Sullivan, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendant Vincent Zito, together with Charles Miller and Karl Shucai, was indicted and convicted for the offense of breaking and entering in violation of N.J.S. 2 A:94-1 and for larceny in violation of N.J.S. 2 A:119-2. Defendant was sentenced to the New Jersey State Reformatory for males for an indeterminate term.
On appeal to this court Zito contends that (1) his arrest under the Disorderly Persons Act was illegal and therefore the items seized in a search incident thereto were inadmissible as evidence at his trial, (2) his confession was erroneously admitted in evidence because the State failed to establish that he voluntarily and knowingly waived the right to be represented by counsel, and (3) the Disorderly Persons Act offends due process of law by its creation of an impermissible presumption and, in any event, it is void for vagueness.
The trial judge believed the pretrial hearing testimony of the police officers which reveals the following. At 2:50 A.M. on October 10, 1966, defendant and his two codefendants were seated in an automobile, owned by Shucai, which was parked on Prince Street in Paterson, across the street from Silvio Savastano's tavern. Savastano, being suspicious, as the car had been parked there about 45 minutes, notified the police. Upon their arrival, Savastano informed Sergeant Malzone that he recognized the men; they had been in his tavern the previous night and, after they had left, he discovered that the latch of the window in the washroom had been "tampered with." Malzone and Officer Santoro then approached the parked vehicle and, while the occupants were being questioned, Malzone noticed, in plain view, a pipe wrapped in black adhesive tape "resembling a club" on the floor of the automobile between the driver and the man "sitting in the middle."
No response was given to the officers' questions concerning the pipe. When the men were asked to identify themselves, to explain "what they were doing there," they stated, "We're just sitting in the car." One of them remarked that they were waiting for two girls. It was also learned that defendant and Miller were on parole.
The officers ordered the occupants out of the car and advised them that they were under arrest on a disorderly persons charge. Upon an ensuing search a toy water gun was found in Shucai's pocket, and six boxes of new spark plugs and a large tool box containing mechanics' tools were discovered in the trunk of the car.
Defendant and his two companions were forthwith taken to police headquarters. At this point we note that within 24 hours prior to the arrest and search, the Prince Street Garage in Paterson was broken into and mechanics' tools and spark plugs were stolen. While in custody Zito was advised by Detective DiNardo that he was also under arrest on charges of breaking and entering and larceny at the aforesaid garage, the offenses for which the three men were subsequently indicted, tried and convicted.
The detective testified that before interrogation as to those charges he informed Zito as to his constitutional rights, including the rights to remain silent and to have the services of an attorney. According to DiNardo, defendant replied that he did not want an attorney and later made a voluntary confession as to his participation in the alleged crime; he also signed a waiver and written statement. The testimony of DiNardo was corroborated by Detective Rogers who was present during the interrogation. Both officers gave evidence that defendant was not threatened, promised or maltreated.
The contrary version of the three accused as to what transpired at the scene of apprehension and at police headquarters was not believed by the presiding judge who concluded that the officers, in the circumstances, had probable cause to make the arrest on a disorderly persons charge. There is no
evidence to support defendant's argument that the police made the arrest to legalize the search. The court found that the search was incident to a valid arrest and, accordingly, the joint motion of the defendants to suppress the tangible evidence, found as a result of the search, was denied. The taped pipe was held to be admissible in evidence since it was in plain view at the time of apprehension.
At the same pretrial hearing the evidence and arguments of counsel addressed to the voluntariness of Zito's confession were considered. The court recognized the conflict in the proffered testimony and decided on the facts presented that the State had sustained its burden of proof. It held that "defendant was warned of his full rights as set forth in Miranda [ Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 94 (1966)] opinion," the oral inculpatory statement had been voluntarily ...