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

text:
    LEONE MANAGEMENT CORP., A NEW JERSEY CORPORATION, ET AL., PLAINTIFFS, v. BOARD OF COMMISSIONERS OF THE TOWN OF WEST NEW YORK, ET AL., DEFENDANTS. LEONE MANAGEMENT CORP., A NEW JERSEY CORPORATION, ET AL., PLAINTIFFS, v. BOARD OF COMMISSIONERS OF THE TOWNSHIP OF NORTH BERGEN, ET AL., DEFENDANTS. KEEN REALTY INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. MAYOR AND BOARD OF COMMISSIONERS OF THE TOWN OF WEST NEW YORK, ET AL., DEFENDANTS. JUSTIN C. HARRIS, ET AL., PLAINTIFFS, v. MAYOR AND BOARD OF COMMISSIONERS OF THE TOWNSHIP OF NORTH BERGEN, ET AL., DEFENDANTS. BELFER REALTY ASSOCIATES, A LIMITED PARTNERSHIP OF NEW JERSEY, PLAINTIFF, v. MAYOR AND BOARD OF COMMISSIONERS OF THE TOWNSHIP OF NORTH BERGEN, DEFENDANTS. SAMO HOLDING CORP., PLAINTIFF, v. MAYOR AND BOARD OF COMMISSIONERS OF THE TOWNSHIP OF NORTH BERGEN, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 17, 1974.

      Mr. Laurence B. Orloff for plaintiff Leone Management Corp. (Messrs. Hannoch, Weisman, Stern & Besser, attorneys) .

      Mr. Kenneth R. Blane for defendant Town of West New York (Mr. John Tomasin, attorney).

      Mr. Sheppard A. Guryan for plaintiffs Justin C. Harris et al., Samo Holding Corp. and Keen Realty, Inc. (Messrs. Lasser, Lasser, Sarokin and Hochman, attorneys).

      Mr. Robert Feldman for plaintiff Belfer Realty Associates (Messrs. Wolfberg, Elgart, Schwartz, Van Sickle and Feldman, attorneys).

      Mr. Leon S. Wolk for defendants Mayor and Board of Commissioners of the Township of North Bergen, et al.

      Mr. Kenneth E. Meiser for New Jersey Tenants Organization, as amicus curiae (Camden Regional Legal Services, Inc., attorney).
   Larner, A. J. S. C.

These cases involve an attack by owners of many multiple-family dwellings upon certain provisions of amendments to the rent stabilization ordinances of the municipalities of West New York and North Bergen. Since the ordinance provisions are similar and the legal issues are common, the eases were consolidated for the purpose of hearing the motions addressed to the validity of the sections under attack.

The matters were heard on plaintiffs’ motion for summary judgment by which they contend that the ordinances are facially unconstitutional in several respects and should therefore be set aside as a matter of law.

West New York and North Bergen, as many other municipalities in this State, adopted rent stabilization ordinances shortly after the termination of federal rent controls on January 11, 1973. These ordinances were based upon a finding of a housing emergency and pursuant to local police power approved in Inganamort v. Ft. Lee, 62 N. J. 521 (1973). The pattern of these ordinances involved a freezing of rents in occupied dwelling units at the level which obtained on January 11, 1973, with provisos for increases because of the impact of inflation upon the economy and increased costs of building operations.

In addition to provision for upward rental modification based upon tax increases, capital improvements and hardship pleas, the municipal ordinances authorized an automatic annual increase equal to the difference between the Consumer Price Index (C.P.I.) as of the time of the commencement of the tenancy and the termination of the tenancy.

The use of the C.P.I. as the criterion for permissible rent increases was initially attacked by landlords in other litigation as an arbitrary and unreasonable measure of increased costs. In contrast, municipalities urged in the context of that litigation that the C.P.I. was a reasonable yardstick to measure the effect of inflation and a reasonable means of rent adjustment in recognition of the competing interests of the tenant and landlord in this economic era.

In any event, the use of the C.P.I. was sustained in Albigese v. Jersey City, 127 N. J. Super. 101 (Law Div. 1974), aff’d 129 N. J. Super. 567 (App. Div. 1974), as a reasonable means of regulation within the ambit of the legislative discretion vested in local government.

The facts of economic history in this country and in this area in 1973 and 1974 produced a reversal of position on the part of landlords and municipal governing bodies which has led to the current litigation. The C.P.I. as of March 1974 showed an increase of 10.5% over the index figure of March 1973. Under the existing ordinances this produced an automatic increase of 10.5% in rentals subject to the ordinance. As a consequence there resulted a wave of protest from tenants to their elected local officials. And in response thereto, each municipality proceeded to adopt amendments which sought to cut back the size of rental increases permitted by the underlying ordinances through the adoption of a percentage ceiling on the C.P.I. increase and a percentage ceiling on all other increases. In addition, there were other modifications in an effort to control the rent increases available to the landlord. (These amendments and the flood of problems and litigation in this area stem from the delegation of power ta municipalities to legislate in this area. See Judge 'Conford’s dissent in Inganamort at 545 of 62 N. J.)

The experience over the past year has thus induced the landlords to reverse their position and opt for the fairness and reasonableness of the C.P.I. standard while the tenants and municipal fathers urge that the C.P.I. is excessive and inappropriate as a guide to measure permissible rent increases.

As in all litigation involving municipal ordinances in this field of regulation, there are presented attacks upon many oí the legislative provisions. Lor the purpose of clarity each oí them will be treated separately.

Limitation of G.P.I. increase to 5%, hardship and major improvement increase to 10%, and overall rent increases to 15%

The amendatory ordinance o£ North Bergen adopted on May 28, 1974 (§ 1(a) and § 3(c)) and the parallel amendment of the ordinance of West New York adopted on March 30, 1974 (§ 2(d) (e) and § 4) authorize a cost of living increase based upon the percentage of annual C.P.I. increase with a proviso that the maximum permissible increase on this score shall be 5%. In addition, the ordinances authorize application to the Bent Leveling Board for increases based on hardship and/or major capital improvements with a ceiling limitation of 10% in each category. They also provide that the combined rent increases allowable in all three categories shall not exceed 15% in any one year.

The major thrust of the property owners in their attack on the legal validity of the ordinances centers on the aforesaid percentage limitations on allowable increases. They assert that the creation of these ceilings are arbitrary and unreasonable in that they fail to guarantee a fair return on investment. This objection is not founded upon a factual basis applicable to any particular property or any particular owner. It is bottomed rather on the contention that any percentage limitation on permissible rent increases is unconstitutional on its face and beyond the power of valid regulation by municipal government.

In approaching the question of the validity of municipal legislation the court is constrained to accord the legislation the presumption that it is reasonable, valid and constitutional. And the burden therefore of rebutting this presumption and establishing arbitrariness and unreasonableness rests with those who assert it. Shell Oil v. Bd. of Adjustment, Hanover Tp., 38 N. J. 403, 413 (1962); Moyant v. Paramus, 30 N. J. 528, 547 (1959); Guill v. Mayor, 21 N. J. 574 (1956); Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957).

Assuming this burden, plaintiffs urge that a flat percentage limitation on rent increases per se invades the basic tenet of constitutional validity, namely that the legislation must “allow landlords a fair and equitable return upon their investment,” citing Foti v. Heller, 48 N. J. Super. 57, 65-66 (App. Div. 1957), and Friedman v. Podell, 21 N. J. 100, 104 (1966). See also: Jamouneau v. Harner, 16 N. J. 500, 527 (1954), cert. den. 349 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955); dissent of Judge Conford in Inganamort, supra at 544—546 of 62 N. J.

This argument is made not upon a factual underpinning reflecting an unconstitutional deprivation of property of the landlord but upon an anticipatory fear that conditions may arise in the future where the respective limitations may deprive a landlord of a fair return. As a corollary, plaintiffs contend that the use of the C.P.I. in the basic rent control ordinances as a means of measuring increases justified by the impact of inflation prohibits the imposition of an arbitrary ceiling of 5% on such increases.

As noted in Albigese, supra, 127 N. J. Super. at 122, the governing body of a municipality has the discretion to utilize any mechanism relating to the control of rents albeit experts and other legislatures, state or federal, have adopted legislation or administrative regulations which are attuned to the rate of return to the landlord either on investment or on gross rentals. See, for example, N. J. S. A. 2A:42-74 et seq., N. J. S. A. 2A:42-29(h) (expired). Although the methods utilized in connection with rent or price control in the past may be wiser or more preferable, they do not inhibit local government from utilizing other methods; Cohen v. Beneficial Loan Corp., 337 U. S. 541, 550-551, 69 S. Ct. 1221, 1228, 93 L. Ed. 1528 (1948). And it should be observed that when this court approved the use of the C.P.I. as a mechanism for measuring rent increases in ATbigese, it did not thereby preempt the municipalities from utilizing other methods of control as their experience and judgment might dictate.

The United States Supreme Court has sustained the constitutionality of maximum rents established by the Office of Price Administration during World War II which were generally “fair and equitable” even though they might not guarantee a profit to a particular landlord. Bowles v. Willingham, 321 U. S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1943); Woods v. Miller Co., 333 U. S. 138, 68 S. Ct. 421, 92 L. Ed. 596 (1948). See also, Helmsley v. Fort Lee, 362 F. Supp. 581 (D. N. J. 1973).

it is of further interest to note that federal Phase II price control regulations limited annual rent increases to a 2j4% figure (6 C.F.R. 301.101 (a) (1973 ed.)) plus certain pass-through increases for taxes and capital improvements, and that the State of Maryland has adopted a rent control statute which provides for a 5% ceiling on increases beyond the base rental which existed on January 11, 1973 together with approval for passing through increases in taxes, water and sewer charges and capital improvements. 5A Md. Annot. Code, art. 53, § 45(a), (b) (Supp. 1973.)

