On Petition for post conviction relief.
Peel, J.c.c. (temporarily assigned).
[105 NJSuper Page 195] This matter arises upon a petition for post conviction relief filed by defendant, Douglas Zold, pursuant to R.R. 3:10A-1 et seq. Defendant
seeks relief from a judgment of conviction entered in the Camden County Court on Indictment No. 836-65 charging him with robbery in violation of N.J.S. 2 A:141-1. On March 10, 1967, defendant was sentenced to not less than six nor more than nine years in the New Jersey State Prison. Following said sentence, defendant filed a motion for a new trial based on newly discovered evidence, that the verdict was contrary to the weight of the evidence, and for reconsideration of the sentence. The motions were heard on May 4, 1967, and denied. Thereafter, an appeal was taken in the Appellate Division which affirmed on January 11, 1968. A notice of petition for certification to the Supreme Court of The State of New Jersey was submitted and denied on May 14, 1968, 51 N.J. 574.
Post conviction relief had previously been applied for by petitioner, but at his request that application was dismissed. Thereafter, defendant filed an affidavit for leave to petition as an indigent and a second petition for post conviction relief. A hearing was held before this Court on January 17, 1969, at which time the petitioner was represented by counsel from the office of the Public Defender, and testimony of the petitioner and his brother, Emery Zold, was received followed by argument on the issue.
Although petitioner's petition is improperly drawn in that it consists primarily of argument in violation of R.R. 3:10 A -8, in the interest of justice, the substance shall be treated rather than the form. R.R. 1:27A.
At the hearing before this Court, counsel for petitioner acknowledged that all but one of petitioner's contentions were previously raised and expressly adjudicated in petitioner's earlier appeal taken in the Appellate Division, and are, therefore, expressly precluded from being raised in an application for post conviction relief. R.R. 3:10A-5. State v. Smith, 43 N.J. 67 (1964) certiorari denied 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2 d 706, rehearing denied 380 U.S. 938, 85 S. Ct. 945, 13 L. Ed. 2 d 826 (1964).
Petitioner's remaining contention is that he was deprived of both a fair trial and effective assistance of counsel. Petitioner contends that Michael Melissas, Esq., his trial counsel was employed as a municipal attorney by the Law Department of the City of Camden at the time he was retained by petitioner's brother, and later when he defended petitioner before the Camden County Court in this criminal matter. This, petitioner alleges, constituted a conflict of interest at the time of trial which deprived petitioner of his right to a fair trial and effective assistance of counsel at the trial. In effect, petitioner argues that denial of relief on said account would be contrary to fundamental justice or to the Constitution of New Jersey R.R. 3:10A-4 (b).
In his petition, petitioner maintained that he was not aware of his counsel's position as legal assistant for the City of Camden at the time of his appeal, inferring thereby that relief be granted under the provisions of R.R. 3:10A-4, i.e. that the issue could not have been raised in prior proceedings. This argument likewise was abandoned at the hearing before this Court, and rightfully so, because the testimony of the petitioner in this respect was contrary to the allegation in his petition.
At the hearing, Emery Zold, petitioner's brother, testified that he retained Melissas to represent his brother before the Camden County Court without knowledge that Melissas also held the position of Assistant Municipal Attorney for the City of Camden. He stated that he had obtained the name from someone he had met in a Camden restaurant. Both Emery Zold and petitioner testified that Melissas had previously prosecuted petitioner in the Camden Municipal Court on a number of disorderly conduct charges. They both stated that this information was obtained by checking work records and discovering that Melissas was on duty as Municipal Prosecutor on those particular days. However, petitioner claimed that he did not recognize Melissas at trial. Petitioner testified that he first remembered meeting Melissas in 1966 at a Haddon Heights Municipal Court hearing when
Melissas represented him before that Court at a preliminary hearing on another charge. Petitioner stated that he did not know who had retained Melissas for his defense at that time. Both petitioner and his brother testified that Melissas never informed either of them of his position with the Law Department of the City of Camden either, before, during, or after this trial. Petitioner testified he first learned Melissas was a Municipal Attorney, who occasionally served as Municipal Prosecutor in March, 1967, from fellow prisoners in the Camden County Jail while awaiting sentence in this case. Further, petitioner testified that he told his counsel on appeal of Melissas' position as Municipal Attorney.
It is undisputed that Melissas is a Legal Assistant in the Department of Law in the City of Camden; that he was first appointed to the position on July 26, 1962, and left on March 31, 1965; that he was thereafter reappointed on September 19, 1966, and has from then to the present continued to serve in such capacity. Further, it is undisputed that members of the legal staff of the Department of ...