The opinion of the court was delivered by COLLESTER, J.A.D.
This is an appeal by defendant, pursuant to leave granted by this court, from an interlocutory order of the Superior Court, Law Division, Burlington County, denying his motion to require the Prosecutor of Burlington County to nolle prosequi five indictments pending against him or, in the alternative, to dismiss said indictments. The relevant facts concerning this unusual situation are not in dispute.
The grand jury of Burlington County returned five indictments, each charging defendant with the crime of open lewdness, in violation of N.J.S. 2A:115-1. In each instance the offense charged indecent exposure in the presence of named females. The dates and places where the incidents allegedly took place are: April 10, 1962 in the Township of Burlington, May 18, 1962 in the Township of Edgewater Park, and March 5, April 10 and May 16, 1962 in the Township of Levittown.
In June 1962 defense counsel sent defendant to Dr. Ivan F. Bird of Trenton for a psychiatric examination. On July 11, 1962 Dr. Bird gave his report to defense counsel stating that in his opinion defendant was not mentally ill but was undergoing a neurosis with compulsive behavior. He recommended psychiatric treatment and reported that defendant was willing to accept the same.
On July 17, 1962 David Kravitz, one of defendant's counsel, communicated with the prosecutor in an attempt to ascertain whether defendant could plead in the respective municipal courts to the lesser charge of being a disorderly person and have the criminal indictments nolle prosequied. The prosecutor suggested that counsel confer with him on July 19 when defendant was to plead to the indictments in the Superior Court. On the same day Mr. Kravitz telephoned County Judge McGann and solicited his aid in the matter. It is Judge McGann's recollection that Mr. Kravitz mentioned but one incident involving defendant and not five, and that he suggested Mr. Kravitz should take the matter up with the assignment judge.
On July 19, 1962 defendant was arraigned on the five indictments and entered pleas of not guilty. On July 23 or 24 Mr. Kravitz conferred with the prosecutor and exhibited Dr. Bird's report. He informed the prosecutor that defendant was married and the father of three children; that if he pleaded guilty or was found guilty of the criminal charges he would lose his security clearance with his employer. He requested that the charges be disposed of by pleas of guilty in the several municipal courts under the Disorderly Persons Act and that the indictments be nolle prosequied. The prosecutor advised him that from previous conferences with Judge W. Orvyl Schalick, the assignment judge, he knew that the judge would not grant an order to nolle prosequi such indictments. Mr. Kravitz told the prosecutor that he would confer with Judge Schalick personally.
On July 25, 1962 Mr. Kravitz endeavored to reach Judge Schalick at his chambers in Camden. He was advised that the judge was on vacation and that Judge Wick was the acting assignment judge. He spoke to Judge Wick about the matter over the telephone and pursuant to the judge's suggestion forwarded a letter and enclosed a copy of Dr. Bird's report. In his letter he advised Judge Wick, in part,
"On the basis of the economic harm which will come to Mr. Ashby and his family and on the basis of the favorable recommendations of Dr. Bird, the Prosecutor's staff, the Chief of County Detectives and Judge McGann with whom I spoke, all have agreed that with proper psychiatric treatment Mr. Ashby could make a complete and satisfactory rehabilitation and on that basis all are willing to allow the indictments on the criminal charges, as such, to be `nolle prosed' and allow Mr. Ashby to plead to a lesser charge of being a disorderly person. This attitude also stems from the fact that no children were involved and that no force or touching occurred. In this event there would be no interference with Mr. Ashby's security clearance at the RCA Laboratories where he is employed.
I have been advised that in order for this procedure to occur, it is necessary for you or Judge Schalick to give your permission.
Therefore, I respectfully request that you give serious consideration to my plea on behalf of Mr. Ashby."
On July 27 Judge Wick wrote Judge McGann. He stated he understood that defendant had been charged with five counts of open lewdness and that he was accepting psychiatric treatment from Dr. Bird and would continue to do so until the doctor decided that he had been sufficiently rehabilitated. The letter then contained the following statement:
"This is to advise that acting in the stead of Judge Schalick as the Assignment Judge you have my permission to dispose of these incidents on charge of being a disorderly person and under such other conditions as you deem advisable. This consent would permit the indictments to be `nolle prosed.'"
