author: Joelson, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MARC JAHR, DEFENDANT.
    Superior Court of New Jersey Law Division — (Criminal)
    Argued March 5, 1971
    Decided March 16, 1971.

      Mr. Joseph B. J. Courley, Passaic County Prosecutor argued the motion for the State.

      Mr. Edward Carl Broege argued the motion for the Defendant.
   Joelson, J. S. C.

Defendant, who has been indicted for violation of N. J. S. A. 2A:148 — 16, moves to have the indictment dismissed on the ground that the statute is invalid.

V. J. 8. A. 2A:148 — 16 provides:

Any person who utters, sells, gives away, circulates, distributes or exhibits to the view of another, or possesses with intent to utter, sell, give away, circulate, distribute or exhibit to the view of another: a. Any book, speech, article, circular or pamphlet, made or produced in any manner or by any means set out and made legible, in any language, which in any way, in any part thereof, incites, counsels, promotes, advocates, or encourages the subversion or destruction by force of the government of the United States or of this state ; or
b. Any constitution, by-laws, rules or record of the proceedings of any organization, association, society, order, club or meeting of 3 or more persons, made or produced in any manner or by any means set out and made legible, in any language, which in any way, in any part thereof, incites, counsels, promotes, advocates or encourages the subversion or destruction by force of the government of the United States or of this state; or
c. Any picture, photograph, emblem, representation, sign or token, made or produced in any manner or by any means set out and made legible, which in any way incites, counsels, promotes, advocates, encourages or symbolizes the subversion or destruction by force of the government of the United States or of this state —

Is guilty of a high misdemeanor.

The first count of the indictment charged that

defendant did possess with intent to utter, give away, circulate and distribute to divers persons there assembled, the names of whom are unknown, a certain circular or pamphlet entitled ‘Rising Up in Anger’, dated Summer, 1970, certain parts of which, incite, counsel, promote, advocate and encourage, subversion and destruction by force of the government of the United States and of this State, contrary to the provisions of N. J. S. 2A :148-16.

The. second count charges that at the same time and place specified in the first count, he

did possess with intent to utter, give away, circulate and distribute to divers persons there assembled, the names of whom are unknown, a certain pamphlet or circular entitled, ‘Rising Up in Anger’, dated Summer, 1970, wherein, by means set out and made legible, were set out certain pictures, photographs, representations, signs and tokens which incite, counsel, promote, advocate, encourage and symbolize the subversion and destruction by force of the government of the United States and of this State, contrary to the provisions of N. J. S. 2A:148-16.

The third count charges that at said time and place, he

did utter, give away, circulate and distribute to divers persons there assembled, the names of whom are unknown, a certain circular or pamphlet entitled ‘Rising Up in Anger’, dated Summer, 1970, eirtain parts of which incite, counsel, promote, advocate and encourage subversion and destruction by force of the government of the United States and of this State, contrary to the provisions of N. J. S. 2 A: 148-16.

In addition to assorting that the statute in question is unconstitutional, defendant has argued that prosecution under it is barred by the preemption doctrine of Pennsylvania v. Nelson, 350 U. S. 497, 76 S. Ct. 477, 100 L. Ed. 640 (1956). That case clearly held that when the Congress enacted the so-called Smith Act, 18 U. S. C. A. § 2385, it preempted the field as to sedition legislation. However, in Uphaus v. Wyman, 360 U. S. 72, 79 S. Ct. 1040, 3 L. Ed. 2d 1090 (1958), the United States Supreme Court appears to veer away from the broad holding of Pennsylvania v. Nelson without expressly overrruling it.

Thus, in Uphaus v. Wyman the Court interpreted Pennsylvania v. Nelson as holding that a state could proceed with prosecutions for sedition “against the State itself.” Furthermore, Uphaus seized upon some language in Pennsylvania v. Nelson to stress the fact that federal preemption by reason of the Smith Act applies only to a state act “which proscribed the same conduct

The statute now under consideration includes references to the subversion or destruction by force of the government of the United States and “this State,” and the indictment similarly refers to “this State” as well as the government of the United States. Moreover, although the general thrust of the Smith Act and N. J. S. A. 2A:148 — 16 might be generally considered to have elements in common, the conduct proscribed is considerably different.

Without attempting a detailed analysis of the variations in the two laws, it can be pointed out that whereas Smith Act, subd. 2(a)(2), 18 U. S. C. A. § 2385, specifically requires an “intent to cause the overthrow or destruction of any such government” on the part of the circulator or distributor of specified written or printed matter, N. J. S. A. 2A:148-16 is silent as to the requirement of such intent. The federal statute does not deal with pictures, photographs, emblems, representations, signs or tokens, but the New Jersey statute does. The federal law mentions “overthrow or destruction” only, but the State statute deals also with “subversion.” Lastly, the federal law does not deal with possession of literature, but the state law does forbid possession under certain circumstances.

If Pennsylvania v. Nelson had not been diluted by Uphaus v. Wyman, this court would consider that the preemption doctrine barred the enforcement by state authorities of N. J. S. A. 2A:148-16 dealing with the same general subject matter. However, in view of the doubt presently existing, this court will address itself to the question of the validity of N. J. S. A. 2A :148 — 16, and it is the opinion of the court that the statute must be declared invalid.

Before engaging in an analysis of the constitutional questions involved, it should be emphasized that we are dealing here with a statute which makes it a crime to distribute or exhibit certain material, and not with a statute which makes unlawful the advocating of the subversion or violent destruction of the government of the United States ox this State, or which makes unlawful the attempt to incite such subversion or destruction. There is a statute of the State of New Jersey, N. J. S. A. 2A:148-13, which addresses itself to such activity, but the State has not brought in an indictment thereunder. Since N. J. S. A. 2A:148-13 is not invoked in the indictment, this Court will not undertake to determine the constitutionality of that statute. However, it has been unheld as constitutional in State v. Tachin, 92 N. J. L. 269 (Sup. Ct. 1919), aff’d 93 N. J. L. 485 (E. & A. 1919). There seems to be no doubt that, if properly framed, a law may make unlawful the advocacy of violent overthrow of government. Dennis v. United States, 341 U. S. 494, 95 L. Ed. 1137, 71 S. Ct. 857 (1951). As has been said by the United States Supreme Court: “While the Constitution protects against invasions of individual rights, it is not a suicide pact.” Kennedy v. Mendoza-Martinez, 372 U. S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). However, although the people of a democracy cannot abuse freedom of speech and press, neither can their government abuse its right to regulate those freedoms. It is the opinion of this court that in N. J. S. A. 2A:148-16 the government has done so.

A careful reading of that statute reveals that its initial clause is over-broad, and that the ensuing subsections are vague. Its over-breadth is such that it apparently forbids conduct which cannot constitutionally be forbidden under the First and Fourteenth Amendments of the United States Constitution, and its vagueness is such that it also leaves to conjecture all the things which are prohibited.

As to the over-broad aspects of the statute, the court refers to the fact that it does not require any intent or even any knowledge as to contents on the part of the person who utters, sells, gives away, circulates, distributes or exhibits proscribed material to the view of another. The court will deal herein with the possibility that the requirement of an intent can be inferred or supplied, but it is clear that the only mention of intent in the statute itself is with reference to possession “with intent to utter, sell, give away, circulate, distribute or exhibit to the view of another.” Thus, absent any requirement of “intent to cause the overthrow of any such government,” as is found in the Smith Act, subsection 2(a)(2), 18 U. S. C. A. § 2385 dealing with the distribution or circulation of prohibited material, and absent any requirement of knowledge as is found in 2(a)(3), the New Jersey law is a blunderbuss. It would, regardless of knowledge or intent, make a felon of the librarian who distributes a revolutionary essay and of the newsdealer who distributes an edition of the New 7orle Times carrying the wild words of an exponent of the New Left.

