author: Gruccio, J. S. C.

text:
    DIANE BANKS AND THOMAS BANKS, HER HUSBAND, PLAINTIFFS, v. WILLIAM J. WALLS AND LLOYD W. GILES, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 27, 1975.

      Mr. Antonio F. Doganiero for plaintiffs.

      Mr. Richard V. Gosentino for defendants Walls and Unsatisfied Claim and Judgment Fund Board (Messrs. Orlando, Yampell, Forgash & Slimm, attorneys).

      Mr. David Mayfield for defendant Giles (Messrs. Martin, Grawshaw and Mayfield, attorneys).
   Gruccio, J. S. C.

This matter is before the court on a motion of the Unsatisfied Claim and Judgment Fund Board (hereinafter Fund) (a) to be relieved as to the obligation to provide and continue as counsel, and (b) to preclude payment of any judgment from the Fund.

On December 25, 1968 an automobile accident occurred which resulted in the present action. Pursuant to N. J. S. A. 39 :6-65 a notice of intention to make claim against the Fund was filed by plaintiffs and receipt of such notice was acknowledged by the Fund in January 1969. A physician’s certificate was duly filed with the Fund indicating the injuries sustained by plaintiffs as well as any future treatment that might be required. This report also revealed the fact that plaintiff was a minor.

The matter was referred by the Fund to an assigned investigator in March 1969. A complete defense investigation was conducted and the findings submitted to the Fund by report on December 9, 1969, approximately one year from the date of the accident and 11 months from the time the Fund received the notice of intention.

Plaintiff, a passenger and minor as of the date of the accident and filing of the complaint, alleges the joint negligence of both vehicle operators in the intersectional collision. The complaint was received and filed on June 21, 1971 by the Glerk of the Superior Court, the summonses were issued and defendants duly served. The codefendant answered through his carrier. No appearance was entered on behalf of the uninsured driver. This was not noted until the matter appeared on the trial list and the judge instructed counsel to notify the Eund to assign counsel.

Upon the assignment of counsel the Fund brings this •motion.. It claims that part of N. J. S. A. 39:6-65 which reads that

* * * a copy of the complaint shall be furnished to the board if an action has theretofore been brought for the enforcement of such claim. Such person shall also notify the board of any action thereafter instituted for the enforcement of such claim within 15 days after the institution thereof and such notice shall be accompanied by a copy of the complaint * * *

has not been complied with.

The Eund contends that this provision, like the notice of intention requirement, is mandatory and failure to satisfy either precludes recovery from the Eund.

The court’s attention is directed to the case of Szczesny v. Vasquez, 71 N. J. Super. 347 (App. Div. 1962), which held that the notice of intention was a mandatory prerequisite in order to obtain access to the fund. Szczesny is easily distinguished from the case at bar. The 90-day period required for filing the notice of intention is akin to a statute of limitations; noncompliance with the time provision allows a dismissal of the case. Here the Eund had due and proper notice. It completely investigated the case, requested medical reports, bills and estimated bills, knew all the witnesses and was aware of the potential value of the case.

Although this provision of the statute before the court has not been interpreted directly by our courts, we are not without guidance from our appellate courts in similar circumstances.

' The instant matter can be compared with the provision in our rules requiring that the summons be issued within ten days of the filing of the complaint. R. 4:4-1. This provision was construed in a matter not unlike the facts in the instant proceeding in McLaughlin v. Bassing, 100 N. J. Super. 67 (App. Div. 1967), dissenting opinion adopted per curiam in 51 N. J. 410 (1968).

In McLaughlin defendant was aware of the accident. Here the Fund was also aware of the accident. In McLaughlin defendant had received plaintiff’s medical reports. Here, also, the Fund received the medical and hospital reports and was aware of the nature and the extent of plaintiff’s injuries. In both cases suit was filed before the statute of limitations had run.

In this case the Fund unilaterally closed its file, knowing that the claim involved a minor. The Fund’s investigation and knowledge of the accident precludes any specific or demonstrable prejudice.

The Fund alleges it did not receive a copy of the complaint, or at least its file so indicates. Plaintiffs’ counsel contends that a copy of the complaint was sent to the Fund on June 18, 1971, and the evidence presented by plaintiffs indicates to me that the Fund was mailed a copy of the complaint.

Assuming, arguendo, the Fund did not receive the complaint, its motion would still be denied in the absence of a clear showing of prejudice. The legislation creating the Fund can be considered remedial social legislation and should be liberally construed “to advance the remedy, due regard being had for the protection of the fund and the realization of the legislative design.” Giacobbe v. Gassert, 29 N. J. 421, at 425 (1959). The provisions of the statute should be liberally read and applied to serve and not to subvert the substantive policy of relief in the given circumstance. Giacobbe v. Gassert, supra.

The Fund is fully protected; it has a thorough and complete investigation by its chosen investigator. Ninety days have elapsed since this court noticed the Fund and it assigned counsel. Full exchange of discovery and medical reports have been completed. This biforcated trial will proceed as to liability, and then damages. Additional time is available to further explore the medical aspects should the Fund so desire.

The court refuses to countenance counsel’s failure to follow up his file by letter or notice to enter default, but this should not penalize this injured plaintiff. Absent clearly demonstrable prejudice, we follow the lead of McLaughlin v. Bassing, supra, and deny the motion by the Fund.


source: Caselaw Access Project

license: Public Domain

text:
    CEDAR PARK CEMETERY, A NON-PROFIT CORPORATION, PLAINTIFF, v. BERNARD HAYES, BOROUGH OF PARAMUS, A MUNICIPAL CORPORATION, CEMETERY BOARD, STATE OF NEW JERSEY, AND ATTORNEY GENERAL, STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 28, 1975.

      Mr. George A. Vaccaro for plaintiff Cedar Park Cemetery (Messrs. Vaccaro, Osborne & Curran, attorneys-; Mr. William Boorstein, of counsel).

      Mr. Joseph 8. DiMaria for defendants Bernard Hayes and Borough of Paramus.

      Mr. Michael E. Goldman, Deputy Attorney General for defendants Cemetery Board and Attorney General {Mr. William F. Hyland, Attorney General of Hew Jersey, attorney).
   Smith, Harvey J. C. C., Temporarily Assigned.

On February 7, 1974 the board of trustees of Cedar Park Cemetery adopted a resolution authorizing construction of a mausoleum on existing cemetery property in the Borough of Paramus. Plans and specifications were prepared for a structure large enough to hold more than 5300 crypts. A sales force was established and immediately launched a full scale "pre-need” sales campaign. Promotional literature was printed and disseminated. Advance sales were solicited through repeated newspaper advertisements. In seven months this nonprofit corporation expended approximately one-quartei million' dollars on these- preliminaries before application was made for a building permit. ' - - ' ° •

Dor more than 30 years the 98.6-acre tract on which the mausoleum is to be erected has been continuously and exclusively used for cemetery purposes. To the north and west of the subject property are other cemeteries, making plaintiffs land part of a 400-acre contiguous cemetery area. To the south and east are public streets, across from which is land designated as residential by the local zoning code. The proposed building is to be set back 1300 feet from the street on its southerly boundary and 760 feet from the street on its easterly boundary. It is an architecturally attractive building, 227 feet wide, 102 feet deep, 38 feet at its highest point. Most of the building would be 32 feet in height. In addition to the actual crypt space, there are provisions for a chapel area, lobby, reception rooms, offices, lounge and bathrooms.

