial upon the indictment." 41 N.J., at p. 143.
The present petition for post-conviction relief, again in Loray's behalf only, was filed in the criminal cause, R.R. 3:10A-1 et seq., by newly assigned counsel in 1964. Asserted not only was essentially the same challenge to the referral proceeding in the juvenile court, but also the claim that the conviction was invalid on further alleged constitutional grounds including unlawful arrest and detention and violation of rights in the taking of his inculpatory statement during the period of detention. It asked that the conviction be set aside, plus the entry of a judgment of acquittal or, in the alternative, that the defendant be afforded an adequate defense commencing with a proper juvenile court referral hearing.
At the hearing on the post-conviction petition in the county court, the referral hearing, which had not been taken down stenographically, was reconstructed by what amounted to a certificate of the juvenile court judge. Defendant's parents had been sent a notice by the court that a preliminary hearing would be held to determine whether the matter would be retained and disposed of there or referred to the prosecutor. The notice included a statement that "the family may engage legal counsel if it desires to do so." At the hearing, defendant's mother was present with him. They were informed of the purpose of the hearing. He was not represented by counsel nor advised of any right to be represented by counsel or to have counsel assigned if he were indigent. The complaint was read aloud and defendant's age confirmed by questioning his mother. The judge then explained that from the complaint itself he determined that the offense charged was of a heinous nature -- a killing in the commission of a felony -- and
that under the circumstances the matter should be referred to the prosecutor. The defendant was not informed that he could present evidence in his behalf nor was he given any opportunity to do so.
In the post-conviction proceeding the court concluded, as a matter of federal constitutional right "and as a matter of fundamental fairness," that the defendant was entitled to be represented by counsel at the referral hearing and that he should have been specifically informed of that right and further told the court would appoint counsel if he were indigent. The Fourteenth Amendment due process right so found was grounded in analogy to the holdings in Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2 d 114 (1961), Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963), and White v. State of Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2 d 193 (1963) (see also Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2 d 923 (1965), decided since), the referral hearing being characterized as "a critical stage of the proceedings" because of the greater penalties that could be imposed in the adult court for felony murder. The court also held that the question could be first raised by an application for post-conviction relief since it affected "the fundamental fairness" of the proceedings and had not been "litigated in fact on appeal" from the conviction.
A remand of the case to the juvenile court for a properly conducted referral proceeding was ordered. The conviction was also vacated on the thesis that "[c]oncepts of fundamental fairness require that the defendant be afforded a hearing before the juvenile court free of the pressure of an existing conviction." The practical effect is that if, at the directed referral hearing, the juvenile court again decides to ...