author: Allcorn, J. A. D.

text:
    DONALD F. BEGRAFT, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BOROUGH OF FRANKLIN BOARD OF EDUCATION, A BODY POLITIC OF THE STATE OF NEW JERSEY, AND ZITONE CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 25, 1975
    Decided March 25, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. George T. Daggett argued the cause for the appellant.

      Mr. Emanuel A. Honig argued the cause for the respondent Borough of Franklin Board of Education (Messrs. Honig and Howig, attorneys).

      Mr. William A. Dolan, II argued the cause for the respondent Zitone Construction Co., Inc. (Messrs. Dolan and Dolan, attorneys).
   The opinion of the court was delivered by

Allcorn, J. A. D.

Compliance with tile provisions of N. J. S. A. 18A:18-8 et seq., requiring that all persons desiring to submit bids for public work proposed to be done by local and other boards of education, the cost of which will exceed $10,000, be first classified by the State Board of Education as to the character and amount of work “on which they shall be qualified to submit bids,” is mandatory. N. J. S. A. 18A :18 — 9.

Designed to assure to as great an extent as possible that only those bidders who have the ability to perform a contract may submit bids, prequalification by a single state agency, according to uniform standards as to “financial ability, adequacy of plant and equipment, organization and prior experience, and * * * such other pertinent and material facts as may be deemed desirable,” N. J. S. A. 18A: 18-10, serves to protect a vital and valid public interest, and to protect as well the interests of the contractors. Quite plainly, ability to perform- is of the very essence of any contract for public work. So significant did the Legislature deem it to be that the boards of education were specifically charged, first, to “require that all persons proposing to bid * * * shall first be classified by the State Board,” and second, to “accept * * * bids only from persons qualified in accordance with such classification.” N. J. S. A. 18A:18-9.

Having failed to so qualify by the date fixed for the reception of bids, plaintiff was disqualified from submitting a bid. Moreover, defendant board of education was without the authority to accept the bid, since such disqualification could not be waived by the board. And, qualification by plaintiff after the date fixed for the submission of bids but prior to the actual award of the contract, does not satisfy the requirement of either the statute or the invitation to bid. N. J. S. A. 18A:18-9; Hillside Tp. v. Sternin, 25 N. J. 317, 324 (1957); J. Turco Paving Con., Inc., v. Orange City Council, 89 N. J. Super. 93 (App. Div. 1965).

Accordingly, the cause is remanded to the Law Division with directions to enter judgment in favor of defendants and against plaintiff, dismissing the complaint. R. 2:10-5; R. 2:11-2. Costs on this appeal to defendants.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ELIZABETH B. SHIELDS, PLAINTIFF-APPELLANT, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MANSFIELD; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MANSFIELD, COUNTY OF WARREN; PENWELL RACQUET CLUB, INC., A NEW JERSEY CORPORATION; EDWARD FABER AND RAYMOND MALEJKO, INDIVIDUALLY AND TRADING AS PENWELL RACQUET CLUB, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 18, 1975
    Decided April 14, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Francis P. Sutton argued the cause for appellant.

      Mr. William, R. Edleston argued the cause for respondent Board of Adjustment of Mansfield Township (Mr. Harry K. Seybolt, attorney).

      Mr. Joseph R. Valentino argued the cause for respondent Mansfield Township Committee.

      Mr. Thomas E. Stover argued the cause for respondents Edward Faber and Raymond Malejko, individually and trading as Penwell Racquet Club.
   Per Curiam.

The only issue which need concern us on this appeal is whether the hoard of adjustment and township committee properly held that the recreational use of the premises here in question constituted a special reason for the grant of a variance under N. J. S. A. 40:55-39(d). The trial judge held that it did and affirmed the municipal action. We hold to the contrary and hence reverse. We so hold, mindful of the somewhat limited scope of review by a trial court and appellate court of this kind of municipal determination. See, e. g., Shell Oil Co. v. Shrewsbury Zoning Bd. of Adj., dissenting opinion, 127 N. J. Super. 62, 63-64 (App. Div. 1974), rev'd on dissenting opinion, 64 N. J. 334 (1974)

Defendant Penwell Racquet Club, Inc. was granted a use variance under N. J. S. A. 40:55-39(d) by the Mansfield Township Committee, after favorable recommendation of the board of adjustment. The land involved is a site of ten acres, which was part of a larger tract owned by one of the applicant’s principals. Only a small portion of it is in the B-2 highway commercial zone. Most of the land is in the E-l residential zone, in which indoor tennis courts are not permitted. Outdoor tennis courts, however, are a permitted use in the E-l zone by special exception, on application to the board of adjustment. Although zoned residential, the area in whidhi the site is situated is generally undeveloped, except for agricultural use.

The proposed use involves the construction on the ten-acre parcel of a two-story building to be used as an indoor tennis facility with six tennis courts, locker rooms, sauna baths, a babysitting room, a conference room for companies desiring to use the facility in connection with a recreation program, a television area, rest rooms, a vending area consisting of vending machines, a pro shop where equipment may be purchased, and custodial and utility space. The building apparently would also house two or three squash and 'handball courts. There would be seven outdoor tennis courts. The entire facility would be privately owned and operated as a business. A membership fee would be charged and participants would pay for court time at varying rates. Eive full-time employees would include a pro, a manager and maintenance personnel.

We find no reasonable basis in the proofs or in the subsidiary findings made by the municipal agencies to sustain the ultimate conclusion, which they appear to have made, that the recreational use sought is peculiarly suited to this land.

Assuming for present purposes that the findings which follow are supported by the evidence, that ultimate conclusion may not be predicated on any or all of them: (1) that the property is located in two zones, thereby requiring a variance for any use not permitted in both zones; (2) that outdoor tennis courts constitute a permitted special exception use in the R-l zone, and the special exceptions provisions relating to outdoor recreational facilities contemplate buildings such as that here proposed; (3) that the location of the property is unique in that it has frontage on two roads, Route 57 and Penwell Road, and thus the property would not be “conducive” for development for residential purposes; (4) that the property is unique in that it is the only parcel on the south side of Route 57 zoned R-l for a distance of about 2,400 feet located between two commercial zones; (5) that the proposed use would be compatible with the development of the area, since it is adjacent to and part of the commercial zone and across the street from the township school; (6) that lands to the east of the proposed site along the highway cannot be readily developed and are owned by the State; (7) that the nearest tennis facility is 19 to 20 miles away and the proposed use would be the only indoor recreational facility in the township; (8) that apart from the residence of one of the principals there are “little or no existing residences in the area”; (9) that the site is centrally located to residents of the township and to the principal population centers of Haekettstown and Washington, and could be used conveniently by the township board of education in connection with the school; (10) that most of the remaining land in the township is rural and not readily accessible to all of the residents of the township and the surrounding areas; (11) that there may be a “flood potential” of residential homes constructed adjacent to the Musconetcong River at or near the proposed site, and (12) that there is no other property in the township zoned to permit both, outdoor and indoor tennis courts or other similar recreational use.

None of these reasons indicates that the proposed recreational use is peculiarly fitted to this property. Moreover, the entire area surrounding the applicant’s property is basically undeveloped, and the record fails to support the findings, among others, that the surrounding areas are not available for commercial development, including the recreational use sought; that they are not readily accessible to all residents; that the property here involved is subject to a flood potential or otherwise not suitable for residential development, and that an appropriate area for this use could not be found elsewhere in the township. See Kohl v. Fair Lawn Mayor and Council, 50 N. J. 268 (1967); Mahler v. Fair Lawn, 94 N. J. Super. 173 (App. Div. 1967), aff’d o.b. 55 N. J. 1 (1969).

The conclusion by the municipal agencies that the proposed recreational use is peculiarly fitted to this site is thus without reasonable foundation. Accordingly, the determination of the court below holding to the contrary is incorrect.

Hence, the variance may only be predicated on a finding sustained by the proofs that the proposed use inherently serves the public good or welfare. Kohl v. Fair Lawn Mayor and Council, supra; De Simone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428 (1970); Bonsall v. Mendham Tp., 116 N. J. Super. 337 (App. Div. 1971), certif. den. 59 N. J. 529 (1971).

The board of adjustment and township committee in effect so found. They referred to the need in the area for recreational facilities, particularly of an indoor nature, and the benefit ensuing from a recreational facility of this type to the “public health and welfare of the citizens and taxpayers” of the township. The trial court agreed. We conclude that in so doing, it erred.

Eecreation and sports have been recognized judicially as valid public purposes appropriate for the government to undertake under the state constitutional provisions relating to the raising and use of public moneys only for public purposes. In this context it has been considered as “intimately related to the general welfare of a well-balanced state” and as “absolutely essential to the public welfare.” N. J. Sports and Exposition Auth. v. McCrane, 119 N. J. Super. 457, 488-493 (Law Div. 1971), aff’d, with modification, on other gds., 61 N. J. 1 (1972).

But this concept of the public good may not be imported into the zoning area for use variance purposes. To recognize a commercially operated recreational facility of the kind here contemplated as a use inherently serving the public good or welfare so as to constitute a special reason for a variance under N. J. S. A. 40:55-39(d) would serve effectively to nullify the purpose of that provision and the decisions interpreting it. The beneficial effect of recreation, both indoor and outdoor, is also applicable to other recreational uses, such as bowling alleys, billiard parlors, health spas and the like. If the proposed use inherently serves the public good and welfare, then these uses, as well as other recreational uses in a commercial setting, must he granted variances in a residential zone under N. J. S. A. 40:55-39(d). Such a construction of the statute is totally unwarranted. See Mahler v. Fair Lawn, supra; Kohl v. Fair Lawn Mayor and Council, supra; Whitehead v. Kearny Zoning Bd. of Adj., 51 N. J. Super. 560 (App. Div. 1958), involving an attempt to obtain a use variance in a residential zone for a swimming pool at a nonprofit private club; Tullo v. Millburn Tp., 54 N. J. Super. 483, 499-500 (App. Div. 1959); Kramer v. Sea Girt Bd. of Adj., 45 N. J. 268, 292 (1965). See and compare Cooper v. The Maplewood Club, 43 N. J. 495 (1964), which, however, related to whether the negative criteria were satisfied by the proposed construction of a swimming pool at a private club in a district which did not preclude it.