As to the possibility of the court inferring or implying the necessity of an intent, it is true that in Dennis v. United States, supra, the United States Supreme Court held that with regard to Smith Act, subsec. 2(a)(3), 18 U. S. C. A. § 2385, “the structure and purpose of the statute demand the inclusion of intent as an element of the crime.” However, that section makes it unlawful “to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or afBliate with, any such society, group, or assembly of persons, knowing the purposes thereof.” Thus, since that section of the federal law deals with organizing a group or becoming a member of that group with knowledge of its purposes, the Supreme Court said: “Certainly those who recruit and combine for the purpose of advocating overthrow intend to bring about that overthrow. We hold that the statute requires as an essential element of the crime proof of the intent of those who are charged with its violation to overthrow the Government by force and violence.” This is a far cry from the type of statute presently under consideration.

As to the element of intent, it is also significant that nowhere in N. J. S. A. 2A:148~16 or in the immediately preceding statutes which were enacted along with it (N. J. S. A. 2A:148-13 through 15) is there any requirement that action must be knowing or wilful. This is by way of contrast with Smith Act, subsee. 2(a)(1), 18 U. S. C. A. § 2385, which contains the words “knowingly or wilfully,” and subsec. 2(a)(2), which contains the words “with intent to cause the overthrow or destruction of any such government.” As to the essentiality of requiring the words “wilful,” “wilfully” or their equivalents in a criminal statute, see Screws v. United States, 325 U. S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1944).

The best answer to any suggestion that the court should supply the requirement of wilfullness or intent is to be found in the language used in Aptheker v. Secretary of State, 378 U. S. 500, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964) in which the court warns against “judicially rewriting” a statute. The court then stated:

“To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects.”

Furthermore, there is good reason to believe that in drawing N. J. S. A. 2A:148-16 in 1920, the New Jersey Legislature deliberately failed to require the element of intent. In order to develop this point, it will be necessary to refer to the fact that as early as 1902, the Legislature enacted a series of laws aimed at anarchists or persons who advocate the subversion or destruction by force “of any and all government.” These laws are to be found as N. J. S. A. 2A :148 —7 through 10. Subsequently, in 1918 and again in 1920, the Legislature addressed itself to the advocacy of the subversion or destruction by force “of the government of the United States or of this State.” These 1918 and 1920 statutes are either closely parallel to or identical with the anarchy statutes of 1902, except in one vitally important aspect, which will be dealt with shortly.

Thus, N. J. S. A. 2A:148-7, dealing with advocating anarchy, is almost word-for-word identical with N. J. S. A. 2A :148-13, which was passed sixteen years later and dealt with advocating subversion or destruction of the government of the United States or this State. Likewise, N. J. 8. A. 2A:148 — 8, dealing with becoming a member of an anarchistic society, is substantially the same as N. J. 8. A. 2A :148-14, which covers the same field as to becoming a member of a society advocating subversion or overthrow of the government of the United States or of this State. However, when we come to the subject of the circulation of printed matter, the difference is great between the earlier enactment covering anarchy and the later covering subversion or destruction of the government of the United States or of this State. Not only does the later statute, N. J. S. A. 2A:148-16, add the words “in any way” when proscribing printed matter or representations advocating the subversion or violent overthrow of government, but it also deletes the requirement of intent which was an integral part of N. J. 8. A. 2A:148-9, its counterpart as to literature advocating the overthrow of any and all government.

N. J. S. A. 2A :148-9, enacted in 1902, forbade circulation or distribution “with intent to incite, promote, or encourage hostility or opposition to, or the subversion or destruction of any and all government.” (Italics supplied). N. J. S. A. 2A :148-16, enacted in 1920, is significantly silent as to the need for intent. Can this be mere oversight? The court thinks not in view of the fact that the other provisions of the later statutes so closely repeat those of the earlier. This conclusion is bolstered by the fact that in 1919, when enacting N. J. S. A. 2A :148-20 which made it a crime to display certain flags, ensigns or signs, the Legislature once more specifically provided that it must be done “for the purpose of inciting, promoting or encouraging hostility or opposition to or subversion or destruction of any and all government.”

It has often been held that the Legislature is presumed to be aware of its own enactments, and that subsequent laws are made with knowledge of previous ones. Wilson v. Robert A. Stretch, Inc., 44 N. J. Super. 52 (Ch. Div. 1957); Eckert v. N. J. State Highway Department, 1 N. J. 474 (1949); Goldberg & Co. v. Division of Employment Security, 21 N. J. 107 (1956). In United States v. C. I. O., 335 U. S. 106, 68 S. Ct. 1349, 92 L. Ed. 1849 (1948) the court said: “Remedial laws are to be interpreted in the light of previous experience and prior enactments.”

Yet, even if this court were to attempt to resuscitate N. J. S. A. 2A :148-16 by attempting to read into it the requirement of wilfullness or intent, the enactment must nevertheless succumb to the ailment of vagueness as to many of its provisions. Eor in subsections (a), (b) and (c) it fairly founders in a sea of ambiguity.

As to vagueness, first let us deal with subsec. (c) of N. J. S. A. 2A :148-16, which makes it a crime to distribute or exhibit or to possess with intent to do so “any picture, photograph, emblem, representation, sign or token * * * ydiich in any way incites, counsels, promotes, advocates, encourages or symbolizes the subversion or destruction by force of the government of the United States or of this State.” It should be noted that the indictment specifically charges defendant with violation of this subsection. When the court asked the prosecutor at the oral argument of this motion what photograph or representation was the basis for the indictment under subsection (c), he failed or respectfully declined to specify, evidently on the theory that the motion then being argued was addressed to the statute generally rather than the indictment specifically. The court, however, is at a loss to determine just what is covered by subsection (c). Is it a swastika, a hammer and sickle, a clenched fist, a picture of Fidel Castro? Or is it, perhaps, a Confederate flag?

Furthermore, some difficulty is presented by the use of the word “subversion” in N. J. S. A. 2A:148-16. This word is not contained in the Smith Act, 18 U. S. C. A. § 2385, which deals only with “the overthrowing or destroying of any government in the United States by force or violence.” Since N. J. S. A. 2A:148:16 refers to “the subversion or destruction by force of the government,” it is unclear whether the element of force is contemplated by the New Jersey law. Recourse to the dictionary casts strong doubt as to whether force or violence is an element of subversion. Webster’s New International Dictionary (2d ed., unbridged, 1951).

Nor can the court overlook the phrase “in any way” that is repeated in each of the subsections in the context of “which in any way, in any part thereof, incites, counsels, promotes, advocates or encourages the subversion or destruction by force of the government of this State.” This is a most unfortunate phrase in a criminal statute where precision is a requisite, and even more unfortunate in a statute dealing -with freedom of speech and press. What does it mean? Gan it refer to a leaflet or printed speech bitterly castigating rat-infested slums? Might not this in some way promote or encourage subversion of government in the mind of the reader? Certainly, this is a strained interpretation, but the mere fact that it can be considered highlights the inadequacy of the statute.

