text:
    PETITION OF AMERICAN TELEPHONE & TELEGRAPH COMPANY OF NEW JERSEY FOR THE RIGHT TO EXERCISE THE POWER OF EMINENT DOMAIN. AMERICAN TELEPHONE & TELEGRAPH COMPANY OF NEW JERSEY, PETITIONER-APPELLANT, AND SADIE P. RANZENHOFER, ADELE A. ANKIEWICZ, ALFRED OLEJARZ AND DOLLY M. SOLOMON, A/K/A DOLLY SOLOMON MEYERS, OBJECTORS-RESPONDENTS, AND THE BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 3, 1973
    Decided May 7, 1974.

      Before Judges Handler, Meanor and Hole.

      Mr. Howard Rosen argued the cause for petitioner-appellant (Messrs. Rosen and Weiss, attorneys; Mr. Sidney D. Weiss, of counsel; Mr. Walter G. Reinhard on the brief).

      Mr. Theodore Meth argued the cause for objectors-respondents (Messrs. Meth, Wood, Neff & Cooper, attorneys; Mr. Robert M. Wood, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey filed a statement in lieu of a brief on behalf of the respondent Board of Public Utility Commissioners (Mr. Joseph W. Ferraro, Jr., Deputy Attorney General of counsel).
   The opinion of the court was delivered by

Handler, J. A. D.

The Board of Public Utility Commissioners dismissed the petition of American Telephone & Telegraph Company of New Jersey seeking to exercise the power of eminent domain pursuant to N. J. S. A. 48:3-17.6 et seq. and. N. J. S. A. 48:17 — 9.1. The interest sought to be condemned was an easement for a right-of-way for underground communications facilities over lands owned by the individual respondents located in the Township of Jefferson, Morris County.

The decision and order of the Board were based substantially upon the reasons and recommendations of the hearing examiner. The examiner concluded that petitioner had committed a willful trespass, in direct violation of N. J. 8. A. 48:3-17.7. The examiner’s report also indicated that the Board lacked power to authorize condemnation because payment had not been made in advance of the taking of the property. The Board, in adopting this report, was of the further opinion that petitioner had “expropriated” the property and that the property owners had not acquiesced in petitioner’s use of their property. It also rejected the argument that “extenuating circumstances” should enable petitioner to now exercise the right to institute condemnation proceedings because petitioner was at fault for creating such circumstances. It further disagreed with petitioner’s contention that barring condemnation would result in “drastic inequities” and would bo detrimental to the public interest because it would threaten the suspension of an important public work.

Essentially these are the facts. Petitioner was responsible for the acquisition and construction of the New Jersey segment of an underground coaxial cable which runs from Boston to Miami and which interconnects all of the major cities on the east coast and through them the remainder of the nation. The cable carries long distance telephonic communications, private line services for major business concerns, and numerous critical services for the Federal Government. It was described in testimony as “a vital link in the long distance message network and * * * one of the backbone ■facilities, which makes up the military communications network along the east coast.”

Petitioner followed its usual practice to acquire easements. It took an aerial photograph of the proposed route and transposed land ownership information from the local tax maps and lists. This showed that the land in question was owned by a Walter E. Dunn. Negotiations were conducted and an easement of about 3,700 feet was purchased from Dunn over what was presumed to be his property. Petitioner cleared the easement area in July 1968 and began preparations for laying the cable.

On November 12, 1968 petitioner was informed by the township assessor that it had made an error as to ownership. Petitioner then ascertained the names of the true owners who were immediately notified and a meeting was arranged to view the property and discuss the damages. At the time this error was discovered the work of burying the cable was not quite finished. This work, which entailed some dynamiting, was completed during the early meetings of the parties. It is clear that petitioner concluded this job of laying the cable with the expectation that the owners would be fully compensated through the negotiation of a successful settlement.

The first meeting of the parties was on November 26, 1968. Erom then until September 1971 these negotiations continued. Petitioner made numerous offers which were rejected by respondents. When it became apparent that the efforts to negotiate a settlement were futile, the utility filed its petition.

The power of eminent domain is the power to “appropriate and control [private] property for the public benefit as the public safety, necessity, convenience, or welfare” requires. Valentine v. Lamont, 13 N. J. 569, 575 (1953), cert. den. 347 U. S. 966, 74 S. Ct. 776, 98 L. Ed. 1108 (1954); see also, e. g., Bergen County Sewer Auth. v. Little Ferry, 5 N. J. 548, 552 (1950), cert. den. 344 U. S. 865, 73 S. Ct. 105, 97 L. Ed. 670 (1952). The Constitution and the statutes of the State of New Jersey recognize the power of eminent domain in both political subdivisions of the . State and in private corporations and individuals. N. J. Const. (1947), Art. 1, 20; Art. IV, § VI, ¶ 3; N. J. S. A. 20:3-1 el seq.; N. J. S. A. 48:3-17.6 el seq.; N. J. S. A. 48 :17-9.1.

It has been held that where the right of eminent domain is exercised in favor of an individual or private corporation, compensation should precede the taking. Loweree v. Newark, 38 N. J. L. 151, 154 (Sup. Ct. 1875); Redman v. Philadelphia, Marlton and Medford R. R. Co., 33 N. J. Eq. 165, 168 (Ch. 1880). In connection with the power of eminent domain confirmed in utilities, this obligation of prepayment before a taking is fixed by statute. N. J. S. A. 20:3-33 provides:

Individuals and private corporations vested with the authority of condemnation may, upon the filing of the report of the commissioners and upon payment, to the parties entitled thereto or into court, of the amount awarded as provided in this act, take possession of the land * * * for the purposes for which the same was authorized to be taken.

Without denigrating the force o.f this mandate, the requirement of prepayment has not been inflexibly or rigidly imposed in all cases. 3 Nichols, The Law of Eminent Domain (3d ed. 1965), § 8.713 at 226; 27 Am. Jur. 2d, Eminent Domain § 494 (1966,).

In addition, N. J. S. A. 48:3-17.7 provides:

The power of condemnation shall not be used or enforced by any such public utility unless the necessary land or other porperty or any interest therein as stated in this chapter, cannot be acquired from the owner by reason of disagreement as to the price * * *’. [T]he power of condemnation shall not be used or enforced by any public utility until and unless such utility shall have applied to the Board of Public Utility Commissioners upon the petition of such utility and the board, after due notice, including notice to the owner or owners of the land or other property * * * and public hearing, shall have found that the land or other property or interest therein desired is reasonably necessary for the service, accommodation, convenience or safety of the public, and that the taking of such land or other property or interest therein is not incompatible with the public interest and would not unduly injure the owners of private property.

The limitations contained in these enactments are important procedural safeguards which should, of course, be followed. Manda v. Orange, 75 N. J. L. 251 (Sup. Ct. 1907), aff’d 78 N. J. L. 630 (E. & A. 1910), aff'd 82 N. J. L. 686 (E. & A. 1912); Vreeland v. Jersey City, 54 N J. L. 49 (Sup. Ct. 1891). Their essential purpose, however, is to protect landowners from any willful violation or abuse in the exercise of the power of eminent domain by a public utility. A cognate aim of the statutes and constitution authorizing eminent domain is to- enable certain private corporations affected with the public interest to obtain private property where this is necessary to further the general welfare. In reference to public utilities, a basic objective in their proper regulation, including supervision of their conidemnation powers, is the assurance of safe, adequate, proper and uninterrupted service. N. J. S. A. 48:2 — 23.

Where a public utility with the power of eminent domain in good faith erroneously enters the lands of another prior to a required prepayment and preliminary administrative determination required by statute, an absolute bar of the exercise of the power of eminent domain should not be imposed if this in itself will be inimical to the public welfare.

In a related context, it was stated in Nelson v. N. J. Short Line R. R. Co., 73 N. J. Eq. 187 (Ch. 1907), aff’d 74 N. J. Eq. 855 (E. & A 1908) : In a similar vein, see also Harris v. L. P. and II. Construction Co., 441 S. W. 2d 377 (Mo. App. 1969); Wray v. Mott, 83 N. J. L. 110 (Sup. Ct. 1912), aff’d 84 N. J. L. 769 (E. & A. 1913); Menge v. Morris and Essex R. R. Co., 73 N. J. Eq. 177 (Ch. 1907) ; Paterson, Newark and New York R. R. Co. v. Kamlah, 42 N. J. Eq. 93 (Ch. 1886), aff’d 47 N. J. Eq. 331 (E. & A. 1890); Caruthers v. Peoples Natural Gas Co., 155 Pa. Super. 332, 38 A. 2d 713 (Super. Ct. 1944) : Clarke v. City of Greer, 231 S. C. 327, 98 S. E. 2d 751 (Sup. Ct. 1957).

In such a case, ■— i. e., where there has been no willful or intentional violation of the complainant’s rights — if the defendant corporation has the right to condemn the complainant’s land and stands ready to institute and diligently prosecute condemnation proceedings, and also to pay into this court a sum of money sufficient to cover any possible award which may be made to the complainant in the condemnation proceedings, it would seem that the complainant is placed in substantially the same position that he would have occupied if the defendant had proceeded originally in strict compliance with all constitutional and statutory requirements. [73 N. J. Eq. at 189-190]

Where, as here, a public utility has proceeded in good faith under the mistaken belief that it was entitled to enter upon certain property, it should not be deprived of the right to seek the exercise of eminent domain in a proper proceeding before the Board. TJpon such an application, the Board should determine, as required by N. J. S. A. 48:3-17.7, whether the land taken is “reasonably necessary for the service, accommodation, convenience or safety of the public,” and the proposed taking is otherwise “not incompatible with the public interest.” It should decide as well whether the owners of the property will be “unduly injured.”

