author: Staller, J. C. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. FRANK CAMPOBASSO, DEFENDANT.
    Superior Court of New Jersey Law Division (Criminal)
    Decided August 2, 1973.

      Mr. Ronald L. Taht, Cape May Assistant Prosecutor, for plaintiff.

      Mr. John F. Callinan for defendant (Messrs. Perskie & Callinan, attorneys).

      Mr. George F. Kugler, Jr., Attorney General amicus curiae (Mr. Robert W. Gluck, Deputy Attorney General, of counsel and on the brief).
   Staller, J. C. C.,

Temporarily Assigned. On September 7, 1971 Prank Campobasso was arrested and convicted for violation of N. J. S. A. 24:21-20(b) as a disorderly person, being under the influence of a controlled dangerous substance and he now moves to expunge the records of his arrest and conviction pursuant to N. J. S. A. 24:21-28.

At the time of arrest and conviction Oampobasso was 18 years old and it was his first offense. The municipal court judge found him guilty, suspended sentence and ordered defendant to “leave town.”

Since his arrest and conviction Campobasso has not been convicted of any subsequent offense, either under N. J. S. A. 24 :21-1 et seq. or any other statute. In March 1973 he entered the Harry Lundeburg School of Seamanship at Piney Point, Maryland. Later that month he was “forced out of school because it was learned that [he] had a criminal record.” He may not re-enter the school until and unless ' his record of arrest and conviction is expunged.

Oampobasso meets all requirements to have his record expunged except that no term of probation was imposed upon him at the time of sentence.

Decision was reserved after argument on the motion because the statute, N. J. S. A. 24:21-28, on its face appears to require a term of probation before the running of a period of not less than six months prerequisite to the application to expunge. Counsel were requested to present briefs on the issue of expungement where no probationary term was given, and the Attorney General as amicus curiae has also submitted a brief on this issue. All agree that defendant should have his arrest and conviction expunged.

The portion of the statute providing for expungement reads as follows:

24:21-28 Expunging of records of young offenders placed on probation.
After a period of not less than 6 months, whieh shall "begin to run immediately upon the expiration of a term of probation imposed upon any person under this act, such person, who at tbe time of tbe offense was 21 years of age or younger, may apply to the court for an order to expunge from all official records, except from those maintained under the Controlled Dangerous Substances Registry, as established and defined in the Controlled Dangerous Substances Registry Act of 1970, all recordations of his arrest, trial and conviction pursuant to this section. If the court determines, after a hearing and after reference to the Controlled Dangerous Substances Registry, that such person during the period of such probation amd during the period of time prior to his application to the court under this section has not been guilty of any serious or repeated violation of the conditions of such probation, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and trial. No person as to whom .such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest or trial in response to any inquiry made of him for any purpose, [emphasis suppplied]

It appears that the statute requires that expungement be granted only where a defendant had been given a probationary term in his sentence, and that during that term and during the subsequent period prior to application defendant has not been guilty of any serious or repeated violations of the conditions of such probation.

The statute breathes of probation, yet such a requirement can create gross inequity, as in the case of defendant here. Tor example, a defendant who is considered by a court to be in need of a term of probation may have his arrest and conviction expunged if all other requirements of section 28 are met. But a defendant who is not found to be in need of a term of probation cannot get expungement.

In the light of such a potential for inequity, what could have been the intention of the Legislature in enacting section 28 wth probation as a prerequisite to expungement?

In its formative stages the Controlled Dangerous Substances Act of 1970 was first introduced as Senate Bill 851 on May 7, 1970, sponsored by ten Senators. The Senate •Journal of 1970 references to the bill> in at least five places, are unremarkable as to legislative intent relative to section 28. References to the bill in the Assembly Minutes of 1970 are likewise bare of indications of legislative intent as to section 28. The record of a public hearing on the bill, held September 9, 1970, lends no assistance, nor does any other investigation reveal any information that section 28, as it pertains to probation, was specifically injected to accomplish any definite objective referable to probation per se. It is to be concluded that legislative intent as it relates to the provision of probation in section 28 cannot be ascertained from any of the records or history of the bill. It is to be noted, however, that the Assembly declared the entire bill to be an emergency measure on October 8, 1970, and it was finally passed on the same day, approved October 19, 1970, and became effective on the 90th day following its enactment.

Unquestionably the Legislature, “presumably aware of the increased experimentation with marihuana among our younger generation, provided procedures by which a one time experimenter may be freed of the stigma and burdens which a conviction of a disorderly person offense would entail.” State v. Haynie, 115 N. J. Super. 417, 419 (Cty. Ct. 1971), see also, N. J. S. A. 24 :21-27. This policy embodied in the statute outweighs the apparent necessity to keep arrest and conviction records in order that our criminal justice system operate effectively. In re Raynor, 123 N. J. Super. 526 (App. Div. 1973).

In light of this policy it becomes encumbent upon this court to construe N. J. S. A. 24:21—28 as to whether the Legislature intended a mandatory term of probation as a prerequisite to expungement.

It is clear that in interpreting a statute, if a literal reading of a part will lead to a result not in accord with the essential purpose and design of the act, the spirit of the law will control the letter of the law. N. J. Builders, etc., Ass’n v. Blair, 60 N. J. 330, 338 (1972): Dvorkin v. Dover Tp., 29 N. J. 303, 315 (1959). It has also been held that if a legislature’s intent is in doubt, then the law should be interpreted to be most consonant with equity and the common sense of the situation. Jersey City Chapter, Property Owners, etc., Ass’n v. City Council, 55 N. J. 86, 100 (1969); Dvorkin, 29 N. J. at 315. In San-Lan Builders, Inc. v. Baxendale, 28 N. J. 148 (1958), Justice Heher wrote, in regard to municipal regulative legislation:

These regulations are to receive a reasonable construction and application, to serve the plan and course of action of the lawgiver; and in this quest for the true intention of the law, the letter gives way to the obvious reason and spirit of the expression, and to this end the evident policy and purpose of the act constitute an implied limitation on the sense of general terms and a touchstone for the expansion of narrower terms. The will of the lawgiver is to be gathered from the object and nature of the subject matter, the contextual setting, and the mischief felt and the remedy in view. Scholastic strictness is to be avoided in the search for the legislative intention. The particular terms are to be made responsive to the essential principle of the law. It is not the words but the internal sense of the act that controls. Reason is the soul of law. [at 155]

It is apparent that the Legislature did not foresee the problem presented to this court by the factual situation now before it. Undoubtedly if such a problem had been contemplated by the Legislature, there would be no need for a decision on the issue. But when a judicial interpretation of a statute, unclear or incomplete on its face, is made, such an interpretation calls upon the court for a “sympathetic response consonant with what one may have presumed the legislature would have said had it indeed spoken.” N. J. Builders, etc., Ass’n v. Blair, supra, 60 N. J. at 339. Chief Justice Weintraub has written of that judicial response:

It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end “words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms.” Alexander v. New Jersey Power & Light Co., 21 N. J. 373, 378 (1956) * * * [New Capitol Bar and Grill Corp. v. Div. of Employment Security, 25 N. J. 155, 160 (1957)]

See Caputo v. The Best Foods, 17 N. J. 259, 264 (1955). A court may, in fact, respond in its interpretation to the point of avoiding specific statutory language to escape a result that it believes inconceivable to think the Legislature intended. Sandler v. Bd. of Adjustment, Springfield Tp., 113 N. J. Super. 333 (App. Div. 1971); In re Marvin, 97 N. J. Super. 62 (App. Div. 1967).

It is inconceivable to this court that the Legislature intended, when it passed the act containing N. J. S. A. 24: 21-28, to make it the public policy of this State to allow the expungement of the arrest and conviction records of a one-time youthful drug offender and in the same statement of that public policy take away that right from the persons who are most deserving of the benefit of that act, namely, the convicted offender who has not been deemed by the court to be in need of probation.

N. J. S. A. 24:21-28 is unlike N. J. S. A. 2A:164-28, wherein only a conviction may be expunged, and then only after a waiting period of ten years. See In re Fortenbach, 119 N. J. Super. 124 (Law Div. 1972); State v. D’Angerio, 124 N. J. Super. 240 (Law Div. 1973). Nor is it like N. J. S. A. 2A:169-11, wherein a disorderly persons conviction record, but not an arrest record, can be expunged after five years. In re Raynor, supra. Rather, section 28 provides that after a period of only six months after expiration of probation both, the conviction record and the arrest record of the defendant shall be expunged. Again, the policy of alleviating, from the one-time youthful drug offender, the stigma of an arrest and conviction can be seen in the shortness of the waiting period between conviction and expungement and in the thoroughness of the ex-pungement process.

Eor the reasons stated above, this court reads N. J. S. A. 24:21-28 to require the six-month waiting period for expungement to begin running at the expiration of the probation period, if such a probation period is imposed. However, if no probation period is imposed, the arrest and conviction records may still be expunged, and that expungement process may be instituted at the expiration of a period of six months from the time of conviction or disposition.

To hold otherwise would bring about situations where counsel for youthful offenders would be pleading with the court to place their clients on probation even though not required, so that they would be in a position to apply for expungement. This, in turn, would bring about a deluge of probation cases otherwise not needed. This court cannot imagine that the Legislature intended that courts must impose probation in every case where a one-time youthful offender commits a disorderly persons offense. Probation is a matter within the discretion of the court. It should be imposed where circumstances impel1 the court to provide supervision without incarceration. Where the court finds that neither incarceration is required nor supervisory help needed, such a finding by the court must not impede the ultimate availability to the youthful offender of the right of expungement.

