author: Per Curiam. Crahay, J. A. D.,

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH GARRIGAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued March 6, 1973—Decided April 16, 1973—Rehearing granted
    May 14, 1973—Reargued May 22, 1973
    Decided July 6, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. John J. Connell argued the cause for appellant (Mr. Henry F. Gill, attorney).

      Mr. John De Cicco, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney).
   Per Curiam.

Defendant was indicted together with one George Kramer by a Mercer County Grand Jury in a three-count indictment charging (1) conspiracy to commit misconduct in office (N. J. 8. A. 2A:98-1 and 2); (2) misconduct in office (N. J. 8. A. 2A:85-1 and 14); and (3) extortion (N. J. 8. A. 2A :105 — 1 and N. J. 8. A. 2A:85-14). The trial commenced on April 20, 1972 and concluded on April 27, 1972. On April 25, 1972, the prosecutor moved to dismiss the charges against Kramer, and for an order compelling Kramer’s testimony under our immunity statute. Both motions were granted. A subsequent motion for a mistrial based on these rulings was denied.

The trial thereafter proceeded against defendant alone, with Kramer testifying on behalf of the State. The jury, after deliberation, found defendant guilty of the first and second charges and acquitted him of the third charge — extortion. Defendant was thereafter sentenced to two concurrent one to three year sentences in State Prison, Trenton, with all but 12 months of the sentences suspended, the court directing that defendant serve a custodial term of 12 months in the Mercer County Work House.

Defendant first argues on appeal that the verdicts were against the weight of the evidence. However, as he subsequently recognized and acknowledged in his reply brief, his argument was based on the erroneous assumption that State v. Donohue, 2 N. J. 381 (1949) still controlled our law applicable to circumstantial evidence. See State v. Mayberry, et al., 52 N. J. 413 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).

Defendant next argues that the severance of his co-defendant in mid-trial and the subsequent grant of immunity was so prejudicial that a mistrial should have been declared by the trial judge. It is defendant’s theory that the prosecutor knew all along that certain statements given by Kramer would be inadmissible at the trial. We find that the record fails to support the theory of defendant which presupposes that plaintiff unfairly used Kramer in an attempt to influence the jury. There is no other showing of prejudice. In addition, we note that the trial judge emphasized during his charge that there was no significance to be drawn by the jurors from the dismissal of the charges against Kramer and, further, that the granting of immunity did not lend weight to Kramer’s credibility. Compare State v. Provoid, 110 N. J. Super. 547 (App. Div. 1970).

Defendant also contends that he was prejudiced by the failure of the trial judge to have the reading of certain testimony completed before the jurors resumed deliberations. After deliberating for several hours the jury raised two questions:

(1) Did this indictment come from the complaint made by Saperstein ?
(2) Did Kramer and Saperstein both agree to the meeting in September ?

The trial judge properly termed the answer to the first question immaterial. In answering the second question, the judge properly told the jurors that it would be improper for him to give them his recollection. The foreman then stated:

Your Honor, I feel it is advisable if we can hear the testimony again of the two witnesses.

At this point, the testimony of Saperstein was reread. The physical act of reading was performed by the court reporter who sat in the witness box and read from his notes. No other court reporter was present at the time to take down what he read. During the reading, the jurors’ dinner arrived, and at the conclusion of the reading of Saperstein’s testimony the jurors were informed by the trial judge that dinner was waiting for them. At that point, the foreman and possibly several of the jurors indicatel to the court that they had heard all that they had wanted to hear. Unfortunately, this colloquy between the foreman and the trial judge took place while the court reporter was sitting in the witness box, with the result that it was not taken down as part of the record. No objeción was thereafter made by either side.

At the original argument in this ease we were led to believe that the jurors were permitted to retire for dinner after the conclusion of the reading of the Saperstein testimony but with the expectation by the parties that the reading of Kramer’s testimony would be conducted after dinner. Eor some reason unexplained on the record, we believed the failure to read Kramer’s testimony was overlooked. We noted in our original opinion that “The record does not disclose that any objection was made either before or after the verdict by defendant; nor was the failure to read Kramer’s testimony raised as a ground on the motion for a new trial.”

After our original opinion and the dissenting opinion of our brother Crahay were filed, we received a letter from Judge Sehoch who tried the case below, advising us of the facts surrounding the reading of the testimony, as we have outlined them above. Counsel were provided with copies of Judge Schoch’s letter and given the opportunity to present their views thereon in writing. We thereafter permitted re-argument of this issue. We have concluded that the facts as set forth in Judge Schoch’s letter, and as incorporated in this opinion, accurately set forth what actually occurred during the rereading of the testimony, even accepting as true the statement by defendant’s trial counsel with respect to what defendant now urges is a critical aspect of the case, that his counsel’s “present recollection * * * is not sufficiently adequate to permit [him] to either affirm or disavow the narrative thereof set forth by Judge Schoch therein.”

The rules governing the reading of testimony at the jury’s request are set forth in State v. Wolf, 44 N. J. 176, 185-186 (1965). See also, State v. Wilkerson, 60 N. J. 452, 460 (1972). The rule simply stated provides that the grant of such a request is in the discretion of the trial judge, but that the judge should readily accede when the jurors request to hear testimony read, absent some unusual circumstances. Hero, Judge Schoch did accede to the jurors’ request. The reading was not completed because the jurors requested that it be terminated, even though all of the testimony originally requested to be read had not been read. We find nothing in Wolf or Wilkerson, above, which requires a trial judge to continue the reading of testimony commenced at the jurors’ request after the jurors asked that the reading be terminated, particularly where, as here, defendant offered no objection and did not ask that the reading be continued and thus acquiesced in the jurors’ request that it be terminated. Defendant may not fairly now seek to recall his acquiescence in the jurors’ request. The failure to read Kramer’s testimony to the jurors affords no basis or justification for reversal.

Apposite is what the court said in State v. Macon, 57 N. J. 325, 333-334 (1971) :

* * * It is fundamental in our practice that a claim of error which could have been but was not raised at trial will not be dealt with as would be a timely challenge. The reasons are several. It may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment. Further, to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal. *■ * * In any event, except in extraordinary circumstances, a claim of error will not be entertained unless it is perfectly clear that there actually was error. In other words, if upon a timely objection a different or further record might have been made at the trial level, and the claim of error might thereby have been dissipated, we will neither reverse on an assumption that there was error nor remand the matter io explore that possibility. * * * These principles rest upon the belief that our practice offers every opportunity for a fair trial, and that unless there is some order in the trial of cases, the State judiciary cannot hope to meet the swollen demands upon it.

Defendant’s last two arguments, that the prosecuting witness should have been forced to produce his income tax returns from 1966 to 1971 “to show what triggered this whole thing was an investigation by Internal Eevenue Service,” and that the use of a tape recording during defendant’s cross-examination of a conversation of an interview between defendant and the prosecutor, taped without his knowledge, we find to be without merit.' With respect to the first of these arguments, we agree with the State that the Internal Revenue investigation in no manner figured in the prosecution, and that the basis asserted was not stated at trial. As to the second, the use of the tape was proper during cross-examination. Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). The wire tapping statute is inapplicable. State v. Vizzini, 115 N. J. Super. 97 (App. Div. 1971).

The judgments of conviction are affirmed.

Crahay, J. A. D.,

dissenting.

I would reverse on the ground that the trial court’s failure, in this case, to read all rather than a portion of testimony specifically requested by the jury amounted to a seriously prejudicial abuse of discretion. State v. Wolf, 44 N. J. 176 (1965).

The case was close, and I cannot say beyond a reasonable doubt that' the error, be it plain or otherwise, did not have a tendency to mislead the jury to a result it otherwise might not have reached. The failure to satisfy the jury’s specific request to read critical testimony generated not only a real but a strong possibility of injustice. State v. Macon, 57 N. J. 325 (1971).

Defendant and one George Kramer were indicted for conspiracy to commit misconduct in office contrary to N. J. S. A. 2A:98-1 and 2. Additionally, the defendant was charged with misconduct in office contrary to N. J. S. A. 2A:85-1 and extortion contrary to N. J. S. A. 2A:105-1. Kramer was charged with aiding and abetting defendant in the latter two offenses contrary to N. J. S. A. 2A:85-14.

After the trial had proceeded into its fourth day the prosecution elected to dismiss the charges against Kramer and procured an order compelling him to testify against Garrigan under the New Jersey Immunity Statute (N. J. 8. A. 2A:81-17.3). As the trial court noted, the essential witnesses against defendant were Kramer and Jacob Saperstein. Except for Kramer’s testimony, the case was essentially “one on one” as between Saperstein and defendant. Saperstein asserted that some six years earlier he gave $1500 to Kramer to give to Garrigan in return for a governmental favor; — expeditious payment of Urban Renewal relocation expenses. Garrigan categorically denied the payment and other wrongdoings.

Saperstein testified that on September 16, 1966 he gave Kramer the $1500 involved. He had procured the $1500 by drawing a check to cash against an account in the name of his business and then endorsed it “Jacob Saperstein” indicating in the checkbook that it was for “cash for back pay — • Jack and Sam Saperstein — $1500 • — ■ September 16, 1966.” Kramer denied receiving any money from Saperstein or giving any to Garrigan. Defendant’s guilt or innocence then turned solely on who was to be believed, — Saperstein, Garrigan or Kramer, to the extent that the latter denied receiving money from Saperstein or giving it to Garrigan. As noted earlier, in my view, the case was “close”. The trial court indeed in ruling on post-trial defense motions stated, after finding that there was enough evidence for jury consideration, — “This whole case is built on a limited amount of evidence . . .”