Judge McGann made the following notation on the letter:
"Acknowledge and tell J. Wick we shall be guided accordingly. Tell him also we think the Prosecutor should be notified and consent to the request."
The letter with said notation was then delivered to the prosecutor, who thereupon caused notice to be given to the municipal magistrates that complaints would be made against defendant under the Disorderly Persons Act in their respective courts. Defense counsel were notified they would be advised by the magistrates of the dates of the hearings on said complaints.
On August 28, 1962 defendant appeared before the municipal courts of Edgewater Park and Burlington Township and pleaded guilty in each municipality to a complaint charging him with violation of N.J.S. 2A:170-5 as a disorderly person. On each complaint he was fined $100.
Defense counsel had been advised to produce defendant before the municipal court of Levittown on Friday, August 31, to plead to the three remaining charges as a disorderly person. However, prior to said date the Levittown magistrate communicated with defense counsel and stated that the prosecutor had postponed the hearing on these charges.
Defendant's attorneys conferred with the prosecutor. He informed them that Judge Schalick had returned from his vacation and, upon being advised of the procedures being followed, had said he would not permit the indictments to be nolle prosequied. Accordingly, the prosecutor would not move for the same.
Defendant then moved before Judge McGann, sitting in the Superior Court, to nolle prosequi or dismiss the criminal indictments. The judge denied the motion on the ground that he had no authority to dismiss said indictments; that under the rules of court motions to nolle prosequi indictments must be made only to the assignment judge. This ruling is the subject of the present appeal.
1.
We will consider first the disposition of the indictments charging the crimes of open lewdness in the Townships of Burlington and Edgewater Park where defendant has pleaded guilty and been fined on complaints for violation of N.J.S. 2A:170-5. This statute provides that any person who by word, act or sign invites or solicits unlawful sexual intercourse or any other unlawful, indecent, lewd or lascivious act, is a disorderly person.
Where one offense is an ingredient or integral part of another offense, or when the evidence necessary to secure a conviction of the second offense was an essential part of the proof used to obtain a conviction of the first offense, conviction on one charge bars another. State v. Dixon, 40 N.J. 180 , 184 (1963); State v. Mark, 23 N.J. 162 (1957); State v. Labato, 7 N.J. 137 (1951). Here the evidence necessary to secure a conviction under the two indictments charging the crimes of open lewdness in said townships was an essential part of the proof upon which the disorderly person complaints were founded in the municipal courts.
Under our former practice, the defense of double jeopardy, raised by defendant in the instant case, had to be asserted by a written plea of autrefois convict. This requirement has been eliminated and the practice of disposing of such an issue by a motion before trial is substituted. State v. Mark, supra, 23 N.J., at page 167; State v. Boening, 63 N.J. Super. 588 ( App. Div. 1960). See also R.R. 3:5-5.
The county judge assigned to preside in the trial of criminal actions has the power and authority to pass upon such motions. Defendant made such a motion with respect to the two said indictments. The prosecutor at oral argument of this appeal conceded that such relief should be granted. We are satisfied that these two indictments should be dismissed.
2.
We come now to the three remaining indictments charging defendant with the crimes of open lewdness in the Township of Levittown.
Defendant contends that Judge McGann erred when he refused to grant the motion to dismiss these indictments or to order the prosecutor to nolle prosequi these indictments on the ground that he had no authority to do so. He urges that the proper procedure to enforce an agreement to downgrade offenses and to nolle prosequi indictments is by a motion before the court having jurisdiction over the indictments. It is conceded that Judge McGann had been assigned to preside over the trial of criminal causes.
We will pass for the moment the question of whether such an alleged agreement existed, and the validity thereof, to consider the procedural aspects involved.
The nolle prosequi was a device used at common law to terminate a criminal prosecution which the government intended to abandon. "Nolle prosequi" means literally "to be unwilling to prosecute." Anciently the attorney general, alone and without judicial interference, ended a criminal prosecution by openly announcing to the court that the government would no longer prosecute the indictment.