There is no insurmountable reason why these inquiries cannot or should not be pursued merely because a physical taking or occupancy has already occurred. In a comparable situation in Ossman v. Mountain States Tel. & Tel. Co., 511 P. 2d 517 (Colo. App. 1973), the utility inadvertently crossed a portion of plaintiff’s land with a cable. When plaintiff later discovered the intrusion upon his land, he immediately contacted the utility and demanded compensation. Subsequent negotiations were fruitless. The utility contended that plaintiff’s only remedy was that of inverse condemnation. The trial court, however, ruled that it was a trespasser and awarded both compensatory and punitive daamges. It also awarded a permanent easement. On appeal, it was held that one who possesses the power of eminent domain cannot be a trespasser under circumstances where it has inadvertently possessed land, which it intends to use for a public use, without proceeding, in eminent domain, ■

If it appears, as it does here, that the taking was inadvertent and did not involve a “willful aggression,” there is no sensible justification for a “punitive application” of the laws. Nelson v. N. J. Short Line R. R. Co., supra, 73 N. J. Eq. at 190.

While recognizing that petitioner’s failure to comply with the statutory prerequisites was not an “absolute bar”, the. Board, nevertheless, effectively foreclosed petitioner from pursuing its right to exercise the power of eminent domain. It stated that “petitioner may negotiate, further- with respondents,” and that if the negotiations. fail (which, is predictable), then petitioner would be required to relocate the communication facilities, which the Board assumed could be done “without disrupting service.”

The Board’s disposition in this manner provides no real solution to the legal dilemma occasioned by petitioner’s mistaken occupancy and use of respondents’ land. The Board in' effect has mandated indirectly a form of relief in the nature of an injunction or ejectment. As noted, the record amply supports the finding that petitioner mistakenly entered upon respondents’ property and has throughout acted in good faith recognizing fully its obligation to respond with just compensation to the owners. Consequently, the strict sanctions envisaged by the Board are/uncalled for.

Accordingly, we reverse and remand. We direct that petitioner be granted the relief sought by its petition and that it be permitted to seek the right to exercise the power of eminent domain. Jurisdiction is not retained. No costs.


source: Caselaw Access Project

author: Michels, J. A. D.

license: Public Domain

text:
    STUART ATLAS, TRADING AS POLWIN & MATHIAS, PLAINTIFF-APPELLANT, v. FRED R. SILVAN AND ANNIE B. SILVAN, HIS WIFE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1974
    Decided May 7, 1974.

      Before Judges Collestiír, Lynch aud Michels.

      Mr. Peter Rosen argued the cause for appellant (Messrs. Yanowsky & Rosen, attorneys).

      Mr. Gregory J. Domareki argued the cause for respondents.
   The opinion of the court was delivered by

Michels, J. A. D.

Plaintiff real estate broker appeals from a judgment rendered in the Essex County District Court on a jury verdict denying him recovery of a broker’s commission and entering an award of $700 on defendants’ counterclaim for return of tlieir deposit and counsel fees incurred in defending the within action.

Plaintiff appeals, contending that (1) the trial judges erred in denying his motion for a directed verdict on the complaint and the counterclaim; (2) the judge erred in overruling his objection to testimony as to the size of the property and the admissibility of a survey of the property, and (3) he erred in his charge to the jury as to the standard to be applied in determining whether defendant purchasers had; a valid reason for not completing the contract, and in failing to charge the elements of fraud.

I

■ A careful review of the record establishes that the.trial judge - properly denied plaintiff’s motion made at the end of the testimony offered by defendants in defense of the plaintiff’s claim and in support of their counterclaim. The motion made by plaintiff would appear to be a motion for judgment under B. 4:40-l. Unfortunately, when plaintiff’s counsel indicated that he wished to make a motion at the end of defendants’ case, the trial judge advised counsel to “consider it as made and denied” and directed counsel to proceed with the evidence in defense of the counterclaim without arguing his motion. We are of the view that this practice should not be followed and urge trial judges to hear and consider the basis upon which motions are made and place on the record the reasons for. their decisions. In spite of the fact that we do not condone the procedure followed by the trial judge, nevertheless we are of the view that the decision he reached was correct.

The judicial functon upon a motion for judgment under B. 4:40-l is the same as that governing the determination of a motion for involuntary dismissal under B. 4:37-2 (b), that is, the judge must accept as true all the evidence which supports the position of the party defending against the motion and must accord it the benefit of all inferences which can reasonably and legitimately be deduced therefrom, and if reasonable minds could differ, the motion must be denied. See Dolson v. Anastasia, 55 N. J. 2, 5 — 6 (1969). Applying this criterion, reasonable minds could differ as to whether plaintiff had misrepresented the size of the lot and the nature and quality of the rosewood panelling in the house, and as to whether plaintiff, through his agent and salesman Lyng, had failed to exercise due diligence in procuring a mortgage for defendants. Thus, clearly there were factual issues raised justifying or excusing the nonperformance of the contract by defendants and supporting their counterclaim which had, to be resolved by a jury and could not be disposed of by motion under R. 4:40-1.

II

Plaintiff further contends that the trial court erred in permitting defendant Fred Silvan to testify as to the actual size of the property since he had not qualified in accordance with Evid. R. 19. We disagree. Silvan had personal knowledge of the matter, and his testimony was competent and relevant on the issue of the size of the property. The weight to be given to such testimony was for the jury —the trier of the facts.

Plaintiff also contends that the trial court improperly admitted in evidence a survey of the property prepared by 3?. A. Brandes, L. S., and dated December 1966. The survey was marked in evidence as P-? and apparently had been made for the Orange Savings Bank and New Jersey Eealty Title Insurance Company. While undoubtedly the survey was accurate, nevertheless, the trial court erred in admitting this survey in evidence without it having been properly authenticated. See Evid. R. 68.

III

Finally, plaintiff contends that the trial judge erred in two respects in its charge to the jury. He first argues that the judge incorrectly instructed the jurors that they should consider "what the ordinary, prudent, reasonable person would do under like circumstances” in determining if defendants failed or refused to complete the contract without a valid reason. Second, he argues that the judge erred in failing to charge the jury on the elements of fraud. Plaintiff urges this on appeal for the first time as plain error. We agree. Not only is the charge improper but the impropriety thereof clearly affected a substantial right of plaintiff and had a clear capacity to bring about an unjust result. This charge, therefore, constituted plain error. See R. 2:10-2; State v. Hock, 54 N. J. 526, 538 (1969); State v. Macon, 57 N. J. 325, 337 (1971).

In Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528 (1967), our Supreme Court stated with respect to the buyer’s liability to the broker as follows:

This Court has held that when a prospective buyer solicits a broker to find or to show him property which he might be interested in buying, and the broker finds property satisfactory to him which the owner agrees to sell at the price offered, and the buyer knows the broker will earn commission for the sale from the owner, the law will imply a promise on the part of the buyer to complete the transaction with the owner. If he fails or refuses to do so toithout valid reason, and thus, prevents the broker from earning the commission from the owner, he becomes liable to the broker for breach of the implied promise. The damages chargeable to him will be measured by the amount of commission the broker would have earned from the owner. If no amount or percentage had been agreed upon, recovery will be placed on quantum meruit and measured by the amount accepted as reasonable according to the usual custom in such brokerage business. Tanner Associates, Inc. v. Ciraldo, 33 N. J. 51, pp. 67-68 (1960). [at 559; emphasis supplied]

Under Dobbs liability is imposed on the buyer when he defaults in the performance of his contract. However, if there is a valid reason, that is, a reason which is legally sufficient or authorized by law for his nonperformance, the buyer would not be in default, and he would not be under any liability to the broker for the commission. The trial judge, therefore, should have instructed the jurors that a “valid reason” would be a reason which was legally sufficient or authorized by law for the nonperformance of the contract and should have instructed them as to the standards to be followed in determining whether the non-performance was justified in this instance. The instruction as to what the ordinary, prudent, reasonable person would do in like circumstances is totally inappropriate and was clearly prejudicial to plaintiff, requiring a reversal of tire judgment below.

Furthermore, the bases for defendants’ counterclaim for the return of their deposit and damages for legal fees were fraud and misrepresentation. Consequently, the judge had a duty even in the absence of an appropriate request to Charge the essential elements of each when it submitted defendants’ counterclaim to the jury for determination. See Gabriel v. Auf Der Heide-Arangona, Inc., 14 N. J. Super. 558 (App. Div. 1951), wherein the trial court observed:

We conceive it to be at least the conventional function of the judge even in the absence of requests of counsel intelligibly to present to the jury the material and substantial issues of fact disclosed by the pretrial order, drawn into controversy by the conflicting, divergent and contradictory evidence adduced at the trial and to be submitted to the jury for determination, together with instructions in the law adapted to the consideration of such issues. How otherwise may we be confident that the jury distinctly recognized any such issue and deliberately resolved it? [at 565]

Since we hold that the judgment below must be reversed and the matter remanded for trial, we deem it appropriate to point out to the trial court that under the present posture of the law of this State there can be no recovery for expenses of litigation, including counsel fees, unless there is some express statutory authority, or contractual obligation or rule of court providing therefor, none of which authority is present here. See Jersey City Sewerage Auth. v. Jersey City Housing Auth., 70 N. J. Super. 576, 584 (Law. Div. 1961), aff’d 40 N. J. 145 (1963). See also R. 4:42-9. Accordingly, the trial judge improperly admitted evidence as to counsel fees paid by defendants to their attorney in defending the within action, and such evidence should not be admitted on a retrial of this matter.