Testimony during the trial was taken over five days and the jurors were given the court’s instructions and began deliberations at 10:20 a.m. on the sixth day. At about 3:30 in the afternoon the court received two notes from the jury. The first stated that they could not come to a unanimous decision on the first two counts of the indictment. Ten minutes later a note asking the court to “give an explanation of the first two counts of the indictment”. Assuming the second note to have superseded the first, the court recharged at considerable length on the elements of conspiracy and misconduct in office. At 6 :05 p.m. the jury again returned to the courtroom. The court first advised them that their dinner had been ordered. Then in response to a question in the jury’s note, “Did this indictment come from the complaint made by Saperstein?”, the court, as the majority notes, properly ruled the question immaterial. (Saperstein had, in fact, first related his version of the alleged transactions to the Prosecutor’s office on August 3, 197T, almost five years later.)

A second question was addressed to the court —

Did Kramer and Saperstein both agree to the meeting in September? (Emphasis added)

The court answered that it would be improper for him to give his recollection of the testimony. He told the jury that if they wanted a portion of the testimony read back —

... we will have it read baeh ... So if you want Mr. Kramer’s testimony read baeh for instance, we’ll have it read baeh. If you want Mr. Saperstein’s read bach, we’ll have that read bach. If you think that’s necessary . . . (emphasis added)

The foreman then responded, —

Your Honor, I feel it advisable if we hear the testimony again of the two loitnesses. (emphasis added)

The court after asking if anyone did not agree with a reading,. ordered it.

Saperstein’s testimony was read, according to the record, until 7:03 p.m. at which point the court stated, “We have ordered dinner but it won’t get here for another ten minutes. All right, you. may retire.” The jury thereupon left the courtroom “to resume its deliberations.” Prosecution and defense counsel neither made objection nor observation on the failure to read Kramer’s testimony.

At 8:45 p.m. the jury announced its verdict finding defendant gnilty of conspiracy and misconduct and not guilty of extortion.

Saperstein’s testimony covered 57 pages of the trial transcript, reciting dealings with defendant and others and detailing meetings with Kramer including the one at which he allegedly turned over the $1500 cash to be given to the defendant.

Kramer’s testimony covered but five pages of the transcript. In substance he testified that he knew the defendant twelve or thirteen years and Saperstein approximately fifty years, that Garrigan called him and asked him to stop and see Saperstein and have Saperstein “call him up”, that he-conveyed the message and sometime later passed Saperstein! on the street in his truck calling from the truck, asking whether or not he had called Garrigan. He specifically denied receiving any money from Saperstein or giving any to Garrigan.

Inexplicably, the jury did not have this critical testimony read back to them. We could not elicit any reason at oral argument, nor does the record enlighten on the failure except insofar as we are told that the jury’s dinner was on the way.

State v. Wolf, supra, pronounces at p. 185 —

It should be remembered that the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court . . . When a jury retires to consider their verdict, their discussion may produce disagreement or failure' or doubt of definite recollection as to what a particular witness said in the course of his testimony. If they request enlightenment on the subject, through a reading of his testimony, in the absence of some unusual ciretuu stance, the request should be granted. The true administration of justice calls for such action. AVhere there is a doubt in the minds of jurors as to what a witness said, it cannot be prejudicial to anyone to have that doubt removed by a rehearing of his testimony. There is no need to be chary for fear of giving undue prominence to the testimony of the witness. If under our system of trials a jury is to he considered intelligent enough to be entrusted with powers of decision, it must be assumed they have sense enough 1o ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or disagreement. It must be assumed also that if they had any similar doubts or disagreements about statements of other witnesses they would seek the same remedy . . . But generally where the testimony is reasonably available, a judge should not refuse to grant a jury request to have it read merely because the reading would take time. In these days when the purpose of our procedure is full, fair and free exposure to all relevant evidence in a ease both before and during the trial, there is no just reason for insisting that laymen jurors must have an unfailing and unanimous memory of all the testimony they hear in the courtroom . . . (emphasis added)

Here, then, the trial court recognized the direction in which his discretion was to be employed under State v. Wolf, supra, but having undertaken to satisfy the jury’s specific inquiry neglected to complete it. I equate “neglect” with “refusal” in relating the omission here with that in Wolf.

The principle has been restated in State v. Wilkerson, 60 N. J. 452 at p. 460, (1972) where the court said:

Normally a trial court, which has ultimate discretion in the matter, should readily accede to any request by a jury to have any particular testimony read to it during deliberations, (emphasis added)

State v. Kuske, 109 N. J. Super. 275 (App. Div. 1970) and State v. Cox, 101 N. J. Super. 470, 480 (App. Div. 1968), certif den. 53 N. J. 510 (1969) are readily distinguishable.

In State v. Kuske, supra, the trial court failed to furnish all of the information requested by the jury. The Appellate Division felt in that case it was not prejudicial although it questioned the failure of the judge to honor the jury’s request in full. The court there noted that the guilt of the defendant was convincingly established by the evidence.

In State v. Cox, supra, we found no abuse of the trial court’s discretion nor any prejudice in failing to read all of a State’s witness’s testimony, since the jury indicated that it had heard enough.

In United States v. Rabb, 453 F. 2d 1012 (3d Cir. 1971) the defendant was convicted of bank robbery. The jury after two hours deliberation requested the reading of the testimony of two witnesses. The Court refused and instead read its summary of the testimony. Defense counsel objected to the procedure. Approximately forty pages of transcript were involved. Becognizing that such requests were within the discretion of the trial judge, the Court stated the rationale behind the refusal on the part of trial judges to allow a reading of a portion of the testimony. It was held to be twofold, 1) that the request might tend to slow the trial and 2) that the reading of only one portion might cause the jury to give the portion read undue emphasis. It was held in Rail that the rationale was not operative. At p. 1014 •—

... It must be assumed that the jury asked for a reading of this testimony because it was in doubt or in disagreement upon its proper evaluation [and further] . . . the evidence on which the jury wanted guidance was crucial to its verdict . . .

The Court there found that the testimony went . . to the very heart of the case,” and that the testimony was “. . . not unduly long . . .” In reversing for an abuse of discretion the Court noted that its decision was supported by the Standards Relating to the Trial by Jury (ABA Project on Minimal Standards of Criminal Justice) Sec. 5.2 and Commentary at 134-38 (Approved Draft 1968) :

5.2 Jury request to review evidence (a) If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the court, after notice to the prosecutor and counsel for the defense, shall have the requested parts of the testimony read to the jury and shall permit the jury to reexamine the requested materials admitted into evidence.

In a concurring opinion in Ball, Judge Aldisert stated that he was not ready to subscribe to the unrestricted use of the ABA standard. I am of the same view and would have each case be its own barometer to measure whether a trial court’s discretion was properly employed.

In U. S. v. Jackson, 257 F. 2d 41 (3d Cir. 1958) a narcotics conviction was reversed. The jury had asked a specific ■question and while the court and counsel were mulling whether or not to read portions of the transcript to it and by the time the court had decided that it would cause a portion of the transcript to be read to them, the jury announced its verdict of guilt. In answer to a question from the Judge, the foreman before announcing the verdict declared that they no longer needed an answer to their earlier question.

At p. 43 —

. . . we think that the failure to permit the reading of the relevant testimony at a time when it would have been useful in the jury’s deliberations created unfairness to the defendant.

See also Annot., 50 A. L. R. 2d 176 (1956).

In this case, if the trial court had denied the jury’s request for the reading of Saperstein’s and Kramer’s testimony, Wolf would have been fully operative. In my view, it was far more damaging here to have read only Saperstein’s when Kramer’s testimony probably would have generated ■consideration by them not only as to substantive matters, i. e. the meetings between Kramer and Saperstein, but might very readily have produced credibility considerations which could have undermined Saperstein’s version of the involved matters. Kramer’s testimony was not cumulative. A reading would have taken but minutes. The jury specifically requested it.

The majority finds it highly significant that defense counsel did not object to the procedure during the reading. (Neither did the prosecutor even though Kramer was his witness, albeit not helpful). I feel, that once communication is undertaken between a jury and a court, the trial judge becomes the captain of the ship and is obligated to follow through in meeting the juror’s needs during the critical moments (or hours) of deliberation. Our inability to assess fault for the failure to honor the jury’s request does not soften the impact of Wolf, supra.

If either counsel had addressed the court, the omission to read Kramer’s testimony might have been averted. I am not aware of any authority which requires defense counsel’s objection called for by the majority. If there be such a requirement, I would then nonetheless find plain error. State v. Macon, supra.

The majority also notes that the jurors did not notify the trial judge that they desired the reading to continue. True enough. But they did specifically request it. See U. S. v. Jackson, supra. One might opine that “dinner” blinded all to the omission. In a similar vein the State in its brief, referring to the “court reporter’s omission”, urges that the jury was apparently satisfied with hearing only Saperstein’s testimony. If this indeed was the fact, then in view of the jury’s request and the conflicting testimony the harm to defendant was escalated.

