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State v. Morgenstein

Decided: February 9, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEE MORGENSTEIN, DEFENDANT-APPELLANT



Lynch, Milmed and Antell. The opinion of the court was delivered by Antell, J.A.D.

Antell

[147 NJSuper Page 236] Following his conviction for murder in the first degree defendant applied to the trial judge for an order to have a transcript of the trial prepared at county

expense. He made the application as an indigent pursuant to N.J.S.A. 2A:152-17. From the denial of that motion this appeal followed.

At the time of the homicide defendant was 17 years old. On application of the State, jurisdiction was transferred from the Juvenile and Domestic Relations Court to the Superior Court, where defendant was indicted and tried as an adult pursuant to N.J.S.A. 2A:4-48. By the time the indictment was moved for trial defendant had reached his 18th birthday. During the trial he was represented by a privately retained attorney whose costs and fees were paid for by the defendant's parents. The same representation continued through the motion proceedings before us for review, and it is expected to continue through anticipated appellate proceedings. Costs and expenses in connection therewith are also expected to be borne by the parents.

In denying the motion the trial judge found that defendant was indigent within the meaning of the statute, but reasoned that by accepting private representation defendant "waived his right to insist that a transcript of the trial be furnished to him at public expense."

N.J.S.A. 2A:152-17 provides that the court may certify the expense of a transcript where it is satisfied of the facts, of the necessity for the transcript and the sufficiency of a convicted defendant's sworn showing "that he is unable, by reason of poverty, to defray the expense of procuring the same." The right to a transcript at public expense under these circumstances is of constitutional dimension. Roberts v. LaVallee , 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967); Draper v. Washington , 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); Eskridge v. Washington State Board , 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958); Griffin v. Illinois , 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956). Constitutional rights may be waived only by "knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States , 397 U.S. 742, 748,

90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747, 756 (1970). As the United States Supreme Court said in Johnson v. Zerbst , 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938):

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. [304 U.S. at 464, 58 S. Ct. at 1023]

Even within the setting of a civil controversy it must affirmatively appear that the party charged with waiver knew his rights and deliberately intended to relinquish them. West Jersey Title, etc., Co. v. Industrial Trust Co. , 27 N.J. 144, 153 (1958); Allstate v. Howard Savings Inst. , 127 N.J. Super. 479, 487-489 (Ch. Div. 1974).

We cannot agree that by accepting private counsel at the expense of his parents defendant thereby manifested his intent to give up his constitutional right to a transcript at public expense in the event of conviction. As the trial judge himself observed, "[t]he problem presented is novel." We will not impute to defendant such prescience of mind as to visualize forfeiture of a constitutional right as one of the "likely consequences" (Brady v. United States, supra) of accepting private representation.

We are also urged to affirm the order below on the ground that defendant does not meet the statutory requirement that he be "unable, by reason of poverty, to defray the expense" of procuring the transcript. This is based on the stipulation that the parents have the financial resources to meet this expense and on counsel's statement that defendant's mother advised him that the parents would "come up with the money if they had to."

This defendant is an adult. N.J.S.A. 9:17B-3; N.J. State P.B.A. v. Morristown , 65 N.J. 160 (1974). In this status, if he had applied to the ...


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