On September 12, 1974 application was made to the municipal building inspector for a permit to construct this mausoleum. N. J. S. A. 8A:3—14(a). The building inspector denied the application, citing as his reason for denial Paramus Ordinance 73—36, Art. 13M, adopted December 12, 1973 which declares a crematory or mausoleum as a prohibited use throughout the borough. On September 25, 1974 the full detailed plans and specifications were presented by the plaintiff to the State Department of Environmental Protection (DEP) for examination and approval before the commencement of building. N. J. S. A. 8A:3-14(b). After denial by the building inspector, Cedar Park instituted this suit to compel the issuance of the necessary building permit. The Attorney General and the New Jersey Cemetery Board were served with notice of the action as parties deemed necessary to protect the public interest. N. J. S. A. 8A:2-3.

Plaintiff, Attorney General and Cemetery Board all assert the position that the New Jersey Cemetery Act of 1971 has divested the local building inspector and the municipality of all authority in connection with mausoleum construction on existing cemetery property and that the State has totally-preempted local regulation in this area. The building inspector and the municipality aver that the Cemetery Act of 1971 not only recognized a need for home rule control hut, in fact, restated the existing law and reaffirmed the fact that local approval is a prerequisite in construction of this type.

To resolve this quandary, we must, for the first time, interpret our relatively recent Cemetery Act and, in particular, the express language of N. J. S. A. 8A :3-14, in the light of its legislative history. See 2A Sutherland Statutory Construction (Sands ed. 1973), § 48.03 at 191; N. J. Ins. Underwriting Ass’n v. Clifford, 112 N. J. Super. 195, 200 (App. Div. 1970).

Since 1875 the New Jersey Legislature has recognized the need to regulate places of interment. The method of cemetery incorporation and management was the focus of initial legislation. L. 1879, c. 162, § 1. No statutory financial control of cemeteries was provided during this early period. Unmaintained cemeteries were presenting local authorities with public health and welfare problems. The Legislature acted, not through penalties to cemetery companies, but by enabling municipalities to condemn unkempt cemeteries and reimburse plot owners through issuance of temporary obligation bonds. L. 1910, c. 238, § 1.

A separate enactment concerning mausoleums was promulgated by the Legislature in 1916. L. 1916, c. 233, §1 et seq. It set forth materials to be used in construction, established a maintenance trust fund and provided tax exempt status when erected in a cemetery. This law remained substantially unchanged, until the most recent Cemetery Act revision, except that tax exemption was not specified in R. S. 26:6-42 to 49.

Subsequent to the original Mausoleum Act the Legislature further regulated cemeteries in 1939 by including trust fund requisites and more explicit language as to management and control. R. S. 8:1-1 et seq. However, broad loopholes in the language made cemeteries prime targets for financial speculation. With no central board to implement the act and set standards, numerous cemeteries ended in financial disaster. George Wash., etc. v. Memorial, etc. Co., 139 N. J. Eq. 280 (Ch. Div. 194=7); cf. Eliasberg, “Does the Knollwood Decision Augur an End to Cemetery Bootstrap Deals?” 27 J. of Taxation 224: (1967). Mausoleums were subject to equally egregious financial practices which often resulted in bankruptcy. Moore v. Fairview Mausoleum Co., 39 N. J. Super. 309 (App. Div. 1956).

Additionally, cemeteries were selling grave markers and monuments while enjoying a tax exempt status. Profits were being realized from such sales until private entrepreneurs successfully petitioned the courts to halt this unfair competition which interfered with their prospective, business advantage. Terwilliger v. Graceland Memorial Park Ass’n, 35 N. J. 259 (1961); Frank v. Cloverleaf Park Cemetery Ass’n, 29 N. J. 193 (1959); Di Cristofaro v. Laurel Grove Memorial Park, 43 N. J. Super. 244 (App. Div. 1957). The courts proscribed these sales because “[a] public cemetery is a public charitable trust and its operation for private profit offends public policy.” Di Cristofaro, supra at 255.

Numerous suits demanding accountings from bankrupt cemetery companies, coupled with many cases indicating private profit motives, plus citizens’ complaints to the Attorney General, culminated in legislative hearings concerning revision of the Cemetery Act. N. J. Senate Committee on Business Affairs, Public Hearings on S. 365 and 429, August 3, 17, 31 1966 (hereinafter hearings). During the five-year period before and after these hearings, eight bills concerning cemeteries died in this Senate committee: S 350 and 376 (1964), S. 365 and 429 (1966), S. 168 and 509 (1967), S. 204 (1968). and S. 568 (1969). Funeral directors and cemetery associations were perennial adversaries with respect to all bills introduced. Neither group had wanted any cemetery controls, but realizing the ineluctable course of events, each had submitted for sponsorship and introduction a bill aimed at economic controls which would preserve its own interests. Testimony reflected crosscharges of exorbitant profit making at the public’s expense. Hearings, supra August 3, 1966; cf. Eliasberg, supra. The long, hard legislative battle finally terminated with the promulgation of the New J ersey Cemetery Act of 1971. N. J. S. A. 8A:1-1 et seq.

N. J. S. A. 8A:3-14 (1974-5 supp.) deals with mausoleum construction and provides in part that

No person shall build, construct or erect, wholly or partially above or below the surface of the ground, a public mausoleum, vault, crypt or other structure intended to hold or contain dead bodies, without obtaining a building permit from the building inspector of the municipality in which it is proposed to build or erect said structure. A denial or failure to issue said permit shall be reviewable in the Superior Court by a proceeding in lieu of prerogative writ. [Emphasis supplied]

This statutory language expressly directs the avenue of appeal from a building inspector’s refusal to the Superior Court. It provides a procedural detour from the normal road followed to the local board of adjustment. See Kingsley v. Wes Outdoor Advertising Co. 55 N. J. 336 (1970); Blasi v. Ehret, 118 N. J. Super. 501 (App. Div. 1972). Specific inclusion of mausoleums as a cemetery use ended the confusion that had resulted under the previous laws wherein mausoleums and cemeteries were controlled under separate titles. R. S. 26 :6-42 to 48; R. S. 8:1-1 et seq.; Moore v. Fairview Mausoleum Co., supra. A municipality may not override such expressly permitted use because its zoning powers are confined to areas delegated, and “[w]ithout express statutory authority a municipal corporation cannot under its police power suppress that which the state by its legislature permits.” 6 McQuillin, Municipal Corporations (3d ed. 1969), § 24.46 at 571. Therefore, Paramus Ordinance 73-36, Art. 13M, is invalid as applied.

We next turn to the classification of the cemetery lands as residential. By designating existing cemetery property as residential, the municipality would label such use as nonconforming. The logical extension of this contention would be that every time a grave were opened, it would be an expansion of a nonconforming use that would require application to the board of adjustment for a variance. Cemetery land is dedicated to all permissible statutory uses once the municipality has exercised its limited discretion and permitted the use within its boundaries. N. J. S. A. 8A:6-5. It cannot subsequently restrict that continued use on such land by redesignating the area under its zoning powers. The only time such redesignation might come into play would be upon abandonment of the lands as a cemetery use. N. J. S. A. 8A:8-1 et seq.

State involvement in mausoleum construction is specified in N. J. S. A. 8A:3-14(b) (1974-75 Supp.), as follows:

1). Pull detailed plans and specifications of said structure shall be presented to the State Department of * * * Environmental Protection for its examination and approval before the commencement of the erection thereof. Before approving the plans and specifications the State Department of ■> * * Environmental Protection shall be satisfied that the mausoleum proposed to be constructed can be operated and maintained without constituting a hazard to public health or safety.
The approval of the plans and specifications by the State Department of * * * Environmental Protection shall be evidenced by a. certificate in writing, properly signed, which certificate with the detailed plans and specifications so approved shall, before work is begun on the structure, be filed in the office of the clerk of the county wherein the structure is to be erected and there remain as a public, record.