In Equitable Trust v. Bowles, 143 F. 2d 735, 738 (1944) the Emergency Court of Appeals created during World War II stated:

We find no requirement in any part of the Act that the Administrator must maintain any ratio or balance between the controlled levels of rents and those of wages and commodity prices. On the contrary, it is required only that maximum rents shall be generally fair and equitable and shall effectuate the purpose of the Act.

As has been observed, the ordinances before the court provide for basic rent increases because of the increase in the C.P.I. and because of capital improvements and/ox hardship. In each instance, the increase is controlled by a percentage ceiling together with a provision for a maximum ceiling increase for all causes of 15%. Furthermore, the landlord is entitled to a tax surcharge in the event of tax increases. The mere imposition of ceilings in itself does not invalidate the legislation, for if a municipality has the power because of a housing emergency to control and regulate rentals it clearly has the power to limit them. It may in its judgment impose ceilings as one of the methods of control. Such price and wage limitations have been uniformly sustained as constitutionally valid where the existing conditions authorize controls for the public welfare. Bowles v. Willingham., 321 U. S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1943) ; Permian Basin Area Rate Cases, 390 U. S. 747, 88 S. Ct. 1344, 20 L. Ed. 2d 312 (1968); Del. Valley Apt. v. United States, 350 F. Supp. 1144 (E.D. Pa. 1972); Amalg. Meat Cutters v. Connally, 337 F. Supp. 737 (D.D.C. 1971); I.L.F.Y. v. City Rent & Rehab. Admin., 11 N. Y. 2d 480, 230 N.Y.S. 2d 986, 184 N.E. 2d 575 (Ct. App. 1962).

The distillation of the legal principles applicable to rent control leads to the inevitable conclusion that the mere imposition of ceilings is not per se unlawful or unconstitutional. There is nothing inherently arbitrary or unreasonable in the mechanism of percentage ceilings as a means of regulation. In the absence of a factual showing that the application of either the 5% ceiling or the 10% ceiling or the combined ceiling of 15% fails to provide a fair and equitable return to the landlord, the court is powerless to interfere with the municipal judgment expressed in the ordinances. On the face of the ordinances, the presumption of validity together with the pattern of permissible increases sustain a rational basis for the percentage ceilings imposed.

Plaintiffs have failed to demonstrate the contrary as a matter of law. Hence summary judgment is manifestly inappropriate on this issue.

Tax Surcharge

The West New York ordinance (§ 5) and the North Bergen ordinance (§ 5(d)) authorize a tax surcharge for any annual increase in real estate taxes. A perusal of the ordinance provisions makes it clear .that the surcharge is allowable in addition to the rent increases already discussed and is not subject to the percentage limitations imposed upon such rent increases.

The formula for the tax surcharge in the West New York ordinance directs the landlord to divide the increase by the number of square feet in the building to arrive at the tax increase per square foot, with the tenant’s liability measured by the multiplication of this figure by the number of square feet in the apartment. Thus, the formula fails to allocate among the tenants the burden of increased taxes applicable to the common areas of the building. As the court stated in Albigese, supra at 120 of 127 N. J. Super. “[This] ordinance provision unfairly compel [s] the landlord to absorb a substantial portion of a tax increase.”

The common areas of an apartment dwelling produce no additional income for the landlord and are a necessary adjunct to the building for the full use and enjoyment by the tenants occupying the apartments. If a landlord is entitled to be reimbursed for tax increases, he should he permitted to recoup the entire increase from the tenants who occupy the building through a formula which computes the unit increase per square foot by the rentable space in the building or other alternative techniques to achieve the same purpose. (See Jersey City ordinance provision described in Albigese, supra at 120).

The requirement that a landlord share in the burden of a tax increase without allowing him to pass on the entire increase to tenants lacks a rational basis for existence. It is therefore arbitrary and invalid on its face and subject to judicial correction on summary application.

The North Bergen ordinance is couched in slightly different language. It provides that the per square foot increase to be applied to the area of each apartment shall be computed by dividing the total area of “housing space” into the total tax increase. If by “housing space” the municipality intended to define the total space occupied by tenants the provision is valid, for that would distribute the total increase among all the tenants. If however “housing space” is intended to encompass the total space in the building including common areas, the provision is subject to the same infirmity as the West New York ordinance.

Tax Refunds

The West New York ordinance provides for a tax refund of 75% of any net tax reduction obtained by the landlord through a tax appeal or through the normal processes of diminution of assessment or tax rate. .(§§ 9 and 10). It is manifest that this refund is payable only if a tax surcharge has been paid by the tenant and to the maximum extent of said tax surcharge. Counsel for the municipality has conceded that such is the intent and purpose of the refund provisions. In case of doubt, they are hereby construed in that manner; and as such there can be no objection to their validity. The computation should be made on the same basis as that properly applied to the tax surcharge.

Plaintiffs in the North Bergen ease have not contested in briefs or in oral argument the tax refund provisions which are contained in the amendments adopted on June 21, 1973 (§ 5(h) and (1)) and hence the court abstains from passing upon their validity.

Provisions Relating to Eviction

Both ordinances (West New York § 18 — North Bergen § 5(s)) seek to establish criteria for the right of a landlord to recover possession of premises occupied by a tenant. It is clear that the Legislature has preempted the field - of '-dispossess actions, mandating the procedures and grounds for same. See N. J. S. A. 2A:18-53 et seq. as amended in 1974.

As a consequence, a municipality has no power to adopt local legislation dealing with the jurisdiction state or county courts and the bases for the exercise of their jurisdiction iii eviction proceedings. As observed by Chief Justice Weintraub in Summer v. Teaneck, 53 N. J. 548 (1969) :

A municipality may not contradict a policy the Legislature establishes. Auto-Rite Supply Co. v. Mayor and Township Committeemen of Woodbridge, 25 N. J. 188 (1957). Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Even absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field. This follows from the basic principle that local government may not act contrary to State law. But an intent to occupy the field must appear clearly. Kennedy v. City of Newark, 29 N. J. 178, 187 (1959). It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action to preclude the exercise of the delegated police power. Masters-Jersey, Inc. v. Mayor and General Council of Borough of Paramus, 32 N. J. 296 (1960), [at 554]

To the same effect, Ringlieb v. Parsippany-Troy Hills Tp., 59 N. J. 348, 351 (1971): Mogolefsky v. Schoem, 50 N. J. 588, 598 (1967).

The provisions of the ordinances relating to eviction constitute an illegal usurpation of power beyond the authority of the municipalities. They are therefore set aside as void.

Ordinance Standards Relating to Increases for Hardship and Major Capital Improvements

In both ordinances provision is made for a rent increase based upon “hardship.” The North Bergen ordinance authorizes a hardship application in the event that a landlord “cannot meet his mortgage payments and maintenance,” while West New York’s ordinance reads “in the event of hardship or if a landlord cannot meet his mortgage payments and maintenance” he may apply for a rent increase. In addition, both ordinances authorize a rent increase based on “major capital improvements,” with the amount determined by the average monthly cost of the improvement derived from its useful life as claimed for income tax purposes.

Plaintiffs assert that these provisions for hardship and capital improvement increases are unconstitutional because they do not contain sufficient standards or particular definitions for guidance of the rent control board to whom the municipality delegated the power of decision.

The term “hardship” is, of course, a flexible standard which allows the board to exercise its discretion based upon a factual showing by the landlord. “If a landlord cannot meet his mortgage payments and maintenance” constitutes a more definitive standard which is demonstrable by financial data submitted to the board. “Major capital improvements” as a definition may inherently contain a potential for different conclusions by a factfinder depending upon the character of the improvement.

The test of validity of standards, however, is not whether the ordinance standards are so specific as to eliminate the need for the exercise of discretion on the part of the agency involved.

The exigencies of modern government have increasingly dictated the use of general, rather than minutely detailed standards and they have, for the most part, received the approval of our courts. [State v. Hotel Bar Foods, 18 N. J. 115, 124 (1955)]

Genéral standards of similar flexibility and import have thus been sustained in the area of legislation relating to rent and other price control legislation.

Eor example, the guides established by the New Jersey Legislature under the State Rent Control Act of 1953 (N. J. S. A. 2A:42-14 ei seq. (expired)) in establishing exceptions to rent ceilings were couched in terms of “reasonable” and “necessary and proper to effectuate the purposes” of the act. These standards were held adequate and lawful in Jamouneau v. Harner, 16 N. J. 500 (1954), and Grenewicz v. Ligham, 34 N. J. Super. 1 (App. Div. 1955).

In the price control statutes during World War II, 50 U. S. C. A. App. § 901 et seq., sustained by the United States Supreme Court, the standard for establishing maxirrmm rents to guide the Administrator was merely that they he "generally fair and equitable.” See Lakemore Co. v. Brown, 137 F. 2d 355 (Emerg. Ct. App. 1943); Bowles v. Willingham, supra; Yakus v. United States, 321 U. S. 414, 64 S. Ct. 660, 88 L. Ed. 834 (1944).

The standard of "exceptional and undue hardship” has been sustained as a valid basis for delegation of power to a hoard of adjustment in connection with a zoning variance under N. J. S. A. 40:55-39(e). Ward v. Scott, 11 N. J. 117 (1952). The same case also sustained the validity of the standard of "special reasons” for a subsection (d) variance.

The Board of Public Utility Commissioners has been guided by general standards such as "public convenience and necessity” (N. J. S. A. 48:2-15) and "just and reasonable” (N. J. S. A. 48:2-21, 48:2-25).

