author: Kapp, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH CREMENS, THOMAS CHYBINSKI AND FRANK MANNO, DEFENDANTS.
    Essex County Court Law Division
    Decided May 1, 1970.

      Mr. David Ben-Asher and Mr. Michael G. Parks of the Newark-Essex Joint Law Eeform Project, for defendants.

      Mr. Robert L. Podvey, Assistant Prosecutor for the State (Mr. Joseph P. Lordi, Prosecutor, attorneys).
   Kapp, J. C. C.

Defendants stand charged on separate complaints in the Irvington Municipal Court wherein it is alleged that on September 36, 1969, at Civic Square in Irvington, defendant was a disorderly person “in that wdien apprehended he was consorting with [seven named persons] each bearing a bad reputation and each consorting with the other for an unlawful purpose contrary to the provisions of N. J. S. A. 3A: 170-1.”

Defendants moved for a dismissal of the complaints pursuant to B. 7:4-3(e) for the reason that the “consorting” presumption in the statute was not within the competency of the Legislature to enact, and thereby unconstitutional. The motion was denied; however, a stay of the trial was granted pending an interlocutory appeal to this court.

An affidavit filed in support of the motion alleges that defendants were arrested on September 36, 1969 in Civic Park, together with approximately 80 persons, charged with “consorting” in violation of N. J. 8. A. 3A :170-1.

A consideration of defendants’ contention leads us to State v. Salerno, 37 N. J. 389 (1958), where Chief Justice Weintraub expressed the view that the purpose of the challenged statute was to “nip crime in the beginning” by proscribing conduct that is indicative of a purpose to violate the law. It was also intended to prevent persons of bad reputation from consorting for an unlawful purpose with other such persons and thereby to disrupt and scatter the breeding spot, such as an Appalachia.

N. J. S. A. 2A:170-1 provides that:

Any person who is apprehended and cannot give a good account of himself, or who is engaged in an illegal occupation and who is in this state for an unlawful purpose, is a disorderly person. In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation is prima facie evidence that he is present in this state for an unlawful purpose.
Any person who is apprehended and proven to the satisfaction of the magistrate before whom he is brought to be a person who is engaged in an illegal occupation or who bears a bad reputation, and consorts for an unlawful purpose with thieves, burglars, pickpockets, swindlers, confidence men or other criminals or persons who bear a bad reputation, is a disorderly person. In any prosecution under this section the fact that the person apprehended is engaged in an illegal occupation or bears a bad reputation and is found consorting with thieves, burglars, pickpockets, swindlers, confidence men or other criminals or persons who bear a bad reputation, is prima facie evidence that such consorting was for an unlawful purpose.

The first half of the statute was designed to control loitering. In the present ease defendants challenge the validity of the: proscription set forth in the latter part of the act, upon which the complaints are predicated. The provision of the statute under attack may he thus summarized:

Any person who is apprehended and proven to the satisfaction of the magistrate before whom he is brought to be a person * * * who bears a bad reputation, and consorts for an unlawful purpose with * * * persons who bear a bad reputation, is a disorderly person. In any prosecution under this section the fact that the person apprehended * * * bears a bad reputation and is found consorting with * * * persons who bear a bad reputation, is prima facie evidence that such consorting was for an unlawful purpose.

The defendants contend that the presumption created by the statutei violates the constitutional requirement of due process of law for the reason that' there is no rational connection between the fact proved and the fact presumed; that the statute is vague, overbroad and offends the equal protection clause of the 14th Amendment to the Constitution.

The mandatory direction in the case of Colwell v. Mays Landing Water Power Company, 19 N. J. Eq. 245 (Ch. 1868), now compels our attention. Chancellor Zabriskie there held:

It is a principle of construction, that if an act admits of two constructions, one of which will render it unconstitutional and the other not, such construction shall be given to it as will make it in accordance with the constitution; for it must be presumed that the legislature did not intend to violate the constitution.

See also, Endlich, Interpretation of Statutes [1888 Ed.], § 178, at 246; Sutherland, Statutes and Statutory Construction, § 331, at 417.

In State v. Zito, 54 N. J. 206, 218 (1969), Chief Justice Weintraub, speaking for a unanimous court, sustained the validity of this statute, but excised therefrom the “good account” provision in the first part (vagrancy) of the act. The court reasoned that:

The central purpose of our statute being to reach presence at a place for an unlawful purpose rather than to punish silence, we think it fair to say the Legislature Intended by the good-account provision to assure the suspect a chance to explain away the circumstances which appear inculpatory. It is fair and appropriate to accord that opportunity. We have some reservation, only because of the evolving view of the self-incrimination provision of the Fifth Amendment which may complicate this scene, either by barring the policeman’s inquiry or by requiring warnings that will make the procedure too troublesome to be worthwhile. See People v. Weger, 251 Cal. App. 2d 584, 59 Cal. Rptr. 661 (D. Ct. App. 3967), cert. denied, 389 U. S. 1047, 88 S. Ct. 774, 19 L. Ed. 2d 840 (1968), and cf. Orozeo v. Texas, 394 U. S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969). But seeing no barrier as of now and deeming the good-account provision to be for the benefit of a suspect, we construe the statute to require the officer to offer an opportunity to explain, and therefore that proof of such an offer is prerequisite to a prosecution under that statute unless the court finds the cireumstances prevented an offer or made one plainly unnecessary. We add that if developments hereafter should render such an inquiry unconstitutional, the good-account provision may well fall without impairing the remainder of the statute. The statute is an important instrument £or protection of the individual, and since the Legislature would likely want the statute to remain to the extent that it may, we see no impediment to such judicial surgery as will bring the statute within the Constitution.

The section of the statute here under attack has twice before been challenged in the courts of New Jersey. Nedza v. Klein, 116 N. J. L. 350 (Sup. Ct. 1936), and Stromberg v. Court of Common Pleas, 118 N. J. L. 387 (Sup. Ct. 1937). However, neither ease was argued or decided upon constitutional grounds.

The New York Court of Appeals in the case of People v. Pieri, 269 N. Y. 315, 199 N. E. 495 (1936), dealt with a strikingly similar statute that was assaulted upon the identical grounds projected by defendants herein. In an extensive discussion of the constitutional issues presented, that court refused to invalidate its statute and added: .

Is this an unreasonable or unnatural presumption? Is there not here some rational relation between the tact proved and the fact presumed? * * * Does not experience warn us that when evil per.sons associate with those who commit crime or who have repeatedly been convicted of violating the law, it is all to no good purpose; such close association immediately suggests that some unlawful scheme is being concocted? Besides, the prosecution, even with the aid of this presumption, must still prove to the satisfaction of the judge, beyond a reasonable doubt, that the consorting was in reality for an unlawful purpose: (lie burden of proof is not shifted.”

See also, United States v. Gainey, 380 U. S. 63, 84 S. Ct. 754, 13 L. Ed. 2d 658 (1965); State v. Di Rienzo, 53 N. J. 360 (1969).

The quantum of proof required to secure a conviction under the statute, as defined by our former Supreme Court in Nedza and in Stromberg; supra, is indeed great; a defendant’s constitutional rights are not offended when prosecuted, as here, for a violation brought under the provision of N. J. S. A. 2A:170-1 for “consorting.”

In view of the foregoing the motion to dismiss the complaints is denied. The case is remanded to the Irvington Municipal Court and there to be dealt with according to law.


source: Caselaw Access Project

author: Leonaed, J. A. D.

license: Public Domain

text:
    HENRY G. ERICKSON, PLAINTIFF-RESPONDENT, v. MANUEL McCASKILL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 24, 1970
    Decided May 14, 1970.

      Before Judges Kilkenny and Leonaed. (At oral argument Judge Labbecque disqualified himself in this matter and counsel stipulated that it could be heard and determined by the remaining two judges.)

      Mr. Marshall Selihof argued the cause for appellant (Messrs. Jung, Selihof, Bathman & Dwyer, attorneys).

      Mr. Philip Newman argued the cause for respondent.
   The opinion of the court was delivered by

Leonaed, J. A. D.

The Unsatisfied ¿Claim and Judgment Eund (Eund) appeals from the trial court’s order directing it to pay a $7500 judgment recovered by plaintiff against defendant McCaskill, an uninsured motorist.

On January 22, 1965 McCaskill was operating his tractor in a southerly direction on Route 35 when he was involved in a collision with three other vehicles, respectively operated by plaintiff, Michael Murphy and Edward A. Cox. Defendant was driving from the Bond Transportation, Inc. (Bond) terminal in Woodbridge to his home in Long Beach.

Plaintiff instituted suit against McCaskill alone and filed a notice of intention with the Eund. Murphy by his guardian ad litem, and Cox sued McCaskill and Bond but they did not file a notice of intention. The suits were consolidated for trial and resulted in verdicts in favor of plaintiff, Murphy and Cox. Plaintiff’s verdict was solely against defendant while Murphy and Cox recovered against both defendant and Bond.

Bond was certified by the Interstate Commerce Commission (I. C. C.) as an interstate carrier. The relationship between McCaskill and Bond and the pertinent facts of that relationship are well set forth in Cox v. Bond Transportation, Inc., 53 N. J. 186, 190-195 (1969). The theory of Murphy and Cox’s action against Bond was twofold: (1) Bond was liable for McCaskill’s negligence under the common law respondeat superior doctrine, and (2) by reason of the I. C. C. regulations Bond was vicariously liable for McCaskill’s negligence since at the time of the accident the latter was operating his tractor, as a lease-operator, under Bond’s I. C. C. franchise. The trial judge held that McCaskill was an independent contractor and consequently the first theory of liability was not applicable. (No appeal was taken from this determination.) The second issue was submitted to the jury by means of a special interrogatory which, in returning its verdicts, the jury answered in the affirmative.