Under previous law the State Department of Health reviewed the plans according to statutory specifics regarding exterior construction as well as interior sealing of crypts. R. S. 26 :6-42. But R. S. 26 :6-42 through 48 were specifically repealed by N. J. S. A. 8A.-12-2. Uncontradictod testimony established that mausoleum plans are only referred to the Division of Water Resources in the DEP and the Division only reviews plans in terms of drainage and sewerage problems. The DEP conceives that its only function, as determined from the enabling statutes and administrative guidelines, is to review construction plans to insure that sewerage facilities are commensurate with the size of the building and that materials used in sewerage connections adequately prevent effluent discharge into subterranean streams. Drainage in terms of storm run-off is also checked by the Department. N. J. A. C. 7:9; N. J. S. A. 13:1D-7; N. J. S. A. 58:10-1 et seq.; N. J. S. A. 32:11D-1 et seq.; N. J. S. A. 26:2E-1 et seq. The source statutes are relevant because when the Water Resources Division was created by the legislature the enactment “also provided that this transfer should not affect orders, rules or regulations theretofore adopted by the predecessor agency.” Young v. Somerville Bd. of Health, 61 N. J. 76 (1972); N. J. S. A. 13 :1D-7. The objectives of this Division are to integrate and promote modern sanitary sewerage throughout the State. N. J. A. C. 7:9-1.6.

We are not here dealing with an enabling statute that sets out specific standards upon which DEP discretion may be exercised. Cf. Elizabeth v. Sullivan, 125 N. J. Super. 569 (App. Div. 1973); N. J. S. A. 55:13A-1 et seq. Nowhere in the statutes, rules or regulations is there reference to DEP control of mausoleum exterior construction or guidelines for other health and safety considerations. These aspects of mausoleum construction are consequently outside the DEP’s purview.

The Administrative Code directs that local ordinances more stringent than state directives will take precedence. N. J. A. C. 7:9—10.8. Even in this limited area of review, concurrent jurisdiction exists. See In re Adoption of Regulations, 127 N. J. Super. 295 (App. Div. 1974); Schwerman Trucking v. Dept. Environmental Protection; 125 N. J. Super. 14 (App. Div. 1973).

Keeping in mind that statutes must be construed as a whole with reference to the entire system of ivhich they form a part, and effectuated in accordance with what reasonably seems to be the legislative intention, we must now discuss local control of mausoleum construction. See East Orange v. Livingston Tp., 102 N. J. Super. 512 (Law Div. 1968), aff'd 54 N. J. 96 (1969) ; N. J. Ins. Underwriting Ass’n. v. Clifford, supra; Jantausch v. Verona, 41 N. J. Super. 89, 98 (Law Div. 1956); 2A Sutherland, Statutory Construction (Sands ed. 1973), § 51.01 at 288, § 51.03 at 298.

Under the new Cemetery Act each municipality retains a substantial residuum of power. They may exclude new cemeteries or prevent territorial expansion of cemeteries within municipal boundaries. N. J. S. A. 8A:6-5; see Clifton v. Cresthaven Cemetery Ass’n, Inc., 136 N. J. Eq. 56 (Ch. 1944). The necessary compliance by a cemetery or mausoleum with local regulations is expressed in several sections. N. J. S. A. 8A :3-2; N. J. S. A. 8A :10-4. Significantly, the Legislature left with municipalities the power to enact ordinances pertaining to interment. N. J. S. A. 26 :6-2, 5, 36, 40. With regard to mausoleum construction, application must be made for a building permit; the municipal building inspector issues the building permit, supervises construction and must certify the structure before use. N. J. S. A. 8A :3— 14(a), (c), (d).

Why place this responsibility on the local building inspector? The answer may be found by reference to cognate statutes. Coast Cigarettes Sales v. Long Branch Mayor and Council, 121 N. J. Super. 439 (Law Div. 1972). Appointments of municipal building inspectors and prescription of their duties is a local function. N. J. S. A. 40 :48-1; N. J. S. A. 40:171-58. Pursuant to these statutes Paramus created the office of building inspector, whose ministerial function includes reviewing plans to insure compliance with municipal ordinances and codes as well as any state statutes applicable -to such construction. Paramus Building Code, Ordinance 338, as amenas by Ordinance 563 (1968).

The Legislature has not in the Cemetery Act taken away the duties of the building inspector. Examples 0f legislative preemption of the duties of a building inspector by specific fiat in other instances are illustrated in several areas. Construction of a school building was held outside the local inspector’s ambit because the State Board of Education supervises and controls that construction. N. J. S. A. 18A:18-24, 25; Kaveny v. Montclair Bd. of Com’rs, 69 N. J. Super. 94 (Law Div. 1961), aff’d 71 N. J. Super. 244 (App. Div. 1962). Similarly, the Hotel & Multiple Dwelling Law places building inspection under the State’s aegis. N. J. S. A. 55:13A-1 et seq.-; Metzger, “Statewide Code Enforcement — New Jersey, The Test Case,” 27 Rutg. L. Rev. 659 (1974). Preemption by the Federal Government in construction of postoffices and public housing has been held to preclude local inspection. But in those instances where the federal legislation is totally devoid of references to the locality, provision is made for federal supervision and, therefore, the superior position of the governmental authority is said to control interpretation. 39 U. S. C. A. § 404; Thanet Corp. v. Princeton Tp., 104 N. J. Super. 180, 183 (Law Div. 1969), aff’d 108 N. J. Super. 65 (App. Div. 1969). Therefore, the municipal building inspector’s duty with regard to mausoleums is to enforce all local and state regulations.

State preemption of a specific legislative subject may be inferred when the matter controlled by statute necessitates a uniform state scheme. Rutgers v. Piluso, 60 N. J. 142 (1972); Hill v. Collingswood, 9 N. J. 369 (1952). No exigency due to dearth of burial space has been shown to presently exist in New Jersey, nor was it the demonstrated impetus for the Legislature’s incorporation of mausoleums in the new Cemetery Act. The only necessity for uniformity expressed in the statute is in regard to financing and sewerage. Hearings, supra; N. J. S. A. 8A:1-1 et seq.; see-statement of Gov. William T. Cahill upon-signing S.877 into law (December 1, 1971)

Defendant, Borough of Paramus is here confronted with «'project of considerable dimension. The entire center "portion of the proposed structure consists of chapel and office space covering approximately one-third the total building area. Wings appended on either side house tiers of crypts. While chapel and office may be construed as accessory cemetery uses, such facilities change the basic character of the structure from merely a sepulcher fox human remains to a public accommodation wherein people will be working and visiting on a regular basis.

In its zeal to completely exclude mausoleums the municipality has failed to regulate setback distances, building dimensions and construction standards. DEP “regulates” some aspects of drainage and the structure of the internal crypts. Based upon this meager and cursory review, as evidenced by an almost nonexistent file and staff, DEP is apparently prepared to certify this building for construction. Under these circumstances a holding of complete state preemption would arrogate untrammeled freedom to cemetery companies to build mausoleums without any agency having authority to regulate construction design. Design and engineering of plumbing and electrical systems, as well as the basic foundation and roof structure would be unchecked. Legislative history indicates that cemetery companies must not be left free from such regulation.

Defendant Borough of Paramus will have 30 days to promulgate an ordinance establishing criteria for mausoleum construction in accordance with this opinion. In the event that the borough does not act within the allotted time, a building permit will be ordered forthwith. Jurisdiction is retained.

      The DEP lias completed its examination and is now prepared to issue the necessary certificate of approval required by the statute.


text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. FLETCHER BROWN, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 14, 1975.

      Mr. Neil C. Batelli for plaintiff State of New Jersey.

      Mr. Salim Balady for defendant Fletcher Brown.
   Alterman, J. D. C., Temporarily Assigned.

