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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. VINCENT FERRO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1974
    Decided May 16, 1974.

      Before Judges Caeton, Losa and Seidman.

      Mr. Gerold P. Boswell, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. VanNess, Public Defender, attorney).

      Mr. Robert W. Gluck, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Carton, P. J. A. D.

This appeal primarily involves the issue of whether, as a prerequisite to conviction under N. J. S. A. 2A :93-6, the State must show that the person charged with giving or receiving money or other thing of value as a bribe was a public official at the time of the offense. Defendant contends that this question must be answered in the affirmative and, consequently, his conviction must be reversed.

Inasmuch as the issue is one of law, we refer only to the salient features of the record.

In one count of the indictment defendant was charged with receiving or offering to receive $250 from one Vincent Salerno as a bribe to obtain, through use of his apparent power and influence, actions by the Probation Department of Hudson County and dispositions in the New Jersey courts favorable to Salerno. The second count charged that defendant received or offered to receive $500 from one Robert Onysko as a bribe to obtain, through the use of his apparent power and influence, actions by the prosecutor’s office and disposition in the New Jersey courts favorable to Onysko.

The State adduced testimony concerning numerous meetings between defendant and Messrs. Salerno and Onysko in which discussions of agreements of the kind charged in the indictment took place. Prior to these meetings body microphones were concealed on Salerno and Onysko with their permission. The conversations were monitored and taped by a detective of the State Police. Testimony by the detective as to the contents of the tapes, corroborated by Salerno and Onysko, constituted the bulk of the State’s case.

Defendant • testified that he had been the leader of the Democratic party in a certain section of Jersey City since 1950, but held no government position, although he had once been chief security officer for Hudson County. Defendant stated that Salerno had approached him to see what he could do about a postponement and defendant advised him to see an attorney and to obtain letters from reputable citizens in his behalf. He explained that he had introduced Salerno to a doctor because Salerno claimed he was ill. Defendant denied, as maintained by the prosecution’s witnesses, that he stated he would secure a medical certificate and would intervene with the probation officer. He further denied receipt of any bribe and stated that Salerno had loaned him $100 and Onysko had loaned him $400. He also claimed that he had rejected a request from Salerno to fix the ease, saying to him, “no such possibility existed.” He also asserted that both men informed him he was taped and sought to force his cooperation through threats.

The jury found defendant guilty on both counts after deliberating 40 minutes.

The statutory provision under which the indictment was returned against the defendant provides:

Any person who directly or indirectly gives or receives, offers to give or receive, or promises to give or receive any money, real estate, service or thing of value as a bribe, present or reward to obtain, secure or procure any work, service, license, permission, approval or disapproval, or any other act or thing connected with or appertaining to any office or department of the government of the state or of any county, municipality or other political subdivision thereof, or of any public authority, is guilty of a misdemeanor. [A. J. S. A. 2A:93-6'J.

The two-count indictment largely parallels the language of the statute charging defendant with committing like offenses with respect to the two individuals in that he;

knowingly, willfully and corruptly did receive, offer to receive, and promise to receive money, * * * as a bribe, present, and reward to obtain, secure, and procure services, permission, approval, disapproval and other acts, and things connected with and appertaining to offices and departments of the government * * *, that is, the use of his apparent power and influence to obtain actions by the Probation Department * * and dispositions in the Courts *■ * *, all in violation of the provisions of A. J. S. A. 2A:93-6.

Our research has disclosed no legislative statement or history which might assist us in arriving at the legislative intent. Consequently, we are left to apply customary rules of construction of legislative acts.

It is elementary that penal statutes will be strictly construed. See, e. g., State v. Carbone, 38 N. J. 19 (1962). The rule of strict construction, however, does not prevent a court from reading the statute in relation to the mischief and evil sought to be suppressed or prevent a court from giving effect to the terms of the statute in accordance with their fair and natural acceptation. State v. Meinken, 10 N. J. 348, 352 (1952); State v. Frost, 95 N. J. Super. 1 (App. Div. 1967). Thus, the clear implication and intendment of a penal statute cannot be denied. Nor will a construction which will aid the evasion of the provision be favored. Id. at 3.

Applying these principles, the statute in question must be given its most evident and reasonable meaning consonant with legislative intendment. Significantly, N. J. S. A. 2A :93-6 applies to “any person” wlio offers (solicits), promises or actually receives (or gives) a bribe. Clearly the phrase, “any person,” cannot be read to mean any governmental official, even in the context of being the recipient of the bribe. Such a construction would require reading into the statute, after the word “person,” the modifying or limiting phrase, “who, being a public official” or “who is a public official.” The modifying or limiting terms embodied in the statute are that the bribe must be “to obtain, secure or procure” any act or thing “connected with or appertaining to any office or department of the government.” Notably, the language omits any requirement that the prohibited action involve the actual participation of an official. Rather, the bribe must be directed towards official action. The offender, as the recipient of the bribe, must only have or create an understanding with the briber that he can influence matters in connection with an official duty. Whether he is capable of actually effecting such an act is irrelevant. Cf. State v. Sherwin, 127 N. J. Super. 370 (App. Div. 1974).

In the latter context, it has been observed that N. J. S. A. 2A:93-6 does not require that the person receiving the bribe do so “under the color of his office,” as does the section proscribing statutory extortion. N. J. S. A. 2A:105-1. “The offense of receiving a bribe under N. J. S. A. 2A:93-6 is complete upon a showing that defendant received a thing of value as a bribe to procure any act appertaining to any office or department of the government.” State v. Sherwin, supra at 385; emphasis supplied.

Defendant points to the fact that the common law offense of bribery could only be predicated on a reward to a judge or other official concerned with the administration of justice. State v. Ellis, 33 N. J. L. 102 (Sup. Ct. 1868); State v. Begyn, 34 N. J. 35, 47 (1961). He argues that this element of the crime of common law bribery became an essential part of the statute when bribery became a statutory offense and that concept has been carried through in the later revisions of the legislation. These later enactments, it is proffered, simply expanded the class of individuals who may be charged with this offense to include legislators, executives and administrative officers, labor officials and foreman, participants in sporting contests, referees and umpires in sporting contests. See N. J. S. A. 2A:93-2 et seq. Basically, defendant’s thesis is that we must construe N. J. S. A. 2A:93-6 in light of the common law definition of bribery, and that the statute merely broadens the class of the office-holders who may be charged therewith but does not alter the nature of the crime or its elements.

Defendant argues that the basis for enacting L. 1898, c. 235, § 30, from which N. J. S. A. 2A:93 — 6 was later derived, was to fill the void left by the common law, i. e., to punish the mere solicitation of a bribe by a public official. Cf. State v. Begyn, supra at 47-48. However, the legislative codification of the bribery laws belies this contention. Certainty, if that were the Legislature’s intention, § 30 would have been framed in language similar to that employed by § 28 (now N. J. S. A. 2A:93-4), enacted by the Legislature at the same time. That is to say, the section would simply have read “any public official” (see § 28) rather than “any person” who solicits a bribe.

The very language of N. J. S. A. 2A :93-6 upon which defendant’s convictions rest compels a broader application than that advanced by him. The most reasonable interpretation of this provision is that it was designed to broaden the offense of bribery so as to include the peddling of influence by a person in an apparent position of access to a public official. Such activity is not penalized, by the common law. Yet, being a common evil which denigrates the integrity of our public institutions, the Legislature undoubtedly intended to proscribe such conduct. Any contrary construction ignores not only the literal wording of the statute but the obvious intent of the Legislature. Compare N. J. S. A. 2A:93-6 with N. J. S. A. 2A:93-3.