Frank Campobasso, having met all of the terms of N. J. S. A. 24:21-28 although no probationary term was imposed, and a period of much more than six months having elapsed since his conviction during which time he had led an exemplary life demonstrating high moral character, good citizenship and a will to seek a career for his future, his record of arrest and conviction pursuant to N. J. S. A. 24 :21-28 must be expunged.

Submit Order.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN BOONE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1972
    Decided August 9, 1973.

      Before Judge Fritz, Lynch, and Joelson.

      Mrs. Jane G. Kleinfeld, Assistant Deputy Public Defender, argued the cause for appellant (Mr. John H. Ratliff, Assistant Deputy Public Defender, of counsel and on the brief; Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Dante P. Mongiardo, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).
   Per Curiam.

Defendant was convicted by a jury for possession of a dangerous substance, contrary to N. J. S. A. 24:21-20. He appeals on the grounds that (1) a question posed by the prosecutor revealed a prior plea of guilty, to his prejudice, and that in these circumstances denial of his motion for a mistrial was error of constitutional proportions; (2) failure to require the disclosure of the identity of a confidential informant was error, and (3) denial of a “Clawans charge” in connection with the refusal to provide the name of the informant was error. See State v. Clawans, 38 N. J. 162, 170 (1962).

We think the latter two issues are without merit. State v. Roundtree, 118 N. J. Super. 22 (App. Div. 1971), is distinguishable. In the instant case defendant is charged with possession, a crime in which the informer did not participate. That the informer’s transaction led to the disclosure of the crime charged, or confirmed prior suspicions and gave reason for police activity, does not diminish the application of the rule of State v. Infante, 116 N. J. Super. 252 (App. Div. 1971), where, as here:

In the instant ease the participation of the informant did not become part of the res gestae of the crime. Nor did it play any important part in the conviction, in view of the abundance of evidence inculpatory of defendant, [at 258-259]

Needless to say, if the State is privileged to protect the identity of an informant, a “Glawans charge” would be entirely inappropriate, and the refusal here so to charge was not error.

The matter of disclosure before the jury of the fact that defendant had previously pleaded guilty is another matter altogether. Without citation, the State concedes that New Jersey “follows the rule that a withdrawn plea of guilty is not admissible in evidence.” There appears to be no precise appellate áuthority for that concession, unless it is State v. Leaks, 124 N. J. L. 261 (E. & A. 1940), and Goodlet v. Goodman, 34 N. J. 358 (1961), cert. den. 368 U. S. 855, 82 S. Ct. 92, 7 L. Ed. 2d 52 (1961). But both these, cases dealt with murder indictments. That murder eases are sui generis as a matter of policy is demonstrated by the historical injunction against any plea of guilty in such cases. See R. 3:9-2. It might be argued that a plea is an admission, or at least, if retracted, a prior inconsistent statement; and as such, if intelligently made (which could be discovered on voir dire, as is done with confessions), has real relevance, i. e., a tendency in reason to prove the truth of the issue.

But we will not strain. We are persuaded by the cogent reasoning in Kercheval v. United States, 274 U. S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927), that if the New Jersey rule is not yet declared to be as the state concedes, it should be. A withdrawn plea of guilty is not admissible in evidence.

The State argues the error was corrected by the court’s instruction to the jury to disregard the prosecutor’s question, and that no prejudice remained. We cannot agree. The same argument was forwarded in State v. Leaks, supra. Applicable here is the analysis there:

It is argued by the state’s attorney that the trial judge instructed the jury to disregard this evidence in its entirety and that “there is no proof whatever that this influenced them in the slightest in arriving at the verdict.” As to this, who can say whether or not this illicit evidence affected the jury and to what degree? May it not have been all persuasive as long as it was part of the state’s case? And after it was struck out, as a matter of record, was it obliterated from the mind of the jury so that the tablet of the mind and recollection was wiped clean? We do not think so. Jurors as a rule are not expected to be skilled in legal distinctions and we are rather inclined to the view that proof of this kind would, unconsciously or subconsciously, be a very substantial element in their consideration, and that it would not be possible for them to subtract this testimony from the total of the evidence and discard it. Yet the accused was entitled to have that done by the jury in the consideration of the case. * * * [124 N. J. L. at 264]

Nor does it matter that the information was in a question of the prosecutor rather than in an answer of a witness. The information was imparted. The bell had been rung.

Reversed and remanded.


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

text:
    IN THE MATTER OF THE FINGERPRINTING OF M. B. AND TWENTY-ONE OTHER JUVENILES.
    Superior Court of New Jersey Appellate Division
    Argued August 7, 1973
    Decided August 16, 1973.

      Before Judges Conford, Leonard and Crahay.

      Mr. David R. Arrajj, Assistant Deputy Public Defender, argued the cause for M. B. and 21 other juveniles, appellants (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Michael J. Mitzner, Assistant Prosecutor of Union County, argued the cause for respondent State of New Jersey (Mr. Karl Asch, Prosecutor, attorney; Mr. Michael H. Kessler, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Conford, P. J. A. D.

We have here for consideration the question of whether or to what extent the Fourth Amendment controls or affects compulsion by a court, at the instance of a law enforcement officer, of citizens to cooperate in yielding their fingerprints to the authorities in order to help solve a crime.

On July 10, 1973 Judge Weidenburner, on the filing of an affidavit by an Elizabeth police detective, and at the request of the Union County Prosecutor, issued an ex parte order directing that the male members of the 1973 8th grade class of the Martin Luther King, Jr. elementary school of Newark submit to fingerprinting at the Essex County Sheriff’s office in Newark on any of six specified days beginning July 17, 1973, at any time from 9 A.si. to 13 noon. The order permitted the pupils to be accompanied by a parent, guardian or attorney and directed that the fingerprints should be used only in regard to the investigation of the death on June 34, 1973 of one John (Bliss) Galasso. It further specified that the prints should be destroyed upon the completion of the investigation.

A subsequent motion on behalf of some of the pupils for an order vacating or staying the order of July 10 was heard and denied by Judge Weidenburner. Proceedings in this court for stay and leave to appeal eventuated in an order of this court granting leave to appeal but denying a stay. The Supreme Court on petition thereafter stayed the fingerprint order and directed this court to hear the appeal immediately. Because of the intervening proceedings the trial judge entered another order on July 37, 1973 providing for extended dates for the fingerprinting. Motions before us by the pupils for stay, leave to appeal, etc., in reference to the latter order become academic in light of our determination on the merits of the primary order of July 10.

At the argument of the appeal, in order to provide a fair opportunity for appellants, who are obviously minor youths, to contest the reasonableness of the order, this court directed limited disclosure to counsel for appellants of the contents of the affidavit on which the order issued, and granted them leave to file a supplemental brief as to the reasonableness of the order based thereon. We further directed that such disclosure be held in confidence by counsel. The limitation and direction were based on representations by the State that disclosure to potential suspects in the crime of any of the details of the affidavit would prejudice the ongoing investigation of the homicide involved. (Appellants’ brief indicates they are aware this was a homicide). We have now concluded that there is no reasonable need for further confidentiality of the portions of the affidavit disclosed to counsel, a substantial part of which has already been reported by the press, and we therefore recite those facts herewith as basic to an understanding of our determination that the fingerprinting order is a reasonable and valid interference with the privacy of appellants, within the proscriptions of the Fourth Amendment.

The body of the victim of the homicide, who was a resident of Montclair, was found in a vacant lot in Elizabeth on June 24, 1973 at 11:40 A.M. A ring of the 1973 graduating class of the Martin Luther King, Jr. elementary school in Newark was found lying 44 feet from the body. The victim had the exclusive possession and use of a 1972 Chevrolet automobile which was next seen, after discovery of the body, on the morning of June 26, 1973 parked on a Newark street. The Newark police took possession of it on June 27, 1973, and it was thereupon examined by experts for latent fingerprints. A number of such prints were found both inside and outside of the car, none of which was found to match known fingerprints of the decedent.

Appellants, while conceding, on the basis of commentary by the Supreme Court in Davis v. Mississippi, 394 U. S. 721, 727, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), hereafter quoted, that fingerprinting is probably compellable in certain “narrowly defined circumstances” short of a showing of probable cause “in the traditional sense” (Id.), nevertheless argue that (1) it was requisite that the trial court afford them full disclosure of the police affidavit and an opportunity at an adversary hearing, both to challenge the veracity of the affidavit and to offer counter-evidence refuting the reasonableness of the proposal to fingerprint them, and (3) on the basis of the facts disclosed to counsel, recited above, the order was not reasonable. We find both of these contentions to lack merit.

In the Davis case, supra, the Supreme Court reversed a state rape conviction of a 14-year-old boy because his incriminating fingerprints, admitted in evidence, were taken by police in the course of an illegal ^detention of the boy. While holding that “[detentions for the sole purpose of obtaining fingerprints are * * * subject to the constraints of the Fourth Amendment” (394 U. S. at 727, 89 S. Ct. at 1397), the court went on to say (Id.):

arguable, however, that because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v. Municipal Court, 387 U. S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints." Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.” Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time.

These presently significant observations were repeated by the court in the recent case of United States v. Dionisio, 410 U. S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67, 77 (1973).