This is a motion for discovery in a criminal case. Defendant stands indicted in two counts for assault with intent to rob while armed. The victims of the alleged offenses are both juveniles.

Defendant seeks to compel the State to disclose the record of delinquency adjudications against each juvenile or, alternatively, to reveal whether the juveniles are presently on probation and whether juvenile delinquency complaints are now pending against either of them. The prosecution contends that such information is nondiscoverable because of the State’s established policy of maintaining the confidentiality of juvenile proceedings.

The Legislature has provided:

No disposition under this act shall operate to impose any of the civil disabilities ordinarily imposed by virtue of a criminal conviction, nor shall a juvenile be deemed a criminal by reason of such disposition.
The disposition of a case under this act shall not be admissible against the juvenile in any criminal or penal case or proceeding in any other court except for consideration in sentencing. [N. J. S. A. 2A:4-64]

But, relying on Davis v. Alaska, 415 U. S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), defendant asserts that his Sixth Amendment right to confrontation is impinged if he is deprived of any information which is useful in affecting a witness’ credibility.

In Davis v. Alaska the court examined the conflict between the accused’s constitutionally guaranteed right “to be confronted with the witnesses against him” and the state’s interest in protecting the anonymity of juvenile offenders. There the juvenile was a crucial witness in proving defendant’s identification, but the trial court prevented the defense from making inquiry as to the witness’ probation status under a juvenile court adjudication at the time that he originally identified defendant. The court held that in the attendant circumstances “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.” 415 U. S. at 319, 94 S. Ct. at 1113, 39 L. Ed. 2d at 355.

Davis does not hold, however, that past adjudications of delinquency are always admissible to affect a witness’ credibility. Eather, the language of the court clearly distinguishes between the use of juvenile adjudications for the purpose of impeaching the general credibility of a witness and the use of that evidence in cross-examination to reveal the bias, prejudice or ulterior motive of a witness.

There is no authority in this State for permitting prior adjudications of juvenile delinquency to be used for the purpose of impeaching the general credibility of a witness. On the contrary, use of juvenile adjudications for this purpose has been prohibited — either against a defendant in a criminal case, State v. Wolak, 26 N. J. 464, 483 (1958); State v. DePaola, 5 N. J. 1, 17-18 (1950), or against a nonparty witness. State v. Laws, 50 N. J. 159, 178-179 (1967). New Jersey’s policy of maintaining the confidentiality of juvenile proceedings is sustained within present constitutional limits by continuing the distinction made by the court in Davis. Accordingly, the motion for disclosure of the witness’ record of juvenile adjudications is denied.

The alternative motion for disclosure of juvenile records which would reveal whether the witnesses are presently on probation or whether any juvenile complaint is now pending against them, portends a particularized attack on credibility. In this case, as in the Davis case, the juveniles are crucial prosecution witnesses. Defendant is entitled to have the jury assess their testimony carefully and diligently. Defense counsel bears the burden of exposing any bias, prejudice or ulterior motive that affects the reliability of that testimony. This endeavor is severely hampered if the accused is deprived of information which may form the basis of such an attack.

We are committed to the imperative that a trial should serve as a vehicle for the disclosure of the truth. To that end, our rules provide for broad pretrial discovery in criminal cases, and require the prosecution to reveal any relevant record of prior conviction of persons who are known to have relevant evidence or information. R. 3:13-3 (a). The necessity for that disclosure in advance of trial is not diminished because the State’s witness is a juvenile.

The State’s policy of confidentiality of juvenile records is not absolute. While procedural and social records in juvenile matters are required to be safeguarded from indiscriminate public inspection, the court is nevertheless authorized to permit specified persons or agencies to inspect juvenile records upon a showing of good cause. N. J. S. A. 2A A—65; R. 5:10-7. The defendant’s need to prepare an effective cross-examination of a juvenile prosecution witness is a valid reason to disclose otherwise confidential information. Accordingly, for the limited purpose of making a specific attack on the witness’ credibility, the alternative motion is granted.

It is the sense of the statutory mandate and of the rule, however, that any disclosure of juvenile records should be strictly circumscribed so that only information required by the particular circumstances is revealed. Therefore, the court will inspect the records, if any, of the proposed juvenile witnesses, and will advise the State and defendant whether each of the juveniles is presently on probation for a juvenile offense and whether any complaints are now pending against each juvenile in the Juvenile and Domestic Relations Court of this county. See State» in Interest of A. S., 130 N. J. Super. 388 (J. D. R. Ct. 1974).

      The statute continues the long-standing policy that juvenile convictions may not .be used to affect the credibility of a witness. See L. 1903, c. 219, as amended by L. 1908, c. 236 ; 2 C. S. 1910.


text:
    VITO DEL VECCHIO AND LOUIS MUHAW, TRADING AS DEL’S DELIVERY SERVICE, INC., PLAINTIFF, v. OLD RELIABLE FIRE INSURANCE COMPANY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 21, 1975.

      Mr. Eugene D. Molimro for plaintiff.

      Mr. Dennis L. Riley for defendant (Messrs. Riley & Picciano, attorneys).
   Feinberg, J. C. C., Temporarily Assigned.

Vito Del Vecchio and Louis Muhaw, trading as Del’s Delivery Service, Inc., purchased motor truck cargo insurance from defendant Old Reliable Eire Insurance Company, the period of coverage being from June 1, 1971 to June 1, 1972.

On Sunday, January 16, 1972, certain chattels were feloniously removed from plaintiff’s warehouse, the premises having been forcibly entered. On the same day one Frank Masi was involved in an auto accident while driving a commercial vehicle owned by plaintiff. The stolen items were found in Masi’s possession at that time. In addition, one Jaspar Evans gave a statement to police in which he related that he saw Masi at plaintiff’s warehouse on the day of the theft. The fact that the day in question was a Sunday lends significant credence to Evans’ statement, in that the warehouse was closed on Sunday and Evans, who lived adjacent thereto, was able to observe any unusual activity, and that Masi was known to Evans as one of plaintiff’s employees.

There is no dispute as to the fact of Masi’s employment by plaintiff for two years prior to the theft, nor is there any dispute that the stolen goods were found in Masi’s possession or that he thereafter retracted a not guilty plea and pleaded guilty to receiving stolen goods.

Defendant insurance company disclaims liability based on the following portion of the policy:

This policy is hereby extended to cover the risk of theft of an entire shipping package, excluding all pilferage; also excluding conversion, sabotage or other act of dishonest character on the part of the insured or his or their employees and/or agents.

The sole question before this court is whether this exclusionary clause is sufficiently clear and unambiguous to relieve defendant of liability for plaintiff’s loss.

It is plaintiff’s position that the loss is compensable, the exclusionary clause notwithstanding, because the theft occurred on a Sunday when plaintiff’s warehouse was locked and idle, and Masi had no authority, permission or lawful means to enter the premises. Plaintiff contends that in light of the foregoing facts Masi, when he perpetrated the theft, was not an employee within the intendment of the exclusionary clause but a mere trespasser who came on the premises unlawfully and who, thereafter, engaged in the felonious conduct of breaking, entry and larceny. Masi’s Monday-to-Eriday employee status did not give him the right to enter the warehouse at other times, nor did it provide him with a set of keys or permission to enter at will —• for example, the possession of keys would authorize his access to the goods at any time.

Plaintiff therefore alleges that the theft was of the type the insured could reasonably expect to be covered by his policy, i. e., a theft perpetrated by a trespasser gaining forcible, illegal entry, with larcenous intent, after hours, and through such surreptitious means depriving plaintiff of his goods.

Defendant insurance company takes the position that the language of the clause is unambiguous, and since there is no dispute about the fact that Masi was plaintiff’s employee at all times relevant, defendant relies on that fact alone to support its contention that the exclusionary clause is effective to relieve defendant of all liability for plaintiff’s loss.