Upon appeal we reversed the judgments against Bond, holding that as a matter of law vicarious liability should not have been imposed on it because of McCaskill’s negligence. Cox v. Bond Transportation, 99 N. J. Super. 335 (App. Div. 1968). Our conclusion was predicated upon the finding that on the day of the accident and at all other times McCaskill was operating his tractor for Bond in intrastate commerce and thus he was not operating under Bond’s I. C. C. franchise. Id. at 338-339.

The Supreme Court granted certification, 51 N. J. 511 (1968), reversed our determination, and reinstated the judgments entered in the trial court in favor of Murphy and Cox. Cox v. Bond Transportation, Inc., supra, 53 N. J. 186 (1969). The court held that under the existing circumstances the question of Bond’s vicarious liability was one requiring determination by the triers of the facts, and that their affirmative answer was amply supported by the evidence in the case. Id. at 206-207.

Thereafter, upon plaintiff’s motion the order now under attack was entered directing the Eund to pay the $7500 judgment recovered by plaintiff against defendant McCaskill.

The Eund presently urges, as it urged below, that plaintiff is precluded from recovery because he did not commence an action as to all parties against whom he might reasonably have been considered to have had a cause of action. It asserts that plaintiff should have reasonably anticipated a recovery against Bond and should have included Bond as a party defendant to its action. Since plaintiff did not commence an action against Bond, the Eund argues that N. J. 8. A. 39:6-71(b) (1) precludes the entry of an order directing it to make payment to plaintiff. The Eund concedes that the case law prior to the Supreme Court determination in Cox v. Bond Transportation, Inc., supra, was “somewhat limited and unclear.” Nevertheless, it relies upon the language, logic and conclusions of that opinion as support for its contention that plaintiff’s failure to act against Bond was unreasonable.

The Supreme Court created new law in' this State. In reversing the Appellate Division Justice Erancis, speaking for the court said:

Research has revealed no case in this or a sister state in which the same circumstances md the same legal issues were presented. Study of analogous authorities, however, has convinced us that the trial court properly viewed the matter of Bond’s liability as one requiring determination by the triers of the facts. [53 N. J. at 207]

Eurther, the court recognized the conflict between the holdings of two relevant out-of-state cases — Turnbow v. Hayes Freight Lines, Inc., 15 Ill. App. 2d 57, 145 N. E. 2d 377 (App. Ct. 1957), and Schmidbauer v. Baltimore & Pittsburgh Motor Exp. Co., 228 Md. 637, 181 A. 2d 325 (Ct. App. 1962) — and concluded that Turnbow represented “a sound and more just result.”

In Farnham v. Strelecki, 101 N. J. Super. 1, 5-7 (App. Div. 1968), we approved the reasoning set forth in Nash v. Iamurri, 76 N. J. Super. 167 (Law Div. 1962). The court in Nash said:

There is no requirement that the plaintiff institute an action against any person against whom it does not appear reasonably likely that liability may be established. The determination of the reasonable likelihood of success must necessarily be made in the first instance by the plaintiff, usually on the advice of his attorney, [at 175]
* # % ❖ *
As already indicated, plaintiff and his attorney must in all cases under this statute form a judgment as to Ihe course to be pursued. But the reasonableness and good faith of that judgment is not left to their final determination. They must justify it in the suit to recover irom ihe Fund. In that suit, as here, the court with or without a jury, must determine whether or not plaintiff has brought himself within the terms of the act.
Thus, if it now appeared that plaintiff could reasonably have been expected to establish that Iamurri was the tortfeasor, plaintiff could not recover. But that determination is a factual determination of reasonableness. There is no arbitrary requirement of mechanical steps to be pursued, [at 176]

Thus, the reasonableness of the action of plaintiff and his attorney must be tested under the circumstances, legal or factual, that existed when plaintiff’s suit was instituted. No such determination can be made upon the basis of a hindsight evaluation of the factual background or following a change in the legal concepts that had previously existed. Sec Selimo v. Hartshorn, 99 N. J. Super. 146, 158 (Law Div. 1968). Under all the circumstances here present, and particularly considering the state of the law at the time the suit was instituted, we find that the trial court correctly determined that plaintiff’s counsel’s determination not to sue Bond was a reasonable one. Further, that fact that counsel for Cox and Murphy named Bond as a defendant does not adversely affect the reasonableness of plaintiff’s decision. Therefore, it is our conclusion that N. J. S. A. 39 :6-71(b) (1) does not preclude the entry of the order directing the Fund to pay plaintiff the amount of his judgment.

The Fund next contends that since it has now been established judicially that Bond is liable for any negligence of McCaskill, plaintiff has a continuing duty to pursue his remedy against Bond and must exhaust that remedy before the Fund may be compelled to make payment. This point lacks merit. 49 U. S. C. A. § 304 and the implementing Interstate Commerce Commission regulations merely make Bond vicariously liable for McCaskilPs conduct. An action by plaintiff for injuries to his person against Bond predicated upon the neglect or negligence of McCaskill must be brought within “2 years next after the cause of any such action shall have accrued.” N. J. 8. A. 2A.TA-2. The statutory period having expired, plaintiff is barred from suing Bond. It is therefore apparent that the institution of such a suit at the present time would be fruitless. We will not require plaintiff to pursue a legally unsupportable claim. Selimo v. Hartshorn, supra, 99 N. J. Super, at 155-156.

Judgment affirmed.


author: Labrecque, J. A. D.

text:
    IN THE MATTER OF THE COMPLAINT OF THE TOWNSHIP OF MILLBURN, IN THE COUNTY OF ESSEX, STATE OF NEW JERSEY, AGAINST THE ESSEX COUNTY EQUALIZATION TABLE FOR THE YEAR 1969. TOWNSHIP OF MILLBURN, IN THE COUNTY OF ESSEX, PLAINTIFF-APPELLANT, v. ESSEX COUNTY BOARD OF TAXATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 27, 1970
    Decided May 15, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Harold M. Main argued the cause for appellant Township of Millburn.

      Mr. Herbert K. Gliclcman, Deputy Attorney General, argued the cause for respondent Essex County Board of Taxation (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Slcillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by ■

Labrecque, J. A. D.

The Township of Millburn appeals from the affirmance by the Division of Tax Appeals (the Division) of the equalization table adopted by the Essex County Board of Taxation (county board) for the year 1969.

Millburn underwent a revaluation during the year 1968. Its tax list for 1969 reflected the revalued assessments and resulted in an aggregate of assessed real estate which substantially exceeded that for the prior year. The Director of the Division of Taxation had prepared a suggested formula for use by the assessors of revalued districts in arriving at the ratio of assessments to true value. This formula, which is designed to establish a new ratio of assessments to true value for the year following revaluation through a comparison with the aggregate for the prior year, may be summarized as follows:

The value of the ratables on the Added and Omitted Assessment List and the value of aP additional ratables, such as new construction and improvements and property transferred from exempt to taxable, are added to the total of the ratables for the district as shown by Director’s table for school aid for the preceding year under N. J. S. A. 54 :l-35.1. Then the value of all ratables lost by fire, demolition and transfers from taxable to exempt is deducted. The resulting total, designated as “Net true value at beginning of the new year” is then divided into the aggregate of assessments produced by the revaluation and the resulting figure is the ratio of assessments compared to true value produced by the revaluation. (Emphasis added)

In calculating its ratio under the formula Millburn deducted not only the ratables lost by fire, demolition and transfers from taxable to exempt status, as authorized by the Director, hut also the sum of $2,564,100 representing claimed reductions in ratables for the prior year as a result of judgments on contested appeals from assessments. The county board declined to accept Millburn’s computation and, applying the Director’s formula, fixed its ratio at 104.24%. Had the county board permitted Millburn to deduct the additional sum claimed, its ratio would have been 105.20%. If Millburn’s contention had been upheld, its practical effect would have been to bring about a reduction in Mill-burn’s equalized valuations and a consequent decrease in its share of the cost of county government.

The county board’s annual preparation of the county equalization table, pursuant to N. J. S. A. 54:3-17, is to be distinguished from the preparation of the Table of Equalized Valuations which the Director of the Division of Taxation is required to promulgate on October 1 of each year for purposes of state school aid, N. J. S. A. 54:1-35.1. The county board’s table is for the purpose of apportioning the burden of the cost of county government among the various taxing districts in the county. Thus, any reduction in the share of one taxing district must be made up by the remaining districts. In the case of the school aid table, however, any reduction or increase in the amount payable to a school district in the form of school aid does not affect the amount payable to other districts. In practice many county boards follow the Director’s table as accurately reflecting the equalization ratios for the following year. •

The function of the Division of Tax Appeals upon a showing of error by the county board in its preparation of the equalization table is the same as that charged to the county board in the first instance, i. e., to call a hearing of the taxing districts of the county and promulgate a new table. Passaic v. Passaic County Bd. of Taxation, 18 N. J. 371, 393 (1955); New Brunswick v. Middlesex County Equalization Table, 25 N. J. Misc. 353, 53 A. 2d 641 (Div. Tax App. 1947). Millburn contends that the refusal to permit it to deduct the loss in assessments due to reductions granted as a result of tax appeals during 1968 was error which required the county board to promulgate a new table. We are thus confronted with a single question — whether it was error for the county board to follow the Director’s formula.

In addition to Millburn, three other taxing districts had undergone revaluations for 1968 so that, at least, they too, would have been entitled to the benefit of the claim now made by Millburn. They have not appealed.

It is to be noted that the ratio arrived at by the county board is applicable for 1969 only. The formula is used only to fix the ratio for the year following a revaluation. Thereafter, the ratio is arrived at from sales ratio studies made on a continuous basis under supervision of the Local Property Tax Bureau of the Division of Taxation.