The synthesis of the basic principles applicable to the legislative standards which comply with constitutional requirements can be found in the words of Justice Jacobs in Motyka v. McCorkle, 58 N. J. 165 (1971) :

While we have continued the form of the traditional requirement that delegation must have a sufficient accompanying standard, we have consistently sustained general standards and have not hesitated to imply them. See Ward v. Scott, 11 N. J. 117, 122-128 (1952) ; Schierstead v. City of Brigantine, 20 N. J. 164, 169 (1955) ; In re Berardi, 23 N. J. 485, 491 (1957) ; Wes Outdoor Advertising Co. v. Goldberg, 55 N. J. 347, 350—353 (1970) ; State v. Owens-Corning Fiberglas Corp., 100 N. J. Super. 366, 382-384 (App. Div. 1968), aff’d, 58 N. J. 248 (1969) ; Ass’n of N. J. State Col. Fac. v. Bd. of Higher Ed., 112 N. J. Super. 237, 257-259 (Law Div. 1970). Indeed in recent days we have attached greater significance to the presence of procedural and judicial safeguards against unreasonable and unwarranted agency action than we have to the presence of details in the statutory standards. See Burton, et al. v. Sills, 53 N. J. 86, 91 (1968), appeal dismissed, 394 U. S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969) ; State v. Owens-Corning Fiberglas Corp., supra, 100 N. J. Super. at 385; Esso Standard Oil Co. v. Holderman, 75 N. J. Super. 455, 474 (App. Div. 1962), aff’d, 39 N. J. 355, appeal dismissed, 375 U. S. 43, 84 S. Ct. 148, 11 L. Ed. 2d 107 (1963). [at 177-178]

In light of the plethora of cases sustaining the validity of statutory standards which are couched in terms as general as the ones under consideration herein, the court concludes that the use of standards such as “hardship” and “major capital improvements” are sufficient to pass constitutional muster. The nature of the subject matter is such that the generality of the prescribed standard is both necessary and justified.

The available avenues for review of the action of the rent control board by the governing bodjr and ultimately the courts constitute appropriate and sufficient safeguards to protect landlords and tenants against arbitrary action.

CONCLUSION

The court has considered other issues raised by plaintiffs, including the legal validity of ordinance provisions relating to (1) discrimination because of exclusion of new rental units; (2) undue burden on landlord because of notice requirements relating to increases, and (3) provisions relating to application fees to rent control board, and finds them to be without merit.

Plaintiffs’ motions for summary judgment will therefore be denied except for the provisions of the ordinance which have been found to be facially invalid in this opinion. Since the latter provisions are severable in substance and under the terras of the ordinances, their invalidity does not affect the legislation as a whole, and partial summary judgment will therefore be granted as to these provisions.


source: Caselaw Access Project

author: Schiaffo, J. C. C.,

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ANGELO FRED ROCCASECCA, DEFENDANT.
    Superior Court of New Jersey Law Division—(Criminal)
    Decided October 18, 1974.

      Mr. Leonard Meyerson for defendant (Messrs. Miller, Lfochman, Meyerson & Miller, attorneys).

      Mr. Abel Goldstein, Assistant Prosecutor, for the State, (Mr. James T. O’Halloran, Prosecutor of Hudson County, attorney; Mr. Walter K. Schreyer, Assistant Prosecutor, on the brief).
   Schiaffo, J. C. C.,

Temporarily Assigned. Angelo Eoccasecca was indicted on June 5, 1973 for working for a lottery and possession of lottery paraphernalia, in violation of N. J. S. A. 2A:121—3(a) and (b). He then moved to suppress certain evidence allegedly seized from the drawer of his worktable at the Jonathan Logan Dress Co., in North Bergen, New Jersey, pursuant to a search warrant issued by an acting Municipal judge of the Municipal Court of the Township of North Bergen.

Lt. William Sybel of the North Bergen Police Department, in his affidavit, stated:

T have received confidential information that Angelo Eoccasecca of 26 Oakwood Drive, Wayne, N. .T. picks up number slips from the workers at the Jonathan Logan Dress Company, 3901 Liberty Aye., North Bergen, N. J. The subject writes down the action and then calls it in on telephone. Lieut. Joseph Dunlanie [sic] and I have kept the subject under surveillance for at least ten days and -observed him go from worker to worker getting bets and writing them down. From my knowledge of gambling activities the subject collects the action and in turn calls it in to an organized outfit. The subject may also have slips in his 1968 Ford, color white, 2-door vehicle, reg. NMS 843 N. J. On occasion workers have approached him, handed him money, slips of papers with numbers on them, and joked about it.

The only grounds raised by defendant on his motion to suppress were the failure of the affidavit to state facts from which a finding of probable cause could be made, and the lack of jurisdiction of the judge issuing the warrant'. The motion was heard by County Judge Young, who denied defendant’s contentions without written opinion.

Almost a year later, in the course of preparing the case for trial, Lt. Joseph Dulanie, Sybel’s partner, apparently had a conversation with an assistant prosecutor which contradicted the statements made by Lt. Sybel in the search warrant and in grand jury testimony. Dulanie. subsequently submitted to the assistant prosecutor a signed statement setting forth his version of the events which led to the issuance of the warrant. Dulanie’s statement alleges the following :

(1) During the first week of surveillance defendant had been observed at lunchtime outside of the factory in which he was employed.
(2) Dulanie and Sybel followed him to the Triangle Bar during Roccasecca’s lunch hour.
(3) During the second week of surveillance (March 9, 1973) Dulanie entered the factory under the pretense of checking the alarm system.
(4) While in the factory, Dulanie observed defendant at his worktable writing numbers down and talking to other employees.
(5) However, Dulanie did not observe the defendant taking any bets. He only saw defendant refuse to take money from an employee on one occasion.
(6) On the evening of March 9 Dulanie went to the work area of Roccasecca’s table and looked around.
(7) Dulanie opened a drawer in the table and discovered a package of papers containing numbers bets.
(8) .Dulanie did not take anything from the drawer.
(.9) Dulanie notified Sybel of his discovery by telephone on the evening of March 9, and on March 10 he states that “we” secured a search warrant from Judge Tomasin of West New York.

It therefore appears that Lt. Sybel was incorrect when be stated in his affidavit in support of the search warrant that it was he and Dulanie who had “kept the subject under surveillance for at least ten days and observed him going from worker to worker getting bets and writing them down.” Lt. Sybei’s grand jury testimony also reflects that he had seen defendant taking bets.

Dulanie’s statement did not come to the attention of defendant or his attorneys until September 1974. A meeting was held by the assistant prosecutor, defendant’s attorney and this court, before which defendant is scheduled to he tried. Defendant’s request to renew the motion was referred back to Judge Young, who subsequently deferred to this court. Thereupon, a hearing was held before this court. At the hearing Lt. Dulanie substantiated his written statement, conceding that he had searched defendant’s worktable prior to the issuance of the search warrant.

The questions presently before this court are: (1) may the motion to suppress properly be renewed; (2) does the newly disclosed evidence render the search warrant invalid, and (3) was the gambling paraphernalia seized pursuant to a lawful search ?

I

The first issue to be determined by the court is whether the discovery of new evidence permits defendant to renew a motion to suppress which was previously denied.

As has been previously stated, the initial motion to suppress was confined to the issues of probable cause and the jurisdiction of the issuing judge. Apparently neither the State nor defendant were aware of the activities of Lt. Dulanie which predated the issuance of the warrant. It is undisputed that defendant could not have learned of Dulanie’s search by the exercise of due diligence. Indeed, it was not until a year after the decision by Judge Young on defendant’s motion that the prosecutor became aware of the nature of Dulanie’s involvement in the case.

Defendant’s request to renew the motion to suppress does not address itself to the issues previously raised. Rather, defendant contends that since Dulanie’s statement was not in evidence when either the acting municipal judge issued the search warrant or Judge Young ruled upon the motion to suppress the evidence, the motion to suppress ought to be renewed in order that the court might consider the effect of Dulanie’s statement and the alleged pre-warrant search. Therefore, defendant is questioning neither the issuance of the search warrant by local judge nor the ruling by Judge Young. The motion is made solely on the newly discovered evidence.

The posture of the renewal of the motion to suppress is analogous to the motion for a new trial. The question presented is whether the doctrine of the “law of the case” precludes the court from reconsidering the motion. As was cited by the court in State v. Hale, 127 N. J. Super. 401 (App. Div. 1914):

It has been generally stated that the “law of the case” doctrine “applies to the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit.” Wilson v. Ohio River Company, 236 F. Supp. 96, 98 (S. D. W. Va. 1964), aff’d 375 F. 2d 775 (4 Cir. 1967). This rule is based upon the sound policy that when an issue is once litigated and decided during the course of a particular case, that decision should be the end of the matter. United States v. U. S. Smelting Refin. and M. Co., 339 U.S. 186, 198, 70 S. Ct. 537, 94 L. Ed. 750 (1950). [at 410]

This doctrine "may be applied in a situation where one judge decides a pretrial motion to suppress, but another judge conducts the trial. In such a ease, the decision rendered at the pretrial hearing may be said to be the law of the case during the subsequent trial.” State v. Hale, supra at 411; emphasis added.

However, it is correctly stated in Hale that the “law of the case” doctrine “operates only as a discretionary rule of practice and not one of law.” 127 N. J. Super at 411. See also, State v. Bell, 89 N. J. Super. 437 (App. Div. 1965). Where, as here, new evidence comes to light which was unavailable at the time of the original hearing on the motion through no fault of the movant, the court should not be foreclosed from considering the weight, if any, to be afforded the new evidence.