Later legislatures also recognized a social interest in keeping certain types of nonofficial action free from corrupting influences. This interest extended not only to corruption in relation to public office, but also to corruption of other individuals in positions of trust. See N. J. S. A. 2A:93-7, 8, 10, 11, 12, 13 and 14. However, since § 30, supra (L. 1898, c. 235) only encompassed influence-peddling in connection with governmental activity, further expansion of the common law was necessary to reach those forms of bribery which did not involve governmental action. Thus, later legislatures enacted statutes which penalized bribery of a labor representative (L. 1911, c. 94, § 1, now N. J. S. A. 2A:93-7), bribery of a foreman (L. 1911, c. 94, § 2, now N. J. S. A. 2A:93-8), bribery of and receipt of a bribe by a participant in a sporting contest (L. 1945, c. 217, §§ 1 and 2, now N. J. 8. A. 2A :93 — 10 and 11), and bribery of a referee in a sporting contest (L. 1946, o. 28, § 1, now N. J. S. A. 2A:93-13).

The early bribery statutes were recodified in the revision of 1937. The amendment to § 30 is of pertinent concern. It provided:

Any person who shall directly or indirectly give or receive, or promise or agree to give or receive, any money, goods, chattels, real estate, or' any other thing, present or reward, to secure or obtain, or to give out or grant the printing of blanks, notices, advertisements or any other printing, or any other work or thing connected with or appertaining to any office or department of the government of the state or of any county, municipality or other political subdivision thereof, shall be guilty of a misdemeanor. [R. S. 2:114-6]

It is apparent that only minor changes were effectuated by the foregoing revision. Such is not the case, however, in the 1952 codification of Title 2A which considerably expanded the scope of this section. That legislation proscribed specified activities directed towards “* * * obtain[ing], securing] or procuring] any work, service, license, permission, approval or disapproval, or any other act or thing connected with or appertaining to any office or department of the government * * N. J. S. A. 2A:93-6. This final amendment, although broader in scope1, in no wise altered the original intent of the statute. In fact, it specifically included the term “bribe” and described the governmental conduct sought to be effected by unlawful means in more general terms. The enactment of N. J. S. A. 2A :93-6 can thus fairly be considered to have completed a legislative scheme which has become apparent over the years, i. e., to penalize those in an apparent position of trust who would utilize their position or relationship to influence some governmental activity of public official. It is entirely consistent with that scheme for the Legislature to seek to reach the activities of would-be as well as actual brokers of corruption along with officials and others implicated in corrupt arrangements.

State v. Sullivan, 2 Wash. 2d 1, 96 P. 2d 1117 (Sup. Ct. 1939). See also, People v. Woodward, 136 Cal. App. 149, 28 P. 2d 36 (D. Ct. App. 1934), which held that a statute which is analogous to N. J. 8. A. 2A:96-3 did not require involvement of a public official.

Authority for this view may be found in State v. Sullivan, supra, where the Washington Supreme Court construed a statute similar to the one before us holding that its statute did not require that a public official be in any way involved in the bribe. What the Washington court said with respect to the statute before it for interpretation is equally applicable to this case:

* * * On tlie other hand, we believe that § 2333 was primarily designed to prevent the use of influence over public officials, either actual or feigned, as a means for extracting money from individuals willing to attempt the purchase or coercion of that character [corruption of public officials].

Accordingly, we hold that it is not necessary to a conviction under N. J. S. A. 2A:93-6 that the person charged with giving or receiving the payment be a public official.

Defendant also maintains, under the plain error rule, that the prosecutor made improper and prejudicial remarks on summation justifying a new trial. The prosecutor stated:

To be honest with you, in my relatively short legal career I’ve tried over two hundred criminal cases. I have to be honest now. I don’t know what to say. It’s just that this case, this evidence, I submit, is so overwhelming, so clear-cut, so convincing, so accurate and truthful, no reason to doubt anything, that it would be insulting your common intelligence * *

This comment, as well as the prosecutor’s references to “what you have running around in Hudson County, etc.,” were obviously improper as tending to suggest that the prosecutor had personal knowledge of guilt from his expertise and wholly aside from the evidence produced at trial. See State v. Farrell, 61 N. J. 99, 103-104 (1972). However, we are not satisfied that these improprieties were of the dimension of plain error or had the clear capacity to produce an unjust result. State v. Macon, 57 N. J. 325, 335-336 (1971); State v. Hipplewith, 33 N. J. 300, 314 (1960). Cf. State v. DiPaglia, 64 N. J. 288, 297 (1974).

Affirmed.

      This statutory provision provided:
      Any person who shall directly or indirectly give, or receive, or promise, contract or agree to give or receive, any sum or sums of money, or any goods, chattels, gift, lands or real estate, or any other thing, present or reward whatsoever, to secure or obtain, or to give out or grant the printing of blanks, notices, advertisements or any other printing, or any other work or thing, connected with, or in or appertaining to any office or department of the government of this state, or any office or department of the government of any county, city, town, township, borough or other place in this state, shall be guilty of a misdemeanor.


source: Caselaw Access Project

author: Michels, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BARRY HUGHES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 22, 1974
    Decided May 21, 1974.

      Before Judges Collesteb, Lynch and Michels.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Lloyd N. Simon, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mr. Lowell Espey, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Michels, J. A. D.

Defendant appeals from a denial of his petition for postconviction relief. Defendant was found guilty of murder and armed robbery and sentenced on September 23, 1970 to State Prison for the remainder of his natural life. The Appellate Division affirmed his conviction on January 25, 1972, and the Supreme Court denied his petition for certification on March 14, 1972. On July 10, 1972 defendant filed a petition for post-conviction relief contending that his constitutional rights were violated because of the alleged systematic exclusion of blacks' from the grand jury which indicted him, and because he was denied the effective assistance of counsel in that his retained attorney failed to move to dismiss the indictment in spite of his request to do so. The trial judge dismissed the petition without a hearing on the ground that the relief sought could have been raised in the prior proceeding. Defendant appeals contending (1) that his indictment was produced by a highly and unconstitutionally selective system for choosing grand jurors which resulted in the exclusion of blacks; (2) that the trial court erred in determining that the ground for relief asserted in his petition could have been raised in a prior proceeding; and (3) that he was denied effective assistance of counsel for his post-conviction relief petition.

We have reviewed carefully the arguments raised by defendant and find them totally lacking in merit.

Defendant did not challenge the array of the grand jury before trial as required by R. 3 :6-2, and thereby waived that defense. See R. 3:10-2; State v. Laws, 50 N. J. 159, 182-183 (1967), on reargument modified on other grounds 51 N. J. 494 (1968), cert. den. 393 U. S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); United States ex rel. Laws v. Yeager, 448 F. 2d 74, 86 (3 Cir. 1971). Moreover, the ground asserted by defendant in his petition for post-conviction relief could reasonably have been raised in the prior proceeding, and therefore defendant is barred from asserting that ground in this proceeding under the express language of R-3 :22 — 4.

The system of selecting grand jurors discussed in State v. Rochester, 54 N. J. 85 (1969), was publicized when that case was decided on May 19, 1969. Defendant had seven months before he entered his plea on December 23, 1969 within which to challenge the array of the grand jury. He had ample time to investigate any alleged constitutional defects and raise any objection to the grand jury array, which he failed to do. See Shotwell Mfg. Co. v. United States, 371 U. S. 341, 363, 83 S. Ct. 448, 9 L. Ed. 2d 357 (1963), reh’g den. 372 U. S. 950, 83 S. Ct. 931, 9 L. Ed. 2d 975 (1963).

The argument advanced by defendant, that he cannot be considered to have waived his right to challenge the array of the grand jury because such right is a constitutional right which can only be waived by “an intentional relinquishment or abandonment of a known right or privilege,” was considered and. rejected in Davis v. United States, 411 U. S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). There, a habeas corpus proceeding was brought by a federal prisoner on the ground of unconstitutional discrimination in the composition of the grand jury that indicted him. This was the first time that defendant raised this issue. He argued that his collateral attack on his conviction could be precluded by Buie 12(b)(2) of the Federal Buies of Criminal Procedure only after a hearing in which it was established that he “deliberately by-passed” or “understandingly and knowingly” waived his claim of unconstitutional grand jury composition. Buie 12(b)(2) provides, as does New Jersey R. 3:10-2, that “[djefenses and objections based on defects in the institution of the prosecution or in the indictment * * * may be raised only by motion before trial,” and that failure to do so “constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver.” The Supreme Court of the United States in the Davis case followed its earlier opinion in Shotwell Mfg. Co. v. United Slates, supra, and held that Buie 12(b) (2) precludes untimely challenges to grand jury arrays, oven when such challenges are on constitutional grounds.