In New Jersey the power to enter a nolle prosequi is reposed exclusively in the attorney general or the county prosecutors, but it cannot be exercised without the consent of the court. State v. Hickling, 45 N.J.L. 152 ( Sup. Ct. 1883). Our practice places joint responsibility for the proper use of the power to terminate a criminal prosecution on the prosecutor who determines upon that course and on the judge who approves it. However, the courts of our State have no power to direct the prosecutor to move a nolle prosequi of an indictment.
When our court rules were first adopted R.R. 2:12-4 (now R.R. 3:11-3) provided that upon the motion of the prosecuting attorney, the court may order a nolle prosequi of an indictment. In 1953 the rule was amended to substitute the word "dismissal" for the common law expression "nolle prosequi." This was a mere change in form and not one of substance. In effect, it is a motion by the prosecutor to dismiss the indictment because he no longer intends to prosecute the same. The pertinent language thereof states:
" Upon the motion of the prosecuting attorney, an indictment or accusation, or any count thereof, may be ordered dismissed prior to trial only (1) by the Assignment Judge or (2) by a judge to whom the same has been assigned for disposition, provided that such judge has previously sentenced the same defendant on one or more counts of the same or another indictment or accusation." (Emphasis added)
The rule as amended thus provides that such a motion to dismiss, viz., to "nolle prosequi" the indictment, can be made only by the prosecutor and an order directing such dismissal can be entered only by the assignment judge. Judge McGann was correct in ruling that he had no authority to order the prosecutor to nolle prosequi the indictments.
3.
At the oral argument we were advised that Judge Schalick and Judge Wick have indicated informally that neither would order a nolle prosequi or a dismissal of these indictments if the prosecutor were to make such a motion. The merits of the issues raised in this appeal are such that we believe they should be disposed of, and therefore pursuant to R.R. 1:5-4 and R.R. 2:5 we shall exercise our original jurisdiction for a complete determination of the matter.
R.R. 3:5-5(b)(1) provides that any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion. Subsection (b)(2) of the rule requires that "defenses and objections based on defects in the institution of the prosecution" must be raised by motion before trial, and that failure so to raise any such objection or defense then available constitutes a waiver thereof. Cf. State v. Hubbs, 70 N.J. Super. 322 , 327 ( App. Div. 1961).
Defendant seeks to enforce an agreement which he alleges was made with the prosecutor. If the agreement is valid and enforceable, it can be raised in bar of the prosecution of the indictments under this rule.
Defendant contends that the agreement made by the State to nolle prosequi the indictments upon which he relied in good faith should be enforced. He asserts that the repudiation of the agreement by the State violates the fundamental concepts of fair play and will result in irreparable prejudice to him. He further alleges that the delay in permitting him to fulfill his part of the agreement by pleading to the three remaining charges under the Disorderly Persons Act has so prejudiced him that he should be excused from further performance by the court.
Let us review the details of the alleged agreement. It must be noted that all overtures to downgrade the offenses and to have the indictments nolle prosequied were initiated and undertaken by defendant's attorney. He was endeavoring to eliminate trials of criminal indictments returned by the grand jury and to relieve defendant of the possible stigma of a criminal record. Initially he was informed by the prosecutor that such procedure could not be permitted since it was contrary to the established policy of the assignment judge. Unable to contact Judge Schalick, the attorney submitted his proposal to the acting assignment judge.
It is obvious he did not inform Judge Wick that the prosecutor had advised him such procedure was contrary to Judge Schalick's established policy. If he had, it is doubtful that Judge Wick would have considered counsel's proposal. That Judge Wick would not now enter an order nunc pro tunc permitting a nolle prosequi of the indictments, if presented to him, is indicative of this fact.
Counsel's letter to Judge Wick stated that the prosecutor's staff and Judge McGann were willing to allow defendant to plead to the lesser disorderly person charges and to have the indictments "nolle prosed." In view of Judge McGann's statement that he had understood only one charge was involved and his attitude would not have been the same if he had known there were five, and the prosecutor's expressed unwillingness to proceed in view of Judge Schalick's policy, the statement in the letter does not appear to be a fair appraisal of the situation. Unquestionably the letter directly affected Judge Wick's decision.
When Judge Wick's letter to Judge McGann granting "permission" to follow such procedure and bearing Judge McGann's notation, "tell J. Wick we shall be guided accordingly," was turned over to the prosecutor, it is true that the latter acquiesced therein by notifying the municipal courts involved and defense counsel. His acquiescence was brought to an end sharply on Judge Schalick's return when he was told the indictments could not be nolle prosequied.
