On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Fritz, P.J.A.D.
Defendant was convicted by a jury of unlawful entry without breaking, armed robbery and unlawful possession of a dangerous weapon. He appeals. We affirm.
The most substantial of the seven issues forwarded by appellant as grounds for reversal centers around the pre-indictment requirement that Hall appear in a line-up. In this regard defendant relies solely on a trial court opinion, State v. Schweitzer , 171 N.J. Super. 82 (Law Div.1979).
More for the purpose of disposing of a collateral matter than to attribute significance to it, we note at the outset a sharp factual distinction between Schweitzer and the matter before us. In Schweitzer it is perfectly obvious that the prosecutor, in seeking defendant's appearance in a line-up, was on an undertaking commonly characterized as a fishing expedition. He came to court equipped with nothing more than a forlorn belief that "the victim or a separate witness to the incident might be
able to identify Schweitzer as the other assailant if given an opportunity to view him in a line-up. [Footnote omitted.]" 171 N.J. Super. at 84. In the matter before us there was ample in the record to support Judge Lane's conviction that "the State [had] established a well-founded suspicion of sufficient weight" respecting the culpability of defendant in the crime under investigation.
Nevertheless, the judge in Schweitzer -- while specifically finding an absence of "probable cause" -- did not choose to rest his denial upon the absence of justifiable and sufficient cause, but rather rested his determination on a perceived lack of jurisdiction. Convinced that he had jurisdiction over neither the subject matter nor the person, he opined that issuance of the order being sought, constituting a "deprivation of liberty," would offend due process. We are satisfied that whatever other considerations come into play, this is neither a matter of jurisdiction nor one implicating an unconstitutional "deprivation of liberty."
It is not necessary for us to spend much time in dealing with the parochial view that both subject matter and personal jurisdiction in the judicial branch are marked at their extremities by the indictment and the imposition of sentence, the essence of Schweitzer. Were this thesis sound, many, if not most, search warrants would never have issued. It is to a judicial officer to whom application must be made before most searches can be made, and this procedure is not only compelled but available before indictment. State v. Kasabucki , 52 N.J. 110 (1968). Group fingerprinting, as a preindictment investigative tool which we have heretofore ordered in certain circumstances (In re Fingerprinting of M.B. , 125 N.J. Super. 115 (App.Div.1973)) would become unavailable and there might even be some reason to doubt the constitutionality of the delegation of authority in the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. Were Schweitzer sound, postconviction relief application would have to be denied
for want of jurisdiction if sentence had been imposed and affirmed or the time for appeal had run. In this latter respect compare State v. Robinson , 148 N.J. Super. 278 (App.Div.1977). Indeed, even arrest warrants could not issue.
Schweitzer relies solely on State v. Ashby , 43 N.J. 273 (1964), for authority for the proposition that subject matter jurisdiction does not obtain until "once the grand jury has indicted a defendant." Id. at 276. We do not understand Ashby -- an odd case in any event -- to mean that. Rather Ashby stands for the proposition, as we read it, that without regard to the jurisdiction vel non of the court prior to indictment, once there is an indictment, the prosecutor loses any "discretion in the handling of criminal complaints." Ibid. Only two cases are cited in the Schweitzer opinion in connection with the obtaining of jurisdiction over the person: Gondas v. Gondas , 99 N.J. Eq. 473 (Ch.1926), and Stevens v. Associated Mtg. Co. , 107 N.J. Eq. 297 (Ch.1930), aff'd o.b. 110 N.J. Eq. 70 (E. & A.1931)). Notably, these are both civil cases. It is interesting that in Stevens Chancellor Walker observes that process "need not necessarily be a subpoena or other writ, it may be an order or notice. Every state has the power to prescribe a reasonable notice which shall be given in order to subject a defendant to the jurisdiction of its courts. [Citation omitted.]" 107 N.J. Eq. at 299.
We are satisfied that the judicial branch has jurisdiction in criminal matters extending beyond the limits imposed by Schweitzer. N.J.Const. (1947), Art. VI, § III, pars. 2 and 3; State v. Robinson, supra. We expressly overrule that case. Here we need not and we think the courts should not construct perimeters of the judicial jurisdiction. When questions arise it will be sufficient to decide ...