While there are no New Jersey decisions dealing with the discretionary power of the trial judge to reconsider suppression motions, the policy is well recognized in the federal courts. See, for example, Rouse v. United States, 123 U. S. App. D. C. 348, 359 F. 2d 1014 (D. C. Cir. 1966); United States v. Montos, 421 F. 2d 215 (5 Cir. 1970), cert. den. 397 U. S. 1022, 90 S. Ct. 1262, 25 L. Ed. 2d 532 (1970); Naples v. United States, 123 U. S. App. D. C. 292, 359 F. 2d 276 (D. C. Cir. 1966); McRae v. United States, 420 F. 2d 1283 (D. C. Cir. 1969).

In Rouse, supra, Judge Bazelon stated:

A pretrial ruling on a motion to suppress does not bind the trial judge in all circumstances. New facts, new light on credibility of government witnesses, or other matters appearing at trial may cast reasonable doubt on the pretrial ruling. [359 F. 2d at 1015]

Finally, it should be noted that the State in the memorandum of law which it submitted in opposition to the instant motion does not dispute the right of defendant to a rehearing on his motion, but confines itself to the two points to be considered next.

II

In State v. Petillo, 61 N. J. 165 (1972), it was hold that the truth of the factual assertions contained in the affidavits submitted in support of an application for a search warrant may not be contraverted on a subsequent motion to suppress the evidence seized in the execution of the warrant. See also, State v. Carluccio, 61 N. J. 125 (1972).

The State relies upon Petillo in support of the contention that the defendant is precluded a secondary inquiry into the allegations contained in the affidavit in support of the application for the warrant.

Petillo is, however, inapplicable to the instant motion. There is no doubt that there was ample probable cause demonstrated by the affidavit of Lt. Sybel in support of the application for the warrant. This was the finding of acting municipal judge and was affirmed by Judge Young. This court does not seek to disturb these findings. Moreover, suoh an inquiry is clearly prohibited by Petillo and Garluccio. Were the only question raised on this motion the veracity of the Sybel affidavit and the validity of the search warrant, the motion would clearly be denied.

Ill

The evidence clearly establishes that Lt. Dulanie searched defendant Roccasecea’s worktable prior to the issuance of any search warrant. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment is made applicable to the States through the Due Process Clause of the Fourteenth Amendment. Evidence seized in violation of the Fourth Amendment is subject to exclusion in the state courts. Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

Searches which are conducted without the issuance of a search warrant are valid only if they come within certain exceptions. The court here reviewed the case law as to such exceptions. None of these exceptions are applicable herein.

While the premises searched did not belong to defendant, he had a reasonable expectation of privacy in the area assigned to him in the factory, at least as far as the drawer of his worktable was concerned.

The fact that Dulanie was employed by the Jonathan Logan factory as a part-time security consultant is irrelevant to the question of his authority to search the defendant’s drawer. Dulanie testified that he considered himself on duty as a police officer 24 hours a day. There is no evidence that the investigation of lottery activities came within the scope of his employment by Jonathan Logan. Nor is there any evidence to indicate that Jonathan Logan consented to Dulanie’s activities or was even aware of them. This court, therefore, finds that Dulanie was acting as a North Bergen, New Jersey, police officer when he conducted his search. The search being without a warrant and not falling within any of the permissible categories for warrantless searches, it was violative of the Fourth Amendment, made applicable to the states by the Fourteenth Amendment.

Evidence obtained by unlawful means is subject to the sanction of a exclusionary rule and is not permitted to be used against the defendant in a criminal prosecution. An offshoot of the exclusionary rule is the “fruit of the poisonous tree” doctrine which, in addition to barring evidence directly seized, extends to evidence indirectly obtained by virtue of information or leads obtained in the unlawful search. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920); Nardone v. United States, 308 U. S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939).

Even though the evidence is derived from unconstitutional methods, the evidence may still be admissible if it falls within the “purged taint” exception enunciated in Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The court stated that in each case the controlling test is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be' purged of the primary taint.” Id. at 488, 83 S. Ct. at 417.

It has been stated that “The standard thus enunciated incorporates both the ‘independent source’ and the ‘attenuated connection’ limitations to the fruit of the poisonous tree doctrine.” Annotation, 43 A. L. R. 3d 385, 391 (1972).

The question therefore presented is whether the evidence, seized in the instant case has b!qen come at by exploitation of the unlawful search conducted by Lt. Dulanie or by valid sufficiently distinguishable means. Lt. Dulanie virtually concedes that the search warrant was obtained as a direqt result of the unlawful search when he states in his sworn statement, “I then notified Lt. Sybel of my discovery [via telephone on the same evening], and on March 10, 1971 [the following morning] we secured a search warrant * * (Lt. Dulanie’s testimony -corroborated his sworn statement in that he stated that he and Lt. Sybel secured the search warrant as the first order of business on the morning of March 10.)

The fact that Lt. Dulanie notified Lt. Sybel on the evening of March 9, and secured a search warrant with Sybel on the following morning, indicates that the unlawful search had a significant impact on Sybel and Dulanie’s decision to secure a search warrant. This is not to say that the taint of the unlawful search would have been dissipated if a séarch warrant had been obtained several days later. However, the' close time sequence of the unlawful search and the application for the search warrant leads this court to find that the unlawful search does taint the search warrant, rendering the evidence subsequently seized inadmissible. “Well reasoned opinions of Federal Courts, while not binding, are persuasive on the issue of reasonableness of a search and seizure, in absence of decisions of Hew Jersey reviewing courts.” State v. Chance, 71 N. J. Super. 77 (Cty. Ct. 1961), as cited in State v. Manghan, 126 N. J. Super. 162, 166 (Law Div. 1973).

In United States v. Paroutian, 299 F. 2d 486 (2 Cir. 1962), defendant’s apartment was searched twice unlawfully by narcotics agents prior to a third and lawful search. On the last occasion the agents discovered a secret compartment in a closet which they had previously examined. The court held that the evidence actually seized during the third search was tainted by the first two illegal searches. Only if the government had shown that it had knowledge of the secret compartment in the closet from an independent source would the evidence have been admissible. Id. at 489. This reasoning was adopted by the court in United States v. Soviero, 357 F. Supp. 1059, 1062 (S.D.N.Y. 1972).

In Soviero, it was found that agents had entered defendant’s apartment before they had sought and obtained a search warrant. In considering the evidence seized after the issuance of the warrant the court, relying on Paroutian, supra 299 F. 2d at 489, held that “once there is an illegal search and defendant has introduced 'substantial’ evidence showing that the items were discovered as a result of the illegal search, the burden shifts to the government 'to prove that its evidence had an independent origin.’” 357 F. Supp. at 1062.

In the instant ease the State did not show that it had knowledge from an independent source indicating the existence of the lottery slips in defendant’s worktable. It was incumbent upon the State to offer proof indicating that application for the search warrant was made either despite or without reliance upon the illegal search. The State did not. call Lt. Svbel to testify, and it is possible that his testimony would have revealed that the affidavit which he executed was in fact free from taint. Clearly, the State did not meet its burden of showing that it would have sought a search warrant regardless of the illegal search. The court in Soviero, supra, 357 F. Supp. at 1062, further relies upon Paroutian, supra, 299 F. 2d at 489, when it states that “It may well be that reasonable agents would likely have sought a search warrant based on other information about Soviero which they possessed. Nevertheless, as the Paroutian court- said, 'The test must be one of actualities, not possibilities.’

. Defendant’s motion to suppress the evidence seized on March 10, 1971 is granted.


author: King, J. C. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. LUCIUS JONES, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 22, 1974.

      Mr. John W. McFeeley, III, Assistant Prosecutor for the State (Mr. Thomas Shusted, Prosecutor Camden County).

      Mr. Murray N. Sufrin for defendant.
   King, J. C. C.,

Temporarily Assigned. Defendant, is on trial on charges of mnrder, arson and kidnapping. On the sixth day of trial, while being transported from the courtroom on the second floor to the county jail on .the sixth floor by two unarmed court attendants, the handcuffed defendant was exposed to three or more jurors for 15 or 20 seconds while an elevator carrying the jurors opened unexpectedly. No leg shackles were used. Defendant has been neatly groomed, properly-deported, ‘and well dressed throughout the trial, as were the other two codefendants. No physical or verbal characterization of defendant as dangerous or obstructive has arisen during the trial. All reasonable precautions to prevent- such an incident had been followed. The episode was entirely accidental, and apparently resulted when a mechanical defect disabled the security elevator in which the defendant was usually transported, which was not used by the jury or public.

The issue here is whether the fact that some jurors may have seen defendant in handcuffs for a few seconds'was so inherently prejudicial as to deny him his constitutional right to a fair trial and require the court to grant his motion for a mistrial. The exact question has not been decided in this state. A somewhat comparable situation arose in State v. Sykes, 93 N. J. Super. 90 (App. Div. 1966), where defendant was seen by jurors in handcuffs as he approached the courtroom just prior to summations. The judge asked defendant if he desired to move for a mistrial. After consulting with his attorney, defendant instead was permitted to retake the stand and testify with respect to his present incarceration. It was also agreed that suitable cautionary instructions would be given! to the jury. On post-conviction relief the Appellate Division found no fault with this procedure. The question presented on appeal was whether the trial court should have directed a mistrial on its own motion. Answering that question in the negative, the Appellate Division left open the precise consideration presented here: “Whether or not the court would have granted a mistrial had one been requested, we cannot know.” 93 N. J. Super. at 94.

A motion for mistrial is addressed; to the-sóund discretion of the trial court, but the power to grant such motion should be exercised with great caution. Wright v. Bernstein, 23 N. J. 284 (1957). The exercise of judicial discretion in ruling on the motion involves an appraisal by the trial court of the probable effect of the objectionable incident on a fair trial. Runnacles v. Doddrell, 59 N. J. Super. 363 (App. Div. 1960). Such an appraisal “depend[s] very largely on the ‘feel’ of the case which the trial judge has at the time,” Greenberg v. Stanley, 30 N. J. 485, 502 (1959), and the trial court’s determination will not he altered on appeal unless it is strikingly clear that the parties could not have had a fair trial under the circumstances. Id.