Here, where the proof of guilt was not clear or strong, I would find that the trial court’s omission constituted an error of magnitude with a heavy potential to affect the jury verdict, State v. LaPorte, 62 N. J. 312 (1973), and reverse.

ON PETITION EOR REHEARING

In response to the majority per curiam opinion affirming defendant’s conviction, I filed the above dissent.

Thereafter on April 23, 1973, pursuant to R. 2:11-6, the prosecutor by verified petition sought a rehearing and summary redetermination of the appeal with the aim, I suppose, of causing the dissenting opinion to be withdrawn.

In support of the petition we have been supplied with affidavits by the prosecutor who tried the case and the Acting Chief of County Detectives who was in charge of its investigation. Contemporaneously, the trial judge advised us by letter of his recollection of what occurred during the testimonial re-reading.

The prosecutor’s recollection was that the court reporter took the witness stand to re-read the testimony and that prior to completing Saperstein’s testimony the jury foreman indicated that the reporter had read enough and that it would not be necessary to read further. At this point, according to the prosecutor’s recollection, the trial court asked the other jurors if they were satisfied and that they all nodded in the affirmative.

The Chief of County Detective’s recollection was substantially similar to the prosecutor’s and that •—

It is my recollection that at no time was the testimony stopped because of the arrival of dinner but rather the Foreman of the Jury indicated to the court that sufficient testimony of Saperstein had been read . . . and the Court asked the other jurors if that was satisfactory and they answered in the affirmative.

(The transcript of the trial indicates that the reporter, “read the testimony of Mr. Saperstein,” without interruption, and that the “dinner announcement” followed it.)

At the oral argument on the hearing, we solicited from the prosecutor at what point he recalled Saperstein’s testimony being ended. His recollection then was that it was after the discussion of Saperstein’s second meeting with Kramer i. e. at the time he picked up the check for $1,500. The trial record reflects that this occurred at a very early point in Saperstein’s testimony. It does not square with the trial transcript which, as noted in the dissenting opinion, reflects that the jury returned for additional instructions at 6 :05 p.m. and that the reading of the Saperstein testimony concluded at 7:03 p.m.

Defendant’s trial counsel, by affidavit, in response to the petition, disclaims present recollection of the events sufficient for him to affirm or disavow what occurred.

As noted, the trial judge submitted a letter dated April 24, 1973 outlining his recollection of the proceedings. Contrary to the State’s position, his recollection is that at the conclusion of Saperstein’s testimony the jurors were informed that dinner was awaiting them and that at that point, at least the foreman and possibly several of the jurors indicated that they had heard what they wanted to hear. The trial judge advises us that the colloquy took place while the court reporter was in the witness box and therefore no record was made of the goings on. In view of the indication by the jury that they had heard enough the trial judge advises us that he did not cause Kramer’s testimony to be reread.

I join with my brothers in the majority opinion insofar as they accept the trial court’s recollection of the events as the most probable —' the record tends to support it ■— but I am still not persuaded that defendant had a full and fair trial. If some of the jurors were satisfied with hearing again Saperstein, without Kramer’s flat contradictions, then the questions addressed to the trial court by the foreman on the nature and extent of the meetings between Kramer and Saperstein were but partially — and perilously for Garrigan — answered. I am not satisfied that State v. Cox, 107 N. J. Super. 470 (App. Div. 1968), certif. den. 53 N. J. 510 (1969) is operative on this record. In Cox this Division specifically found that it could not perceive how the defendant there was prejudiced by the omission to read the entire testimony sought by the jury. I accept Cox but now reiterate, the thoughts in my dissent that in a case as close as this, I, plainly and simply, cannot find beyond a reasonable doubt that there was no prejudice of reversible magnitude. See again, U. S. v. Rabb, 453 F. 2d 1012 (3d Cir. 1971); U. S. v. Jackson, 257 F. 2d 41 (3d Cir. 1958).

I am not persuaded, even if the record stands supplemented, that it warrants a withdrawal of my dissent and accordingly I maintain it and vote to reverse the conviction.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY, PLAINTIFF-RESPONDENT, v. FRANCIS P. McHUGH, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 4, 1974
    Decided February 14, 1974.
    Before Judges Leonard, Allcorn and Crahay.

      Mr. Kelly T. Young argued the cause for the appellant (McGuire, Green & Young, attorneys).

      Mr. William A. Garrigle argued the cause for the respondent (Gasby & Garrigle, attorneys).
   Per Curiam.

The judgment is affirmed essentially for the reasons set forth in the opinion of Judge Bischoff, 124 N. J. Super. 105.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACK THYFAULT AND THERESA SIRIMARCO, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 21, 1974
    Decided February 20, 1974.
    Before Judges Lynch, Mehler and Michels.

      Mr. Thomas B. DurTcin, Jr., argued the cause for appellant.

      Mr. Steven J. Greenstein, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Michael H. Stieber, Assistant Prosecutor, of counsel).
   Per Curiam.

The judgment of the Essex County Court is affirmed essentially for the reasons set forth in the opinion of Judge Handler, 121 N. J. Super. 487.


author: Monaguan, G. E., J. D. C.,

text:
    GREGORY FARRELL AND MARY FARRELL, HIS WIFE, PLAINTIFFS, v. TOWNSHIP OF TEANECK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; GEORGE C. PETERSEN, BUILDING INSPECTOR OF THE TOWNSHIP OF TEANECK; AND THE MUNICIPAL COURT OF THE TOWNSHIP OF TEANECK, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 31, 1974.

      Mr. Jay M. Niederman for plaintiffs (Messrs. Olein, Pressler & Shapiro, attorneys).
    Jir. Jacob Schneider for defendants (Messrs. Schneider, Schneider & Behr, attorneys).
   Monaguan, G. E., J. D. C.,

Temporarily Assigned. This is a proceeding under the Uniform Declaratory Judgments Act, N. J. S. A. 2A:16-50 ei seq., and particularly, N. J. 8. A. 2A:16 — 53, seeking adjudication of the partial uncon- ' stitutionality of the Teaneck zoning ordinances as it pertains to the nonuse of political signs in residential zones. The basic issue for determination by the court may be succinctly stated: May a municipality in the State of New Jersey enact and enforce an ordinance which proscribes the construction, use, maintenance and display of any and all political signs in residential zones?

Plaintiffs Gregory and Mary Farrell have been, at all times herein relevant, residents and taxpayers of the defendant Township of Teaneck. On October 15, 1972 these plaintiffs annexed to the second story of their Teaneck residence a political sign bearing the legend “McGovernSchre.iber — 1972.” Their purpose in so doing was to express their political beliefs with respect to the 1972 presidential campaign. Shortly thereafter, plaintiffs were served with a summons and complaint in the Teaneck Municipal Court for alleged violation of Article Y, section II, subsection (g) of the Teaneck zoning ordinance. This ordinance constitutes a total proscription of the construction, maintenance and display of political signs in residential zones. As a result of this municipal court proceeding, plaintiffs instituted suit in the Superior Court of New Jersey seeking a stay of the municipal court action and an adjudication of the unconstitutionality of this section of the Teaneck zoning law.

Article Y, section II of the Teaneck zoning ordinance sets forth various types of permitted accessory uses and indicates that four types of signs are allowed in such residential zones: (1) name plates; (2) “For Sale” or “For Rent” signs; (3) identification signs for churches, schools or other public buildings, and (4) signs identifying home professional offices. Each of these permitted accessory uses is subject to various limitations as to size, shape, construction, etc. Because no express authorization is included for signs expressing political or other points of view, this ordinance in effect constitutes an absolute and total prohibition of such signs within residential districts.

It is the defendant township’s position that this ordinance is based on a well established, long history of concern in preserving propérty rights and concern for aesthetic values, and as such strikes a fair balance between these considerations and First Amendment rights. Although it is a generally accepted fact that the value of property is unextricably intertwined with aesthetic considerations, Napierkowski v. Gloucester Tp., 29 N. J. 481 (1959), we cannot assume that every tasteless choice of paint color or inartistic gardening effort results in a decrease in property values. Defendant failed to demonstrate to what degree, if at all, an ordinance which allowed a restricted type of sign for a limited period prior to elections would precipitate a decline in property values. In the absence of evidence indicating a possible effect on property values we must limit our examination to a consideration of the sufficiency of aesthetics as a proper basis for the prohibition created by the ordinance, and whether the restrictions are reasonable in light of the end intended.

There is a growing tendency in New Jersey to give more weight to aesthetic considerations in cases challenging the validity of ordinances prohibiting or regulating billboards, signs and connected activities. This has grown out of an awareness of the effect on the general welfare and community well-being which a well planned and aesthetically pleasing environment can have. New Jersey courts have for many years considered the aesthetic factors in determining the reasonableness of zoning ordinances. Point Pleasant Beach v. Point Pleasant Pavilion, 3 N. J. Super. 222 (App. Div. 1949); Vickers v. Gloucester Tp. Comm., 37 N. J. 232 (1962) ; Napierkowski v. Gloucester Tp., 29 N. J. 481 (1959).