There are two cardinal rules applicable in the interpretation of insurance contracts. Eirst, ambiguities are resolved in favor of the insured. Bryan Construction Co., Inc. v. Employers’ Surplus Lines Ins. Co., 60 N. J. 375 (1972).

Second, exclusionary clauses are' to be strictly interpreted. Butler v. Bonner & Barnewell, Inc., 56 N. J. 567, 576 (1970); Chicago Ins. Co. v. Security Ins. Co. of Hartford, 111 N. J. Super. 291, 295 (App. Div. 1970). Using these standards for construction, .Old Eeliable must show that plaintiff’s contention as to the meaning of the clause was entirely unreasonable, plaintiff having shown the clause to be susceptible of more than one meaning. As long as plaintiff’s interpretation is reasonable, the exclusionary clause should be inapplicable. Hanover Ins. Group v. Cameron, 122 N. J. Super. 51 (Ch. Div. 1973).

While no New Jersey cases have been found in which exclusionary clauses similar to the one involved in this case have been construed or where the question of employee status on a nonworking day is raised, it is nonetheless clear that the approach of the Supreme Court of this State to defenses to claims on insurance contracts has changed very substantially in' recent years. As the court stated in Harr v. Allstate Ins. Co., 54 N. J. 287 (1969) :

Our expressions have come in a variety of issues and contexts, but all have indicated as tbeir keystone the goal of greater protection to the ordinary policy bolder untutored in the intricacies of insurance. We have realistically faced up to the fact that insurance policies are complex contracts of adhesion, prepared by the insurer, not subject to negotiation. We have stressed, among other things, the aim that average purchasers of insurance are entitled to the broad measure of protection necessary to fulfill their reasonable expectations; that it is the insurer’s burden to obtain, through its representatives, all information pertinent to the risk and the desired coverage before the contract is issued; and that it is likewise its obligation to make policy provisions, especially those relating to coverage, exclusions and vital conditions, plain, clear and prominent to the layman, [at 303]

In construing the clause presently before tbe court guidance is provided by the above-quoted holding of our Supreme Court, as well as by the frequently enunciated and well settled proposition that if the language of a policy will support two meanings, one favorable to the insured and the other favorable to the insurer, that which will sustain coverage will be applied. Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N. J. Super. 29 (App. Div. 1973); Mazzili v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1, 7 (1961). Applicable also is another settled principle, that purchasers of insurance are entitled to “the broad measure of protection necessary to fulfill their reasonable expectations.” In the language of our Supreme Court, “their policies should be construed liberally in their favor to the end that coverage is afforded fio the full extent that any fair interpretation will allow’ ”. Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475, 482 (1961).

While these general guidelines for construction of challenged clauses in insurance policies are clearly imprinted on our case law, it is necessary to look to other jurisdictions for the few cases which deal with the issue presented in the instant case, i. e., if an employee of the insured is guilty of theft from his employer, can the insurer escape liability if the theft occurs when employee is not on the job and employee thefts are specifically excluded from coverage by the terms of the policy.

In Century Indemnity Co. v. Schmick, 351 Mich. 622, 88 N. W. 2d 622 (1958), the Supreme Court of Michigan decided a case wherein an exclusionary clause, similar in every material respect to the one in the case at bar, was held ineffective to relieve the insurance company of liability because the theft was perpetrated by an employee who entered the premises after hours by breaking and entering. The court found that the judicial policy of construing exclusion policies strictly against the insurers is a well-justified one. As the court stated:

* * * This is properly so since the insurer invariably drafts the contract of insurance and is therefore in a position to thoroughly understand its terms. In the event it desired to exclude acts of employees occurring during or after the hours of employment it could have easily said so. Employee can fairly be construed as meaning one who is active in the worlo for which he was employed and for which he was paid to do. [Emphasis supplied]

The court thereupon enunciated the axiomatic principle that insurers have the duty to use language which is clear and understandable to layman, and found that an ordinary layman would not have construed the word "employee” to mean other than during the period when he was acting in the work of the employer and during the time he was being paid for his services.

Erank Masi, in the case at bar, in breaking and entering the premises of his employer, certainly could not be considered to be acting in the work he was employed and paid to do. He was not an employee within the meaning of that term as used in the contract of insurance at the time of the burglary. This is at least a reasonable construction of the insurance contract, and if there is any doubt or ambiguity with reference to this clause of the insurance contract, it must be construed most favorably to the insured. The insurance company having accepted the premium and drafted the contract of insurance cannot say that it intended the language of the insurance contract to mean an employee while working or otherwise.

In Sehon, Stevenson & Co. v. Buckeye Union Ins. Co., 298 F. Supp. 1168 (S. D. W. Va. 1969), the United States District'Court underscored the importance of making clear Avhether “employee” encompasses nonworking as well as working hours. In that case plaintiff’s employees removed property during the early morning hours when plaintiff’s wholesale outlet was closed. However, an endorsement to the policy excluded coverage in the ease of loss caused by “pilferage, appropriation or concealment of any property covered due to any fraudulent, dishonest or criminal act of any employee while working or otherwise. * * *” (Emphasis supplied).

The court found the Schmick case, supra, factually analogous, differing only in the significant detail that the Schmick exclusionary clause was fatally insufficient for want of what rendered the Sehon clause legally unassailable and fully effective to relieve the insurer of liability, i. e., the simple clarifying phrase “while working or otherwise.” The Sehon court found the inclusion of that phrase to be not merely illustrative of the parties’ intent but dispositive thereof, pointing out that without it the position of the parties would be “substantially altered.”

When members of the public purchase policies of insurance they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. Plaintiff in the instant case could reasonably expect his insurance coverage to extend to losses arising out of the forcible breaking and entering of its premises, when said premises were locked, by a trespasser whose presence at such a time and whose entry by such means were manifestations of his felonious intent. Such trespasser’s theft of plaintiff’s chattels under the circumstances just described render his act the stereotypical possibility against which the protection of insurance is sought. And this is so regardless of the perpetrator’s employee relationship to the victim during the normal workday when, had he tried to appropriate the chattels in question, his act would likely be classified as pilferage, conversion, sabotage or other act of dishonest character, and would unquestionably be excluded from coverage by the clear import of the exclusionary clause when hypothetically applied to dishonest acts of employees occurring during working hours. But since the clause is not so clear about its applicability to times other than the normal work day, the ambiguity must be resolved in favor of the insured.

It is the conclusion of this court, therefore, that the exclusionary clause did not relieve defendant insurance company of liability herein. Judgment is therefore entered in favor of plaintiff in the sum of $3871.23, the loss as stipulated, less $500 deductible under the policy, or $3371.23, together with interest from March 15, 1973, the date of the filing of the answer by defendant insurance company, and costs of suit.


author: Cohen, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOHN J. AMANIERA, DEFENDANT.
    Middlesex County Court Law Division
    December 18, 1974.

      Mr. Ronald G. Kercado, Assistant Prosecutor, for the State (Mr. C. Judson Hamlin, Acting Prosecutor of Middlesex County, attorney).

      Mr. Jeffrey Weingard, of the New York Bar, for defendant.
   Cohen, J. C. C.

Defendant was indicted for causing death by auto. He moves for suppression of blood alcohol test results on two theses: first, that the test arose out of a confidential physician-patient relationship, and second, that the results were the fruits of an unlawful seizure of his blood in violation of the Fourth Amendment.