It is well established that under ordinary circumstances a defendant’s freedom from handcuffs, shackles or manacles is an important component of a fair and impartial trial. State v. Roberts, 86 N. J. Super. 159 (App. Div. 1965); Way v. United States, 285 F. 2d 253 (10 Cir. 1960); United States v. Roustio, 455 F. 2d 366 (7 Cir. 1972). This procedure has been historically followed in order to avoid a prejudice in the minds of the jury against the accused as being a dangerous man, as well as to allow the accused the free and calm use of his facilities. State v. Roberts, supra; Kennedy v. Cardwell, 487 F. 2d 101 (6 Cir. 1973); 21 Am. Jur. 2d, Criminal Law, § 240 at 276.

Defendant’s right to be free of shackles during trial need not he extended to the right to be free of shackles while being taken hack and forth between the courthouse and the jail. Commonwealth v. Carter, 219 Pa. Super. 280, 281 A. 2d 75 (Super. Ct. 1971); Moffett v. State, 291 Ala. 382, 281 So. 2d 630 (Sup. Ct. 1973); People v. Panko, 34 Mich. App. 297, 191 N. W. 2d 75 (App. Ct. 1971). It is within the sound discretion of an officer charged with the custody of a person to place handcuffs or shackles on him to prevent escape and to protect public safety while the prisoner is being transported. State v. Moore, 257 S. C. 147, 184 S. E. 2d 546 (Sup. Ct. 1971). In State v. Warriner, 506 S. W. 2d 103 (Mo. Ct. App. 1974), defendant was removed from the courtroom at the end of the first day of trial in handcuffs and was viewed by the jury outside the courtroom for two or three minutes. Quoting from United States v. Leach, 429 F. 2d 956, 962 (8 Cir. 1970), the court held (at 104), “It is a normal and regular as well as a highly desirable and necessary practice to handcuff prisoners when they are being taken from one place to another, and the jury is aware of this.” Defendant’s motion for mistrial was denied.

Further guidance in this area is found in the A.B.A. Project on Standards for Criminal Justice, Standards Relating to Trial by Jury (tentative draft, 1968) (hereinafter cited as Standards) :

4.1 Custody and restraint of defendants and witnesses.
(a) During trial the defendant should be seated where he can effectively consult with his counsel and can see and hear the proceedings.
(b) An incarcerated defendant or witness should not be required to appear in court in the distinctive attire of a prisoner or convict.
(c.) Defendants and witnesses should not be- subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he Should enter into the record of the case the reasons therefor.- Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.

The accompanying, commentary (at 94) recognizes that added physical restraints may be employed while transporting defendants to and from the courtroom. However, with respect to a situation in which a defendant is momentarily viewed by jury members while handcuffed, the commentary, citmg Montoya v. People, 141 Colo. 9, 345 P. 2d 1062 (Sup. Ct. 1959), and French v. State, 377 P. 2d 501 (Okla. Cr. App. 1963), cautions that “courts in recent years have characterized such incidents as being most prejudicial.” (At 95).

The decisions cited may be distinguished from the instant case. In the French case the court was faced with a more egregious situation. On two separate occasions defendant was brought into the courtroom in the presence of members of the jury accompanied by three armed guards while his hands were cuffed and his arms bound to a six-inch leather belt around his body. In the courtroom two of the guards removed the physical restraints while the other guard stood watch. The appellate court, reversing defendant’s conviction, found this procedure to be violative of a state statute which prohibited the use of chains or shackles before a jury unless shown to be necessary. No comparable statutory authority exists in New Jersey. Reversible error was also found in Montoya v. People, supra, where the trial court had denied defendant’s motion for mistrial. Defendant had been brought in to open court before the jury panel manacled. The sheriff who thus brought defendant into open court testified that he could have brought him to court without handcuffing him. In reversing defendant’s conviction the Colorado Supreme Court also relied on the ground that the systematic and improper exclusion of persons of Spanish-sounding names from service on the petit jury had been established by the defense. The decision was expressly limited to the particular facts before the court: “We do not mean to be understood as holding that a defendant can never be brought into court handcuffed, but in this case it was unnecessary and prejudicial to defendant to thus exhibit him before the jury panel.” [141 Colo. at 12, 345 P. 2d at 1064],

More akin to the instant situation is State v. Sawyer, 60 Wash. 2d 83, 371 P. 2d 932 (Sup. Ct. 1962), which'is also cited in the commentary on A.B.A. Standards, at 97. Defendant claimed that he was denied a fair trial because some members of the jury observed him being handcuffed by a deputy sheriff following adjournment the first day of trial. The Supreme Court of Washington stated: “The affair, at most [was] a misadventure. No constitutional right was prejudiced even if we assume the facts to be as claimed.” 60 Wash. 2d at 85, 371 P. 2d at 933. Most courts now agree with the Sawyer decision that a defendant is not denied a fair trial and is not-entitled to a mistrial solely because he was momentarily and inadvertently seen in handcuffs by jury members. Commonwealth v. Ferguson, Mass. —, 309 N.E. 2d 182 (Sup. Jud. Ct. 1974) (handcuffed defendant appeared in courtroom in view of jury); Brand v. Wofford, 230 Ga. 750, 199 S. E. 2d 231 (Sup. Ct. 1973) (handcuffed defendant led through courthouse corridor in view of prospective jurors),; United States v. Rickus, 351 F. Supp. 1386 (E.D. Pa. 1972) (handcuffed defendant seen by jury members; no proposed charge submitted by defendant); People v. Dismuke, 3 Ill. App. 2d 553, 278 N.E. 2d 152 (App. Ct. 1972) (possibility that defendant was seen in barred detention, cell by jurors as.thejr passed into courtroom) ; State v. Crockett, 262 La. 197, 263 So. 2d 6 (Sup. Ct. 1972) (handcuffed defendant escorted out of courtroom in jury’s full view) ; United States v. Wilkerson, 453 F. 2d 657 (8 Cir. 1971) (defendant, dressed, in jail clothes, wearing handcuffs and leg-irons and accompanied by armed guards was possibly exposed to jury panel); Jessup v. State, Ind. App., 269 N.E. 2d 374 (App. Ct. 1971) (defendant and two of his witnesses, all convicted felons,:were brought into courtroom before the jury under heavy guard in handcuffs and restraining chains).

The atmosphere throughout the trial was in every way calm and dignified. Ho pernicious or inflammatory flavor has attached to the procedure. In the context of the entire proceeding the court does not believe this fleeting episode possesses the potential of distracting the jury from its function of rendering a verdict on the facts and the law. The court does not believe that defendant’s brief exposure to his jury while in handcuffs was sufficiently prejudicial to impair his fundamental right to a fair trial. Defendant’s motion for mistrial is denied. The court has offered to give the jury a corrective charge but defendant’s counsel refused the offer.


author: Marzulli, J. C. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. FRANCIS PENNINGTON A/K/A FRANCIS LYNDE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 29, 1974.

      Mr. Joseph Ferrante, Assistant Prosecutor for the State (Mr. Joseph P. Lordi, Prosecutor of Essex County).

      Mr. Charles S. Lorber for defendant (Mr. Edmond M. Kirby, Deputy Public Defender of Essex Region).
   Marzulli, J. C. C.,

Temporarily Assigned. The issue is whether the question of defendant’s sanity at the time of the commission of a crime is to be decided by a 10 to 2 or by a unanimous verdict of the trial jury.

N. J. S. A. 2A:163-2 provides that the issues of competency and sanity may be determined at a pretrial hearing conducted by the judge alone or with a jury specially impanelled. Aponte v. State, 30 N. J. 441 (1959). This pretrial hearing has been held to be a civil proceeding “in the nature of an inquest trying a collateral issue,” State v. Gibson, 15 N. J. 384, 388 (1954). As such, a verdict “may be rendered by ten or more of the jury of 12 agreeing.” State v. Gibson, supra; N. J. Const. (1947), Art. I, par. 9; N. J. S. A. 2A:80-2; R. 1:8-2 (c).

N. J. S. A. 2A:163-2 contains a subsequent paragraph which provides as follows:

* *■ * a finding of sanity at the time of the commission of the offense charged against such person in this proceeding shall not preclude the accused from interposing the defense of insanity at any subsequent trial of the offense charged.

A defendant may raise the defense of insanity at trial even though there has been a pretrial determination of his sanity at the time of the commission of the offense. Our Supreme Court has suggested that the issue of competency to stand trial be resolved by the judge and the question of sanity at the time of the offense be submitted to the jury at the time of the trial. Aponte v. State, 30 N. J. 455 (1959).

If this procedure is followed, the first opportunity defendant will have to raise the defense of insanity will be before the jury impanelled to try the indictment. At that time he must overcome the assumption of sanity by a preponderance of the evidence. State v. DiPaglia, 64 N. J. 288, 293 (1974).

If one is to follow the dictates of B. 1:8-9, which provides for unanimity of verdict in criminal trials, then defendant must prove his insanity at the time of the alleged offense to all of the jurors at the trial, but to only ten of the jurors at a pretrial hearing where the same issue is raised.

The problem is in attempting to differentiate between the effect of Ihe pretrial disposition as to the question of defendant’s sanity and the disposition of same at trial.

The statute provides that if a defendant were found at the pretrial to be insane at the time the offense was committed, then the charge against him would be dismissed. The judge or the jury would also determine if the underlying disease of the mind still existed and, if so, commit the defendant. State v. Maik, 60 N. J. 203, 217 (1972).