Biglin v. West Orange, 46 N. J. 367 (1966), and Lander v. Village of South Orange, 58 N. J. 509 (1971), involving municipal swimming pools, are not to the contrary. Both were concerned with lands dedicated for park, playground or recreational purposes, and whether the dedication permitted the installation of a municipal swimming pool thereon. Neither related to a use variance proceeding. Indeed, in Biglin a playground was a permitted special exception use within the residential zone involved, and the court indicated that the zoning ordinance would not be violated by constructing the municipal pool as part of the dedicated playground facilities.

The statement by this court in Newark v. Daly, 85 N. J. Super. 555 (App. Div. 1964), aff'd 46 N. J. 48 (1965), that “to refer to a particular use in a residential district as a ^business use’ is not per se sufficient to stamp it as a violation of the zoning ordinance,” must be limited to the situation there involved — a determination as to whether a zoning ordinance permitting apartment houses in a residential district would allow milk vending machines in an apartment house. A variance was not there in issue.

The present case involves a use variance which would permit a commercial indoor-outdoor recreational facility in a residential district precluding the indoor use. To say that such recreational use inherently serves the public good and, therefore, constitutes a special reason warranting a variance is to permit, in effect, the “untoward and clearly unintended consequence that variances could he awarded indiscriminately merely because they did not offend the negative criteria of the statute.” Mahler v. Borough of Fair Lawn, supra, 94 N. J. Super. at 184. See, generally, Annotation, “Application of zoning regulations to golf courses, swimming pools, tennis courts, or the like,” 32 A. L. R. 3d 424 (1970).

Defendants claim that if this recreation use were a public or gwosi-public enterprise, it would have to be permitted in a residential zone and that, accordingly, a similar private commercial recreation use must be allowed. They rely on cases which hold that it is the nature of physical use of the property, rather than the kind of ownership, which determines the applicability of zoning requirements. See Bridge Park Co. v. Highland Park, 113 N. J. Super. 219 (App. Div. 1971); Taxpayers Ass’n of Weymouth Tp. v. Weymouth Tp., 125 N. J. Super. 376 (App. Div. 1973).

This argument misconceives the issue before us. It is not the nature of the ownership but rather the nature of the use with which we are concerned with respect to this use variance. We need not decide whether the municipality itself may construct and operate a facility such as is here contemplated in the R-1 residential zone. See Thornton v. Ridgewood, 17 N. J. 499 (1955); Washington Tp. v. Ridgewood, 26 N. J. 578 (1958); In re Application of Hackensack Water Co., 41 N. J. Super. 408, 421 (App. Div. 1956); Scotch Plains Tp. v. Westfield, 83 N. J. Super. 323 (Law Div. 1964). Compare Biglin v. West Orange, supra; Hill v. Collingswood, 9 N. J. 369 (1952). But assuming that it may do so, the fact that the recreational use is sponsored by the public agency in and of itself may give the use the quality required for inherently serving the public good. Cf. De Simone v. Greater Englewood Housing Corp. No. 1, supra, 56 N. J. at 442. A similar use and operation in a residential zone by a commercial enterprise cannot be said to have that effect.

Of course, there is nothing in what we have said which would prevent the municipality, in accordance with the Zoning Act, from rezoning the area of which this property is a part in such a way as to permit this kind of use either with or without the necessity for obtaining a special exception. See Hyland v. Morris Tp. Mayor and Tp. Comm., 130 N. J. Super. 470 (App. Div. 1974), aff'd o. b. 66 N. J. 31 (1974); Kozesnik v. Montgomery Tp., 24 N. J. 154 (1957); Southern Burlington Cty. NAACP v. Mount Laurel Tp., 67 N. J. 151, 181, n. 12 (1975); De Simone v. Greater Englewood Housing Corp. No. 1, supra, 56 N. J. at 443. Indeed, many of the reasons the municipality advanced for granting the variance, if properly supported, might serve as a justification for such rezoning.

Reversed.

      We need not decide, therefore, the question of whether the negative criteria under the statute have been met.

      It is unclear whether the actual applicant was the corporation or individuals trading as Penwell Kacquet Club.

      Assuming, of course, that the statutory negative criteria are met.


author: Crahay, J. A. D.

text:
    BENJAMIN MOORE & COMPANY, PETITIONER-APPELLANT, v. CITY OF NEWARK, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 7, 1975
    Decided April 15, 1975.

      Before Judges Halpern, Crahay and Ackerman.

      Mr. Carl G. Weisenfeld argued the cause for appellant (Messrs. Hannoch, Weisman, Stern & Besser, attorneys; Mr. Dean A. Caver, on the brief).

      Mr. Donald S. Coburn, Assistant Corporation Counsel, argued the cause for respondent (Mr. Donald E. King, attorney; Mr. Melvin Simon on the brief).
   The opinion of the court was delivered by

Crahay, J. A. D.

Benjamin Moore & Company (the taxpayer) owns in excess of eight acres of land in the City of Newark (Newark) on which are situated, in the main, 14 older multi-storied buildings utilized in the manufacture of paints and allied products. In this appeal it challenges the assessed valuations for the real property for the years 1970, 1971 and 1972 entered as final judgments in the Division of Tax Appeals. The hearing in the Division was bifurcated and the record essentially consists of the testimony of the taxpayer’s expert, Charles Evans, taken on October 9, 1973, and that of the city’s expert, Jack Birnholz, taken on December 18, 1973. At the conclusion of Birnholz’s testimony the Division judge in an oral opinion entered the challenged assessments. The taxpayer’s motion for a rehearing, alleging errors in the Division opinion, was denied.

Perceiving insufficient credible evidence in the record to support the Division’s findings, and further finding that the conclusions do not fairly relate to the record, we are constrained to reverse the judgments under review and remand the matter for further proceedings. As was the case in Van Realty, Inc. v. Passaic, 117 N. J. Super. 425 (App. Div. 1971), we have here, plainly and simply, no adequate “findings of fact” nor any analytical expression of the basis which, applied to the found facts, led to the holdings below.

The hope — expressed in Van Realty that the reversals there might serve to alert the Division to its duty to make adequate findings of fact and to express reasons for its decisions ■ — • has not been fulfilled. We reiterate that there is a compelling need for g«ast‘-judicial and administrative agencies to understand what constitutes adequate findings of fact, the practical reasons why they are mandated, the distinctions between ultimate and basic facts, and the necessity that the findings have evidentiary support.

Applying the Van Realty principles to the record before us we observe that the findings here were in the main conclusionary and lacked meaningful reference to the testimonial background.

By way of illustration only, we note that both expert witnesses were held by the Division judge to be highly competent but that they reached different appraisals of the property. The taxpayer’s expert, Evans, employed both the market data approach (comparative sales) as well as the reconstruction cost approach in arriving at his valuations, although he heavily stressed the former methodology. The municipality’s expert, Birnholz, relied on the comparative sales approach in ascertaining the value of the land but did not employ that method in the overall evaluation of the “industrial manufacturing complex”, using instead the cost of reproduction less depreciation method of valuation. The Division judge observed in his opinion — and in our view incorrectly ■ — ■ that the experts substantially relied on the reconstruction cost approach in the evaluation of improvements. It strikes us that thereafter he undertook a seemingly gratuitous and conclusionary acceptance of the municipality’s theories. (We note that Birnholz ultimately conceded that the reproduction cost method in the instant premises had little bearing on fair market value — the keystone to property evaluation. N. J. S. A. 54:4-23.) We see little record support for the reproduction cost analysis urged by Birnholz and accepted by the tribunal below, and no critical or comprehensive analysis of the comparative market approach employed by Evans with considerable record support. In re Appeal of the City of East Orange, 103 N. J. Super. 109 (App. Div. 1968). The failure by the judge below to analyze or meaningfully consider Evans’ testimony is rendered inexplicable in view of his observations on the motion for rehearing —

I would like at this time to say that I have the utmost and highest regard for Mr. Evans as a real estate expert. I believe that he is, if not the best, certainly one of the highest regarded appraisers in the State of New Jersey. I believe that he is extremely good because of two things: in my experience with him, he has always been factually accurate and he has always been an advocate in that he has the ability to put his best foot forward when it comes to the presentation of those facts, but the facts are always accurate. There is no place in any portion of my decision which I have attempted, nor would I attempt to discredit his facts. I may disagree with the conclusion that he arrives at from those facts; I may think that he has highlighted some facts and ignored some other facts, but the factual presentation he makes, in my opinion, is always correct.

But still not a relevant word as to why he “disagreed” with Evans’ “conclusions” in the matter.

As to the land assessments, Evans gave a value of $151,300. Birnholz counter-opined the value of land at $447,000, which figure was substantially adopted by the Division judge, but again without any critical analysis and based upon purported comparable sales which were not in our view readily relatable to the instant premises. Compare In re Appeals of Kents 2124 Atlantic Ave., Inc., 34 N. J. 21 (1961).

