text:
    STATE OF NEW JERSEY, ACTING BY AND THROUGH ROBERT A. ROE, COMMISSIONER OF THE DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT, PLAINTIFF-RESPONDENT, v. ANNA ARCHER; BOROUGH OF UNION BEACH, IN THE COUNTY OF MONMOUTH AND STATE OF NEW JERSEY, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, &c., PLAINTIFF-RESPONDENT, v. BOROUGH OF UNION BEACH, IN THE COUNTY OF MONMOUTH AND STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided September 24, 1969.

      Before Judges Sullivan, Carton and Halpeen.

      Mr. Philip J. Blanda, Jr., argued the cause for appellant, Borough of Union Beach (Messrs. Blanda & Blanda, attorneys) .

      Mr. Alan B. Boihstein, Deputy Attorney General, argued the cause for respondent, State of Hew Jersey (Mr. Stephen 8hillman, Deputy Attorney General, of counsel; Mr. Arthur J. Sills, Attorney General of Hew Jersey, attorney).
   Per Curiam.

In these consolidated actions the Borough of Union Beach appeals from orders appointing condemnation commissioners entered by the trial court. The complaints in condemnation filed by plaintiff, the Commissioner of the Department of Conservation and Economic Development for the State of Hew Jersey, allege that the lands in question are being acquired for the purpose of hurricane and shore protection. The program is in connection with the Flood Control Act of 1962 enacted by Congress. Under the Federal act, specified projects are undertaken by the Federal Government upon receiving assurance of “local cooperation.” This includes the providing “without cost to the United States, all lands, easements, and rights of way * * * necessary for construction of the project.”

In conjunction with a Federal project for beach erosion control and hurricane protection for Karitan Bay and Sandy Hook Bay, the State, through the Department of Conservation and Economic Development, filed the instant suits to acquire lands in defendant Borough alleged to be required “for the purposes of hurricane and shore protection.” The suits were brought under N. J. S. A. 12:3-64 which authorizes the Department to condemn lands for the improvement or development of waterways, streams, rivers, creeks, or waterfront or oceanfront property.

Appellant challenges the right of the Department to bring condemnation proceedings for the purposes of hurricane and shore protection on the grounds that there is no statutory authorization presently existing for such purposes. It is also contended that the taking in question are not for public use since the control program is for the benefit only of those municipalities participating in the program.

We have no doubt of the power of the Department under the statute in question to maintain these condemnation proceedings. The statute is general legislation for the public benefit and is to be read broadly so as to permit the Department to achieve the salutary purposes outlined in the act. Participation by the Department in the Federal flood control program via this act is fully warranted. To the same effect, we conclude that the taking is for a public purpose, even though the program necessarily only affects particular areas.

Affirmed.


source: Caselaw Access Project

author: Lewis, J. A. D.

license: Public Domain

text:
    MARGARET BUTLER AND WILLIAM BUTLER, PLAINTIFFS-RESPONDENTS, v. MARY BUENAGA AND BONNER & BARNEWELL, INC., A CORPORATION, DEFENDANTS. MARY BUENAGA, THIRD PARTY PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. PEERLESS INSURANCE COMPANY, THIRD PARTY DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND OHIO CASUALTY INSURANCE GROUP AND WEST AMERICAN INSURANCE CO., THIRD PARTY DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided September 26, 1969

      Before Judges Golmann, Lewis and Matthews.

      Mr. John G. Bathman argued the cause for third party defendant-appellant and cross-respondent Peerless Insurance Company (Messrs. Jung, Belilcoff, Bathman & Dwyer, attorneys; Mr. Marshall Belilcoff, of counsel and on the brief).

      Mr. Hugh J. O'Gorman argued the cause for third party plaintiff-respondent and cross-appellant Mary Buenaga (Messrs. Cunneen & O'Gorman, attorneys).