The court in Davis expressly held that no more lenient standard of waiver should apply to a claim raised after a conviction simply because the claim is asserted under the habeas corpus statute rather than in the criminal proceeding itself.

The reasoning of the court in upholding the waiver provision was set forth as follows:

The waiver provisions of Rule 12(b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult. [411 U. S. at 241, 93 S. Ct. at 1582, 36 L. Ed. 2d at 224]

Here, defendant has failed to prove or' even allege any facts tending to show that there existed “good cause” warranting the trial court to exercise its discretion to extend the time for making a challenge to the array under R. 3:6-2 or to grant defendant relief from the waiver provisions of R. 3:10-3.

Furthermore, defendant has not alleged any facts which, if true, would support his claim that the grand jury which in- . dieted him was selected by a procedure which was “invidiously discriminatory” against negroes. R. 3:22-8. See Wade v. Yeager, 377 F. 2d 841, 845-846 (3 Cir. 1967), a habeas corpus proceeding, wherein the court held that defendant’s allegations of systematic exclusion of Negroes from the grand and petit juries which indicted and tried him were conclusionary in that they were not substantiated by any statement of facts, and/ accordingly, concluded that the defendant’s claims for relief were properly dismissed without a hearing by the court below: The court declared :

We are of the opinion that the unsubstantiated charge of racial discrimination did not warrant a full scale inquiry into the manner in which grand and petit juries are selected in the Oounty of Passaic, [at 845-846]

See also, State v. Laws, supra; United States ex rel. Laws v. Yeager, supra.

Thus, in view of the total lack of merit to the charge of discrimination in the selection of the grand jury which indicted defendant, there is absolutely no basis to support the allegation in the petition for post-conviction relief that defendant was deprived of the effective assistance of counsel. While this issue was not raised on this appeal we deem it appropriate to point out that failure to challenge the array of the grand jury on the ground that it was unconstitutionally selected or drawn was not below the standard of competence demanded of attorneys in criminal cases. Cf. McMann v. Richardson, 397 U. S. 759, 770-771, 90 S. Ct. 1441, 1448-1449, 25 L. Ed. 2d 763, 773 (1970) ; State v. Edge, 57 N. J. 580, 592-593 (1971). Furthermore, counsel is not obligated to raise issues or advance arguments which are obviously frivolous or specious. Counsel is not expected to stultify himself in an attempt to advance his client’s Ínteres! s. Certainly he is under no obligation to press a frivolous motion, such as a challenge to the array of the grand jury under the circumstances here. See United States v. Von Der Heide, 169 F. Supp. 560, 567 (D. D. C. 1959). See also, White v. Hancock, 355 F. 2d 262, 264 (1 Cir. 1966), wherein the United States Court of Appeals remarked: “* * * the right to counsel, which the federal courts have long recognized, does not include the right to counsel, whether at counsel’s expense, or government expense, to advance a totally frivolous claim merely because some layman thinks it has merit.”

Defendant’s final contention that he was denied effective assistance of counsel for his post-conviction relief petition is unsupported by the record. Defendant in his petition for post-conviction relief, as well as in the affidavit of indigency, indicated that he desired to proceed on his application without counsel. When the petition for post-conviction relief was sent to the Public Defender for purposes of appeal, the Public Defender advised defendant that he noted that defendant did not wish to have counsel appointed and suggested that perhaps he had made a typographical error in the petition. The Public Defender asked defendant for a letter indicating that he wished to proceed pro se, pointing out that he felt defendant would be making a mistake if he did so. Defendant wrote to the Public Defender stating, “It is possible that I made a slight mistake by entering an ‘X’ in the improper block.” The Public Defender then represented defendant on this appeal. The grounds raised in support of the petition were fully briefed by the Public Defender on this appeal and have been considered carefully by this court. We conclude that the failure of defendant to be represented by counsel below (even assuming that he did not wish to appear pro se) did not prejudice defendant whatsoever. His petition has absolutely no merit.

Accordingly, the order below dismissing the petition for post-conviction relief is affirmed.


author: Alcorn, J. A. D.

text:
    STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT, v. S. NALBONE TRUCKING COMPANY, INC., ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey-Appellate Division
    Argued April 22, 1974
    Decided May 24, 1974.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. Jonathan M. Heilbrunn argued the cause for the appellants (Heilbrunn, Tabman, Josephs, Finkelstein, Heilbrunn & Garruto, attorneys).

      Mr. Alan B. Rothstein, Deputy Attorney General, argued the cause for the respondent (Mr. William F. Hyland, Attorney General, attorney; Mr. Richard M. Conley, Deputy Attorney General, of counsel; Mr. Bertram P. Goltz, Jr., Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Alcorn, J. A. D.

Defendant-owners appeal from a condemnation award, on a jury verdict.

The land condemned consisted of the whole of a single tract of land, containing approximately 339 acres. For some years prior to the taking it had been used principally as a farm; more recently, it had been utilized also, in part, for the excavation and sale of dirt fill; and, latterly, it had been used exclusively for the excavation and sale of fill.

In the course of the trial in the Law Division, the State employed Joseph A. Martin as its real estate expert. On his direct examination, and as a foundation for his opinion as to the market value of the condemned premises as of the taking date (October 5, 1971), Martin testified as to the details of sales of certain properties which he deemed to be comparable to the condemned property. Among such comparable sales upon which Martin placed reliance was a sale of the condemned premises themselves. That sale, which took place in June 1970, some 15 to 16 months prior to the date of taking, was made by the then owners (Matheson) to defendant Nalbone Trucking Company, for the sum of $325,000 '— i. e., 339 acres at approximately $959 an acre. He equated this price with a per acre value' of $1,102 as of the date of taking, adding 15% to the sale price to reflect the general'increase in land values occurring between the sale date and the taking date. On the basis of this sale as adjusted, and the adjusted sale prices of five other properties that he also used as comparables, Martin concluded that the market value of the condemned, premises as of the date of the taking was $1,300 an acre, for a total value of $440,000.

The two real estate experts called by the owners estimated the date of taking per acre value to be $1,400 (Kenneth A. Walker, Jr.) and $1,750 (Ronald A. Curini), on the basis solely of comparable sales. Each of them was of the further opinion that such values should be doubled by virtue of the municipal permit previously granted authorizing the excavation and removal of fill from the condemned premises, to $2,800 and $3,500, respectively. (Both experts also rendered opinions as to market value based on the income that reasonably might be expected from the excavation and sale of the quantity of fill estimated to be available from the premises. Using this approach, Walker arrived at a value of $2,050,000, and Curini at a value of $2,300.000.)

The jury awarded the owners the sum of $508,500, a per acre value of $1,500.

The seed of the principal issue on this appeal was implanted by counsel for defendant-owners during his cross-examination of the State’s real estate expert. In the course of the interrogation counsel questioned the propriety of the use of the 1970 sale of the condemned premises as a valid and bona fide comparable sale on several grounds — among them, the effect upon the sale price of the announcement by the State of its proposed plan for a Green Acres project which contemplated the taking of these premises, some 15 to 20 years before the actual taking. In response to counsel’s questioning, Martin testified that it had been "a known fact since the early 1950’s” that the premises were "subject to a taking by the Department of Environmental Protection,” but that such knowledge would have no effect whatever "on the purchase price between Nalbone” and its grantors. This was the first occasion on which the subject was introduced at the trial.

Thereafter, following the conclusion of the State’s direct case, counsel for the owners continued to pursue the matter in his presentation of the owners’ case. The first witness, Erank P. Matheson (one of the grantors in the 1970 sale), testified on direct that he had “knowledge of the proposed Green Acres acquisition” of his property as early as "around 1953.” Pasquale J. Nalbone, secretary-treasurer of defendant Nalbone Trucking Company, testified that at the time of the purchase of the property in 1970 he “had no knowledge that the State might acquire the property.”