In the pretrial proceeding there has been no judicial determination that defendant did in fact commit the criminal acts. The issue of guilt never arises.

On its face it appears that the defendant is not being treated as a criminal. However, in fact defendant receives the same treatment as if he were found to have been insane at the time of the alleged offense during the trial of the indictment. At trial a defendant is actually determined to have committed the alleged offense but is acquitted if found to be insane at the time of the offense. If the jury determines the underlying defect of reason still continues, the court orders such person into safe custody and commits him. State v. Maik, supra. The effect on defendant is the same in either case.

Some-may argue that a sanity' determination at trial is subject to- the rules of criminal rather than civil procedure. However, why should a defendant found to be insane at the time of the offense at a pretrial hearing be compelled to satisfy a 10-2 verdict, while a defendant who is pleading the defense of insanity at trial be forced to prove it by 12-0 ?

The determination of sanity is in the nature of a civil proceeding even though raised within the framework of a criminal case. The defense of insanity, unlike other defenses, provides a burden which falls upon defendant. The assumption of sanity compels defendant to prove by a preponderance of the evidence that he was insane at the time of the offense. State v. DiPaglia, supra. The court is aware that the burden of proof has no relevance to the requisite number of jurors who must agree on a verdict. The burden of proof generally refers to the quantity and/or quality of the evidence and not the number of jurors who must be fewayed by the evidence. Cf. Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972) State v. Carter, 64 N. J. 382 (1974), and dissent. However, compelling a'defendant who seeks to prove insanity to establish it by un'animity is to weigh the defendant with heavier burden than that contemplated by the statute.

The courts do not view the defense of insanity with disfavor but rather have sought to distinguish between a “hostile act springing from wickedness” and one done “from some infirmity of the mind which the individual did not author.” State v. Maik, supra. Upon finding that defendant committed the alleged act, the courts do not adjudicate him guilty of that act but rather acquit him due to insanity which precludes any personal blameworthiness. If this be so, why require a unanimous verdict?

This court is aware that if the question of insanity can be established by a 10-2 verdict, then conversely the question of sanity at the time of the commission of the offense can be determined by a 10-2 verdict. This would not compromise nor prejudice the rights of a defendant. Intent would have to be proven to the satisfaction of all of the jurors when intent is a necessary element of the crime charged. The onus upon the State to prove the necessary elements of the offense is not in any way diminished.

The jury shall be instructed the issue of defendant’s sanity at the time of the offense may be determined by a 10-2 verdict.


author: Brody, J. J. D. R. C.

text:
    THE STATE OF NEW JERSEY IN THE INTEREST OF J. B., JR.
    Juvenile and Domestic Relations Court — Union County
    October 11, 1974.

      Mr. Tom Simon, Assistant Prosecutor, for the State (Mr. Karl Asch, Prosecutor of Union County, attorney).

      Mr. Leonard Sachar, for the juvenile (Messrs. Sachar, Bernstein & Bothberg, attorneys).
   Brody, J. J. D. R. C.

The juvenile, charged with delinquency for possessing more than 25 grams of marijuana, moves to suppress the fruits of a warrantless search of his person.

Plain field police officers Peter Cochin and Bobert Eohinson were on radio car patrol early December 9, 1973 when at approximately 1:80 a.m. they received a dispatch from headquarters followed shortly by a dispatch from an officer at the scene of an accident. The substance of these dispatches was that a car had struck a parked car, that witnesses had observed a white male with long hair alight from the errant vehicle and ilee on foot toward nearby railroad tracks, and that the ignition key was missing from the vehicle which caused the accident.

As the officers drove toward where the fleeing driver was reported heading, they saw a 15-year-old white boy with long hair walking on the sidewalk in a black neighborhood several blocks from the accident site. His lip was bleeding, his right arm appeared to be hurt and his clothes were wet. At the time, bushes along the railroad tracks were wet from an earlier rain.

The officers stopped the boy, the juvenile in this case, and asked him to account for himself. He offered a succession of three inconsistent stories. Initially he claimed to have been beaten by a “black dude” but could not give details. He then claimed he got hurt in a tavern fight but was unable to give any corroborating detail. Finally, after being advised where he was, • he described being beaten up somewhere on Richmond Street in Plainfield but was unable to give details.

Officer Cochin then conducted a full search of the juvenile. He testified that he was looking for the ignition key to the car involved in the accident. In a right jacket pocket he uncovered two plastic bags allegedly containing marijuana, whereupon he told the juvenile that Ihe was under arrest. The officers took the boy to a hospital where they conducted a more extensive search, uncovering in one of his socks a third bag allegedly containing marijuana.

After the searches the officers learned that the vehicle causing the accident had been reported stolen. They both testified that at the time of the searches they believed the juvenile guilty only of “hit and run.” It did not then occur to {¡hem that the ear he was driving might have been stolen.

On the State’s motion before hearing, the judge dismissed for lack of evidence all complaints against the juvenile predicated on his use of the car at the time of the accident.

In a juvenile case the court will suppress evidence unlawfully obtained by an unreasonable search. R. 5 :8-9; N. J. S. A. 2A:4-60; State in the Interest of L. B., 99 N. J. Super. 589 (J. D. R. C. 1968); State v. Lowry, 95 N. J. Super. 307 (Law Div. 1967). Where the search was warrant-less, the State has the burden of establishing its legality. State v. Gaudiosi, 97 N. J. Super. 565 (App. Div. 1967). It offers to do so in this case by showing that before the search the police had probable cause to believe that the juvenile had committed any one of several offenses and that the circumstances were exigent. State v. Smith, 129 N. J. Super. 430 (App. Div. 1974). The juvenile contends that the only offense for which there might have been probable cause was “leaving the scene of an accident,” a motor vehicle offense which must be — but was not — committed in the presence of the officers for their search to have been lawful.

I

While the term “arrest” is not to be used to describe taking a juvenile into custody, it will be so used in this opinion for the purpose of evaluating the lawfulness of the search. II. 5:8-2(a).

New Jersey adheres to the common-law rule that a warrantless arrest for a felony is lawful if the arresting officer has probable cause, but unlawful for a misdemeanor unless the offense was committed in the presence of the officer. State v. Smith, 37 N. J. 481, 493 (1962), cert. den. 374 U. S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). The reason for the in-presence requirement is that “unless the officer himself knows of the offense and the offender, it is better, in the light of the less serious nature of the alleged offense, to leave the determination of probable cause for an arrest to an officer in the judicial branch.” State v. Morse, 54 N. J. 32, 35 (1969). An exception to the rule occurs where the person arrested first admits to the officer that he committed a misdemeanor, in which event the arrest is lawful even though the offense was not committed in the officer’s presence. State v. Morse, supra at 36.

New Jersey does not classify its offenses as common-law misdemeanors and felonies. As to the application of the in-presence requirement, the distinction depends upon the maximum punishment attached to the offense: an offense carrying a punishment of imprisonment up to one year is the equivalent of a common-law misdemeanor, and an offense carving a maximum imprisonment in excess of one year is the equivalent of a common-law felony. State v. Doyle, 42 N. J. 334, 348 (1964). Thus, the in-presence requirement applies to disorderly persons and motor vehicle offenses. N. J. S. A. 2A:169-3; N. J. S. A. 39:5-25.

A lawful custodial arrest iiself justifies a full search of the person arrested. United States v. Robinson, 414 U. S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). When facts known to the officer meet the criteria for a lawful custodial arrest, he may legally conduct a full search of the person even though, as here, the formal arrest comes after. State v. Smith, 129 N. J. Super. 430 (App. Div. 1974). However, when facts known to the officer fall short of meeting the criteria for a lawful arrest, he may not legally conduct such a search because a full search of the person is a sufficient intrusion on privacy to require being tested by the same criteria applied to a custodial arrest.

Ordinarily there is no need to make the point that the criteria for conducting a lawful full search of the person and making a lawful custodial arrest are interchangeable, because ordinarily they are defined and circumscribed by the same constitutional standard. Cf. Sibron v. New York, 392 U. S. 40, 67, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). In this case, however, we are also dealing with a nonconstitutional standard: the in-presence requirement, which heretofore has been expressed as a criterion for a lawful warrantless arrest. I conclude that it should be applied as well to a warrantless full search of the person in the absence of an attendant formal arrest. References herein to criteria for arrest are therefore to be understood as criteria for a search preceding formal arrest.

The criteria for the lawful arrest of a juvenile are those applicable to arrest for an adult offense (II hereafter) supplemented by criteria contained in rules of court pertaining to juvenile offenses (III hereafter). State v. Smith, 32 N. J. 501, 531-532 (1960); N. J. S. A. 2A:4-54.

II

A preliminary question is whether an officer may lawfully make a warrantless arrest for a motor vehicle offense. R. 7:6-1 (a) provides in part that for motor vehicle violations "the complaint and summons shall be a uniform traffic ticket * * In State v. Jones, 122 N. J. Super. 585, 592 (Cty. D. Ct. 1973), the court concluded that the rule thereby prohibited any warrantless arrest and that the rule supplanted the warrantless arrest procedure provided for in N. J. S. A. 39 :5-25, citing Winberry v. Salisbury, 5 N. J. 240 (1950), for the supremacy of a rule over a statute. I do not read the rule as establishing the exclusivity of the complaint and summons procedure. R. 3 :4-l, made applicable to motor vehicle offenses by R. 7:3 — 1, establishes procedures to be followed in making a warrantless arrest.

The state describes the offense which prompted the search as “leaving the scene of an accident.” Conceding that the in-presence requirement applies to this motor vehicle offense, the state contends that it occurred in the presence of the arresting officers in that they had probable cause to believe that the juvenile was literally leaving the scene of an accident when he was stopped and searched.