      Mr. Bobert E. Monaghan argued the cause for third party defendants-respondents Ohio Casualty Insurance Group and West American Insurance Co. (Messrs. Schneider & Morgan, attorneys).

      Mr. Arthur J. Messineo, Jr. argued the cause for plaintiffs-respondents Margaret Butler and William Butler (Messrs. Messineo & Messineo, attorneys; Mr. Dennis P. La Hiff, on the brief).
   The opinion of the court was delivered by

Lewis, J. A. D.

This ease concerns coverage under automobile liability insurance policies. Third-party defendant Peerless Insurance Company (Peerless) appeals from an order for summary judgment in favor of Mary Buenaga on her third-party complaint and from an order dismissing a similar third-party complaint and cross-claims against third-party defendants Ohio Casualty Insurance Group and West American Insurance Co. (Ohio Casualty). Mary Buenaga cross-appeals from that portion of the summary judgment which was in favor of Ohio Casualty.

Preliminarily we note that the trial court’s determinations were interlocutory and that this court has not heretofore granted leave to appeal. See R. 2:2-3, formerly R. R. 1:2-l, 2:2—1. See also Sullivan, J. A. D., “Interlocutory Appeals,” 92 N. J. L. J. 161 (1969), and the authorities therein collected. The appeals are therefore subject to dismissal.

With the consent of all parties, however, we permitted argument on the merits and then, with reluctance, we decided on our own motion to grant leave to appeal nunc pro tunc. In doing so we emphasize for the benefit of the Bar that in the future we may not follow such a course. Moreover, it should be noted that, in a situation where an appeal has been improvidently filed, respondent has a responsibility to the court to file a timely motion to dismiss the appeal.

We turn now to the critical facts of the ease. On May 5, 196? Mary Buenaga was operating a 1966 Oldsmobile owned by Bonner & Barneweil, Inc. (Bonner Company), the employer of her husband, Henry Buenaga. An accident resulted in personal injuries to plaintiff Margaret Butler, a passenger in the vehicle. The latter, and her husband per quod, instituted the present negligence action against the driver and owner. The Buenagas forwarded the summons and complaint to Peerless, Bonner Company’s insurance carrier, whose policy obligated it to insure “* * * any other person while using an owned automobile * * * with the permission of the named insured, provided his actual operation * * * is within the scope of such permission * * Peerless undertook to represent Bonner Company and disclaimed coverage on the ground that Mary Buenaga was an unauthorized operator of the insured vehicle.

The Buenagas who owned a Volkswagen then looked to Ohio Casualty, the insurers of that car, for coverage under their policy which provided for insurance to the following persons:

is i: * * ❖ Hs *

(b) With respect to a non-owned automobile, (1) the named insured (2) any relative, but only with respect to a private passenger automobile or trailer, provided the actual use thereof is with the permission of the owner; * * *

The policy defined “non-owned automobile” as “an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile.” (Emphasis added).

Ohio Casualty undertook the defense of Mary Buenaga. It engaged in discovery proceedings and thereafter expeditiously disclaimed coverage on the ground that the vehicle operated by her at the time of the accident was furnished to her husband for his regular use and that, under the terms of its policy, coverage was excluded.

As a result of those disclaimers, Mary Buenaga filed a third-party complaint against Peerless and Ohio Casualty seeking a judicial determination that each defend her in the original litigation, satisfy any judgment arising therefrom and indemnify her for costs and attorney’s fees incident to her defense and in the prosecution of her third-party action. In its answer Peerless cross-claimed against Ohio Casualty. After a hearing on Buenaga’s motion for summary judgment against each of the insurance carriers, the aforementioned orders were entered.

