For affirmance in A-77 and reversal in A-90 -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the Court was delivered by Jacobs, J.
[58 NJ Page 283] The question presented in these appeals is whether indigent defendants charged in municipal court proceedings with disorderly person offenses are entitled to have counsel assigned to them. R. 3:27-2; In re Garofone, 42 N.J. 244, 246 (1964). The lower courts held that they were not and we certified the ensuing appeals while they were awaiting argument in the Appellate Division. R. 2:12-2.
Gloria Rodriguez was charged in the Municipal Court of Camden with a simple assault and battery in violation of N.J.S.A. 2A:170-26. That statute declares that any person who commits an assault and battery is a disorderly person. The offense is legislatively declared to be a petty one punishable by imprisonment for not more than six months or by a fine of not more than five hundred dollars, or both. N.J.S.A. 2A:169-4. Mrs. Rodriguez asked for but was denied assigned counsel. She then filed a complaint in the Superior Court seeking to restrain the prosecution of the municipal court proceeding until she was afforded the assistance of counsel without cost. Her complaint was verified and alleged indigency. The Senior Judge of the Municipal Court of Camden stated that his policy is not to assign counsel on assault and battery charges. He indicated that approximately three hundred disorderly person complaints are heard and disposed of per month in the Camden Municipal Court; that approximately five per cent of the defendants are represented by counsel; that less than one percent of the defendants are sentenced to imprisonment; and that although his policy is to assign counsel in some situations he does not consider that any defendant charged with a disorderly person offense is entitled under the Constitution or the court rules (R. 3:27) to assigned counsel as of right. The Superior Court Judge agreed with this and dismissed Mrs. Rodriguez' complaint. She duly filed her notice of appeal to the Appellate Division.
James Conley was charged in the Municipal Court of Trenton (1) with the use of a narcotic drug in violation of N.J.S.A. 2A:170-8 and (2) with possession of narcotic paraphernalia in violation of N.J.S.A. 2A:170-77.5. Each is a disorderly person offense punishable by imprisonment for not more than six months or by a fine of not more than five hundred dollars, or both. N.J.S.A. 2A:169-4. Mr. Conley was indigent and did not have counsel. Without any tender or assistance of counsel, a guilty plea was entered to the first charge and, after a trial at which he was unrepresented,
he was found guilty of the second charge. He was sentenced to two consecutive three-month terms in the Mercer County Workhouse. On his appeal to the Mercer County Court it affirmed but modified the sentence to two three-month concurrent terms. He then duly filed his notice of appeal to the Appellate Division.
New Jersey has since very early times given strong recognition to the criminal defendant's right to counsel. See State v. Rush, 46 N.J. 399, 403-404 (1966); State v. Horton, 34 N.J. 518, 522-24 (1961); State v. Ballard, 15 N.J. Super. 417, 420 (App. Div. 1951), aff'd, 9 N.J. 402 (1952). Thus our first constitution directed that "all criminals shall be admitted to the same privileges of witnesses and counsel, as their prosecutors are or shall be entitled to" (N.J. Const., art XVI (1776)) and our later constitutions directed that in all criminal prosecutions the accused shall have the right to "the assistance of counsel in his defense" (N.J. Const., art. I, para. 8 (1844); N.J. Const., art. I, para. 10 (1947)). Our State was perhaps the first to direct by legislation that where an indictment has been returned against a defendant who is indigent he shall be entitled to assigned counsel without cost. See Act of Mar. 6, 1795 (Paterson, Laws 162 (1800)); State v. Horton, supra, 34 N.J. at 522-523.
Our present court rules contain explicit provision that "every person charged with an indictable offense shall be advised by the court of his right to retain counsel and to have the Office of Public Defender represent him if he is indigent." R. 3:27-1; N.J.S.A. 2A:158A-1 et seq. This governs both misdemeanors (N.J.S.A. 2A:85-1, 7) and high misdemeanors (N.J.S.A. 2A:85-6) but does not govern disorderly person or other petty offenses (N.J.S.A. 2A:169-4) which are subject to R. 3:27-2; New Jersey has never utilized the traditional English felony-misdemeanor classification. See State v. Doyle, 42 N.J. 334, 348 (1964). R. 3:27-2 provides that every person charged with a nonindictable offense shall be advised by the court of his right to
retain counsel or, if indigent "and constitutionally or otherwise entitled by law to counsel," of his right to have counsel assigned without cost. See also R. 3:4-2; R. 2:7-2; cf. R. 5:3-3.
As its very language discloses, R. 3:27-2 did not purport to express any opinion as to the constitutional right of a petty offender to assigned counsel without cost and in Garofone (42 N.J. 244) we expressly left the question open. Nor has the Supreme Court thus far actually passed on it. In Winters v. Beck, 239 Ark. 1151, 397 S.W. 2d 364 (1965), an indigent defendant was convicted in the municipal court of immorality and was sentenced to thirty days in jail plus a fine of $254. The Arkansas Supreme Court held that the municipal court had not erred in failing to assign counsel, pointing out that Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), which recognized the indigent's constitutional right to assigned counsel, dealt not with a petty offense but with a felony and a five-year sentence. The Supreme Court denied an application for certiorari though Justice Stewart expressed the view that the Court should take the matter and decide whether Gideon governs cases involving so-called misdemeanants or petty offenders. Winters v. Beck, 385 U.S. 907, 87 S. Ct. 207, 17 L. Ed. 2d 137 (1966).
In Cortinez v. Flournoy, 385 U.S. 925, 87 S. Ct. 314, 17 L. Ed. 2d 222 (1966), and De Joseph v. Connecticut, 385 U.S. 982, 87 S. Ct. 526, 17 L. Ed. 2d 443 (1966), the Supreme Court again declined to review lower court holdings that Gideon was inapplicable to petty offenses. Cf. Heller v. Connecticut, 389 U.S. 902, 88 S. Ct. 213, 19 L. Ed. 2d 218, 679 (1967). However, it recently granted certiorari to review State ex rel. Argersinger v. Hamlin, 236 So. 2d 442 (Fla. 1970), where the Florida Supreme Court held that an indigent defendant charged with an offense punishable by not more than six months imprisonment was not entitled to assigned counsel. 401 U.S. 908, 91 S. Ct. 887, 27 L. Ed. 2d 805 (Feb. 23, 1971). It may be anticipated that when
the Supreme Court hears and decides the case next term there will be further enlightenment; in the meantime we may fairly proceed on the assumption that there is at present no controlling Supreme Court determination that all indigent petty offenders are constitutionally entitled to assigned counsel without cost. See State v. Borst, 278 Minn. 388, 154 N.W. 2d 888, 889 (1967); Hendrix v. City of Seattle, 76 Wash. 2d 142, 456 P. 2d 696, 700 (1969), cert. denied, 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 129 (1970); State ex rel. Plutshack v. State Department of Health & Social Serv., 37 Wis. 2d 713, 155 N.W. 2d 549, 555, 154 N.W. 2d 567 (1968); cf. City of Toledo v. Frazier, 10 Ohio App. 2d 51, 226 N.E. 2d 777, 781-783 (1967); Hortencio v. Fillis, 25 Utah 2d 73, 475 P. 2d 1011, 1012 (1970); Silverstein, Defense of the Poor in Criminal Cases in American State Courts 123 (1965); Junker, "The Right to Counsel in Misdemeanor Cases," 43 Wash. L. Rev. 685 ...