text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANTHONY LOUIS POLI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 2, 1970
    Decided December 3, 1970.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. J. Roger Gonant, assigned counsel, argued the cause for appellant.

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

Leonard, J. A. D.

Defendant appeals from a denial of his petition for post-conviction relief wherein he alleged he pleaded guilty to the charges pending against him only in response to a promise as to his sentence, which promise was not kept.

The grand jury returned five indictments (Nos. 89, 90, 91, 92 and 187) against defendant for obtaining money under false pretenses (N. J. 8. A. 2A:111-1 and 2A:111-19), to ■which he pleaded not guilty. On May 20, 1968 he retracted his former pleas and pleaded guilty to the five indictments after executing a Eorm 13A as to each. On June 28, 1968 defendant was sentenced (by a different judge than the one before whom he had pleaded) to a 2-3 year sentence on each indictment, the sentences on 89 and 90 to run concurrently to each other, those on 91, 92 and 187 to run concurrently to each other but consecutively to 89 and 90, and all to run concurrently with a 3-5 year sentence shortly before imposed upon him in Middlesex County on June 4, 1968. In addition, and as a result of the convictions emanating from the above pleas, he was sentenced for violation of probation on ten previously existing charges to terms of 1-2 years on each charge, all of these sentences to run concurrently to each other but consecutively to the five indictments to which he had pleaded and on which he had just been sentenced. Thus, in total, defendant was sentenced to a 5-8 year term, to be concurrent with the 3-5 year term previously imposed in Middlesex County.

In his post-conviction proceeding, heard by the judge who sentenced him, defendant testified that he met his attorney, a member of the Public Defender’s office, for the first time on the morning he retracted his plea, in the Union County Court House. He had been brought there by two members of the Middlesex County Sheriff’s Department for the purpose of going to trial on that date. He told his lawyer he would not enter the courtroom with him because he felt that the lawyer could not adequately present the case without any prior knowledge of defendant or the circumstances of the offenses. The lawyer then left and apparently went to the judge to seek a postponement. On his return he told defendant that the judge had refused his request. Defendant repeated that he refused to go to trial. The lawyer then went back to talk to the judge and returned to tell defendant that he had “made a deal” for him. If defendant were to plead guilty to the five pending indictments the judge would sentence him to the “exact” amount of time that might be imposed in Middlesex County on other charges there pending, both sentences to run concurrently. At defendant’s request the attorney repeated the terms of the “bargain” in front of the two sheriif’s officers who had defendant in custody.

Defendant further testified that the attorney again told him on June 28, before sentence was imposed, that the “same deal still held” and the sentence “would not exceed” the 3-5 year sentence previously imposed in Middlesex County.

At the time of the plea retraction the judge went over in detail Porm 13A previously executed by defendant and lie denied that any inducements or promises had been made to have him plead guilty or any promise made as to sentence. At the post-conviction proceedings the trial judge questioned defendant as to these answers. He responded:

They were not true, your Honor, but when I made these, when you gave me these questions and you told me about these questions, was I to say to you “Yes. A bargain was made.” Would you have accepted this bargain, if you did make the bargain, which I now believe you * * *.

Robert Belluscio, a Middlesex County Sheriif’s officer, testified that, although he could not testify to the exact words used between defendant and his counsel, “a deal was made * * * that he would receive the same sentence that would be sentenced to him [sic] in Middlesex County.”

Defendant’s attorney testified that he met and interviewed defendant on May 20 in the Union County Court House. He spoke to the judge before whom the trial was scheduled, who requested that he speak with defendant “about entering a plea.” The judge told him that he would write a letter to the sentencing judge recommending that defendant receive a concurrent sentence. The attorney further testified he told defendant of his conversation with the judge. However, he stated that he at no time made a guarantee of any kind to defendant. He told defendant that the plea judge could only make a recommendation to the sentencing judge and the latter could treat that recommendation as he saw fit.

On June 28 the attorney conferred with the sentencing judge and pointed out the recommendation of the plea judge and' asked that due consideration he given it. The sentencing judge replied that he had noted the recommendation and that he would give it some consideration. Counsel told defendant of this conversation but again he stated that he did not make any guarantees.

The record discloses that on May 20, 1968 the plea judge did write a letter to the sentencing judge directing that sentence on the Union County indictments, to which defendant had pleaded that day, be imposed after the imposition of a sentence in Middlesex County. The judge further stated that after conferring with the prosecutor and defense counsel he recommended that defendant be given terms concurrent with the Middlesex sentence.

The post-conviction proceeding judge postponed the matter until he obtained a transcript of the plea.retraction. At resumption of the hearings, the judge offered defendant an opportunity to retract his pleas to all five indictments and to have his pleas of not guilty reinstated. All sentences.on the indictments and on the violations of probation would be vacated and defendant would stand trial. However, the judge noted that if defendant did that he might well receive the same or a lesser sentence or a “terribly longer” one, possibly “well over 40 or 50 years.” Defendant refused this offer, stating that he was merely seeking a reduction in his sentence so that it would not exceed the Middlesex County sentence. Thereupon, the sentencing judge found that no promises were made to defendant at the time he retracted his pleas and denied his motion for relief. The judge also noted that the sentence imposed was actually concurrent to the Middlesex sentence, even though the number of years to be served on each was different.

Defendant now argues, as he argued below, that the suggestion of promise made to him by his counsel, with the apparent acquiescence of the plea judge, so tainted his pleas as to make them involuntary, R. 3 :9-2, and that a bargain had in fact been reached. The State asserts that defendant failed to prove that a “deal” was made.

Much has been written on the subject of plea bargaining or, better designated, plea discussions. See Approved Draft (1968) of Standards Relating to Pleas of Guilty, issued by the American Bar Association Project on Minimum Standards for Criminal Justice, Part III, §§ 3.1 to 3.4, with commentary.

In State v. Taylor, 49 N. J. 440 (1967), Justice Francis, speaking for our Supreme Court stated:

It should be pointed out here that there is nothing unholy in honest plea bargaining between the prosecutor and defendant and his attorney in criminal cases. At times, it is decidedly in the public interest, for otherwise, on occasion the guilty would probably go free. This does not mean that the prosecutor can commit the sentencing judge to any particular sentence or action, such as downgrading charges against the defendant or suspending sentence or granting probation. The prosecutor’s function in this connection is strictly limited to an agreement to recommend a form of leniency, to which recommendation the court in its discretion after being made aware of the full situation would give due consideration. * * * ^ # * * Sjt * iJC $
When pleas are negotiated, the important purposes to be served are fairness to the pleading defendant and to the public, * * *. [at 455-456]

See also State v. Ashby, 81 N. J. Super. 350 (App. Div.) (dissent at 365), rev’d 43 N. J. 273, 278 (1964), and State v. Lord, 109 N. J. Super. 80, 82 (Cty. Ct. 1970).

It is to be noted that Taylor approves initial plea discussions “between the prosecutor and defendant and his attorney.” It does not contemplate that the judge should either initiate these discussions or participate therein. Moreover, there is strong authority forbidding a trial judge’s participation in plea discussions. Commonwealth v. Evans, 434 Pa. 52, 252 A. 2d 689 (Sup. Ct. 1969); White v. State, 203 Kan. 687, 455 P. 2d 562, 566-567 (Sup. Ct. 1969); American Bar Ass’n Comm. on Professional Ethics, Opinions, No. 779 (1964). Further, there is even controversy as to whether the judge may participate after a plea agreement has been reached and, if he may, the extent of such participation. See § 3.3, Approved Draft (1968) of Standards Relating to Pleas of Guilty, supra.

However, we need not resolve that controverted question in order to properly dispose of this appeal. Here, the issue is not whether the plea judge actually made a promise to defendant, through his counsel, that the sentence to be imposed would be exactly the same and concurrent with the Middlesex County sentence. (The sentencing judge determined that he did not). Rather, the pertinent issue is whether defendant had a bona fide belief that such a promise was made, and whether that belief was reasonably based upon the conduct of all parties concerned, including the plea judge.

Our study of the record satisfies us that defendant reasonably, actually and in good faith did entertain such a belief when he entered his guilty pleas to the five indictments. Accordingly, we find that he has carried the required burden of demonstrating that his pleas were not voluntarily made. State v. Daniels, 38 N. J. 242, 250 (1962), cert. den. 374 U. S. 837, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1962).

Under these circumstances, we conclude that the equities mandate that the sentences imposed on the five indictments and for violation of probation should be modified so that the total sentences imposed should not exceed 3-5 years, to be served concurrently with the sentence previously imposed in Middlesex County. See State v. Ashby, supra, 43 N. J., at 278. Such a modification would be fair to defendant and to the public.

The State argues that the “real problem” is that defendant failed to take into account the effect of his guilty pleas upon his probationary status under sentences previously imposed for other crimes and in no way related to the indictments pleaded upon. It asserts that there is no evidence that anyone discussed any disposition of the probation matters during the alleged plea bargaining. The State points out that defendant was given a sentence concurrent with the one imposed in Middlesex County, on the indictments to which he pleaded, and that the consecutive sentence was imposed for the violations of probation.

The State’s position lacks merit. In the first place, defendant contends that he was promised an “exact” concurrent sentence to the one imposed in Middlesex. Secondly, the sentences on indictments 91, 92 and 187, although concurrent to each other, were consecutive to the concurrent terms imposed on indictments 89 and 90. Thus, defendant received a total sentence of 4-6 years on the five indictments to which he pleaded, independently of the additional 1-2 years imposed for the probation violations. Finally, since no one indicated to defendant that such an additional sentence would be imposed as a result of his pleas, it is spurious to argue that such additional sentences were outside the scope of his agreement. The basis of the probation violations was the guilty pleas, and without those pleas there were no such violations. By reason thereof, fair play requires that the sentence for the violations of probation be made concurrent to the Middlesex County sentence.

