On application for post-conviction relief.
Kramer, J.c.c. (temporarily assigned).
This matter is before the court on application of defendant for post-conviction relief, and motion by prosecutor to dismiss.
Defendant was indicted and plead guilty to the crime of rape and is presently serving a 5-10-year sentence in the New Jersey State Prison.
On September 17, 1964 defendant was arrested and placed in a police lineup along with four other men. Both the victim and a young boy who was in the house at the time of the offense positively identified petitioner as the assailant. Subsequent to this identification defendant confessed his guilt and gave a signed statement to that effect. On October 9, 1964 defendant, appearing with assigned counsel, pleaded guilty to the charge of rape. An examination by the Menlo Park Diagnostic Center was ordered pursuant to N.J.S. 2A:164-3 et seq. Pursuant to the recommendation of the Diagnostic Center that he be handled correctionally, defendant was sentenced to State Prison on December 11, 1964.
Defendant first contends that his confession was illegally coerced because it resulted from his identification in a police lineup. It is alleged that subjection of an accused to a lineup is unconstitutional, relying on Butler v. Crumlish, 229 F. Supp. 565 (E.D. Pa. 1964). In that case the court enjoined the Philadelphia police from placing defendants, who had been arrested on numerous charges including rape, in a lineup for possible identification by victims of similar crimes. The court reasoned that defendants were in custody solely because they were unable to post bail and that to force them to appear in a lineup while those who could afford bail could not be so forced was an invidious discrimination.
This decision by a lower federal court is not binding on the New Jersey courts. See State v. Coleman, 46 N.J. 16 (1965). Moreover, its reasoning has been repudiated even in the Eastern District of Pennsylvania by Morris v. Crumlish, 239 F. Supp. 498 (E.D. Pa. 1965). In that case the court refused to enjoin the placing of defendant in a police lineup. It was held that a person in custody is not entitled to the same privileges as a person out on bail, and that a police lineup does not violate constitutional guarantees.
N.J.S. 2A:84A-19 provides:
"(a) no person has the privilege to refuse to submit to examination for the purpose of discovering or recording his corporal features and other identifying characteristics or his physical or mental condition."
In State v. King, 44 N.J. 346 (1965), defendant had been placed in a lineup after his arrest and told to repeat the words that the robber had used at the time of the crime. He did so and was identified as the guilty party. It was contended on appeal that it was a violation of the privilege against self-incrimination to permit such identification evidence at trial. Our Supreme Court ...