In preparing the equalization table the county board is required to determine according to its best knowledge and information the general ratio or percentage of the full value at which the real property in each taxing district is, in fact, assessed, according to the tax lists submitted to it by the assessors, and to equalize the aggregates at full value in order equitably to distribute the county tax burden among them. N. J. S. A. 54:3-17 and 18. The purpose of the equalization process has been said to be “to minimize so far as possible the unfair distribution of the county tax which is one result of varying average assessment ratios among municipalities within the same county.” Passaic v. Passaic County Bd. of Taxation, supra, at 381. No specific plan or method for reaching that determination is prescribed, and any efficient mode may be adopted. Carteret v. Division of Tax Appeals, etc., 40 N. J. Super. 439, 446 (App. Div. 1956), certif. den. sub nom. Sayreville v. Division of Tax Appeals, 22 N. J. 224 (1956). The board’s conclusions need not rest upon proof admissible under common law rules of evidence, and an oversensitive regard for such rules is inconsistent with the practical and just discharge of its duty in this respect. Carteret v. Division of Tax Appeals, etc., supra, at 446. After the Division has reviewed and affirmed the county board’s table its action is presumed to be correct and the courts will not interfere in the absence of an affirmative showing that the Division’s action was arbitrary, capricious or unreasonable. Id. at 448.

The page 8 formula here used is an accepted method of arriving at equalization ratios. While we are inclined to agree with the judge of the Division that there may be merit to Millburn’s argument that loss of ratables due to judicial reductions in assessments is as much a loss to the taxing base as one caused by fire, demolition, or change in taxable status, we cannot say that adherence to the Director’s formula by the county board was error. Computation of the ratio following a revaluation is accompanied by many imponderables and any reasonable method of accomplishing equalization may be utilized. Woodbridge v. Middlesex Cty. Bd. of Taxation, 96 N. J. Super. 532, 536-37 (App. Div. 1967). The equalization process has been said to bo an inexact science, and since individual assessments are not affected by the table, a degree of imperfection may be tolerated.

While the county board was not bound to follow the Director’s formula, it was free to do so. Its refusal to further refine the formula was not unreasonable. Each taxing district may be confronted at the end of the year with a loss in ratables due to reductions in assessments granted by the county board and the Division. The reductions are not always for the current year but, in many instances may cover several years. In many cases a reduction by the county board in one year may be further reduced — or restored —■ by the Division during the following year. The county board must begin equalization proceedings on January 25 and complete them by March 10 of each year. It would appear clear that an examination of all reductions in assessments claimed by a revalued taxing district as a deduction under the Director’s formula would greatly handicap the board in the timely fulfillment of its duties.

We accordingly hold that the use of the Director’s formula was not error.

The judgment of the Division of Tax Appeals is accordingly affirmed.

       in annually apportioning the county tax burden among the taxing districts, the county board is required to credit each taxing district with the amount of any overpayment due to reductions in assessments for prior years by final judgments on appeal, complaints and applications. N. J. S. A. 64:4-49. See also Newark v. Essex County Board of Taxation, 110 N. J. Super. 93 (Law Div. 1970).


author: Per Curiam.

text:
    STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. IN THE INTEREST OF J. M., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 11, 1970
    Decided May 18, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Edward M. Weisslitz, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. George A. Gluff, Assistant Prosecutor, argued the cause for respondent (Mr. John, G. Thevos, Passaic County Prosecutor, attorney).
   Per Curiam.

This is an appeal from a Juvenile and Domestic Relations Court order adjudging J. M. a delinquent and commuting Mm to the Youth and Correction Center at Yardville. He had been charged under a juvenile delinquency complaint with “possession of narcotics paraphernalia, namely a hypodermic needle and an eyedropper.”

Although the complaint does not specifically mention that the juvenile violated N. J. S. A. 2A:170—77.5, nor does the order of commitment, the case was tried in the light of that statute, and the arguments advanced on appeal center upon it. N. J. S. A. 2A:170-77.5 provides:

Tt shall be unlawful for any person * * * to have under control or possess a hypodermic syringe, hypodermic needle or any other instrument adapted for the use of narcotic drugs by subcutaneous injections with intent to use such syringe, needle or instrument for such purpose, * * *. [Italics added]

It is conceded that the State had to establish two things: first, that the paraphernalia found in the possession of J. M. was adapted for the use of narcotic drugs by way of subcutaneous injection and, second, that be intended to use the paraphernalia for that purpose. Since a penal statute must be strictly construed, the failure of the State to establish specific intent would require a judgment in favor of the juvenile.

Our review of the record convinces us that the State failed to establish, beyond a reasonable doubt — see Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (March 31, 1970) — that J. M. intended to use the hypodermic needle and eyedropper for subcutaneous injection.

Juvenile matters are ordinarily handled in an informal manner, and especially was this so in the present case. But informality does not relieve the State from proving the charge as brought and as actually tried.

Incidentally, if there was proof that J. M. was involved in the larceny of a radio — the matter which led to his apprehension and the discovery of the presence of the narcotic paraphernalia in the lining of his jacket — or any other evidence of an offense under N. J. 8. A. 2A :4-14, a proper complaint so alleging should have been brought against him.

Reversed.


author: Hoen, J. S. C.

text:
    EDWARD SKOWYSZ AND EDWARD H. BENSON, PLAINTIFFS, v. CITY OF VENTNOR, A MUNICIPAL CORPORATION, MAYOR PHILLIP B. ROBINSON AND MEYER SEGAL, MATTHEW GALLAGHER, RODNEY S. KREISCHER, SAMUEL J. KLIGERMAN, JOHN R. BEST, THOMAS WHIMS AND CARL VALORE, SR., COUNCILMEN OF THE CITY OF VENTNOR, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    June 4, 1969.

      Mr. Lawrence M. Perslcie and Mr. Marvin D. Perslcie for plaintiffs (Messrs. Perslcie & Neustadier, attorneys).

      Mr. Phillip B. Robinson, Attorney pro se.

      Mr. Martin L. Blatt for all defendants other than Phillip B. Robinson (Messrs. Blatt, Blatt & Gonsalvo, attorneys).
   OPINION

Hoen, J. S. C.

Plaintiffs, citizens and taxpayers of the City of Ventnor City, instituted against the city an action in lieu of prerogative writ to set aside Ordinance No. 2-1968, providing for the sale of certain lands and to enjoin the sale of said lands. The city counterclaimed, seeking a declaratory judgment declaring that the ordinance is valid and that it may sell the lands pursuant to said ordinance.

Ventnor City borders the Atlantic Ocean, which is to its south. It is now governed by a commission form of government, but from its incorporation and up to and including the enactment of the 1968 ordinance, it enjoyed a mayor and common council form of government.

Ordinance No. 2-1968 provides in part as follows:

“BE IT ORDAINED BY THE COUNCIL OF VENTNOR CITY, NEW JERSEY, THAT:
SECTION 1. There be constructed between Richards and Fredericksburg Avenues along the beachfront, oceanfront jetties and that upon the accretion of sufficient beach area, or earlier contingent, upon such accretion of beach area, of at least 125' for purposes of public resort and recreation between the boardwalk and the mean high water line on the ocean side of the boardwalk, that the existing street ends and utilities be extended approximately 125' and such lands that are then no longer needed for public use, lying between the existing bulkhead and boardwalk and between Richards and Fredericksburg Avenues, be bulkheaded, filled and offered for public sale for residential purposes consistent with present zoning requirements and upon such terms and conditions as shall be subsequently set forth by resolution of City Council.
SECTION 2. All such stated improvements shall be in accordance with the plans and specifications to be prepared by the City Engineer and duly approved by Council.”

A boardwalk or wooden promenade supported by piling or piers parallels the beach along the entire length of the city. The city’s easterly boundary is Jackson Avenue. Its westerly boundary is Fredericksburg Avenue. The northern line of the boardwalk is 425 feet south of Atlantic Avenue, which is parallel to the boardwalk.

Jackson Avenue and all other streets mentioned hereinafter, except Atlantic Avenue, are generally at right angles to the boardwalk and Atlantic Avenue. Eichards Avenue is 30 blocks from Jackson Avenue and 12 blocks from Fredericksburg Avenue. From Jackson Avenue to 62)4 feet east of Eichards Avenue, private houses are built practically up to the boardwalk with a wooden bulkhead only a few feet from the northern side of the boardwalk. Between Eichards Avenue and Fredericksburg Avenue the bulkheads are aligned 125 feet north of the northerly lino of the boardwalk. The 125 feet between the bulkhead line and the boardwalk is beach or strand. Its appearance and use is and always has been precisely the same as the rest of the beach area under and south of the boardwalk. At the present time the ocean comes up to and under the boardwalk, washing over this area at full tide. It is this 125 feet strip which the governing body contemplates selling, pursuant to the terms of the ordinance.

An adjudication with respect to the validity of the ordinance, or the right of the municipality to sell all or any part of the strip, ordinarily might be considered as premature because the condition for sale might not arise. However, the municipality anticipates the expenditure of large sums of money (over $200,000) for the purpose of securing alluvial accretion of the beach. This will be accomplished through the construction of jetties or groins in order to satisfy the condition precedent stipulated by the ordinance. Thus, before the sale of the area in question, the city seeks a favorable judgment of this court so that these moneys will not be expended in vain. Therefore, the controversy is currently justiciable and not premature. For this reason it filed its counterclaim for a declaratory judgment.

A determination of the questions which must be answered requires that legal as well as factual history be examined.