The State’s final contention that defendant’s proper remedy was by way of an appeal from an illegal sentence, and not by way of post-conviction relief, is without substance. See R. 3:22-2(a), (c) or (d).

Consistent with the above, the sentences imposed upon defendant in Union County are modified as follows: The 2-3 year sentences imposed on indictments Nos. 89, 90, 91, 92 and 187 shall be concurrent with each other. The 1-2 3'ear sentences imposed for violation of probation shall also be concurrent with each other but consecutive to the sentences imposed upon the five indictments. However, the 3-5 year sentence resulting from the above, shall be concurrent with the 3-5 year sentence heretofore imposed in Middlesex County.

Affirmed as modified, and remanded for the imposition of sentences consistent with our determination.

       The responsibility of the trial judge in these plea discussions and agreements was discussed at the 1970 New Jersey Judges Seminar, held at Cherry Hill, and the subject is presently under study by our Supreme Court.


source: Caselaw Access Project

author: Yanott, C. C. J.

license: Public Domain

text:
    THOMAS BOLGER, PETITIONER-RESPONDENT, CROSS-APPELLANT v. CHRIS ANDERSON ROOFING CO., INC., RESPONDENT-APPELLANT, AND CROSS-RESPONDENT, AND BELAFSKY ROOFING CO., CONCRETE PLANT, NATIONAL ROOFING CO., HARTFORD ROOFING CO., PARK ROOFING CO., ATLAS ROOFING CO., ARCO ROOFING CO., AND REMIG ROOFING CO., RESPONDENTS AND CROSS-RESPONDENTS.
    Essex County Court Law Division
    Decided November 23, 1970.

      Messrs. Teltser, Bryne <& Greenberg (Mr. Irwin R. Rein appearing) for petitioner-respondent and cross-appellant.

      Messrs. Hughes, Me Elroy, Connell, Foley & Geiser {Mr. George J. Kenny appearing) for Chris Anderson Roofing Co., Inc., respondent-appellant and cross-respondent.

      Messrs. Schreiber and Lancaster a professional corporation {Mr. Gerald W. Conway appearing) for Belafsky Roofing Co. and National Roofing Co., respondents and cross respondents.
   Yanott, C. C. J.

(temporarily assigned). This is an appeal from the Division of Workmen’s Compensation, in which an award of 100% of total was made for cancer of the lung, allegedly caused by petitioner’s employment as a roofer. Both procedural and substantive issues are involved.

The facts which raise the procedural issues are as follows: In August 1969 petitioner filed 14 petitions seeking relief for injury caused by his emplojunent as a roofer. The only petition contained in the file on appeal, that against Chris Anderson Roofing Company (Anderson), alleged an occupational disease but did not specifically mention a cancerous condition. Anderson was petitioner’s last employer; the other 13 were prior employers. On December 4, 1969, pursuant to N. J. 8. A. 34:15-64, Judge Bonafield ordered that petitioner’s depositions be taken at the Veteran’s Administration Hospital in Orange, New Jersey. The affidavit on file indicates that notice was given by both mail and telephone. The depositions were taken on December 9. Counsel for Anderson was present.

On March 30, 1970 Judge Bonafield wrote a letter to all counsel stating:

Be advised that these 14 cases will be tried by me on Wednesday, April 29, 1970. There will positively be no adjournments granted. In the event you are engaged in another court it will be necessary to have someone here to represent your interest because these cases must be moved on the trial date thereof. If any examinations are deemed necessary by you then you are to make the arrangements for the examination and have them completed prior to the trial date. If the examinations are not completed they will be deemed waived. In the event of a no appearance a default judgment may be entered against you.

At the hearing on April 29, 1970 the only testimony produced was on behalf of petitioner. Dr. Saul Lieb, petitioner’s internist, was the sole medical witness. However, two of the respondents introduced in defense the medical report of Dr. Jack S. York. When petitioner’s case was concluded, Anderson’s attorney strenuously requested an adjournment, stating that he had not had adequate time to prepare his case. In support of his position he stated that petitioner had made, and not kept, an appointment with a physician selected by him. The request was denied. Judge Bonaiield then rendered an oral decision holding Anderson, the last employer, liable for the total award, on the authority of Bond v. Rose Ribbon and Carbon Mfg. Co., 78 N. J. Super. 505 (App. Div. 1963), aff’d 42 N. J. 308 (1964). Counsel for respondent appeals, alleging an abuse of discretion on the part of the compensation judge.

Although the award was in the amount of $30,800, petitioner’s attorney was allowed a counsel fee in the sum of 81,500. Petitioner cross-appeals. The main thrust of the cross-appeal is that the attorney should have been granted a larger fee. Some of the other 13 employers cross-appeal for protective reasons.

Thus, both petitioner and respondent allege abuse of discretion below and seek corrective action from this court. Normally, in a workmen’s compensation appeal the County Court is obliged to bring “its own new mind to the weighing of the testimony uninfluenced by the opinion and conclusions of the Judge of Compensation.” MacDonald v. Hudson Bus Transp. Co., Inc. 100 N. J. Super. 103: 106 (App. Div. 1968); sic: Stallone v. Schiavone-Bonomo Corp. 103 N. J. Super. 170 (App. Div. 1968), certif. den. 53 N. J. 226 (1969); Handleman v. Marwen Stores Corp., 99 N. J. Super. 416 (App. Div. 1968), certif. granted 52 N. J. 496 (1968); rev’d 53 N. J. 404 (1969); Szumski v. Dale Boat Yards, Inc. 48 N. J. 401 (1967). However, the question involved in this aspect of the case is not a weighing of testimony, but whether the conduct of the judge below amounted to an abuse of discretion. In the court’s judgment, the standard enunciated by the cited and other cases is not applicable thereto.

An appellate court reviewing the conduct of a trial judge does not substitute its own discretion for that of the trial court in determining whether there has been an abuse of discretion. In Schuttler v. Reinhardt, 17 N. J. Super. 480 (App. Div. 1952), the court said:

We .would emphasize that it is only in the exceptional case that a discretionary act will lead to a reversal. The circumstance that the appellate judges, had they been presiding at the trial, would have made a contrary ruling, is far from enough to bring about a reversal, [at 485]

The principle deduced from the cases is that only in a clear case, where a party has been adversely affected, will there be a reversal as to discretionary matters, unless there is an erroneous application of the law. Scott v. Garber, 82 N. J. Super. 446, 451 (App. Div. 1964) : 5A C. J. S.: Appeal & Error § 1583 at 25. The rule applies both as to the time of trial (see Fotopak Corp. v. Merlin, 34 N. J. Super. 343 (App. Div. 1955)); Lilly v. Todd, 15 N. J. Super. 1 (App. Div. 1951) and allowance of counsel fees. Wiedenmayer v. Johnson, 106 N. J. Super. 161 (App. Div. 1969), aff’d 55 N. J. 81 (1969).

There is no reason why this principle should not apply in a review of discretionary action by the Division of Workmen’s Compensation.

In Mulhearn v. Federal Shipbuilding and Dry Dock Co., 2 N. J. 356, 359 (1949) former Chief Justice Vanderbilt, while concluding that the Division of Workmen’s Compensation was not a court, detailed the many attributes of a court in the conduct of hearings before the Workmen’s Compensation Bureau. By statute the Division has power to make its own rules for the conduct of hearings. N. J. S. A. 34:15-64. Thus, the Director may direct the holding of informal hearings without specific statutory warrant. Kea v. Elizabeth Lumber Co., 26 N. J. Super. 599 (App. Div. 1953). Similarly, he may order employers to file accident reports. Esso Standard Oil Co. v. Holderman, 75 N. J. Super. 455 (App. Div. 1962), aff’d 39 N. J. 355 (1963), app. den. 375 U. S. 43 (1963).

The power of the Director to conduct hearings through judges to whom he delegates his authority is derived from this rule-making power. The court sees no reason to distinguish the Workmen’s Compensation Division’s power to order formal hearings, or the filing of reports', from its power to order that a hearing be held at a certain time and place, and upon certain notice, so long as the proceedings comply with due process of law. Indeed, if courts substituted their own opinions in such matters for rules and procedures based upon the expertise of an administrative agency such as this, they might well create havoc in the business of the agency. It is in part for that reason that appellate courts affirm determinations of an administrative agency "when there is proof to support the latter’s action and its judgment is not arbitrary, capricious or unreasonable.” East Paterson v. Civil Service Dept., 47 N. J. Super. 55, 65 (App. Div. 1957). In Freud v. Davis, 64 N. J. Super. 242 (App. Div. 1960), the court, in sustaining a ruling of the Director of Alcoholic Beverages, quoted Universal Camera Corp. v. National Labor Relations Board, 340 U. S. 474, 477, 71 S. Ct. 456, 459, 95 L. Ed. 456 (1951), as follows:

As the court said in that case, respondent is an agency “presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carried the authority of an expertness which courts do not possess and therefore must respect [at 246]

See Hornauer v. Div. of Alcoholic Beverage Control, 40 N. J. Super. 501, 505 (App. Div. 1956). There is particular reason for applying this principle to an agency, so like the courts, and conducting so much litigation of a specialized kind as the Division of Workmen’s Compensation.

Viewed from this aspect, there was no abuse of discretion. Counsel for respondents1 had 30 days within which to prepare for the trial. If petitioner was uncooperative with respect to medical examinations or in other ways which impeded trial preparation, respondents could have made application for an extension of time to Judge Bonafield. There is not the slightest indication that this was done. Instead, the court has' the impression that respondents relied upon a belief that they would have ample time to prepare after they had heard the petitioner’s1 case. But this was clearly contrary to the explicit language of Judge Bonafield’s letter of March 30, 1969. Eor this court to intervene under these circumstances would be to impair the authority and effectiveness of the workmen’s compensation judges. It cannot reasonably be said that a trial judge has abused his discretion when he gives 30 days’ notice that a case will be tried peremptorily, and that no excuses for delay will be accepted. The court, therefore, finds as a fact that there was no abuse of discretion in this regard.