We consider first the question of coverage under the Peerless policy. The trial court relied upon Matits v. Nationwide Mutual Ins. Co., 33 N.J. 488 (1960), and held that “the principle of the initial permission rule” is controlling. Peerless argues that Baesler v. Globe Indemnity Co., 83 N.J. 148 (1960), decided within six months prior to Matits, presents a fact pattern similar to the ease at bar and that the trial court, in failing to follow the rationale in Baesler, erroneously resolved the question of coverage. It is contended that the present matter does not concern a deviation from an initially permitted use; that the use by the second permittee was expressly prohibited and, in any event, if coverage is to be extended to Mary Buenaga, “she will have to prove her factual contentions as to the alleged grant of permission by an official of Bonner and Barnewell for her to use the automobile.” A brief collative review of these eases is in order.

In Baesler the named insured purchased an automobile and immediately turned it over to his nephew for the latter’s exclusive use, with the express prohibition that he was not to permit “other people to use said vehicle.” The nephew loaned the ear to a friend who, while using it, became involved in a collision. The court held that the friend was not covered as an additional insured under the omnibus clause of the insurance policy but observed:

A different case would be presented where the named insured expressly forbade his permittee to allow anyone else to operate the insured vehicle, and contrary to these instructions the permittee allowed another to drive, but the purpose to which the vehicle was being put was within the scope of the initial permission. [33 N. J., at 153],

Matiis was an “omnibus clause” case where a husband gave his neighbor, for the purpose of visiting her mother, permission to use his wife’s automobile. After completing the intended mission, the neighbor paid alternate visits to a tavern-restaurant and a bar. On her way home she met with an accident. She was held to be insured. After considering the divergent views of the applicable Hew Jersey law and discussing the liberal or so-called “initial permission” rule, the moderate or “minor deviation” rule and the strict or “conversion” rule, the court expressed the view that the rules making insurance coverage turn on the scope of permission given to the first permittee “render coverage uncertain in many cases, foster litigation as to the existence or extent of any alleged deviations, and ultimately inhibit achievement of the legislative goal.” The opinion stated that the initial permission rule “best effectuates the legislative policy of providing certain and maximum coverage, and is consistent with the language of the standard omnibus clause in automobile liability insurance policies.” 33 N. Jv at 496. The court then decided that if a person is given permission to use a motor vehicle in the first instance, “any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use witliiu the terms of a standard omnibus clause in an automobile liability insurance policy.” 33 N. J., at 497.

In a later decision, Small v. Schuncke, 43 N. J. 407 (1964), the same court had before it these facts: the named insured permitted his nephew to use the car for the purpose of transporting the insured’s wife on certain of her errands. On a particular occasion, unrelated to any such errands, the nephew and a friend went drinking and then proceeded to New York. Along the route the friend took over the operation of the car. There was an accident. The Supreme Court made no reference to an extension of the “initial permission” rule to a third-party operator, and concluded:

* 4= 4: "\Ye hold that Weidel [named insured] gave Wagner [nephew] permission to “use” the car when he entrusted the latter with possession and requested that he operate the car to perform the various errands. Accordingly, Wagner and Schuncke [driver] are additional insureds * * * unless their use of the car at the time of the accident constituted “theft or the like.”
* * * The initial permission rule as expressed in MatUs contemplates a situation in which the subsequent use of a car may be inconsistent with and even frustrate the intention and plans of the person granting permission. [42 N. J., at 414-415].

In reaching that decision it was pointed out that in determining coverage under the “initial permission” rule only two questions must be answered, i. e., “Was there permission to use the car initially? Did the subsequent use, while possession was retained, constitute ‘theft or the like ?’ ” 42 N.J., at 413. Eor general discussion of the “initial permission” rule which is based upon a broad interpretation of the omnibus clause, see Cohen & Cohen, “Automobile Liability Insurance: Public Policy and the Omnibus Clause in New Jersey,” 15 Rutgers L. Rev. 155 (1961); 7 Appleman, Insurance Law & Practice, § 4366, p. 308 (1963); Annotation, 4 A. L. R. 3d 10 (1965).