Additionally, both of the owners’ real estate experts testified that the 1970 sale of the premises condemned was not usable as a comparable sale by reason of the State’s earlier announcement of its contemplated acquisition under the Green Acres program: because “of the land being labeled Green Acres land,” according to Walker; because the property was “almost blighted by the New Jersey Environmental Protection Agency for a period of time,” in the words of Curini.

In his charge the trial judge preliminarily instructed the jury that its function was to determine and fix the fair market value of the premises as of the date of the taking, from all of the evidence presented to it. Noting that the jurors had the “testimony * * * and evaluation” of the real estate experts to assist them in making sudh determination, the judge continued:

* * * They gave you different opinions concerning their evaluation of the property. Bach of them, Mr. Martin, Mr. Walker and Mr. Carini [sic], approached it in one regard. All three of them used one approach of valuation and then Mr. Walker and Mr. Carini also testified for your benefit as to two other approaches which they used. All of that is their opinion placed before you to assist you in deciding what you feel the fair market value of the property to be. Each of them used what they described as the market data approach based on comparable sales, and what they are saying to you is this: I cannot precisely tell you what that particular piece of land is worth but what I can tell you jurors is that there are other similar kinds of land in the area upon which there were sale prices freely agreed upon by a buyer willing to buy and a seller willing to sell and from those prices of comparable properties similar in nature to this property I then as a real estate man derived an opinion as to what I think the per acre price of that property should be, what the fair market value of it should be. * * *
* * *
Now, one of the questions in the case I think you will have to consider really is whether or not the sale from Matheson to the Nalbone people was a valid sale. The sale was just about a little over a year before the date of the taking. The sale by Mr. Matheson to Mr. Nalbonc was on June 22, 1970. It is agreed that that sale was for $325,000.00. The date of the taking was on October 5, 1971. If that was a legitimate sale, if it was a buyer willing to buy and a seller willing to sell with no compulsion either way, then certainly that price, that sale price within a year or so of the date of taking would he evidence as to what the value of land was. That doesn’t mean that you are bound by this as the valuation but it is evidential. It bears njion the valuation you will come to. Is that a legitimate sale? Is it a comparable sale as the experts testified here? Mr. Martin thought it was, Mr. Walker and Mr. Carini both rejected it. The reason for rejection was that they felt based on their conversation with Mr. Matheson particularly that he was under some sort of pressure to sell and that therefore he sold at a reduced price and that therefore the $325,900.00 does not represent a legitimate figure for that property as of June 22, 1970. Mr. Martin thought it was a legitimate figure and could be used as a comparable sale. Well, you have to evaluate. Was Mr. Matheson under compulsion of some sort? You heard his testimony. You make your evaluation as to whether there was or not, whether this was a fair value or not a fair value at the time of that sale. Mr. Matheson also testified that the property had been on the market for I think about five years at 1500 — .$1600.00 an acre, rather, and eventually sold for something less than that. Does that indicate it was or was not a fair sale?
There is also a question of what would he in the minds of a buyer willing to buy this property on October 5, 1971 and seller willing to sell the property as of October 5, 1971. Certainly as far as back in 1970 when Mr. Matheson sold it he was aware of the Green Acre taking. That was something that was reasonably to be anticipated in the future, and reasonably to be anticipated then would be that any extraction of materials from the property would come to an end when the Green Acres taking took over, when the State took the property. That was certainly a factor he had in his mind. In fact, he knew about it. In fact, he said he told the real estate broker when he had the properly on the market that was so. There is a question whether that was in the Nalbone people’s minds when they bought the property from him in 1970 that bears upon the fair valuation of $325,000.00, too, whether they felt some sort of use of this property would be limited in the foreseeable future by that factor which was there in the background. So you wlil have to evaluate what effect, if any, the Green Acre taking had on the legitimacy of the sale between Matheson and Nalbone and then what effect that would have on the value of the property as of October 5, 1971, if any. [Italics added.]

On this appeal defendant-owners contend that the trial judge committed prejudicial error by the inclusion in his charge of the portion above italicized. It is asserted that, in so doing, the judge thereby instructed the jurors “that they had the right to consider the value of the subject property based upon the knowledge that it was ultimately to be acquired by the State of New Jersey,” and that “the State * * * should not be permitted to benefit by depressing the values of real estate through the threat of condemnation.”

At the outset, we are not at all certain that we agree with defendant’s interpretation of the cited portion of the charge ■ — ■ despite the comments of the trial judge at the time the exception was taken. A reading of the phrase in the context in which it appears, particularly with reference to the preceding portions of the charge, would indicate that the jurors could have construed these words as having but one meaning — namely, that once the jury decided whether the prior announcement of the proposed taking had or had not affected the validity of the 1970 sale as a comparable then, dependent upon its finding in this regard, the jury must next determine the weight, if any, to be accorded the 1970 sale in its effect upon the market value of the premises at the time of the taking.

Such interpretation accords also with the theory of this aspect of the case as it was presented by defendant-owners at the trial, and with the evidence adduced by defendant-owners in support thereof. The issue of the depreciating effect of the prior announcement by the State of the projected taking was initially introducd and subsequently pursued by defendant-owners, only as it affected the bona fide nature of the 1970 sale and its usability as a comparable sale.

The prior announcement of the proposed taking never was urged by the owners as an influence that tended to depreciate the market value of the premises as of the date of the taking, indpendent of and apart from its effect upon the use of the 1970 sale as a comparable. In keeping with this position,' the owners offered not a scintilla of proof as to éither the dollar amount or the percentage by which the market value of the premises had been depreciated as of the date, of the taking, as a result of the prior announcement. Nor did the owners request of the trial judge any instruction to the jury with regard thereto.

Be this as it may, and assuming that the challenged portion of the charge did have the connotation ascribed to it by defendant-owners, we discern no resultant prejudice to the owners in any event. This, even postulating the proposition that a landowner should be entitled to compensation for any decline in the market value of land ultimately condemned which occurs between the time of the announcement of the projected taking and the time of the actual taking, which is attributable to the announcement. 4 Nichols, The Law of Eminent Domain (rev. 3d ed. 1971, and April 1974 cum. supp.), § 12.3151; Annotation, “Condemnation — Depreciation in Value,” 5 A. L. R. 3d 901 (1966). Cf., Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374, 379, 383-384 (1971); East Rutherford Industrial Park v. State, 119 N. J. Super. 352 (Law Div. 1972).

Whatever may have been the depreciating effect (if any) upon the market value of the condemned premises resulting from the prior announcement of the proposed taking, defendant-owners benefited from it to the same or greater extent at the time they purchased the premises in 1970. And, just as an owner is not entitled to benefit from an enhancement in value as a result of a previous announcement of a proposed taking, 4 Nichols, supra, § 12.3151 [1] ; Annotation, “Condemnation — Damages — Enhanced Value,” 147 A. L. R. 66 (1943); Jersey City Redevelopment Agency v. Kugler, supra, 58 N. J. at 379, so a landowner who has not been damaged by the depreciating effect of such prior announcement is not entitled to reap a windfall. If there were any doubt that defendant-owners were not damaged as a result of any such depreciating effect, it is at once dispelled when it is observed that the amount awarded the owners by the jury ($508,500) exceeded the price paid by them for the premises just 16 months earlier ($325,000) by the sum of $183,500 — more than 56% over and above the 1970 purchase price.

We find no merit in the remaining contentions urged by defendant-owners on this appeal. Without regard to the propriety of characterizing as an “income approach,” the valuation theory of the defendant-owners’ experts based upon the sale value of the fill, the trial judge would have committed error had he acceded to the owners’ request to charge the jury that “the income approach is the only realistic method of evaluating mining properties.” New Brunswick v. N. J. Div. of Tax App., 39 N. J. 537, 543-544 (1963) ; Ringwood Co. v. North Jersey Dist. Water Supply Comm’n, 105 N. J. L. 165 (E. & A. 1928); Knox Lime Co. v. Maine State Highway Comm’n, 230 A. 2d 814 (Me. Sup. Jud. Ct. 1967); 4 Nichols supra, § 13.22.