By an act approved April 26, 1894, N. J. S. A. 40:179-98 et seq. (Section one), any city in this state located on or near the ocean, and embracing within its limits or jurisdiction any beach or ocean front (which admittedly included Ventnor City) was authorized to open and lay out on and along such beach or ocean front a public park or place for public resort and recreation, and to acquire lands for such purpose by purchase and condemnation. N. J. S. A. 40:179-99 (Section two) provides that when the governing body of any such city shall determine to open and lay out such a park, it shall first cause the interior or inland line of the same to be established and suitably marked upon the ground, and cause a description of the same to be filed in the office of the city clerk of said city, there to remain of record; “and such interior or inland line shall not be established further inland than the ordinary high-water mark along such beach or ocean front, and may extend along the same within the limits of such city, or along any part thereof iji ij: #

N. J. S. A. 40:179-103 (Section six) provides that the governing body may regulate the use of such lands and property. It also contains other directives not pertinent to the issues here.

In 1909 the city adopted Ordinance No. 22 expressly pursuant to the power and authority conferred by the Act of 1894. It recited that “* * * the Common Council of Vent-nor City does hereby determine to open and lay out a public park or place of public resort and recreation along the beach or ocean front of said City within the limits and jurisdiction of said City, * * * and does hereby determine, fix and establish the interior or inland line of the same, as required by the said act, as follows: * * *.” The line was fixed at a distance 425 feet south of the southerly line of Atlantic Avenue for the length of the municipality. By a subsequent section, the boundaries of the “public park or place for public resort and recreation” were fixed by this line on the north and the exterior line established by the Riparian Commissioners of the State of New Jersey on the south. The city solicitor was authorized, on behalf of the city, to condemn such lands which were not dedicated to use as a public park or place for public resort and recreation, or should not be purchased by the city for such purpose. It will have been observed that the northerly line of the boardwalk overlies the inland line fixed by this ordinance. See Fishblatt v. Atlantic City, 78 N. J. L. 134 (Sup. Ct. 1909), aff’d. 80 N. J. L. 269 (E. & A. 1910); Bew v. Ventnor City, 81 N. J. L. 207 (Sup. Ct. 1911).

Commencing in 1910, a number of lot owners executed deeds to the city which recited the passage and general objectives of the 1909 ordinance, and then “* * * for the purpose of enabling the said City to use the lands lying ocean-ward from the inland line so established and within the boundaries above designated as a public park, and place for resort and recreation in pursuance of the provision of said act” conveyed title to the city of their lands south of the inland line. By the end of 1913, all or substantially all of the landowners had executed similar deeds granting title to the city from the center line of Jackson Avenue, the easterly boundary line, to Buffalo Avenue, one block west of Bichards Avenue.

Whereas ihe Act of 1894, N. J. S. A. 40 :179—98 et seq., by its terms could only be applicable to municipalities located on or near the ocean and embracing within its limits any beach or ocean front, N. J. S. A. 40 :61-1, subd. a, a part of the Home Rule Act enacted in 1917, is much broader. This statute authorized the governing bodies of municipalities to “Acquire, lay out, improve, embellish and maintain, within and without the municipality, such public parks, squares, open spaces, playgrounds, beaches, water fronts and places for public resort and recreation, and also streets, avenues, boulevards and parkways leading to and connecting the same, as it may deem advisable * * By its terms the statute was applicable to any land, including water front lands, whether the water front be along the ocean or some other water front.

In 1918, by Ordinance No. 8, the governing body ordained that the c-ity acquire, lay out and make available to the public as a park, open space, water front, beaches and places for public resort and recreation, and to acquire the title of lands between the inland line and Atlantic Avenue, a width of 337.5 feet west of the westerly line of Suffolk Avenue, and other lands between Newport and New Haven Avenues, from the southerly line of Atlantic Avenue, to the inland line (these two tracts are east of the area in question), also other lands between Washington Avenue and Fredericksburg Avenue from the southerly line of Atlantic Avenue to the inland line (this tract is west and includes the area in question) . It is assumed that the city intended by this ordinance to acquire title to these tracts as special playgrounds or places of recreation north of the inland line.

In 1920, by Ordinance No. 8, the ordinance of 1918 was amended, changing the location of the lands to be acquired as set forth in the 1918 ordinance.

In 1922 the governing body adopted Ordinance No. 13, purporting to amend both the 1918 and 1920 ordinances. This ordinance provided that the city acquire and lay out and make available to the public as park, open space, public square, water front, beaches, playgrounds and place for public resort and recreation, and for that purpose acquire fee title to lands, part of which comprises the strip 125 feet wide. Actually the ordinance authorized the acquisition of all the lands south of the inland line to the exterior line and 125 feet north of it between a point 62-J^ feet east of Richards Avenue down to Fredericksburg Avenue. The wording of the ordinance makes it clear that it was enacted pursuant to N. J. 8. A. 40:61—1, subd. a.

After the ordinance of 1922 was adopted, the city acquired title to all these lands by condemnation and conventional purchase. The petitions for condemnation referred to this ordinance as authority for the action. In each petition the purposes of acquisition as stated in the ordinance are repeated.

The most recent transfer, pursuant to the 1922 ordinance, took place in 1944. By deed bearing date September 21, 1944, the city acquired an area 62-J^ feet wide from a line 300 feet south of Atlantic Avenue to the exterior line established by the Biparian Commissioners. This tract lies just east of Biehards Avenue.

Since the passage of the ordinance in 1922, the residents and governing body of the city of Ventnor, as well as its officers and agents, have regarded the area as a public park or beach front. In 1924 the city adopted Ordinance No. 5, which provided for the construction and maintenance of bulkheads, jetties and other structures in order to protect the ocean or beach front of Ventnor City from encroachment by the sea. It specifically provides:

“* s.- gudh improvement, repairs and structures may be made and erected both above and below high water line * * *” ;

In 1922 the city also adopted Ordinance No. 21, which authorized a bond issue to raise moneys to acquire, by purchase or condemnation, that land described in Ordinance No. 13-1922 between a line 300 feet south of Atlantic Avenue to the exterior line and between Federicksburg Avenue and a line 62-yi feet east of Biehards Avenue “* * * for the purpose of laying out, improving, embellishing and making the same available to the Public as Park, open space, Public square, water front, beaches and place of Public resort and recreation within Ventnor City * * Minutes of council meetings, held on January 22, 1923, January 29, 1943, May 14, 1923, January 28, 1924, February 18, 1924, April 14, 1924 and August 11, 1924, demonstrate council’s regard for this strip as part of the beach, or beach front or public park. Although a 1928 building zone map does not designate the strip as park or beach, later maps describe the area in question as a city park. A map of ocean frontage made in 1917 shows the bulkhead line along the beach front to be at approximately the same location west of Biehards Avenue as east of it. This line was changed after the acquisition of the strip pursuant to the 1922 ordinance to move it hack the 125 feet.

As late as 1963 a master plan for the long range general development of the City, which was adopted by the planning board of the city, shows as beaches and marinas the 125 foot strip in the same fashion as the beaches on the south side of the boardwalk.

A municipality cannot act as an individual does. It must proceed in conformity with the statutes or, in the absence of statute, with the common law, by ordinance, or resolution or by motion. This is especially true with respect to real estate. Anschelewitz v. Borough of Belmar, 2 N. J. 178 (1949); N. J. Good Humor, Inc. v. Board of Com’rs, etc., Bradley Beach, 124 N. J. L. 162 (E. & A. 1939); City of Burlington v. Dennison, 42 N. J. L. 165 (E. & A. 1880). The parties advance disparate views as to the interpretation of the statutes which authorize sales of lands by municipalities.

The general statute authorizing municipalities to sell their lands not required for public use is N. J. S. A. 40 :60-26. But N. J. S. A. 40:60—27 not only renders N. J. 8. A. 40:60-26 inapplicable to park lands, it also provides that no municipality shall sell or dispose of any park lands or streets, except in exchange for other lands, contiguous to such park lands or streets, an area equal to or greater than the lands conveyed, and only for the purpose of straightening or rendering symmetrical the boundary or boundaries of said park lands or streets. Obviously N. J. S. A. 40:60-26 is inapplicable.

Defendants contend that N. J. 8 .A. 40:61-22.2 provides such authority when sufficient beach is “reclaimed.” This statute reads:

“Whenever a municipality has reclaimed lands under water, fronting or abutting park lands and such reclaimed lands have been bulk-headed and filled and are now used for park purposes, the municipality may sell any part or parts, parcel or parcels of park lands not so reclaimed whether contiguous or not contiguous to such reclaimed park lands; provided, that the total area of park land so sold shall not exceed in area the area of such reclaimed lands.”

I cannot agree with defendants that this statute provides the necessary authority. This enactment cannot possibly be applicable to lands of the nature or character with which we are dealing. In the first place, when one speaks of the shore along an ocean, the accretion of land by artificial means is not usually referred to as reclamation. Eeclamation implies actually a filling in and bulkheading of lands thereafter, in order to prevent water from coming upon the land at all. Second, the statute, by its terms, provides for bulkheading of the “reclaimed” lands. This means preventing the ocean from coming upon same. What is contemplated in the case at bar is the bulkheading of only that part which the municipality intends to sell. Third, the statute refers to land “bulkheaded and filled.” In the ordinary use of that word, one visualizes the filling in of swamplands or a creek or meadows; not the arrangement of fill on the seashore. Ocean shore lands and beaches are built up either by alluvion—that is to say, the washing up of sand or soil so as to form firm ground, or by dereliction, as when the sea shrinks below the usual water mark. Statutes should be interpreted according to the most natural and obvious import of the language, without resorting to subtle or forced construction for the purpose either of limiting or extending their operation. Markey v. City of Bayonne, 24 N. J. Super. 105, 114 (App. Div. 1952); City Affairs Committee of Jersey City v. Division of Local Government, etc., 134 N. J. L. 198, 203 (Sup. Ct. 1946), aff’d. 134 N. J. L. 614 (E. & A. 1946).