Today, New Jersey allows a consideration of aesthetics in conjunction with other factors. It has provided at least a part of the impetus for the formulation of ordinances controlling the following activities: prohibiting outdoor signs oilier than those related to business conducted on the premises, United Advertising Corp. v. Raritan, 11 N. J. 144 (1952); United Advertising Corp. v. Metuchen, 42 N. J. 1 (1964) ; prohibiting trailers from being parked in certain areas for aesthetic reasons, Napierkowski v. Gloucester Tp., 29 N. J. 481 (1959); Livingston Tp. v. Marchev, 85 N. J. Super. 428 (App. Div. 1964), certif. den. 44 N. J. 412 (1964) ; prohibition of front yard fences over a certain height (safety and beauty), Klotz v. Englewood Cliffs Bd. of Adj., 90 N. J. Super. 295 (Law Div. 1966) ; prohibition of trailer camps and parks in an industrial zone, Vickers v. Gloucester Tp. Comm., 37 N. J. 232 (1967); outdoor storage of vehicles, N. Y. Central Railroad Co. v. Ridgefield, 84 N. J. Super. 85 (App. Div. 1964) ; minimum square feet for homes upheld, Lionshead, Lakes, Inc. v. Wayne Tp., 10 N. J. 165 (1952), app. dism. 344 U. S. 919, 73 S. Ct. 386, 97 L. Ed. 708, minimum lot size of five acres upheld, Fischer v. Bedminster Tp., 11 N. J. 194 (1952); prohibition of hotels and motels in residential district allowed, Pierro v. Baxendale, 20 N. J. 17 (1955); and height restriction allowed, Pequannock Tp. v. DeWilde, 21 N. J. Super. 517 (App. Div. 1952), adopting the dissenting opinion in Brookdale Homes, Inc. v. Johnson, 126 N. J. L. 516 (E. & A. 1941).

In recent years several jurisdictions have gone beyond the position that allows a consideration of aesthetics along with other factors and have decided that under certain conditions aesthetic considerations alone are a sufficient basis for zoning ordinances. Cromwell v. Ferrier, 19 N. Y. 2d 263, 279 N. Y. S. 2d 22, 225 N. E. 2d 749 (Ct. App. 1967), Lexington v. Govenar, 295 Mass. 31, 3 N. E. 2d 19 (Sup. Jud Ct. (1936).

Yew Jersey has not yet reached this point. In Piscitelli v. Scotch Plains Tp. Comm., 103 N. J. Super. 589 (Law Div. 1968), it was stated:

There is no doubt, and the law is well settled, that aesthetic value plays an important role in modern-day zoning legislation. Nevertheless, in this State it has been held that zoning power may not be exercised for purely aesthetic considerations. Passaic v. Paterson Bill Posting, etc., Co., 72 N. J. L. 285 (E. & A. 1905) ; Romar Realty Co. v. Board of Com’rs of Borough of Haddonfield, 96 N. J. L. 117 (Sup. Ct. 1921) ; Vassallo v. Board of Com’rs of City of Orange, 125 N. J. L. 419 (E. & A. 1940), Pfister v. Municipal Council of City of Clifton, 133 N. J. L. 148 (Sup. Ct. 1945) ; Hendlin v. Fairmount Const. Co., 8 N. J. Super. 310 (Ch. Div. 1950.) [at 597]

Thus, the hesitancy of the courts to support aesthetic interests at the expense of a landowner’s loss of unrestricted use of his property exists.

It is the plaintiffs’ position that the effect which the present ordinance is intended to have could be reached by less restrictive methods. In J. D. Const. v. Freehold Tp., Bd. of Adj., 119 N. J. Super. 140 (Law Div. 1972), the court, in discussing restrictive ordinances, stated:

Zoning regulations must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not have offensive character of those which caused the problem sought to be ameliorated.
[Zoning regulations] must not impress unnecessary and excessive restrictions on use of private property.
Test of validity of a municipal zoning ordinance is reasonableness of ordinance viewed in light of existing circumstances in the communiiy and the physical characteristics of the area; cognizance must be taken of the problem to be solved by the municipality, [at 145]

After a close examination it is the opinion of this court that while aesthetics is a valid motivating force, the ordinance in question is unduly restrictive.

In the present case we are dealing with an ordinance which has restricted the mode by which individuals may express a political position. Such expression strikes a good deal closer to the First Amendment than a prohibition against commercial advertising through billboards or any of the many other areas in which aesthetics has been the motivating force for the prohibitions contained in zoning ordinances.

Any restriction of First Amendment rights must be limited to only that which is necessary to accomplish the intended purpose.

An Ohio case, Peltz v. City of South Euclid, 11 Ohio St. 2d 128, 228 N. E. 2d 320 (1967), cited by plaintiffs, involved an ordinance which prohibited political signs from the entire city for both aesthetic and traffic safety purposes. The Supreme Court of Ohio found this ordinance in violation of the First and Fourteenth Amendments. The court stated (at 324) that “Even the regulation of traffic may not be attempted by means which invade explicit constitutional liberties.”

The ordinance in question, as a result of its broad prohibitions, upsets the delicate balance between zoning for the community welfare and individual freedom.

It is this court’s belief that an ordinance can be framed which would allow individuals to express their political opinions as desired by plaintiffs but which could be sufficiently restrictive to prevent all but a minimal reduction in the local aesthetic values.

In accordance with the above stated opinion, judgment is granted for plaintiffs.


author: Kole, J. S. C.,

text:
    IRENE LINDER, PLAINTIFF-RESPONDENT, v. RALPH B. LINDER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 3, 1973
    Decided February 6, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. Bobert J. Benbrooh, attorney for appellant {Mr. J. Douglas Orr on the brief).

      Messrs. Pillsbury, Barnacle, Bussell and Carton, attorneys for respondent {Mr. Bobert B. McLeod, on the brief).
   The opinion of the court was delivered by

Kole, J. S. C.,

Temporarily Assigned. On January 7, 1964 plaintiff filed with the Monmouth County Juvenile and Domestic Eolations Court a complaint seeking support for herself and two minor children, alleging that defendant, her lawful husband, had deserted and failed to support them.

On February 21, 1964, following a hearing, an order was entered requiring defendant to pay $36 a week for the support of his wife and two children. Defendant’s application for temporary custody of the children was denied December 8, 1964. On March 19, 1965 an amended order was entered requiring defendant to pay an additional $5 a week until arrearages of $144 were paid in full. On September 30, 1966 defendant filed an application for rehearing and modification of the order of March 19, 1965. On January 17, 1967 a rehearing was held bnt a modification of the order was denied.

On March 15, 1968, after a hearing on motion of the County Probation Office to recover an arrearage of $587 on the March 19, 1965 order, an amended support order was entered requiring defendant to pay $36, plus an additional $5 a week, until the arrearage was satisfied.

On February 1, 1973 the Probation Office initiated a proceeding to enforce plaintiff’s rights against defendant, alleging an arrearage of $8,708. At the subsequent hearing on March 23, 1973 an order was entered fixing $6,000 as accumulated arrearages and directing that defendant be arrested and jailed unless payment of the $6,000 be made by April 23, 1973. The judgment was stayed pending appeal.

At that March 1973 hearing, for the first time defendant’s counsel informed the court that in 1963 the parties had been divorced by a Mexican decree. The court refused to admit evidence of that decree, holding that it would not upset the 1967 ruling finding defendant liable for plaintiff’s support; that defendant should have appealed the support order, and that it had jurisdiction to hear and determine the matter in aid of litigant’s rights. This appeal followed.

The parties were married in 1956 and have two children born prior to the marriage. In July 1963 defendant sued plaintiff for divorce in the City of Juarez, State of Chihuahua, Mexico. Defendant appeared personally in the Mexican proceeding. PlaintifE filed a power of attorney, executed in June 1963, in which plaintiff submitted to the jurisdiction of the Mexican court and acknowledged the incompatibility of temperaments constituting the grounds for the divorce. On July 16, 1963 a divorce decree was entered by the Mexican court and the custody of the two children was granted to plaintiff. A March IS, 1963 separation agreement was incorporated therein by reference.

The 1964 support order and the subsequent orders did not separately designate the amounts payable to plaintiff and those payable to the children. The appeal challenges the portion of the March S3, 1973 judgment establishing accumulated arrears representing support money for plaintiff alone. The sole ground of appeal is that the Juvenile and Domestic Relations Court lacked jurisdiction-to award or enforce an. order for the support of plaintiff in view of the 1963 divorce decree.

Plaintiff’s 1964 complaint was brought pursuant to N. J. S. A. 2A:4-18(e), which reads as follows:

The juvenile and domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints:
>*< * sis * * a? % *
e. Involving the domestic relation, where a husband or father deserts his wife or child even though they continue to live in the same household, in which case the court may order adequate support of his wife, child or family.

The jurisdiction of the Juvenile and Domestic Relations Court (hereinafter sometimes “the Juvenile Court”) cannot be conferred by consent and is limited to the subject matter set forth in the statute. State v. Bruneel, 14 N. J. 53, 58 (1953); Gregg v. Bergen County Juvenile and Domestic Relations Court, 133 N. J. L. 89, 91 (E. & A. 1945); Compton v. Compton, 109 N. J. Super. 5, 8 (App. Div. 1970); Tracey v. Tracey, 69 N. J. Super. 382, 388 (App. Div. 1961). To obtain support in that court for herself, as opposed to the children of the marriage, a woman must be married to the defendant at the time the action is commenced; otherwise, subject matter jurisdiction is lacking. Curley v. Curley, 37 N. J. Super. 351, 356 (App. Div. 1955).

