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State v. Morgenstein

Decided: April 7, 1976.

STATE OF NEW JERSEY, PLAINTIFF,
v.
LEE MORGENSTEIN, DEFENDANT



Malech, J.s.c.

Malech

Defendant was convicted of first degree murder (N.J.S.A. 2A:113-2). The conviction arises from a fatal shooting that occurred on July 8, 1975. At the time of the homicide defendant was 17 years of age. He is now 18 years of age. Trial of the case was with a jury in the Law Division, the case having been transferred from the Juvenile Court.

Defendant's sole contention is that the county should assume the costs of procuring the trial transcript for purposes of defendant's new trial motion and appeal. During the period between indictment and conviction, defendant attained the age of 18. It is maintained by petitioner that he is now an adult and that he has insufficient resources to procure the transcript.

At an indigency hearing on March 31, 1976 it was stipulated by the parties that private trial counsel was paid by defendant's parents, that defendant's parents are not indigent and are financially able to pay for the transcript, that the estimated cost of the trial transcript is $5,500, and that defendant's date of birth is December 2, 1976. Defendant testified that he has assets of approximately $1,300 consisting of a $200 savings account held jointly with his parents, $1,000 in bonds held jointly with his parents, and two shares of Tool Research stock valued at $100. Defendant had no other assets. Defendant's testimony is undisputed.

Defendant makes his application for the trial transcript pursuant to R. 2:5-3(d):

Any person convicted of any crime may make application under oath to any judge of the County Court or Law Division of the Superior Court of the county where the venue was laid showing that a copy of the transcript of the record, testimony and proceedings at the trial is necessary for the filing of any application with the trial court, and that he is unable, by reason of poverty, to defray the expense of procuring the same, and any such judge may, being satisfied of the facts stated and of the sufficiency thereof, certify the expense thereof to the county treasurer, who shall thereupon pay such expense, the amount thereof having been approved by the judge to whom such application was made. Where such person appeals to the Appellate Division of the Superior Court and copies of the transcript of the proceedings in the trial court are needed therefor he may make a similar application to such court which, being satisfied of the facts stated and the sufficiency thereof, may certify the expense and amount thereof to the county treasurer who shall thereupon pay such expense.

Where an appeal is a matter of right, due process and equal protection dictate that a trial transcript must be provided to the convicted indigent. Griffin v. Illinois , 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956).

There is no doubt that defendant is indigent if his personal assets are considered without regard to the parents' assets. The significance is that defendant has attained 18 years of age. Except for $1,300, defendant has no funds to cover the $5,500 estimated cost of the transcript. Defendant argues that since he has reached the age of majority, only his assets should be considered in the determination of indigency. Furthermore, defendant argues that the conviction has effectively emancipated him. The county maintains that the assets of defendant's parents should be considered because (1) the conviction arises from an incident during defendant's minority and (2) the parents owe defendant a duty of support since defendant is not emancipated.

In dealing with questions of indigency this court is guided by the statutes dealing with the Public Defender, N.J.S.A.

2A:158A-1 et seq. Specifically, N.J.S.A. 2A:158A-25 is pertinent:

Whenever a person formally charged with an indictable offense, or coming within this act, is under the age of 21 years, the question of eligibility for services shall be measured not only in terms of financial circumstances of the individual, but also in terms of the financial circumstances of the individual's parents or legal guardians. The Office of the Public Defender shall be entitled to recover the cost of legal services from the parents or legal guardians of such persons to the same extent and in the same manner as is provided under P.L. 1967, chapter 43, and shall have authority to require parents or legal guardians of such to execute and deliver such written requests or authorization as may be requisite under applicable law in order to provide the office with access to records of public or private services, otherwise confidential, as may be of aid to it in evaluating eligibility.

By itself this statute would appear to govern the present issue, thereby allowing the court to consider the parents' financial circumstances in ruling on the question of indigency. It should be noted that this ...


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