N. J. S. A. 40:61-22.2 was adopted over 20 years after N. J. S. A. 40:61-1. It seems to be applicable to N. J. S. A. 40:61-l(d) which authorizes municipalities to acquire lakes and ponds and the banks and shores thereof.

N. J. S. A. 40:60-51.7 provides that whenever any municipality shall have acquired land for public purposes, and for places of resort for public health and recreation, and shall thereafter have acquired other lands which the governing body deems to be better suited for the purposes of resort for public health and recreation, and shall have improved such other lands, it is authorized to sell the lands first acquired in accordance with the terms of said statute.

This statute does not authorize such sale as is contemplated by the ordinance under consideration. There is no finding in this ordinance that the governing body deems the lands to be acquired by accretion better suited for the purposes of resort for public health and recreation. Nor, it seems, could there be such bona fide finding. Additionally, this statute contemplates “that lands be improved.” This likewise is not contemplated.

The only other statute dealing with the disposition by a municipality of park land is N. J. S. A. 40 :184-27. This act in part provides:

“Whenever the board or body having the control and management of the public parks of any city in this State shall have determined, or shall hereafter determine, that any lands theretofore acquired in fee simple by such city for use as a public park, whether or not the same shall have been actually dedicated to such use, is no longer needed or desirable for public park purposes, it shall be lawful for the governing body of such city to sell such land * * *, provided, however. that no lands may be sold under the authority hereby conferred which * * * are located on the beach front of the Atlantic Ocean; * *

The issue is whether the lauds in question were acquired in fee simple by the city “for use as a public park,” and if so, if they are located on the beach front of the Atlantic Ocean within the meaning of this law.

As already noted, the area with which we are concerned is part of the general beach from the bulkhead to the ocean, no different in character, no different in composition and no different in its treatment by the municipality than any other part of the public beach contiguous to it. Persons using the strip of beach with which we are concerned have free access to and from the ocean without any obstacles except the supports or piling spaced at intervals to support the boardwalk. Therefore, physically as well as from the standpoint of accustomed use, the area in question is located on the beach front of the Atlantic Ocean.

However, defendants contend that this area should not be considered as beach front within the meaning of this statute, because it lies north of the inland line. In effect they urge that only lands lying south of the inland line may be considered as beach front. I am compelled to reject this contention.

Nothing in the Act of 1894, N. J. 8. A. 40:179-98 et seq., prohibits lands above the high water line from being considered as beach front. That statute only restricts the municipality from establishing the interior line further inland than the high water line or mark along the beach. Crossan v. Ventnor City, 80 N. J. L. 511 (Sup. Ct. 1910).

The Act of 1894, N. J. 8. A. 40 :179~99, grants each municipality the option to establish an inland line. It is not mandatory that any municipality do so. Therefore it is conceivable that there are beaches and beach fronts in municipalities bordering the ocean which have not so established such a line. What is beach and beach front land is not related to the establishment or not of the inland line or the location of the high water mark.

The title to the strip in question is held in fee simple by the city. Therefore it conforms to the requirement of N. J. S. A. 40 :184-27 requiring such title.

I find that N. J. 8. A. 40:184-27 denies to a municipality the right to dispose of lands located on the beach front of the Atlantic Ocean which are used as public parks, whether or not they lie within or without the inland line established by the municipality.

Since none of these statutes extend to the city of Ventnor City the authority to sell the lands, it follows that the city may not sell the lands.

Accordingly judgment will be entered setting aside the ordinance and declaring that the city is without authority to sell the lands. No costs.


author: Busco, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. NINO MACCIOLI, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, v. GERALDINO CUSTODE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided May 13, 1970.

      Messrs. Anthony Mauione and Bobert Podvey for plaintiff {Mr. Joseph P. Lordi, Essex County Prosecutor).

      Mr. Angelo B. Bianchi for defendant Maecioli.

      Mr. Vidor Freda for defendant Custode.
   Motions for hearing on revocation of bail

Busco, J. S. C.

This is a motion by the State for a hearing pursuant to B. 2 :9-4, to revoke bail pending appeal on two defendants who have since been indicted for offenses similar to the subject matter of their original convictions.

Nino Maecioli was found guilty by a jury on April 28, 1969 of conspiracy to violate lottery laws (Ind. 2224-67), along with 18 other codefendants, and of possession of lottery papers (Ind. 2230-67). He was sentenced on June 11, 1969 to a term of one to two years in State Prison on each count, the terms to run concurrently, and was fined $1,000 on each count. He was allowed bail pending appeal in the sum of $5,000. Geraldino Custode was found guilty by the same jury of the same conspiracy indictment and of possession of lottery slips (Ind. 2233-67). He was sentenced on the same date to the same term as Maccioli. He was also allowed bail pending appeal in the sum of $5,000.

On May 11, 1970 Maccioli pleaded not guilty to one count of bookmaking (Ind. 2590-69), and Custode pleaded not guilty to one count of maintaining a gambling resort (Ind. 256A-69). The State then moved to revoke their bail pending appeal of the 1969 convictions, under R. 2:9-4, which reads, in part, “A judge or court allowing bail may at any time revoke the order admitting to bail.”

In yet another case arising from the same 18-defendant 1969 case in which a defendant admitted to bail pending appeal was indicted for a subsequent similar offense, the Supreme Court has ordered that the trial court conduct a hearing at which it must determine whether there is a basis upon which a jury could reasonably find that defendant was guilty of the subsequent alleged offense or offenses. State v. Sarrechia, (Docket M-159, March 2, 1970). This order followed a determination of the trial court pursuant to R. 2:9-4 that defendant’s actions “seriously threatened the safety of the community.”

At the outset of the hearing the court announced that the hearing should follow the outline suggested in State v. Obstein, 52 N. J. 516 (1968). The hearing should be in camera unless there is objection by defendant; ex parte affidavits by the state are not admissible if there is objection, and defendant has a right to cross-examination and to confrontation of witnesses. The court, however, would not determine guilt or innocence, would not weigh credibility of witnesses and would not resolve conflicts between exculpatory and inculpatory facts. The fact that defendants were subsequently indicted would not be a sufficient basis on which the court could find that the jury reasonably could find the defendants guilty. At 522-524. In addition, the court would not consider the possible legality of any search or arrest warrants or any methods of surveillance, as these would more properly be the subject matter of formal pretrial motions.

This procedure is challenged by defendants on the grounds that it does not allow for the standards of 11. 2 :9-4 to be met, that it is contrary to federal case law, that the Obstein standards are inapplicable, and that the court does not have proper jurisdiction.

The State argues that compliance with the Supreme Court order in Sarrechia is compatible with the substance of R. 2 :9-4, that the procedure is in accord with controlling case law, and that the court does have proper jurisdiction.

It appears that this type of action has never been litigated in this State in a reported case.

Defendants argue that the determination which must be made by the court on an application for bail pending appeal must also govern on a hearing for revocation after a subsequent conviction: that is, there shall be bail unless it appears the appeal is taken on unsubstantial grounds, or for purposes of delay, or that the safety of the community may be seriously threatened if the defendant remains at large.

Reliance is had on Sellers v. United States, 89 S. Ct. 36, 21 L. Ed. 2d 64 (1968), as authority for the proposition that denial of bail should only lie where it relates to “some kind of danger that so jeopardized the public that the only way to protect against it would be to keep the applicant in jail.” At 38. In that case, defendant was convicted of refusal to submit to induction in the armed services, and was subsequently arrested, apparently in another jurisdiction, for “inciting and participating in arson, destruction of property and conspiracy.” Since it was held that the refusal to submit to induction conviction “does not indicate that [defendant] will be a threat to the community if released,” the application for bail was granted. Id.

Sellers is distinguishable from the case at bar and inapplicable on several critical grounds, however. First, and most significantly, Sellers is not a decision of the entire Supreme Court, but is, rather, a memorandum by one justice, Justice Black, in his capacity as Circuit Justice for the Fifth Circuit. As such, it is not binding on this court. In addition, though, Sellers is an application for bail and not a hearing for its revocation. Also, defendant’s subsequent indictment was-neither an offense similar to his original conviction nor did it appear to be part of the same plan or scheme.

■ Similarly, defendants’ reliance on Roth v. United States, 77 S. Ct. 17, 1 L. Ed. 2d 34 (1956), is misplaced. Roth’s application for bail came only after an original conviction under an obscenity statute, and the decision (by Justice Harlan in his similar capacity as Circuit Judge) turned largely on the fact that it seemed likely that the Supreme Court would grant certiorari. At 19.

The State argues that the rationale behind United States v. Erwing, 268 F. Supp. 877 (N. D. Cal. 1967), should bind the court in this case. There, where defendant had been convicted on three counts of illegal sale of heroin, it was ordered that bail be revoked:

The court cannot ignore the fact that there is reasonable cause to believe that the defendant is still engaged in his nefarious business. When this fact is placed alongside the defendant’s history of narcotics peddling then there is every reason to believe that if bail were not revoked the defendant would resume his harmful calling.
The community must be protected from violations of the law which prey on the weaknesses of mankind. A wholesale drug peddler, such as the defendant, exploits this weakness and, in doing so, certainly poses a danger to the welfare of the community, [at 879]

It is opposed in this regard by defendants who contend that a gambling offense is malum, prohibitum (wrong because it is prohibited), and thus not a danger or threat to the community, while heroin sale is malum in se (wrong in itself), and thus a danger to the community. They argue that there can be no danger to the welfare of the community inherent in a gambling offense which, admittedly, does not in itself carry with it the onus and spectre of violence.

•' The court cannot accept this reasoning on two divergent grounds: first, it is not of the opinion that narcotics offenses are malum in se,,' rather, it treats narcotics crimes as malum prohibitum, and on this basis cannot distinguish Erwing from the instant cases. Also, it does not agree that offenses such as gambling pose no danger to the welfare of the community.