It appears that .BiroBolz, on behalf of the municipality, identified one of the taxpayer’s buildings as including 82,250 square feet of space. The fact is that that building contained only 54,242 square feet. Birnholz conceded his error in this regard, having included 28,008 square feet of space on the second and third floors of the involved building when in fact there were simply no such floors. The taxpayer argued — and persuasively — that by employing Birnholz’s figures the overevaluation amounted to $122,480. The Division judge did not employ Birnholz’s square footage figures when the mistake was called to his attention but rather reduced the total result in value by the sum of $77,000. Although we do not imply that the $122,450 should have been accepted, there is no record support whatever for the attempted adjustment.

Lastly, wc note that the oral opinion is completely silent as to any reasons for not considering Evans’ testimony respecting the record’s reference to bulkheading, deterioration and mudjacking costs as they relate to the situs in question.

The above cited examples are utilized by us only to point up what we regard to be an abdication by the Division of its function in ascertaining true value.

N. J. S. A. 54:2-16 mandates that findings of fact and decisions by the Division shall in all cases be reduced to writing. We are of the view that if the requirement of that enactment had been honored here, that task might have resulted in a finding of specific facts, supported by an expression of reasoning, with a conclusion that might well have been a true value different from that allegedly supporting the challenged assessments.

Accordingly, we remand for further proceedings consistent with the views expressed herein and for the recordation of findings and conclusions so that “he who reads them is made aware of the cause by which it [the Division] was brought to its decision.” In re Mutual Benefit Life Ins. Co., 35 N. J. Super. 113 (App. Div. 1955); In re Central Railroad Co. of N. J., 29 N. J. Super. 32, 39 (App. Div. 1953).

Reversed and remanded. We do not retain jurisdiction.


author: Botter, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JEROME PROVET, DEFENDANT-APPELLANT.
    Superior Oourt of New Jersey Appellate Division
    Submitted April S, 1975
    Decided April 16, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Michael R. Klekman, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Damon R. Sedita, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Botter, J. A. D.

Defendant was found guilty in a jury trial of rape (N. J. S. A. 2A:138-1) and armed robbery (N. J. S. A. 2A:141-1, N. J. S. A. 2A:151-5). He was sentenced to New Jersey State Prison for a period of seven to ten years on the rape conviction, with a concurrent term of four to six years on the robbery conviction and a term of one to two years for being armed, consecutive to the sentence imposed for the rape.

Three points are raised on this appeal. The first, which was not raised below, is that the trial judge erred in charging the jury that they could consider the omission of a material factual assertion in a statement given to the police by the complaining witness only for the purpose of affecting the credibility of the witness. The second point is that the court improperly made the sentence on the conviction for being armed consecutive to the rape conviction although the indictment did not charge the commission of rape while armed but only charged the commission of robbery while armed. Lastly, it is contended that the trial judge improperly imposed a State Prison sentence rather than a sentence to the Youth Correctional Institution Complex.

The complaining witness, G. T., a 25-year-old student nurse and “minister in holiness,” testified that she was robbed and raped at gunpoint by defendant. She said that she was able to see defendant’s face during the course of the robbery, but that after he ordered her to unclothe he tied her dress around her head so she could not see. On cross-examination, however, she testified that during the rape she pretended that she could not breathe and that her assailant removed the dress, enabling her to observe his face thereafter. She had not testified on direct examination to the removal of the dress from around her head, nor was this included in the statement that she gave to the police one day after the rape. Referring to this omission, the trial court charge.d the jury as follows:

Now, evidence showing that at a prior time a witness has failed to say something which is inconsistent with the witness’s testimony at trial may be considered by you for the sole purpose of adjudging the witness’s credibility. In other words, this may simply go to her credibility if you find that it should go to her credibility at all. * * *
At any rate, you will have to consider the importance, whether this is important and whether it does go to the witness’s credibility and the extent to which it does go to the witness’s credibility if you find it does go to her credibility at all.
So that the weight and the application of this prior omission, if you find it in fact to have been an omission, is for you to determine.

No exception was taken to this part of the court’s charge and we are asked to consider it plain error. State v. Macon, 57 N. J. 325 (1971).

Prior to the adoption of the Rules of Evidence in September 1967 New Jersey followed the prevailing, traditional view that a prior inconsistent statement cannot be offered as substantive evidence of the facts stated, that is, as proof of the matter asserted therein, but can be offered only for the purpose of impeaching the witness. State v. Laws, 50 N. J. 159, 177 (1967), mod. o. g., 51 N. J. 494 (1968), cert. den. 393 U. S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); Goglia v. Janssen Dairy Co., 116 N. J. L. 396, 397 (E. & A. 1936); State v. Salimone, 19 N. J. Super. 600, 608-609 (App. Div. 1952), certif. den. 10 N. J. 316 (1952); Kulinka v. Flockhart Foundry Co., 9 N. J. Super. 495, 500-501 (Cty. Ct. 1950), aff’d sub nom. Bujalski v. Flockhart Foundry Co., 16 N. J. Super. 249 (App. Div. 1951), certif. den. 8 N. J. 505 (1952); see Link v. Eastern Aircraft, etc., Gen'l Motors Corp., 136 N. J. L. 540 (E. & A. 1948), and State v. D’Adame, 84 N. J. L. 386, 395-397 (E. & A. 1913); 3A Wigmore, Evidence (Chadbourn rev. 1970), § 1018 at 995-998; McCormick, Evidence (2 ed. 1972), § 34 at 67, § 251 at 601. Under that rule: "Contradictory statements are admissible solely to impeach 'the witness and for no other purpose. They are ineffective as'direct and affirmative proof of the facts to which they relate.” Goglia v. Janssen Dairy Co., supra, 116 N. J. L. at 397. As such, a limiting instruction was required. McCormick, supra, n. 62 at 601; see also State v. D’Adame, supra, 84 N. J. L. at 397, and United States v. Lipscomb, 425 F. 2d 226, 227 (6 Cir. 1970), both referring to the general rule but dealing specifically with evidence admitted solely for the purpose of neutralizing surprise testimony of a witness.

However, with the adoption of the Rules of Evidence in 1967, New Jersey moved to the more modern view (see McCormick, supra at 602-603) that a prior inconsistent extra-judicial statement of a witness called by another party is admissible as “substantive” evidence, as an exception to the hearsay rule, providing the statement would be admissible if made by the witness while testifying. Evid. R. 63(1) (a); Comment 63(1) (a), Neiv Jersey Rules of Evidence (1972). The principal rationale for this rule is that the declarant is available for cross-examination, so that the fact-finder may give such weight to the statement as it deserves, considering the reasons, if any, given for the contradiction and other evidence bearing on the issue. 3A Wigmore, supra at 996.

A statement from which there has been omitted a material assertion that would normally have been made and which is presently testified to may be considered a prior inconsistent statement. State v. Rosa, 71 N. J. L. 316 (E. & A. 1904); Esderts v. Chicago, Rock Island & Pacific R. Co., 76 Ill. App. 2d 210, 222 N. E. 2d 117 (App. Ct. 1966), cert. den. 386 U. S. 993, 87 S. Ct. 1309, 18 L. Ed. 2d 339 (1967); Commonwealth v. West, 312 Mass. 438, 45 N. E. 2d 260 (Sup. Jud. Ct. 1942); Erickson v. Erickson & Co., 212 Minn. 119, 2 N. W. 2d 824 (Sup. Ct. 1942); 3A Wigmore, supra, § 1042 at 1056; McCormick, supra at 68. While it can be readily understood that a material omission in a prior statement may affect the credibility of a witness, the omission alone cannot logically serve as affirmative proof of a fact asserted. But the prior statement as a whole, because of the omission, may serve as an implied contradiction of the testimony given by the witness. 3A Wigmore, supra. In the ease at hand the statement was offered to impeach Q. T.’s testimony that her dress was removed from her eyes during the sexual assault. It was offered not simply to attack her credibility but to prove a negative proposition as well, namely, that the dress was not removed and that she could not have observed her assailant during the rape. Eor this reason the limiting instruction should not have been given. When a prior contradictory statement is introduced pursuant to Evict B. 63(1) (a) it is now improper to give a limiting instruction unless the statement has been offered for a limited purpose (see Evid. R. 6) or as neutralizing evidence under Evid. R. 20.

Nevertheless, the instruction could not ¡have prejudiced defendant’s rights in the case at hand. See McCormick, supra at 604, saying: “Allowing it as substantive evidence pays an added dividend in avoiding the ritual of a limiting instruction unlikely to be heeded by a jury.” See also Report of the N. J. Supreme Court Committee on Evidence, Comment, R. 63(1) at 130 (1963), speaking of the traditional rule:

* * * the prior statement is limited to an evaluation of credibility and the jury is instructed that they are not to consider the statement as substantive evidence. It is widely acknowledged that,this is a fiction, and that the jury in fact often gives the prior statement substantive effect. If confronted with two conflicting statements a typical jury will tend to believe one of them. The instruction is confusing and requires a form of mental gymnastic that is obviously beyond the capacity of the ordinary juror.

Despite these views we cannot condone the erroneous instruction on the assumption that the jury did not comply with the limitation. In the case at hand, however, the attempted limitation could not have been meaningful. If the credibility of the witness was impeached it would have served the purpose of disproving her assertion that the dress-blindfold was removed. This tends to the same conclusion sought by proving, through the omission, the negative proposition that the dress was not removed. While we disapprove a limiting charge where an omission is introduced as proof of prior inconsistency, we cannot conclude that the charge here constituted plain error justifying a reversal of the conviction. See State v. Macon, supra. There was ample evidence that the victim observed defendant before and after the interval when he had forced intercourse with her.