The offense is defined in N. J. S. A. 39 :4-129 which requires the driver of a vehicle involved in an accident to identify himself in various ways depending upon whether personal injury or property damage is involved and depending upon whether the other vehicle or vehicles are attended at the time of the accident. After an accident involving only property damage to an unattended vehicle it is sufficient if the driver attach a notice of his identity to the other vehicle. Thus the question raised is whether the juvenile’s failure to leave behind notice of his identity was a continuing offense still occurring in the presence of the officers when they arrested him several blocks from the scene of the accident.

Whether failure to perform a legally mandated act in time, constitutes a continuing offense has met with varying judicial responses. See State v. Morse, supra, overruling State v. Orr, 93 N. J. Super. 140 (App. Div. 1966) ; contra, Toussie v. United States, 397 U. S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 15-6 (1970). In the present case, however, that question need not be reached. There are two elements to the offense under consideration: (a) driving a vehicle involved in an accident and (b) failing to leave behind proper notice of identification. Unless all elements of an offense occur in the presence of the arresting officers it cannot be said that tha in-presence requirement has been satisfied. People v. Craig, 153 Cal. 42, 91 P. 997 (Sup. Ct. 1907). Because the purpose of the in-presenoe requirement is to prevent a mistaken arrest, the arresting officers would have to sense something more than what would appear to them to be nonoffensive behavior. Accord, cases involving possession and transportation of concealed liquor, collected at 20 A. L. R. 652 (1922) and 44 A. L. R. 132 (1926). Since the arresting officers did not observe the juvenile when the accident occurred, the offense did not occur in their presence.

The arresting officers did not believe before the search that the juvenile had committed the equivalent common-law felony of stealing the motor vehicle he was driving. N. J. S. A. 2A:119-2. Nonetheless, the State next contends that the in-presenee requirement is inapplicable because they had probable cause for such a belief. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man’s believing that an offense, has been committed by the person to be arrested or searched. State v. Smith, 37 N. J. 481, 495 (1962). The test is an objective one determined by the reviewing judge; whether the officer believed he had probable cause is not dispositive. State v. Zito, 54 N. J. 206, 212 (1969); Bailey v. United Slates, 279 A. 2d 508 (D. C. Ct. App. 1971).

On the basis of the information that the officers had at the time they undertook the search, there was probable cause to believe that the juvenile drove the car which caused the accident described in the radio dispatches. This is based on the description of his appearance, the place where he was intercepted, the fact that he seemed out of place in that neighborhood at that time of night, the dampness of his clothes indicating he had taken the railroad track route from the scene of the accident to the point of interception, and the inconsistent and evasive answers he gave in attempting to account for himself.

However, I find that the police did not have probable cause to believe that the juvenile stole the vehicle. To be sure, the juvenile’s apparent abandonment of the car suggests that he had not been using it lawfully. But theft requires intent to deprive the rightful owner of the car’s use indefinitely. State v. South, 28 N. J. L. 28 (Sup. Ct. 1859). The juvenile’s apparent taking of the ignition key with him suggests either ownership or some connection with the owner inconsistent with intent to steal. Also, the boy’s youth, apparent to the officers, militates against larcenous intent. He could hardly expect to keep the car for long without being caught and it is not likely that a professional ring of car thieves would employ an unlicensed 15-year old whose inability to drive was amply demonstrated by the accident. Lacking larcenous intent, the juvenile would be guilty of joy-riding, a disorderly persons offense. N. J. S. A. 2A: 170-38.

In addition, while the officers’ view of the matter is not a bar to considering whether there was probable cause, their expertise may be taken into account. Cf. State v. Kasabucki, 52 N. J. 110, 117 (1968). The officers both testified that it did not occur to them that the vehicle driven by the juvenile had been stolen. Officer Robinson testified that when they conducted the. search, “We were in fact at that time looking for a hit and run driver.” The gist of both officers’ testimony is that even in retrospect they did not believe the juvenile had stolen the ear until they learned it had been reported stolen.

The State has not met its burden of proving that before the search the officers had probable cause to believe the juvenile stole the car that caused the accident.

The State next contends that in the presence of the arresting officers the juvenile committed the disorderly persons offense of failing to give a good account of himself. N. J. S. A. 2A :170-1. When the officers stopped him, the juvenile was indeed unable to give a good account of himself. While this would be, a literal violation of the statute, the statute must be read as interpreted in State v. Zito, supra, where the court sustained its constitutionality by performing radical interpretive surgery. As pointed out in Zito, the failure to give a good account may not be the basis or even evidence of a basis for an offense. The offense consists of being present at the place of apprehension for the purpose of committing a crime or petty offense. The statute gives police the authority to head off an offense about to be committed. The officers had no probable cause to believe that the juvenile, when stopped, was about to commit any offense.

Finally, the State contends that in attempting to account for himself the juvenile admitted to the disorderly persons offense of fighting. N. J. S. A. 2A:170 — 27. While this admission may satisfy the in-presence requirement, it is and was then perceived by the officers to be incredible and therefore cannot form the basis of probable cause.

Ill

The Juvenile Act and implementing rules of court, both effective March 1, 1974, address themselves to searches and arrests of juveniles. N. J. S. A. 2A:4-60 guarantees juveniles “the right to be secure from unreasonable searches and seizures.” N. J. S. A. 2A:4-54(a) (2) delegates to the Supreme Court the authority to establish appropriate standards for making a warrantless arrest for delinquency.

R. 5:8-2, implementing the new statute, provides in part:

A law enforcement officer may take into custody without process any juvenile who he has probable cause to believe is delinquent or in need of supervision.

Since delinquency is now a violation of any penal statute, had the events in this case occurred on or after March 1, 1974, the search would have been lawful because the officers had probable cause to believe that the juvenile violated N. J. S. A. 39:4-129 by failing to attach notice of his identity to the parked car. N. J. S. A. 2A:4-44(d). Lacking an in-pres^ ence requirement, the new rule thus renders admissible against a juvenile evidence which would be excluded from the trial of an adult.

This disparity is not constitutionally offensive. The in-presence requirement being nonconstitutional, it may be legislatively abolished as to particular offenses or circumstances. United States v. Grosso, 225 F. Supp. 161 (W.D. Pa. 1964). Because the applicability of the requirement depends upon the severity of the punishment attached to an offense, the requirement is alien to juvenile cases, where there is no punishment. State in the Interest of M.L., 64 N. J. 438 (1974). This is not just a matter of semantics. Juvenile offenses are not classified in terms of the severity of possible judicial dispositions. Under the new act, juveniles coming within the jurisdiction of the court are classified either as delinquent or in need of supervision. The disposition of a case turns less on what the juvenile has done or failed to do, than on what needs to be done for the juvenile. The absence of the in-presence requirement does not, therefore, deny juveniles due process, the constitutional standard established for juvenile cases in In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

The search and arrest in the present case, however, occurred before the effective date of the Juvenile Act and its implementing rules of court. Because the purpose of the exclusionary rule is to curb police excesses, the standards of a lawful arrest and search are those in effect at the time of the police action. Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965).

R. 5:8 — 2 then in effect provided in part:

A law enforcement officer may take into custody without process any juvenile who in his opinion is engaging in conduct defined by law as juvenile delinquency. [Emphasis supplied]

Unlike the new rule which has no in-presence requirement, the former rule required it in all cases. The Supreme Court avoided this aspect of the former rule in a juvenile homicide ease by holding that the arrest criteria for adult offenses are also applicable to juveniles. State v. Smith, 32 N. J. 501, 531 (1960). As discussed in II above, however, the search in this case cannot be sustained under those criteria.

The conduct which the arresting officer must have witnessed under the former rule is “juvenile delinquency” as then defined by law. That definition, found in the former Juvenile Act, includes “idly roaming the streets at night” and any “deportment endangering the. morals, health or general welfare of [a child under 18 years of age].” N. J. S. A. 2A: 4-14(2) (k), (m). The constitutionality of these definitions has been sustained. State in the Interest of L.N., 109 N. J. Super. 278 (App. Div. 1970), aff’d 57 N. J. 165 (1970), cert. den. 402 U. S. 1009, 91 S. Ct. 2194, 29 L. Ed. 2d 431 (1971).

The words of the former rule, "in his opinion”, do not permit the officer to arrest at whim. He must be held to the constitutional standard of probable cause which is implicit in the language of the rule. See State v. Profaci, 56 N. J. 346, 349 (1970); State in the Interest, of L.B., supra.

I have no difficulty finding that the arresting officers had probable cause to believe that the juvenile was at the time of the search engaging in conduct then defined by law as juvenile delinquency. Indeed, if "idly roaming” the streets at night is inaccurate, it is so only because there was probable cause to believe that the juvenile was purposefully escaping from the scene of an accident he had just caused which together with his apparent injuries was deportment endangering his morals, health and general welfare.

The initial search was lawful. The later search was also lawful either as a continuation of the first search or as an incident to the formal lawful arrest. United States v. Robinson, supra.