Similarly, with respect to the owners’ request to charge that “as a matter of law, the highest and best use of the property was for mining purposes.” The determination of the highest and best use is for the jury to make on all the evidence submitted. 4 Nichols, supra, § 12.314. Nor do we find any error in permitting rebuttal testimony by the State regarding sales not set forth on the lists of comparable sales that were exchanged between the parties prior to trial, in light of the limited and special purpose for which they were admitted — namely, to challenge the thesis that land for which there had been granted a permit to excavate fill was worth twice the value of the same or similar land without such permit.

Affirmed.


author: Van Sciver, J. S. C.

text:
    LYNN SHEPARD, PLAINTIFF, v. WOODLAND TOWNSHIP COMMITTEE AND PLANNING BOARD, LARRY JONES, AND SUNNY PINE, INC. a/k/a CRESTWOOD VILLAGE, INC., DEFENDANTS.
    Superior Court of New Tersey Chancery Division
    Decided April 18, 1974.

      Mr. Charles A. Little for plaintiff (Messrs. Bleakly, Stockwell & Zink, attorneys).
    ' Mr. Louis J. Greco for defendants Woodland Township Committee and Planning Board and Larry Jones (Messrs. Donio d DeMarco, attorneys).

      Messrs. Robert J. Partlow and Barry T. Parker for defendant Sunny Pine, Inc. (Messrs. Parker, McCay & Criscuolo, attorneys).
   Van Sciver, J. S. C.

Plaintiff, a resident of Woodland Township, Burlington County, instituted this action in lieu of prerogative writ seeking judgment declaring unconstitutional an amendment to the municipal zoning ordinance. The questioned amendment affects sections 601 and 603 of the zoning ordinance of Woodland Township.

Section 601 was amended to read:

Purpose — It is the purpose of this zone to preserve the open agricultural character of this section of the township, and at the same time, provide an area' for large lot residential development, and/or Senior Citizens Communities. * * *• [Amendment italicized]

Section 603, entitled “Special Uses,” set forth seven special exceptions authorizing the zoning board of adjustment, with approval by the township committee, to permit certain uses to be made of lands in that district. By the amendment in question section 603 was enlarged to add an exception permitted in the residential-agricultural zone, under terms and conditions set forth therein as follows:

8. Senior Citizen Communities. In R-A Zones where one or more parcels of land having a contiguous total area of at least 500 acres are under common ownership or control, there may be established a Senior Citizen Community in accordance with the laws of the State of New Jersey and with the following additional requirements:
a. Age and Occupancy Requirements. The permanent residents of a Senior Citizen Community shall be confined to persons who are 52 years of age or over except that one child who is 19 years of age or over may be permitted to reside in any senior citizen dwelling unit occupied by his or her parent (s) or guardian(s). Full time occupancy of any residential unit shall be limited to 3 individuals.

Other conditions not in question here followed.

Plaintiff contends that the amendment in question is violative of the equal protection clause of the United States Constitution and that the case of Taxpayers Ass’n of Weymouth Tp., Inc. v. Weymouth Tp., 125 N. J. Super, at 376 (App. Div. 1973) supports the conclusion. It is argued that there is no reasonable relation betweeen the age limitation and the unit permitted as against persons of other ages and the unit permitted.

The township, together with the planning board and building inspector as defendants, assert that the amendment is not discriminatory, but merely establishes standards for the development of senior citizen residential communities to promote the health and welfare of its occupants; that the amendment does not require a senior citizen community in the R-A zone, but merely permits' it and does not exclude any class of persons from that zone. It is argued that the intent of this ordinance is to regulate the use of lands which have been voluntarily dedicated by its owners as residential areas for senior citizens as distinguished from control over ownership of property based upon age classification held invalid in the Weymouth case, supra.

All parties move the court for entry of summary judgment as to their respective position on the constitutionality of the zoning ordinance amendments in question.

The zoning authority granted by N. J. S. A. 40:55-30 has been construed as being limited to regulation of the type of construction or the use permitted, i. e., physical use of land, rather than permitting the regulation of ownership or occupancy thereof. Bridge Park Co. v. Highland Park, 113 N. J. Super. 219, 221 (App. Div. 1971). The question, then, is whether the amendment in question adding a permissible use, that of senior citizen community, containing an age qualification for residency, is a regulation of land use or a regulation of land occupancy. The proponents argue that the units permitted in an area devoted to such use are regulated in size, density and area, appointments and environmental conditions of parks, trees, water courses, lighting, walks, roadways, vehicle parking, recreational and service facilities, and the like, and are regulated with intent to supply and specifically suit the needs of senior citizens, and that as such the regulations are to be considered as use restrictions rather than occupancy restrictions designed to accommodate persons in the senior category of life.

Economic and social legislation, when charged to be in violation of the equal protection clause of the Constitution (as here), is traditionally judged by determination of whether it is reasonable and not arbitrary, and whether it bears a rational relationship to a premissible objective. Vickers v. Gloucester Tp. Comm,., 37 N. J. 232, 242 (1962). Planning to efficiently and effectively provide accommodation for the needs and services to a segment of our society similarly situated in a manner compatible with the circumstances of the community as a whole is a valid purpose of zoning. Napierkowski v. Gloucester Tp., 29 N. J. 481, 494 (1959).

The announced purpose of the amendment here, aside from the preservation of the agricultural character of portions of the township, is “to provide an area for large lot residential development and/or Senior Citizen Communities. * * *” (Emphasis supplied) The necessary determination then requires a consideration of the regulation from the broad view of planning to see if that regulation is reasonable and in compliance with statutory standards in light of all the existing and reasonably foreseeable circumstances. Fanale v. Hasbrouck Heights, 26 N. J. 320, 325 (1958).

In an effort to distinguish the provisions of paragraph 8(a) from the holding in the Weymouth case, supra, defendants suggest that restricting age and occupancy to “persons who are 52 years of age or over” is a mere definition of “senior citizen” by resort to numerical age and not to be considered a restriction on occupancy by age prohibited by Weymouth.

The amendment in question does not seek to preserve the established character of the entire municipality, as in the recent case of Village of Belle Terre v. Boraas,-U. S.-, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974), but to allow the use of segments of the township for segregated housing. If the ordinance segregated the area for one race as against another it would clearly be invalid. Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16, 62 L. Ed. 149 (1917); Jones v. Mayer Co., 392 U. S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968). So, too, if the segregation was to confine the poor or the rich, or people of similar religious or political faiths, such an ordinance would be clearly invalid.

The question whether the line to be drawn to define “senior citizen” as a qualification for occupancy ought to be by a numerical age or whether some other means of definition or identification ought to be devised is a matter of exercise of discretion and normally, in matters of this kind, that exercise of discretion is a legislative rather than a judicial function. The court’s function, on review, is to determine whether there is a rational relationship between the legislative line drawn and the goals sought to be attained. In the absence of such relationship, the drawing of the line would be arbitrary and not sustainable.

The ordinance actually effectively permits or is intended to establish as a permitted use a certain life style if we are to read the amendment regulations as a whole and consider •the thrust of defendants’ arguments that it is to provide answer to the needs and desires of persons intending to live in a given way and to allow units designed to answer that need in a manner compatible with efficient and effective community planning. However, this court has grave concern that one’s age is an adequate and fair qualification for permitted occupancy in a given life style. Here residency is restricted to persons who are 52 years of age of over. What is to be said of a married couple or an unmarried couple living “as a family” with only one of that couple over the age of 52 years. Is that family to be deprived of qualification to live in that given life style, i. e., the specifically designed residential units allowed by the regulating ordinance. Similarly, is a family, one or both of whom is not 52 years of age or older, to be deprived of their right of privacy to select associations and select a home of their personal needs, which right is otherwise accorded to a family where both are over the age of 52 years. The effect of the age qualification for residency appears to this court to be an unconstitutional discrimination. Molino v. Mayor, etc., Glassboro, 116 N. J. Super. 195, 204 (Law Div. 1971); Kirsh Holding Co. v. Manasquan, 59 N. J. 241 (1971); Taxpayers Ass’n of Weymouth Tp. v. Weymouth Tp., supra.