Defendant also contends that the judge erred in sentencing this 23-year-old defendant to State Prison rather than “Yardville.” We find no merit to this contention. At sentencing the trial judge expressed the view that he considered defendant dangerous and capable of repeating this type of offense unless incarcerated. He made it clear that he did not intend to sentence defendant to an indefinite term and that he was imposing a State Prison sentence to assure defendant’s incarceration for a certain minimum period of time for the protection of society. Nevertheless, the trial judge indicated that he would recommend an institutional transfer “to Yardville, if possible.” We find no error in this disposition by the trial judge. State v. McBride, 67 N. J. 577 (1975), aff’g 127 N. J. Super. 399 (App. Div. 1974). Although a sentence to the Youth Correctional Institution Complex is generally preferred for youthful offenders, the trial ]udge had good reason for the sentence he imposed.

The third count of the indictment charged defendant with having “in his possession a pistol while committing the robbery of the said G. T. contrary to the provisions of N. J. S. A. 2A.151-5 * * *.” Although N. J. S. A. 2A:151-5 provides for the enhancement of a rape sentence if committed while armed, defendant was not so charged in the indictment. Accordingly, the court could not enhance the sentence for rape by an additional consecutive term for being armed. In this case, the additional sentence could be imposed consecutive only to the sentence for robbery.

N. J. S. A. 2A:151-5 provides that any person who commits an assault, robbery, rape or other enumerated offenses when armed with a firearm or other dangerous instrument “* * * shall, in addition to the punishment provided for the crime, be punished * * *” (emphasis added) for certain specified terms. The last sentence of that section provides, "No such additional punishment shall be imposed unless the indictment shall (have averred that the person was armed with or had in his possession any such instrument and conviction was had thereon.”

We conclude that the legislative intent was to allow the imposition of a penalty for being armed in addition to that imposed for the substantive crime, provided the indictment charges the armed feature while the substantive crime was being committed. Since the indictment in the ease at hand charged the enhancement offense of being armed with respect to the robbery only, and not the rape, the additional penalty can be imposed only with respect to the sentence for the robbery. Accordingly, the sentence on the third count of the indictment is vacated and the cause is remanded to the trial court for resentencing in accordance with this opinion.

Affirmed, escept as to the sentence imposed on the third count, and remanded for resentencing.

      When a prior contradictory statement is offered for the purpose of neutralizing surprise testimony of one’s own witness pursuant to Evid. R. 20, a limiting instruction is required. State v. Gallicchio, 44 N. J. 540, 547 (1965).


text:
    MIRA LAND DEVELOPMENT CORP., A NEW JERSEY CORPORATION, ET AL., PLAINTIFFS-RESPONDENTS, v. THE BOROUGH OF MATAWAN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Submitted January 17, 1975
    Decided April 22, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Pillsbury, Russell & Ashbey, attorneys for the appellant (Mr. William E. Russell, of counsel; Mr. Robert E. McLeod on the brief).

      Mr. Kenneth E. Joel attorney for respondents.
   The opinion of the court was delivered by

Allcorn, J. A. D.

A review of the pertinent provisions of the statutes dealing with the assessment of benefits for local improvements, N. J. S. A. 40:56-21 et seg., makes plain the legislative intent that, where the original assessment is subsequently reduced as the result of judicial review, the revised assessment bears interest in the same manner and from the same date as it would have borne had the original assessment been made in the amount as revised.

The statutory scheme contemplates that all assessments for benefits for local improvments shall be payable in full immediately upon confirmation of the original assessments by the local governing body and certification thereof to the tax collector, N. J. S. A. 40:56 — 31, and, if not paid in full within two months after confirmation, that interest will be imposed upon the unpaid amount “from the date of confirmation * * * at the same rate” as is imposed by the municipality upon unpaid genei-al property taxes, N. J. S. A. 40:56-32 —• this, whether or not the governing body has authorized deferred payment of the assessments in installments. N. J. S. A. 40:56 — 35.

Nor does the taking of an appeal from the assessment in any way affect this obligation of the benefiting property owner to pay the assessment within two months of confirmation in order to avoid and stop the running of interest. Consistent with the design of the statute, no provision whatever has been made for the suspension of the duty to pay either principal or interest pending an appeal of the assessment. At the same time, any landowner who succeeds in obtaining a reduction of his assessment as a result of liis appeal is entitled to a refund of any amount paid in excess of the revised assessment, thus enabling the appealing landowner to stop the running of interest by payment of the original assessment without risk of loss of the excess. Express provision therefor is contained in N. J. S. A. 40:56-34; despite the omission of a similar provision in N. J. S. A. 40:56-54, the prevailing landowner in an appeal thereunder would he entitled to a refund of the excess as a matter of necessary implication, for unless the right to review is to he meaningless, it must carry with it the concomitant right to appropriate relief. Ocean Grove, &c., Ass’n v. Bradley Beach, 91 N. J. L. 364 (Sup. Ct. 1918), aff’d 93 N. J. L. 249 (E. & A. 1919). Compare Farmingdale Realty Co. v. Farmingdale, 55 N. J. 103 (1969); Suburban Dep't. Stores v. East Orange, 47 N. J. Super. 473 (App. Div. 1957).

So structured, the statutory scheme avoids unfairness and inequity of treatment as between the benefiting landowners and the general taxpayers of the municipality, as well as among the benefiting landowners themselves. By clear implication any revised assessment is made solely with reference to the cost of the improvement as certified to the assessor immediately following its completion. N. J. S. A. 40:56-34. Hence, interest on monies borrowed by the municipality to fund the improvement which accrues during the period between the confirmation of the original assessment and the determination and payment of the revised assessment, is not added to the cost of the improvement and may not be considered in the revision of the assessment. N. J. S. A. 40:56 — 34. To the extent that the benefiting landowner does not pay interest on the amount of the assessment remaining unpaid during this period, that interest would have to be paid out of the general funds of the municipality. The additional inequity as between those benefiting landowners who pay the original assessment and any interest thereon pending appeal and those benefiting landowners who do not is self evident.

In the resolution of this issue we perceive no real distinction as between an assessment that is revised by way of correction of the original assessment by the court under N. J. S. A. 40:56-54, or an assessment that is revised by way of reassessment by the assessor following the setting aide of the original assessment under N. J. S. A. 40:56-34. Any differences go merely to form; they do not reach essential considerations affecting the date payment of the assessment is required to be made or the obligation to pay interest if payment of the assessment is not made when due. Compare Jackson v. Kirkpatrick, 117 N. J. L. 127 (Sup. Ct. 1936); Newark Homebuilders Co. v. Bernards Tp., 90 N. J. L. 361 (Sup. Ct. 1917); State ex rel. Miller v. Love, 37 N. J. L. 261 (Sup. Ct. 1874).

Accordingly, the judgment of the Chancery Division is reversed, and the cause is remanded with directions to enter judgment in favor of defendant against plaintiffs, dismissing the complaint.


text:
    NEW JERSEY TURNPIKE AUTHORITY, PLAINTIFF-APPELLANT, v. JOHN I. O’NEILL, AS SUBSTITUTED ADMINISTRATOR C.T.A. AND SUCCESSOR TRUSTEE UNDER THE WILL OF JOHN I. O’NEILL, DECEASED, AND AS EXECUTOR UNDER THE WILL OF CATHERINE O’NEILL, DECEASED; JOHN I. O’NEILL, INDIVIDUALLY, AND ROSANNE O’NEILL, HIS WIFE; PETER L. O’NEILL AND GRETA B. O’NEILL, HIS WIFE; AND JAMES ROGERS O’NEILL AND ANDREA O’NEILL, HIS WIFE; THE BOROUGH OF EAST RUTHERFORD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; AND THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 3, 1975
    Decided April 15, 1975.

      Before Judges Michels, Morgan and Milmel.

      Mr. Bernard M. Reilly argued the cause for the appellant.

      Mr. John C. Heavey argued the cause for the respondents (Messrs. Carpenter, Bennett & Morrissey, attorneys; Mr. James R. Lamb, on the brief).
   Per Curiam.

In this condemnation case plaintiff-condemnor, New Jersey Turnpike Authority, appeals from a judgment of the Law Division entered after a non jury trial awarding defendant O’Heill $199,660 plus interest as compensation for the parcel taken and consequential damages to the property remaining in defendants’ ownership.

Tn July 1967 plaintiff, as part of its Turnpike widening program, filed its complaint and declaration of taking of approximately five acres (parcel 2E420) of the northwesterly section of the approximately 15-acre O’Heill holdings in East Rutherford iu the Hackensack Meadowlands area. The total holdings (Lots 36, 36B and 37B in Block 108A on the East Rutherford Tax Map) were bounded on the north by westbound Route 3, on the south by eastbound Route 3, and extended from the Hackensack River on the east to the connecting ramp between Routes 3 and 20 on the west. Access to the property was possible from Route 3 eastbound, but physically impossible from Route 3 westbound. The property is traversed by 2- tidal streams, Blackman’s Creek and Branch Creek. It is also- traversed by an easement of the Transcontinental Gas Pipeline Corporation for an underground pipe line. The appointment of condemnation commissioners was stayed pending the outcome of litigation between O’Neill and the State Highway Department to determine title to the property. Por a history of that litigation see O’Neill v. State Highway Dept., 77 N. J. Super. 262 (App. Div. 1962), rev’d 40 N. J. 326 (1963); and see, O’Neill v. State Highway Dept., 50 N. J. 307 (1967), in which the cause was remanded for retrial on the issue whether the lands were tidelands. Thereafter, the question of title was resolved by a consent judgment filed June 1, 1972, which, among other things, declared the beds of the two creeks to be- owned by the State as riparian lands of the State free of any claim by O’Neill. The condemnation action was then reactivated. The condemnation commissioners subsequently appointed made an award of $165,000, from which the New Jersey Turnpike Authority appealed to the Law Division. A motion by the Authority to amend its complaint and declaration of taking to show an access easement to the remaining property of O’Neill was denied. Following a nonjury trial, the court made its award of compensation for the taking (at $20,000 an, acre) and consequential damages to the remainder (in the sum of $100,960) totaling $199,660 plus interest.