By parity of reasoning the court sees no reason for interfering with the counsel fee awarded petitioner’s attorney. The judge of compensation had a far better opportunity to evaluate the efforts of petitioner’s attorney than does this court. There is nothing in the record to show an abuse of discretion in this respect. N. J. S. A. 34:15-64 does not require that an attorney receive as compensation 20% of the award; this is the maximum allowed. There is no reason to believe that the fee awarded was not adequate compensation for the work performed by petitioner’s attorney. Absent an abuse of discretion, this court should not interfere. Detlefs v. Westfield, 104 N. J. Super. 447, 455 (App. Div. 1969).

As alreadjr indicated in dealing with the substantive, as distinguished from the administrative issues, the County Court is obliged to review the facts below de novo, applying a fresh mind and making independent findings of fact. The uncontradicted evidence is that in the roofing business labor is employed by the “hiring hall” technique. Petitioner was a roofer and had a lng string of employers, the last of which was Anderson. In the course of his employment over a period of 23 years he was subjected to the fumes and dust of tar, pitch, asphalt and asbestos in large and intense volume. All of these are recognized carcinogenic agents. The testimony of Dr. Lieb was that these fumes, and the dust created during roofing activities, were a cause of the cancer of the lung. The evidence showed, also, that petitioner smoked two packages of cigarettes a day. As to this, Dr. Lieb testified:

Tobacco is recognized — in excessive amounts and over a long duration of time ■— as a careogenic agent. However, it is well recognized that it potentiates the carcinogenic agent [sic] of noxious agents — particularly asbestos — to cause an increased severity and frequency of cancer of the lung.

However, he testified, also, on cross-examination:

Q And how can you differentiate, Doctor, in your examination, or have you been able to differentiate this cancer as flowing from smoking or flowing from exposure to pitch or to tar or to asbestos or to asphalt?
A No, I can’t, but you just consider all the facts and then it’s reasonable to assume that the combination of all these deleterious materials contributed.
Q And this smoking of two packs of cigarettes a day over many years, what part did that play in the cancer?
A Also contributed.
Q Could that not, in and of itself, have caused it?
A Well, that’s speculative. I mean, he was smoking while he was so exposed and the same would have happened to this man if he hadn’t been exposed. It’s speculation.

While recovery for cancer in a workmen’s compensation proceeding is not new in this state, Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512 (E. & A. 1939); Roney v. Griffith Piano Co., 4 N. J. Misc. 31 (C. P. 1925), aff’d Griffith Piano Co. v. Court of Common Pleas, 4 N. J. Misc. 837 (Sup. Ct. 1926), this is the first case in this State in which heavy cigarette smoking has coincided with extensive exposure to carcinogenic materials with lung cancer as the consequence.

Authority on this factual situation is meagre and in striking disagreement.

In McAllister v. Workmen’s Compensation Appeals Board, 69 Cal. 2d 408, 71 Cal. Rptr. 697, 445 P. 2d 313 (Sup. Ct. 1968), recovery was permitted under the occupational disease provisions of the California Labor Act in the case of a fireman who was exposed to smoke at fires and who smoked cigarettes heavily. There the “Appeals Board,” equivalent to the Division of Workmen’s Compensation, had denied recovery. The California Supreme Court reversed on the ground that the board’s decision was not supported by substantial evidence and involved errors of law. The court said:

We cannot doubt that the more smoke decedent inhaled —■ from whatever source — the greater the danger of his contracting lung cancer. His smoking increased that danger, just as did his employment. Given the present state of medical knowledge, we cannot say whether it was the employment or the cigarettes which “actually” caused the disease; we can only recognize that both contributed substantially to the likelihood of his contracting lung cancer. As we noted, however, in Employers, etc., Ins. Co. of Wis. v. Industrial Acc. Comm. (1953) 41 Cal. 2d 676, 680, 263 P. 2d 4, the decedent’s employment need only be a “contributing cause” of his injury, [at 502, 71 Cal. Rptr. at 102, 445 P. 2d at 318]

It thus overruled the trier of fact to grant recovery.

In Amoroso v. Tubular & Cast Products Mfg. Co., 13 N. Y. 2d 992, 224 N. Y. S. 2d 787, 194 N. E. 2d 694 (Ct. App. 1963), the procedural situation was exactly the opposite. There petitioner, who also was a heavy cigarette smoker, was exposed to fumes of nickel sulphate and chromic acid, and developed lung cancer. The Workmen’s Compensation Bureau denied recovery. The New York Appellate Division reversed on the ground that the award was not supported by substantial evidence, 17 App. Div. 2d 1003, 233 N. Y. S. 2d 909 (1962), and was in turn reversed by the New York Court of Appeals by a vote of 4-3. The majority wrote no opinion; the minority asserted that the workmen’s compensation award was supported by substantial evidence. The Appellate Division’s opinion relied upon a report of the Division of Industrial Hygiene that there was not sufficient exposure to cause carcinoma of the lung, and that an autopsy revealed no evidence of the offensive chemicals. Here^ in contrast to the California opinion, the trier of fact was reversed to deny recovery.

In weighing the persuasive effect of these cases, the court must consider that the California rule as to proof in a workmen’s compensation occupational disease case is more like New Jersey’s than is the New York rule. In California a petitioner need show only that the “industrial causation is reasonably probable.” McAllister, supra.

It is well-settled law in New Jersey that an employer takes an employee as he is and is responsible for any aggravation of a pre-existing condition. In Wexler v. Lambrecht Foods, 64 N. J. Super. 489 (App. Div. 1960) the court said:

* * * It is not essential, under our Workmen’s Compensation Act, that an employee be in perfect condition prior to the compensable accident in order to recover from the employer for the entire resulting disability, [at p. 500]

This iterated orthodox workmen’s compensation doctrine. Rother v. Merchants Refrigerating Co., 122 N. J. L. 347 (Sup. Ct. 1939), aff’d 123 N. J. L. 262 (E. & A. 1939); Bond, supra. That the contributing or predisposing factor was not related to the employment does not prevent recovery. Burkley v. Atlantic City, 68 N. J. Super. 160 (App. Div. 1961), eertif. den. 36 N. J. 130 (1961).

The New York rule, on the other hand, differentiates the effect of pre-existing conditions in occupational disease cases from their consequences in “accident” cases. In 42 St. John L. Rev. (April 1968), Robert J. Chojnaeki, in an article entitled “Occupational Diseases under the New York Workmen’s Compensation Law,” states:

Finally, it should be noted that not only must the disease be due to the nature of the employment, but, as has been seen from the decision in Detenbech, the disability must be caused solely by the nature of the employment, [at 503]

In the decision to which the author makes reference, Detenbeck v. General Motors Corp., 309 N. Y. 558, 132 N. E. 2d 840 (Ct. App. 1956), it was said:

* * * There must be a recognizable link between the disease and some distinctive feature of the claimant’s job. This test is not met when disability is caused by an aggravation of a condition which is not occupational in nature. If an employee contracts an occupational disease, he is not to be prejudiced by reason of a pre-existing illness or defect, but neither is he to be preferred over other employees by creating a different class of compensable disabilities for his benefit. [132 N. E. 2d at 842-843; emphasis added]

No New Jersey ease distinguishes, in this way, between the treatment of occupational diseases under section 30 of N. J. S. A. 34:15 and accidents under section 10. It has never been suggested in New Jersey that the concurrence of a non-work-connected pre-existing condition with a work-connected accident or occupational disease is not compensable. Not only is an employer responsible in this State for work-connected injury which aggravates or precipitates preexisting conditions, but, as stated in Wexler, supra:

Where an employer contends that he is not legally responsible for petitioner’s total disability and seeks to attribute the disability of the injured employee to causes for which he is not responsible, the burden of proof in that regard is on the employer. [64 N. J. Super. at 500]

Lilly v. Todd, supra.

The New York decision is thus based upon a premise which is different from the law in New Jersey, while the California decision is not. It follows that the California rule has the greater persuasive effect. In this case, at least, it leads to a correct result. Factually, petitioner’s smoking is as much of a pre-existing condition as a weakened heart, Molnar v. American Smelting Refining Co., 127 N. J. L. 118 (Sup. Ct. 1941), aff’d 128 N. J. L. 11 (E. & A. 1942), or tuberculosis, Rekoon v. General Lead Batteries Co., 119 N. J. L. 296 (Sup. Ct. 1938), or a peptic ulcer Hickey v. Hoffman Beverage Co., 19 N. J. Misc. 516 (Dept. of Labor, 1941), or the many human weaknesses which have been held to set the stage for workmen’s compensation recovery in this State. Factually, the Court must also find from the evidence that whether the smoking contributed to the end result or not, petitioner’s exposure to pitch, tar and asphalt contributed in a major way to the onset or precipitation of the lung cancer.

Bond, supra, establishes the law that where an occupational condition could have been caused by a series of employments, the last employer bears the full responsibility. Accord, Masko v. Barnett Foundry & Machine Co., 53 N. J. Super. 414 (App. Div. 1959), certif. den. 29 N. J. 464 (1959), In this case Anderson is the last employer.

It follows that there must be affirmance as to all matters raised by the appeal and cross-appeals.


author: Waugh, A. J. S. C.

text:
    GERALD DARROW AND HERMA DARROW, PLAINTIFFS, v. HANOVER TOWNSHIP, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE COUNTY OF MORRIS, DEFENDANTS.
    Morris County Court Law Division
    Decided November 25, 1970.