While neither Matits nor Small expressly overruled Baesler, the opinion in the former noted that Baesler was distinguishable since there the coverage did not extend to a person who was specifically prohibited by the named insured from using the automobile. Plainly, however, the decisions since Baesler have shorn that case of its vitality beyond its particular facts; especially vis-a-vis any factual situation reasonably encompassed within a liberal application of the “initial permission” rule and the underlying public policy intended to be served.

We find that the facts in the instant matter can be readily differentiated from those in Baesler, where the prohibited use was stipulated. Here there was no such stipulation. To the contrary, Mary Buenaga maintained that the insured, notwithstanding its alleged notices, was aware that she occasionally drove the company automobile, and it is undisputed that her husband permitted her to use that car on the night of the accident. The letter of the Bonner Company to its employees entrusted with company ears, heavily relied upon by the insured as adequate notice of prohibited use, merely quoted from an insurance company communication, adding the instruction “You are driving and garaging Company Cars and these ears are not to be driven by anyone other than yourself.” (Emphasis added).

Moreover, unlike Baesler which involved a driver unrelated to the initial permittee, Mary Buenaga was the wife of an employee who had the continuous and exclusive possession of his company’s vehicle garaged at their home. This spousal relationship was known to the insured. Note 7 Appleman, supra, “Permission — Implied Permission,” § 4365, p. 300 (1962). Cf. State Farm Mutual Automobile Ins. Co. v. Williamson, 331 F. 2d 517 (9 Cir. 1964).

Finally, to require a trial on the issue of prohibited use, as urged by Peerless, would run counter to the basic concept of the “initial permission” rule that seeks, in carrying out our legislative policy, to avoid litigation where coverage depends upon a resolution of uncertainties as to the scope of permission.

Thus viewed we are satisfied that the judgment ordered against Peerless should not be disturbed.

We also agree with the trial court’s determination in favor of Ohio Casualty. It is clear that Henry Buenaga had the "regular use” of his employer’s car and, accordingly, that vehicle was an uninsured “non-owned automobile” under the terms of the Ohio Casualty policy covering the Buenaga Volkswagen. The facts in the record do not support any claim of estoppel or prejudice.

The judgments under review are affirmed.


author: McFarland, J. D. C.

text:
    ALEXANDER HAMILTON SAVINGS & LOAN ASSOCIATION OF PATERSON, NEW JERSEY, PLAINTIFF, v. JOSEPH WHALEY, DEFENDANT.
    District Court, Hudson County
    Decided September 16, 1969.

      Mr. Walter B. Dewey, attorney for plaintiff.

      Mr. Joseph Whaley, defendant, pro se.

   McFarland, J. D. C.

Plaintiff landlord sues for possession of defendant tenant’s apartment. There is no dispute about plaintiff’s status as landlord or that defendant is a month to month tenant. Nor is it disputed that defendant was served a proper notice to quit the premises, effective September 1, 1969.

Plaintiff contends that having satisfied all the requirements of N. J. S. A. 2A :18-53, subject to the discretion vested in the court to grant tenant at most six months to quit the premises, it is entitled to possession of the apartment.

A tenant may present proof of equitable defenses to a landlord’s action for possession of leased premises. Carteret Properties v. Variety Donuts Inc., 49 N. J. 116 (1967). Defenses being available to defendant, the court was required to inquire into the reasons for the eviction. For the court not to inquire would be a serious impediment to the protection and exercise of the tenant’s rights. Plaintiff must therefore disclose reasons for eviction. Thorpe v. Housing Authority of Durham, 393 U. S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969).

Defendant testified that the sole reason for his eviction is his attempts, in cooperation with other tenants, to have a prior owner respect their rights and specifically, plaintiff’s action is motivated by a petition asking for correction of 20 conditions and entitled as follows:

WHEREAS, The tenants of 20-22 Emory Street petition the City Housing and Rehabilitation Division of the Department of Healtli and Welfare to inspect and list the violations found at the above mentioned building.

The petition was signed by defendant and his wife and 21 other tenants.