We pause to reject the argument of the State that involuntary fingerprinting is wholly outside the constraints of reasonableness imposed by the Fourth Amendment, assertedly supported by the decisions in United States v. Dionisio, supra, and the companion case of United States v. Mara, 410 U. S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973). Dionisio reversed a holding of the Court of Appeals for the Seventh Circuit to the effect that a federal grand jury subpoena calling upon a witness to submit voice samples for comparison with voices recorded on a legally authorized wiretap in the course of a gambling investigation was invalid in the absence of a preliminary showing of reasonableness of the subpoena in an adversary proceeding. 442 F. 2d 276. The Supreme Court, in reversing, held: (a) a grand jury subpoena was not a “seizure” in the Fourth Amendment sense, and (b) there is no protected privacy in one’s voice, which is “repeatedly produced for others to hear” (410 U. S. at 14, 93 S. Ct. at 771, 35 L. Ed. 2d at 79). Essentially the same rationale was applied in the Mara case, in relation to a grand jury subpoena for handwriting exemplars. Neither of the stated grounds of decision in Dionisio is pertinent here. Moreover, as noted above, the court there impliedly reaffirmed the expression in Davis, supra, that at least limited Fourth Amendment pror lection is to be accorded subjects of investigatory fingerprinting as a matter of general principle.

Appellants’ contention that they should have been accorded notice and an adversary hearing in the Law Division before issuance of the order is partly mooted by the circumstance that their counsel has been apprised by us of the gravamen of the affidavit and given an opportunity to argue against the order’s reasonableness based thereon, taken in the light of the consideration that we have concluded that the facts so disclosed do constitute a reasonable basis for enforcing the order (see infra). We reject the non-mooted argument that appellants have a right to contest reasonableness by offering independent proof on the issue. Cf. State v. Petillo, 61 N. J. 165 (1972); State v. Carluccio, 61 N. J. 125 (1972). Even the decision on which they primarily rely, In re September 1971 Grand Jury, 454 F. 2d 580 (7 Cir. 1971), rev’d other grounds sub nom. United States v. Mara, supra, does not support that position. The case goes no further than to hold that full disclosure of a government affidavit offered to support a demand for enforcement of a grand jury subpoena for handwriting exemplars is necessary where the object of the subpoena charges unreasonableness (in which respect it was reversed by the Supreme Court). It does not extend to a right by him to offer counter-proof. In our view, the early stages of a criminal investigation are no appropriate occasion for adversarial "mini-trials” on the justification for routine investigative steps. Cf. United States v. Dionisio, supra, 410 U. S. at 16, 93 S. Ct. at 773, 35 L. Ed. 2d at 81.

Having decided, as stated above, that even on the contents of the limited disclosure now afforded appellants, and in light of the opportunity accorded counsel to contest reasonableness before us, enforcement of the order under appeal is reasonable, we have no occasion to render definitive procedural guidelines for such cases in general. But a few observations may be helpful on the subject of disclosure of the moving affidavit by the State.

The proceedings below were the functional equivalent of an application for, issuance, and challenge of the validity of a search warrant. In that light, it might be argued that since on a motion to suppress the person aggrieved by the search is accorded access to all proofs before the issuing magistrate, R. 3:5-6, the same access should be granted here. However, there is a material difference. In the conventional search warrant situation a search and seizure has already taken place and the movant reasonably believes the evidence will be used against him in a penal proceeding. R. 3:5-7. Typically, the State’s investigation has, by the time of the motion to suppress, been concluded and a charge filed. The situation has changed from the early investigational stage where there may be real need for confidentiality, to the general pretrial area where present policy is for liberal discovery on behalf of the accused. See R. 3:13-3.

In the present situation, by contrast, the investigation had barely begun when circumstances dictated the need for fingerprinting of the pupils. There was legitimate law enforcement requirement for a degree of confidentiality in the developing investigation. No specific individual had yet been charged with or suspected of the crime. We incline to the view that in such a situation as this the judge should make a discretionary determination as to that degree of disclosure of the facts to the subjects of the investigation as will afford them a fair opportunity to challenge reasonableness in advance of the fingerprinting, yet not unduly harm the State’s investigative interests. This approach was that which guided us in providing for the limited disclosure we allowed at oral argument.

We have stated above that we find the order under review reasonable in a Fourth Amendment context. Appellants pose a number of factual hypotheses argued to be consistent with the evidence disclosed to counsel and with the innocence of all or many male members of the graduating class of the school involved. For example, the ring may have been lost or dropped where found long prior to the homicide; the fingerprints on the car may be those of members of decedent’s family or his friends, and the removal of the vehicle may be unconnected with the homicide. We need not analyze the argument in detail. After it is given full weight, there remains a substantial basis to suspect that a member of the school class in question may have had some implication in or material knowledge of the homicide such that fingerprinting of all the male members of the class was reasonable, having in mind the protective provision of the order for destruction of the prints after completion of the investigation. Under all the circumstances extant and the terms of the order below we find the existence of such “narrowly circumscribed procedures” as render the order reasonable within the view of the Fourth Amendment adumbrated in Davis, supra, 394 U. S. at 727, 728, 89 S. Ct. 1394, and which we herewith adopt for this court as eminently sound.

Appellants further argue that taking of the prints will violate N. J. S. A. 2A:4-21. We think not. The statute provides if a person between 17 and 18 years of age is arrested and charged with an offense which, if committed by an adult would be-indictable, he may be fingerprinted; but that if the person is found not guilty or -the charge is dismissed, the prints shall be destroyed. On its face the statute purports to deal with persons charged with offenses, not to negate the common-law right of law enforcement officials to employ investigative detectional techniques. Language cited to us from Oberg v. Department of Law & Public Safety, 41 N. J. Super. 256, 257 (J. & D. R. Ct. 1956), must be understood in the background of a charge rather than an investigative situation. Compare Roesch v. Ferber, 48 N. J. Super. 231 (App. Div. 1957). The public policy of destruction of fingerprints of a juvenile not found guilty or where the charge is dismissed, Id. at 238, does, of course, apply a fortiori where the juvenile is never charged, and required the protective feature of destruction here incorporated in the order.

Appellants alternatively ask for a prohibition of distribution by the prosecutor of prints to other law enforcement agencies and of interrogation of the children, and for the setting of a definite date for destruction of any prints taken. The order is herewith amended to prohibit distribution of the prints or copies thereof to any agency not within the jurisdiction of the New Jersey state courts. Distribution may be made to a New Jersey law enforcement agency if strictly necessary for investigative purposes, but in that event such agency will be under the same restraint as to distribution and same directions for destruction as contained in the amended order, and it shall be served forthwith with copies of the order and this opinion.

We will not, however, prohibit interrogation of any of the children insofar as such course does not violate the state or federal statutes or constitutions. No such issues have been argued, and an order on the subject would be premature. The order affirmatively authorizes only the fingerprinting. As for the time of destruction of the prints, we will leave the order as it stands, subject to the right of any of the parties to apply to the trial court for more specific directions if necessary in the light of developments.

The order, as amended above, is affirmed, and the trial court, on application, may fix a new schedule of dates for taking the fingerprints. The existing stay is vacated. No costs.


author: Crahay, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BETSY BLACKMAN AND WILLIAM BIRNBAUM, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued August 7, 1978
    Decided August 22, 1973.

      Before Judges Conford, Leonard and Crahay.

      Mr. Craig D. Katz, Assistant Prosecutor, argued the cause for appellant (Mr. Sherwin D. Lester, Bergen County Prosecutor, attorney).

      Mr. William C. Meehan argued the cause for respondent, Blackman.

      Mrs. Jane G. Kleinfeld, Assistant Deputy Public Defender, argued the cause for respondent, Birnbaum (Mr. Stanley C. Van Ness, Public Defender, attorney).
   Crahay, J. A. D.

An indictment charging defendants with the maintenance of a common nuisance resorted to by persons for unlawful activities involving narcotic drugs contrary to N. J. S. A. 24:21-23 and N. J. S. A. 24:21-35, subd. a was dismissed on the grounds that it failed to state a crime punishable by law. The State appeals.

The operative portions of the challenged indictment are that the defendants —

. . on or about the 30th day of March, 1972, in the City of Hackensack, County of Bergen aforesaid and within the jurisdiction of this Court, did keep and maintain as a common nuisance premises within the aforesaid jurisdiction resorted to by persons for the purpose of unlawfully using, keeping, manufacturing, distributing, dispensing, administering or selling narcotic drugs, contrary to the provisions of N. J. S. 24:21-23 and N. J. S. 24:21-35, subd. a. ... .”

The trial court’s stated reason for dismissing the indictment was that — “N. J. S. A. 24:21-35, subd. a, under which defendant was charged, lacks any words designating a crime and is merely a statutorial forfeiture provision.”

In 1970 the Legislature repealed the Uniform Narcotic Drug Law, N. J. S. A. 24:18-1 et seq., replacing it with the New Jersey Controlled Dangerous Substances Act, N. J. S. A. 24:21-1 et seq. (effective October 19, 1970). The legislative treatment of nuisances under the two acts is patently different.

N. J. S. A. 24:21-35, subd. a provides —

“a. The mainténance of any building, conveyance or premises whatever which is resorted to by persons for the unlawful manufacture, distribution, dispensing, administration or use of controlled dangerous substances shall constitute the keeping of a common nuisance.”