On this appeal plaintiff contends in the main that the trial judge erred in allowing consequential damages and in fixing the compensation to be paid for the property taken. "We agree. The beds of Blackman’s and Branch creeks, riparían lands owned by the State, effectively divide defendants’ lands into three separated and noncontiguous parcels. Title to the beds of these creeks was never in defendants. No application was ever made by them for a conveyance of the State’s rights in these riparian lands. See N. J. S. A. 12: 3 — 7; 12:3-10; 13 :1B-13 at seq.; 13 :1D-3 (b). They had no right of access or ownership in these lands. There was no unity of use of the throe separated and noncontiguous parcels. There was no functional relationship between them. They wore separate, independent parcels. In the circumstances there was no lawful basis for an award of consequential damages. See 4A Nichols on Eminent Domain (rev. 3 ed. 1974), §§ 14.3, 14.31 [1]; 29A C. J. S., Eminent Domain, § 140 at 592; 1 Orgel, Valuation Under The Law of Eminent Domain (2 ed. 1953), § 47 at 228-232; Bergen Neck Ry. Co. v. Point Breeze Ferry Co., 57 N. J. L. 163 (E. & A. 1894); Annotation, “Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property,” 6 A. L. R. 2d 1197, §§ 11-14 at 1219-1226. It is clear that the property actually taken did not constitute “an integral and inseparable part of a single use to which the land taken and other adjoining land” was put. State v. Elizabeth Bd. of Ed., 116 N. J. Super. 305, 315 (Law Div. 1971). And see, Public Service Elec. & Gas Co. v. Oldwick Farms, Inc., 125 N. J. Super. 31, 37 (App. Div. 1973), certif. den. 64 N. J. 153 (1973).

It is well settled tliat wlien the whole or a part of a particular tract of land is taken for public use, the owner of such land is not entitled to compensation for injury to other separate and independent parcels belonging to him which result from the taking. [4A Nichols on Eminent Domain (rev. 3 ed. 1974), § 14.3 at 14-378-14-379]

In their “Counter-Statement of Eacts” contained in their brief submitted on this appeal, defendants, referring to the respective positions of the parties in the trial court on the issue of consequential damages, say that

On tlie question of consequential damages to the 9.4758 acre remainder, there was a significant difference of opinion between the parties. The Authority contended that the remainder was comprised of three separate parcels of land with, by far, the largest parcel (some 8.6738 acres) being “noncontiguous” to the condemned property as a result of the State judicially determined ownership of the bed of Blackman’s Creek which is situated between the area of the taking and the major portion of the remainder. Based upon this view, the Authority’s appraiser opined that there was virtually no damage to the remainder.
ifi ijs ❖ * & $ *
It was O’Neill’s position that the State’s riparian title to the bed of Blackman’s and Branch Creeks did not create separate parcels since O’Neill had a statutory preemptive right as upland owner to routinely obtain title to the beds of those creeks from the State as of the taking date. Based upon this analysis, defendant’s appraiser testified that the landlocked remainder had a value of $12,000.00 per acre on the date of taking and was damaged to the extent of 90% by the taking.

Defendants argue:

As is indicated by the Boswell map of the premises (Da inside back cover), that portion of the remainder which is in dispute lies to the east of Blackman’s Creek while the land involved in the taking lies to the west of that creek. It is evident, therefore, that a strip of land judicially determined to be owned by the State in 1967 lies between the area of the taking and that which has been judicially held to constitute O’Neill’s remainder. Such intervening ownership and lack of unitary use, the Authority contends, resolves the ultimate question of consequential damages adversely to the condemnee. However, in reaching this conclusion, the Authority has chosen to ignore the fact that O’Neill was denied the statutory option to routinely acquire title to the creek beds from the State as of the 1967 taking date. As the State’s representative, Johnson, testified, had O’Neill applied for a grant of title to the creek beds in 1967, such grant would have been routinely issued.

Accepting defendants’ thesis, the trial court premised its award of consequential damages upon the assumption “that the defendant could have acquired title to the creek beds from the State for $1,000 per acre, or a total of $1,440.”

The error in the trial court’s assumption and the lack of merit in defendants’ contention is that both are grounded on pure speculation. As pointed out in LeCompte v. State, 65 N. J. 447 (1974):

No one disputes the proposition that tidal lands, lying between mean high and low water marks, are owned by the State, to the extent they have not been validly conveyed to others. Bailey v. Driscoll, 19 N. J. 363, 367 (1955); Ross v. Mayor, etc., of Borough of Edgewater, 115 N. J. L. 477, 483 (Sup. Ct. 1934), aff’d 116 N. J. L. 447 (E. & A. 1936), cert. den. 299 U. S. 543, 57 S. Ct. 37, 81 L. Ed. 400 (1936); Schultz v. Wilson, 44 N. J. Super. 591, 596 (App. Div. 1957), certif. den. 24 N. J. 546 (1957). As the holder of such title the State possesses all attributes of ownership, including the right, subject to the demands of the public trust doctrine, to grant or alien the lands so held. In large measure the responsibility of overseeing and controlling tidelands has been allocated by the Legislature to the Department of Environmental Protection. Within that Department the Natural Resource Council has been empowered to negotiate leases and conveyances on behalf of the State. N. J. S. A. 12:3-7; 12:3-10; 13 :1B-13; 13:1D-3(b). The Council is given the right to fix such price or compensation as it shall see fit as consideration for any such lease or conveyance. Id.
* íj* il? ❖ J}•« H* *
Finally, it is important to bear in mind that the State is under no obligation to convey riparian lands when requested to do so, but may, if it sees fit, simply continue to retain title, [at 450-451; emphasis supplied]

Defendant’s right under N. J. S. A. 12:3-10 to apply for a conveyance to them of title to the creek beds can, therefore, in no way be equated with what they conceive is a “statutory option to routinely acquire” suoh title from the State. There was clearly no showing by defendants that at the time of the taking in July 1967 there was a reasonable probability that they would acquire ownership of the creek beds in the reasonably near future. See N. J. Turnpike Authority v. Bowley, 27 N. J. 549, 555-556 (1958), cert. den. 358 U. S. 927, 79 S. Ct. 312, 3 L. Ed. 2d 301 (1959); State v. Gorga, 26 N. J. 113 (1958). In the factual situation of the case no such showing could be made. As it turned out, at the time of trial, which was more than six years after the taking, defendants had still not even applied for a riparian grant from the State. N. J. S. A. 12:3-7; 12:3-10; 13 :1B-13 et seq.; 13:1D — 3(b).

Accordingly, the award of consequential damages cannot stand and is, in its entirety, vacated. The remaining component of the judgment appealed from, i. e., the award of compensation for the parcel actually taken, is set aside. The proper valuation of that parcel is to be determined following a new trial, on that issue only, at which the proof is to be limited “to the value of the land as of the control date, i. e., the date of taking, in the condition of the land at that time and to the uses to which it is naturally adapted and restricted.” Port of N. Y. Authority v. Howell, 59 N. J. Super. 343, 347 (Law Div. 1960), aff'd 68 N. J. Super. 559 (App. Div. 1961), certif. den. 36 N. J. 144 (1961). See also, State v. Mehlman, 118 N. J. Super. 587 (App. Div. 1972).

In his testimony as a real estate expert on behalf of defendants, Sanford Krasner emphasized that his appraisal “does not take into consideration in any fashion any possibility that the State owns the two creeks”; and that his “assumption” was “that there was no ownership by the State, or if there was ownership by the State this was contiguous use.” His valuation of the parcel taken as an integral part of the overall holdings of defendants in the area ignores the actual condition of the land and is without substance. The trial judge’s reliance upon that valuation in fixing the compensation to be paid for the property actually taken invalidates that portion of its judgment. On the new trial which is ordered, the parcel taken is to be valued as a separate, independent parcel, and not as an integral part of the remaining parcels in defendants’ ownership.

The judgment under review is reversed and the case is remanded to the Law Division for further proceedings consistent with this opinion.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSE RIVERA, A/K/A PEPE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 7, 1975
    Decided April 16, 1975.

      Before Judges Collester, Lora and Handler.

      Mr. Herbert Klitzner argued the cause for appellant (Messrs. Lewis and De Clemente, attorneys; Mr. Thomas A. De Clemente, of counsel).

      Mr. Richard J. Engelhardt, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Per Curiam.

Defendant Jose Rivera was charged with (1) atrocious assault and battery, contrary to the provisions of N. J. S. A. 2A:90-1, and (2) cruelty to a child, in violation of N. J. S. A. 9:6-3. He was tried to a jury and found guilty on count two of the indictment and acquitted on the first count of the indictment. A motion for judgment n.o.v. or, in the alternative, for a new trial, was denied and he was given a suspended one to two-year sentence to State Prison, placed on probation for five years and required to submit to a six-week period of examination, evaluation and counseling by the Hudson County Family Division of the Associated Catholic Charities.