For the foregoing reasons, the judgment below is reversed and the matter is remanded for trial consistent with the views expressed by this court.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. PETER BONO, JR.,. ROBERT LOMBARD, AND EUGENE MEYERS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1974
    Decided May 9, 1974.

      Before Judges Collester, Lynch and Michels.

      Ms. Rosemary K. Reavey, Assistant Public Defender, argued the cause for appellant Peter Bono, Jr. (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Messrs. Wolin & Garrubbo submitted a statement in lieu of brief on behalf of appellant Robert Lombard.

      Mr. Michael N. Tobin argued the cause for appellant Eugene Meyers (Messrs. Shevick, Ravich, Koster & Baumgarten, attorneys).

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for respondent (Mr. Karl Asch, Union County Prosecutor, attorney).
   The opinion of the court was delivered by

Michels, J. A. D.

This is a consolidated appeal by three defendants from convictions of rape in violation of N. J. 8. A. 2A.T38-1 (count 1), assault with intent to comm it rape in violation of N. J. 8. A. 2A:90-2 (count 2), and lewdness in violation of N. J. 8. A. 2A:115-1 (count 3). The court merged the convictions of rape (count 1) with those of assault with intent to rape (count 2) for purposes of sentencing and sentenced each of the defendants on those counts to a single indeterminate term in the Youth Correctional Institution wtih a maximum fixed at 17 years, and to consecutive indeterminate terms with a maximum fixed at three years on the convictions of lewdness (count 3). Defendants appeal.

I

All defendants raise as plain error that the offenses of rape, assault with intent to commit rape, and lewdness involved a single transaction and, therefore, merged. It is well settled that the crime of assault with intent to rape is necessarily a constituent element of the greater crime of rape, and that these two crimes merge when a conviction for the greater offense ensues. State v. Riley, 28 N. J. 188, 195 (1958), cert. den. 359 U. S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1959), petition for writ of habeas corpus denied and cert. den. 361 U. S. 879, 80 S. Ct. 166, 4 L. Ed. 2d 117 (1959). Accordingly, the convictions of assault with intent to rape merged into the convictions of rape, and the trial court should have vacated the lesser convictions of assault with intent to commit rape.

The State argues that since the trial court merged both convictions for purposes of sentencing and imposed a single indeterminate sentence, defendants were not prejudiced. We disagree. Since the convictions on these two counts merged, defendants’ records should reflect only the convictions for rape, and not the convictions for assault with intent to commit rape as well. Accordingly, the judgments of convictions of assault with intent to rape are vacated.

Defendants’ argument that the trial court erred in not treating the crime of lewdness as having merged with the crime of rape, at least for purposes of sentencing since they constituted a single criminal espisode, is totally lacking in merit. A reading of the two statutes under which defendants were indicted readily reveals that separate and distinct crimes are involved. Each prohibits separate and distinct criminal acts, and the evidence necessary to convict under each statute is clearly different. See State v. Currie, 41 N. J. 531, 537-539 (1964); State v. Montague, 101 N. J. Super. 483, 489 (App. Div. 1968), mod. on other grounds 55 N. J. 387, 406-407 (1970); State v. Mills, 51 N. J. 277, 289 (1968), cert. den. 393 U. S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968); State v. Craig, 48 N. J. Super. 276, 279 (App. Div. 1958); State v. White, 105 N. J. Super. 234, 236-237 (App. Div. 1969), certif. den. 54 N. J. 242 (1969). The fact that separate crimes may have been committed closely in point of time does not operate to merge them into a single crime. State v. Chevencek, 127 N. J. L. 476, 479 (Sup. Ct. 1941); State v. McFadden, 32 N. J. Super. 258, 261 (App. Div. 1954).

N. J. S. A. 2A:115-1 provides in pertinent part that “[a]ny person who * * * in private commits an act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, is guilty of a misdemeanor.” “Lewdness” was defined in the context of an earlier version of this statute (R. S. 2 :140-1) in State v. Brenner, 132 N. J. L. 607 (E. & A. 1945), as follows:

Lewdness, within the concept oí the statute, imports some degree of sexual aberration or impurity. It denotes gross and wanton indecency in the sexual relations, [at 610]

And in State v. Baldino, 11 N. J. Super. 158, 162 (App. Div. 1951), as “the irregular indulgence of lust, whether public or private.” N. J. S. A. 2A:115-1 has been held to comprehend commission of acts of fellatio. See State v. Fleckenstein, 60 N. J. Super. 399 (App. Div. 1960), certif. den. 33 N. J. 109 (1960); State v. Morrison, 25 N. J. Super. 534, 543 (Cty. Ct. 1953). But cf. State v. Dorsey, 64 N. J. 428, 433 (1974). Defendants do not argue to the contrary.

N. J. S. A. 2A:138-1 provides in pertinent part:

Any person who has carnal knowledge of a woman forcibly against her will * * * is guilty of a high misdemeanor. *■ * *

“Carnal knowledge” or “rape” involves actual sexual penetration of the sexual organ of the female by the sexual organ of the male. Application of Faas, 42 N. J. Super. 31, 35 (App. Div. 1956), cert. den. 353 U. S. 940, 77 S. Ct. 820, 1 L. Ed. 2d 762 (1957); State v. Hummer, 73 N. J. L. 714, 718 (E. & A. 1906), pet’n for reh’g den. 81 N. J. L. 430 (E. & A. 1906); State v. Riley, supra, 49 N. J. Super. 570, at 584 (App. Div. 1958).

It is obvious that each of these statutes requires proof of completely different conduct to sustain a conviction under each one.

The commission of sodomy per anum or per os is not the commission of a rape, although both offenses involve carnal knowledge of the victim, since carnal knowledge in its generally accepted meaning signifies sexual intercourse * * * while sodomy involves abnormal and perverted sexual relations. * * * [75 C. J. S. Rape § 5 at 466 (1952)]

Moreover, generally it has been held that a conviction or an acquittal for rape does not bar a prosecution for lewd and lascivious conduct or for sodomy. 22 C. J. S. Criminal Law § 292 at 767-768 (1961). Accordingly, the offense of rape and that of lewdness or carnal indecency were based on separate and distinct prohibited acts. Neither act was a necessary part of the other. Each constituted independently a criminal offense, for which separate sentences were proper.

II

Defendants Meyers and Lombard further contend that the out-of-court identifications of them made by the victim were so impermissibly suggestive as to result in a denial of due process, and that the victim did not have an independent basis to identify them in the court room so as to validate the in-court identification.

The United States Supreme Court has held that whether an out-of-court identification was so unnecessarily suggestive and conducive to irreparable mistaken identification so as to deprive defendant of due process of law, depends on the totality of the circumstances surrounding it. Stovall v. Denno, 388 U. S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Subsequently, in Simmons v. United States, 390 U. S. 377, 383-384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), where the court was concerned with the validity of a pre-arrest identification of photographs of defendant by an eyewitness to the crime, the court reaffirmed its holding in Stovall and held that in determining the admissibility of an in-court identification after a suggestive out-of-court identification, each case must be considered on its own facts. In Neil v. Biggers, 409 U. S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 3d 401 (1972), the Supreme Court held that the standard for the admissibility of testimony concerning an out-of-court identification is whether there is a very substantial likelihood of misidentification, even where the confrontation procedure was suggestive. The factors to be considered in such an evaluation include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

In State v. Farrow, 61 N. J. 434 (1972), cert. den. 410 U. S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973), our Supreme Court enunciated the tost for determining the admissibility of such out-of-court identifications as follows:

Impermissive suggestibility is to be determined by tbe totality of tbe circumstances of the identification. It is to be stressed that the determination can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist. What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer. The strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under appropriate instructions from the trial judge. * * * [at 451]

The function of this court as a reviewing court is to decide whether, considering the evidence as a whole, the trial judge could reasonably conclude that the identification procedure was not so impermissibty suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See State v. Mars, 107 N. J. Super. 36, 40 (App. Div. 1969).

In the instant case, there was ample evidence presented at the voir dire from which the trial judge could rea: sonably have concluded that the identifications of defendants Meyers and Lombard by the victim were not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Considering the factors announced bjr the United States Supreme Court in the Biggers case, it is clear that her identifications were valid. All three identifications were stated in court by the victim and by Detective Zehl to have been positive ones. In addition, Detective Savick so testified with respect to the identifications of Lombard and Meyers. The descriptions which the victim had given to the police were thorough and accurate. She clearly had the opportunity to view the defendants closely at the time of the crime. Her high degree of attention is manifested by the notice which she took of the details of the car, including the mileage and the license plate number. The length of time between the offenses and the identifications was relatively short (some 16 hours in the case of defendant Bono, 19 hours in the case of defendant Lombard, and 20 hours in the case of defendant Meyers). In addition, her testimony as well as that of Detective Zehl established that she was told only “to look at a man” when she identified both defendant Bono and defendant Lombard, and her testimony as well as that of Detective Savick established that she was only told to “take-a look” with respect to defendant Meyers. None of defendants was handcuffed, nor was it otherwise intimated to the victim in any manner that the police had any other proof implicating each man in the crime. See State v. Earle, 60 N. J. 550, 553 (1972).