Por it is well settled that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926). See also, Lanzelta v. New Jersey, 306 U. S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939); Ashton v. Kentucky, 384 U. S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469 (1966). Moreover, as already mentioned, the requirements of precision are all the more severe in dealing with legislation inhibiting free speech and free press. In N. A. A. C. P. v. Button, 371 U. S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963), we find the following:

The objectionable quality of vagueness and over-breadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. * *' * These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. * * *
* r * If there is an internal tension between proscription and protection in the statute, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights. Broad prophylactic rules in the area of free expression are suspect. * * * Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.

Likewise, in Keyishian v. Board of Regents of New York, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), we find this language:

When one must guess what conduct or utterance may lose him his position, one necessarily will “steer far wider of the unlawful zone. * * *” Speiser v. Randall, 357 U. S. 513, 526, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460. * * * The danger of that chilling effect upon the exereise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed.

See also, State v. Klapprott, 127 N. J. L. 395 (Sup. Ct. 1941) in which the court struck down a New Jersey statute for vagueness, saying that “the Criminal Code must be definite and informative so that there may be no doubt in the mind of the citizenry that the interdicted act or conduct is illicit.”

Similarly, when dealing with cases involving attempts to limit or regulate speech or press, the courts have ruled that the usual presumption in favor of the validity of a statute is replaced by a contrary presumption. Listing a long line of cases to that effect, the court stated in Bantam Books v. Sullivan, 372 U. S. 58, 71, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963): “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”

In arguing the constitutionality of the statute in question, the State has leaned heavily on Gitlow v. N. Y., 268 U. S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1923). Although this court is of the opinion that the Citlow case is only tangentially on point, if at all, the. court finds Gitlow no longer to be the prevailing law. In that case, which upheld a New York law dealing with criminal anarchy, there was a dissent by Justices Holmes and Brandeis which stressed the “clear and present danger” doctrine. Then, in Whitney v. California, 274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927), the court upheld a California statute dealing with criminal syndicalism. In doing so, it relied heavily on Gitloio, supra.

However, in 1951, Dennis v. United States, supra, stated: “Although no case subsequent to Whitney and Gitlow has expressly over-ruled the majority opinions in those cases, there is little doubt that subsequent opinions, have inclined towards the Holmes-Brandeis rationale.”

Finally, in 1969 our highest court expressly over-ruled Whitney, supra, which had been grounded upon Gitlow, supra. In Brandenburg v. Ohio, 395 U. S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), the court overturned the Ohio criminal syndicalism statute. Eeferring to the Whitney case involving a similar California act, the court said that in Whitney it had previously held that “without more, ‘advocating' violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it." It then went on to formalize a deeply significant change in direction by saying:

But Whitney lias been thoroughly discredited by later decisions. See Dennis v. United States. * * * These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. * * *
# * # sfc :¡s }¡: *
Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

The State, of course, is far from powerless in dealing with persons who> riot or incite to riot. The very first law in our criminal statute books is N. J. S. A. 2A:85-1, which makes “affrays, riots, routs and unlawful assemblies" a crime. Furthermore, we have N. J. S. A. 2A:85 — 14, which provides that “any person who aids, abets, counsels, commands, induces or procures another to commit a crime is guilty as a principal." Although that statute deals with crimes actually committed or attempted, we have also N. J. S. A. 2A:98-1, which constitutes the conspiracy to commit a crime to be a crime in and of itself. Then, too, on the federal level we have the Smith Act, 18 U. S. C. A. § 2385, referred to hereinabove, and also 18 U. S. C. A. § 2101, which makes it a crime to travel interstate or use interstate facilities such as a telephone for the incitement of a riot.

In summary, it is the opinion of this court that the statute under consideration is so broad and ambiguous in failing to inform the. public specifically as to what type of written or printed material is forbidden, that caution would dictate a far-reaching restraint in the exercise of free circulation of controversial material. The danger in such a law is evident. The grim history of our tortured century should teach us that a free nation cannot be destroyed by a book, but that a nation where the safest course of action is book burning is no longer entirely a free nation.

There is a certain irony in the fact that those who look avidly towards the fall of our government are not hesitant to seek the protection of its courts. In so doing, they afford the opportunity for the shallowness of their views to be demonstrated. For a government which extends the safeguards of its Constitution to all its people — even to those who despise that government — exposes the poverty of thought and the bankruptcy of intellect of its detractors. Thus, does it make the best and most effective answer to them. A good government oí a democracy which enjoys and deserves the confidence of its people need not resort to the panic of unconstitutional legislation because of the shrill invective of those who lack the wisdom or stamina to strive for responsible improvement and change.

In view of all the foregoing, it is the opinion of the court that N. J. S. A. 2A: 148-16 is invalid, and that the indictment based thereon must therefore be dismissed.


source: Caselaw Access Project

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

license: Public Domain

text:
    IN THE MATTER OF THE APPLICATION OF THE MONT-CLAIR SAVINGS BANK FOR APPROVAL OF A BRANCH OFFICE AT 508 POMPTON AVENUE, CEDAR GROVE TOWNSHIP, ESSEX COUNTY, IN THE FIRST BANKING DISTRICT OF NEW JERSEY.
    Superior Court of New Jersey Appellate Division
    Argued March 2, 1971
    Decided March 17, 1971.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. Fred G. Stickel, III, argued the cause for appellant Cedar Grove Savings and Loan Association (Messrs. Stickel, Kain and Stickel, attorneys).

      Mr. Joseph O. Glavin, Jr., argued the cause for respondent Cedar Grove State Bank.

      Mr. Irwin I. Kimmelman argued the cause for respondent Montclair Savings Bank (Messrs. Hannoch, Weisman, Stern & Bosser, attorneys).

      Mr. T. Robert Zochowslci argued the cause for the Commissioner of Banking (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

On March 17, 1970 the Commissioner of Banking of the State of New Jersey approved the application of the Montclair Savings Bank for a branch office in Cedar Grove Township.

Cedar Grove Savings & Loan Association and Cedar Grove State Bank (a commercial bank), objectors to the application, have taken this appeal from the decision and order of the Commissioner of Banking. They contend that (1) the Commissioner’s decision is not supported by “substantial evidence;” (2) the decision is “arbitrary, capricious and unreasonable;” (3) the decision is “based partly on evidence dehors the record and, therefore, should be set aside,” and (4) the “home-office protection” provision of N. J. S. A. 17:9A-19(B) (3) was “incorrectly interpreted” by the Commissioner and such interpretation was “contrary to the spirit and intent of the Legislature.”

I

Points 1 and 2 are substantially the same and will be treated together. Both are governed by the same basic legal principles.

It is not the function of the appellate tribunal to substitute its independent judgment for that of the Commissioner. The scope of review is limited to determining whether, in the light of the nature of the matter before him and the questions presented, the Commissioner has made adequate basic findings of fact which are supported by the evidence and which iu turn support his ultimate conclusions and final determination. In re Application of State Bank of Plainfield, 61 N. J. Super. 150, 158 (App. Div. 1960).

Otherwise stated,

The scope of the appellate review of administrative orders is generally limited to determining whether the factual findings are supported by substantial evidence. * * * The appellate court has the power and duty to assay the facts, but only to determine whether the evidence before the administrative body furnished a reasonable basis for its factual conclusions and action. In re Application of Millburn-Short Hills Bank, 59 N. J. Super. 470, 473-474 (App. Div. 1959).
Where the record discloses substantial evidence to support factual findings of the administrative body, a presumption of reasonableness attaches to its findings. TIM.