With the foregoing principles in mind, defendant places his sole reliance on the case of Zito v. Zito, 12 N. J. Misc. 712 (J. & D. R. C. 1934). In that case the court denied support to a wife where the defense was based on a Nevada divorce decree between the parties. Although there was evidence that the validity of the Nevada divorce might be subject to attack on the basis of fraud, the court declined to rule on its validity, holding that it was without jurisdiction to do so. It concluded that the Legislature never intended the Juvenile Court to have the authority to determine the validity of foreign divorce decrees.

We hold that Zito was decided incorrectly. It is hereby overruled.

The Juvenile Court has the authority to determine whether it has jurisdiction in any case before it. Since, apart from maintenance of children, it may only order support of a “wife,” of necessity it must determine whether plaintiff and defendant are married before its jurisdiction in this respect may be exercised. Where that inquiry involves an appropriately raised defense as to the validity of a divorce between the parties, it must decide that threshold issue. There is nothing in the Juvenile and Domestic Relations Court Act which precludes that determination. See Rehder v. Rehder, 13 N. J. Misc. 310 (J. & D. R. C. 1935); Tasto v. Tasto, 4 N. J. Super. 547 (App. Div. 1949); Tegenborg v Tegenborg, 26 N. J. Super. 467 (App. Div. 1953). Where, as here, the statute does not prohibit the exercise of such authority by that court, the power to do so will be implied. See Mattox v. Mattox, 43 N. J. Super. 111, 115 (App. Div. 1956); D. v. D. 56 N. J. Super. 357, 361 (App. Div. 1959).

When Zito was decided, the statute expressly excepted from Juvenile Court jurisdiction matters cognizable in the Court of Chancery and limited its authority to grant support for a wife to situations where she might become a public charge. Lassaso v. Lassaso, 1 N. J. 324, 328 (1949); Bonanno v. Bonanno, 4 N. J. 268, 273 (1959). Nevertheless, then, as now, the court was vested with “all the powers, rights and privileges incident to hearing, determination and final disposition” of all support cases over which it had jurisdiction “as are or may be exercised * * * by any other court having jurisdiction over such cases.” N. J. S. A. 2A:4-19. This authority includes the usual power of a court to determine whether it has subject matter jurisdiction of a case before it. See 20 Am. Jur. 2d, Courts § 92 (1965).

In any event, since Zito the statute was amended in 1946 to confer on the Juvenile Court concurrent jurisdiction with the Superior Court in eases involving the support of a wife, actually or constructively deserted. N. J. S. A. 2A:4-18, subsections (e) and (f); Bonanno v. Bonanno, supra. In all such cases the concurrent authority includes the power to decide the continued existence of the marriage and the validity of any intervening divorce. If the divorce is valid, support for plaintiff must be sought in the Superior Court; if it is not, her maintenance as a wife may be obtained either in the Juvenile Court or the Superior Court.

The purpose of the Juvenile Court Act is to provide a forum in which adequate support for wives who meet the legislative prerequisites therefor may be afforded expeditiously. Wilson v. Wilson, 86 N. J. Super. 61, 64 (App. Div. 1964); Tracey v. Tracey, supra, 69 N. J. Super, at 388. To require recourse to the Chancery Division of the Superior Court whenever the validity of a foreign divorce is involved would thwart the legislative intent.

Admittedly, jurisdiction over subject matter may not be conferred by consent or be waived and lack of such jurisdiction may be raised or noted at any time. R. 4:6—7; State v. Bruneel, supra; Tracey v. Tracey, supra; McKeeby v. Arthur, 7 N. J. 174, 181 (1951). However, the court rules contain liberal provisions for transfers of actions among courts where subject matter jurisdiction is involved. R. 1: 13-4.

If in 1964 the parties were validly divorced, the Juvenile Court, having so found, would have been without jurisdiction to award plaintiff support then or thereafter and the order appealed from would be a nullity. But to project this case as one involving subject matter jurisdiction with respect to all of the support orders prior to and including the 1973 judgment for arrears is to permit a legal label to obfuscate the real issue.

When the original order was entered in 1964, the court had subject matter jurisdiction to award support for defendant’s wife. By not raising the Mexican divorce as a defense in that hearing, defendant acquiesced in the implied jurisdictional finding by the court that plaintiff was then his wife. His continued failure to raise that defense during later proceedings, even when he was the moving party, until some nine years after the 1964 order was entered, lends added support to the conclusion that the court below had jurisdiction to adjudicate and enforce that order, at least to the extent of moneys due thereon to plaintiff as of March 23, 1973. This result would not bar defendant’s later contest, by appropriate motion, of the Juvenile Court’s continued jurisdiction to award plaintiff support since March 23, 1973 by reason of the divorce. See Kershner v. Kershner, 39 N. J. Super. 604, 607 (J. & D. R. C. 1956); McKeeby v. Arthur, supra. If such a motion is made, that court may then decide, on the proofs before it, whether the divorce is valid or whether equitable principles such as laches, estoppel or unclean hands should preclude future relief to one or both parties even if it is found to be invalid.

The record furnishes no clue as to what transpired during any hearing prior to that in March 1973 when the judgment was entered. It is not idle to assume that, although then not known to the court, the amount of support set forth in the 1964 order substantially reflected the support provisions of the separation agreement incorporated in the Mexican decree. The latter stated that the agreement was “not merged therein” but was to “survive the decree * * * and continue to have full force and effect.” This may explain defendant’s failure to apprise the court of the divorce decree.

In any event, whether or not the Mexican divorce were valid, in 1964 plaintiff could have obtained adequate support for herself in the Superior Court, Chancery Division, either in accordance with the separation agreement or irrespective thereof. See fn. 3. The 1964 and subsequent support orders were entered after hearings before the court below. They are not being attacked here as providing excessive support to plaintiff. Neither the amount of arrears established by the judgment below nor any other provision thereof is now challenged, except for the limited jurisdictional issue raised.

Accordingly, we modify the judgment below to provide for an extension of the time for defendant to pay the $6,000 arrears to 30 days from the date of this opinion, and as so modified, it is affirmed.

Remanded to the Monmouth County Juvenile and Domestic Relations Court for proceedings consistent with this opinion-.

      Althongh the judgment appealed from refers to arrears on the order of March 15, 1968, the amount of basic support required has not changed since the original order of February 21, 1964. We have considered the latter to be the order of support for the purpose of this appeal. The March 23, 1973 order hereafter will be referred to as a judgment.

      The standards for desertion or cruelty resulting in constructive desertion may differ, however, to some extent in the two courts. See Mattox v. Mattox, supra,- Compton v. Compton, supra. Again, the Superior Court has jurisdiction to award support to a wife where there is a consensual separation; the Juvenile Court does not. Caravella v. Caravella, 36 A. J. Super. 447 (App. Div. 1955). Cf. Daly v. Daly, 39 A. J. Super. 117 (J. & D.R.C. 1956), aff’d 21 N. J. 599 (1956). In any event, her status as a wife must be determined by the court involved before a support order may be entered.

      See N. J. S. A. 2A:34-23, 2A :34-24, 2A:34-24.1; Schlemm v. Schlemm, 31 N. J. 557 (1960) ; Hudson v. Hudson, 36 N. J. 549 (1962) ; Berkowitz v. Berkowitz, 55 N. J. 564 (1970) ; Schiff v. Schiff, 116 N. J. Super. 546 (App. Div. 1971), certif. den. 60 N. J. 139 (1972).

      We note, without deciding, that the purported Mexican divorce may be void on its face. Warrender v. Warrender, 79 N. J. Super. 114, 118 (App. Div. 1963), aff’d o.b. 42 N. J. 287 (1964). See Kugler v. Haitian Tours, Inc., 120 N. J. Super. 260 (Ch. Div. 1972) ; Annotations, 13 A. L. R. 3d 1419 (1967). As to the application of the equitable principles referred to, see Warrender, supra, 79 N. J. Super, at 119; Weinberg v. Todd Shipyards, 97 N. J. Super. 289, 293 (App. Div. 1967), certif. den. 51 N. J. 9 (1967).


author: Halpern, P. J. A. D. Matthews, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN W. MC LAUGHLIN, ANGELO BEVACQUA, DEFENDANTS-APPELLANTS, AND FRANK L. DE MARCO AND FRANCIS E. RIEMAN, DEFENDANTS.
    Superior Court- of New Jersey Appellate Division
    Argued December 18, 1973
    Decided February 6, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. William P. Verdón argued the cause for appellant John M. Deegan (Messrs. Meyner, Landis and Verdón, attorneys) .

      Mr. Lawrence P. Brady, Jr. argued the cause for appellant Joseph B. Stapleton.

      Mr. Kenneth I. Hyman argued the cause for appellant Angelo Bavacqua (Messrs. Krivit, Levitov, Miller, Galdieri and He Luca, attorneys).

      Mr. Patríele H. Gonaghan, attorney for appellant John W. McLaughlin, filed a statement in lieu of brief.

      Mr. Armand Pohan, Special Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Edwin H.

