Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D. Conford, P.J.A.D., dissenting.
This is an appeal from an order dismissing defendant's petition for post-conviction relief.
Defendant Jacob Rosen was indicted for (1) breaking and entering with intent to commit larceny and (2) possession of burglar's tools. Pending trial Angelo Malandra, his retained attorney, was appointed to the bench. At the trial Ralph Kmiec, Judge Malandra's former law associate, appeared to represent the defendant. Rosen objected to proceeding contending he had retained Malandra and not Kmiec. The trial judge said Rosen must have known for some weeks that Malandra had become a judge, that if he wanted an attorney other than Kmiec he should have engaged one, that the case was one of the oldest in the county and he was not inclined to grant a further adjournment. The judge granted a recess in order that defendant could confer with Judge Malandra, who, he was informed, was on the way to the court house. However, he said it was his "present thinking" that, if necessary, he would appoint Kmiec to
serve as defendant's attorney and to proceed with the trial. Following the recess the defendant informed the court that he was ready and willing to proceed, that he did not wish to wait until Judge Malandra's arrival, and that it was all a misunderstanding.
Defendant was convicted by the jury of breaking and entering with intent to commit larceny and acquitted of the charge of possessing burglar's tools. On July 7, 1967 he was sentenced to a State Prison term of 3 to 5 years, which sentence was later reduced to 2 to 3 years. A direct appeal on his behalf was taken to this court by Mr. Kmiec who raised eight grounds for reversal in the brief he filed on October 5, 1967. On March 26, 1968 Mr. Kmiec was relieved as defendant's attorney and thereafter defendant's present attorney filed a supplemental brief and argued the appeal. In the supplemental brief defendant argued that he was entitled to a new trial because the trial court failed to allow him to select an attorney of his own choosing and coerced him to consent to a trial with Kmiec as his attorney.
The defendant's conviction was affirmed by this court which specifically held there was no merit in the contention that he was not permitted to be represented by counsel of his own choice and also found that defendant had been given competent and skillful representation.
Defendant filed a petition for post-conviction relief alleging the same grounds urged on his direct appeal, viz. , his right to counsel of his own choosing had been denied; he had been denied the effective assistance of counsel, and the trial court had coerced him to go to trial with counsel not selected by him. The post-conviction hearing judge dismissed the petition without a hearing. The judge ruled that all the points raised by the defendant had been passed on adversely to him on the direct appeal; that the only new matter set forth in the petition and advanced for the first time was defendant's allegation that he had agreed to go to trial because Kmiec had told him his bail would probably be revoked if he insisted on retained counsel other than Kmiec.
On appeal defendant presents the same arguments made below and contends that the post-conviction hearing judge erred in not conducting an evidentiary hearing. The record clearly indicates that the issues raised before the post-conviction judge (except the allegation that Kmiec told him his bail might be revoked) were all passed on by this court on the direct appeal. It is well settled that an issue, even of constitutional dimension, once decided, may not be relitigated. State v. Smith , 43 N.J. 67, 74 (1964); R.R. 3:10A-5 [now R. 3:22-5].
While we agree that it would have been more desirable for the post-conviction hearing judge to have conducted an evidentiary hearing to determine whether Kmiec told the defendant his bail would probably be revoked if he insisted on other trial counsel, we do not consider the judge's failure to do so to constitute prejudicial error. There is no contention that the trial judge had knowledge of such a statement, if in fact it was made, or that the court threatened to take such action. And assuming that such a statement had been made by Kmiec it would not be a ground for a new trial, particularly in view of defendant's subsequent statement to the trial judge that he was ready and willing to proceed with the trial. Cf. State v. Hale , 45 N.J. 255, 266-267 (1965). Moreover, we note that the defendant continued to retain Kmiec as his attorney to prosecute his appeal for a period of eight months following his conviction.
The order dismissing the petition for post-conviction relief is affirmed.
CONFORD, P.J.A.D., dissenting. The transcript indicates the occurrence of the following when defendant's case was called for trial:
"THE COURT: The next matter is the matter of State of New Jersey versus Rosen and Sincavage.
MR. KMIEC: If your Honor, please, I appear on behalf of the defendant Rosen. After discussing the matter with Mr. Rosen earlier this morning there arises this ...