In fact, gambling offenses, along with what are commonly considered to be white-collar crimes (embezzlement, bribery, fraud, income tax evasion), have in many ways the “greatest] and [most] threatening impact on the nation.” The Challenge of Crime in A Free Society (Avon ed. 1968), at 438. The politically and culturally oriented crimes of which Sellers and Eoth were convicted do not have the pervasive effect on society that organized, business crime has. Indeed, even the individual “spontaneous” act of violence is probably much less of a threat to society at large. See Ibid., at 24.

Whore a defendant had been convicted of interstate transportation with forged securities and where seven other criminal proceedings were pending against him, the Federal Rail Reform Act (18 U. S. C. A. § 3148), similar for these purposes to E. 2:9~4, was construed to permit “consideration of the defendant’s propensity to commit crime generally even where only pecuniary, and not physical harm might result to the community at large.” United States v. Louie, 289 F. Supp. 850, 852 (N. D. Cal. 1968). The court emphasized, “Nothing in the history of section 3148 suggests that only that crime which threatens the physical safety of the community may be a basis for denying bail.” Id.

Furthermore, in a tax evasion case, where defendant applied for bail pending appeal, denial was premised on the court’s observation that “there is no escape from the conclusion that defendant’s business is a continuous day-to-day commission of felonies under state law.” U. S. v. Schuerman, 79 F. Supp. 250, 251 (E. D. Mo. 1948).

See also, Carbo v. United States, 82 S. Ct. 662, 7 L. Ed. 2d 769 (1962) (bail denied pending appeal following convictions for racketeering and extortion).

This court is also cognizant of the policy outlines laid out by our Supreme Court in State v. Ivan, 33 N. J. 197 (1960) as to the effect of gambling convictions. There, the court distinguisired syndicated gambling from “an isolated excursion beyond the pale of the law.” Where the crime is a “calculated one” and part of a “widespread criminal skein,” the individual defendant is “part and parcel” of a criminal enterprise which is an “ancient foe of society” and, as such, “merits stern treatment.” At 202-203.

As trial court in the 18-defendant trial in 1969 at which both defendants Maccioli and Custode were found guilty, this court is cognizant of the scope of the gambling operations found therein, amounting to some $15,000 in play a day. If the admonition of the Supreme Court in Ivan is to have any effect, it must be implemented in a case such as this. See also, State v. DeStasio, 49 N. J. 247 (1967).

It is the opinion of this court, then, that activity such as that of which these defendants has been found guilty seriously threatens the safety of the community.

Defendants argue that the procedure outlined in Obstein, supra, is inapplicable, in that the suggestions there were designed for a pretrial hearing in a murder case. It is conceded that the facts of Obstein are certainly inapposite to the present situation; however, the delicacy and sensitivity with which a court must face a potential revocation or denial of bail are as clear in that case as the one at bar, and the “immutable factors” which must be considered are the same. See State v. Koningsberg, 33 N. J. 367, 372 (1960). The recitation of the proceedings in Obstein is both protective of a defendant’s constitutional rights and comports with the requisites of due process.

Defendants further attack the jurisdiction of this court to hold this hearing on the grounds that it is not specifically contemplated by the court rules and that the motion by the State to revoke bail does not meet the specifications of B. 1:6-2.

This argument must similarly fall. The latitude allowed the trial court in B. 2:9-4 on bail revocation hearings certainly admits of the possibility of such a hearing on a subsequent offense. The rules are to be construed “to secure a just determination, simplicity in procedure [and] fairness in administration.” R. 1:1—2. Such a construction certainly gives the court the power to hear this motion. Similarly, R. 1:6-2 indicates, “A motion * * * shall be by notice of motion in writing unless the court permits to be made orally.” (Emphasis added). The rationale of R. 1:1—2 applies to this rule as well.

Defendants finally urge that the order of the Supreme Court, entered in Sarrechia, supra, need not bind this court because it has not been published. Lack of publication can never rob a Supreme Court ruling of its efficacy.

This court, then, finds that defendants threaten the safety of the community, that the lead of the Sarrechia order should be followed, and that an Obsiein-type hearing is warranted.

"Opon the adducing of evidence and cross-examination of the witnesses in an in camera proceeding, it is the opinion of the court that a jury could reasonably find that both of these defendants are guilty of their subsequent offenses.

In both instances, bail on the 1969 convictions will be revoked.


author: Aknold, J. C. C.

text:
    LARAINE FANTASIA, PETITIONER-APPELLANT, v. HESS OIL AND CHEMICAL CORP. NOW HESS OIL AND CHEMICAL DIV., AMERADA HESS CORP., RESPONDENT-APPELLEE.
    Bergen County Court Law Division
    Decided May 14, 1970.

      Mr. John M. Sirichek for petitioner-appellant (Messrs. Waters & McPherson, attorneys).

      Mr. James A. Robotiom for respondent-appellee (Messrs. Haskins, Robotiom & Hack, attorneys).
   Aknold, J. C. C.

This is an appeal from the Division of Workmen’s Compensation wherein dependency benefits are sought for a widow and three minor children. The matter was before this court once before and was remanded in order to make the record more complete.

The parties agree that decedent was a member of a union engaged in a labor dispute with respondent. Joseph P. Fantasia, age 24, was an employee of respondent. He died on June 20, 1966 when he was struck by an automobile while acting as a picket at the entrance to respondent’s premises which are located on Route 46 at the trafile circle in Little Ferry, New Jersey. The automobile which struck him was owned by a third party who had no interest in the labor dispute; it accidentally left the roadway, went onto the Hess property and struck decedent, causing his death.

The only factual dispute of the parties is whether the union of which decedent was a member was locked out or whether it was on strike at the time of the accident.

Petitioner contends there was a lock-out, and, therefore there was no severance of employment between decedent and respondent, and that petitioner is entitled to the benefits provided by the Workmen’s Compensation Act. Respondent contends that the accident did not arise out of and in the course of employment, and therefore petitioner was not entitled to the benefits of the act.

The only evidence presented in the matter was testimony by Leonard P. Conte, the secretary and treasurer of Teamster’s Local 866, who was called as a witness by petitioner. His testimony was uncontradicted, and the evidence demonstrates there was a lock-out and not a strike in progress at the time of the accident.

Social legislation such as the Workmen’s Compensation Act ought to be liberally construed and not given a restrictive construction. See Binet v. Ocean Gate Board of Education, 90 N. J. Super. 571 (App. Div. 1966). Liberal construction of the act is usually applied when questions arise, such as what constitutes the premises, what are the hours of employment, and what are substantial departures from employment.

We deal with a labor dispute. Counsel have been unable to find any authority which would either support or deny an award of workmen’s compensation. It would appear as a general rule that union activities which do not simultaneously serve the interest of the employer do not fall within the course of employment. See Tegels v. Kaiser-Eraser Corp., 329 Mich. 84, 44 N. W. 2d 880 (Sup. Ct. 1950). See also Larson, “Workmen’s Compensation Law,” (1968 ed.) § 27.33, at 452.56.

Certainly the picketing involved here was not in the interest of the employer, and decedent was not discharging a duty of his employment. However, petitioner would apply the positional risk doctrine and argues that the death would not have occurred but for the fact that the lock-out placed decedent in the position where the harm occurred. In support of this argument petitioner cites Crotty v. Driver Harris Company, 49 N. J. Super. 60 (App. Div. 1958); Piazza v. Prince’s Farms, 86 N. J. Super. 100 (App. Div. 1965); Martin v. J. Lichtman Sons, 42 N. J. 81 (1964). An examination of these cases discloses a factual situation where the employer-employee relationship was in existence, and the only question involved was that of one as to whether the employee was on the premises or whether the accident occurred during the hours of employment. In the case at bar the employer-employee relationship no longer existed. The employer had no control over the employees’ activities, nor did he pay them. "When the employer locked out the employees, it was similar to a situation where employees are laid off.

It is not the function of this court to pass on the fairness or justice of the lock-out, but only to determine in such a situation whether petitioner is entitled to compensation under the Workmen’s Compensation Law. It may very well be that pensions, vacations and other benefits provided by labor contracts are not affected by strikes and lock-outs; however, for petitioner to recover in the present case, the accident must arise out of and in the course of employment. While the accident might have arisen out of the employment, it did not arise in the course of employment. The relationship of employer-employee did not exist. If the Workmen’s Compensation Act ought to provide benefits in a situation such as this, it would appear to be more of a legislative matter.

Accordingly, the judgment of the Workmen’s Compensation Division is affirmed.


text:
    DONALD A. ROBINSON, TRUSTEE OF MONDRICH SECURITIES CORP., DEBTOR, PLAINTIFF-APPELLANT, v. HOWARD HALLBERG ET AL., DEFENDANTS-RESPONDENTS. DONALD A. ROBINSON, TRUSTEE OF MANUFACTURERS CREDIT CORP., DEBTOR, PLAINTIFF-APPELLANT, v. REA M. SHAPIRO, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 25, 1970
    Decided June 3, 1970
    Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Frank J. Vecchione argued the cause for appellant (Messrs. Crummy & O’Neill, attorneys).

      Mr. Joseph C. Dickson, Jr., argued the cause for respondents Haliberg, Barker, Gaita and Cameron.

      Mr. Samuel J. Davidson argued the cause for respondent Rea M. Shapiro (Messrs. Chazin & Chazin, attorneys).

      Mr. D. F. Moore Craig argued the cause for respondent Joseph Goldberg (Messrs. Bracken, Walsh and Craig, attorneys; Mr. Joseph F. Walsh, on the brief).

      Mr. Charles A. Stanziale, Jr. argued the cause for respondent Erank Pizzani.
   Per Curiam.