Furthermore, it must be remembered that the victim was an intelligent, educated 22-year-old graduate student at the Hunter School of Social Work at City University in New York. Prior to the assault, she had a conversation at the Keyboard Lounge, where she was a dancer, with one of the defendants who introduced himself as “Bobby” (Lombard). Another defendant came into the bar, whom she later ascertained to be “Pete” (Bono), and gave her a hot dog. The third defendant (Meyers) had also been in the bar, sat with her and offered to buy her a drink. He had even asked her for a date, and later asked if he could give her a ride to Penn Station. Weighing all of the factors here involved, we find no substantial likelihood of misidentification, and hold that the evidence was properly allowed to go to the jury.

Defendants Meyers and Lombard further challenge the in-court identifications as being “tainted” by the out-of-court confrontations between them and the victim. While this argument, therefore, need not be considered, as it does not constitute plain error (R. 2:10-2; State v. Macon, supra; State v. Mars, supra, 101 N. J. Super, at 38-39), nevertheless, we have considered it and find it totally lacking in merit. What we have said concerning the validity of the out-of-court identifications is equally applicable and persuasive to sustain the in-court identifications of all defendants. It must be remembered, as pointed out by Justice Powell in the Biggers case, that the witness identifying defendants “was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.”

Ill

Finally, all defendants contend that the trial judge abused its discretion in imposing consecutive indeterminate reformatory sentences. The thrust of the argument is that since the judge imposed an indeterminate sentence with a maximum, fixed at 17 years ou the rape conviction and an additionaí consecutive indeterminate term with a maximum fixed at three years on the lewdness conviction, the sentences were excessive and repugnant to the theory of rehabilitation. They also contend that the imposition of such consecutive indeterminate sentences was beyond the power of the court to impose under N. J. S. A. 30:4-148. We disagree. Oúr court in State v. Horton, 45 N. J. Super. 44 (App. Div. 1957), expressly declared that the imposition of consecutive reformatory sentences is not repugnant to the legislative policy of rehabilitation, and that the court has the power to impose consecutive terms under N. J. S. A. 30:4-148, stating:

The trial judge pointed out in his opinion that if there may not be a second consecutive reformatory sentence, the statute might be construed by sentencing judges inimically to rehabilitation in that, should the court on a second conviction sentence the defendant to State Prison, he would not have the benefit of the objectives which the Legislature provided by permitting sentence to the reformatory. No harmful effect need result from the practice of imposing a second reformatory sentence, since both the consecutive reformatory sentence as well as the original sentence may at any time be terminated when in the discretion of the board of managers the prisoner’s conduct so warrants. Cf. Perry v. Martin, 73 N. J. L. 310 (Sup. Ct. 1906) ; In re Hodge, 17 N. J. Super. 198 (Cty. Ct. 1951), affirmed 24 N. J. Super. 564 (App. Div. 1953).
The statute before us contains no restrictive provision against consecutive reformatory sentences; had the Legislature so intended, it could have explicitly so provided. * * * [at 48]

We are of the view that the decision in State v. Horton is still legally sound. In fact, recently the Appellate Division recognized that consecutive indeterminate sentences may be imposed under N. J. S. A. 30:4-148. State v. Prewitt, 127 N. J. Super. 560 (App. Div. 1974). While there may be some reservation as to the appropriateness of the imposition of consecutive indeterminate sentences in a particular case, nevertheless, such sentences are not repugnant to the theory of rehabilitation. Parole from an indeterminate term in the Youth Correctional Institution Complex is under the control of the Board of Trustees of the institution and parole release may occur at any time. See State v. Prewitt, supra; State v. Horton, supra; N. J. S. A. 30:4-148, 30:4-1.1(n) and 30:4-106.

We have reviewed carefully the sentences imposed by the trial court on each of the defendants. In the light of the circumstances of the crimes committed by them and their pre-sentence reports, we find that the sentences imposed on each defendant were not manifestly excessive or unduly punitive and that there was no abuse of judicial discretion. See State v. Tyson, 43 N. J. 411 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

Eor the foregoing reasons, the judgments of conviction of defendants of assault with intent to rape (count 2) are vacated, and the judgments of conviction of rape (count 1) and lewdness (count 3) and the sentences imposed thereon are affirmed.

      Teehnieally, the sentences should be to the Youth Correctional Institution Complex with instructions that defendants be delivered directly to the Youth Reception and Correction Center, Yardville. See N. J. S. A. 30:4-148.

      Defendant Bono does not contest his in-court or out-of-court identification ' on this appeal.


author: Meanor, J. A. D.

text:
    NEW JERSEY MANUFACTURERS INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. RICHARD HARAN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted April 22, 1974
    Decided May 14, 1974.

      Before Judges Coneord, Handler and Meanor.

      Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys for appellant (Mr. Samuel D. Lord, of counsel).

      Messrs. Mandel, Wysoker, Sherman, Glassner, Weingartner & Feingold, attorneys for respondent (Mr. Harold A. Sherman, of counsel).
   The opinion of the court was delivered by

Meanor, J. A. D.

Richard Haran, the defendant, was on May 29, 1972 an insured of plaintiff New Jersey Manufacturers Insurance Company (NJM) under an automobile liability policy that contained uninsured motorists (DM) coverage. On that day Haran was in an automobile accident with one Henry Mason, an uninsured. Mason had a passenger in his car at the time of the accident, Henry Hodge.

Haran made claim under his uninsured motorists coverage for damages arising out of his own bodily injuries and automobile property damage. Hodge brought suit against Haran and Mason seeking damages on account of his personal injuries. NJM unsuccessfully sought from the Chancery Division a stay of arbitration between it and Haran until completion of the litigation begun by Hodge. NJM argued below and argues here that unless the arbitration is stayed it may be subjected to inconsistent results. The policy provisions involved are:

I. UNINSURED MOTORISTS COVERAGE
(Damages for Bodily Injury and Property Damage Caused by Uninsured Highway Vehicles)
The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
No judgment against any person or organization alleged to be legally responsible for the bodily injury or property damage shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.
Hr * ::: * * * 1C *
VI. ADDITIONAL CONDITIONS
** * * * * * *•
G. Arbitration.
If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage to the insured, or do not agree as to the amount of payment which may be owing under this insurance, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration, which shall be conducted in accordance with the rules of the American Arbitration Association unless other means of conducting the arbitration are agreed to between the insured and the company, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this insurance.

NJM’s position is that if Haxan is successful in arbitration, but is held liable to Hodge in the personal injury action, it will be put in the position of paying Haran on the thesis that the sole negligence was Mason’s and paying Hodge on the theory that Haran’s negligence was a cause of the accident. NJM also asserts that such an eventuality would destroy its subrogation rights against Mason for collection of its payments to Haran. Then, toó, there is a conflict of interests in the position of NJM. In arbitration its insured is an adversary, and NJM has an interest in establishing his fault in order to bar recovery. In the action at law Haran is being defended by NJM, which seeks a result that Haran is free from fault in order to exonerate him from any liability.

UM coverage must be included in every New Jersey automobile liability insurance policy. N. J. S. A. 17:28-1.1. This statute requires that the policy provisions under which UM coverage is provided be approved by the Commissioner of Insurance. It is evident that the policy provisions approved by the Commissioner of Insurance involved here contain no attempt to deal with the problem of inconsistent results that might arise where both arbitration and litigation eventuate from the same accident.

Even if the arbitration clause did not have the imprimatur of the Commissioner, it would be valid and enforceable under New Jersey law. N. J. S. A. 2A:24-1 et seq. See Poray v. Royal Globe Ins., Co., 90 N. J. Super. 454 (Law Div. 1966), and Annotation, “Uninsured motorist indorsement: Validity and enforceability of provision for binding arbitration, and waiver thereof,” 24 A. L. R. 3d 1325 (1969). Wo also note that arbitration is a judicially favored remedy. Public Utility Workers v. Public Service Co., 35 N. J. Super. 414, 419 (App. Div. 1955), certif. den. 19 N. J. 333 (1955); Keppler v. Terhune, 88 N. J. Super. 455 (App. Div. 1965). The issue now raised by NJM appears to be novel and not heretofore the subject of any reported case. Eor a discussion of arbitrable issues under UM endorsements, see Annotation, “What issues are arbitrable under arbitration provision of uninsured motorist insurance,” 29 A. L. R. 3d 328 (1970).

The arbitration provisions of the insurance contract would be frustrated if arbitration under the UM endorsement were enjoined every time a law suit arising out of the same occurrence was pending. Conflicting results are a potential every time multiple claims arise out of the same transaction. Available procedures for consolidation of litigation reduce but do not eliminate that potential. Instances of conflicting results are well within the experience of courts and trial attorneys. If one of several claims arising out of the same occurrence is brought early and reached quickly, that result may be in conflict with the outcome of litigation concluded later. Under such circumstances a court would be unlikely to honor a move to enjoin resolution of the early case to await consolidation with matters not yet begun. Here, the risk of conflicting results is inherent in the UM coverage just as it is in litigation. We could eliminate that risk only by frustrating the motives that underlie the inclusion of an arbitration clause —• i. e., prompt, nonjudicial resolution of the dispute. Since we cannot eliminate all possibility of conflicting results in litigation, we decline as a matter of policy to undertake the attempt with respect to UM coverage.