      Stern, Special Deputy Attorney General, and John De Gicco, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

This is an appeal by John M. Deegan, Joseph B. Stapleton, John W. McLaughlin and Angelo Bevacqua, four of the five Hudson County Pension Commissioners (Commission), from judgments of conviction entered on a jury verdict finding them guilty of (a) conspiracy to pervert the due administration of the pension laws {N. J. S. A. 43:10-1 et seq. and N. J. S. A. 2A:98-1 and 2), (b) unlawfully assisting a public official, John J. Kenny, in obtaining county funds by granting him an illegal pension (N. J. S. A. 2AA35-3), and (c) misconduct in office (N. J. S. A. 2A-.85-1). The fifth Commissioner, Frank L. De Marco, who was jointly tried with appellants and was convicted only of misconduct in office, has not appealed. The Commission’s examining physician, Dr. Erancis E. Rieman, who was charged only with conspiracy, was acquitted by the jury. Rieman was the only -defendant who testified at the trial.

The original indictment contained 84 counts. As the result of a pretrial conference, appellants were tried only on 21 counts, namely: count 1 which charged conspiracy; count 84 which charged misconduct in office in that appellants failed to observe statutory standards for the award of disability pensions, failed to ascertain whether an applicant’s disability claim was work-connected when he had worked for less than 20 years, illegally reinstated members who had withdrawn from the pension fund, and illegally gave-pensions to 25 persons named in counts 2 through 83 of the original indictment; and 25 counts which charged unlawful assistance to named public officials in obtaining illegal pensions. Appellants’ pretrial motions for dismissal of the indictment were denied. Their applications for leave to appeal from such denial were denied by this court.

I.

We turn first to review the trial court’s refusal to dismiss the indictment because the primary thrust of this appeal, as asserted by appellants, depends upon the disposition of this issue which is entwined with the charge of misconduct in office. Appellants argued in the trial court, as they do here,1 that they “did not violate any duties and there was no evidence presented to the grand jury to support the return of the indictment * *

Count 84 of the indictment, which charged appellants with misconduct in office, alleged:

1. At all times between the 20th day of February, 1968 and the 20th day of May, 1971, in thep lace and jurisdiction aforesaid, JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN W. MO LAUGHLTN, ANGELO BEYACQUA and FRANK L. DE MARCO did hold public office and did act as members of the County Employees’ Pension Commission of the County of Hudson, and as such were charged by law with the proper and faithful control and management of the County Employees’ Pension Fund of the County of Hudson and of the retirement of employee members of the said Pension Fund in accordance with the laws of the State of New Jersey and the provisions of 11. S. 43 :10-1, ei seq.
2. On Divers dates between the 20th day of February, 1968 and the 20th day of May, .1971, in the place and jurisdiction aforesaid, the said JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN AY. MC LAÜGHLIN, ANGELO BEYACQUA and FRANK L. DE MARCO, holding public office as members of the said Pension Commission. in violation of their duties, willfully and unlawfully did approve and award a total of at least $392,946.00 in annual disability pensions to at least 100 employees of the County of Hudson without having observed the standards for, and without having made proper and faithful inquiry into the facts necessary to make, the determination of disability which the said defendants were required to make according to law, to wit, R. S. 43 :10-3 and R. S. 43 :10-4.
3. On divers dates between the 20th day of February, 1968 and the 20th day of May, 1971, in the place and jurisdiction aforesaid, the said JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN AY. MC LAÜGHLIN, ANGELO BEVACQUA and FRANK L. DE MARCO, holding public office as members of the said Pension Commission, in violation of their duties, willfully and unlawfully did approve and award a total of at least $237,215.00 in annual disability pensions to at least 68 employees of the County of Hudson, each of the said employees having at the time of his respective award less than 20 years’ service with the County, the said defendants willfully and unlawfully having failed to observe the standards imposed by law for the awarding of disability pensions to such employees, to wit, R. S. 43:10-4, and having failed to determine whether the alleged disabilities of the said employees arose out of and in the course of service with the County of Hudson.
4. On divers dates between the 20th day of February, 1968 and the 20th day of May, 1971, in the place and jurisdiction aforesaid, said JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN W. MC LAUGHLIN, ANGELO BEVACQUA and FRANK L. DE MARCO, holding public office as members of the said Pension Commission, in violation of their duties, willfully and unlawfully did reinstate as members of the said Pension Fund divers persons who had previously withdrawn from the said Pension Fund, said rein-statements being contrary to the provisions of R. S. 43 :10-1, et seq.
5. The Grand Jurors aforesaid repeat the allegations of Counts Two through Eighty-three and make the same a part hereof as though fully set forth herein.
ALL of the foregoing being contrary to the provisions of N. J. S. 2A:85-1, against the peace of this State, the government and the dignity of the same.

As hereinafter discussed, we hold that the 84th count properly charged appellants with misconduct in office under N. J. 8. A. 2A :85 — 1 because they were charged with unlawful behavior in relation to their official duties intrusted to them by virtue of their public office as pension commissioners. State v. Cohen, 32 N. J. 1, 8 (1960); 1 Burdick, Law of Crime § 272 at 388 (1946).

Whether a statutory duty is imposed upon a public officer is a legal issue. The factual .issues relating to employees who received pensions, their ages, length of service, amount of pensions awarded, and other related factual matters are not in dispute. What is in issue, in connection with the misconduct in office charge, is appellants’ contention that they were not charged by statute, directly or indirectly, with the legal duty (a) to determine whether an employee was qualified to receive a pension because of a physical disability, (b) to determine whether an alleged disability was work-connected, and (c) to prohibit the reinstatement of previously withdrawn pension employees. Therefore, they argue they violated no statutory duty upon which an indictment, or their convictions, could be founded. We disagree.

The Commission came into being under the provisions of N. J. S. A. 43:10-1 et seq. Hudson being a first-class county, the Commission was comprised of five members selected in accordance with N. J. S. A. 43 :10-10. With respect to eligibility by county employees for pensions, three classifications are made:

43:10-2. Retirement for service and age
An employee of a county of the first class who shall have served in the county’s employ for a period of twenty years and reached sixty years of age, shall, upon his own application, be retired on half pay. 43:10-3. Retirement for service and disability
An employee of a county of the first class who shall have served in the county’s employ for a period of twenty years and shall have been found, as hereinafter provided, to be physically unfit for further service, shall, whether or not he has reached sixty years of age, upon written application to the pension commission, be retired on half pay.
43 :10-4. Retirement for disability, injury or disease; examination; determination by commission
A county employee who shall have received a permanent disability by reason of injury, accident or sickness, incurred at any time in the service, which permanently incapacitates him, shall, upon the certificate of a physician designated for that purpose by the pension commission, be retired on half pay.
When a county employee desires to retire by reason of injury or disease, he shall apply in writing to the pension commission for retirement. Thereupon, the pension commission shall call to its aid a regularly licensed and practicing surgeon or physician and the person making the application may likewise call to his aid a regularly licensed and practicing surgeon or physician. The president of the pension commission may administer oaths to any persons called before the commission regarding the matter. If the two surgeons or physicians so called fail to agree upon the physical condition of the applicant, the pension commission may call a third and disinterested, licensed and practicing physician or surgeon and the determination of a majority of them, they having been first duly sworn, shall be reduced to writing and signed by them. The commission shall decide, by resolution, whether the applicant is entitled to the benefits of this article and shall consider the physicians’ or surgeons’ determination in reaching its decision. [As amended, L. 1947, c. 129, p. 601, §1]

To determine the legal issues presented, it is essential to outline the uneontroverted facts as to how employees applied for pensions and how they were processed by appellants. In addition, the relevant facts pertaining to the John J. Kenny pension will be discussed separately since appellants were convicted only in connection with the pension granted to him.

Approximately 100 pensions, totalling annual payments of about $400,000, were granted by appellants between February 1968 and May 1971. Each pension application here involved was made under the provisions of N. J. 8. A. 43: 10-3 or N. J. 8. A. 43 :10-4. The Commission did not initiate any of them.

Applications for pensions were delivered to Michael Casserly, secretary to the Commission, who testified-to the procedure used in processing them. He arranged for Dr. Francis Rieman, the County Medical Examiner and Commission physician, to examine the applicants. Rieman’s medical reports were placed in the applicant’s file folder and delivered to the Commission at its monthly meeting. Casserly would inform the Commissioners at the meeting' of the applicant’s name, .age,. address, department and term of employment, and without reading the entire medical report, he would recite the recommendation made by Rieman. The applicant’s prior medical or employment history was not considered before voting. Nor did the Commissioners ever discuss the legal standards of disability, or whether the disability was work-connected. Casserly’s testimony as to the processing procedure was not controverted — in fact it was corroborated by Dorothy Reith, the recording secretary of the Commission.

We turn to the disability pension granted to John J. Kenny. Dr. Joseph Timmes, Director of Cardio-thoracic Surgery at Poliak County Hospital, in Jersey City, testified that on July 31, 1970 he took the blood pressure of John J. Kenny at the request and in the presence of John Y. Kenny, (a Democratic leader of Hudson County). At John Y. Kenny’s request he certified, in writing, that John J. Kenny’s blood pressure was 180/105.

Dr. Pieman testified that at John Y. Kenny’s request, made by telephone on August 10, 1970, he scheduled an appointment to examine John J. Kenny on August 11, 1970. The appointment was not kept. On August 13, 1970 appellant Joseph B. Stapleton asked Dr. Pieman for John J. Kenny’s disability certificate. He admitted that although he had not examined John J. Kenny ho delivered the signed report on August 13, 1970 certifying to such examination but dated it August 12, 1970.