The judgment is affirmed essentially for the reasons set forth by Judge Mintz in his opinion reported in 107 N. J. Super. 290 (Ch. Div. 1969).


author: Pee Curiam.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES BARR AND JUNE CLARK, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 1970
    Decided May 22, 1970.

      Before Judges Kilkenny, Labbbcque and Leonabd.

      Mr. David. M. Hoffman argued the cause for defendant Barr (Messrs. Eclchaus, Gustan & Hoffman, attorneys).

      Mr. Edward Goldberg argued the cause for defendant Clark.

      Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).
   Pee Curiam.

Following a joint jury trial, both defendants appeal from judgments of conviction for fornication (N. J. 8. A. 2A:J10—1). Barr was sentenced to serve three months in the count]7 ja;l. Miss Clark received a six-month suspended sentence.

Defendants first contend that N. J. S. A. 2A:110-1 is constitutionally invalid because it unjustifiably interferes with defendants’ right of privacy protected by the due process clause of the Fourteenth Amendment to the Federal Constitution. The basis of this contention is that consensual and heterosexual intercourse between two adults is within the protected area of privacy and cannot be regulated or proscribed by state statute. Defendants thus argue that our fornication statute is antiquated and outmoded and therefore it should be stricken down. This contention and the supporting arguments are without merit.

Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), upon which defendants rely is inapposite. In that case defendants were convicted of accessories for violating a statute which made the use of contraceptives a criminal offense. They were charged with giving information, instruction and advice to married persons as a means of preventing conception. The court, in reversing defendants’ convictions, held that the statute was invalid as an unconstitutional invasion of privacy of married persons. Purther, it was therein noted by Mr. Justice Goldberg in his concurring opinion that every violation of privacy by a state is not necessarily unconstitutional. A state may significantly encroach on a person’s liberty upon showing a subordinating state interest which is compelling or that the enacted law is necessary to the accomplishment of a permissible state policy. Id. at 497, 85 S. Ct. 1678. It was in this reference that the Justice stated, “The State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication.” (at 498, 85 S. Ct. at 1689; emphasis added).

The crime of fornication (N. J. S. A. 2A:110-1) has been on our statute books since 1796. Paterson’s Laws (1800 ed.), at 210. It has long been the legislative policy of this State to deal with fornication under the general heading of crimes against public morals. State v. Brenner, 132 N. J. L. 607, 611 (E. & A. 1944). The State’s interest has always been to prevent the birth of illegitimate children as well as to prevent illicit intercourse.

Defendants allege that the statute making fornication a crime is a relic of ancient times and not in keeping with the code of morals presently existing. They point to the Model Penal Code, sponsored by the American Law Institute, which they allege has recommended the legalization of all private nonviolent consensual sexual conduct between adults. Model Penal Code, § 207.1, comment at 207 (Tent. Draft No. 4, 1955).

A similar argument was advanced and rejected in State v. Moore, 105 N. J. Super. 567 (App. Div.), certif. den. 54 N. J. 523 (1969), on an attack upon our statutory rape statute (N. J. S. A. 2A:138-1/). Therein we stated that (at 571) “It is for that body [the Legislature], not the courts, to change the law, if it chooses to subscribe to a more liberal pattern of sex behavior * * It is obvious that this court does not have authority to promulgate provisions of the Model Penal Code as the law of this State even if it were inclined so to do. See State v. Schantz, 98 Ariz. 200, 403 P. 2d 521, 529 (1965).

We consider next defendants’ assertion that their convictions should be reversed because the State failed to prove all of the necessary elements of the crime charged. First, they contend that in addition to intercourse between consenting single adults, the State should have, but did not prove, the resultant production of an illegitimate child which became a burden on the community. Defendants rely upon Smith v. Minor, 1 N. J. L. [16], 19 (Sup Ct. 1790), in support of their position. The identical issue was presented, including reliance upon Smith v. Minor, supra, and rejected in State v. Sharp, 75 N. J. L. 201 (Sup. Ct. 1902), aff’d 76 N. J. L. 576 (E. & A. 1908). The court held specifically that birth of issue is not a part of the crime of fornication. (75 N. J. L. at 204).

1 Under this point, defendants also argue that the State failed to prove that the alleged criminal acts took place within the county wherein they were indicted and tried, or within this State. This point lacks merit. Crimes are offenses against the State rather than a territorial subdivision of it. The Superior Court has original general jurisdiction throughout the State in all cases. Hence, if it appears the offense was committed within the State, there is no issue as to jurisdiction in the court. State v. DiPaolo, 34 N. J. 279, 284-289 (1961), cert. den. 368 U. S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). There was testimony that intercourse had taken place in Paterson and that three children were born in that city. The site of a crime need not be proved by direct evidence; it may be established by circumstantial evidence which permits the drawing of an inference that the crime was committed in this State. State v. McDowney, 49 N. J. 471, 475 (1967). Here, the circumstantial evidence present in the record- reasonably supports such an inference.

Defendants also contend that (1) their prosecution under N. J. S. A. 2A:110-1 is constitutionally invalid because it constitutes discriminatory enforcement of a state law, in violation of the Equal Protection Clause of the Fourteenth Amendment; (2) their Fifth Amendment rights were violated by (a) the State’s failure to advise them of their rights prior to obtaining from them the initial incriminating information, and by (b) the State’s compelling defendant Clark to incriminate herself as a condition of receiving welfare support; and (3) defendant Barr’s sentence was unfairly imposed in that he was not afforded disclosure of detrimental information in his presentence report and a reasonable opportunity to be heard thereon. We have considered each of these contentions and find that all are without merit.

Judgment affirmed.


author: Pee Cubiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM JOHN HILL AND CHARLES JOHN HEUSER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 18, 1970
    Decided May 25, 1970.

      Before Judges Goldmawn, Lewis and Matthews.

      Mr. Philip J. Blanda, Jr., argued the cause for appellants (Messrs. Blanda and Blanda, attorneys).

      Mr. BIKot L. Katz, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney; Mr. Arnold B. Levin, Assistant Prosecutor, on the brief).
   Pee Cubiam.

The Monmouth County grand jury returned a four-count indictment charging Hill with (1) keeping a place to which persons might resort for gambling and with intent that they might and should resort thereto, in violation of N. J. S. A. 2A:112-3, and (2) with keeping a place to be used for the business of lottery, contrary to N. J. 8. A. 2A:121-3(c); and charging defendant Henser with (3) bookmaking, in violation of N. J. 8. A. 2A:112-3, and (4) receiving by telephone a list of numbers of a lottery, contrary to N. J. 8. A. 2A:121-4(b). The jury found Hill guilty on the first count and Heuser guilty on the third and fourth counts. Defendants then moved for a new trial on the ground that the verdict was against the weight of the evidence and, further, the trial judge should have disqualified himself “by reason of his affiliation with the Prosecutors Office.” The motion having been denied and defendants sentenced to State Prison terms, they appeal.

It is first argued that the search warrant used by the police was issued without probable cause. Defendants had unsuccessfully moved prior to trial to suppress the evidence and for a return of the property seized. We have examined the affidavit on the basis of which the search warrant was issued by a Superior Court judge and find that the facts and circumstances so revealed to him, in their totality established sufficient probable cause for the warrant. Specific information had been received by the State Police officer from a previously reliable informant who had personal knowledge of the bookmaking operation, and that information was independently and fully corroborated by police investigation.

It is next argued that the trial judge should have disqualified himself because his prior association with the county prosecutor’s office gave the appearance of impropriety to his having anything to do with the conduct of the trial. The matter had been mentioned in chambers before the trial began. After reviewing the file, the judge said he saw no reason why he should not continue with the case.

The facts are these: the trial judge was an assistant prosecutor from March 29 to July 29, 1968. The assistant prosecutor who tried the State’s case was in the prosecutor’s office at the same time. Defendants were arrested in April 1968 and the matter was referred to the prosecutor’s office on the 22nd of that month. The trial judge stated on the record that he had examined the file in chambers and determined it had never crossed his desk and that he never had any knowledge of it. Significantly, the indictment here in question was returned two months after the judge left the prosecutor’s office.

Apparently realizing that it is not enough to support their argument of impropriety that the judge had been a member of the prosecutor’s office for a four-month period more than a year prior to the trial, defendants point to certain instances in the course of the trial tending to give credence to the alleged appearance of bias and prejudice on his part. We have not only examined each instance carefully, but considered all of them together in the total setting of the case and find that the trial judge’s actions were at all times above criticism. There is nothing indicating a sense of personal involvement by the judge, or that anything he did might have prejudiced defendants’ cause. Incidentally, we note that defendants never made a formal motion that the judge disqualify himself because of his prior association with the prosecutor’s office.

A third ground advanced by defendants for reversing their convictions is that the trial judge was not qualified as a judge of the Superior Court and therefore could not properly preside over their trial. Our attention is called to N. J. Const. (1947), Art. VI, § VI, par. 2:

The Justices of the Supreme Court, the Judges of the Superior Court and the Judges of ihe County Courts shall each prior to his appointment have been admitted to the practice of the law in this State for at least ten years.

Defendants allege that the judge was appointed an attorney-at-law of New Jersey on April 29, 1960 and was sworn into office as county district court judge on July 29, 1968; that the Chief Justice had on August 27, 1969 generally ordered that all full-time county district court judges be temporarily assigned to the Superior Court, Law Division, and that the trial was held September 8 and 9, 1969. It is therefore argued that the order implied, as a matter of law, that the constitutional qualification of the judges so assigned would be met. Accordingly, since the trial judge had not been admitted to the practice of law for a period of ten years, the claim now made is that he could not sit as a Superior Court Judge in the trial of the present case.