I find the following facts: On August 13, 1973 defendant was involved as a driver in an automobile accident. A passenger in defendant’s vehicle was killed and another was seriously injured. Police officers on the scene found defendant uncooperative, bellicose, unrestrained and abusive. His speech was slurred. He had a strong odor of alcoholic beverage on his breath. He was bleeding from head cuts. Although elements of his behavior may have been attributable to his recent experience and its tragic consequences, the investigating police officers certainly had probable cause to believe, and did believe, that defendant had been driving while intoxicated or impaired. N. J. S. A. 39 :4-50. Defendant was transported to John F. Kennedy Hospital for the purpose of medical attention. He arrived there at about 11 p.m. He was seen in the emergency room, and X-rays were taken.

Because defendant was bleeding from his left ear, Dr. Friedman, a neurosurgeon, was called in. He saw defendant shortly after 2 a.m. Although skull X-rays were negative, Dr. Friedman felt unable to rule out serious injury. Defendant was alert and cooperative, but his attention wandered and his physical coordination caused concern. Dr. Friedman smelled alcoholic beverage on defendant’s breath and ascertained from him that he had been drinking. For diagnostic purposes, therefore, he ordered blood drawn for a blood alcohol test. He wished to determine if defendant’s conduct arose from trauma or alcohol in order to establish a baseline from which to measure defendant’s future medical course.

The doctor’s order was transmitted by a nurse to the hospital laboratory technician who arrived some 15 minutes later and drew a sample of defendant’s blood. The technician was trained and experienced in the procedure and went about it in a reasonable and regular way, without opposition by defendant. No real issue exists as to the medical acceptability of the means employed in the hospital. There is some question as to whether, how, when and by whom a written consent was obtained from defendant. The testimony on this subject was distressingly disparate. I pass the problem, however, because actual consent is unnecessary, State v. Macuk, 57 N. J. 1 (1970), and because the evidence, viewed in its best light, fails to show that defendant intelligently waived any existing right to confidentiality or any existing Fourth Amendment objection to the seizure of his blood.

At some time soon after Dr. Friedman ordered a blood alcohol test police officers appeared and requested him to perform the same test for law enforcement purposes. Dr. Friedman told them he already had ordered it. The credible evidence does not show whether, at that time, blood had already been drawn by the technician. Plainly, however, defendant was in Dr. Friedman’s care and was still in the course of emergency room treatment. He was released at 4:15 a.m. into the custody of police officers who placed him under arrest for driving while intoxicated, disregarding a red traffic light, and causing death by auto.

Nothing occurred between 2 and 4:15 a.m. that generated the arrest. An Edison officer had been on duty near the emergency room continuously since 11 p.m. in the event defendant’s difficult conduct again arose. The blood test results were not completed for some days, at which time they were released to the police under an ex parte order entered by the municipal court without notice or formal application. The authority for this order is not at all clear. The State and defendant agree it has no effect in these proceedings.

Regarding the Fourth Amendment argument, Schmerber v. California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. ed. 2d. 908 (1966), authorizes the warrantless seizure of a blood sample for testing for alcohol content if the seizure is pursuant to a lawful arrest, is based upon probable cause to believe the person was driving while intoxicated, and is done in a medically acceptable manner. The latter two elements of the Schmerber test were plainly present here. Defendant argues, however, that the taking of blood was not pursuant to a lawful arrest and therefore must be held unlawful. There are three answers.

First, the seizure of blood did not generate or underpin the arrest. It occurred about two hours before the arrest, which was delayed because defendant was undergoing emergency hospital treatment. The timing was totally fortuitous. In these circumstances the seizure was substantially contemporaneous with and pursuant to the arrest, which awaited only the end of needed medical attention.

Second, the lawfulness of the seizure does not depend on the fact of an arrest or upon its timing. It is sufficient that probable cause exists. The California courts have held that Schmerber condemns a warrantless blood seizure absent an arrest, despite the existence of probable cause. People v. Superior Court of Kern County, 100 Cal. Rptr. 281, 493 P. 2d 1145 (Sup. Ct. 1972). The New Jersey courts have not. State v. Gillespie, 100 N. J. Super. 71 (App. Div. 1968); State v. Tolbert, 100 N. J. Super. 350 (Law Div. 1968). Rather, emergency circumstances, arising out of the potential loss of evidence, coupled with medically acceptable means, probable cause and a not unreasonable period of confinement, are sufficient. California’s reading of Schmerber would require the officers here to invade the emergency treatment area to announce an arrest to defendant before requesting the blood alcohol test. It is not clear they could have. Common sense does not tell why they should have. Defendant had no choices to make, turning on the fact or absence of such an announcement. The law does not require police officers to do pointless things. Defendant was effectively immobilized in the hospital treatment facilities. The police were waiting outside the door for completion of treatment. Absence of formal arrest should have no legal significance in such circumstances. 0

Third, the order to draw blood was given by Dr. Friedman before the officers made their request and was carried out pursuant to his order, not because of the officers’ request. The doctor’s order was medically motivated. It followed his decision to test for diagnostic purposes. He was not acting for the police at the time but was, rather, acting independently of the contemporaneous official investigation. His order and its execution was therefore purely private action and not subject to Fourth Amendment restrictions. State v. Scrotsky, 39 N. J. 410 (1963); State v. Frank, 112 N. J. Super. 592 (App. Div. 1971).

Defendant also argues that the test results are privileged as arising out of a physician-patient relationship. I have heard this matter, since the evidence is inescapably intertwined with the Fourth Amendment motion, and have passed the question whether it is appropriately considered at this time.

N. J. S. A. 2A:84A-22.1 et seq. creates a statutory privilege against disclosure of confidential communications between a physician and his patient, including information obtained by an examination of the patient, where reasonably believed to be necessary or helpful to diagnosis or treatment. On a definitional level, the blood test results plainly fall within the privilege. They arose out of oral communications at a time when Dr. Eriedman was examining defendant for diagnostic purposes and were generated by the doctor’s desire to gain further information for those purposes. Defendant did not consent to voluntary disclosure.

Before the privilege was enacted our Supreme Court said that confidential material arising out of the physician-patient relationship ought to be disclosed only where the public interest requires it. Hague v. Williams, 37 N. J. 328 (1962). In the statute creating the privilege the Legislature listed five specific exceptions. Those exceptions, it seems to me, include all those situations in which the Legislature thought the public interest required disclosure. None of them apply here.

The State argues that the strong public policy against drunken driving means the Legislature could not have meant to exclude blood alcohol tests in these circumstances. The answer is that the privilege applies to criminal prosecutions and the public policy is no stronger in drunken driving cases than in murder, rape, kidnapping or other grave prosecutions to which the privilege plainly applies. Compare D. v. D., 108 N. J. Super. 149 (Ch. Div. 1969).

The State further argues that I should not apply the privilege because the police were standing by, prevented from acting only by reason of ongoing medical attention. The answer is that application of the privilege depends on the relationship of defendant to his doctor and not upon police propinquity. Compare Doss v. State, 256 Ind. 174, 267 N. E. 2d 385 (Sup. Ct. 1971), where the presence of a police officer during a medical procedure with the patient’s knowledge was held to waive confidentiality.

The issue presented here was before the Indiana Supreme Court in Alder v. State, 239 Ind. 68, 154 N. E. 2d 716 (1955), a death-by-auto ease in which defendant was brought unconscious to the hospital. Blood was drawn for typing purposes for a transfusion. Part of the drawn blood was given to a policeman who had requested blood to test for alcohol. It was then examined by a police laboratory. The court held that a privilege statute, not importantly different from ours, barred use of the blood alcohol test results.

One may well question the social value of a statute that bars use of otherwise truthful evidence to preserve the sanctity of an emergency room relationship between two persons unknown to each other five minutes before. See, generally, 8 Wigmore, Evidence, § 2380 et seq. (1961). One may sensibly question the utility of a privilege that could persuade police officers to withhold or interrupt medical treatment to perform valid law enforcement testing. But that is for the Legislature to wrestle with. However narrowly I may wish to construe the privilege, it plainly bars the evidence in question here.