Thus, when John J. Kenny’s pension was granted at the specially convened Commission meeting on August 12, 1970, Kenny had not been examined by Pieman, nor did appellants have before them a medical certificate with reference to him. We should note here that the August 12, 1970 special meeting was the only one at which Casserly was not present, and that De Marco, who was also absent, was acquitted by the jury of the conspiracy charge and the charge of granting an illegal pension to John J. Kenny.

As against this factual testimonial background, with respect to all the pensions granted, appellants rely upon their argument that they were under no legal duty to independently confirm Pieman’s medical reports, to ascertain if the disabilities were work-connected, or to follow up on the applications, because they relied in good faith on Pieman’s medical reports.

With particular respect to John J. Kenny’s pension they argue that in view of the voluminous trial testimony “the convictions for conspiracy and granting an illegal pension to J. J. Kenny cannot be considered independent and severable but rather must be considered as tainted by the entire proceedings.” This ingenious argument is made because they realize that the illegality of granting a pension to John J. Kenny, standing alone, is sufficient to sustain their convictions for conspiracy and the granting of an illegal pension even if it could be said they were not guilty of misconduct in office.

We commence the consideration of appellants’ statutory duties by pointing out that if their arguments are meritorious then, for all practical purposes, Dr. Rieman would be the sole judge as to eligibility for disability pensions. Such abrogation of their duties was not intended by the Legislature in enacting N. J. S. A. 43:10-1 et seq. On the other hand, considering the statutory pension scheme as a whole, the conclusion is inescapable that appellants, when considering pension applications, were under a statutory duty to determine pension eligibility and, where applicable, whether the claimed disability was work-connected.

N. J. 8. A. 43 :10-2, 3 and 4 are parts of a comprehensive statutory scheme designating when, and under what circumstances, county employees are entitled to pensions. N. J. 8. A. 43:10-2 is not here involved since it specifically mandates that those who have served for 20 years and have reached the age of 60 shall, upon application, be retired on half-pay.

N. J. 8. A. 43 :10-3 applies only to an employee who has served for 20 years and who is found to be “physically unfit for further service, shall, whether or not he has reached sixty years of age, upon written application to the pension commission, be retired on half pay.” This section covers employees who have been employed for 20 years, but who are now physically unfit for further service regardless of cause and whether work-connected or not. See Ursi v. County Employes Pension Comm’n, Essex County, 120 N. J. L. 52, 53 (Sup. Ct. 1938).

The first paragraph of N. J. S. A. 43 :10-4 permits the Commission, on its initiative, to retire those in the county employ who suffer a permanent disability by reason of injury, accident or sickness “incurred at any time in the service, which permanently incapacitates him * * *.” The first paragraph of the statute further provides that the pension shall be granted “upon the certificate of a physician designated for that purpose by the pension commission * * *.” We construe this paragraph of the statute to be applicable only if the “permanent disability” is work-connected, regardless of age or length of service, when the Commissioners initiate the retirement procedure. Since none of the pensions granted in the instant case was initiated by the Commission, this paragraph of the statute is not involved, except to the extent that it is indicative of the legislative intent that the Commission has the duty of determining eligibility and not the examining doctor. Wagner v. County Employees Pension Comm’n, Essex County, 130 N. J. L. 230 (E. & A. 1943).

It is under the second paragraph of N. J. S. A. 43 :10-4 that most of the county employees here involved applied for and were granted pensions. A fair reading of this paragraph clearly indicates again that the Commission must determine whether to grant a disability pension, and not the examining doctor. It prescribes that the Commission “shall call to its aid a regularly licensed and practicing surgeon or physician and the person making the application may likewise call to his aid a regularly licensed and practicing surgeon or physician * * *.” The statute does not make the doctors’ reports binding upon the Commissioners. Significantly, if an employee’s doctor disagrees with the Commission’s doctor as to the employee’s “permanent disability,” the Commission “may” call a third doctor. All these provisions are made to aid the Commission in making its ultimate determination. See Ruvoldt v. Nolan, 63 N. J. 171, 180-181 (1973), wherein the court stated: “The commission decides by resolution whether the applicant is entitled to the pension and is required to consider the physicians’ determinations in that regard.” (Emphasis added). This is iterated in the statute’s last sentence.

* * * The commission shall decide, by resolution, whether the applicant is entitled to the benefits of this article and shall consider the physicians’ or surgeons’ determination in reaching its decision. [Emphasis added!

This same theme is again repeated in the applicable portion of N. J. 8. A. 43:10 — 11 which provides:

The pension commission shall have control and management of the funds and of the retirement of the county employees, and may make all necessary rules and regulations regarding the same not inconsistent with this article. All retirements shall he made and pensions allowed hy the pension commission. [Emphasis added]

The fact that statutory pension provisions for employees other than county employees may place responsibility for retirement on medical certifications alone is not dispositive of the issues before us. Appellants’ reliance on these statutory provisions is misplaced. We are relegated to and concerned with the legislation covering pensions for county employees which we find places the responsibility of granting pensions squarely upon the Commission, and not upon the doctor as asserted by appellants.

II.

Appellants contend they were not guilty of misconduct in office because they were under no statutory duty to determine, with respect to employees with less than 20 years service, whether their alleged disability claims for pensions were work-connected. They assert that the test to determine disability is “permanent disability” regardless of cause or whether work-connected. They assert that the test to determine disability is “permanent disability” regardless of cause or whether work-connected. They analogize the term used in N. J. 8. A. 43:10-3 (“physically unfit for further service”) with the term used in N. J. 8. A. 43 :10-4 (“permanent disability”), and conclude the statutes only differentiate degree or level of disability, not the cause of disability. We disagree.

N. J. 8. A. 43:10-4, in relevant part, specifically provides:

, A county employee who shall have received a permanent disability by reason of injury, accident or sickness, incurred at any time in the service, which permanently incapacitates him, shall * * * be retired on half pay. [Emphasis added]

'Our interpretation of this section of the statute is reflected in the analytical treatment it received in Ursi v. County Em ployes Pension Comm’n, Essex County, 120 N. J. L. 52 (Sup. Ct. 1938), wherein Justice Heher said:

The legislative scheme is to be gleaned from all the provisions of the enactment, taken and compared together. While in this particular, at least, the language employed may be said to be lacking in clarity, it cannot reasonably be gainsaid that the act classifies disability as respects a causal relation to the service. Where it has no such relation, the employee is, by section 3, granted the right of retirement, even though he has not reached the age of sixty years (the time when, Tinder section 1, his right to retirement accrues, irrespective of physical condition), provided he has been in the service for twenty years. But where the disability results from “injury, accident or sickness, incurred at any time in the service,” section 5 confers the right of retirement regardless of the length of the service, if permanent incapacity ensues. This section treats of disability flowing from injury, accident or sickness arising out of the employment; and any doubt as to the legislative meaning respecting the period of service is dispelled by the use of the phrase “at any time” in laying down the requirements of pensionable disability under this head. The reasonable intendment is that the pension right accrues upon the happening of the prescribed event, i. e., permanent incapacity of the stated class, no matter when it occurs. Tat 53; emphasis added]

See also to the same effect, Wagner v. County Employees Pension Comm’n, Commission of the County of Essex, 129 N. J. L. 288, 289 (Sup. Ct. 1942), rev’d on other grounds 130 N. J. L. 230 (E. & A. 1943); Meehan v. County Employees’ Pension Comm’n, Essex County, 133 N. J. L. 212 (Sup. Ct. 1945), aff’d 135 N. J. L. 17 (E. & A. 1946).

We, therefore, conclude that appellants had the obligation to determine whether employees seeking pensions under N. J. S. A. 43:10-4 were permanently disabled, and whether such disability was work-connected.

ITT.

Appellants further contend they were not guilty of misconduct in office, as one of the bases charged in the indictment, because they were under no statutory duty to prohibit the reinstatement of employees to the pension fund-who had previously withdrawn from the pension fund. The Commission’s practice in this regard varied through the years. Initially, all who sought reinstatement were required merely to repay the funds withdrawn. Subsequently, at the advice of their auditor, the procedure was changed so that employees under 45 years of age had to pay into tire fund 3% of their annual salaries received for each of the years they were employed. Employees over 45 were required to pay 3% of their present salaries received for the years they were employed. The rule promulgated by the Commission in this respect was contained in a form signed by withdrawing employees which provided:

I am aware that in withdrawing this money, I will cease to have any claim against the Pension Fund and that upon acceptance of this refund I will be ineligible to join at any time in the future.

Admittedly, no express statutory provision exists to permit or to prohibit reinstatements after withdrawals, but it was appellants’ implicit duty to preserve and not permit misuse of public funds. Their flagrant disregard of their own rules is relevant to the extent that the jury may infer misconduct when one considers that the pension fund in question had an actuarial deficit of about $2,000,000 in 1968. The effect of the reinstatements was to make the pension fund a credit union for employees who entered and left at will. As indicated, the fact that the pension statutes do not specifically mandate that appellants prohibit reinstatements is not dispositive of their duties. The power to act imports a duty to act when the public interests suggest to the public officials that something should be done. McDonough v. Roach, 35 N. J. 153, 157 (1961).

IY.

As previously indicated, appellants’ principal argument is that they are not guilty of misconduct in office because the State has failed to show they willfully breached a clearly imposed statutory duty. Again, we disagree. Much of what has heretofore been said is equally applicable to appellants’ instant contention.