We are not confronted here with a situation where a prosecutor through fraud, misrepresentations and overtures undertaken in bad faith persuaded defendant to place himself in jeopardy. Defendant's counsel initiated the proposed agreement. We do not find that the action of the prosecutor in this setting was such that it constituted a denial of fundamental fairness shocking to the universal sense of justice. See State v. Miller, 16 N.J. Super. 251 , 258 ( App. Div. 1951).
Furthermore, there is nothing in the record which indicates a "package deal," viz., that defendant would plead to a disorderly person complaint only in the event all five indictments would be nolle prosequied. Defendant, by having pleaded to two charges as a disorderly person, already has successfully barred prosecution on two indictments.
Defendant alleges he is irreparably prejudiced by the refusal of the State to nolle prosequi or to dismiss the remaining three indictments. We fail to see such prejudice. Defendant is entitled to his day in court on the trial of these indictments. The convictions in the municipal courts of two offenses under the Disorderly Persons Act cannot be introduced in evidence against him. State v. Dietz, 5 N.J. Super. 222 , 225 ( App. Div. 1949). And, since they are not convictions of crimes, they cannot be shown to affect his credibility as a witness. State v. Block, 119 N.J.L. 277 , 282 ( Sup. Ct. 1938), affirmed 121 N.J.L. 73 ( E. A. 1938).
It is urged that the newspaper publicity resulting from the pleas of guilty entered in the municipal courts will cause prejudice. We see no merit in this argument. Certainly precautionary measures in the selection of an impartial jury will protect defendant's right to a fair trial.
A significant issue in this case is the question of the validity of an agreement between the prosecutor and a defendant to nolle prosequi or dismiss an indictment. We find no legal precedents in New Jersey on this issue.
Defendant cites decisions in various jurisdictions pertaining to the enforceability of an agreement wherein a prosecutor promises an accomplice immunity from prosecution if the accomplice will turn "State's evidence." These agreements have been upheld in some jurisdictions, 15 Am. Jur. § 321, p. 17. In the one reported decision in our State, State v. Graham, 41 N.J.L. 15 ( Sup. Ct. 1879), the court stated that where such an agreement existed, it was in the province of the court to assent to and advise the entry of a nolle prosequi whenever the exigency of justice or the public convenience requires such course to be adopted.
Defense counsel further cites decisions in other jurisdictions where a defendant has agreed with the prosecutor, with the consent of the court, to plead guilty to one or more indictments upon a promise that certain other indictments will be nolle prosequied. See State v. Ward, 112 W. Va. 552, 165 S.E. 803, 85 A.L.R. 1175 ( Sup. Ct. App. 1932); People v. Siciliano, 185 Misc. 149, 56 N.Y.S.2d 80 ( Cty. Ct. 1945); Annotation, 85 A.L.R. 1177 .
These cases are distinguished from the facts before us. In Ward, supra, it was agreed between the defense counsel on one hand and the prosecutor and Banking Commissioner on the other, subject to the court's approval, that if defendant would plead guilty to one indictment charging a violation of the banking laws and assist the commissioner to liquidate the accounts of the bank, defendant would be discharged from further prosecution under 13 other indictments of a similar nature. The court approved the agreement. Defendant pleaded guilty to the single indictment and rendered the promised assistance to the commissioner. He was sentenced to the penitentiary and the 13 remaining indictments were nolle prosequied.
Subsequently he was again indicted on the 13 charges and entered a special plea relying upon the agreement. The court held that the plea was good and that the agreement would be kept. It must be noted that defendant Ward, in addition to his plea to the single indictment, provided aid and assistance to the banking commissioner in the liquidation of the bank as a consideration for such agreement.
In People v. Siciliano, supra, defendant was indicted on two charges of robbery in the first degree. In open court, with the consent of the district attorney, defendant pleaded guilty to robbery in the second degree. The court then stated:
"This plea is accepted with the understanding that at the time of sentence the district attorney dismisses, or moves to dismiss indictment B. Correct?"