      Mr. Stephen 8. Weinstein, attorney for plaintiffs.

      Messrs. Morgan, Melhuish, Monaghan, McGoid & Spielvogel, attorneys for defendant Hanover Township (Mr. Richard E. Arvidson, of counsel and on the brief).

      Messrs. O’Donnell, Conway & Leary, attorneys lor defendant County of Morris (Mr. IP. Stephen Leary, of counsel).

      Messrs. Porzio, Bromberg & Newman, attorneys for plaintiffs on the counterclaim (Mr. Myron J. Bromberg, of counsel).
   Waugh, A. J. S. C.

On April 13, 1967 plaintiffs Gerald Darrow, the driver, and his wife Herma Darrow, a passenger, were injured when his vehicle struck a tree adjoining Bidgedale Avenue, Hanover Township, Morris County. An action against Hanover Township and the County of Morris was filed on April 14, 1969. The township answer alleges that both plaintiffs were contributorily negligent. After pretrial an order was entered dismissing the action against the County of Morris.

On September 9, 1970 defendant township sought and was granted leave to file a counterclaim for contributory negligence against Gerald Darrow under the Joint Tortfeasors’ Contribution Law, N. J. S. A. 2A:53A-1 et seq. Plaintiff Darrow, answering the counterclaim, raised the defenses of interspousal immunity and the statute of limitations.

Thereafter, Darrow filed a notice of motion for an order dismissing this counterclaim and granting summary judgment thereon, on the ground that the claim of the counterclaim is barred by the defense of interspousal immunity. The motion came on for hearing on October 23, 1970.

Although the statute of limitations was raised as a defense in the answer to the counterclaim, counsel did not urge this issue before me. He contends that interspousal immunity is the primary issue. I agree.

Our Supreme Court on July 10, 1970 decided the case of Immer v. Risko, 56 N. J. 482 (1970), in which the court abandoned the doctrine of interspousal immunity, holding that it, "as it applies to automobile negligence eases, has no place in onr modern society.” In that case it was not necessary for the court to determine whether the decision should be applied retrospectively or prospectively. By reason of plaintiff’s motion the question is now before me. If Immer is to be applied retrospectively, the counterclaim should be allowed; if prospectively, denied. Accordingly, it is necessary to go beyond Immer to resolve the issue before me.

The Supreme Court announced its opinion on July 10, 1970, in France v. A. P. A. Transport Corp., 56 N. J. 500 (1970). In that case an automobile operated by plaintiff, in which his wife and two children were passengers, and a truck owned by defendant were involved in a collision on October 16, 1967. Plaintiff’s wife was killed in the accident. Plaintiff brought two actions: one for himself and his two children, the second under the Executors and Administrators Act, and the Wrongful Death Act. Defendants counterclaimed for contribution against plaintiff, individually, for all sums found due to the estate of his wife under the survival and death actions. The court allowed the counterclaim to stand and by way of explanation said:

The present suit involves the validity of both interspousal and parent-child tort immunity. Because of our decision in Immer v. Risko, 56 N. J. 482 (1970), decided today, it is unnecessary to discuss interspousal immunity further. If there were no minor children involved in this case, defendants would be entitled, under Immer, to assert their counterclaim for contribution against the plaintiff under the Joint Tortfeasors Contribution Law. [at 502]

This language infers that the court applied Immer retrospectively in France.

Plaintiff’s counsel argues persuasively that certain economic and social considerations, as well as administrative calendar problems, court delay and insurance carrier problems, flow from a decision whether to apply prospectively or retrospectively. As he points out, until January 1, 1968 the standard family automobile policy in New Jersey contained an exclusion substantially as follows:

This insurance does not apply under: sfr # * * V # ❖
(g) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.

He also notes that premium rates for each year were based upon the existing law. Obviously, retrospective application of the doctrine will result in many closed insurance carrier files being reopened. These are all problems the court should consider, and counsel relies in part upon the following language in Goldberg v. Traver, 99 N. J. Super. 103 (Ch. 1968), reversed 52 N. J. 344 (1968)

In deciding whether to give a new rule retroactive effect, a court to which the issue has been properly presented should first identify the purpose of the new rule, next determine on balance those purposes served by general retroactive application of the new rule, and finally decide whether these purposes will be promoted by retroactive application of the new rule in the particular ease before it. [at pp. 109, 110]

That case, however, involved a problem of liability for municipal taxes as between the Commissioner of Transportation and others. It is to be noted further that no special problems of notice of accident, investigation, or the like appear in the case before me. Moreover, there has been “no justified reliance on the overruled decision.”

Justice Jacobs of our Supreme Court is the author of many majority and minority opinions in this field of immunity. Ho points out that “reliance has very little place [if any] in the field of torts.” Dalton v. St. Luke’s Catholic Church, 27 N. J. 22, 27 (1958). In that case the court held that the overturning of charitable immunity in New Jersey should bo done retrospectively. At 25, 26 Justice Jacobs discussed Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N. J. 47 (1954), a non-tort ease, in which it was pointed out that “our courts have consistently adhered to the prevailing doctrine that the overturning of a judicial decision is retrospect in nature. * * *”

A similar lack of justifiable reliance can be found in the area of interspousal immunity. As Justice Proctor said in Immer, supra, 56 N. J. at 485: “Since 1958 this court has been closely divided on the issue.” In 1958 the Supreme Court decided Koplik v. C. P. Trucking Corp., 27 N. J. 1 (1958). There the doctrine of interspousal immunity was upheld by a 4-3 majority in the face of a strong dissent by Justice Jacobs. Again, in his dissent in Franco v. Davis, 51 N. J. 237, 242 (1968), Justice Jacobs indicated to the bar that the doctrine was being “whittled down.”

Since Koplik the court has decided Long v. Landy, 35 N. J. 44 (1961), in which a unanimous court allowed a surviving spouse to sue the estate of her deceased husband for injuries she received as a result of his negligent operation of an automobile. And in 1967 the Law Division, in Sanchez v. Olivarez, 94 N. J. Super. 61, relied on Long to hold that interspousal immunity no longer existed in a negligence action after divorce. See also, Justice Proctor’s extensive discussion in Immer.

One other indication of the correct application of Immer can be found in Willis v. Dept. of Conservation & Economic Development, 55 N. J. 534 (1970). There the Supreme Court, in a case decided shortly before Immer, specifically handled the question of retrospective application of their decision removing immunity from the sovereign for tort liability. They held (at 544) that their decision was to have prospective application since “there are strong reasons why we should not accept other claims already in being.” The court then stated that they would not accept any tort claims arising before January 1, 1971.

In light of this specific exception by the Supreme Court to its general policy that its overruling decisions are to be applied retrospectively, it becomes clear that Immer must be applied retrospectively.

Finally, if justice to litigants is the polestar for application of the doctrine of retroactivity, it would seem manifestly unjust to make recovery depend upon whether the accident occurred before or after July 10, 1970, the date of Immer.

The motion for summary judgment is denied.


author: Halpebn, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RAYMOND DUTTON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 17, 1970
    Decided November 30, 1970.

      Before Judges Kilkenny, Halpebn and Lane.

      Mr. William P. Gilroy, assigned attorney, argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney; Mr. Gilroy, of counsel on the brief).

      Mr. Edward B. Bosen, Asst. Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney; Mr. Elliot L. Katz, Asst. Prosecutor, of counsel on the brief).
   The opinion of the court was delivered by

Halpebn, J. A. D.

Defendant appeals from a judgment of conviction for atrocious assault and battery (N. J. 8. A. 2A:90-1). His motion for a new trial was denied, and he was sentenced to the New Jersey State Prison for a term of three to five years.

A brief summary of the facts is necessary to understand the issues raised by defendant. The State’s proofs indicated that on March 5, 1969 the victim, Alex Perez, was employed as a dishwasher at the Neptune Diner in Neptune Township. At about 2 a.m. defendant came into the kitchen where Perez was working and refused to leave when directed to do so. An argument ensued, resulting in defendant stabbing Perez with a knife. In making his escape defendant kicked out a glass door in the diner. Within 15 minutes of the assault, while Perez was on a stretcher in the hospital, he saw the police bring defendant into the hospital for treatment of his cut hand. Without any prompting, Perez spontaneously identified defendant as his attacker. Perez’ version of the attack was fully corroborated by Alphonso Spencer, a short-order cook in the diner, who was in the kitchen when the event occurred.

Defendant was charged with and convicted in the municipal court of malicious injury to property (N. J. S. A. 2A:170-36) for kicking out the diner door, a disorderly person offense. He was also charged with atrocious assault and battery for stabbing Perez, and was subsequently indicted by the grand jury and convicted by a petit jury.

At the trial, after the jury was sworn, defendant moved (a) to dismiss the indictment on double jeopardy grounds based on his prior conviction as a disorderly person, and (b) to suppress any evidence pertaining to an in-court identification by Perez since such was tainted by the alleged improper confrontation at the hospital. The court held a full hearing on the motions, out of the jury’s presence, and denied them.

Defendant testified at the hearing of the motions (he did not testify during trial) and admitted seeing Perez in the diner. He denied stabbing Perez and contended Perez bumped into him and splattered coffee over him. In the ensuing fracas he accidentally cut his hand on a knife in Perez’ possession. He further admitted kicking out the door on leaving the diner, but denied the police testimony that he asked to be taken to the hospital for treatment.