As to NJM’s conflict of interests, it is essentially no different here from the conflict in which an insurer finds itself when it covers two insureds involved in the same 'accident. In this situation it is most appropriate if the insurer retains separate counsel for the arbitration and the litigation.

Affirmed.

      At the time of issuance of the policy in question, UM coverage was required to be offered, but under the repealed N. J. S. A. 17:28-1.2 an insured could reject the coverage now mandatory under N. J. S. A. 17:28-1.1.


author: Handler, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JESSE HARPER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 3, 1973
    Decided May 15, 1974.

      Before Judges Handles, Meanor and Kole.

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

      Mr. L. Steven Pessin, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Handler, J. A. D.

Defendant was indicted for armed robbery and murder. He was found guilty by a jury of felony murder and sentenced to life imprisonment. Because the trial court charged the jury only on felony murder and did not permit- it to consider second degree murder or manslaughter, defendant now claims this constituted plain error requiring a reversal.

The murder of Robert Bradley was unwitnessed. The evidence that the murder was perpetrated in the course of a felony was wholly circumstantial.

Patrolman Robert G. Boyle of the Jersey City Police was the first police officer to arrive on the scene of the murder. On January 30, 1972, at 2:28 a.m., he responded to a call to go to the corner of Eairview and Bergen Streets. Boyle and his partner found Bradley lying face down on the sidewalk still alive and breathing heavily. The body was pointed out to Boyle by the only person present, Ered Hess, who had called the police. On close examination it was noticed that the victim was bleeding from the (back of the head and it was suspected that he had been shot. Lying in the vicinity of the body was a register for a check book, a button from the victim’s jacket, the back of a watch, a key ring, a plastic bottle of glyoxide and some miscellaneous papers. The victim also had 45Í in change in his pocket. Boyle also testified that the victim’s car was found parked approximately two blocks away.

Bradley’s brother and mother testified that Bradley carried a black leather wallet and always wore a wrist watch and that he owned a 1968 blue Cadillac. A jacket which he had been wearing was identified and they recognized some shirts which he had been carrying at the time of his death. Another witness testified that he had seen Bradley earlier, at approximately noontime on January 29, 1972, and he had observed the wallet. He also identified the jacket. The bartender at Ilvento’s Bar and Bestaurant testified that Bradley came into the premises at 2 p.m. (of January 29) and that he was carrying several shirts on a hanger. He consumed several cokes and when the witness finished work at 9 p.m. Bradley drove him home. The manager of the bar stated that Bradley returned about a half-hour later and stayed until closing at 2 a.m.

The evidence, which pointed to defendant as the mui•derer, was also circumstantial but nevertheless convincing. An autopsy was performed on decedent and it was established that the cause of death was a gunshot wound of the brain and skull with a right subdural hematoma. The doctor testified that he thought the man was shot from an angle which was lower than the position of his head.

Oliver Booker testified that he was an acquaintance of defendant and that sometime around January 23, 1972 he met defendant who asked where he could obtain some .32 bullets. After first denying that he had any, Booker took defendant to his apartment and gave him five bullets from a box which he had purchased in Alabama some two years earlier. Booker said that he turned over to the police the box containing the remaining .32 bullets. He was shown four bullets which had been recovered from the gun found on the defendant when he was arrested and stated that they were similar to the bullets he gave to defendant and turned over to the prosecutor’s office.

Detective Anthony Villaneuva testified that he was working the four to midnight shift on February 2, 1972. On his way to work he saw defendant exiting from Chet’s Bar. He stopped his car, approached defendant and called for him to stop. He then patted him down, finding a .32 revolver tucked into his waistband. Detective George Bussell testified that he was working on the four to twelve tour on February 2 when defendant was brought in. He gave the Miranda warnings and defendant chose not to speak. Later he changed his mind and admitted the gun. was his and that he had purchased it from a person, whose name he didn’t know, on January 23, 1972.

State Police Sgt. John Linott testified that he test-fired the gun taken from defendant with one of the bullets obtained from Booker, which was compared with the one taken from the victim. Linott stated that it was 'his belief that the bullet removed from Bradley’s brain had been fired from defendant’s gun to “the exclusion of all others.”

After the denial of a motion for dismissal, defendant produced three alibi witnesses who stated they had been with defendant at an anniversary party for his parents on the evening of the crime but they saw him last at 12:30 a.m. heading for his house.

' The motion made by defense counsel for a dismissal at the conclusion of the State’s case was on the ground that the evidence failed to conform to the indictment in that there was no proof of the underlying felony which could be tied to the defendant. The court denied the motion. Both counsel then agreed with the judge that there could be but two verdicts — not guilty or felony murder. It is now urged that this resulted in plain error.

The issue posed is akin to that considered in State v. Mathis, 47 N. J. 455 (1966), where the court stated:

Both the State and the defense tried the case on an all-or-nothing basis. Both agreed that but two verdicts were possible: (1) acquittal or (2) first-degree murder, with or without a recommendation for life imprisonment. Now defendant claims it was plain error to have kept from the jury the issue of second-degree murder.
An unlawful homicide is murder in the second degree. It is incumbent upon the State to prove the additional element the statute, N. J. S. 2A :113-2, N. J. S. A. requires to elevate the offense to first degree, and on the thesis on which this case was tried, that additional element was an attempt to rob.
Here there was no evidence affirmatively suggesting the killing was other than in the course of an attempt to rob. Still the question remains whether the State’s proof as to an attempt to rob was so unequivocal as to make it idle to ask the jury to pass upon it. After the testimony concerning the missing articles was struck, there remained the fact that a trouser pocket was turned inside out, but the defense contended that this circumstance, without more, did not show the pocket was turned by the assailant. Thus the defense denied that that fact necessarily suggested a robbery.
A defendant who denies complicity does not thereby concede the criminal event was everything the State claims it was. It remains the burden of the State to satisfy the jury beyond a reasonable doubt that the murder was of the character the statute denounces as murder in the first degree. If under the proof there is in fact no room for dispute as to whether the killing occurred in the perpetration or attempt to perpetrate the felony, our cases say the issue should not be left to the jury. State v. Zeller, 77 N. J. L. 619 (E. & A. 1909) ; State v. Giampietro, 107 N. J. L. 120, 122 (E. & A. 1930) ; State v. Pacheco, 38 N. J. 120, 131 (1962). The cases elsewhere hold that if, on the trial of a first-degree charge, it “appears clearly” from the evidence that the homicide was of no lower degree, the trial court “may”, and some cases say “should”, instruct the jury to find the defendant guilty of murder in the first degree or not guilty. 41 C. J. S. Homicide, § 392, p. 209. To leave the issue of second-degree murder with the jury in such circumstances could conceivably lead to a compromise verdict. On the other hand, if the issue of second-degree murder is improperly taken from the jury, the jury might convict of first-degree or acquit a man whose'guilt is of a lesser degree.
We said in State v. Sullivan, 43 N. J. 209, 245 (1964), that “Even in eases where the thesis of the State’s prosecution is felony-murder, if a factual issue arises as to whether the killing was a felony or non-felony murder, the jury must be instructed that a finding of non felony killing must be accompanied by a designation of first or second degree murder.” A factual issue of that kind was involved in State v. Wynn, 21 A. J. 264 (1956), and it was held to he error not to leave second-degree murder with the jury.
Under the proof in this case the fact of a robbery or attempt to rob was not indisputable, and indeed defendant affirmatively challenged that aspect of the State’s thesis. Under such circumstances the issue of second-degree murder should have gone to the jury. Haying deliberately taken the all-or-nothing stance we have described, defendant is in poor position to complain. Whether we should nonetheless find there was “plain error”, we need not decide since for other reasons there must be a new trial. We however have stated our view for guidance upon the retrial, [at 466-468]

The evidence in this ease indicative of an attempted robbery in conjunction with the murder was not “so unequivocal as to make it idle to ask the jury to pass upon it”; nor can it be said that “under the proof there is in fact no room for dispute as to whether the billing occurred in the perpetration or attempt to perpetrate the felony.” Ibid. Clearly, in the context of such evidence, if there had been a specific request to charge second degree murder or an objection on the court’s failure to so charge, the error would be reversible. State v. Wynn, 21 N. J. 264 (1956); State v. Sullivan, 43 N. J. 209 (1964); Compare, State v. Davis, 50 N. J. 16, 27-28 (1967). In State v. Sinclair, 49 N. J. 525 (1967), the court said:

We think that all these factors make it not idle to have the jury-decide whether or not one or both defendants were guilty of murder even though no attempted robbery occurred. The defense need not oifer affirmative proof, as urged by the State, that no attempted robbery occurred to be entitled to a charge on second degree murder; it is enough that the evidence leaves room for dispute as to whether the killings occurred during the course of an attempted robbery. Mathis, supra, 47 N. J., at pp. 466-467. In the present case where the contention was vigorously advanced by defendants and written instructions were submitted, it was reversible error not to charge the jury that on such findings a verdict of second degree murder could be returned, [at 542]

The question left unanswered in Mathis — whether a defendant having deliberately tahen an all-or-nothing stance under circumstances where the issue of second degree murder should have gone to the jury can urge this as plain error on appeal — is squarely presented.