The argument is devoid of merit. The authority of the trial judge to preside was not questioned by defendants at any time during the course of the proceedings. Nor was the present argument advanced as a ground for granting a new trial. It was only after counsel argued the two grounds stated in the motion for a new trial — that the verdict was against the weight of the evidence and that the trial judge should have disqualified himself because of his prior association with the prosecutor’s office — that the argument now made was advanced. The objection came too late and will not be heard on appeal. State v. Pillo, 15 N. J. 99, 102 (1954); Curtis v. Joyce, 90 N. J. L. 47, 48 (Sup. Ct. 1917), aff’d o. b. 91 N. J. L. 685 (E. & A. 1918). Whatever question there might be as to the application of the constitutional provision quoted above, the trial judge was, at the very least, a de facto judge. Ibid., at 103-104.

Defendant Hill claims that the State failed to prove a prima facie case against him under the first count of the indictment charging him with violating N. J. S. A. 2A :112-3. Our reading of the record leads to a contrary conclusion. The State’s evidence and the reasonable inferences that might be drawn therefrom established a prima facie case that Hill, as charged, “willfully, unlawfully and knowingly did keep a place to which persons might resort for gambling and with intent that such persons might and should resort thereto for gambling.”

Defendants also contend that the trial judge erred in admitting into evidence the National Daily Armstrong sheet, two white memo pads and a ballpoint pen seized in the course of the raid on the premises. The conditions and circumstances under which these items were taken raised a reasonable inference that although they had no suspicious markings, they were being used in a bookmaking operation. In the opinion of the detective who testified as the State’s expert, the items seized were bookmaking paraphernalia.

Finally, it is argued on defendant Heuser’s behalf that he was not a person within the meaning of N. J. 8. A. 2A:121-4(b) and therefore his motion for acquittal on the fourth court of the indictment should have been granted. That statute reads:

Any person, or any express, telephone, telegraph or other company or corporation, engaged in the business of carrying or transmitting packages, letters or communications within this state, that knowingly:
SS* v ❖ * * # # *
b. Receives from any person by letter, telephone, telegraph or any other means of communication, a list of numbers or drawing of any such lottery —
Is guilty of a misdemeanor.

The State would read the statute to provide that “Any person * * * that knowingly: * * * b. receives from any person” etc. This would cut out the descriptive clause, “engaged in the business of carrying or transmitting packages, letters or communications within this state” — a clause that applies not only to companies and corporations but, in our view, to persons.

Accordingly, the motion for acquittal on the fourth count should have been granted.

The convictions of defendant Hill on the first count and of defendant Heuser on the third count are affirmed, and Heuser’s conviction on the fourth count reversed.


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

text:
    CAROL GAMBRELL, PLAINTIFF-RESPONDENT, v. JOHN A. ZENGEL AND JANE R. ZENGEL, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May, 1970
    Decided May 26, 1970.

      Before Judges Kilkenny, Labrecq-ue and Leonard.

      Mr. Nathaniel H. Roth argued the cause for appellants {Mr. Robert L. Livingston, on the brief).

      Mr. Loren 0. Lewis argued the cause for respondent.
   The opinion of the court was delivered by

Khtootht, P. J. A. D.

Plaintiff was the operator of an automobile which was struck by defendants’ vehicle at the intersection of First Street and Lexington Avenue, in Lakewood, New Jersey, on February 20, 1965, at about 11:30 p.m. Plaintiff sued in negligence to recover for her personal injuries and consequential damages.

At the trial defendants admitted liability and litigated only the issue of damages. The jury awarded plaintiff $7105. Defendants’ motion for a new trial on the several grounds stated in its notice thereof was denied. Defendants appeal from the whole of the judgment based upon the verdict and entered in favor of plaintiff. Two grounds are advanced for a reversal. We shall discuss them in the order presented in defendants’ brief.

I

Defendants contend that the trial court erred in admitting into evidence photographs of the intersection where the accident occurred and of the respective automobiles following the collision, and also in admitting the testimony of the investigating police officer as to the location of the debris at the scone and the distance traveled from the alleged point of impact. They argue that, liability having been admitted, such evidence and testimony had no probative value of any facts in dispute at the trial and only served to inflame the passions of the jury and prejudice the jurors against defendants.

The only purpose in admitting the photographs and police officer’s testimony was to show the force of the impact through the damages to the vehicle and the distance traveled, which allegedly caused plaintiff’s injuries. Defendants claim that it was unfair thus to permit the jury to infer that plaintiff sustained serious personal injury, since a heavy impact between two vehicles is an unreliable barometer of the severity of physical injury sustained.

It must be conceded that the force of the impact, when two automobiles collide, does not necessarily justify an inference that the occupants of the vehicles sustained serious physical injuries. As defendants’ medical expert expressed it:

I have known people who step off a curb and break a leg and a car can turn upside down and you can be lucky and walk away from it without a scratch; * * *.

At the same time it is a generally accepted rule that evidence of the speed at which the colliding cars were traveling, the severity of the physical impact and the manner of the happening of the accident is admissible where there is an issue as to the seriousness of plaintiff’s injuries. And this, too, despite admitted liability. See Martin v. Miqueu, 37 Cal. App. 2d 133, 98 P. 2d 816 (D. Ct. App. 1940); Johnson v. McRee, 66 Cal. App. 2d 524, 152 P. 2d 526 (D. Ct. App. 1944); Phillips v. Lawrence, 87 Ill. App. 2d 60, 230 N. E. 2d 505 (D. Ct. App. 1967); Hall v. Bukert, 117 Ohio App. 527, 193 N. E. 2d 167 (Ct. App. 1962); Hayes v. Button, 190 A. 2d 655, 656 (D. C. Cir. 1963); Annotation, 80 A. L. R. 2d, at 1224-1231 (1961) and 1968 supplement thereto, citing additional cases in accord.

Patras v. Waldbaum, 170 Neb. 20, 101 N. W. 2d 465, 470 (Sup. Ct. 1960), the only case cited by defendants on this point, was decided on the correct formula to follow in instructing a jury as to future damages. It also held photographs are admissible in evidence where they may be instructive upon a question for determination, but such a question was not present in that case.

In Murray v. Mossman, 52 Wash. 2d 885, 329 P. 2d 1089 (Sup. Ct. 1958), it was held that the trial court did not abuse its discretion in admitting evidence of five photographs of the scene of the automobile accident in question for the limited purpose of showing the force of the impact that resulted in the injury, even though defendant admitted liability and limited the issue to the amount of damages. To the same effect, see Gulf Oil Corporation v. Slattery, 3 Storey 504, 172 A. 2d 266, 269 (Del. Sup. Ct. 1961).

The possibility of some inflammatory effect on a jury as compared with the relevancy of the evidence and its generally accepted admissibility is best loft to the discretion of the trial court. We And no abuse of discretion under the circumstances herein.

Nor was there any error in the trial court’s allowing into evidence the police officer’s testimony as to where he found the debris in the highway, or in the officer’s opinion as to the point of impact based upon the fact of where the debris was located. The officer’s personal observation of the debris was an added factor attesting to the force of the impact. Cars which softly touch each other in traffic do not leave largo quantities of debris in the highway. Police officers, experienced in investigating highway automobile collision accidents, know from experience that the presence of the debris is an indication of the point of impact. The measured distance from that point to the location of the vehicles is a fact within the officer’s personal knowledge, and his testimony relating thereto is admissible as relevant to the issue of whether plaintiff’s claimed injuries due to a serious impact may reasonably be corroborated by all of these bits of circumstantial evidence.

II

Defendants claim that they were surprised and misled by certain of plaintiff’s answers to their interrogatories.

Particular reference is made to interrogatory 11 and plaintiff’s answer thereto, as follows:

11. If other loss of income, profit or earnings is claimed (a) State the total amount of said loss, (b) Give a complete detailed computation of said loss, (el State the nature and source of the loss of such income, profit and earnings and the date of deprivation thereof.
A. None.

From this defendant's argue that the trial court abused its discretion in permitting plaintiff to testify as to her inability to perform the duties of a waitress in Aberdeen, Maryland, and her inability to perform the duties of a legal secretary in Philadelphia. Defendants claimed further error in permitting plaintiff’s medical expert to testify as to her inability to work as a waitress or a legal secretary.

Plaintiff had answered in interrogatory 10, immediately preceding 11, that at the time of the accident she had been employed by her present attorney in Forked River, New Jersey, as a legal secretary at $55 weekly, and the amount of wages lost was $110 for the period from February 22 to March 8, 1965.

As plaintiff’s answer to interrogatory 11 correctly stated, she did not “claim” any other “loss of income, profit ox earnings.” As to that aspect of damages, plaintiff did not assert at trial any claim to lost wages beyond the sum of $110 for the two weeks specified in her answer. She testified that she went home after leaving the hospital and “I returned to work after that, two weeks after the accident.” She continued in that legal secretarial job for approximately three or four months after her return to work two weeks after the accident. When her husband, who was in the service and had been stationed at Fort Dix, received orders to go to Aberdeen, Maryland, she moved down there with him.

In charging the jury as to damages, the trial court mentioned the factor of “a claim for salary and loss of wages.” It added: “You have received testimony the plaintiff was out of work two weeks as a result of the accident, that her earnings were $55 a week or a total of $110 for the two weeks that she lost wages.” Thus, there was no deviation at trial as to the loss of income or earnings from the $110 loss specified in the answer to interrogatory 10. There was no variance at trial from the answer to interrogatory 11, when plaintiff stated, “None,” when asked if she were making “claim for any other loss of income, profit or earnings.”

Her testimony as to pain and suffering in her subsequent jobs as a waitress and legal secretary was relevant to her claim for damages based on her continued pain and discomfort. That evidence did not amplify her other limited claim for loss of income.

Finding no valid basis for a reversal in either of the only two points argued, the judgment is affirmed.