We turn first to the plea of double jeopardy. There is no error in the court’s ruling. The kicking out of the door and the stabbing of Perez are separate and distinct acts giving rise to two offenses. Whether the same evidence test or the same transaction test is used, the plea of double jeopardy is not applicable. State v. Currie, 41 N. J. 531 (1964). Nor is it fundamentally unfair to compel defendant to answer for the atrocious assault and battery charge merely because he was convicted as a disorderly person for kicking out the door. See State v. Cormier, 46 N. J. 494, 504 (1966).

By three separate points in his brief defendant contends the court erred in permitting the State to prove what transpired at the hospital confrontation because (a) the police testimony on identification bolstered the testimony of Perez; (b) he was not advised of his right to counsel, and (e) he was denied due process. These contentions are without merit. The testimony by the police and Perez concerning the confrontation at the hospital, which occurred within 15 minutes of the attack, was a proper on-the-scene identification. State v. Moore, 111 N. J. Super. 528 (App. Div. 1970); State v. Hamblin, 448 S. W. 2d 603 (Mo. Sup. Ct. 1970). It was an unstaged event which can be classified as “virtually spontaneous” and not within the proscription of United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). See Coleman v. Alabama, 399 U. S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970). In any event, there was sufficient credible evidence in the record to support the court’s determination on the subject. People v. Zabrocky, 26 N. Y. 2d 530, 311 N. Y. S. 2d 892, 896-897, 260 N. E. 2d 529 (Ct. App. 1970). Before leaving the subject we point out that the issue of identification was really not in the case since defendant admitted being at the scene, but merely denied committing the stabbing.

Defendant further contends that he was not advised of his right to counsel at the preliminary hearing, and since this was a critical stage of the proceeding there should be a reversal of his conviction because of the resulting prejudice. This argument is based on Coleman v. Alabama, supra. The record disproves defendant’s naked assertion. The municipal magistrate testified that he advised defendant of all his constitutional rights, but that defendant knowingly and voluntarily waived his right to counsel at the preliminary hearing. Furthermore, there is nothing in the record to indicate defendant suffered any prejudice. If error existed, it was harmless. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Finally, Coleman was decided June 33, 1970, after the trial in the instant case. We are in accord with the views expressed in Commonwealth v. Brown, 217 Pa. Super. 190, 269 A. 2d 383 (Pa. Super. Ct. 1970), that Coleman is not to be applied retroactively.

We have carefully examined defendant’s other contentions charging error in that (a) the court refused to allow his coat to be admitted into evidence; (b) he was denied effective assistance of counsel; (c) the court’s remarks were prejudicial, and (d) the verdict was against the weight of the evidence. We find no substance to any of these contentions.

Affirmed.


author: Pee Curiam.

text:
    DEPARTMENT OF HEALTH, STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. CONCRETE SPECIALTIES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1970
    Decided December 2, 1970.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Stephen Gordon, Deputy Attorney General, argued the' cause for appellant (Mr. George F. Kugler, Jr., Attorney General of Hew Jersey, attorney; Mr. Samuel D. Bornstein, Deputy Atty. Gen., of counsel and on the brief).

      Mr. Kenneth F. Kunzman argued the cause for respondent (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys).
   Pee Curiam.

Plaintiff Department of Health (Department) appeals from a judgment dismissing its complaint wherein it sought the recovery of a statutory penalty for $2500 against the defendant for discharging polluting smoke into the air.

N. J. 8. A. 26:2C-8 provides, in part, that the Department is empowered to “formulate and promulgate, amend and repeal codes and rules and regulations preventing, controlling and prohibiting air pollution throughout the State * * *.” Pursuant to that authorization the Department promulgated a series of administrative regulations effective January 1, 1958, entitled New Jersey Air Pollution Control Code (Code). Chapter 4, § 2.1 of the Code provides that:

No person shall cause, suffer, allow or permit smoke from any fuel burning equipment, the shade or appearance of which is darker than No. 2 of the Ringelmann Smoke Chart, to be emitted into the open air.

There are three exceptions to that provision, none of which applies to the instant situation.

The Department is empowered to enforce the provisions of this Code in a summary manner by way of injunctive relief and the recovery of a penalty of not more than $2500. N. J. S. A. 26 :2C — 19. In the instant situation the Department sought no injunctive relief but, as already noted, merely the recovery of a civil penalty.

The facts are basically uncontested. Defendant manufactures concrete block at its premises in Lyndhurst. On March 6, 1964 the Department entered an order directing defendant to cease emitting smoke into the open air from fuel-burning equipment, the shade or appearance of which is darker than No. 2 of the Eingelmann Smoke Chart. The order was served upon defendant in April 1964.

On January 28, 1969 a public health engineer employed by the Department, while driving by defendant’s plant, observed for one-half hour defendant’s stack emitting smoke darker than Do. 2 of the Ringelmann Chart. He thereupon entered the plant and conferred with the foreman who, after observing the smoke with the Department’s inspector, went inside and made an adjustment to the oil flow which brought the smoke down to permitted levels. The foreman indicated that there was a malfunction of the internal wiring that operates the oil heater which caused the polluting smoke. He further explained that the system was in process of being repaired at the time the Department’s inspector made his observation.

The trial court found that the emission of the smoke was an “isolated occurrence” and concluded that the Department had failed to estabilsh defendant’s guilt by a preponderance of the evidence.

On this appeal defendant argues that under the stated circumstances it did not cause, suffer, allow or permit smoke darker than the Do. 2 on the Ringelmann Smoke Chart to be emitted into the open air. Initially, we observe that the boiler could have been shut down while repairs were being made, thereby eliminating or at least substantially diminishing the emission of black smoke. This precaution was not taken because it would have adversely affected defendant’s product quality.

More importantly, the “isolated occurrence” is concededly not within the permissible exceptions in § 2.1 of the Code. Assuming defendant may not have willfully violated the Code, the fact remains that it did allow and permit the emission of the offensive smoke. The Legislature has decreed in no uncertain terms that air pollution is to be stopped and if necessary to achieve that goal, injunctive relief may be granted or a penalty imposed or both. N. J. S. A. 26:2C-19.

The 1964 Order served as a warning to defendant to abate smoke pollution. But relief to the Department is not necessarily predicated upon defendant’s violation of that order. The relief may be grounded upon a violation of § 2.1 of the Code. And in this connection intention or willfulness is not an essential ingredient of the offense. Social and economic problems have impelled the adoption of numerous “strict liability” penal statutes. Where the Legislature makes the commission or omission of an act penal regardless of intent, only the doing of the prescribed act need be shown. State v. Kinsley, 103 N. J. Super. 190 (Cty. Ct. 1968), aff’d o.b., 105 N. J. Super. 347 (App. Div. 1969). In civil proceedings to recover a statutory penalty, the State satisfies the burden of proof placed upon it if it establishes defendant’s violation by a preponderance of the evidence. Dept. of Conservation and Economic Development v. Scipio, 88 N. J. Super. 315 (App. Div. 1965), certif. den. 45 N. J. 598 (1965). We view the Air Pollution Control Act, N. J. S. A. 26:2C-1 et seq., in this vein and accordingly find that defendant violated § 2.1 of the Code as charged.

The extent of the penalty is, of course, discretionary with the court. The number of violations, their frequency, the precautions taken to prevent further mishaps, and the circumstances under which the offense occurred are all relevant factors in determining the penalty.

We are of the view that under the circumstances here presented we should exercise such original jurisdiction as is necessary to the complete determination of the matter. B. 2:10-5. A penalty of $200 will be assessed against defendant, payment of which is suspended conditioned upon defendant’s compliance with the provisions of the Code.

Reversed.


author: Kolovsky, J. A. D. Conhord, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH LEE GRAY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 16, 1970
    Decided December 3, 1970.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Nicholas 8calera, assigned attorney, argued the cause for appellant.

      Mr. R. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; John Be Cicco, Legal Assistant, on the brief).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Defendant was found guilty at a jury trial of having robbed one Gregory Green of $63 and appeals from the judgment of conviction.

The State’s proofs were that defendant was one of a group of five young men who attacked the 18-year-old victim on June 30, 1968 and that it was defendant who held a knife to the victim’s throat and took some $63 from his pocket. Shortly after the robbery, as Green, his father and two policemen cruised through the area in a patrol car, Green spotted the group who had robbed him. The suspects fled; the police apprehended only defendant Gray, who was then and there identified by Green as the man who held the knife. A knife was found on Gray’s person.

Defendant argues a number of reasons for reversal. Only one warrants any extended discussion.

There is no merit in the claim that it was plain error to admit evidence of the pretrial identification of defendant “contrary to the principles of United States v. Wade [388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)].” The point is not available on appeal since no objection to the identification testimony was offered at the trial. Moreover, Green’s identification of defendant immediately after he was apprehended by the police was an on-the-scene identification to which Wade does not apply. State v. Satterfield, 103 N. J. Super. 291 (App. Div. 1968).

Equally lacking in substance are the contentions: (1) that the State had failed to make out a prima facie case; (2) that (a) comments by the prosecution in summation, (b) a nonresponsive answer by a defense witness — which was promptly stricken by the court — with respect to defendant’s escape from custody, and (c) admission of evidence that defendant was not employed at the time of the offense, deprived him of a fair trial, and (3) that because the indictment did not charge defendant with armed robbery, it was error to permit proof that a knife was used in the robbery.

Defendant’s principal attack is on the trial court’s ruling which permitted Green to testify on redirect examination as to conversations between himself and defendant’s girlfriend, Ida Belle Hunter.

Green was the first witness called by the State. His testimony began on the first day and was concluded on the second day of the trial. Although he had stated positively to the police, both at the time of the on-the-scene identification and in a written statement, that it was defendant who had come behind him, put a knife to his neck and extracted $63 from his pocket, in his direct testimony on the first day of trial he equivocated. The equivocation continued when the jury returned to the courtroom after a recess during which, in the presence of the judge, the witness was questioned with respect to his written statement.