See, too, Essential S & L. Ass’n v. Howell, 105 N. J. Super. 424, 432-433 (App. Div. 1969).

We have exercised our power and duty to assay the facts. The record discloses substantial evidence to support the factual findings of the Commissioner, which in turn support his ultimate conclusions and final determination. The decision is not arbitrary, capricious and unreasonable. The establishment of this branch office for a savings bank in Cedar Grove is in accord with the statutory requirements, N. J. S. A. 17:9A-20. The Commissioner properly determined that the general economy of the area and the reasonable potential were such that there was room for this further branch bank without causing excessive competition with rea] harm to any institution or unduly affecting the banking structure at large. Cf. In re Application of Howard Savings Institution of Newark, 32 N. J. 29 (1960).

II

We next examine the objectors’ claim that the decision is “based partly on evidence dehors the record and, therefore, should be set aside.”

The reference is to the following comment by the hearing officer in his report and recommendation, dated January 29, 1970:

Dr. Blink’s approach utilized the increment in savings of 1968 over 1967 to determine the average per family savings increment. This, too, appears to be a valid method. Thus he contends that commercial banks enjoyed a $200 million increment, savings banks $165 million, and savings and loan associations, $2S1 million. However, for some inexplicable reason, Dr. Blink failed to include the statistics for national banks and federal savings and loan associations in his statistical analysis. Thus, in the same time period, savings deposits in national banks increased in excess of $350 million, and deposits in federal savings and loan associations increased by some $80 million. Thus, rather than a total increase in savings in the time period of $650 million, the correct figure is in excess of $1 billion. (And, were 1969 figures available, they would apparently indicate a much greater growth.) Thus, rather than Dr. Blink’s estimate of a $415 or $420 dollar average per family increment in savings, the appropriate amount is approximately $666. Based on the 3500 families residing in Dr. Blink’s trade area, incremental savings would total $2,331,000. Based on what I have previously found to be the appropriate trade area, which area contains some 4800 families, the figure would be $3,196,800. [Emphasis added]

In making the italicized statement, the hearing officer did not indicate the source of this information.

There was nothing improper in the hearing officer’s commenting critically on Dr. Elink’s failure to include in his figures the statistics for savings deposits in national banks and deposits in federal savings and loan associations. Truly, there was “some inexplicable reason” for this failure. Dr. Elink’s estimate of $415 or $420 per family increment in savings was not validly grounded, based as it was without consideration of the statistics of savings accounts in national banks and federal savings and loan associations. The “potential” for savings in the area was the point in issue.

An administrative agency, such as the State Department of Banking, “has full latitude to avail itself on the wealth of general information and expert knowledge in the performance of its day-to-day' administrative activities.” Pennsylvania Railroad Co. v. Dept. of Public Utilities, 14 N. J. 411, 427 (1954). “By taking appropriate official notice, making it a part of the hearing record, and affording fair opportunity of refutation, the board may adequately protect both the public and private interests concerned.” Ibid.

It would have been better for the Department of Banking to add to the statistics set forth in the record the source of that information. But the objectors have not challenged the accuracy of these figures. Nor have they shown that they have been prejudiced thereby. The use of these statistics was essentially to negate or weaken Dr. Flink’s basis for his opinion as to deposit potential. There was ample other proof to support the fact findings and conclusions as to this aspect of the ease. The evidence for the ultimate decision on this point came from Mr. Florin’s economic feasibility study (Exhibit D-7) and from the testimony of Clarence R. Sandberg, vice-president of the Montclair Savings Bank.

Accordingly, we find no valid basis for reversal on this ground.

Ill

We consider finally the contention by the objectors that the “home-office protection” provision of N. J. 8. A. 17:9A-19 (B) (3) was incorrectly interpreted by the Commissioner, and such interpretation was contrary to the spirit and intent of the Legislature. We note at this point some pertinent facts.

On July 16, 1969 Montclair Savings Bank, a state-chartered mutual savings bank, whose home office is in Montclair, applied to the then Department of Banking and Insurance for approval to open a branch at 508 Pompton Avenue, Cedar Grove, Essex County, New Jersey. Accompanying and supporting the application was an extensive economic feasibility study prepared by Francis A. Florin, a former top official of the New York Department of Banking and Insurance with many years of experience in the area of branch bank applications.

At the time of the filing of Montclair’s application on July 16, 1969 there was then pending before the Commissioner an application by Cedar Grove State Bank, one of the objectors and appellants herein, for approval of a charter for a state bank to be located in Cedar Grove. This would be for a new bank with home office in Cedar Grove, as distinguished from Montclair’s proposed branch bank in Cedar Grove. The other objector and appellant, Cedar Grove Savings and Loan Association, was already in existence and had been since 1913, with its principal office at 579 Pompton Avenue, in Cedar Grove, a few hundred feet north of Montclair’s proposed site.

By letter dated August 7, 1969 from the attorney for Cedar Grove Savings and Loan Association to the Commissioner of the Department of Banking and Insurance, confirming a telegram from the attorney to the Commissioner requesting a hearing on Montclair’s application, a hearing was requested. Such a hearing was held on November 10, 13 and December 5, 1969. Meanwhile, the Commissioner approved conditionally the charter application of Cedar Grove State Bank on the morning of November 13, 1969. Counsel for this newly approved bank thereupon appeared at the hearing then in progress to announce his presence and that he might later object based upon the "home office protection” provision.

When the Commissioner granted approval on March 17, 1970 to Montclair Savings Bank to open its branch in Cedar Grove, the Cedar Grove State Bank had not yet opened its doors for business; had not yet received its certificate of authority to do business; had not yet had approval of its top management, and had not become a member of the Federal Deposit Insurance Corporation. All of these uncompleted steps before it can actually commence business remain uncompleted, so far as we are aware.

L. 1968, o. 415, § 1, approved January 17, 1969, became effective July 17, 1969. It is also known as N. J. S. A. 17:9A-19(B) (3). It provides:

No bank or savings bank shall establish or maintain a branch ofliee which is located outside the municipality in which it maintains its principal office; except that a bank or savings bank may establish and maintain a branch office or offices anywhere in the same banking district as that in which it maintains its principal office. * * *
(3) when each proposed branch will be established in a municipality in which no banking institution has its principal office * * *.

In substance the question is: Did Cedar Grove State Bank have its principal office in Cedar Grove so as to preclude Montclair Savings Bank from having a branch office in that municipality ?

There is no doubt that Cedar Grove State Bank was not open for business when the branch application of Montclair was approved. In Suburban Trust Company v. National Bank of Westfield, 222 F. Supp. 269 (D. C. N. J. 1963), Judge Wortendyke held that a bank was not barred from opening a branch in a municipality merely because another bank had received branch appi’oval first. As he expressed it:

[A] bank “has” a branch in a municipality, for the purpose of determining the right of another bank to open a branch there, only when it has a branch in operation and not when it merely has the approval of the appropriate governmental authority to open a branch, [at 275]

That case involved a state bank which had obtained “approval” from the Commissioner one year before the national bank had obtained approval from the Comptroller of the Currency.

The Commissioner applied that rationale in the instant ease. Thus, on November 13, 1969 when charter approval was granted to Cedar Grove State Bank, the Commissioner had no intention that his action would bar branch approval for Montclair, for which a hearing was then in progress.