It is the conclusion of this court that authorization of a senior citizen community as a land use regulation is not foreign to the authority granted to municipalities in the enabling act, but that the .qualification for residency therein limited to persons 52 years of age or over is constitutionally impermissible; that such age qualification bears no realistic relationship to a recognized objective of zoning legislation.

To the extent that the ordinance- amendment in question limits residence in the permitted use in an R-A zone to persons by age, the amendment is invalid.

Judgment shall be entered in accordance with these conclusions.


author: Gelman, J. S. C.,

text:
    CENTEX HOMES CORPORATION, PLAINTIFF, v. EUGENE H. BOAG AND VIRGINIA D. BOAG, HIS WIFE, DEFENDANTS.
    Superior Court oí New Jersey Cliancery Division
    March 28, 1974.

      Mr. David Carmel, attorney for plaintiff. (Messrs. Gross, Demetrakis & Donohue, attorneys).

      Mr. Herbert New, attorney for defendants. (Messrs. Brenner, New & Brenner, attorneys).
   Gelman, J. S. C.,

Temporarily Assigned. Plaintiff Centex Homes Corporation (Centex) is engaged in the development and construction of a luxury high-rise condominium project in the Boroughs of Cliffside Park and Fort Lee. The project when completed will consist of six 31-story buildings containing in excess of 3,600 condominium apartment units, together with recreational buildings and facilities, parking garages and other common elements associated with this form of residential development. As sponsor of the project Centex offers the condominium apartment units for sale to the public and has filed an offering plan covering such sales with the appropriate regulatory agencies of the States of New Jersey and New York.

On September 13, 1972 defendants Mr. and Mrs. Eugene Boag executed a contract for the purchase of apartment unit No. 2019 in the building under construction and known as “Winston Towers 200.” The contract purchase price was $73,700, and prior to signing the contract defendants had given Centex a deposit in the amount of $525. At or shortly after signing the contract defendants delivered to Centex a cheek in the amount of $6,870 which, together with the deposit, represented approximately 10% of the total purchase of the apartment unit. Shortly thereafter Boag was notified by his employer that he was to be transferred to the Chicago, Illinois, area. Under date of September 27, 1972 he advised Centex that he “would be unable to complete the purchase” agreement and stopped payment on the $6,870 check. Centex deposited the check for collection approximately two weeks after receiving notice from defendant, but the check was not honored by defendants’ bank. On August 8, 1973 Centex instituted this action in Chancery Division for specific performance of the purchase agreement or, in the alternative, for liquidated damages in the amount of $6,870. The matter is presently before this court on the motion of Centex for summary judgment.

Both parties acknowledge, and our research has confirmed, that no court in this State or in the United States has determined in any reported decision whether the equitable remedy of specific performance will lie for the enforcement of a contract for the sale of a condominium apartment. The closest decision on point is Silverman v. Alcoa Plaza Associ ates, 37 A. D. 2d 166, 323 N. Y. S. 2d 39 (App. Div. 1971), which involved a default by a contract-purchaser of shares of stock and a proprietary lease in a cooperative apartment building. The seller, who was also the sponsor of the project, retained the deposit and sold the stock and the lease to a third party for the same purchase price. The original purchaser thereafter brought suit to recover his deposit, and on appeal the court held that the sale of shares of stock in a cooperative apartment building, even though associated with a proprietary lease, was a sale of personalty and not of an interest in real estate. Hence, the seller was not entitled to retain the contract deposit as liquidated damages.

As distinguished from a cooperative plan of ownership such as involved in Silverman, under a condominium housing scheme each condominium apartment unit constitutes a separate parcel of real property which may be dealt with in the same manner as any real estate. Upon closing of title the apartment unit owner receives a recordable deed which confers upon him the same rights and subjects him to the same obligations as in the case of traditional forms of real estate ownership, the only difference being that the condominium owner receives in addition an undivided interest in the common elements associated with the building and assigned to each unit. See the Condominium Act, N. J. S. A. 46:8B-1 et seq.; 15 Am. Jur. 2d, Condominiums and Cooperative Apartments, at 977 et seq.; Note, 77 Harv. L. Rev. 777 (1964).

Centex urges that since the subject matter of the contract is the transfer of a fee interest in real estate, the remedy of specific performance is available to enforce the agreement under principles of equity which are well-settled in this state. See Hopper v. Hopper, 16 N. J. Eq. 147 (Ch. 1863); 5A Corbin on Contracts § 1143 (1964); 11 Williston on Con tracts § 1418A (3d ed 1968); 4 Pomeroy, Equity Jurisprudence (5th ed. 1941), § 1402, Restatement Contracts § 360.

The principle underlying the specific performance remedy is equity’s jurisdiction to grant relief where the damage remedy at law is inadequate. The text writers generally agree that at the time this branch of equity jurisdiction was evolving in England, the presumed uniqueness of land as well as its importance to the social order of that era led to the conclusion that damages at law could never be adequate to compensate for the breach of a contract to transfer an interest in land. Hence specific performance became a fixed remedy in this class of transactions. See 11 Williston on Contracts (3d ed. 1968), § 1418A; 5A Corbin on Contracts § 1143 (1964). The judicial attitude has remained substantially unchanged and is expressed in Pomeroy as follows:

* * :1' in applying this doctrine the courts o£ equity have established the further rule that in general the legal remedy of damages is inadequate in all agreements for the sale or letting of land, or of any estate therein: and therefore in such class of contracts the jurisdiction is always exercised, and a specific performance granted, unless prevented by other paid independent equitable considerations which directly affect the remedial right of the complaining party * * [1 Pomeroy, Jltiutiy Jurisprudence (oth ed. 1941), § 221(b)!

While the inadequacy of the damage remedy suffices to explain the origin of the vendee’s right to obtain specific performance in equity, it does not provide a rationale for the availability of the remedy at the instance of the vendor of real estate. Except upon a showing of unusual circumstances or a change in the vendor’s position, such as where the vendee has entered into possession, the vendor’s damages are usually measurable, his remedy at law is adequate and there is no jurisdictional basis for equitable relief. But see Restatement, Contracts § 360, comment c. The early English precedents suggest that the availability of the remedy in a suit' by a vendor was an outgrowth of the equitable concept of mutuality, i. e., that equity would not specifically enforce an agreement unless the remedy was available to both parties. See the discussion in Stoutenburgh v. Tompkins, 9 N. J. Eq. 332, 342-346 (Ch. 1853) ; 4 Pomeroy, Equity Jurisprudence (5th ed. 1941); § 1405; Annotation, 65 A. L. R. 7, 40 (1930); Jones v. Newhall, 115 Mass. 244, 15 Am. Rep. 97, 103 (Sup. Jud. Ct. 1874); Comment, 10 Villanova L. Rev. 557, 568-569 (1965).

So far as can he determined from our decisional law, the mutuality of remedy concept has been the prop which has supported equitable jurisdiction to grant specific performance in actions by vendors of real estate. The earliest reported decision in this State granting specific performance in favor of a vendor is Rodman v. Zilley, 1 N. J. Eq. 320 (Ch. 1831), in which the vendee (who was also the judgment creditor) was the highest bidder at an execution sale. In his opinion Chancel] or Vroom did not address himself to the question whether the vendor had an adequate remedy at law. The first reported discussion of the question occurs in Hopper v. Hopper, 16 N. J. Eq. 147 (Ch. 1863), which was an action by a vendor to compel specific performance of a contract for the sale of land. In answer to the contention that equity lacked jurisdiction because the vendor had an adequate legal remedy, Chancellor Green said (at p. 148);

“It constitutes no objection to the relief prayed for, that the application is made by the vendor to enforce the payment of the purchase money, and not by the vendee to compel a delivery of the title The vendor has not a complete remedy at law. Pecuniary damages for the breach of the contract is not what the complainant asks, or is entitled to receive at the hands of a court of equity. He asks to receive the price stipulated to be paid in lieu of the land. The doctrine is well established that the remedy is mutual, and that the vendor may maintain his bill in all cases where the purchaser could sue for a specific performance of the agreement.”