On the first day that he testified Green said that defendant “appeared to be” the person who committed those acts; “I got sort of like a glimpse [at this fellow] but I am pretty sure”; “I am not too sure whether he was the one who had the knife or not,” but he is the one who demanded the money and took it from my pocket; “I could not see because I was caught from behind”; as the group left, “I turned around.”

The following morning’s session began with a colloquy in the absence of the jury, at the conclusion of which the judge ruled, over defendant’s objection, that his order of sequestration required the exclusion from the courtroom during the State’s case of witnesses whom defendant proposed to call, specifically Ida Belle Hunter, an alibi witness. Miss Hunter had been in the courtroom when Green began his testimony on the previous day and had remained there until the prosecutor requested, following the witness’ statement that “he got a glimpse of the fellow,” that she be directed to leave the courtroom.

When Green resumed the stand on the second day of trial his identification testimony was no longer uncertain. He had turned around when defendant released him so that he was standing face to face with defendant, who wore a blue fishnet shirt and yellow pants. Green made a “positive” in-court identification of defendant; there was “no question” about it, defendant was the man who held the knife and put Ms hand in the witness’ pocket. Green then described the events which followed, including the apprehension of defendant and his on-the-scene identification by the witness. Finally, Green identified the knife found on defendant as the knife which had been held to his throat.

Defense counsel’s cross-examination of Green emphasized the differences between Green’s testimony on the first and second days of the trial. On redirect the prosecutor sought to have Green explain why he had testified on the first day that he “wasn’t sure.” Defense counsel objected; the jury was excused. By way of proffer, the testimony continued before the trial judge. At its conclusion the judge noted:

As we stood yesterday, as far as the Jury knew, this man was in some doubt as to the identification. Today he has a different — his identification is more positive. It could be a problem. There is something that has either changed the man’s testimony yesterday, or changed him today. I think the Jury is entitled to hear this evidence. * * *

The jury then re-entered the courtroom. Before Green resumed his testimony, Miss Hunter was called by the State and testified that defendant had been her boyfriend for three years.

Green then proceeded with his explanation of the reasons why he had given inconsistent testimony on the two days. He had never met Miss Hunter until the day of defendant’s preliminary hearing in the municipal court. She had then approached him and offered to give him the $63 back if he would drop the charges and “would not testify right then and there.” The witness’ father, who was present, promptly told her, “Ho, that is out.”

Green next saw Miss Hunter on the first day of trial when she came up to him just before he took the stand and asked, “was I sure that he was the right fellow that held me up.” That encounter caused him to answer the way he did on the first day of trial

I figured that [Miss Hunter] knew or might know some of the other fellows that were in on * * * the robbery. That is why I did not testify that he was the one, you know, because I was sort of — * * *. Thinking about what might happen, you know. If she knew some of the fellows and told them just how I had testified, knowing, you know, where I lived, and things like that.
[Assistant Prosecutor] :
Q You were afraid? A Yes.

His redirect testimony concluded with the following questions and answers:

Q How do you feel this morning now?
A Well, I went home and thought it over. I told myself if, you know, I let him go this time the same thing will happen again to someone else, you know. So I figured I would go ahead and tell it the way it was.
Q To tell the truth?
A Yes.
Q This is the truth?
A Yes.
Q This is the man?
A Yes.
Q There is no doubt about it in your mind?
A No doubt about it.

On re-cross examination Green conceded that Miss Hunter had not threatened him or told him that she knew any of the other boys and that she had not given any indication that defendant put her up to offering the $63.

Defendant contends that the court erred in permitting Green “to testify concerning attempts to influence his testimony when it was uneontradicted that such attempts were not committed at the authorization or with the knowledge of the defendant.” That contention would have merit if the evidence had been offered or admitted for the purpose of showing conduct of the defendant inconsistent with his claim of innocence. See State v. Hill, 47 N. J. 490, 500-501 (1966).

But there is nothing in the record even to suggest that that was the purpose of Green’s testimony on redirect examination. On the contrary, the record makes it clear that it was offered — and we are satisfied that it was properly admitted into evidence —■ as part of Green’s description of the circumstances, both objective and subjective, which triggered his fears and led him to testify as he did on the first day of trial, this by way of explanation of his reasons for giving the variant testimony. State v. Walter, 14 N. J. Misc. 547, 186 A. 429 (Sup. Ct. 1936), aff’d o.b. 117 N. J. L. 547 (E. & A. 1937); 98 C. J. S. Witnesses § 621(b), at 635; People v. DeMarco, 44 Ill. App. 2d 459, 195 N. E. 2d 213, 215-216 (App. Ct. 1963); Commonwealth v. Del Vaccio, 299 Pa. 547, 149 A. 696, 698 (Sup. Ct. 1930); see also State v. Mulero, 51 N. J. 224, 227 (1968).

The cited authorities make it clear that testimony such as was admitted here may be offered to explain discrepancies or contradictions in a witness’ testimony. See, for example, State v. Walter, supra, an appeal by a chief of police of the City of Trenton from his conviction for nonfeasance in office. In disposing of an issue analogous to that here presented, the court said:

The fourth point deals with alleged error in admitting certain testimony of Rednor. It was brought out on the cross-examination of Rednor that at one appearance before a grand jury he had given evidence at variance with his testimony at the present trial. He was then permitted to say that he had been threatened by three armed men at 3 o’clock in the morning while on his way from his garage to his home and told that if he testified against “the chief” before the grand jury, at his scheduled appearance later in the morning, he would get “bumped off.” We think it was proper to permit him to given [sic] an explanation of any variance in his testimony on the two occasions, and that there was no error in admitting these questions. [186 A. at 432]

The judgment of conviction is affirmed.

Conhord, P. J. A. D.

(concurring). In respect of the testimony as to Miss Hunter’s approach to Green to drop the case, I have considerable reservations concerning the approach of the court in holding this testimony admissible over defendant’s objection. In all of the cases relied upon by the court and the State the defense was held to have invited the testimony fortifying the credibility of the State witness because of the projection by the defense of an attack on the credibility of the witness by asserting matter extrinsic to the testimony of that witness, e. g., a prior inconsistent statement. Here the defense simply stressed the equivocation inherent in the testimony of the State’s witness. I know of no authority upholding the buttressing by the State of its own witness in such a situation, particularly by a means as harmful to the defendant as that here used. And see Evidence Bule 20, last sentence.

However, I nevertheless conclude that the interests of justice were not disserved by the presence in the case of the proofs concerning Miss Hunter’s approach to Green. This evidence bore heavily on the credibility of Miss Hunter, who was the principal support for defendant’s claim of alibi, and it was properly in the case for that purpose, see State v. Allgor, 88 N. J. L. 740 (E. & A. 1916), even though its introduction was neither sought nor allowed on that ground. So viewed, the incidental harm to defendant cannot be regarded as reversibly prejudicial to him.

I agree with the opinion of the court as to the lack of merit of defendant’s other grounds of appeal.


author: Conrord, P. J. A. D.

text:
    THOMAS W. KELLY, AS EXECUTOR OF THE ESTATE OF THORNTON C. LAND, TAXPAYER-APPELLANT, v. SIDNEY GLASER, ACTING DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, RESPONDENT.
    Superior Coux-t of New Jersey Appellate Division
    Argued November 16, 1970
    Decided December 3, 1970.

      Before Judges Conrord, Kolovsky and Carton.

      Mr. Thomas W. Kelly, as executor of the estate of Thornton C. Land, pro se, admitted pro hac vice, argued the cause for appellant.

      Mr. Herbert K. Glickman, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Conrord, P. J. A. D.

We have here for review the validity of a determination of the Transfer Inheritance Tax Bureau of the Division of Taxation subjecting to transfer inheritance tax under N. J. S. A. 54:34-1 (a) a bequest by Thornton C. Land of one-fourth of his adjusted gross estate to Margaret McCampbell, bis former wife, pursuant to a separation agreement executed between them during his lifetime. He died testate May 13, 1965, a New Jersey resident.

Land and Mrs. McCampbell were married in 1933. They entered into a separation agreement in 1958 in connection with a contemplated divorce, which ensued shortly thereafter. For present purposes the pertinent provisions of the agreement may be briefly summarized as follows: The husband agreed simultaneously to execute a will bequeathing to the wife, subject only to her surviving him, certain interests in his estate, the amount thereof depending upon the contingency of her remarriage after their divorce. Upon the occurrence of that event the bequest would be the greater of (1) one-fourth of the adjusted gross estate, as defined in the federal tax code, or (2) the sum of $25,000. Should the wife for any reason not receive the bequest on the husband’s death, she would have a valid claim against the estate for the stated amount prior to other legacies. The agreement was expressly incorporated by reference into a Nevada decree of divorce between the parties.

Mrs. McCampbell remarried prior to Land’s death and survived him. Land’s last will contained a bequest to Mrs. McCampbell in the tenor agreed upon, and the will recites that the bequest is made pursuant to the agreement. The amount payable to Mrs. McCampbell under the will is $260,420.09, which the Bureau has subjected to transfer tax, pursuant to the section cited above, as property “transferred by will * * ~ from a resident of this State.”

The executor of Land’s estate attacks the determination of the Bureau, primarily on the theory that the “taxable event” under the statute is “the transfer of the right to property itself.” It is argued that the legatee’s “right of succession” to the property originated in the divorce decree (or agreement) and not in the will, and the mere fact that decedent chose to perform by bequest an obligation for which his estate would have been liable in any event should not render the transfer taxable. The State argues, to the contrary, that it is of no consequence whether, absent the will provision, Mrs. McCampbell would have had an enforcible claim against the estate, without liability for inheritance tax. Here a testamentary provision was not only bargained for, but was executed and became the vehicle for transfer of the interest in the estate to the legatee. In such a case, says the State, the unambiguous mandate of the statute must take effect and subject the transfer to the tax.