Plain error, which requires the reversal of a conviction, must be “of such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2. State v. Lair, 62 N. J. 388, 392 (1973); State v. LaPorte, 62 N. J. 312, 318-19 (1973); State v. Macon, 57 N. J. 325, 337 (1971); State v. Hock, 54 N. J. 526, 538 (1969), cert. den. 399 U. S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Not every trial error characterized as plain error, however, is required to be entertained on appeal. This was apparently recognized in State v. Macon, supra, 57 N. J. at 337, where the court, in explicating the doctrine of plain error, stated that “[t]his does not mean that the reviewing court may not, as theretofore, decline to accept an issue first raised on appeal, or that the reviewing court may not find the failure to object was a recognition by counsel that the alleged error in fact was of no moment or was a tactical decision to let the error go uncorrected at the trial.”

Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. State v. Pontery, 19 N. J. 457 (1955); State v. Roscus, 16 N. J. 415 (1955); State v. Auld, 2 N. J. 426 (1949), aff’d on petition for habeas corpus 187 F. 2d 615 (3 Cir. 1951). “The defendant cannot beseech and request the trial court to take a course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.” State v. Pontery, supra 19 N. J. at 471; State v. Riley, 111 N. J. Super. 551, 553 (App. Div. 1970), certif. den. 57 N. J. 432 (1971); State v. Sykes, 93 N. J. Super. 90, 95 (App. Div. 1966); Slate v. Kaiser, 74 N. J. Super. 257, 273 (App. Div.), certif. don. 38 N. J. 310 (1962), aff’d 80 N. J. Super. 176 (App. Div. 1963), cert. den. 376 U. S. 950, 84 S. Ct. 966, 11 L. Ed. 2d 970, reh. den. 377 U. S. 913, 84 S. Ct. 1163, 12 L. Ed. 2d 184 (1964). Cf. Venuto v. Lubik Oldsmobile, Inc., 70 N. J. Super. 221, 229 (App. Div. 1961); Schult v. H. & C. Realty Corp., 53 N. J. Super. 128, 136 (App. Div. 1958), certif. den. 29 N. J. 279 (1959).

If does not follow that merely because an error was occasioned by the intentional or purposeful acts of defense counsel, a reversal on such grounds is automatically foreclosed. In those eases in which such induced or invited error was not permitted to be pressed on appeal, it appears that the particular error did not cut mortally into the substantive rights of the defendant. Thus, where the invited error did not demonstrably impair a defendant’s ability to maintain a defense on the merits (e. g, State v. Pontery, supra 19 N. J. at 471) or where the after-criticized judicial action was reasonably thought to secure a trial or tactical advantage for the defendant (e. g., State v. Riley, supra; State v. Sykes, supra; State, v. Kaiser, supra), it has not been considered so egregious as to mandate a reversal on appeal.

• We must recognize, however, that, although brought about by defendant, there are errors of such magnitude that they trench directly upon the proper discharge of the judicial function. Some errors "may'go so plainly to the integrity of the proceedings that * * * a new trial is the just course * * State v. Macon, supra 57 N. J. at 338. We conceive that errors of this dimension may be cognizable on appeal as plain error notwithstanding their having been precipitated by a defendant at the trial level.

The inquiry in this situation calls for a close, balancing examination of the nature of the error, its impact on the trial and the jury’s verdict, and the quality of defendant’s motives and conduct in bringing about the error. In the context of this case the error was not of such patent gravity as to require a new trial. The evidence buttresses the basic soundness of the jury’s verdict of felony murder. As noted, the victim was still alive when found; 'his watch and wallet were missing; his other possessions were scattered about, and the fatal attack had come from behind. These factors, among others, show graphically not only that the victim had just been shot but that a robbery occurred at the same time; and since other evidence converged pointedly on defendant as the murderer, the inference is strong that he also committed or attempted to commit a robbery when he killed his victim.

Even if the issue of second degree murder had been submitted to the jury, it is very unlikely ■ — ■ though not impossible — that the jury would have found that a felony had not occurred in conjunction with the murder and that the felony murder had not been committed by defendant. Additionally, the evidence pointing to a robbery-connected murder, although circumstantial, was not so weak or attenuated as to suggest that the jury’s verdict of felony murder was an improper compromise reflecting essentially a feeling that defendant had committed the homicide but had not robbed his victim. If the converse were true •— if the evidence were such that it was very probable that the jury, given the choice, would have concluded that the homicide was unexplained or unconnected to any robbery, and was, therefore, a second degree murder or manslaughter — then greater weight might attach to the argument that reversible error was committed in not submitting a second degree murder or manslaughter alternative to the jury.

The mistake of the trial court, as serious as it was, did not so stain the judicial process as to call for a new trial. It cannot be overemphasized that the court should not have acceded to the position espoused by defendant at the trial that the case be submitted to the jury without the second degree murder alternative. Under such circumstances a trial court should not withhold this choice from the jury regardless of the wishes of counsel. The court’s mistaken acceptance of this position, however, was understandable. The court was not confronted with a situation where there was no evidence ah all or only a scintilla of evidence of a robbery, but rather, as we stated earlier, there was evidence, albeit circumstantial, which was sufficient for a jury to find beyond a reasonable doubt that a felony had taken place. Moreover, the prosecutor as well as defense counsel agreed to have the case presented on an all-or-nothing basis.

Eor these reasons we conclude that defendant has not demonstrated plain error which requires a reversal.

Defendant also argues that the prosecutor’s summation resulted in plain error because he stated that “all the parties to the case knew defendant was guilty.” Tn the context of the summation the comment was not calculated to convey the belief of defendant’s guilt based upon knowledge or facts not before the jury. Eather, it was intended to express the thought that a belief in defendant’s guilt would be shared by any person familiar with the evidence in the ease. Thus, the reliance by defendant on Berger v. United States, 295 U. S. 78, 84-89, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); State v. Farrell, 61 N. J. 99 (1972) ; State v. Thornton, 38 N. J. 380, 396-400 (1962), cert. den. 374 U. S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963); State v. Hipplewith, 33 N. J. 300, 310-12 (1960), and Aponte v. State, 30 N. J. 441, 447-449 (1959), in this regard is ill-founded. We are of the view that the comment did not lead to plain error.

We have also considered the additional points presented in a pro se letter brief. It is argued that defendant was deprived of his constitutional right to have effective counsel and that certain evidence was improperly introduced to demonstrate that because of the victim’s status defendant could be regarded a "cop killer”. We conclude that these contentions are wholly lacking in merit.

Affirmed.


author: Antell, J. S. C.

text:
    BOARD OF EDUCATION OF THE TOWN OF WEST ORANGE IN THE COUNTY OF ESSEX, PLAINTIFF, v. WEST ORANGE EDUCATION ASSOCIATION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    April 24, 1974.

      Mr. Samuel A. Christiano for plaintiff (Mr. Samuel A. Christiano, attorney).

      Mr. Emil Oxfeld for defendant (Messrs. Rothbard, Harris & Oxfeld, attorneys).
   Antell, J. S. C.

This is an application for relief enjoining defendant, as the recognized bargaining representative for plaintiff’s teachers and department chairmen, from arbitrating a grievance under the terms of their collective bargaining agreement. It is alleged that the subject matter of the grievance deals with educational policy, falls within the exclusive jurisdiction of the Commissioner of Education, and may not, for reasons expounded in Englewood Bd. of Ed. v. Englewood Teachers, 64 N. J. 1 (1973), Burlington Cty. Col. Fac. Ass’n v. Bd. of Trustees, 64 N. J. 10 (1973), and Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, 64 N. J. 17 (1973), be resolved by consensual procedures. Defendant denies that the controversy tendered for arbitration arises under the school laws or involves educational policy, insists that it deals with “terms and conditions of employment” within the meaning of N. J. S. A. 34:13A-5.3, and is therefore a proper subject of arbitration.

The matter has been submitted on brief affidavits and a two-page verified complaint. The court has not had the benefit of the bargaining agreement as an exhibit, or the precise terms of defendant’s submission to arbitration. From the available evidence the following facts appear:

Past practice in the West Orange -High School has required that a five-minute homeroom period be observed at the beginning of each day. During this time the homeroom teacher took the day’s attendance and announcements were broadcast over the loudspeaker system. Thereafter the students left for their first-period class. The department chairmen, six in number, who are aiso teachers in the high school, receive an additional stipend oí $500 for their administrative service and have been exempt from homeroom duty. However, in the course of their normal teaching duties some did have first-period classes and it is they who are affected by a proposed change in scheduling. The change consists of eliminating the homeroom class and requiring students to begin the school day by reporting to their first-period class where the routines described above are to be conducted and the class period begun immediately thereafter. Hence, the department chairmen with first-period classes would now start work five minutes earlier and also discharge the duties of a homeroom teacher in addition to their other duties. Defendant’s grievance is that this involves a change in the terms and conditions of employment affecting “the role and status,” within the meaning of the bargaining agreement, of those department chairmen who have first-period classes. Plaintiff maintains that the schedule modification is a matter of internal management which, under applicable authorities, the board of education is powerless to relinquish to the arbitration process.