The objectors rely heavily upon In re Summit and Elizabeth Trust Co., 111 N. J. Super. 154 (App. Div. 1970), decided July 14, 1970, subsequent to the Commissioner’s decision herein. That case held that where the Commissioner approved the charter of a home office bank, Springfield State Bank, and objectors appealed and secured a stay of operation of the Commissioner’s decision, such bank was entitled to “home office protection” under N. J. S. A. 17:9A-19(B) (3), with respect to the application of another bank, Summit and Elizabeth Trust Co., for a branch which was granted within seven days after denial of certification by the Supreme Court, In re Springfield State Bank, Springfield Tp., Union County, 55 N. J. 312 (1970), giving finality to Springfield State Bank’s charter approval. As this court stated:

In the factual complex of this case, it would be inequitable to deny to Springfield tbe benefits of tbe Branch Banking Act while it was subject to tbe statutory concomitant burdens and could not, obtain' a certificate of authority and open for business because of tbe stays obtained by tbe objectors of its charter. [III N. J. Super. at 168]

In the instant case there are other important factors which must be weighed. N. J. S. A. 17:9A-20 provides that, if the Commissioner makes the required findings, he "shall, within ninety days after the filing of the application, approve such application.” (Emphasis added). Montclair’s application was filed on July 16, 1969. We do not subscribe to the contention of the objectors that the application was null and void because the 1968 amendment did not become effective until July 17, 1969 although it was approved on January 17, 1969. We agree with Montclair’s view that its application is deemed to have been filed on July 17, 1969, the effective date of the 1968 act. On that premise and in the light of the Commissioner’s findings, approval of the branch bank application should be deemed to have taken place on October 15, 1969 — 90 days after the effective filing of the application, as mandatorily required by N. J. S. A. 17:9A-20.

On the other hand, N. J. S. A. 17:19A-11(B) provides, with reference to an application for a state bank charter:

Tbe commissioner shall, within ninety days after the hearing, approve or disapprove tbe application * * *.

The Cedar Grove State Bank hearing was completed on July 17, 1969 and thus approval should have been given within 90 days after the hearing. Abiding by the statute, Cedar Grove State Bank should have been granted approval also on October 15, 1969, instead of on November 13, 1969. On that basis, the state bank approval and branch bank approval, if the statute had been complied with, would afford priority to neither and thus eliminate the concept of “home office protection.”

There is no provision as to the effect of a delay by the Commissioner in performing his administrative function. Yet, it would be inequitable to permit unauthorized delay to prejudice an applicant in the face of the mandatory provisions of the statutes. It would seem to be more in the interests of justice to decide the issue as though a timely decision had been made and on the basis of the substantive merits of the respective claims. Eor that reason we conclude that the “home office protection” provision does not, under the circumstances herein, preclude approval of Montclair’s branch bank in Cedar Grove.

The decision and order of the Commissioner of Banking are affirmed.


author: Fritz, J. A. D.

text:
    ALITA ALIULIS, AN INFANT BY HER GUARDIAN AD LITEM, GEORGE ALIULIS, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. TUNNEL HILL CORP., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued March 1, 1971
    Decided March 26, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Verting O. Enteman argued the cause for appellant and cross-respondent.

      Mr. Harry K. Seybolt argued the cause for respondent and cross-appellant (Mr. Edward E. Stover, attorney).
   The opinion of the court was delivered by

Fritz, J. A. D.

The narrow issue presented by this appeal is whether the defense of contributory negligence is available to a defendant tavern in an action for personal injuries caused to a plaintiff by a minor served alcoholic beverages by the tavern, in violation of a regulation of the Division of Alcoholic Beverage Control.

In the late afternoon of May 5, 1965 Alita Aliulis, the minor plaintiff with whom we are here concerned, was in a field near Washington, New Jersey, in the company of throe other girls and two boys. The group had a case of beer. Of the other three girls, two were young adults, and one, Cynthia Zulauf, was also a minor. The ages of the boys do not appear, nor is it important. At some time during these activities, the two older girls left the field. Alita and Cynthia remained with the boys until about eight o’clock in the evening. They then left the field to commence a round of several taverns which was to continue until about three o’clock the following morning. It is not clear whether the two boys accompanied them, but sometime during the course of the evening they were rejoined by the other two girls. The four girls were together when they left Tunnel Hill Tavern, defendant here, in the early hours of the morning. At oral argument counsel agreed that despite the aforementioned activities, the record did not demonstrate that Alita was intoxicated when she left the defendant tavern.

The four girls were driven by a person (not here concerned) to a tavern previously visited and where Cynthia’s car had been left. They proceeded from there, in Cynthia’s car, with Cynthia driving. Because of an abbreviated record (the facts apparently not being in dispute) we have not had the benefit of the testimony, but we are advised by defendant’s brief that Cynthia’s three passengers all testified they knew she was not fit to drive the car, apparently because of intoxication. After a stop for gasoline, Cynthia drove only a short distance when she collided with a car operated by one Clifford Morgan. Cynthia was killed, and her three passengers were seriously injured.

A number of actions were instituted; all were settled, except Alita’s claim against the tavern. This was tried to a jury on the theory of defendant’s negligence in serving alcoholic beverages to a minor, contrary to the provision of Regulation 20, Rule 1, of the Division of Alcoholic Beverage Control. Among other proper and unchallenged instructions, the trial judge charged the regulation, the availability of an inference of negligence upon the finding of a violation thereof, and the necessity for a determination of proximate cause before liability could be imposed. He then charged that plaintiff could not recover, regardless of defendant’s negligence, if they found her to be contributorily negligent. Plaintiff’s counsel made an appropriate and timely objection to this portion of the charge.

Although not solicited to do so by the charge, the jury returned with specific findings. It found defendant guilty of negligence and plaintiff guilty of contributory negligence. A concordant judgment in favor of defendant was entered, from which plaintiff here appeals.

It is beyond question in this State that if a defendant tavern sells alcoholic beverages to a minor in violation of the regulation of the Division of Alcoholic Beverage Control proscribing that activity, such illegal conduct provides adequate support for a jury verdict of negligence from which liability for injuries caused to another by the minor may be adjudged. Rappaport v. Nichols, 31 N. J. 188 (1959). It is clear, also, that this responsibility of the tavern keeper for the proximate results of a violation of the regulations extends to injuries suffered by the patron who is illegally served. Soronen v. Olde Milford Inn, Inc., 84 N. J. Super. 372 (App. Div. 1964). To the same effect, on directly certified appeal from the retrial in Soronen, is 46 N. J. 582 (1966). Both Soronen opinions held that the bar of contributory negligence was not available to the defendant tavern in an action by the patron.

We hold that, for reasons of policy clearly enunciated in Bappaport and Soronen, contributory negligence is not available as a defense to the defendant tavern in the circumstances here presented.

A persuasive argument can be made for a contrary result based upon traditional concepts of negligence and contributory negligence. This was the approach of the trial judge in his reliance upon Petrone v. Margolis, 20 N. J. Super. 180 (App. Div. 1952); Bowman v. Central R. R. Co. of N. J., 27 N. J. Super. 370 (App. Div. 1953), and King v. Jones, 47 N. J. Super. 279 (App. Div. 1957). But in none of these cases, all of which preceded Rappaport and Soronen, was it necessary to consider the conflict between the common law approach and the important policy considerations having to do with alcoholic beverage control so clearly set forth in the latter Soronen case.