No other rationale has been offered by our decisions sub sequent to Hopper, and specific performance has been routinely granted to vendors without further discussion of the underlying jurisdictional issue. E. g., Brown v. Norcross, 59 N. J. Eq. 427 (Ch. 1900) ; Moore v. Baker, 62 N. J. Eq. 208 (Ch. 1901); Van Riper v. Wickersham, 77 N. J. Eq. 232 (Ch. 1910); Gerba v. Mitruske, 84 N. J. Eq. 79 (Ch. 1914) ; Meyer v. Reed, 91 N. J. Eq. 237 (Ch. 1920); Morris v. Eisner, 96 N. J. Eq. 538 (Ch. 1924); Salter v. Beatty, 101 N. J. Eq. 86 (Ch. 1927); Mahaffey v. Sarshik, 101 N. J. Eq. 297 (E. & A. 1927) ; Harrington v. Heder, 109 N. J. Eq. 528 (E. & A. 1931); Hoffman v. Perkins, 3 N. J. Super. 474 (Ch. Div. 1949).

Our present Supreme Court has squarely held, however, that mutuality of remedy is not an appropriate basis for granting or denying specific performance. Fleischer v. James Drug Stores, 1 N. J. 138 (1948); see also, Restatement, Contracts § 372; 11 Williston, Contracts (3d ed. 1968), § 1433. The test is whether the obligations of the contract are. mutual and not whether each is entitled to precisely the same remedy in the event of a breach. In Fleischer plaintiff sought specific performance against a cooperative buying and selling association although his membership contract was terminable by him on 60 daj^s’ notice. Justice Heher said:

And the requisite mutuality is not wanting. The contention contra rests upon the premise that, although the corporation “can terminate the contract only in certain restricted and unusual circumstances, any ‘member’ may withdraw at any time by merely giving notice.”
Clearly, there is mutuality of obligation, for until his withdrawal complainant is under a continuing obligation of performance in the event of performance by the corporation. It is not essential that the remedy of specific performance be mutual. * * * The modern view is that the rule of mutuality of remedy is satisfied if the decree of specific performance operates effectively against both parties and gives to each the benefit of a mutual obligation. * * *
The fact that the remedy of specific enforcement is available to one party to a contract is not in itself a sufficient reason for making the remedy available to the other; but it may be decisive when the adequacy of damages is difficult to determine and there is no other reason for refusing specific enforcement. Restatement, Contracts (1932), sections 372, 373. It is not necessary, to serve the ends of equal justice, that the parties shall have identical remedies in case of breach, [at 149]

The disappearance of the mutuality of remedy doctrine from our law dictates the conclusion that specific performance relief should no longer be automatically available to a vendor of real estate, but should be confined to those special instances where a vendor will otherwise suffer an economic injury for which his damage remedy at law will not be adequate, or where other equitable considerations require that the relief be granted. Cf. Dover Shopping Center, Inc. v. Cushman’s Sons, Inc. 63 N. J. Super. 384, 394 (App. Div. 1960). As Chancellor Vroom noted in King v. Morford, 1 N. J. Eq. 274, 281-282 (Ch. Div. 1831), whether a contract should he specifically enforced is always a matter resting in the sound discretion of the court and

* * considerable caution should be used in decreeing the specific performance of agreements, and * * * the court is bound to see that it really does the complete justice which it aims at, and which is the ground of its jurisdiction.

Here the subject matter of the real estate transaction — a condominium apartment unit — has no unique quality hut is one of hundreds of virtually identical units being offered by a developer for sale to the public. The units are sold by means of sample, in this case model apartments, in much the same manner as items of personal property are sold in the market place. The sales prices for the units are fixed in accordance with schedule filed by Centex as part of its offering plan, and the only variance as between apartments having the same floor plan (of which six plans are available) is the floor level or the building location within the project. In actuality, the condominium apartment units, regardless of their realty label, share the same characteristics as personal property.

Erom the foregoing one must conclude that the damages sustained by a condominium sponsor resulting from the breach of the sales agreement are readily measurable and the damage remedy at law is wholly adequate. No compelling reasons have been shown by Centex for the granting of specific performance relief and its complaint is therefore dismissed as to the first count.

Centex also seeks money damages pursuant to a liquidated damage clause in its contract with the defendants. It is sufficient to note only that under the language of that clause (which was authored by Centex) liquidated damages are limited to such moneys as were paid by defendant at the time the default occurred. Since the default here consisted of the defendant’s stopping payment of his check for the balance of the down-payment, Centex’s liquidated damages are limited to the retention of the “moneys paid” prior to that date, or the initial $525 deposit. Accordingly, the second count of the complaint for damage relief will also be dismissed.

      Uncler New York law, if the contract was deemed to be for the sale of realty, the seller could retain the deposit in lieu of damages.

      Thc liesialement’s reasoning, as expressed in § 360, comment c, amounts to the inconsistent propositions that (1) because the vendor may not have sustained any damage which is actionable at law, specifie performance should be granted, and (2) he would otherwise sustain damage equal to the loss of interest on the proceeds of the sale. Yet loss of interest is readily measurable and can be recovered in an action at law, and to the extent that the vendor has sustained no economic injury, there is no compelling reason for equity to grant to him the otherwise extraordinary remedy of specific performance. At the end of the comment, the author suggests that the vendor is entitled to specific performance because that remedy should be mutual, a concept which is substantially rejected as a decisional basis in §§ 372 and 373 of the Restatement.

      Another theory has been suggested as a basis for equity’s jurisdiction to grant specific performance to a vendor: the vendee’s breach constitutes an “equitable conversion” of the purchase price of which the vendee is deemed to be a trustee. See Comment, 10 Villanova, L. Rev. 557, 569 (1965) ; 1 Pomeroy, Equity Jurisprudence, (5th ed. 1941), § 221(b). This view has never been suggested in any reported decision in New Jersey, although it has been alluded to in another context. See Hoagland v. Latourette, 2 N. J. Eq. 254, 256 (Ch. 1839).

      The doctrine of mutuality is discussed in later specific performance cases where the vendor either lacked title to the property at the time of the contract or there was an infirmity in the vendor’s title. E.g., Ten Eyck v. Manning, 52 E. J. Eq. 47 (Ch. 1893).

      While the doctrine has been invoked since Fleischer was decided, see Sarokhan v. Fair Lawn Memorial Hospital, Inc., 83 N. J. Super. 127, 135 (App. Div. 1964) ; Silverstein v. Abco Vending Service, 37 H. J. Super. 439, 448 (App. Div. 1955), its judicial demise has been more recently noted in K & J Clayton Holding Corp. v. Keuffel & Esser co., 113 N. J. Super. 50, 54 (Ch. Div. 1971).


author: Galda, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD DeMOTT, DEFENDANT-PETITIONER.
    Superior Court of New Jersey Law Division
    Decided April 17, 1974.

      Mr. Anthony Sperenza for petitioner.

      Mr. Theodore B. Carron, Assistant Prosecutor, for respondent (Mr. Joseph C. Woodcock, Jr., Prosecutor of Bergen County, attorney).
   Galda, J. S. C.

This is a petition for post-conviction relief made pursuant to B. 3 :22-2 on behalf of Eichard DeMott. Because of the somewhat novel nature of the points raised, some review of the pertinent facts of this matter ought to be made.

On May 12, 1972 Eichard DeMott was sentenced by this court to a State Prison term of 2-3 years for the possession and distribution of heroin.

On June 9, 1972 a motion to modify this sentence was granted by this court. Pursuant to this modification, the prison sentence was suspended on condition that DeMott submit to inpatient treatment at the St. Dismas Eehabüitation Facility for a two-year period. The record indicates that he left the Dismas Facility without permission on the same day he arrived, June 14, 1972.

Because of the violation of the terms of the modified sentence imposed, DeMott was resentenced for violating probation by Judge Shields on July 11, 1972. Judge Shields reimposed the original sentence prescribed by this court on May 12, 1972 — that is, 2-3 years in State Prison.