N. J. S. A. 24:18-37 had provided —

“Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a common nuisance. No person shall keep or maintain such common nuisance. (Emphasis added)

Thus, unlike its predecessor, N. J. S. A. 24:21-35 does not prohibit the maintenance of a common nuisance regarding narcotic activities. It merely defines a common nuisance and provides for statutory forfeitures. "We are not persuaded by the State’s argument that the general penalty provision of the Controlled Dangerous Substances Act, N. J. S. A. 24:21-23, evidences an intent by the Legislature that the keeping of a common nuisance under the act is a criminal offense. N. J. S. A. 24:21-23 provides that —

“any person who violates any provision, of this act for which no specific penalty is provided shall be guilty of a misdemeanor.”

Absent a proscription against the maintenance of a nuisance it cannot be held that a person who maintains one has violated the Act.

Penal statutes must be strictly construed and they will not create criminal liability where it has not been clearly fixed by the words of enactment. Before one can be punished under a penal statute the proscribed conduct must he clearly within the statute and any doubts as to the meaning of such statutes must be resolved in favor of a defendant. State v. Fairlawn Service, Inc., 20 N. J. 468 (1956); State v. Leonardo, 109 N. J. Super. 442 (App. Div. 1970).

Here then, the trial court properly held that N. J. S. A. 24:21-35, subd. a does not spell out a crime. However, we are not satisfied that the trial court was warranted in the dismissal of the indictment. Amendment was in order. R. 3:7-4 provides —

“The court may amend the indictment or accusation to correct an error in form or the description of the offense intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.”

Employment of the cited rule was required, State v. Bott, 53 N. J. 391, 402 (1969) since the indictment here charged a crime.

N. J. S. A. 2A:130-2 provides —

“Every building or place where the law is habitually violated is a nuisance.”

N. J. S. A. 2A:130-3 provides —

“Any person who maintains a nuisance, as defined in this chapter is guilty of a misdemeanor.”

The conduct of defendants here as described in the factual recitation of the indictment, if proven, would clearly be within the interdict of N. J. S. A. 2A:130-2 and 3, the General Nuisance statute.

The indictment fully and clearly informed defendants of the factual charges they would have to meet and an amendment of it to recite the appropriate statutes violated would in no way impair their ability to prepare their defenses nor would it bring them to trial' for a crime substantially different from that which the Grand Jury found sufficient cause to charge them with. State v. LaFera, 35 N. J. 75 (1961).

Indictments should not be dismissed unless their insufficiency has been palpably demonstrated. Accordingly, the order of the trial court dismissing the indictment is reversed and the matter remanded with directions to amend the indictment to recite N. J. S. A. 2A:130-2 and 3 as the statutes allegedly violated instead of N. J. S. A. 24:21-23 and 35, subd. a. The case then may proceed to trial.

Reversed and remanded.

       The balance of the section details various drugs and other properties subject to forfeiture and prescribes their disposition.


author: Handler, A. J. A. D.

text:
    MARILYN WINSTON AND SOUTH PLAINFIELD EDUCATION ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, APPELLANTS, v. BOARD OF EDUCATION OF THE BOROUGH OF SOUTH PLAINFIELD IN THE COUNTY OF MIDDLESEX, RESPONDENT, STATE BOARD OF EDUCATION, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 14, 1973
    Decided August 9, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Abraham L. Friedman argued the cause for appellants (Rothbard, Harris & Oxfeld, attorneys).

      Mr. Robert J. Cirafesi argued the cause for respondent Board of Education of South Plainfield.

      Mr. Lewis M. Popper, Deputy Attorney General argued the cause for respondent State Board of Education (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Handler, A. J. A. D.

Appellant Marilyn Winston was an elementary school teacher employed by respondent Board of Education of South Plainfield (board). She had been employed in a nontenured capacity under annual contracts for each of the school years 1068-1969, 1969-1970 and 1970-3971. Her employment contract was not renewed for the year 1971-3972, and as a result she did not acquire tenure.

An evaluation report was submitted by Winston’s principal on or about February 23, 1971. The board thereafter determined not to renew Winston’s employment contract. Among other matters, the report contained “administrator’s remarks” to the effect that Winston had been overly critical of administrative policy and action, had not sufficiently focused her attention on her duties and had not supported administrative policy and the like. On March 11, 1971 Winston invoked the grievance procedures provided in the current “collective bargaining agreement” between the board and appellant South Plainfield Education Association, the recognized exclusive representative of teachers and certain other employees of the board under the New Jersey Public Employer-Employee Relations Act, L. 1968, c. 303; N. J. S. A. 34:13A-1 et seq.

The gist of her grievance was the unfavorable evaluation report and, in particular, as set forth in Part 1, a claim that the report was “unconstitutional by penalizing the aggrieved [i. e. Winston] for her proper exercise of the First Amendment Guarantees of freedom of expression, etc.” In the processing of her grievance Winston was represented by the Association. The grievance was taken through four administrative levels, including an appeal to the local board on April 30, 1971. The board concurred in the conclusion of the superintendent that the matters complained of were “non-grievable” and it rejected the grievance noting, in part, that “[a]lthough the grievance is couched in language suggesting violations of a constitutional dimension, it appears that the primary distress of the teacher is the possibility of her non-re-employment in the school system.” It indicated further that the board was under “no compulsion to announce reasons for not re-hiring a probationary employee” and that Winston had not given any detailed support for her request for a hearing. The board also stated that it was “unable to conclude that the evaluation report submitted by Mr. Reilly [the principal] was composed with the intention of, or that it has a substantial tendency to, abridge Mrs. Winston’s right to free speech * :!:

On May 18, 1971, about the same time that the board’s decision was rendered, a list of teachers to be rehired was approved and Winston was not among them. Thereafter, on or about June 16, 1971, the Association on behalf of Winston endeavored to invoke the fifth level for processing grievances by demanding arbitration. It was alleged that there had been a denial of constitutional rights as well as a recommendation that Winston not be re-employed. At an arbitration hearing conducted on October 14, 1971 the issue of arbitrability was argued and the board was given the opportunity to seek judicial relief on this issue. It then filed an action on November 16, 1971 in the Superior Court, Chancery Division, which issued an injunction on Feburary 8, 1972 restraining the arbitration proceedings until administrative remedies had been exhausted.

There followed a petition of appeal to the Commissioner of Education. The board filed a motion to dismiss which was argued before a Deputy Commissioner who presented a report to the Commissioner. The Commissioner ruled that the Association had no standing as a party to the proceedings and determined that Winston’s appeal he dismissed. Both Winston and the Association appealed this determination to the State Board of Education which, after a referral of the matter to its Law Committee, affirmed the decision of the Commissioner.

I

Appellants contend that the Commissioner of Education erred in failing to afford them the opportunity to object to the report of the hearing examiner before issuing his decision. They also contend that the State Board of Education committed comparable error by not affording them the opportunity to object to the report of its Law Committee prior to the rendering of its decision.

The decision of the Commissioner makes it quite clear that he was furnished with and relied upon a report of the Deputy Commissioner designated as the hearing examiner who heard the appellants’ petition in the first instance. Respondents argue that there was no requirement that the report of the hearing examiner he furnished the parties prior to its utilization by the Commissioner in deciding the controversy. Among the reasons advanced were that the Commissioner of Education is not the “head of the agency” within the meaning of N. J. S. A. 52 :14B-10(c) and consequently the report of a hearing examiner designated by the Commissioner is not subject to the mandate of that statute; also, that since the Commissioner’s decisions are reviewed by the State Board of Education, the parties there have the opportunity “to except and object to the findings of fact and conclusions of law’ of both the Departmental hearing examiner and the Commissioner of Education * *

These arguments carry no weight. The law is firmly settled where a final decision is made by one who did not hear the evidence but who relies in part upon a report of a hearing officer, there is a risk that the ultimate decision may be based upon findings not supported by the evidence. To secure essential fair play and to minimize the risk of fundamental error it is necessary that

* * * prior to its submission to the deciding officer the hearer’s report be made available to the parties and ® * * they then be given an opportunity to correct any mistakes that may appear in the report. This simple requirement, while imposing no hardship on the agency, does protect the individual against the strong possibility of a miscarriage of justice or the suspicion thereof. [Mazza v. Cavicchia, 15 N. J. 498, 523-524 (1954)]

There can be not the slightest doubt that this axiom of administrative due process is applicable to hearings before the Commissioner of Education. See In re Masiello, 25 N. J. 590, 604 (1958); cf. N. J. A. C. 6:24-1.13.

The decisional law in this respect has been underscored and codified by the Administrative Procedure Act, L. 1968, c. 410, particularly N. J. S. A. 52:14B-10(c), viz.:

(c) When a person not empowered to render an administrative adjudication is designated by the head of the agency as the presiding officer, his recommended report and decision containing recommended findings of fact and conclusions of law shall be filed with the agency and delivered or mailed to the parties of record; and an oijportunity shall be afforded each party of record to file exceptions, objections and replies thereto, and to present argument to- the head of the agency or a majority thereof, either orally or in writing, as the agency may urder. The head of the agency shall adopt, reject or modify the recommended report and decision. The recommended report and decision shall be a part of the record in the case.

The requirement that the hearing examiner’s report be furnished the parties prior to its submission to the Commissioner for his decision is in no way lessened by the availability of a further administrative review before the State Board of Education. In a given case the Commissioner’s decision may well be final. Moreover, even if there is a further appeal, Ms decision, while not binding, may have a crucial impact upon the State Board of Education. See Quinlan v. Bd. of Ed., North Bergen Tp., 73 N. J. Super. 40, 50 (App. Div. 1962). We conclude, therefore, that appellants were entitled to be furnished with the report of the hearing examiner prior to its submission to the Commissioner for decision.