There is no New Jersey decision directly in point. The closest expression is that found in Bente v. Bugbee, 103 N. J. L. 608 (E. & A. 1927). There testator promised to bequeath $15,000 to the taxpayer should she take him into her home for life. He died without honoring his promise, and the taxpayer recovered a judgment against his estate for the stated sum. The court held the judgment or its proceeds was not subject to inheritance tax. The claim was that of a creditor and was a deductible debt for inheritance tax purposes. The court distinguished cases from other jurisdictions where decedent kept his promise by executing a will “and the attempt was to escape the act on the theory that the testamentary provision was not donative in character” (103 N. J. L. at 612). It quoted from one of them as follows:

“The statute here does not provide for a tax because some one has a right arising out of a debt or otherwise, but only when a transfer of property is brought about by means of a will is a tax imposed. It is a tax upon the vehicle carrying the right, rather than a tax upon the right itself. It is in effect a declaration of law that when a will is used as a means of conveyance of property, a tax must be paid for that privilege.” [at 612-613]

The Court of Errors and Appeals went on to say (at 613) :

We are not concerned at this time with the question whether, if Steinberg’s will had contained in unimpaired form the bequest in fulfillment of his contract, that bequest would be taxable. The cases just cited so hold; but that point is not before us. What is before us is a repudiated promise, and a recovery, not in equity, but at law, on account thereof, [at 613]

The foregoing seems to imply approval of the rule set forth in the excerpt quoted by the court as to cases where the decedent honors his promise by making the will agreed upon. Essentially in accord with the holding in Bente v. Bugbee was that of this court in Sullivan v. Margetts, 9 N. J. Super. 189 (App. Div. 1950).

The basic issue before us here has been fought out in other jurisdictions, and a probable majority of the states hold that where the decedent honors his agreement, frequently of an intra-familial nature, to make a testamentary provision for others, the interest transferred is taxable under statutes like ours as passing by the will. In re Howell’s Estate, 255 N. Y. 211, 174 N. E. 457 (Ct. App. 1931); Clarke v. Treasurer and Receiver General, 226 Mass. 301, 115 N. E. 416 (Sup. Jud. Ct. 1917); State v. Mollier, 96 Kan. 514, 152 P. 771 (Sup. Ct. 1915); Carter v. Craig, 77 N. H. 200, 90 A. 598 (Sup. Ct. 1914); Sheppard v. Desmond, 169 S. W. 2d 788 (Tex. Civ. App. 1943); Krug v. Douglas County, 114 Neb. 517, 208 N. W. 665 (Sup. Ct. 1926). Contra: In re Estate of Vai, 65 Cal. 2d 144, 52 Cal. Rptr. 705, 417 P. 2d 161 (Sup. Ct. 1966; over dissent by Traynor, C. J.); In re Johnson’s Estate, 389 Ill. 425, 59 N. E. 2d 825 (Sup. Ct. 1945); cf. In re Neller’s Estate, 356 Pa. 628, 53 A. 2d 122 (Sup. Ct. 1947; by a 4-3 vote, over a vigorous dissent). See Annotation 157 A. L. R. 964 (1945).

The minority viewpoint rests on the philosophy that the mere fact that a testamentary disposition is used to satisfy what is essentially a contractual liability or debt owing by the decedent should not derogate from the normal exemption of creditors’ claims from inheritance tax via the deduction-for-debt provisions usually found in the statutes (as in N. J. S. A. 54:34-5(a)). However, the interest of Mrs. MeCampbell in the present estate is not that of a creditor in the ordinary sense. She had only a contingent interest until the event of her actual survivorship of the decedent. She contracted for satisfaction of her marital right of future support by the decedent by a testamentary provision in his will, and he did not breach that contract. She must be deemed to have done so with constructive knowledge of the statutory tax on transfers by will, and of the fact that the statutory language is not qualified in the case of transfers by will supported by consideration.

We need not, to decide this case, go so far as to sweepingly declare that every instance in which the will is literally the “vehicle” (see Bente v. Bugbee, supra, 103 N. J. L. at 612) of transfer of an interest in the estate necessarily activates a tax under N. J. S. A. 54:34-1 (a). Eor example, that statutory provision must be read in pari materia with N. J. S. A. 54:34-5(a), allowing as a deduction from the value of property transferred, “debts of the decedent owing at the date of death.” Thus, obviously, a provision in the will calling, as customary, for payment of the debts of the decedent would not automatically render payment thereof a transfer by will taxable under S. 54:34r-l(a). To so conclude would defeat the intent of the section on deductions for debt. See Koeffler’s Will, 218 Wis. 560, 260 N. W. 638, 261 N. W. 711, 99 A. L. R. 944, 948 (Sup. Ct. 1935). Other perhaps troublesome hypothetieals can be envisioned which will have to await adjudication as they arise.

We confine our holding to the precise facts of the case before us. We regard this particular transfer as falling within the legislative intent as to transfers, contemplated for taxation because the parties contracted for precisely such a transfer, the contract was performed by execution of an effective will, and the transferee had no absolute claim against the estate until the decedent’s death and her survival, and even then was entitled only to payment under the will, not to satisfaction of a general claim against the estate for nonperformance of contract.

Appellant makes the purported alternative claim that the amount of the bequest in dispute should be allowed as a deductible debt against the estate. However, the projection of the position in this guise is, in effect, to beg the major question discussed above — whether Mrs. McCampbell’s interest constitutes a taxable transfer under the will. If it is, as we have held, the tax result cannot be nullified by characterizing the estate’s obligation to discharge the bequest as a deductible debt of the decedent.

In view of the foregoing, we need not consider the State’s alternative argument that if Mrs. MeCampbell’s interest was regarded as arising, not under the will, but under the separation agreement and the divorce decree, it would constitute an inter vivos transfer intended to take effect at death, and therefore taxable pursuant to N. J. S. A. 54:34r-l(c).

Assessment affirmed.


author: Lewis, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STEWART P. STRICKLAND, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 22, 1970
    Decided December 4, 1970.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Gerald J. Oratio, assigned counsel, argued the cause for appellant.

      Mr. Richard A. Fiore, Assistant Prosecutor, argued the cause for respondent {Mr. Robert Dilts, Bergen County Prosecutor, attorney).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Defendant appeals from a judgment of conviction for obtaining money under false pretenses in violation of N. J. S. A. 2A:111-1, contending that (1) the total sentence imposed was illegal and excessive, and (2) the charges against him which were dismissed at the time of sentencing cannot be reopened on a remand of the instant case for resentencing.

This last point is speculative. We pass it summarily; it is not ripe for consideration at this time. We turn to defendant’s objections to the propriety of the indictment and the sentences imposed.

Prior to February 5, 1969 defendant pleaded not guilty to an indictment of eight separate counts for issuing worthless checks, one in an amount less than $200 and the others ranging upwards to $2800. On February 5 he retracted his former plea and pleaded guilty to the eight counts. On February 21, 1969 he pleaded guilty to two additional accusations for similar offenses involving worthless checks in the amount of $789.60 and $274 respectively. His guilty pleas were accepted by the court.

Defendant was sentenced on February 28 as follows: on each of the counts of the indictment, one to two years in State Prison, the sentences on counts one through four to be served consecutively and those on counts five through eight to bo served concurrently with the sentences imposed on counts one through four. As to the accusations, he was sentenced to one to two years in State Prison, to be served concurrently with the foregoing sentences. On the same day, one additional accusation and two complaints of issuing worthless checks were dismissed.

In April defendant again pleaded guilty to two similar accusations involving the issuance of worthless checks in amounts less than $200 each. He was sentenced thereon to not less than one nor more than two years in State Prison, to be served concurrently with the sentences previously imposed. Eight further accusations against him for the issuance of worthless checks were dismissed on May 9.

In summary, defendant received a total of four to eight years in State Prison for having issued 12 separate worthless checks totalling $10,751.35, three of which were in amounts less than $200 each. Eleven additional charges for obtaining money under false pretenses were dismissed.

It is here argued that as to the nine checks over $200 each, defendant should have been sentenced under N. J. S. A. 2A:111-15 and not under N. J. S. A. 2A:111-1. We agree. State v. Morse, 109 N. J. Super. 160 (App Div. 1970); cf. State v. Bott, 53 N. J. 391 (1969).

In Morse we pointed out distinctions between N. J. S. A. 2A:111-1 (the omnibus statute proscribing the obtaining of money or property by false pretenses) and N. J. S. A. 2A:111-15 (which specifically embraces the issuance of worthless checks in the amount of $200 or more), noting that the penalty for a violation of the former is a maximum of three years in prison or a fine of $1,000, or both, while under the latter statute the punishment is a fine of not more than $1,000 or imprisonment for not more than one year, or both.

These statutes are not entirely overlapping, inasmuch as it is possible that a person may be guilty of one and not of the other, but a comparison of the elements of the respective crimes demonstrates that in the instant case, where defendant pleaded guilty to N. J. S. A. 2A:111-1, he must necessarily be guilty of violating N. J. S. A. 2A :111-15.