The State’s proofs showed that defendant, who was living with the victim’s mother and who had acted as a father to all her five children for almost ten years, struck the nine-year-old boy twice with a plastic bat whcti bruised and raised two large welts on the boy’s back. The boy had refused to clean up his room despite several requests by his mother and defendant that he do so. When defendant fried to grab the boy, he ran away. Defendant ran after him, grabbed the plastic bat lying on a chair and, as he caught the boy at the outside kitchen door, hit him' twice with the bat.

Defendant contends it was plain error for the trial judge not to charge the jury that criminal intent to inflict injury is an element of cruelty to a child under the provisions of N. J. S. A. 9:6-3. The statute provides that “Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall he deemed to be guilty of a misdemeanor * *

Cruelty to a child is defined in N. J. S. A. 9:6-1 in the following manner:

Cruelty to a child shall consist in any of the following acts: (a) inflicting unnecessarily severe corporal punishment upon a child; (b) inflicting upon a child unnecessary suffering or pain, either mental or physical; (c) habitually tormenting, vexing or afflicting a child; (d) any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child; (e) or exposing a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of such child.

In State v. Burden, 126 N. J. Super. 424 (App. Div. 1974.), certif. den. 65 N. J. 282 (1974), this court ruled that N. J. S. A. 9:6-3, applicable to a charge of neglect, did not require an intent to harm or evil intent or bad motive. We construed the term “willful”, as used in the definition of child neglect set forth in N. J. S. A. 9:6-1, as requiring an act which is intentionally or purposely committed as distinguished from actions which are inadvertent or accidental. In view of the remedial purpose of the statute — the protection of young children against evils incident to their early life — this reasoning is applicable to a construction of the statute involving an allegation of cruelty as in this case. Accordingly there was no error, no less plain error, in the failure of the trial judge to instruct the jury that intent in the sense of evili motive was a requisite.

There is no merit in defendant’s contention that his motiou tor a judgment n.o.v. or for a new trial should have peen granted because the trial judge erroneously failed to recognize the defense of lack of intent raised by defendant, and the verdict of guilty of cruelty to the child was based on evidence insufficient to warrant a conviction (R. 3:18-1 and 2) and was a manifest denial of justice under the law (R. 3:20-1). While defendant testified he did not "mean to hurt Gregory,” the evidence was clearly sufficient to warrant the conviction since defendant himself admitted that he struck Gregory with the bat because the boy was disobedient, and hence the act was neither accidental nor inadvertent.

Finally, defendant contends it was error for the trial judge not to dismiss the atrocious assault and battery count at the conclusion of the State’s case and in not granting defendant’s motion for a new trial or judgment m.o.v. on that basis. Our review of the record satisfies us there was sufficient evidence for the court to submit that charge to the jury and that such submission did not prejudice the defendant. Moreover defendant’s acquittal on that count does not bespeak an improper compromise by the jury.

Affirmed.


author: Kentz, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIE LEE JOHNSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 11, 1974
    Decided February 18, 1975.

      Before Judges Michels, Morgan and Kentz.

      Mr. James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for the appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Steven Leonard Strelitz, Deputy Attorney General, argued the cause for the respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Kentz, J. S. C.,

Temporarily Assigned. Defendant was indicted by the Mercer County grand jury on January 7, 1971. The indictment charged defendant in three counts with (1) robbery, in violation of N. J. S. A. 2A:141 — 1; (2) robbery while in possession of a firearm, contrary to the provisions of N. J. S. A. 2A:151-5, and (3) unlawful possession of marijuana, in violation of N. J. S. A. 2A:18-4.

Pleas of guilty to the three counts were entered and defendant was sentenced to a prison term of 10 to 12 years on the robbery count, as well as concurrent 2-5-year terms on each of the other two counts, to be served concurrently with the robbery sentence. Defendant was also fined $100. The term sentences were suspended and defendant was placed on a three year probationary term conditional upon his attendance at a drug rehabilitation program.

On June 24, 1971 the trial judge determined that defendant had violated the terms of the probation and reinstated the original sentence. On September 14, 1972 defendant moved for a reconsideration of the custodial sentences and the trial judge granted the relief requested. The balance of the prison term was suspended and defendant was placed on three years probation on condition that he participate in the Mercer County Drug Clinic.

A bench warrant was issued by the trial court on February 23, 1973 on the representation that defendant had violated the conditions of probation. A hearing was held on September 13, 1973 at which time the trial judge found the defendant guilty of violation of probation and remanded the defendant to serve the remaining time on the original sentence.

Defendant contends on this appeal that the September 13, 1973 hearing was insufficient in that the adequate hearing requirements of N. J. S. A. 2A :168-4 and minimal due process standards were not met. Additionally, defendant urges that the trial judge exercised his discretion mistakenly when he revoked defendant’s probation.

Defendant states that at the September 13, 1973 hearing there were no witnesses, no sworn testimony, no cross-examination and no findings of fact. The record shows that the trial judge stated that he had been informed of defendant’s discharge from the Mercer County Drug Clinic because of his failure to cooperate with the program. Defense counsel explained the reason for defendant’s nonattendance at the drug clinic as follows:

Well, Mr. Johnson will explain to you that when he realized that he was charged with this new robbery he knew he was innocent of in an attempt to try and prove his innocence he tried to do some investigation on his own and realizing that if he reported to the drug program the police would be there to arrest him. He wanted to try and prove his innocence on his own and thus avoided the drug program merely so that he could, knowing he would be arrested and placed in jail.

N. J. S. A. 2A:168-4 provides that subsequent to the filing of a report that a defendant has violated the conditions of probation:

Thereupon the court, after summary hearing, may continue or revoke the probation and the suspension of sentence, and may cause the sentence imposed to be executed or impose any sentence which might originally have been imposed.

In State v. Zachowski, 53 N. J. Super. 431, 440 (App. Div. 1959), the court interpreted the meaning of a summary hearing in this context as follows:

The essential meaning of what is required by our statute to constitute an equivalent “summary hearing” must be derived from the concept of fair play — fair treatment of the defendant at this stage so he will not be made the victim of whim and caprice.

Defendant was given notice of the violation by the existence of the bench warrant. He was represented by counsel at the revocation hearing and the trial judge gave the defendant a chance to explain, his noncompliance with the probationary terms. We are satisfied that the requirements of N. J. S. A. 2A.168-4 have been met.

.furthermore, we find that standards of due process have also been met. Gagnon v. Scarpelli, 411 U. S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), extends the standards of due process enunciated in Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1973), to probation revocation hearings. These standards provide for

(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (e) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) ; (e) a “neutral and detached” hearing body such as traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole. Morrissey v. Brewer, supra, at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d 484; Gagnon v. Scarpelli, supra, 411 U. S. at 786, 93 S. Ct. 1756.

On the record before us defendant has no- just complaint of denial of due process in accordance with these standards. It is clear from his counsel’s comments at the hearing that there was knowledge and even a concession by defendant of the nature and truth of the allegation of violation of probation. The only issue raised at the hearing by defendant was the merit of the excuse given by defendant for giving up the drug program, and it is clear that the trial judge did not accept that excuse.

Appellant’s contention as to a mistaken exercise of the trial judge’s discretion in revoking defendant’s probation is without merit. While it is true that N. J. S. A. 2A:168-4 does not require a judge to revoke probation in circumstances such as the case at bar, it was clearly within the judge’s power to revoke probation. Defendant admittedly did not participate in the drug program. The trial judge heard defendant’s argument and then decided to revoke probation. No showing of a mistaken exercise of discretion exists. See Smith v. Smith, 17 N. J. Super. 128, 132 (App. Div. 1951); State v. Wasserman, 75 N. J. Super. 480, 485 (App. Div. 1962).

Having found that the hearing below did not deprive defendant to his prejudice of any due process rights and absent any mistaken exercise of discretion by the trial judge, we affirm the revocation of probation and imposition of the balance of the original sentence.


author: Lora, J. A. D.

text:
    THE MALAKER CORPORATION STOCKHOLDESS PROTECTIVE COMMITTEE, STEPHEN F. MALAKER, JEROME B. MALAKER AND ROMAYNE MALAKER, PLAINTIFFS-RESPONDENTS, v. FIRST JERSEY NATIONAL BANK, DEFENDANT-APPELLANT, AND FIRST JERSEY NATIONAL CORP., THOMAS STANTON, MERTON CORN, RAY E. MAYHAM, JR., ALBERT MULLER, A. J. WILLNER & CO., AMORSAG REALTY CO., INC., AND WASHINGTON KNITTING MILLS, INC., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Submitted April 7, 1975
    Decided April 18, 1975.

      Before Judges Collester, Lora and Handler.

      Messrs. Schumann, Session, Kennelly and Dorment, attorneys for appellant (Mr. Louis E. Della Torre, Jr., of counsel and on the brief).

      Mr. Edward Gary Reisdorf, attorney for respondents.
   The opinion of the court was delivered by

Lora, J. A. D.

Pursuant to leave granted, defendant First Jersey National Bank appeals from an interlocutory order of the Law Division denying the bank’s motion to dismiss plaintiffs’ complaint on the ground that the venue of the action (Union County) was improper under the provisions of 12 U. S. C. A. §94 (Federal Venue Act). The principal office of the bank is located in Hudson County.

12 U. S. C. A. § 94 pertaining to venue of an action brought against a national bank or association provides as follows:

Venue of suits —
Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.