The Supreme Court, in Soronen, recognized the compromise with common law principles of negligence and proximate causation required in order to implement important public policy when it said:

Many states have dram shop acts in which the legislature has specifically fixed the scope and extent of the tavern keeper's civil responsibility for injuries which result from his service of alcoholic beverages to an intoxicated person. We have no such act and must therefore deal with the common law principles of negligence and proximate causation. In molding and applying these principles we recognize here, as in Rappaport, that the balancing of the conflicting interests and the weighing of the policy considerations are the vital factors. Those who enter the licensed liquor business do so with full awareness that it is heavily fraught with dangers and that the members of the general public as well as the individual patron are entitled to receive and do receive high measures of protection from its abuses. * * *. [46 N. J. at 592]

The court thereby also determined that this policy includes consideration for a high degree of protection to members of the general public. In the words of the Supreme Court, such “accountability may not be diluted” by the fault of a member of the general public proximately injured by such negligence.

As seen, the imposition of a heavy burden of responsibility upon the tavern owner for harm triggered by his violation of regulations flatly prohibiting the dispensing of alcoholic beverages to minors or intoxicated persons is supported by-precedent. Rappaport and Soronen, supra; cf. Mitchell v. The Shoals, Inc., 19 N. Y. 2d 338, 280 N. Y. S. 2d 113, 227 N. E. 2d 21 (Ct. App. 1967). Moreover, we believe such sanction to- be entirely proper in this day when death by automobile is so common and alcohol so frequently involved. The tavern keeper’s illegal conduct, in such case, is a necessary ingredient to the menace which his patron becomes to all others, irrespective of their contributory fault.

For can it be said that such a rule imposes an undue burden upon the tavern keeper, for, as the Supreme Court observed in Soronen, he “may readily protect himself by the exercise of reasonable care.”

Finally, we see no reason for a distinction that would otherwise result: The negligent patron, more closely associated with the wrongful act of the tavern keeper, receives the benefit of the unavailability of a contributory negligence defense to the tavern keeper. The other members of the general public, less intimately connected with the wrongdoing, do not, and this to the advantage of the tavern keeper, the party who had it within his control to avoid implication by the exercise of reasonable care.

This is not the imposition of strict liability upon the tavern keeper. The burden upon the plaintiff to demonstrate negligence and proximate cause remains.

Defendant has cross-appealed on the basis that there was no finding of proximate cause by the jury. The short answer to this is that the jury was adequately charged on the necessity for a finding of negligence and proximate cause, and in their reports to the court equated their finding, expressed as negligence, with one of liability. Under these circumstances we believe the cross-appeal to be without merit.

Reversed and remanded for the entry of judgment in favor of plaintiff and against defendant, and a new trial as to damages alone.


author: Halpekn, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES BLOUNT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 17, 1971
    Decided March 24, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. I. Marie Cohen, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Daniel R. Coburn, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Robert A. Farleas, Assistant Prosecutor, argued the cause for respondent {Mr. Bruce M. Schragger, Mercer County Prosceutor, attorney; Mr. Andrew J. Smithson, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Halpekn, J. A. D.

Defendant was indicted for carnal abuse of S a 12-year-old child, in violation of N. J. S. A. 2A:138-1, and for contributing to her delinquency. N. J. S. A. 2A:96-4. The jury acquitted him of the carnal abuse charge but convicted him of contributing to her delinquency. This appeal followed.

These charges grew out of an incident which occurred on July 2, 1968 at about 10 p.m. Defendant, who was 26 years old, drove S together with William Liverman (25 years old), E (14 years old), and K (6 years old) to see his new house. The electricity had not yet been connected.

The victim testified that defendant took her into a dark living room and pushed her onto a couch, pulled down her pants and touched her leg and backside. She heard something that sounded like a zipper and as she stated it, “I felt some-on my leg and I felt something between my leg and I screamed * * In immediate response to her scream Liverman and E, who had been in the kitchen, ran in, and the incident terminated.

Liverman testified that on hearing a scream he and E ran into the living room. He saw defendant and the victim fully clothed, sitting on the couch. The victim was trembling at the time.

E testified that on entering the living room defendant and the victim were sitting on opposite ends of the couch. The victim’s outer shorts "were a little bit off,” and the victim was shaking.

Defendant flatly denied the charges made against him by the victim. He denied touching or sitting on the couch with her. His version of the incident was that he had gone into the house with Liverman and did not know which girl had entered the living room. He thought the victim had screamed because she was surprised to come upon him in the living room. All the witnesses agreed that they had been in the house for only a few minutes.

N. J. S. A. 2A:96-4 provides:

Contributing to Delinquency of Child
A parent, legal guardian or person having the custody or control of a child, who by any continued negligence or willful act, encourages, causes or contributes to the child’s delinquency, or any other person who by any willful act encourages, causes or contributes to a child’s delinquency, is guilty of a misdemeanor.

The indictment charged that defendant “* * * encouraged, caused and contributed to the delinquency of a child, S, by willful acts, to wit: in the night-time he took the said S to a vacant house and exposed himself and fondled her private parts * *

After oral argument, we expressed our concern to counsel as to whether the conviction was sustainable under N. J. S. A. 2A :96-4, and asked them to submit briefs thereon. Their supplemental briefs have been submitted and considered by us.

It is clear from the proofs that whatever occurred in the living room did not result in the victim’s becoming delinquent because of defendant’s conduct. We construe N. J. S. A. 2A :96-4 to require' the actions of the wrongdoer to result in the child’s becoming delinquent before a conviction may be had under this statute. Giving the State the benefit of all reasonable inferences from the proofs, the only crimes defendant could have been charged with were carnal abuse (which the jury did not find), attempted carnal-abuse, assault and battery, or debauching or impairing the morals of a child in violation of N. J. S. A. 2A:96~3.

The legislative history of N. J. 8. A. 2A:96-4 supports our view. As originally enacted by chapter 163 of the Laws of 1912, it provided:

A Supplement to an act entitled “An act for the punishment of crimes (Revision of 1898),” approved June fourteenth, one thousand eight hundred and ninety-eight, making it a misdemeanor to contribute or cause a child to become a delinquent;.
Be it enacted by the Senate and General Assembly of the State of New Jersey:
1. In all cases when a child shall be held to be a delinquent child or a juvenile delinquent person, as defined by the statutes of this State, the parent or parents, legal guardian or person having the custody and control of such child, or any other person willfully responsible for, or who, by any continued negligence or willful act or acts, encourage, cause or contribute to the delinquency of said child, shall be guilty of a misdemeanor.

The language used in the title of the act and in the act itself mandated that the child be- adjudged or icheld to be a delinquent” in order to convict one of the class designated in the act for encouraging, causing or contributing to such delinquency. Substantially the same language was used in the Revision of 1937 (R. 8. 2:117-7). The only difference between the 1912 statute and N. J. S. A. 2A:96-4 is that under the -latter statute there need not be a prior adjudication of delinquency in order to prosecute the offender.