The factual differences between Morse and the case at bar are immaterial. We are concerned here only with the proper sentencing of defendant and hold that, in the circumstances, the legal principles in Morse control. We there observed:

* * * In situations where two criminal statutes prohibit the same act, we adhere to the inveterate principle that statutes must be read in a manner most favorable to the accused. 3 Sutherland, Statutory Construction (3d ed. 1943), § 5604, p. 49; Bell v. United States, 349 U. S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955) ; State v. Brillo Mfg. Co., 63 N. J. Super. 287, 295 (App. Div. 1960). Moreover, it has been held that any conflict between a general and a specific statute covering a subject in a more minute and definitive way should be resolved by considering the latter as prevailing over the former as an exception to it. Clifford F. MacEvoy Co. v. United States, etc. 322 U. S. 102, 107, 64 S. Ct. 890, 88 L. Ed. 1163 (1944) ; United States v. Tiplitz, 105 F. Supp. 512, 513-514 (D. N. J. 1952), appeal dismissed 202 F. 2d 60 (3 Cir. 1953) ; State by State Highway Com’r v. Dilley, 48 N. J. 383, 387 (1967) ; State v. Hotel Bar Foods, Inc., 18 N. J. 115, 128 (1955) ; Ackley v. Norcross, 122 N. J. L. 569, 572 (Sup. Ct. 1939), aff’d o.b. 124 N. J. L. 133 (E. & A. 1940). [at 164-165]

Additionally, it is evident from the record that defendant’s appeal was pending at the time Morse was decided. Thus, we should apply that the recognized concept of law that where a case is on direct review, defendant should be given the benefit of any changes in the case law which have occurred between the time of trial and the date of the appellate argument. See e. g., Linkletter v. Walker, 381 U. S. 618, 627, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), and State v. Murphy, 85 N. J. Super. 391 (App. Div. 1964), aff’d 45 N. J. 36 (1965).

Accordingly, the judgment of conviction is not disturbed but the matter is remanded for resentencing under N. J. S. A. 2A:111-15 consistent with the rationale of this and the Morse opinions.


author: Pee Cubiam.

text:
    ANNAMARIE HUIE ET AL., PLAINTIFFS-RESPONDENTS, v. NEWCOMB HOSPITAL ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 23, 1970
    Decided December 7 1970.

      Before Judges Sullivan, Collester and Labreoque.

      Mr. William, G. Bischoff argued the cause for appellant Miles E. Drake (Messrs. Taylor, Bischoff, Williams & Martin, attorneys).

      Mr. Marvin D. Perskie, argued the cause for respondents {Messrs. Perskie & Perskie, attorneys). ' •
   Pee Cubiam.

Pursuant to leave granted, defendant Dr. Miles E. Drake appeals from an order requiring him to submit for examination by plaintiffs’ attorney an article on retrolental fibroplasia previously prepared for publication by him.

The infant plaintiff, Annamarie Huie, was prematurely born on February 4, 1965. On the day after her birth she was transferred from the hospital in which she had been born to the Newcomb Hospital, Vineland, where she came under the care of Dr. Drake, a pediatric specialist. It is contended, among other things, that by reason of the negligent administration of oxygen Annamarie has been premanently blinded. The present suit seeks to recover for her injury and disability as well as her parents’ expenses and loss of services.

During the course of extensive discovery Dr. Drake’s deposition was taken. When questioned as to the medical treatises in the field of retrolental fibroplasia which he recognized as authoritative he replied, “There are no such things.” He further testified:

Q. Doctor, are you familiar with the work on Premature Babies, Nursing Care and Management by Geddes?
A. I at least know of the existence of the book.
Q. It is an authoritative work in the field as of ’66?
A. Sorry, Mr. Perskie, I told you in the beginning that as a practicing- pediatrician I cannot accept any textbook as an authority.
He was then asked:
Q. Now, Doctor, have you ever prepared any papers or articles on retrolental fibroplasia?
A. Yes, I have prepared a paper.
Q. When?
A. Pour years ago.
Q. This was after this case or before this case?
A. Well, I was in the process then of reviewing my prematuries.
Q. Did you in the course of preparing this paper then—
A. I was in the process of preparing a review of my premature infants. I was preparing it for the state medical journal.
Q. Was it ever published?
A. No. I have not sent it in. It was in the process of being prepared to send it in.
Q. What occasioned your doing this?
• A. You mean changing the paper?
Q. No. How did you come about to prepare it? Why?
A. Because I had approximately 14 or 15 years of premature care in two community hospitals, and there isn’t a great deal of literature in hospitals. I felt this would be advisable to do.

Thereafter plaintiffs applied to the court for an order directing that the article in question be produced for inspection by plaintiffs’ attorney. The motion was granted.

We are in general accord with the reasoning expressed in the oral opinion of Judge Repetto granting the motion. Discovery rules are to be liberally interpreted. Rogotzki v. Schept, 91 N. J. Super. 135, 146-147 (App. Div. 1966). The search for truth and justice is paramount. Myers v. St. Francis Hospital, 91 N. J. Super. 377, 385 (App. Div. 1966). The scope of discovery practice is set forth in R. 4:10-2, formerly R. R. 4:16-2, which .permits inquiry as to any matter, not privileged, which is relevant to the subject matter involved in the pending action. See Strecker v. Devine, 11 N. J. Super. 272 (Law Div. 1951). R. 4:18-1 permits discovery and inspection of books, papers, etc., not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by B. 4:10-2. It is not ground for the exclusion of testimony that it will be inadmissible at the trial, if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. Greenberg v. Stanley, 30 N. J. 485, 497 (1959).

Myers v. St. Francis Hospital, supra, is analogous and illustrative of the broad discovery permitted as to authoritative articles, books, or treatises, and supports the granting of the motion. As was stated by Judge Goldmann in Myers,

It would save much time in trial preparation if respective counsel knew in advance wbat texts they could use in cross-examining the opposing experts. It is a frustrating experience — one which we have observed in a number of cases over the years — to have an expert witness not recognize, or refuse to recognize, treatise after treatise as authoritative. (91 N. J. Super. at 391)

Here the inference to be drawn from Dr. Drake’s deposition is that there were no authoritative works which he recognized in the field of retrolental fibroplasia. The inspection of his paper might well lead to the discovery of articles, books or treatises which he did view as authoritative at the time the paper was prepared, thus (1) opening the door to impeaching his credibility in that regard, and (2) shortening cross-examination. Wholly aside, the article concerns the relation between the use of oxygen and retroiental fibroplasia, and represents the doctor’s conclusions after review of his premature patients (one of whom was the infant plaintiff), matters which would be proper subjects of inquiry at the taking of the doctor’s deposition. Rogotzki v. Schept, supra; 27 C. J. S. Discovery § 32(1) at 93 (1959).

Affirmed.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALVEY CHAUNCEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 30, 1970
    Decided December 7, 1970.

      Before Judges Goldmann, Leonaed and Mountain.

      Mr. I. Marie Cohen, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Kenneth C. Krause, Assistant Prosecutor, argued the cause for respondent (Mr. Geoffrey Gaulhin, Hudson County Prosecutor, attorney).
   Pee Cueiam.

A jury found defendant guilty of carnal abuse (N. J. 8. A. 2A:138-1) and he was sentenced to a State Prison term of 12-15 years. His motion for a new trial-having been denied^ this appeal followed.

The defense moved for a judgment of acquittal at the close of' the State’s casé. It was denied; the defense rested and renewed the motion, which was again denied. At defendant’s specific request, the Public Defender now argues that the trial judge erred in denying the motions because the State had not actually proved a case of carnal abuse but, at best, an attempt at cunnilingus. The argument lacks merit. The proofs presented by the State were sufficient to allow the case to go to the jury, in that the evidence, viewed in its entirety, including the legitimate inferences that could be drawn therefrom, was sufficient to enable a reasonable jury to find that the crime charged had been established beyond a reasonable doubt. State v. Mayberry, 52 N. J. 413, 436-437 (1968).

Defendant also claims that it was error to allow the indictment into the jury room because of its possible prejudicial effect. Cited in support is the Comment to B. 1:8-8 in the Buies Governing the Courts (1969 rev.) (Gann Law Books ed.). B. 1:8-8 became effective on September 8, 1969, eight days before defendant’s trial. Insofar as its application to criminal eases is concerned, the rule states that the jury “may take into the jury room the exhibits received in evidence * * The source rule is former B. B. 4:52-2, which dealt with the practice in civil cases; there was no rule applicable to criminal causes. The Comment referred to by defendant reads:

The text of this rule is substantially the same as that proposed by the tentative draft rule which in turn made only minor language changes in the source rule. The rule, in conformance with present practice, is applicable to criminal actions as well as to civil actions although there is no comparable provision in respect of criminal actions in the source rule. It is noted that the tentative draft rule provision permilting the jury to take the indictment into the jury room is omitted from this rule because of its capacity for prejudice. The indictment itself adds nothing to the proofs and weight may be improperly accorded to the fact that the grand jury has acted.

Whatever the logic that moved the rules committee to omit from its tentative draft rule the provision permitting a jury to take the indictment into the jury room, it should be observed immediately that the comment has no official standing. As noted in State v. Profita, 113 N. J. L. 330, 334 (Sup. Ct. 1934), aff’d 114 N. J. L. 334 (E. & A. 1935); and cf. State v. Begyn, 58 N. J. Super. 185, 195 (App. Div. 1959), aff'd 34 N. J. 35 (1961), it had long been the practice to allow an indictment into the jury room.

Defendant calls our attention to State v. Boncelet, 107 N. J. Super. 444 (App. Div. 1969), where, as here, defendant had objected to the indictment going into the jury room before the jury began its deliberations. In that case, how.ever, this court, after stating (at 454) that “ordinarily it would not have been error to send the. indictment into the jury room,” noted that the objection had been sustained, and the subsequent reading of the indictment to the jury, with the usual cautionary instruction that it was not to consider .the indictment as anything more than a mere formal charge .and its allegations not evidential in any respect, was not error. A similar cautionary instruction was given in this ■case. Moreover, there is no allegation or demonstration of ,any actual prejudice having been visited upon defendant. ■Although we agree with the comment that sending the indictment into the jury room may, in very special circumstances, have a possible prejudicial effect, we find no error in this . case.

■ Affirmed.