The district attorney answered in the affirmative. Subsequently, and before sentence, the district attorney moved indictment B for trial and defendant was convicted. In a habeas corpus proceeding the court set aside the conviction under indictment B. In Siciliano the overtures were made by the district attorney to secure a plea of guilty to one indictment, thereby obviating the expense of a trial and the uncertainty of a jury's verdict. The pledge by the district attorney, made in open court, in which the court concurred, not to prosecute defendant on the second indictment, induced the latter to relinquish his absolute right to stand trial on the A indictment and thus put the prosecution to its proof. To permit the repudiation of such an agreement made in open court would have placed the stamp of approval upon a fraud perpetrated by the district attorney with the approval of the court. See also People v. Sullivan, 276 App. Div. 1087, 96 N.Y.S.2d 266 ( App. Div. 1950); State v. Hingle, 242 La. 844, 139 So.2d 205 ( Sup. Ct. 1962); State v. Mockosher, 205 La. 435, 17 So.2d 575 ( Sup. Ct. 1944).
This is not the situation which confronts us. Here the overtures to plead in the municipal courts on disorderly person charges instead of facing a trial on the criminal indictments were not made by the prosecutor. Defendant has not pleaded to such offenses and has not been placed in jeopardy. Nor was the agreement made in open court with full knowledge of all the facts brought to the attention of the acting assignment judge.
We are satisfied that the cases cited by defendant as judicial precedents are not analogous to the matter before us. 2 Restatement, Contracts, § 549, p. 1054 (1932), makes a distinction between agreements where the consideration is the accused's becoming a witness for the prosecution, which it considers legal, and all other agreements, which it declares to be illegal. The theory is that for the prosecutor, as representative of the public, to agree to withdraw his prosecution of a defendant there must be a sufficient consideration, in the form of cooperation such as the giving of evidence, to protect the public's interest. This is simply the balancing of a reduction in the charge or the elimination of a charge against a cooperative defendant with the probability of a conviction of another defendant resulting from that cooperation. On balance, there is a gain accruing to the public.
Thus, where a defendant seeks special treatment without being able to offer sufficient consideration to benefit the public his proposal should be denied, and a prosecutor's agreement to grant such special treatment cannot be enforced. An offer by a defendant to plead to a lesser charge is not sufficient consideration for the nolle prosequi of an indictment based on the same act; the public is not being compensated for forbearing to try defendant for the highest degree of his offense. Defendant enters into such an agreement at his peril, knowing that if the prosecutor reneges, he will not be able to enforce it.
New Jersey cases offer no precedents on this issue. Kentucky has refused to uphold such agreements, finding them not binding, Commonwealth v. Smith, Ky., 244 S.W.2d 724 ( Ct. App. 1951), and that the court was without power to compel the state's attorney to abide by such an agreement in opposition to his sense of official duty. Commonwealth v. Hughes, 153 Ky. 34, 154 S.W. 399 ( Ct. App. 1913).
As to agreements between a prosecutor and a defendant we have held in our State that a prosecutor has no authority to make any agreement on the subject of guilt of a particular crime, or a sentence. In re Cardinale, 36 N.J. Super. 137 ( App. Div. 1955); State v. Terry, 30 N.J. Super. 288 ( App. Div. 1954); State v. Pometti, 23 N.J. Super. 516 ( App. Div. 1952), affirmed 12 N.J. 446 (1953); State v. Miller, 16 N.J. Super. 251 ( App. Div. 1951), cert. denied 342 U.S. 934, 72 S.Ct. 379, 96 L.Ed. 695 (1952). In State v. Pometti the court stated (at p. 521) that even if such an agreement were made, defendant is charged with the knowledge that it is clearly illegal.
As to the three remaining indictments in the case before us, we reiterate — defendant has suffered no prejudice. Such agreement was not the product of fraud, misrepresentation or bad faith on the part of the State which has placed defendant in jeopardy. The agreement his counsel sought to negotiate was at best executory, without consideration therefor on the part of defendant. And finally, for the reasons herein expressed, we are satisfied that such agreement was invalid and unenforceable.
The motion to compel the prosecutor to move to nolle prosequi the three indictments or in the alternative to dismiss such indictments will be denied. The order of the Superior Court, Law Division, is affirmed except as modified herein.