While these venue provisions are mandatory, Mercantile Nat'l Bank v. Langdeau, 371 U. S. 555, 561-562, 83 S. Ct. 520, 9 L. Ed. 2d 523 (1963); Michigan Nat'l Bank v. Robertson, 372 U. S. 591, 83 S. Ct. 914, 9 L. Ed. 2d 961 (1963), they are not jurisdictional and may be waived by implication by conduct or untimely assertion of the venue privilege. First Nat'l Bank of Charlotte v. Morgan, 132 U. S. 141, 10 S. Ct. 37, 33 L. Ed. 282 (1889); Michigan Nat'l Bank v. Robertson, supra.

The trial judge, in denying the motion to dismiss, held that the hank had waived the benefits of the federal statute. In reaching this conclusion, he considered three factors, although basically be was impressed with two of these factors, i. e., that the bank, by invoking judicial process in Union County (levying upon certain patents and trade marks of plaintiff corporation in aid of execution of a judgment obtained against the Malaker Corporation and the individual plaintiffs in Hudson County) and by conducting some business (administering trust accounts domiciled in 19 states throughout the country, including the northern sections of New Jersey), had waived the venue requirements of the federal statutes and in effect voluntarily agreed to suits in Union County.

In his opinion the trial judge also considered the fact that the bank had applied for and received Comptroller of the Currency approval for a branch in Union County, but he noted that he did not consider this significant in itself in light of the holding in Helco, Inc. v. First Nat'l City Bank, 470 F. 2d 883 (3 Cir. 1972), that branch banking activity does not constitute a waiver of a national bank’s clear right to be sued only in the county of its home office in the absence of any evidence or inferences of such intention. He did, however, consider it important “for discovering the overall relationship which existed between Union County and the Bank.”

The question of what constitutes a sufficient waiver has been the subject of various lower federal court and state court decisions, with divergent results. See generally, Annotation, “Waiver By National Bank of Statutory Right To Be Sued in District Where Established or In Which Located,” 1 A. L. R 3d 904 (1965). See also, Insurance Co. of N. America v. Allied Crude Veg. Oil, etc., 89 N. J. Super. 518 (Ch. Div. 1965).

In-our view none of the grounds relied on by the trial judge are in any way persuasive on the point that the defendant bank waived federal venue restrictions. Michigan Nat’l Bank v. Superior Court, 23 Cal. App. 3d 1, 99 Cal. Rptr. 823 (Ct. App. 1972); Reaves v. Bank of America, 352 F. Supp. 745 (S. D. Cal. 1973), relied upon by the trial judge, and the other cases cited by plaintiffs involved, circumstances and fact situations considerably stronger and more impressive than that involved in this case.

The trust business conducted by the bank was not related in any way to this suit and at the very most might be considered a limited waiver as to matters concerning such trusts. Buffum v. Chase Nat. Bank, 192 F. 2d 58 (7 Cir. 1951), cert. den. 342 U. S. 944, 72 S. Ct. 558, 96 L. Ed. 702 (1952); Stephen-Leedom Carpet Co. v. Republic Nat’l Bank of Dallas, 25 A. D. 2d 645, 268 N. Y. S. 2d 377 (App. Div. 1966).

In Reaves, supra, only did the original loan transaction out of which the suit arose take place in the district in which the case was brought but the bank maintained a total of 66 branch offices in that district, and the record showed that in one county of the district alone the bank had been sued 338 times and sued as plaintiff 105 times without ever once asserting its venue privilege. Here, the original loan transaction was handled entirely through the bank’s main office in Hudson County and the suit by the bank to enforce payment of the loan was instituted and prosecuted to judgment there. Plaintiffs produced no evidence to show the extent, if any, to which the bank had sued or been sued in Union County. The only proof of the bank’s use of judicial process in Union County was its having a writ of execution issued to the sheriff of said county pursuant to the judgment obtained in Hudson County and the making of a levy and holding of a sale thereunder. We do not deem such limited use of judicial process entailed a waiver or loss of the bank’s right to be sued only in its home county of Hudson.

On August 29, 1974 the Comptroller of the Currency approved the bank’s application to open a branch in Union Township, Union County. This application was pending at the time the present suit was instituted on August 15, 1974. As of the time of filing defendant’s appellate brief (December 20, 1974) the branch office had not been opened nor does it appear that any steps had been taken to do so. Authorization to establish and operate a branch bank is not tantamount to the actual commencement of operations. Although certain rights may attach by virtue of such authorization, the physical act of establishment is most relevant in terms of whether or not a branch bank has been established. Cf. Suburban Trust Co. v. Nat'l Bank of Westfield, 222 F. Supp. 269 (D. N. J. 1963).

Absent physical establishment of a branch bank in Union County, we do not reach the issue of possible waiver through the medium of a branch bank in the county in which the suit is brought. We note merely in passing that some courts accept this as a waiver, Frankford Supply Co., Inc. v. Matteo, 305 F. Supp. 794, 796 (E. D. Pa. 1969), Cent. Bank Nat’l Ass’n v. Superior Court, 30 Cal. App. 3d 962, 106 Cal. Rptr. 912 (D. Ct. App. 1973), while other courts hold branch banking activity does not waive the privilege of being sued only in the county of a bank’s home office. Helco v. First Nat'l City Bank, supra; Leonardi v. Chase Nat. Bank, 81 F. 2d 19 (2 Cir. 1936), cert. den. 298 U. S. 677, 56 S. Ct. 941, 80 L. Ed. 1398 (1936); Buffum, supra. Reaves, supra, found that the combination of branch banking and other local activities relating to the transactions leading to the suit created an implied waiver by the bank.

Plaintiffs further assert that the bank is a wholly owned subsidiary of Pirst Jersey National Corporation, a holding company with various subsidiaries operating throughout New York, Pennsylvania, and New Jersey, including Union County, and that at least one of such subsidiaries has an office in Union County. However, maintenance by a bank of a wholly owned subsidiary corporation in the forum, or vice versa, has been held not to constitute a waiver. Cf. Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F. 2d 798, 800 (5 Cir. 1973); Fisher v. First Nat'l Bank of Omaha, 338 F. Supp. 525 (S. D. Iowa 1972).

Plaintiffs’ complaint alleges that defendants engaged in a conspiracy to obtain control of the Malaker Corporation by fraudulent and illegal acts including the making of false, slanderous and libelous statements concerning plaintiffs, malicious prosecution and abuse of process which resulted in the loss of valuable contracts, profits, and foreign patents and destruction of the corporations’ credit and standing. They seek compensatory as well as punitive damages. In their brief plaintiffs state one of the underlying demands of the suit is the reversal and vacation of the liens placed by the bank upon the real property of the individual plaintiffs in Mountainside, Union County, by virtue of the judgments obtained in Hudson County. Plaintiffs contend this action is therefore an action in rem, a local action, and hence, not subject to the provisions of § 94. This contention is without merit.

In view of all of the foregoing, plaintiffs’ action can not be maintained in Union County. However, the interests of fundamental justice mandate that the action not be dismissed but be transferred to Hudson County for trial and disposition therein. The matter is accordingly remanded to the Law Division for further proceedings not inconsistent with this opinion.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH G. SZIMA, DEFENDANT-APPELLANT.
    Superior Court of New' Jersey Appellate Division
    Argued April 8, 1975
    Decided April 22, 1975.

      Before Judges Halpern, Crahay and Wood.

      Mr. Harold Goldman argued the cause for appellant (Messrs. Goldman, Carlet, Garrison & Bertoni, attorneys; Mr. Goldman of counsel and on the brief).

      Mr. Richard J. Engelhardt, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Richard J. Engelhardt of counsel and on the brief).
   Pee Cueiam.

Defendant was arrested on February 4, 1972 and charged with various gambling and related activities in violation of N. J. S. A. 2A:112-3 and N. J. S. A. 2A:121-3. He was arraigned on said charges in the Municipal Court of the City of Garfield on February 11, 1972.

In January 1974, about 23 months after his arrest, he was served with a state grand jury indictment charging him with bookmaking (N. J. S. A. 2A:112-3), working for a lottery (N. J. S. A. 2A:121-3(a)), maintaining a gambling resort (N. J. S. A. 2A:121-3(c)), and possession of lottery slips (N. J. S. A. 2A:121-3(b)).

In April 1974 he moved to dismiss the indictment on the ground that he was denied a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States. The motion was denied, as was motion for leave to take an interlocutory appeal to this court.

Defendant then went to trial, waiving trial by jury and reserving his constitutional claims. He was convicted on three counts of the indictment and sentenced to concurrent State Prison terms of not less than one year nor more than 15 months. His principal ground of appeal is the asserted violation of his constitutional right to speedy trial.

Surprisingly, although the right to speedy trial is of equal stature with other rights guaranteed by the Constitution, it was only occasionally and sporadically dealt with by the Supreme Court of the United States prior to its decision in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Prior to that decision it was the rule in most jurisdictions that a defendant must make a demand for speedy trial as a prerequisite to a motion to dismiss for failure to accord him that right.

Our court rules provide for the implementation of that right in two situations: delay between indictment and trial, R. 3:25-2, and (that which obtains here) delay between the initial complaint and the return of an indictment by the grand jury. As to the latter, R. 3 :25-3 provides :

If there is unnecessary delay in presenting the charge to a grand jury or in filing an accusation against a defendant who has been held to answer upon a complaint, the Assignment Judge may dismiss the complaint on his or the defendant’s motion.

Here the complaint was not dismissed either upon defendant’s motion or upon that of the assignment judge. Nevertheless, such failure did not constitute a waiver of the protection of the Sixth Amiendment. In Barker v. Wingo, supra, the court said:

The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting that right solely on defendants. A defendant had no duty to bring' himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover * * * society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest. [407 U. S. at 527, 92 S. Ct. at 2190]

The Supreme Court in. Barker laid down a rule placing the primary burden on courts and prosecutors to assure that eases are promptly brought to trial. It prescribed, for consideration of such cases, “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Eour such factors are identified: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U. S. at 530, 92 S. Ct. at 2192.

