Opinion
Decided January 17, 1972.
I dissent for the reasons expressed in my dissent in State v. Funicello, 60 N.J. 60 (1972).
On the interlocutory appeal of defendant White ( 116 N.J. Super. 415 (Law Div. 1971)), I would reverse the trial court's order and reinstate the death penalty as a triable issue to be determined by a jury. On the appeal of defendant Rivers, in which his co-defendant Presha was permitted to join, I would affirm the order of the trial court in refusing to dismiss the death penalty issue. As to these interlocutory appeals, I reiterate the position taken in the Funicello dissent that the New Jersey homicide statute is not unconstitutional on its face so far as the death penalty is concerned. It is not necessary at this time to decide whether the Prosecutor waived the death penalty in White. In all three cases, White, Rivers and Presha, there is nothing in the record before us which bars plea negotiation respecting the death penalty at any time before trial.