At the next level the State Board of Education, in accordance with its rules, submitted the appeal for preliminary review by the Law Committee. N. J. A. C. 6:1-4.4 The Law Committee, as required, submitted its report and recommended conclusions to the Board. N. J. S. A. 18A:6-29; N. J. A. C. 6:2-1.4. The Board thereupon rendered its decision for the reasons advanced by the Commissioner of Education.

The procedure followed was defective in not providing the parties the opportunity to address the report of the committee before it was transmitted to the State Board for final action. In re Masiello, supra, 25 N. J. at 605; Quinlan v. Bd. of Ed., North Bergen Tp., supra, 73 N. J. Super. at 53; cf. Redcay v. State Board of Education, 128 N. J. L. 281 (Sup. Ct. 1942).

This serious procedural dereliction cannot be ignored. Bespondent suggests that “[t]he State Board never engages in independent fact-finding of its own” and also that the Law Committee is “concerned primarily with an evaluation of the Commissioner’s conclusions of law, with an eye only to the reasonableness of the findings of fact.” To the contrary, the State Board “is not precluded from making its own independent findings of fact.” Quinlan v. Bd. of Ed., North Bergen Tp., supra, 73 N. J. Super. at 51; cf. In re Masiello, supra. And the Law Committee is not restricted in its review to issues of law. There is no basis for the assumption that such a committee through its recommendation may not have a decisive effect upon the eventual decision. N. J. A. C. 6:2-1.4. “Due process requires that the litigant be allowed to make an impressionable contact with the powers of decision.” Fifth St. Pier Corp. v. Hoboken, 22 N. J. 326, 337 (1956). Consequently, there was error in the proceedings before the State Board of Education in not making available to the parties the report of the Law Committee, with adequate opportunity to object thereto prior to its submission to the State Board for final action.

11

It is argued that it was error to dismiss the South Plain-field Education Association as a party to the proceedings before the Commissioner of Education. Respondents, in defense of this ruling, take the position that the Association is a “bargaining agent of employees” under L. 1968, c. 303; N. J. S. A. 34:13A-1 et seq., and that the Commissioner- does not have the “jurisdiction * * * to hear the complaint of [such] a bargaining agent under the guise of a ‘’controversy and dispute under School law.’ ” It is also stated that the Association as an organization would not have standing to represent an individual on a “personal grievance simply by virtue of the organization's function in representing that person for certain collective purposes.”

In general, disputes involving teachers are cognizable as controversies under the school laws. N. J. S. A. 18A:6-9; e. g., Woodbridge Tp. Ed. Ass’n v. Bd. of Ed., Woodbridge Tp., 91 N. J. Super. 54 (Ch. Div. 1966); Bd. of Education, Garfield v. State Bd. of Education, 130 N. J. L. 388 (Sup. Ct. 1943). In a particular case, however, such disputes might also be the proper subject of grievance procedures adopted pursuant to N. J. S. A. 34:13A-5.3. If a dispute is grievable in accordance with the terms of a collective bargaining agreement between a board of education and tire exclusive employee representative, the latter not only has the right but indeed may be under a duty to process such a grievance and to do so fairly and impartially, where the contract so provides. Cf. Lullo v. International Ass’n of Fire Fighters, 55 N. J. 409 (1970); N. J. Turnpike Emp. Union, Local 194. v. New Jersey Turnpike Authority, 123 N. J. Super. 461 (App. Div. 1973).

Appellants’ unilateral initiation of the grievance procedures under the contract does not imply that the dispute should now be regarded as one not amenable to the jurisdiction of the Commissioner as a controversy arising under the school laws. In this case, not all grievable complaints under the collective bargaining agreement are entitled to be resolved ultimately by arbitration. This agreement specifically provides that “[n]o claim by a teacher shall constitute a grievable matter beyond level four or be processed beyond level four [review of Superintendent’s decision by Board of Education] if it pertains to * * * [a]ny complaint of a non-tenure teacher which arises by reason of his not being re-employed.” If such a complaint cannot by the terms of the operative contract be resolved by means of arbitration, then its ultimate disposition should follow the course applicable to any other controversy or dispute, namely, by successive appeals to the Commissioner of Education and the State Board of Education.

Here Winston’s initial complaint focused upon the adverse evaluation report as such. But quite obviously this had a tangible bearing upon her employment status since the report itself recommended that Winston not be re-employed. In fact, her employment was discontinued by the nonrenewal of her contract before her complaint could be taken beyond the level four grievance procedure to arbitration. Her claim was then expanded to include the specific charge that she had not been re-employed and that the nonrenewal of her employment contract was wrongful because of the evaluation report. Thus, by the very terms of the collective bargaining agreement, her claim no longer constituted a “grievable matter” after the decision of the superintendent. It could, therefore, appropriately be considered a controversy or dispute thereafter cognizable by the Commissioner and State Board of Education.

The Association, having been duly selected the exclusive employee representative pursuant to N. J. S. A. 34 :13A-1 et seq., had the authority under the contract to initiate a grievance and process a claim on behalf of an aggrieved teacher such as Winston through the applicable administrative levels. In this posture it would be anomalous to deny the Association the standing to pursue the matter to conclusion. The final disposition of such claims might have an impact which transcends the personal interest of the individual claimant and have repercussions affecting other employees. Fo sound reason has been advanced why, at the critical and final stages of the administrative machinery before the Commissioner of Education and ultimately the State Board, the very real interest of the Association should be negated and the Association shorn of its status to participate as a party and to represent the interests of the aggrieved employee.

The concern of an exclusive representative of public employees with respect to matters touching their employment is tangible and genuine; it is an interest sufficient to enable such an entity to participate as a party in proceedings before the Commissioner and State Board of Education. N. J. A. C. 6:24-1.6; cf. Crescent Park Tenants Ass'n v. Realty Equities Corp. of N. Y., 58 N. J. 98 (1971). In consequence, it was error for the Commissioner of Education, and on appeal the State Board of Education, to have ruled that South Plainfield Education Association be dismissed as a party to the proceedings.

Ill

The local Board of Education moved before the commissioner to dismiss the petition for failure to state a cause of action and to plead essential facts. The Commissioner ruled that the allegations of the petition “stand alone” and there was no “offer of proof that the Board failed to renew petitioner’s contract because she exercised her right of free speech.” Appellants contend that the Commissioner of Education erred in dismissing Winston’s appeal without a hearing. ^Respondents argue that the petition was based upon “bare allegations” and was properly dismissed where “no additional proofs were offered.”

A nontenured teacher does not have the right to have an employment contract renewed; nor is such a teacher ordinarily entitled to a statement of reasons for such nonrenewal or to a hearing prior to such action. Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Zimmerman v. Board, of Education, Newark, 38 N. J. 65 (1962), cert. den. 371 U. S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963); Donaldson v. Bd. of Ed., North Wildwood, 115 N. J. Super. 228 (App. Div. 1971), certif. granted 59 N. J. 272 (1971). The discretion vested in a board over these matters is extremely broad. Nevertheless, this wide latitude enjoyed by a board of education with respect to such matters as the appointment, transfer, dismissal or nonrenewal of teachers is conditioned upon Fourteenth Amendment limitations. Perry v. Sindermann, 408 U. S. 593, 92 S. Ct. 2964, 33 L. Ed. 2d 570 (1972); Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); cf. Burlington County Evergreen Park Mental Hospital v. Cooper, 56 N. J. 579 (1970). “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Pickering v. Board of Education, 391 U. S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968). School teachers, it has been noted, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969); cf. Katz v. Board of Trustees of Gloucester County College, 118 N. J. Super. 398, 401 (Ch. Div. 1972). Specifically, it has been recognized that “[n]onrenewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights.” Perry v. Sindermann, supra, 408 U. S. at 590, 92 S. Ct. at 2698, 33 L. Ed. 2d at 578.

It may be acknowledged that the bare assertion or generalized allegations of infringement of a constitutional right does not create a claim of constitutional dimensions. Cf. Trap Rock Industries, Inc. v. Kohl, 63 N. J. 1 (1973). In this case, however, petitioner’s claim of a deprivation of her constitutional rights was adequately detailed and corroborated, sufficient to require consideration of her complaint. Specifically the petition of appeal to the Commissioner set forth several instances in some detail indicating that Winston had questioned policy decisions, made suggestions and recommendations, sought information or reasons for certain administrative decisions, expressed criticisms among teachers concerning certain administrative directives, and the like. These allegations were verified by petitioner. Additionally, while the evaluation report contains other reasons which might justify the recommendation that appellant not be re-employed, the “Administrator’s remarks” raise an inference that Winston’s speech and expressions were considered too captious and contentious, and that this may have been a material factor in the discontinuance of her employment. Compare Hetrick v. Martin, 480 F. 2d 705 (6 Cir. June 15, 1973).