The juvenile’s motion to suppress is denied.

       it has been suggested that an officer having probable cause may lawfully detain a suspect who he has reason to believe will otherwise escape. State v. Morse, supra 54 N. J. at 37 (dictum).
      The A. L. I. Model Code Of Pre-Arraignment- Procedure, § 110.2 (1) (a) (ii) (Proposed Official Draft No. 1, 1972) permits an officer to order a person “in suspicious circumstances” (less than probable cause) to remain in the officer’s presence near the place of apprehension for a reasonable period not to exceed 20 minutes when “such action is necessary to obtain or verify the identification of such person, to obtain or verify an account of such person’s presence or conduct, or to determine whether to arrest such person.” In a common-law misdemeanor case, this time might be used to have a citizen eyewitness identify the suspect; the officer could then make a lawful custodial arrest as agent of the eye-witness in whose presence the offense occurred and who himself could therefore have lawfully made a citizen arrest. See People v. Foster, 10 N. Y. 2d 99, 217 N. Y. S. 2d 596, 176 N. E. 2d 397 (1961). It should be noted, however, that any detention short of a custodial arrest would not entitle the officer to conduct a full search of the person although he may lawfully pat down the outer garments of the suspect for weapons if he has reason to believe that the suspect is armed. Cf. Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
      AVhere the officer has probable cause, the Model Code permits apprehension for a common-law misdemeanor committed put of the •officer’s presence, if he has reason to believe that the suspect will not be apprehended unless immediately arrested or may cause injury to himself or others or damage to property unless immediately arrested. Id. § 120.1 (1) (b) (i and ii).

       See n. 1, supra, for the A. L. I. proposed limitations to the requirement.


author: Botter, J. A. D.

text:
    IN THE MATTER OF THE APPLICATION OF CARL DUNSTER FOR A WRIT OF HABEAS CORPUS; CARL DUNSTER, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 19, 1974 —
    Decided October 31, 1974.

      Before Judges Matthews, Eritz and Botter.

      Mr. Daniel E. Isles argued the cause for appellant (Messrs. Isles & Weissbard, attorneys; Mr. Harvey Weissbard, of counsel and on the brief).

      Miss Toni Hendricksen, Assistant Prosecutor, argued the cause for respondent (Mr. Donald G. Collester, Jr., Prosecutor of Morris County, attorney; Mr. John A. Parmigiani, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Botter, J. A. D.

This is an appeal from an order discharging a writ of habeas corpus and ordering appellant remanded to custody so that he may he received by agents of California for extradition pursuant to the Uniform Criminal Extradition Law. N. J. S. A. 2A:160-6 et seq.

Appellant Carl Harry Dunster, a/b/a Steven R. Culver, was arrested on January 26, 1973 by police officers of Mount Olive, Few Jersey, as a fugitive from justice in California. See N. J. S. A. 2A:160-21 and 22. Previously, in May 1972, the Morristown Police Department had received a fugitive warrant for Dunster from authorities- in Los Angeles ’County) California. The affidavit of a deputy sheriff of said county, annexed to the requisition of the CaliforMa Governor, recites that appellant had been sentenced to an eight-month term in the Los Angeles County jail system on a conviction for burglary and escaped from custody in December 1971 while serving such sentence.

After his arrest on January 26, 1973 appellant was taken to the Morris County Jail. On that day, in response to an alert broadcast in the county, two detainers were filed against him on bad check (disorderly persons) offenses. N. J. S. A. 2A:170-50.4. On February 5, 1973 he was taken to the Morris Plains Municipal Court, where ho pleaded guilty and was sentenced to ten days in jail; and on February 7, 1973 he pleaded guilty in the Boonton Municipal Court and received a 20-dav jail sentence. He was returned to the Morris County jail. Thereafter, on March 15, 1973 appellant was interviewed in the Morris County jail by Thomas Quinn, an investigator assigned to the fugitive detail in the Morris County Prosecutor’s office. At that time appellant agreed to waive extradition, but the next day, in court, defendant was represented by the Public Defender and refused to waive extradition. On that date, therefore, Quinn signed a complaint against appellant charging him with being a fugitive from the State of California, and defendant was released on bail of $2500. See N. J. S. A. 2A:160-24. A hearing date was set and California authorities were notified to initiate formal extradition proceedings.

On March 19, 1973 a complaint was filed in the Municipal Court of the Los Angeles Judicial District charging appellant with the crime of escape, a felony in California, and a warrant for his arrest issued. On April 12, 1973 the Governor of California issued a requisition calling for appellant’s arrest and delivery to agents of that state for his return to California on the aforesaid charge. Pursuant thereto, the Governor of New Jersey, on April 19, 1973, signed a warrant for appellant’s arrest and delivery to California agents.

The first hearing in the court below, scheduled in April 1973, was adjourned, and thereafter counsel for appellant requested a copy of the transcript of the California hearing. A continuance to May 25, 1973 was agreed upon, but the hearing was again put off at the request of defense counsel. Later, new counsel substituted for appellant and the hearing was again put off, this time on July 13, 1973, so that appellant could apply for a writ of habeas corpus. Finally, a writ of habeas corpus was obtained on July 25, 1973 pursuant to appellant’s complaint filed that day. The writ was returnable July 30, 1973.

The hearing below was held on July 30 and August 1, 1973. In that proceeding appellant contended that he should be released because he was not delivered to agents of California within 30 days from the time of his January 26, 1973 arrest in New Jersey, as purportedly required by 62 Stat. 822; 18 U. S. C. A. § 3182. Contending that the 30-day period commences with the arrest pursuant to the foreign governor’s requisition, the prosecutor asked Investigator Quinn to arrest appellant while in court, on August 1, 1973, pursuant to the Governor’s warrant, “to complete the record.” This was done over defendant’s objection. The trial court ruled against appellant and new bail was fixed on this arrest.

Proceedings for the extradition of fugitives are governed by federal law, pursuant to the express provisions of the United States Constitution, Art. IV, Sec. II, and implementing legislation. 62 Stat. 822; 18 U. S. C. A. § 3182. Foley v. State, 32 N. J. Super. 154, 157 (App. Div. 1954); Smith v. State of Idaho, 373 F. 2d 149, 154 (9 Cir. 1967), cert. den. 388 U. S. 919, 87 S. Ct. 2139, 18 L. Ed. 2d 1364 (1967). The controlling federal statute provides that, upon proper requisition of the demanding state, the executive authority of the asylum state:

* * * shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged. 62 Stat. 822; 18 U. S. C. A. § 3182. [Emphasis supplied]

Appellant contends the 30-day period runs from the original arrest, citing Foley v. State, supra. In that case, however, the court held that the failure of the foreign agent to appear within 30 days of the arrest did not require appellant’s release, because he was free on bail pending his challenge of the extradition proceedings. The court did suggest, however, that an accused who is taken into custody “on a rendition warrant,” who does not institute proceedings to test the validity thereof, must be released if no agent appears to receive him within 30 days after his arrest.

The first arrest here was on a fugitive warrant, and it was followed by detainers of local authorities, with subsequent jail terms served by appellant totalling 30 days. Thereafter, appellant was released on bail on March 16, 1973, pending the receipt of a requisition from the Governor of California and an extradition warrant from the New Jersey Governor. When these were issued appellant contested them, while continuing on bail. In these circumstances, agents of California could not receive appellant in New Jersey, and their failure to do so within 30 days after his original arrest does not require his release. People v. Babb, 412 Ill. 507, 107 N. E. 2d 740 (Sup. Ct. 1952); see also, Bolton v. Timmerman, 233 S. C. 429, 105 S. E. 2d 518 (Sup. Ct. 1958), and Smith v. State of Idaho, supra 373 F. 2d at 158-159, where the court held that the demanding state “is not to be penalized for awaiting the outcome of valid court proceedings, brought by appellant himself, before undertaking the expense of sending its agent to claim appellant for extradition.

The 30-day period in 62 Stat. 822; 18 U. S. C. A. § 3182 begins to run after the arrest effected pursuant to the Governor’s warrant. People v. Babb, supra. This scheme is reflected in the provisions of the Uniform Criminal Extradition Law. Where a fugitive is arrested on a complaint before a judge or magistrate of this State on a charge of having fled from justice (N. J. S. A. 2A:160-21), he must be taken promptly before a judge or magistrate and, when arrested without a warrant, upon information that he is charged with a crime in another state punishable by imprisonment for more than one year, a complaint is to .be made under oath (N. J. S. A. 2A:160-22). Thereafter the accused may be committed to the county jail for a period not exceeding 30 days “as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in section 2A:160-24 of this title, or until he shall be legally discharged.” N. J. S. A. 2A:160-23. The purpose of our statutes is to allow an accused to be held in jail after his original arrest while awaiting the Governor’s warrant pursuant to a foreign requisition, but to prevent detention for an undue length of time. In re Colasanti, 104 N. J. Super. 122, 125 (App. Div. 1969); see also, Bolton v. Timmerman, supra.

Here the orderly disposition of the extradition proceedings was interrupted first by local detainers and proceedings resulting in sentences of appellant totalling 30 days, and thereafter by continuances because of appellant’s challenge to his extradition. Appellant was released on bail on March 16, 1973, a short time after completion of his local jail sentences. He remained on bail pending receipt of the foreign requisition and disposition of the procedings challenging his extradition.

In these circumstances we find no basis for discharging appellant from custodial process. See McEwen v. State, 224 So. 2d 206 (Miss. Sup. Ct. 1969), holding the words “may be discharged” in 62 Stat. 822; 18 U. S. C. A. § 3182 permissive and not mandatory, when delay beyond 30 days was caused in large part by the accused himself. Nor has appellant urged a valid basis for voiding the arrest made on August 1, 1973 under the Governor’s warrant. There would be no difference in result had appellant been arrested sooner on the requisition warrant, since appellant was free on bail following his original arrest, and his resistance to extradition would have delayed the arrival of California agents. See N. J. S. A. 2A:160-24 which provides for admission to bail after the initial arrest “conditioned for his appearance * * * and for his surrender, to be arrested upon the warrant of the governor of this state.”

Lastly, we note that appellant did not demand his release at or shortly after the expiration of a 30-day period following his initial arrest. Eor reasons set forth above, we need not decide whether such release, when appropriate, should be “automatic,” as defendant insists, or whether it should await his application in order that consideration might be made of record. Cf. Foley v. State, supra.

Affirmed.