It appears from the records, and indeed from the presentence investigation, that DeMott was on parole from a sentence of an indeterminate term at Yardville at all times during these proceedings. This parole status grew out of a sentence imposed upon a conviction for robbery in 1970.

Although the presentence investigation clearly states the fact that DeMott was on parole, there was no mention of this by the attorneys or by the courts during any of the three occasions that DeMott appeared for sentencing. Specifically, no mention was made of the possibility that DeMott might face additional incarceration as a parole violator. As a result of this, no decision was made by this court or by Judge Shields as to whether the sentence being imposed was to run consecutively to, or separately from, any potential sentence which might be imposed by the parole authorities at a later time.

On or about June 21, 1973 DeMott or his attorney received official confirmation of the fact that a detainer for a parole violation had, in fact, been filed against him at Ms present place of incarceration. The time involved for this parole violation is two years and seven months.

This petition for post-conviction relief was filed on January 2'i, 1974. On March 8, 1974 the State moved that the petition be dismissed pursuant to R. 3 :22-9 in that the petition did not set forth a cognizable ground under R. 3 :22-2. The motion was denied and the matter set down for a plenary hearing.

As I see it, the issue presented is whether, under these circumstances, petitioner has been denied due. process of law in contravention of the Fourteenth Amendment of the TL S. Constitution.

Petitioner essentially argues that he has been condemned to a sentence longer than what might have boon imposed by virtue of the silence of the sentencing courts.

To fully understand this argument, it is incumbent that we examine the applicable law on this subject.

N. J. S. A. 30:4-123.27 reads in pertinent part:

* * * Ho part of a sentence, for which a parole has been granted and revoked, shall be deemed to be served by a prisoner, whose parole was revoked, while he is serving a sentence for an offense other than the one for which he was paroled.

On its face, this statute would seem to indicate that the time owed on a violation of parole may not be deemed to run concurrently with a sentence imposed for a crime committed while on parole.

This is not the construction that the courts have made when interpreting this statute, however. In State v. Grant, 102 N. J. Super. 164 (App. Div. 1968), it was said:

•i- * « [W]e are convinced that' the statute was not intended to and does not divest a court charged with the duty of sentencing a defendant for such subsequent crime of its inherent power to impose such sentence as it may in its discretion consider just to the individual and adequate for the protection of society. While the duty of determining questions of parole devolves upon the State Parole Board, the power of imposing sentence as a correctional measure, and the determination of how the public interest will best be served thereby, lies with the judiciary. * * [at 170]

See also, State v. Fudali, 113 N. J. Super. 436 (App. Div. 1971).

State v. Grant, supra, stands, therefore, for the proposition that a sentencing judge majr, in his discretion, order that any additional time imposed by the parole authorities upo-n a defendant for violation of parole be served concurrently to the sentence he imposes.

The limitation of this holding is the following:

* * ■> absent a contrary direction by the sentencing judge, a sentence for a crime committed while on parole shall be deemed ... to be served separately from service of the incomplete sentence on which parole was previously granted. [Grant 102 N. J. Super, at 171; Fudali 113 N. J. Super, at 433]

In other words, a defendant may be given a sentence, whereby any time deemed owing by the parole authorities will be served concurrently to the new sentence, but if the court remains silent on this question, the presumption which arises is that the two sentences are not to run concurrently but are to be served consecutively.

It is this “presumption by silence” which is assailed by DeMott in this petition.

In my opinion his contention is meritorious.

Due process of law has been defined many times by the Judiciary. It has been said that due process means “those fundamental principles of liberty and justice which lie at the base fo all our civil and political institutions.” Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937).

A violation of due process occurs when Judicial proceedings

* « * “offend tliose canons oí decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses” *' * ’h These standards of justice are not authoritatively formulated anywhere as though they were specifies. Due Process of law is a summarized constitutional guarantee of respect for those personal immunities which, s" * * are "so looted in the traditions and conscience of onr people as to be ranked as fundamental.” [Rochin v. California, 342 U. S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952)]

Obviously, then, without attempting to delineate the full ambits of the concept, when we speak of procedural due process of Law, we are speaking of the fundamental fairness that is to be accorded to the individual.

Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), explicitly extends the concept of due process to the parolee. While that case was primarily concerned with the procedures and rights involved in parole revocation hearings, my reading of it indicates to me that the rationale behind the case is such that we ought not to attempt to confine its general holding to the limited facts that it was decided upon. While this, of course, is not to imply that a parolee is entitled to the full “panoply of rights” that is accorded a defendant before conviction of a crime, it does appear that many elements of due process or “fundamental fairness” must be afforded a parolee.

There are a number of other considerations that have entered into my decision that the petitioner has indeed been denied duo process of law.

First, it seems to me, there is merit in petitioner’s argument that there is no logic or fairness in presnming consecutive sentences in the face of judicial silence when dealing with parole violators, when the laws of our State presume concurrent sentences when dealing with judicial silence in the face of multiple offenses by an individual.

To clarify this we start with the holdings of State v. Pohlobel, 40 N. J. Super. 416, 423 (App. Div. 1956), and the eases arising thereunder. These cases stand for the proposition that when an individual is sentenced on multiple offenses and the court is silent on the issue of whether the sentences should run consecutively or concurrently, the presumption is in favor of defendant and the sentences are deemed to run concurrently.

To emphasize the point, consider the following hypothetical situation. Defendant X is convicted of a series of armed robberies. He is sentenced on each count separately. The court fails to indicate whether the multiple sentences are to run concurrently or consecutively. The law will presume concurrent sentences were intended.

Defendant Y is on parole for a minor offense. While on parole he commits another minor offense. The court again is silent as to how the parole violation time is to run. Under the present scheme consecutive sentences would be presumed. The absurdity of this situation speaks for itself.

Next, I feel that the proposed revisions of our criminal laws proposed in the New Jersey Penal Code bjr the New Jersey Criminal Law Bevasion Commission, made in October 1971, also lend support to petitioner’s argument.

Proposed section 2C:44-5-e states

Wlion a defendant is sentenced to imprisonment for an offense committed while on parole in this State, such term of imprisonment and any period of reimprisonment that the Parole Board may require the defendant to serve upon the revocation of his parole, shall run concurrently, unless the Court orders them to run consecutively.

I am mindful of the fact that the proposed revisions by the Commission have not yet been enacted by the Legislature. This docs not mean that a court should ignore what it considers to be sound and well-reasoned recommendations by a highly distinguished commission.

Lastly, it appears to me that when one balances the equities of the situation one cannot but agree with petitioner in his assertion here. All that the petitioner is requesting is a day in court during which a judge will decide whether he is deserving of concurrent sentences or if consecutive time is a more just result. It is no answer to assert that petitioner should have raised the question on a previous occasion. Frankly, I doubt it is reasonable to assume that petitioner could have anticipated the situation he finds himself in today.

The remedy in this case is relatively simple. I shall now decide a question that, to my thinking, should have been decided in the summer of 1972. That question is, “Should petitioner’s parole violation term run consecutively or concurrently to the 2-3-year sentence imposed upon him on July 11, 1972?”

My findings are that had this question been raised at the original sentencing, I would have explicitly sentenced him to serve the two sentences consecutively. Petitioner was already on parole for committing a robbery. When he appeared before this court in June 1972 it was for the possession and distribution of heroin. The seriousness of these crimes and the dangers they present to society are such that I cannot in good conscience say that Kichard DeMott was a worthy candidate for his court’s leniency. I therefore hold, for purposes of the record, that any time deemed owing by the parole board shall be served consecutively to the sentence imposed by this court in June 1972.

Some further comments are in order. This court has, today, held that it is á violation of due process of law to presume consecutive terms of incarceration under these circumstances.

Because of the obvious implications of such a holding, whether this decision is to be applied in a prospective fashion only, or in some other manner, is not a proper decision for this court to make. It seems to me that such a determination is a function which lies more properly with the appellate courts or with the State Legislature itself.