Defendant’s motion is granted.


author: Meredith, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. WILLIAM RYAN, DEFENDANT.
    Somerset County Court Law Division
    January 16, 1975.

      Mr. Joseph Fisch, attorney for defendant.

      Mr. Gregory G. Schultz, Deputy Attorney General, and Mr. Nicholas L. Bissell, Jr., Assistant Somerset County Prosecutor, for plaintiff (Mr. William F. Hyland, Attorney General of New Jersey, and Mr. Stephen B. Champi, Somerset County Prosecutor, attorneys).

      Mr. George A. Mauro, Jr., Deputy County Counsel, for the County of Somerset (Mr. William E. Ozzard, Somerset County Counsel, attorney).

      Mr. Marie S. Anderson, for the Township of Branchburg (Bowlby, Woolson & Gulerl, attorneys).
   Meredith, J. S. C.,

Temporarily Assigned. Defendant in this matter is charged with a violation of N. J. S. A, 39: 4-50(a) (driving while under the influence of alcohol). It has previously been determined that defendant, William Ryan, is indigent and therefore counsel has already been assigned at the municipal court level.

The matter now comes before this court by way of a motion for leave to appeal from an interlocutory order of the Branchburg Municipal Court pursuant to R. 3:24. The municipal court entered an order denying defendant’s motion that an expert witness be provided for the indigent defendant without cost. On November 25, 1974, this court granted the motion for leave to appeal. Pursuant to that, briefs were filed by the parties as to the merits of the appeal. An additional hearing on the merits was conducted on December 6, 1974.

In essence, the issues on this appeal fall into two levels. First, should an expert be supplied without cost to indigent defendants in drunken driving cases. If so, should there be the necessity of some showing of cause by the particular defendant under the facts of his case. Secondly, if an expert is supplied, which political unit should bear the expense of supplying such an expert.

There is only one reported case which directly deals with these issues in regard to “drunk driving cases.” That decision is State v. Lippincott, 124 N. J. Super. 498 (Mun. Ct. 1973). In that case the Municipal Court of Trenton held that an indigent defendant in a prosecution for driving while intoxicated is entitled to appointment at public expense of an expert witness on the effects of alcohol and that the municipal court has the power to make such an assignment. Also, the court determined that the county is the proper political unit to bear the expense of such an appointment. Needless to say, this court does not necessarily feel bound by the holdings of the municipal court in Lippincott. Furthermore, there are additional questions in this case which warrant the attention of the court.

A prosecution for drunken driving is in the nature of a quasi-criminal proceeding and must be so conducted as to respect and safeguard the basic rights normally accorded one accused of a criminal offense. State v. Lanish, 103 N. J. Super. 441, 443 (App. Div. 1968) aff’d o. b., 54 N. J. 93 (1969); State v. Guerrido, 60 N. J. Super. 505, 510 (App. Div. 1960); State v. Brezina, 45 N. J. Super. 596, 608 (Cty. Ct. 1957). For a first conviction under N. J. S. A. 39:4-50(a) there is a mandatory forfeiture of driving privileges for two years, in addition to a fine of not less than $200 nor more than $500 and/or 30 days to three months in jail. A subsequent violation brings a mandatory imprisonment' of three months and a forfeiture of driving privileges for ten years. Obviously, the punishments under N. J. S. A. 39:4-50(a) are serious, especially when viewed in the context of our mobile society which frequently makes it necessary for an individual to drive in order to reach his place of employment or merely to carry on the everyday routines of life. It is this seriousness of penalty which has fostered the rule that an indigent defendant in a drunken driving case must have counsel assigned. This necessity for counsel has been established by our Supreme Court in Rodriguez v. Rosenblatt, 58 N. J. 281 (1971) :

The practicalities may necessitate the omission of a universal rule for the assignment of counsel to all indigent defendants and such omission may be tolerable in the multitude of petty municipal court cases which do not result in actual imprisonment or in other serious consequences such as the substantial loss of driving privileges. [At 295].

Defendant’s right to have counsel assigned is not contested here, for it appears clear that such a right exists. In view of this, the next area of inquiry must be what additional services, if any, are encompassed in the assignment of counsel.

Some insight into this question can be gained from State v. Horton, 34 N. J. 518 (1961). Although Horton is a murder case and deals with a constitutional right to counsel, the following language from the case can be helpful here:

Customarily, and we think properly so, the reasonable costs of necessary items such as experts, whether witnesses or not, medical examinations, scientific tests, photographs, depositions and transcripts, and in essential circumstances, professional investigation, have been ordered paid from public funds by trial courts. The constitutional obligation to furnish counsel to an indigent can sensibly only be construed to include as well that which is necessary to proper defense in addition to the time and professional efforts of an attorney and we have no doubt of the inherent power of a court to require such to be provided at public expense. [At 534].

State v. Rush, 46 N. J. 399 (1966) built upon the base established in State v. Horton, supra, and held that an assigned counsel for an indigent in a non-murder case was entitled to reasonable counsel fees and reimbursement for certain out-of-pocket expenses which constituted costs of investigation for the defense. The court apparently based its decision upon what it viewed as “the obligation of the State to provide the indigent with the means for an appropriate defense * * 46 N. J. at 416.

Additionally, the Supreme Court has recognized in other cases the necessity of retaining an expert for an indigent defendant at the public’s expense where the facts warranted such an appointment. In State v. Williams, 46 N. J. 427 (1966), which was a prosecution for entering with intent to steal, the court.recognized the authority to retain a toxicologist at the expense of the county for an indigent defendant. Also, in State v. Green, 55 N. J. 13 (1969), which dealt with the forging of a check, the court held that where the pivotal fact was whether the defendant had signed the check, the trial court should have appointed a handwriting expert at no cost to the indigent defendant.

Furthermore, the legislation which established the Public Defender’s Office in 1967 also recognized the obligation to provide services in addition to merely an attorney. In pertinent part N. J. S. A. 2A:158A-5 reads: “* * * All necessary services and facilities of representation (including investigation and other preparation) shall be provided in every case

In view of this background, it seems clear to the court that the effective assignment of counsel means more than just providing an indigent defendant with an attorney. It also means providing the law}rer with the appropriate tools and services that he needs to carry on his defense. Therefore, in a prosecution for driving while intoxicated, an indigent defendant may be entitled to the appointment at public expense of an expert witness.

In reaching this conclusion, this court is in agreement with State v. Lippincott, supra. At this point, however, there is a factual divergence between Lippincott and the present case. In Lippincott it was "undisputed by any of the parties that there is the need for an expert witness to adequately protect defendant’s rights.” 124 N. J. Super. at 501. In the present ease, on the other hand, there is considerable disagreement as to the necessity of the appointment of au expert.

Defendant contends that an expert is necessary in all drunken driving cases. Also, specifically, defendant maintains that an expert is needed here to testify as to consumption, ingestion and absorption rates of alcohol upon the human body; the condition of the breathalyzer and conduct of the breath test, and any appropriate defenses that might be raised. Defendant argues that since evidence in a prosecution under N. J. S. A. 39:4-50(a) is technical in nature, the assistance of an expert witness is a necessity. Reliance is placed upon In re Gannon, 123 N. J. Super. 104 (Cty. Ct. 1973).

Gannon is a case in which this court held that in a commitment proceeding, due process includes the right of an indigent to have an independent psychiatric examination. A commitment proceeding is substantially different than a drunken driving ease. In a commitment hearing, there is, bjr necessity, expert testimony and prior certification by the State’s expert that the defendant is insane. The court finds that the proofs presented by the State at a drunken driving ease may be significantly different than those adduced at a commitment proceeding. Therefore, the court feels Gannon is distinguishable from the present situation and is not supportive of the contention that the appointment of an expert witness to an indigent defendant is a necessity in all drunken driving cases.