In Perry v. Sindermann, supra, the United States Supreme Court decided that a teacher’s lack of tenure or the absence of a contractual right to re-employment as such would not defeat a genuine claim that the nonrenewal of his employment contract was triggered by his public criticism of school administration policies and constituted an infringement upon his constitutional right to freedom of speech. The court’s thesis is here apposite, viz.:

In this ease, oí course, the respondent has yet to show that the decision not to renew his contract was, in fact, made in retaliation for his exercise of the constitutional right of free speech. The District Court foreclosed any opportunity to make this showing when it granted summary judgment. Hence, we cannot now hold that the Board of Regents’ action was invalid.
But we agree with the Court of Appeals that there is a genuine dispute as to “whether the college refused to renew the teaching contract on an impermissible basis — as a reprisal for the exercise of constitutionally protected rights.” 430 F. 2d, at 943. The respondent has alleged that his nonretention was based on his testimony before legislative eommitte,es and Ms other public statements critical of the Regents’ policies. And he has alleged that this public criticism was within the First and Fourteenth Amendment’s protection of freedom of speech. Plainly, these allegations present a bona fide constitutional claim. For this Court has held that a teacher’s public criticism of his superiors on matters of public concern may be constitutionally protected and may, therefore, be an impermissible basis for termination of Ms employment. Pickering v. Board of Education, supra. [408 U. S. at 598, 92 S. Ct. at 2698, 33 L. Ed. 2d at 578]

Here, Winston has made a sufficient showing that the decision by the respondent local board may have been prompted by her exercise of the right of speech protected under the First and Fourteenth Amendments. In this sense she presented a bona fide claim of constitutional stature and was, therefore, entitled to a full evidentiary hearing on this contention before the Commissioner of Education.

For the foregoing reasons the matter is reversed and remanded to the Commissioner of Education for further proceedings in accordance with this opinion. We do not pass upon the additional contention urged on this appeal that appellant should receive her normal salary under N. J. S. A. 18A:6-14. This claim was not raised at any time before the administrative agencies and we decline to consider it on this appeal. Cf. In re E. J. McGovern Dairy Products, Inc., 60 N. J. Super. 163, 168 (App. Div. 1959), aff’d o.b. 31 N. J. 601 (1960).

Jurisdiction is not retained.

       A request for clarification on this point elicited from the office of the Attorney General the representation that “the hearing officer also assisted the Commissioner of Education in the preparation of the Commissioner’s decision itself * * * In this case, the decision proposed by the hearing examiner is the same as that rendered by the Commissioner.”


author: Kentz, J. S. C.

text:
    THE STATE OF NEW JERSEY, v. LEONARD PETROVICH, JR., DEFENDANT.
    Superior Court of New Jersey Law Division — (Criminal)
    Decided August 28, 1973.

      Mr. Peter Locascio, Assistant Deputy Public Defender, for defendant (Mr. S. David Levy, Deputy Public Defender Union Region).

      Mr. Jerrold Kluger, Assistant Prosecutor, for plaintiff (Mr. Karl Asch, Union County Prosecutor; Mr. Robert D. Clarke on the brief).
   Kentz, J. S. C.

A motion to suppress evidence was filed in this case pursuant to R. 3 :5-7. During the hearing on the motion defendant took the stand and testified in his behalf. After having answered several questions on cross-examination, he asserted his Eifth Amendment privilege and refused to answer a pending question and any further questions. Defense counsel then interposed an objection, contending that the question was irrelevant and that any answers given to further questions might tend to incriminate defendant. The State argued that defendant had waived his Eifth Amendment privilege by testifying and requested that the court compel the accused to answer.

The issue now before the court is whether a defendant’s testimony in support of his motion to suppress evidence is admissible against him in a subsequent trial on the merits. It is well settled that one who testifies in his own behalf thereby waives his Fifth Amendment privilege against self-incrimination and must answer all relevant questions asked during cross-examination. See, e. g., Brown v. Walker, 161 U. S. 591, 597-598, 16 S. Ct. 644, 40 L. Ed. 819 (1896); Fitzpatrick v. United States, 178 U. S. 304, 314-316, 20 S. Ct. 944, 44 L. Ed. 1078 (1900); Brown v. United States, 356 U. S. 148, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958); McGautha v. California, 402 U. S. 183, 215, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). Whether compelled testimony that tends to incriminate a defendant, given at a hearing on a motion to suppress evidence, may thereafter be used at a subsequent trial to possibly convict the accused, appears to be unresolved in this State.

This controversy thus involves an obvious tension between two constitutionally guaranteed rights. Must one who asserts his Fourth Amendment rights risk waiver of his Fifth Amendment privilege in order to do so ? It is apparent from the outset that if an accused is forced to choose between testifying at a hearing on a motion to suppress and either remaining silent, or not contesting an alleged unlawful seizure of evidence, there will be an effective denial of one of our most precious constitutional safeguards. Such a decision would be directly contrary to the exclusionary rule as set out in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), and subsequent case law. The consequence of it would be an emphatic “chilling” of the assertion of alleged marginal Fourth Amendment violations.

The Supreme Court considered this issue in Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), wherein it was stated:

In order to effectuate the Fourth Amendment’s guarantee of freedom from unreasonable searches and seizures, this Court long ago conferred upon defendants in federal prosecutions the right, upon motion and proof, to have excluded from trial evidence which had been secured by means of an unlawful search and seizure. * * More recently, this Court has held that “the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments. * * Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
* * * It seems obvious that a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim. The likelihood of inhibition is greatest when the testimony is known to be admissible regardless of the outcome of the motion to suppress. * *
* * * The rule adopted by the Courts below does not merely impose, upon a defendant a condition which may deter him from asserting a Fourth Amendment objection * * * it imposes a condition of the kind to which this Court has always been peculiarly sensitive. For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him. Those courts which have allowed the admission of testimony given to establish standing have reasoned that there is no violation of the Fifth Amendment’s Self Incrimination Clause because the testimony was voluntary. As an abstract matter this may well be true. A defendant is “compelled” to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will forgo a benefit, and testimony is not always involuntary as a matter of law simply because it was given to obtain a benefit. However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit. When this assumption is applied to a situation in which the “benefit” to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case Garrett [the defendant] was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him on the issue of guilt unless he makes no objection, [at 389, 392-393, 88 S. Ct. at 974, 975-976]

In Simmons defendant admitted ownership of certain items of seized clothing in order to have the requisite standing to bring a motion to suppress. It was this admission of ownership that the Government then sought to utilize against Simmons at the trial on the merits. In the case at bar there is no dispute as to defendant’s right to bring the action since there is ample independent evidence of his ownership of the seized articles. However, the reasoning in Simmons has application to anything that an accused says at the preliminary hearing on a motion asserting that evidence has been seized unlawfully. Naturally, a defendant will not be permitted to commit perjury or to contradict his testimony at a later trial on the merits. See Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).

The notion that an accused should not be placed “between the rock and the whirlpool” in choosing which of several constitutional safeguards is more precious has been expressed in many other cases, including Garrity v. New Jersey, 385 U. S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). In that case appellant had been advised by the Attorney General's office that if he failed to answer questions he would be removed from public office. Garrity gave an incriminating statement that was subsequently used against Mm at trial. The New Jersey Supreme Court upheld his conviction. On appeal to the United States Supreme Court, Garrity’s conviction was reversed and the majority held that the statement in question was an involuntary one. The court, speaking through Mr. Justice Douglas, said:

The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” * * * [at 497, 87 S. Ct. at 618]

In Slochower v. Board of Education, 350 U. S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956), the court held that a school teacher could not be discharged merely because he had invoked the Fifth Amendment privilege against self-incrimination when questioned by a congressional committee. “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as an equivalent either to a confession of guilt or a conclusive presumption of perjury. * * *” (At 557, 76 S. Ct. at 641)

The same point has been made in challenges to parole revocations. In United States ex rel. Carioscia v. Meisner, 331 F. Supp. 635 (D. C. Ill. 1971), the court quoted from the opinion in Melson v. Sard, 131 U. S. App. D. C. 102, 402 F. 2d 653 (1968), as follows:

We feel that the parolee’s most significant handicap — the fear of self-incrimination can readily be eliminated. As the Supreme Court has recently recognized (in Simmons v. United States, supra) any self-incriminating statements made by an individual in order to protect his basic interests are far from voluntarily made.

In Melson v. Sard, supra, the court also stated:

* * * If a parolee is not given his full and free ability to testify on his own behalf and present his case against revocation, his right to a hearing before the Board would be meaningless. Furthermore his Fifth Amendment rights must not be conditioned “by the exaction of a price.” Accordingly, we hold that any self-incriminatory statements made in a parole revocation hearing shall not be used affirmatively against the parolee in any subsequent criminal proceeding, [at 655]

It is true that reservations as to the continuing validity of the court’s reasoning in the Simmons case were expressed in the majority opinion in McGautha v. California, supra. McGautha involved a challenge to the constitutionality of dealing with the issues of guilt and punishment at a single trial and also with the alleged violation of due process requirements in permitting a jury to recommend the death penalty without benefit of guidelines as to when such penalty should be imposed. Mr. Justice Harlan, writing for the majority in McGautha, stated:

The criminal process, like the rest of the legal system, is replete with situations requiring- “the making of difficult judgments.” * * * The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.

As has been amply demonstrated, it is my opinion that to compel an accused to choose between asserting his Fourth Amendment rights and Fifth Amendment privileges is to completely undermine the requisites of fair play and due process that have been established over the years as part of our system of “ordered liberty.” In addition, there are substantial questions as to the continuing validity of the majority opinion in McGautha inasmuch as the more recent case of Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), held that the death penalty was “cruel and unusual punishment” in violation of the Eighth Amendment and hence unconstitutional as applied to the defendants before that court in the particular combination of circumstances.

Accordingly, defendant in this case is ordered to answer all relevant questions addressed to him on cross-examination regarding his testimony on the motion to suppress evidence. However, any incriminating testimony is protected by the Fifth Amendment and is not admissible as substantive evidence against defendant at a subsequent trial on the merits.


author: Lynch, J. A. D.

text:
    RAMAC EXPLOSIVES, INC., PETITIONER-RESPONDENT, AND NEW JERSEY CRUSHED STONE ASSOCIATION, INC., INTERVENOR-RESPONDENT, v. DIRECTOR, DIVISION OF TAXATION, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1973
    Decided September 24, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Herbert K. Glickman, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Thomas R. Curtin argued the cause for petitioner-respondent (Messrs. Lafferly, Rowe, McMahon & McKeon, attorneys).