The State concedes that on the proofs presented defendant could have been indicted and convicted under N. J. S. A. 2A:96-3, for debauching or impairing the morals of the victim. The State further argues that .the indictment was properly brought under N. J. S. A. 2A:96-4 because N. J. S. A. 2A:96-3 and 4 condemn the same kind of conduct. We disagree. Each statute proscribes particular types of conduct and the Legislature had different purposes in mind. N. J. S. A. 2A:96-3 was enacted in 1945 to protect children under 16 from acts which tend to debauch or impair the child’s morals as distinguished from an assault and battery. Under N. J. S. A. 2A:96 — 3 there need be no showing that the child actually became delinquent. It is sufficient if the proscribed act merely “tends to debauch the child or impair its morals.” The statement attached to the act (chapter 242 of the Laws of 1945) when introduced indicated that

The object of this act is to permit the Grand Juries of the various counties of this State to properly charge a defendant in their indictment with the true nature of the crime committed. Heretofore, crimes as outlined in this act were stated to be Assault and Battery, which does not encompass the true nature of the charge intended, nor does it apprise the defendant of the true nature of the charge lodged against him.

A common sense reading of N. J. S. A. 2A:96-4 points up the difference between the two statutes. As previously indicated, unless N. J. S. A. 2A :96-4 requires a finding that the child is subject to a charge of being delinquent under N. J. S. A. 2A:4-14, it would have been repealed when N. J. S. A. 2A:96 — 3 was enacted. In fact, the only reported ease under N. J. S. A. 2A:96-4 dealt with the conviction of an adult male for living out of wedlock with a girl under 18 years of age. State v. Montalbo, 33 N. J. Super. 462, 465 (Law Div. 1954). In Montalbo the living together was consensual and the child could have been charged with being delinquent. All other reported cases of the nature here involved have been prosecuted under N. J. S. A. 2A:96-3. See State v. Whittle, 52 N. J. 407 (1968); State v. White, 105 N. J. Super. 234 (App. Div. 1969), certif. den. 54 N. J. 242 (1969); State v. Balles, 47 N. J. 331 (1966), cert. den. 388 U. S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967) ; State v. Raymond, 74 N. J. Super. 434 (App. Div. 1962), app. dism. 39 N. J. 241 (1963); State v. Hintenberger, 41 N. J. Super. 597 (App. Div. 1956).

Judgment of conviction is reversed, and the matter is remanded for entry of a judgment of acquittal.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES LEE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 8, 1971
    Decided April 1, 1971.

      Before Judges Goldmann, Leonard and Fritz.

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

      Mr. Edwin H. Stern, Assistant Prosecutor, argued the cause for respondent (Mr. Geoffrey Gaullcin, Hudson County Prosecutor, attorney).
   Per Curiam.

In this appeal from the denial of post-conviction relief, defendant pleaded guilty to an accusation charging him with impairing the morals of a minor (N. J. S. A. 2A:96-3), a misdemeanor punishable by a prison sentence not exceeding three years (N. J. S. A. 2A:85-7). He was referred to the New Jersey Diagnostic Center for examination, which reported that defendant’s pattern of conduct came within the purview of the Sex Offenders Act (N. J. S. A. 2A:164-3, et seq.) and recommended that he be committed to the Diagnostic Unit at Rahway. On February 28, 1969 the trial judge committed him in accordance with the recommendation. See N. J. S. A. 2A:164-6(b).

Defendant had spent over eight months, from May 1, 1968 to January 22, 1969, in the Hudson County Jail and over one month, from January 22, 1969 to February 28, 1969, in the Center. The judgment of commitment directed that defendant was to receive no credit for this time. Thus, on February 28, 1969 he filed a petition for post-conviction relief seeking credit of that time as against the maximum period of his commitment. The trial judge denied the petition and this appeal followed.

Preliminarily, and apart from the merits of this controversy, we express our condemnation of the practice of allowing any prisoner to remain in the county jail for a period of over eight months awaiting disposition of his ease. However, at oral argument we were advised by the State that under the system recently invoked by the present assignment judge it is not likely that a similar situation will ever occur in the future.

Defendant relies upon the provisions of R. R. 3:7 — 10(h) (now R. 3:21-8) and of N. J. S. A. 2A:164-6 as support for his contention that he is entitled to a credit for the time spent in the county jail and the Diagnostic Center.

R. R. 3:7-10(h) provides as follows:

In all custodial sentences the prisoner shall receive credit on the term imposed for any time he may have served in custody between his arrest and the imposition of sentence * * *. [Emphasis added]

When an individual is convicted of one of the sex offenses enumerated in N. J. S. A. 2A:164-3, the trial judge must commit him to the Diagnostic Center for a complete physical and mental examination. If it appears from a report of that examination that his conduct is characterized by the patterns specified in N. J. S. A. 2A:164-o, the judge may either place that individual on probation, accompanied by outpatient psychiatric treatment, or in the alternative, such person “may be committed to an institution, to be designated by the Commissioner of institutions and agencies, for treatment * * N. J. S. A. 2A:16L-6(a) and (b) (Emphasis added).

On the other hand, if the results of the offender’s diagnostic examination do not show conduct characterized by the above-noted statutory patterns, the court is directed to “impose sentence on such person in the manner provided by law.” N. J. S. A. 2A:164-9 (Emphasis added).

The above statutes make a clear distinction between a “sentence” in which the minimum and maximum times are fixed (N. J. S. A. 2A:164-17), and a “commitment” for treatment, for an indeterminate term, in which the minimum and maximum terms are not fixed, though the maximum is limited by N. J. S. A. 2A:164-6. See State v. Schreffler, 63 N. J. Super. 148, 152 (App. Div. 1960). Thus, it was held that the commitment to an institution for treatment under the Sex Offenders Act is an institutional confinement and not a sentence. State v. Newton, 30 N. J. Super. 382, 385-387 (App. Div. 1954), aff’d 17 N. J. 271 (1954). Cf. State v. Horne, 56 N. J. 372, 376-377 (1970); State v. Blanford, 105 N. J. Super. 56, 59-60 (App. Div. 1969); State v. Thompson, 84 N. J. Super. 173, 177 (App. Div. 1964).

Further, it is to be noted that R. R. 3:7-10(c), which mandates the furnishing of a copy of the Diagnostic Center report to one convicted of one of the sex offenses enumerated in N. J. S. A. 2A:164-3, clearly recognizes the distinction between the court “imposing sentence” and “making disposition of the offender.”

Based upon all of the above, we hold that R. R. 3 :7-10 (h), which is limited to “all custodial sentences,” is not applicable to defendant, who was committed to the Diagnostic Unit at Rahway pursuant to the provisions of the Sex Offenders Act. N. J. S. A. 2A:164-3, et seq. Therefore, he is. not entitled to credit for the time spent in the county jail or in the Diagnostic Center.

Likewise, we conclude that defendant’s position is not supported by N. J. S. A. 2A :164-6. The pertinent portion of this act provides

* * * in no event shall the person be confined or subject to parole supervision for a period of time greater than that provided by law for the crime of which such person was convicted.

First, this act prohibits the judge from committing a sex offender to a designated institution for treatment for a greater time than the maximum term fixed by law for the crime for which he was convicted. Next, it mandates that in no event shall the offender be confined in such institution or subject to parole supervision for a period of time greater than the stated maximum. The act does not relate to a claim for credit for time spent in custody before actual commitment. to the treating institution.