Applying the ‘^balancing test” in this case we find that the balance is weighted decisively against the State. The delay of nearly two years in the bringing of the indictment was, in the absence of an explanation, grossly inordinate. Defendant did not move for dismissal of the complaint, as he might have done under B. 3:25-3, but we recognize that as a practical matter defendant could hardly ask to be indicted. However, after the return and service upon him of this indictment, he promptly moved for its dismissal.

The State, on the other hand, at no time offered any explanation or reason whatever for the delay and for its failure to move this case with anything approaching reasonable dispatch. The avoidance of such unexplained delay is the primary object of the constitutional guarantee. Although defendant has not demonstrated any specific prejudice to his defense, Barker makes it clear that delay is inherently capable of leading to prejudice, both to defendant and to society.

The State’s failure in this case leaves us no choice but to conclude that, under the Barker v. Wingo tests, there has been an unconstitutional denial to the defendant of his right to speedy trial. The only remedy for that deprivation is dismissal of the indictment. A reduction in sentence will not suffice. Strunk v. United States, 412 U. S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973). Thus we find it unnecessary to consider defendant's contention that the sentence was excessive.

The judgment is reversed and the case remanded with direction that the indictment be dismissed.

      The Sixth Amendment provides:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.”


text:
    FRANK RUSIGNUOLO, PLAINTIFF-RESPONDENT, v. CARMEN A. ORECHIO, COMMISSIONER OF PUBLIC SAFETY OF THE TOWN OF NUTLEY, AND FRANCIS T. BUEL, CHIEF OF POLICE OF THE TOWN OF NUTLEY, DEFENDANTS-APPELLANTS.
    Superior Court of- New Jersey-Appellate Division
    Argued December 2, 1974
    Decided April 22, 1975.

      Before Judges Lora, Handler and Takleton.

      Mr. James M. Piro argued the cause for appellants.

      Mr. Avrom J. Gold argued the cause for respondent (Messrs. Mandelbaum, Mandelbaum & Gold, attorneys).
   Per Curiam.

Plaintiff, Patrolman Prank Rusignuolo, filed a verified complaint seeking to have disciplinary charges made against him by defendant, the director of public safety dí the Town of Nutley, dismissed and any hearing on the charges permanently enjoined. The trial judge ruled in favor of plaintiff in a reported decision. Rusignuolo v. Orechio, 126 N. J. Super. 106 (Ch. Div. 1973).

Plaintiff had been a police officer in the Town of Nutley for approximately eight years. On June 15, 1973 defendant Praneis T. Buel, chief of police, issued a special order to police personnel requiring all members of the police department to have telephones at their residences. This order, which referred to Rule 3 :2.1 of the Rules and Regulations of 1967 of the Nutley Police Department, indicated that a telephone at the residence was necessary so that policemen "are accessible to the call of the Department, and in cases of dire emergency.” Chief Buel then issued a special bulletin to plaintiff advising him that the director of public safety had issued an order regarding the purchasing of a telephone at plaintiff’s residence so that he could be reached in an emergency and be accessible to the Department in time of need. On the same date, the director issued a letter to plaintiff stating that unless he negotiated for a telephone by June 26, 1973, the department would prefer formal charges against him.

Plaintiff did not comply with the orders and as a result, on July 5, 1973, a special order was issued by Chief Buel suspending plaintiff without pay for not complying with the order of June 15, 1973, “until a formal hearing on the matter” could be held. On July 16, 1973 he was reinstated and ordered to report for duty. On July 19, 1973 formal charges against plaintiff were served and a hearing of the matter was scheduled for July 25, 1973. The complaint charged plaintiff with violation of the Nutley Police Department order of June 15, 1973 requiring a home telephone, and also for a violation of the department’s Eules and Eegulations, Chap. VI, Eule 6:15, for failure to pay just debts, in that plaintiff owed $199.41 to Janette Shop. By consent the hearing date was adjourned until August 2, 1973, and prior to that date adjourned until the issues in the matter were resolved in court.

The trial judge determined that the order of June 15, 1973, requiring all members of the police department to have telephones at their residences, is invalid on the ground that it “exceeds the power and authority of the administrative heads of police departments to issue orders in the day-to-day administration of the Department.” The judge considered the order to be “a rule of regulation within the intendment of N. J. S. A. 40:47 — 1, now N. J. S. A. 40A:14-118, [which] must be promulgated by municipal ordinance.” 126 N. J. Super. at 110-111.

The police department of the Town of Nutley is maintained, regulated and controlled by Ordinance 357 adopted on August 7, 1928. It was adopted pursuant to L. 1917, c. 152, Art. XVI, § 1, N. J. S. A. 40:47-1 (superseded by N. J. S. A. 40A:14-118). Under the 1928 ordinance, the director of the Department of Public Safety was expressly given, in § 1, full executive, judicial and administrative control of the police department, its officers and all members of the force. He was given the power to enforce the rules and regulations provided by the Ordinance and the power to promulgate such administrative rules as, in his judgment, may from time to time be proper for the efficient management of the police department. The chief of police was given the power to promulgate orders to the force not inconsistent with any of the orders or rules established by the ordinance or any of the administrative orders made by the director.

The ordinance also contained under § 32 of its General Rules applicable to the police department the following:

Each member of the Police Force shall devote his whole time aud attention to the service of the Department, and is expressly prohibited from following any other calling, or being engaged in any other business. Although certain hours are allotted for the performance of regular tours of duty, all members of the Department are considered to be at all times subject to call for duty, and must act promptly at any time that their services are required.

Additionally, Rule 3 :2.1 of the 1967 Rules and Regulations of the department, which was mentioned in the initial special order, provided that “[pjolice officers shall be always subject to duty even when periodically relieved from regularly scheduled duty.”

We disagree with the conclusion of the court below that the order does not constitute an appropriate or valid exercise of the power in the director and chief of police with respect to the day-to-day administration of the department. It has been recognized that the daily administration of a police department can be delegated to its department head and that such a practice enhances departmental efficiency and is in the public interest. Smith v. Hazlet Tp., 63 N. J. 523, 526-527 (1973); Cf. Jamesburg v. Hubbs, 18 N. J. Super. 5, 11 (App. Div. 1952); In re Gioglio, 104 N. J. Super. 88, 95 (Cty. Ct. 1968).

Although a directive governing the conduct of members of a police department many have general tenor, broad applicability and continuing effect, it does not follow, for that reason alone, that such a directive falls beyond the pale of daily departmental administration. Rather, it is the subject matter of a particular directive which should be determinative of whether it directly governs the daily conduct of departmental business and the every day activities of individual policemen. Thus, if a directive specifies in some detail the manner or method by which policemen are required to approach their daily duties and to discharge their continuing responsibilities, it may be considered as involving daily departmental operations. And, additionally, if the wisdom and practicability of a particular order entails the special knowledge and particularized expertise of the heads of the police department with respect to its proper and efficient management, then that type of directive — be it denominated a rule, regulation or order — is one which relates to the day-to-day administration of the department.

In this case, as noted, the municipal ordinance, by an appropriate rule or regulation of general applicability, does provide that all policemen, regardless of hours designated for the performance of regular scheduled tours of duty, “are considered to be at all times subject to call for duty, and must act promptly at any time that their services are required.” The disputed order, which requires that each policeman have a home telephone, is, in effect, an implementation of the ordinance rule. Fulfilling the purpose of the rule, the order prescribes one way in which an individual policeman may be summoned for duty at any time and be available to respond promptly when his services are required. The necessity for this technique —■ having a home telephone — is one committed to the expert judgment of the director of public safety and the chief of police. So viewed, the order, which was promulgated by, or with the approval of, the director, was one which, under the authority of the ordinance, constituted an. “administrative rule as in [the director’s] judgment may from time to time be proper for the efficient management of the Police Department * * Further, the order or directive of the chief of police, anticipating or coinciding as it did with the identical order of the director, was a proper exercise of his power under the ordinance to promulgate orders consistent with the general rules of the ordinance and the administrative orders of the director.

Accordingly, for these reasons the determination of the court below that the charges based upon the violation of the special order of June 15, 1973 be dismissed is reversed.

The court further ruled that the complaint against plaintiff for failure to pay his just debts must also be dismissed. This charge was brought pursuant to Disciplinary Rule 6:16. The particular rule was not promulgated by the 1928 ordinance or otherwise included in the rules and regulations then adopted for the government of the police department. It was issued with the Rules and Regulations of 1967 of the Nutley Police Department, which were adopted by a resolution dated February 6, 1968 by the board of commissioners of Nutley.

This rule is not one which relates directly to the day-today activities of police officers or involves the routine and regular administration of the department. Consequently, for the reasons essentially set forth in the opinion below on this issue, we hold that this rule was required to have been promulgated by ordinance and that its issuance by resolution was not valid. The judge, therefore, determined correctly that Rule. 6:16 could not be the basis for the particular charge against plaintiff.

Because of the deficiencies as to the charges contained in the order of suspension based upon plaintiff’s asserted infractions of departmental rules, we are satisfied that the judge acted properly in setting aside plaintiff’s suspension and awarding him back pay for the period of the suspension.

Accordingly, the judgment below is reversed in part and affirmed in part.

      Rule 3 :2.1 of the 1967 Rules and Regulations of the department, which was referred to in the initial special order of the chief of police, is substantially identical in this respect to the rule of the ordinance.