      Mr. Morris M. Schnitzer argued the cause for intervenor-respondent (Messrs. Schnitzer & Schnitzer, attorneys).
   The opinion of the court was delivered by

Lynch, J. A. D.

This is an appeal by the Director of the Division of Taxation from a judgment of the Division of Tax Appeals holding that sales of dynamite to stone quarries are exempted from the New Jersey Sales and Use Tax Act (N. J. S. A. 54 :32B—1 et seq.) pursuant to the exemption set forth in N. J. S. A. 54 :32B-8(t).

Respondent Ramac Explosives, Inc. was assessed by the Director for the amount of sales taxes it failed to collect upon its sales of dynamite to certain stone quarries. Ramac filed a petition with the Division of Tax Appeals which reversed the Director’s determination and held that the sales of dynamite by Ramac were exempted from the sales tax. A judgment was entered in favor of Ramac.

Meanwhile, intervenor-respondent New Jersey Crushed Stone Association, Inc., an organization comprised of stone quarries in New Jersey, had instituted a declaratory judgment action in the Chancery Division to determine whether explosives used in quarrying operations were exempted from the sales tax. The decision of the Division of Tax Appeals in favor of Ramac was rendered before the Association’s case proceeded to trial. Accordingly, the Association and the Director jointly moved that the Association be permitted to intervene in the pending appeal involving Ramac. The court granted the motion permitting the Association to intervene and, retaining jurisdiction, remanded the case to the Division of Tax Appeals in order that the Association could present additional evidence. Following the remand hearing, supplemental findings of fact and conclusions of law were rendered and filed. The holding that sales of dynamite to stone quarries were exempt was sustained. This appeal followed.

N. J. S. A. 54 :32B-8(t) allows exemption from retail sales taxation as to:

(t) Sales of materials, such as chemicals and catalysts, used to induce or cause a refining or chemical process, where such materials are an integral or essential part of the processing operation, hut do not become a component part of the finished product; » * *.

Concededly, within the meaning of that section, dynamite is a “material” and a “chemical.” As such it is an “integral or essential part” of blasting which is a “processing operation.” And dynamite does “not become a component part of the finished product.” There remains for determination the issue as to whether dynamite, in a quarry-blasting operation, is “used to induce or cause a refining or chemical process.”

The evidence is undisputed that dynamite does not produce a chemical effect upon the ledge rock which it dislodges in blasting. It follows, therefore, that dynamite does not induce or cause a “chemical process.” The finding of the judge of the Division of Tax Appeals to that effect, supported by credible evidence, must therefore stand.

There is left only the issue as to whether dynamite is used to induce or cause a “refining * * * process.” This, in turn, reduces the relevant question as to whether blasting in a stone quarry is a “refining process.”

To “refine” is “1. To reduce to a fine, unmixed or pure state; separate from extraneous matter * * *.” Webster’s Third New International Dictionary 1908 (1966). N. J. A. C. 18:24-4.2, adopted under the Sales and Use Tax Act, defines “'refining” as: “ “Refining’ means the making fine or pure or partially free from extraneous or undesirable matter.”

The Division of Tax Appeals judge found:

* * * in its natural state ledge rock is intermingled with soil, clay alteration, decomposed materials, tree roots and other materials. The use of explosives in blasting the ledge rock refines the rock formation l>y separating it from these impurities, thus refining the rock by improving its quality; second the blasting, coupled with mechanical crushing yields crushed stone, a refined version of ledge rock, for sale by the quarry operations.

Except for the use of the words “refines,” “refining” and “refined” in said quotation — which in our view “begs the question” — we adopt the substance of the judge’s findings. The evidence amply supports the finding that, in its natural state, ledge rock is intermingled with soil, clay, decomposed materials, tree roots and other materials, and that blasting separates the rock from these “impurities.” We would add the obvious, that blasting removes the stone from the ledge, and thus, within the definition concept, it “separate [s]” the stone from “extraneous matter.” Further, blasting reduces the ledge rock to a manageable and commercially useful size and quality so that the resulting stone may meet specifications established by various customers, such as the Department of Transportation for road building. In that sense, too, we regard blasting as a “refining” process just as many examples of “refining,” cited in Webster, supra, are processes used to prepare the product for the desired ultimate use.

We further consider that the language of N. J. S. A. 54 :32B-8(t) to the effect that the exempt materials must “not become a component part of the finished product” as significant in determining the legislative intent. We read the language as an attempt to avoid double taxation of (a) materials which are consumed in the blasting process (dynamite) and (b) the end product (stone) which, of course, is taxed upon sale but no longer contains that material. In our view, the pattern of the act is to tax only the end product of a process. Thus N. J. S. A. 54:32B-2(e) excludes from the definition of a “retail sale” subject to taxation a sale of tangible property which is a “component part of a product produced for sale by the purchaser,” or “where the property so sold becomes a physical component part of the property upon which [certain] services” subject to taxation under the act are performed. In those instances the legislative intent is expressed that only the end product, and not what “went into” its production, is subject to tax. We would apply a like legislative intent to N. J. S. A. 54 :32B-8(t) when applied to the sale of dynamite for use in producing stone as the end product in the blasting of a quarry.

The judgment of the Division of Tax Appeals is affirmed.

       “Refine: * * to free or cleanse from impurities (sugar) : to give a final mechanical treament to (paper stock) so as to put it in the best possible condition for the grade of paper being made: to prepare (pulp screenings) for manufacture into coarse paper: * * * to subject (raw sugar) to a series of processes (as defecation or earbonation, filtration through bone black or activated carbon, and crystallization) to produce white sugar * * Webster’s Third New International Dictionary 1908 (1966).


text:
    HERBERT CLARK AND JOAN CLARK, HIS WIFE, PLAINTIFFS-APPELLANTS, v. FOG CONTRACTING COMPANY, A NEW JERSEY CORPORATION AND TOWNSHIP OF FRANKLIN, A MUNICIPAL CORPORATION, DEFENDANTS-RESPONDENTS. TOWNSHIP OF FRANKLIN, A MUNICIPAL CORPORATION, THIRD-PARTY PLAINTIFF, v. TRAP ROCK INDUSTRIES, INC., THIRD-PARTY DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued September 11, 1973
    Decided September 24, 1973.

      Before Judges Kolovsky, Fritz and Crane.

      Seymour Gelzer, E. Brunswick, argued the cause for appellants (Iaria & Gelzer, E. Brunswick).

      Thomas R. O'Brien, Newark, argued the cause for respondent Township of Franklin (Gurry & Conlan, South Orange).

      Henry H. Rubenson, New Brunswick, argued the cause for respondent FOG Contracting Company.
   Per Curiam.

This is a negligence fall-down action. The matter was tried on the issue of liability only. At the end of the entire case a motion for an involuntary dismissal was granted with respect to defendant township. The jury returned a unanimous verdict of no cause for action as against the remaining defendant FOG Contracting Co. (FOG).

The issues raised on this appeal concern the propriety of the dismissal as to the township and the propriety of a ruling precluding plaintiffs’ expert from testifying. The third-party defendant Trap Rock Industries, Inc. has not participated in those appellate proceedings.

Our examina! ion of the record reveals no evidence to support plaintiffs’ claim against the township. The proofs do not show that the township violated any duty to plaintiff. Moreover, none of the other parties wore shown to be agents of the township.

During the course of discovery defendant FOG propounded interrogatories to plaintiff. Among them was a question seeking the names and addresses of expert witnesses and asking that plaintiff “annex true copies of all written reports rendered to yon by any such proposed experts.” Plaintiff listed the name of “Herman Rich, P. E., Livingston, N. J.” hut did not annex any written report. At the trial, when Rich was called as a witness the trial court sustained defendant’s objection to his testimony on the ground that no report had been furnished.

Plaintiff asserts that he never sought or received any written report from his expert because he intended to ask his opinion at the trial based upon the testimony to be elicited at the trial. He argues that the rules, R. 4 :10-2(d) and 4 :17-4(a), should not be construed to require the preparation and submission of a written report where none exists. However, plaintiffs’ counsel conceded at oral argument that he did in fact confer with the expert prior to trial and that the expert had indeed imparted to him the substance of what opinion he would express at the trial.

The argument overlooks the continuing obligation imposed by R. 4 :17-4(a) upon the party to whom such an interrogatory is addressed to supply the propounding party with the contents of subsequently received reports, whether written or oral. The certification attached to plaintiffs’ answers to interrogatories contained the following statement:

I hereby certify that the copies of the reports annexed hereto rendered by either treating physicians or proposed expert witnesses are exact copies of the entire report or reports rendered by them; that the existence of other reports of said doctors or experts, either written or oral, are unknown to me, and if such become later known or available, I shall serve them promptly on the propounding party.

The exclusion of testimony on the ground of failure to supply information sought in discovery is a discretionary matter for the trial court, bearing in mind the overriding objective of permitting the defaulting party his day in court. Reilly v. Spiegelhalter, 100 N. J. Super. 276 (App. Div. 1968). In this instance there was no reasonably available opportunity to permit plaintiff to remedy his default. The trial was already in progress and no forewarning of the expert’s testimony had been given defendant. Under these circumstances we cannot say that the action of the trial court amounted to a clear abuse of discretion.