The fine line between questions oí educational policy and those relating to conditions of employment has been left to the courts to draw on a case-by-case basis, Englewood Bd. of Ed. v. Englewood Teachers, supra 64 N. J. at 8. The available guideline most nearly appropriate to the question presented is that

* * * major educational policies which indirectly affect the working conditions of the teachers remain exclusively with the Board and aro not negotiable whereas items which are not predominantly educational policies and directly affect the financial and personal welfare of the teachers do not remain exclusively with the Board and are negotiable. Tat 7]

In Burlington Cty. Col. Fac. Ass’n v. Bd. of Trustees supra, the question was whether the college calendar was a proper subject of negotiation. The court held that this was a major educational determination and that it was not negotiable. But in so doing it noted (at 12) that the calendar does not in itself fix the days and hours of work by individual faculty members or their work loads. These, it was stated, were mandatorily negotiable and were to be negotiated in the light of the calendar.

In Dunellen Bd. of Ed. v. Bunellen Bd. Ass’n, supra, it was held that a grievance addressed to the action of the school board in consolidating the chairmanships of two departments was also not arbitrable since it was a managerial decision arising under the school laws and had nothing to do with terms and conditions of employment. Again, it was pointed out that the determination to consolidate was predominantly a matter of educational policy. It was further observed (at 29) that the consolidation measure was taken at a time when the rights of no individual teacher would be affected and that, in fact, no such individual rights were there presented for vindication.

In these cases it was the exclusively managerial prerogatives of calendaring the school year and restructuring educational administrative units which were questioned as proper subjects of negotiation and arbitration. The adtions of the respective boards there involved did not directly concern changes in the workloads and assignments of the teachers.

The essence of this plaintiff’s claim to relief is stated in the following two paragraphs of its verified complaint:

6. The WOEA has filed a grievance, alleging that the Board violated the labor contract by assigning department chairmen to home room duty and disparate and improper load.
7. The Board contends that this is a dispute arising under the school laws, and it is an educational decision that must be made by the Commissioner of Education and not a labor arbitrator.

It is apparent from the foregoing, and borne out by supporting and opposing affidavits, that it is not the board’s managerial decision to delete the homeroom period from the school schedule that defendant seeks to have arbitrated. According to the complaint, the grievance is that “the Board violated the labor contract by assigning department chairmen to home room duty and disparate and improper load.” It is the use which the board proposes to make of the aggrieved department chairmen within the framework of the new schedule of which the defendant complains, and this issue is clearly severable for arbitration purposes from plaintiff’s right to program the format of the school day. Although plaintiff’s papers describe the consequences of the rescheduling as involving only an additional duty assignment of five minutes a day, defendant’s affidavits assert that the incidents thereof which they have submitted to arbitration extend to the addition of one work period for at least one of the chairmen and a discriminatory reduction in the workload of at least one of the other chairmen. In either case, these are matters which, touching to one degree or another upon length of the working day and nature of assignments, are sufficiently related to wages, hours and other terms and conditions of employment so that the court is unable to say that they are not suitable for arbitration.

The application for an injunction is denied.


author: Mackenzie, J. J. & D. R. Ct.,

text:
    PRISCILLA S. MEERWARTH, PLAINTIFF, v. RALPH N. MEERWARTH, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    April 26, 1974.

      Mr. Bernard F. Conway for plaintiff.

      Mr. Gary N. Skoloff for defendant (Messrs. Skoloff and Wolfe, attorneys).
   Mackenzie, J. J. & D. R. Ct.,

Temporarily Assigned. Plaintiff Priscilla S. Meerwarth and defendant Ealph N. Meerwarth were divorced by judgment of this court dated July 18, 1973, which judgment additionally provided for alimony to be paid to plaintiff in the amount of $25,000 a year and for equitable distribution pursuant to N. J. S. A. 2A :34-23. Plaintiff now seeks an order of this court permitting her to obtain, at her expense, life insurance on defendant’s life, and directing defendant to cooperate with same to the extent of submitting to physical examination and signing all necessary papers.

Defendant argues that (1) plaintiff has waived her right to raise this issue now by her failure to raise same during litigation which stretched over about 15 months; (2) defendant does not believe in life insurance or its necessity, and there was no life insurance in effect at any time during the marriage; (3) plaintiff is financially secure both for the present and for the anticipated future, and (4) defendant has a constitutional right not to submit to a physical examination.

The waiver argument cannot be permitted to prevent the court from proceeding to an adjudication on the merits. Although it is correct that “a waiver connotes a voluntary and intentional relinquishment of a known right or claim,” Goodpasture v. Goodpasture, 115 N. J. Super. 189, 197 (Ch. Div. 1971), it is clear that plaintiff’s request is grounded in “the continuing duty to support” which can neither be bargained away nor waived. Price v. Price, 33 N. J. Super. 545, 547 (Ch. Div. 1955).

Proceeding to substance, it is argued by defendant that to permit plaintiff this life insurance would serve to prolong the obligation to pay support beyond his death, in contravention of the rule expressed in Khalaf v. Khalaf, 58 N. J. 63, 70 (1971). See also, Martindell v. Martindell, 21 N. J. 341, 354 (1956). However, this rule is grounded in the public policy favoring the prompt settlement of a decedent’s estate, and does not apply in this case where the payment after death would come from a collateral third-party source, namely an insurance company.

On the other hand, this court does not agree with plaintiff’s argument that such an order as here sought is permitted under authority of Grotsky v. Grotsky, 58 N. J. 354 (1971). In that case life insurance in effect at the time of the divorce was required to be continued for the benefit of the children of the marriage. See Note, 67 Harv. L. Rev. 1074 (1954), expressing the rationale for this rule as the continuing obligation for support of children, which obligation is of paramount court concern and is derived from common law, while the alimony obligation is statutory.

Considering that plaintiff does have an insurable interest in the life of defendant, Novern v. John Hancock Mut. Life Ins. Co., 107 N. J. Super. 570, 577 (Law Div. 1969), it is not improbable that, even absent children, an insured could be ordered to maintain life insurance in existence at the time of divorce for the sole benefit of a spouse; but there is no existing life insurance in this case. Cf. N. J. S. A. 17B:2A-1; Mooney, “Insurance in Divorce Cases: Unsettled Rights Mean Future Litigation,” 41 A. B. A. J. 315 (1955).

Defendant finally argues that he has a constitutional right which must defeat plaintiff’s demand. Although plaintiff has not waived her right to request life insurance and does possess an insurable interest, and although the Khalaf rule terminating support on the death of the payor-spouse does not apply, this court is persuaded by the constitutional argument advanced by defendant.

That there exists a constitutional right to privacy can no longer be challenged. See Roe v. Wade, 410 U. S. 113, 152-156, 93 S. Ct. 705, 35 L. Ed. 2d 147, 176-179 (1973), and authorities cited therein. The right of privacy arises from the penumbras of the Bill of Rights, especially the Fourth and Ninth Amendments, and has been made applicable to the States by the Fourteenth Amendment to the United States Constitution.

However, this right is not absolute, and its parameters are continually being defined. The Supreme Court in Roe v. Wade noted that the right does not go so far as to give one “an unlimited right to do with one’s body as one pleases,” but it may be regulated by the stale if such regulation is justified by a “compelling state interest.” 410 U. S. at 154-155, 93 S. Ct. at 727 — 728, 35 L. Ed. 2d at 177-178.

A potential state interest may be seen in “the continuing duty to support [which] is grounded in public policy and is something the parties themselves cannot bargain away.” Price v. Price, supra. Thus, there is considerable state interest that the wife be protected from potential destitution.

On the facts of this case, it cannot however be said that the state interest is so compelling as would override defendant’s right to privacy which protects him from mandatory physical examination. Not only does plaintiff regularly receive alimony amounting to $25,000 a year, but she also acquired considerable assets by way of equitable distribution in the judgment of divorce. To argue that plaintiff may become a burden on the State and that the aforementioned state interest is compelling clearly lacks merit.

Plaintiff’s motion that the court order defendant to submit to a physical examination so that she may secure life-insurance on defendant’s life is therefore denied.


author: Brody, J. J. D. R. C.,

text:
    SHARON FUSCHETTI, PLAINTIFF, v. DONALD I. BIERMAN, DEFENDANT.
    Superior Court of New Jersey Law Division
    April 30, 1974.

      Mr. John M. Blume for plaintiff (Messrs. Blume, Kalb & Weiseman, attorneys).

      Mr. Richard J. Sauerwein for defendant.
   Brody, J. J. D. R. C.,

Temporarily Assigned. When this legal malpractice action was assigned for trial several weeks ago, counsel appeared and orally made various motions that must be decided before trial. Today is the adjourned trial date and the return day of the motions.

On August 28, 1964 plaintiff slipped and fell as she was leaving the General Motors Futurama exhibit at the New York World’s Fair. The following month she consulted defendant, then an attorney-at-law of New Jersey, to have him represent her in making a claim for personal injuries arising out of the accident.

Plaintiff contends that from this interview defendant led her to believe that he would “handle” her matter, with the likelihood of his having to engage New York counsel to process suit. She further contends that for six years thereafter she telephoned defendant on an average of two or three times a year, inquiring into the progress of the case and that on each occasion he assured her that it was moving slowly toward trial in New York. In the fall of 1970 plaintiff consulted another attorney, who learned from the defendant that no case had been instituted. Defendant claimed to have advised plaintiff by letter dated August 16, 1965 that she should engage New York counsel and that he would do nothing more on her behalf. Plaintiff denies having received the letter and the authenticity of defendant’s file copy is in question.

The applicable New York statute of limitations barred plaintiff’s personal injury action on August 28, 1967, three years after the date of the accident. The present action was commenced March 31, 1971.