Certain general legal principles should be initially recognized. Penal statutes must be strictly construed, and criminal responsibility must rest upon clear and direct statutory language. State v. Carbone, 38 N. J. 19 (1962); State v. Fair Lawn Service Center, Inc., 20 N. J. 468 (1956). However, “reason is the soul of law” and “scholastic strictness is to be avoided in the search for the legislative intention.” San-Lan Builders, Inc. v. Baxendale, 28 N. J. 148, 155 (1958). In order to arrive at the legislative purpose, the judicial function is to interpret and reconcile statutory phraseology. State v. Provenzano, 34 N. J. 318, 322 (1961). Finally, penal statutes should be construed with common sense consonant with the Legislature’s objectives. United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 73 S. Ct. 227, 97 L. Ed. 260 (1952); State v. Provenzano, 34 N. J. 318, 322 (1961); 3 Sutherland, Statutory Construction (3 ed. 1943), § 5606 at 57.

These general legal principles are particularly applicable when construing statutes relating to duties of public officials. Appellants stand in a fiduciary relationship to the public and the employees of Hudson County for whom they have been elected or appointed to serve.

* * * As fiduciaries and trustees of the public weal they are under an inescapable obligation to serve the public with the highest fidelity. In discharging the duties of their office they are required to display such intelligence and skill as they are capable of, to be diligent and conscientious, to exercise their discretion not arbitrarily but reasonably, and above all to display good faith, honesty and integrity. * * **
These obligations are not mere theoretical concepts or idealistic abstractions of no practical force and effect; they are obligations imposed by the common law on public officers and assumed by them as a matter of law upon their entering public office. [Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 474-476 (1952), cert. den. 344 U. S. 838-839, 73 S. Ct. 25, 97 L. Ed. 652 (1952)]

When construing statutes which prescribe the duties and obligations of public officials, we recognize that it is a practical impossibility to spell out with specificity every duty of the office and, therefore, courts take judicial notice of the duties which are inherent in the very nature of the office. See Slate v. Winne, 12 N. J. 152 (1953); State v. Weleck, 10 N. J. 355 (1952); State v. Gleitsmann, 62 N. J. Super. 15 (App. Div. 1960), certif. den. 33 N. J. 386 (1960); 2 Schlosser, Criminal Laws of New Jersey (3 ed. 1970), § 74:2 at 288-289; 63 Am. Jur. 2d, Public Officers and Employees, § 347 (1972).

Having in mind the uncontroverted facts pertaining to the granting of John J. Kenny?s pension without even a prior medical examination, it is obvious that there was sufficient credible evidence presented by the State to sustain appellants’ convictions for conspiracy and the illegal granting of Kenny’s pension. Appellants’ continued insistence that we should not give too much weight to the Kenny pension because it must be considered as tainted by the entire proceedings, has a'very hollow ring.

The facts surrounding the Kenny pension, standing alone, even though there are additional grounds as herein discussed, are sufficient also to sustain the conviction for misconduct in office. The pension statutes for county employees, when considered as a whole, impose upon appellants as a Commission the inherent duty of promulgating appropriate rules and regulations to guide its examining physician, its employees and its own actions, specifying when an employee is “physically unfit” for further service, and when he is permanently disabled so as to be deemed “permanently incapacitated.” See N. J. S. A. 43 :10-11. Appellants had the duty of checking and following up on the eligibility of each applicant applying for a pension. It was their duty and obligation- to do: everything reasonably foreseeable to enhance and preserve 'the pension'funds submitted to their trust.

"We recognize- that it is often difficult to draw a line between negligent-conduct and unlawful conduct, but the standards fixed in State v. Begyn, 34 N. J. 35 (1961) by Justice Hall are worth repeating:

* * The degree or nature of the requisite evil will vary with the situation. For example, in nonfeasance, intentional and deliberate refusal or forbearance to perform one’s clear duty, without lawful excuse, sufficiently described by the phrase “wilfully and unlawfully” is adequate, whereas mere negligence or honest mistake of judgment is not enough .... And in all misconduct cases, even though it may be impossible to present direct proof of an express agreement, “aetjons speak louder than words” in the search for corruption, [at 50 emphasis added]

When appellants’ actions over a three-year period,as disclosed by the record, are considered in totality, their actions do speak louder than words. The conclusion is inescapable that appellants willfully and corruptly failed to carry out their statutory duties, and the jury had ample testimony before them upon which to convict appellants.

V.

Appellants Deegan, Stapleton and McLaughlin contend that the trial court erred in permitting portions of their grand jury testimony to be submitted to the jury at the trial, because they testified involuntarily, under pressure, and without proper advice as to their constitutional rights. They argue that Daniel Gilmore, then the first assistant counsel for Hudson County, advised them that they would lose their jobs if they refused to testify. The advice given was wrong. As a result of, and to overcome the decision in Garrity v. New Jersey, 385 U. S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), the Legislature adopted N. J. S. A. 2A:81-17.2a et seq. (effective May 21, 1970). This new statute required public employees to appear and testify before grand juries concerning the conduct of their offices, upon the penalty of removal. However, it cured the prior constitutional defect by giving them use immunity for their compelled testimony.

The erroneous advice given appellants does not render their grand jury testimony inadmissible. State v. Stil well, 97 N. J. Super. 424 (App. Div. 1967), is inapposite. Appellants were advised by the prosecuting authorities to consult counsel. They were told they would be called as grand jury witnesses provided they voluntarily waived their privileges and immunities and executed a written waiver. The waiver they signed, and which was read to them before they testified, provided: ,

I [appellant], a member of the Hudson County Employees’ Pension Commission, have been advised and know now that by executing this waiver, I thereby waive all immunity from prosecution, as well as all right and privilege I may have under N. J. S. 2A :81 — 17.2al, or otherwise, to prevent the testimony I give before the Hudson County Grand Jury from being used against me in any subsequent criminal proceeding. I have also been advised and know now that if I testify, any testimony that I give may be transcribed and introduced in evidence against me in any subsequent criminal proceeding. I have also been advised and know now that X have a right to talk to a lawyer for advice before giving any testimony before the Grand Jury.
With a full understanding of my rights and without any promises or representations being made to me or any express or implied coercion by statute or otherwise of any kind whatsoever being exerted against me, I am willing to testify before the grand jury of Hudson County; I waive immunity from prosecution for any offense which shall be disclosed or indicated by my testimony or statement, now or in the future, before the Grand Jury; and I further waive all right and privilege I may have under S. J. S. 2A :81-17.2al, or otherwise, to prevent the testimony I give before the Grand Jury from being used against me in any subsequent criminal proceeding. * * * [Emphasis added]

See State v. Falco, 60 N. J. 570, 578 (1972), wherein former Chief Justice Weintraub expressed the view that he doubted the United States Supreme Court still subscribed to the implied thesis in Garrity that “any” pressure generated by a proper’ pursuit of a governmental interest offends the Fifth Amendment privilege.

In any event, even if it could be said that appellants’ grand jury testimony was improperly admitted into evidence, it was harmless beyond a reasonable doubt because the same evidence was adduced at trial through the testimony of Dorothy Reith and Michael Casserly. Milton v. Wainwright, 407 U. S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), reh. den. 386 U. S. 987, 87 S .Ct. 1283, 18 L. Ed. 2d 241 (1967); Harrington v. California, 395 U. S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); State v. Bankston, 63 N. J. 263 (1973).

VI.

Finally, Deegan contends his concurrent sentences of 1-2 years in State Prison “was manifestly unfair.” He bottoms this contention on the disparate sentences given his codefendants.

While we have the power to reduce a sentence, even if it is within statutory limits, State v. Bess, 53 N. J. 10 (1968), we will not do so absent a clear showing by defendant of abuse of judicial discretion. State v. Tyson, 43 N. J. 411, 417 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); State v. Provoid, 110 N. J. Super. 547 (App. Div. 1970). Here Deegan was the chief county executive and the oldest in point of service on the Commission. His breach of the public’s trust warranted the custodial sentence imposed. Nor is there any sound reason to reduce his sentences because of the alleged disparity between his sentences and the ones imposed on his codefendants. State v. Gentile, 41 N. J. 58 (1963).

Affirmed.

Matthews, J. A. D.

(concurring). I concur in the result reached by the majority insofar as it affirms the convictions of the defendants, since the record contains sufficient credible evidence from which the jurors could have found that each of the defendants conspired to grant a pension to one John J. Kenny, granted such pension, and thereby committed misconduct in office. The proofs unquestionably disclose that Kenny, who had less than 20 years service, was granted a pension without a medical certificate, and although a certificate was later obtained, no physical examination was ever conducted. I believe that the poorly drawn indictment adequately charges those crimes.

I disagree, however, with those parts of the majority opinion which hold that the provisions of N. J. S. A. 43:10-1 el seq. impose duties on defendants as pension commissioners to question medical certifications, determine whether disabilities of employees with less than 20 years service are work-connected, and to refrain from reinstatement of employees who had previously withdrawn from the pension fund. In my judgment, the standards sought to be imposed result •from' strained statutory construction, leading to debatable' legal conclusions which, when established as a standard of criminal conduct, constitute an example of judicial ingenuity warned against by former Chief Justice Weintraub in his concurring opinion'in State v. Cohen, 32 N. J. 1, 10 (1960).