Judgment affirmed.


author: Per Curiam. A. B. M.,

text:
    THE STATE OF NEW JERSEY IN THE INTEREST OF A. B. M., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 21, 1972
    Decided February 26, 1973.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mrs. Rosemary K. Reavey, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for respondent (Mr. Karl Asch, Union County Prosecutor, attorney).
   Per Curiam. A. B. M.,

age 15 (hereafter the defendant), appeals from an order adjudging him a juvenile delinquent. He was charged with being a participant, with one A. W., in the murder of one Edwardo Perez, in violation of N. J. S. A. 2A :113-1, and with conduct endangering his health, morals and general welfare, in violation of N. J. S. A. 2A :4-14(1) m.

Perez, while taking an evening walk on April 18, 1971, was set upon, assaulted and robbed. When found he was in a dazed condition, bleeding from the head, and his wallet and identification were missing. There was a pool of blood on the sidewalk near where he was found, and a bloody stick, similar in shape to a broom handle, was found nearby (the blood was still wet). When taken to the hospital he was discovered to be suffering from multiple skull fractures and lacerations of the scalp. Later a craniectomy was performed in an effort to reduce the pressure from a subdural hematoma which developed. His condition was complicated by the presence of a "stress” ulcer with attendant gastrointestinal bleeding. He died on April 29, 1971. The primary cause of death was stated to he "subdural hemorrhage, fractured skull due to trauma.” Secondary cause was "internal lesions and bleeding due to duodenal ulcer.” It was said that the latter condition was “in all probability” secondary to his brain damage.

To the extent here pertinent the court found, in substance, that defendant had intentionally participated (with A. W.) in an atrocious assault and battery upon the victim in the course of a robbery, and that the victim had died as the result of the injuries sustained during the commission of the atrocious assault and battery. He was committed to an indeterminate term at the Training School for Bojts at J'amesburg.

Defendant first contends that his oral confession was inadmissible because of Its unreliability. He argues that his subnormal mentality precluded a knowing and intelligent waiver of his constitutional rights, his interrogation was eon-ducted in disregard of due process and fundamental fairness, and his confession was involuntary.

Prior to the introduction of testimony as to defendant’s oral admission of guilt the trial judge conducted a voir dire hearing. At its conclusion he permitted evidence as to defendant’s statements, holding that the State had established beyond a reasonable doubt that the Miranda, warnings had been given and that there had been an intelligent and voluntary waiver of defendant’s rights thereunder. We find that the proofs support this conclusion.

The State adduced testimony indicating that after the victim’s death detectives, in the process of attempting to locate the suspect in another robbery, went to the house of A. W., also a juvenile. While they were there defendant came in. When during the questioning of A. W. the police made known their intention to take him to police headquarters, defendant elected to go along. On the way to police headquarters defendant was informed of his Miranda rights. At about 3 p.m., after the parties had arrived at police headquarters, O’Connell, another detective not connected with the investigation then under way, observed defendant and engaged in some small talk with him. In the process he asked defendant if he knew anything about the April 18 mugging of Perez — at the same time telling him that there was no need for him to say anything. Defendant’s reply was that “the other fellow” knew about it. Upon hearing this O’Connell obtained defendant’s home telephone number and attempted twice in defendant’s presence to reach his mother. When he was unsuccessful in doing so defendant was again reminded that he did not have to answer questions. Thereafter, when asked what he knew about the Perez incident, A. B. M. stated that he and A. W. had mugged Perez. He related that he had been visiting A. W. in Elizabeth on April 18, and at 8 or 8:30 p.m. he and A. W. had gone for a walk. When they turned onto Marshall Street and spotted an old man walking towards them A. W. said, “Let’s take him.” Defendant was the first to strike the victim, punching him in the face. 'Then A. W. struck him and he grabbed A. W. by his shirt. A. W. thereupon picked up a stick and hit the man on the head. A. W. then took his wallet and they ran back to A.W.’s house. The wallet was found to contain a $10 bill, which defendant changed at a bar across from A. W.’s house. The3r split the monejr between them and defendant took the bus to his home in Linden.

About ail hour later O’Connell and another detective accompanied defendant as he retraced the route he asserted he and A. W. had taken during and after the mugging. After this defendant was brought back to headquarters and, the police still having been unable to locate his mother, detectives were sent to trjr to find her. It was not until about 6 p.m. that she was located and arrived at police headquarters. In the meantime defendant had been provided with food and cigarettes, and was detained in the office of the captain of detectives.

When defendant’s mother arrived she was advised of her son’s constitutional rights and also that the victim had passed away. After this defendant repeated in her presence that he and A. W. had assaulted and robbed Perez. She agreed to allow him to give a written confession, but later withdrew her permission. When-she requested an attorney for her son the questioning ceased. This testimony in behalf of the State was contradicted in many respects by both defendant and his mother.

Two psychologists testified for the defendant that he had an I. Q. of 69 on one test and 66 on another, and was functioning on a mentally defective level. A psychiatrist called by the State testified that defendant could understand the Miranda warnings and was capable of giving a voluntary confession. The court found that it had been established beyond a reasonable doubt that the Miranda warnings had been given and that there had been an intelligent, voluntary waiver, that defendant had been treated with fundamental fairness by the police during his questioning, that his mother had provided moral support, that his free will had not been overcome, and that his confession was sufficiently corroborated.

We hold that the admission into evidence of defendant’s oral inculpatory statement was not error. State In Interest of R. W., 115 N. J. Super. 286, 295 (App. Div. 1971), aff’d o. b. 61 N. J. 118 (1972). In that case the oral confession of a 12-year-old boy with an I. Q. of 72 was held admissible even though his parents were not present, all required constitutional warnings were not given, and the interrogation took place in the early morning hours. In R. W., in response to the contentions that the juvenile’s parents should have been present and that the juvenile’s age and mentality prevented him from understanding the nature of the Miranda warnings, we held:

If the parents cannot or will not appear, the warnings should be given anyway, as a practical matter, against the possibility that the youth might understand and act upon them. But if the child is not old enough to understand and waive, and the parents cannot be found or cannot or will not attend, we hold that the questioning may go forward, even without the Miranda warnings, provided it is conducted with the utmost fairness, without force or other improper influence, mental or physical, and in accordance with the highest standdards of due process and fundamental fairness. (115 N. J. Super. at 296)

Here, as in R. W., the record reveals that there was a bona fide effort by the police to locate defendant’s mother, that when she could not be reached the questioning continued with defendant’s consent, and that it was conducted with the utmost fairness without force or other improper influence, mental or physical, in compliance with the highest standards of due process and fundamental fairness. State in Interest of Carlo, 48 N. J. 224 (1966), on which defendant principally relies, is factually distinguishable, as is also State in Interest of S. H., 61 N. J. 108 (1972).

By his second point defendant urges that he should not have been adjudicated a delinquent based upon the charge of homicide because at the prior hearing of a similar charge against A. W. the latter had been found guilty of the atrocious assault and battery and the robbery, but not guilty of the homicide. Ho urges that he was charged, tried and adjudicated only as an aider and abettor and that since his principal was found not guilty of the murder he could not have aided and abetted in its commission. We find the point to he without merit. Its lack of merit stems from the fact that the complaint charged defendant as a principal with murder during the commission of a felony in violation of N. J. S. A. 2A:113-1. Under onr law two persons who conspire to commit a crime and participate in some way in its commission are joint principals. State v. Cooper, 10 N. J. 532, 568 (1952). Here defendant’s offense fitted that description. He and A. W. saw the victim, agreed to rob him, and did so, defendant striking the first blow. While defendant could have been punished as a principal even had he only aided and abetted A. W. in the perpetration of the assault and subsequent robbery, the trial judge based his finding of guilt upon defendant’s “intentional participation” and specifically found that defendant “did commit an assault and battery on the victim” which was the proximate cause of the latter’s death. The fact that another judge, before whom A. W. was tried, was not convinced beyond a reasonable doubt that the death of the victim proximately resulted from the atrocious assault and battery did not mandate a similar finding by the trial judge hero. See State v. Mondrosch, 108 N. J. Super. 1 (App. Div. 1969), certif. den. 55 N. J. 600 (1970).

We find defendant’s third point to be without merit. There was adequate compliance with the requirement of corroboration laid down in State v. Lucas, 30 N. J. 37, 56 (1959). Defendant’s oral admissions contained details of the offense, many of which were verified through other testimony. The facts here are distinguishable from those set forth in State In Interest of B. D., 110 N. J. Super. 585 (App. Div. 1969), aff’d o. b. 56 N. J. 325 (1970), in that here no details of the incident had been made known to defendant prior to his statement, and there was neither repetitious questioning, nor an inconsistent autopsy report, nor any serious doubts on its face as to the voluntariness or trustworthiness of defendant’s oral statement. There was totally independent proof outside the statement, sufficient to sustain a finding that there had been an atrocious assault and battery upon the victim and that he had been robbed.

Defendant’s final point, that the proofs did not establish that the death of the victim was the proximate result of the atrocious assault and battery, is without substance. The testimony of Dr. Ambrose, the attending physician, and Dr. Aronberg, the pathologist, which was undisputed, fully supports the finding that the victim did in fact die as a proximate result of his injuries. While he might have survived had his injuries not have had superimposed upon them the intestinal bleeding from the “stress” ulcer which manifested itself, there was medical proof adequate to support the conclusion beyond a reasonable doubt that this condition was proximately brought about by the victim’s head injuries.

Affirmed.