The following questions need to be resolved at this time: (1) Is the present action barred by the New Jersey statute of limitations? (2) Since the statute of limitations is an affirmative defense in New York, may plaintiff bring the present action without having first failed in her attempt to bring the personal injury action? (3) Assuming the issues to be tried include defendant’s neglect and the lost value of plaintiff’s personal injury action, should the trial be bifurcated? (4) In considering the lost value of plaintiff’s personal injury action, should the jury decide the case as a matter of first impression or should it determine what a New York jury would have decided if timely suit had been' instituted? (5) If the issue is what a New York jury would have done, may plaintiff adduce expert testimony of New York settlement value and verdict value? (6) Is the fact of defendant’s disbarment, subsequent to the events of this case and for reasons unrelated to this ease, admissible to affect his credibility?

Counsel have stipulated that the present action would not be barred if the applicable statute of limitations is N. J. S. A. 2A:14-1 (the six-year statute), but would be barred subject to a discovery hearing if .the applicable statute is N. J. S. A. 2A:14-2 (the two-year statute). The latter statute applies to “every action at law for an injury to the person caused by the wrongful act, neglect or default of any person * * The former statute applies to any other “tortious injury to the rights of another * * * or for recovery upon a contractual claim or liability * * *.” There is no statute explicitly covering malpractice actions.

In the absence of an explicit indication of special meaning, the words of a statute are to be given their ordinary and well-understood meaning. Fahey v. Jersey City, 52 N. J. 103, 107 (1968). By its language the two-year statute applies only where defendant is charged with having “caused” plaintiff an injury to the person. Such is not the case here where defendant is charged with having caused plaintiff the loss of recovery from an action which happens to be for a personal injury. Hillhouse v. McDowell, 219 Tenn. 362, 410 S. W. 2d 162 (Sup. Ct. 1966); O’Neill v. Gray, 30 F. 2d 776 (2 Cir. 1929). Cf. McLellan v. Fuller, 226 Mass. 374, 115 N. E. 481, 482 (Sup. Jud. Ct. 1917). The present action comes under N. J. S. A. 2A:14-1 and is therefore not barred

Defendant contends that since the defense of the statute of limitations must be affirmatively pleaded in New York, the present action may not be heard until the personal injury action is brought and dismissed as barred by the statute, citing Wood v. Anderson, 60 Ga. App. 262, 3 S. E. 2d 788 (Ct. App. 1939). That case held that a legal malpractice action was premature where defendant attorney was charged with having commenced plaintiff’s malpractice action against a dentist one day after the statute had run. The holding was based upon the court’s finding that the discovery rule would likely be applied in the medical malpractice action so as to relieve plaintiff from the bar. There is no such showing in this case. The failure of an attorney to commence an action within the time of the statute would ordinarily be considered neglect. Cf. Palm, Beach Mercantile Co. v. Ivers, 2 N. J. Super. 5, 10 (App. Div. 1949). Once plaintiff has shown that defendant allowed the statute to run against her claim, defendant should have the burden of coming forward with evidence that the statute would not be a bar. Drury v. Butler, 171 Mass. 171, 50 N. E. 527, 529 (Sup. Jud. Ct. 1898).

Except for the last question, the remaining questions go to the structure of the trial. Basically, two issues are to be tried: defendant’s neglect and an evaluation of plaintiff’s loss should the first issue be determined in her favor. The first issue essentially resolves itself into whether defendant seasonably informed plaintiff that he was no longer representing her. The second issue requires a determination of the recovery, if any, plaintiff would have had if the personal injury action had been instituted in New York within time.

Plaintiff looks to a “'trial-within-a-trial,” with defendant defending himself as to his own neglect and standing in the shoes of the personal injury defendants as to their neglect. Christy v. Saliterman, 288 Minn. 144, 179 N. W. 2d 288 (Sup. Ct. 1970); Better Homes, Inc. v. Rodgers, 195 F. Supp. 93 (D. W. Va. 1961); 45 A. L. R. 2d 62, 65. She contends that the personal injury recovery must be determined in light of what a New York jury would have done, thereby rendering admissible expert testimony of New York verdict value as a factor to be considered along with factual evidence of her claim. Beyond that, plaintiff contends that she lost the potential of settlement, so that expert testimony of reasonable New York settlement value should be admitted.

Defendant also looks to a “trial-within-a-trial” but he would have it bifurcated between the issues of liability and damages, in keeping with the established policy of this county in personal injury actions. He objects to the admissibility of expert testimony as to New York settlement and verdict value as “irrelevant” and without legal precedent.

There appears to be no authority explicitly dealing with these questions. Plaintiff cites Jiffy Foods Corp. v. Hartford Acc. and Indem. Co., 331 F. Supp. 159 (D. Pa. 1971), and Central Cab. Co. v. Clarke, 259 Md. 542, 270 A. 2d 662 (Ct. App. 1970), to sustain the admissibility of expert testimony as to reasonable settlement value. But in those eases the issue being tried was whether a previously concluded settlement was reasonable. The present ease poses the more speculative questions of whether a settlement would have occurred, and if so, whether it would have fallen within an expert’s range of reasonable settlement value. Because no expert can suppose with any degree of reasonable certainty the private blends of hopes and fears that might have come together to produce a settlement before or during trial, expert testimony as to reasonable settlement value will be ex-: eluded as irrelevant. Evid. R. 1 (2). To the extent that such testimony might have probative value in terms of supporting factual evidence, it will be excluded because such probative value would be substantially outweighed by the risk that its admission will necessitate undue consumption of time and create substantial danger of confusing the issues. Evid. B. 4.

An expert’s opinion as to New York verdict value might be less speculative assuming the expert knows everything that would have been before the New York jury and also knows the inclinations of such juries whenever and wherever the case might have been heard. To the extent such an opinion would be probative, establishing the supporting factual evidence would likewise be so time-consuming and confusing that it must be excluded. Evid. R. 4. While, in theory, the present jury should determine what an earlier jury would have done, as a practical matter the trial cannot be so conducted. All issues touching upon plaintiff’s personal injury action will be submitted to the jury as matters of first impression.

R. 4:38-2 gives this court authority to try separately any “issue” for the convenience of the parties or to avoid prejudice, and on its own motion to sever the trial of liability from damage claims when the “trial of all issues as to liability and damages may be complex and confusing * * The court finds that a single trial of all issues would be complex and confusing. The issue of defendant’s alleged neglect will therefore be tried first, leaving for later trial, if necessary, plaintiff’s personal injury action, including the issues of liability and damages. This arrangement, moreover, has the merit of recapturing to some extent plaintiff’s lost settlement opportunity: in the event defendant is held liable in the first trial, then for settlement purposes plaintiff will face him as she would have faced the personal injury defendants both before and during the trial of the personal injury action.

Plaintiff objects that bifurcation would be prejudicial in that the second jury, not knowing of defendant’s alleged failure to investigate the accident properly before the Futurama building was destroyed, might look for a greater quantum of evidence on the issue of liability than she can produce. Cf. Interchemical Corp. v. Uncas Printing & Fin. Co., Inc., 39 N. J. Super. 318, 329 (App. Div. 1956). The second jury should arguably also have the background and flavor of the first trial to understand why defendant is standing-in for the personal injury defendants.

■ In view of these considerations the two trials will be heard by the same jury “back-to-back,” with a hiatus of no more than one day.

Pinally, it is necessary to determine whether the fact of defendant’s disbarment is admissible to affect his credibility. Defendant’s counsel represents that the defendant will testify and that this issue must now be resolved as it will affect the jury selection voir dire.

Por the purpose of attacking credibility it may be shown on cross-examination that a witness is a disbarred attorney. State v. Pearson, 39 N. J. Super. 50, 60 (App. Div. 1956). In that case a disbarred attorney was the defendant in a criminal proceeding involving a charge of dishonesty; the court held that at least under those circumstances the fact of his disbarment is admissible on the issue of veracity. Defendant argues that a different rule should obtain in a civil action, and in any event the rule should be reconsidered in light of our after-adopted Rules of Evidence.

Evid. R. 20 provides that extrinsic evidence relevant upon the issue of a witness’ credibility may be received. If evidence of the fact of disbarment is admissible in a criminal action, a fortiori it would be admissible in a civil action where defendant’s liberty is not at stake. The admissibility of such evidence would not be so prejudicial as to outweigh its probative value. Evid. R. 4. The cause for defendant’s disbarment involved charges bearing upon his veracity. In re Bierman, 62 N. J. 91 (1973). Also, to render the fact of disbarment inadmissible would allow the jury to have the wrong impression that defendant is presently an attorney and as such likely to be worthy of belief. See In re Thorman’s Estate, 162 Iowa 237, 144 N. W. 7, 9 (Sup. Ct. 1913).

      Both counsel agree that the forum for the personal injury action would have been New York since the New York World’s Fair Corp., a likely defendant with General Motors Corp., was not then considered amenable to process in New Jersey. But see, Schaffer v. Granit Hotel, Inc., 110 N. J. Super. 1 (App. Div. 1970).

      The jury in the second trial, but for a stipulation in the present case, -would ordinarily also have to pass on the solvency of the personal injury defendants. Lawson v. Sigfrid, 83 Colo. 116, 262 P. 1018 (Sup. Ct. 1927) ; Jones v. Wright, 19 Ga. App. 242, 91 S. E. 265 (Ct. App. 1917).