The State of New Jersey, the County of Somerset and the Township of Branchburg disagree with the necessity of an expert in all drunken driving cases. Their position is generally that there must be some appropriate showing to warrant the appointment of an expert at public expense. The court is in agreement that an expert is not necessary for every drunken driving case and that some circumstances must be established to show that the defendant is entitled to an expert under the facts of the particular case. . In determining what are appropriate circumstances, it would be beneficial to survey generally the approaches used by our sister states and the federal jurisdictions in deciding when experts are to be supplied to indigent defendants in criminal cases.

Many of our sister states have established, by statute or by ease law, the practice of supplying services, such as expert witnesses and investigative aids, to indigent defendants in criminal prosecutions. This practice, however, is not an unbridled one in which a defendant receives everything that he might request. Rather, there must be circumstances in the case which warrant the granting of the defendant’s request; namely, those circumstances must be that the request furnishes assistance which is reasonably necessary for the indigent’s defense.' The Iowa Supreme Court in State v. Campbell, 215 N. W. 2d 227 (1974) made this position clear when it said:

If what an indigent requests is reasonably necessary for his defense, he should not be denied access to it because he is without funds. But the courts need not furnish everything a defendant demands, no matter how unimportant or frivolous it may be. [At 229].

Other state courts have also consistently held that in order for an indigent defendant to receive services at the public expense, there must be a showing that the services are necessary in presenting an adequate defense. People v. Clay, 19 Ill. App. 3d 296, 311 N. E. 2d 384, 386 (App. Ct. 1974); State v. Glass, 283 So. 2d 696, 697 (La. Sup. Ct. 1973); State v. Frazier, 85 N. M. 545, 514 P. 2d 302, 304 (Ct. App. 1973); Collins v. State, 14 Md. App. 674, 288 A. 2d 221, 224 (Ct. Spec. App. 1972); People v. Glover, 49 Ill. 2d 78, 273 N. E. 2d 367, 370 (Sup. Ct. 1971); Gaither v. State, 13 Md. App. 245, 282 A. 2d 535, 536 (Ct. Spec. App. 1971); State v. Dillon, 93 Idaho 698, 471 P. 2d 553, 559-560 (Sup. Ct. 1970). In addition, what is necessary for an adequate defense is within the discretion of the court and must be decided upon the facts and circumstances of each case. State v. Campbell, 210 Kan. 265, 500 P. 2d 21, 29 (Sup. Ct. 1972); Dolan v. People, 168 Colo. 19, 449 P. 2d 828, 836 (Sup. Ct. 1969); State v. Taylor, 202 Kan. 202, 447 P. 2d 806, 809 (Sup. Ct. 1968).

In giving indigent defendants services other than counsel, the federal courts are controlled by 18 U. S. C. A. §3006A(e):

Counsel for a defendant who is financially unable to obtain investigate, expert, or other services necessary to an adequate defense in his case may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant.

The above section not only establishes the right of an indigent defendant to receive services other than counsel, but it also dictates the circumstances under which these services are to be provided. In essence, the statute establishes a two-prong test:

The test to be applied in determining whether the court should provide such service consists of two factors: whether the defendant is financially unable to obtain the required service himself, and whether the service is necessary to the preparation and presentation of an adequate defense.” [United States v. Chavis, 155 U. S. App. D. C. 190, 476 F. 2d 1137, 1143 (D. C. Cir. 1973)].

The statute does not authorize "a mere fishing expedition,” United States v. Schultz, 431 F. 2d 907, 911 (8 Cir. 1970), but rather tries to put an indigent defendant as nearly as possible on a par with nonindigents and to provide an indigent with the same services that a defendant having independent financial means would employ. United States v. Schappel, 144 U. S. App. D. C. 240, 445 F. 2d 716, 721 (D. C. Cir. 1971); United States v. Bass, 477 F. 2d 723, 724 (9 Cir. 1973); United States v. Theriault, 440 F. 2d 713, 717 (5 Cir. 1971); United States v. Sanders, 459 F. 2d 1001, 1002 (9 Cir. 1972).

After this survey of other state and federal cases, it is clear that there must be some showing before expert services are supplied to an indigent defendant. The circumstances which must be presented to the court have to indicate that the requested services are necessary for an adequate defense. Also, there must, of course, be an adequate determination that the defendant is, in fact, indigent.

These standards seem to be in concert with the holdings in State v. Horton, supra; State v. Rush, supra; State v. Williams, supra; and State v. Green, supra. Therefore, this court holds that in order for an indigent to receive expert services without cost, the defendant must show that the requested services are necessary for an adequate defense.

Specifically, now, the inquiry must be when is the granting of expert services to an indigent defendant in a drunken driving case necessary for an adequate defense. Needless to say this determination can only be made in reference to the many particular facts and circumstances of each case. The court feels, however, that there are certain general questions which may be helpful in determining whether an expert is necessary in the particular drunken driving case: (1) Whether the actual reading from the chemical or breath test presents a valid question as to whether the alcohol level might have been significantly lower in view of the time span; (2) Whether there is reasonable question as to the operation of the machine or the qualifications of the operator; (3) Whether there are observed symptoms which are inconsistent with the test results; (4) Whether there are any other tests taken after the defendant’s immediate release from police which might prove evidentiary; and (5) Whether there are any unusual medical problems of the defendant which might affect the test results.

In determining whether the present case necessitates supplying Mr. Ryan with an expert, the court will apply the above questions to the factual representations of this case. There is a breathalyzer reading of .26 and a time span of less than an hour between the taking of the test and the last drinking. By any standards a reading of .26 must be considered high. That reading is approximately .10 points above the level that gives rise to the presumption of being under the influence of alcohol. As the court discussed earlier, part of the purpose behind supplying experts to indigent defendants is to put the indigent on a par with the defendant who is able to pay for his own collateral services. The court strongly doubts that a nonindigent defendant would hire an expert solely to argue that a .26 reading could reasonably be so much lower as to negate the presumption that is raised by that reading without the existence of unusual circumstances. Therefore, the court holds that in reference to the breathalyzer reading defendant has not shown that an expert is necessary for an adequate defense.

Defendant contends that an expert is needed to testify as to the condition of the breathalyzer and the conduct of the test. This squarely comes within the second of the above five questions. Although defendant has made this request, ho has presented no circumstances or facts that give rise to even a slight question as to the administration of the breathalyzer test or the condition of the machine. Absent such a presentation, the court holds that there is no showing that an expert is necessary in relation to the breathalyzer test or machine.

Erom the facts of this case, there is no evidence that indicates the applicability of the last three of five general questions posed in determining whether an expert is necessary. Therefore, the court feels that the defendant has not adequately shown that he is entitled to the appointment of an expert in this case. His arguments have been general and they have lacked the specifics which would enable a court to reasonably conclude that the requested expert is needed. Thus, he has failed to demonstrate that an expert witness is, in fact, necessary for an adequate defense and, therefore, he has not made the threshold showing that is required before an expert can be appointed to an indigent defendant at public expense.

The court feels that it is not necessary in this case to deal directly with the issue of who should bear the cost of supplying an expert to an indigent, since no expert is being supplied in this instance. The court does feel, however, that it is appropriate to cite with agreement the holdings of State v. Rush, supra and State v. Lippincott, supra which state that the county is the political unit which should bear the expense of prosecution. •

The order of the municipal court denying defendant’s motion that an expert witness be provided to him without cost is hereby affirmed.