Defendant argues that the failure to credit him with the time he seeks amounts to a denial to him of equal protection of the laws. He argues that this would result in a disparity in his confinement and in the confinement of one who was convicted of the same sex crime, but was not committed as a sex offender. A similar argument was raised and rejected in State v. Wingler, 25 N. J. 161, 174-176 (1957). In so doing the court said:

However, this ignores the fact that the Legislature has, with sufficient cause, classified certain repetitive, compulsive sex offenders as falling within a separate group urgently requiring, for the protection of society as well as the offenders themselves, special confinement and treatment until they are capable of making acceptable social adjustments, * * *. [at 175]

Should defendant respond to treatment at the Rah-way Diagnostic Unit, he may be released on parole as soon as the State Parole Board finds him to be so capable, upon recommendation by the Special Classification Review Board. See N. J. S. A. 2A :164-6 and 8. State v. Mickschutz, 101 N. J. Super. 315, 320 (App. Div. 1968).

Judgment affirmed.


text:
    C. P. FLEMMING, PLAINTIFF-APPELLANT, v. RONSON CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 9, 1971
    Decided April 5, 1971.
    Before Judges Lewis, Matthews and Mintz.

      Mr. Harry Heher, Jr. argued the cause for appellant.-

      Mr. Lewis H. Eslinger of the New York Bar, admitted pro hac vice, argued the cause for respondent (Messrs. Weinberg and Manoff, attorneys).
   Per Curiam.

The judgment is affirmed substantially for

the reasons expressed by Judge Seidman in his reported opinion, 107 N. J. Super. 311.


author: Mintz, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GLORIA E. GRAVES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued January 26, 1971
    Supplemental material filed March 1, 1971
    Decided April 2, 1971.

      Before Judges Lewis, Matthews and Mihtz.

      Miss Cynthia M. Jacob, Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. David S. Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor; Mr. George N. Pappas, Assistant Prosecutor, of counsel and on the brief).

      Miss Nadine Taub submitted amicus curiae brief for Community Legal Action Workshop, Urban League of Essex County, Welfare Eights Organization of Essex County.

      Mr. Joseph E. Cohen, Counsel, Mr. Ronald Reichstein, Associate Counsel, submitted amicus curiae brief for Essex County Welfare Board.
   The opinion of the court was delivered by

Mintz, J. A. D.

Defendant appeals from a judgment of conviction for having obtained county welfare funds by false pretense through her failure to disclose a material fact, contrary to N. J. S. A. 2A:111-3. The indictment under which defendant was convicted charged her with having received financial assistance between October 1, 1967 and February 1, 1968 from the Essex County Welfare Board by failing to disclose that during the stated period she was living with her husband.

On appeal defendant assigns several grounds for reversal, including the contention that the trial court erred in admitting into evidence statements made by defendant in a custodial interrogation where the four-fold warnings required under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were not given.

The testimony discloses that defendant had been receiving continuing assistance from the welfare board since 1963. On May 24, 1967 she signed her semi-annual application for aid to dependent children, in which she indicated that her household consisted of herself and three children. In September or October of that year she began to receive aid for a fourth child.

On the application form the recipient of welfare funds is required to report immediately to the county welfare board any change in his or her living conditions, family situation or income from any source. This was undoubtedly known to defendant. The witness Mitchell Osur, a moving company owner, testified that he employed Harold Graves (defendant’s husband) from November 1967 through February 1968. Osur said that Harold Graves gave, an address identical to defendant’s, and claimed four income tax exemptions, including himself.

Investigator Harry O’Boyle of the welfare board testified that four checks, each in the sum of $322, were paid to defendant as assistance for the months of November 1967 through February 1968. He further testified that on February 2, 1968 he interviewed Harold Graves, who told him that he had been living with defendant “for a period of time.” He contacted the welfare board and was advised that on their reports Harold Graves was noted as not living at the home. O’Boyle then contacted defendant and arranged for an interview with her which was held that same day at the welfare office in the presence of Mr. Deangelns, supervisor of the fraud department of the welfare board.

At this point defendant requested and was granted a voir dire hearing to determine if the Miranda warnings were given before any confession or statement was elicited from her. O’Boyle then testified that defendant was informed by Deangelns of her right to counsel, her right to have counsel appointed if she was without funds to engage counsel, and that anything she would say could be held against her. It clearly appears that she was not told of her right to remain silent. Subsequently, a statement was taken from her in which she admitted that Harold Graves returned to her home in October 1967 and continued to reside there continuously up to the date of the interview. She indicated to him that she was afraid to notify the welfare board of this fact.

Defendant testified that the February 2, 1968 interview was held on the fourth floor of the welfare board’s office (presumably the fraud section department) in the presence of six male investigators. She denied receiving any of the Miranda warnings.

At the close of the voir dire hearing, the trial court ruled that Miranda warnings were inapplicable to the type of interrogation here involved.

O’Boyle then testified before the jury to the same effect as he had in the voir dire hearing. The four checks were marked in evidence. O’Boyle further stated that had timely notification of Harold Graves’ return to defendant’s home been furnished the Welfare Board, a reduction to $186 monthly would have been made. To O’Boyle’s knowledge, defendant did not notify anyone of the change in her household status and it was for this reason that he “asked her to come down to the investigational nnit of the County Welfare Board on the fourth floor to discuss the situation.”

Defendant testified in her own behalf, but we find it unnecessary to summarize her testimony.

Clearly defendant did not receive the full Miranda warnings in that she was not told of her right to remain silent. The basic issue is whether Miranda is applicable in the instant situation. The fact that the investigation was not a police investigation does not mean that Miranda is inapplicable, for in Mathis v. United States, 391 U. S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968), a case involving interrogation by an Internal Revenue agent, the court indicated that not only was the interrogation custodial since it took place in a prison where defendant was confined on an unrelated offense, but also that Miranda warnings were necessary since “there was alwaj^s the possibility that [the agent’s] work would end up in a prosecution.” This latter statement covers the crucial point in this case, for it is established that when the interrogation process shifts from investigatory to accusatory —• when its focus is on the accused and its purpose is to elicit a confession • — ■ our adversary system begins to operate and the accused is entitled to the presence of counsel as well as to be given the other Miranda warnings. See Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). While Miranda is aimed at “station house” abuses, later cases have made it clear that the custody in question need not be custody at a police station or for that matter custody in a given enclosed area. Rather the test for determining if Miranda applies is if the person interrogated is “in custody at the station or otherwise deprived of his freedom of action significant in any way.” Orozco v. Texas, 394 U. S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969); State v. Williams, 97 N. J. Super. 573, 597 (Law Div. 1967), aff’d 106 N. J. Super. 371 (App. Div. 1969).

We do not suggest that welfare agencies are not free to interrogate the recipients of their benefits. As a matter of fact, we regard routine inquiries as highly essential in assuring the legitimate allocation of assistance to those in need, and in denying assistance to those not entitled to the same. However, in the instant situation the welfare board fraud division already knew from Mr. Graves of defendant’s changed circumstances. Thus, when defendant was subjected to interrogation by a representative of the fraud division and in the presence of the supervisor of that division, the interrogation had reached an accusatory stage in which she was the target. It is important, also, to note that the circumstances surrounding the investigation contained clear elements of psychological duress, as evidenced by defendant’s testimony that she did not notify the welfare board of her husband’s return because she was “afraid,” presumably of losing some of her benefits. In the circumstances of this case she was clearly entitled to the full Miranda warnings in order to protect her constitutional rights to counsel and against self-incrimination. State v. Thomas, 111 N. J. Super. 42 (Law Div. 1970).

In view of this determination we deem it unnecessary to consider the remaining contentions advanced by defendant.

Reversed and remanded for a new trial.