Plaintiff’s witness quite frankly admitted that the savings and loan association is relying upon representations made by the former owner that defendent was a source of trouble in the building and chronically delinquent in payment of rent, and that it seeks only proper management of the property. The tenant denies failure to pay his rent in time. He states that a first cousin, also a signer of the petition, often withheld his own rent to enforce his rights as a tenant.

The court finds that defendant was not chronically delinquent, and further, that he is being evicted because he signed the above-mentioned petition and is a leader of those seeking protection of tenants’ rights and redress of grievances.

This State has by statute made it disorderly conduct “to threaten to or take reprisal against any tenant for reporting or complaining” to a public agency of the existence of any health or building code violation, or a violation of any other municipal ordinance or state law or regulation which has as its objective the regulation of rental premises. N. J. S. A. 2A :170-92.1.

This case does not involve nonpayment of rent or a non-habitable condition of the premises. Therefore, Peters v. Kelly, 98 N. J. Super. 441 (App. Div. 1968), does not apply. A judgment other than for defendant would deprive a tenant of his means of compelling a landlord to correct conditions in or about premises that threaten health and safety that was recognized as a social problem in the Peters case.

Judgment for the defendant.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ERNEST GREER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 1, 1969.

      Mrs. Bosemary K. Beavey, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney).

      Mr. David 8. Baime, Assistant County Prosecutor, argued the cause for respondent (Mr. J oseph P. Lordi, County Prosecutor, attorney).
   Per Curiam.

Defendant appeals from a conviction on indictments charging (1) attempted breaking and entering with intent to steal (N. J. S. A. 2A :85-5) and (2) possession of “a knife having a blade which automatically opened by hand-pressure applied to a button” [switchblade knife], in violation of N. J. S. A. 2A :151-62.

We affirm. We find no error in the court’s refusal to sever the indictments for trial. Both offenses were connected and constituted part of a common scheme. R. R. 3 :5-6; R. R. 3 :4-7. We also find no merit in the contention that the court erred in denying defendant’s motion for an acquittal on the indictment charging possession of the switchblade knife because the blade of the knife was bent and it was inoperable. We are satisfied that the legislative intent in the enactment of N. J. S. A. 2A :151-62 was to prohibit possession of switchblade knives and that the fact that the knife was inoperable because the blade was bent did not remove it from the prohibition of the statute. Cf. Precise Imports Corp. v. Kelly, 378 F. 2d 1014 (2d Cir. 1967).

Affirmed.


author: Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MILTON PACKIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 2, 1969.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Richard Silver argued the cause for appellant.

      Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. John G. Thevos, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Following a trial de novo defendant was convicted of driving 69 miles per hour in a 50-mile zone, in violation of N. J. S. A. 39:4-98(e). By this appeal he raises two points: (1) the State failed to establish a prima facie case, and (2) he was not “driving” the vehicle since it was being operated through a “cruise control,” a device intended to automatically regulate its speed.

We find neither point to be meritorious. Whether defendant’s automobile was being operated in excess of the speed limit was an issue of fact. There was ample testimony to support the court’s conclusion that it was. State v. Johnson, 42 N. J. 146, 162 (1964). Defendant’s speed was clocked by radar and there was proof to support the accuracy of the radar apparatus. Further, the state trooper who witnessed defendant’s operation of the vehicle testified that it was being driven in excess of 60 miles per hour.

Defendant explained that the cruise control was operated by setting the speed desired on a dial and then throwing a lever. The device should then have maintained the rate of speed for which it is set until it was turned off or cut out by the application of the brakes. He testified that he had had the cruise control repaired early on the morning of the alleged offense and had thereafter set it at 50 miles per hour. He did not thereafter look at the speedometer but testified that the car “took off” and when he noticed the high rate of speed he stopped (or was in the process of stopping at the time he was flagged by the state trooper). He argues that (1) he was not driving the car, and (2) if he was his guilt was negated by his intention, as evidenced by his setting of the cruise control at 50 miles per hour, to keep within the speed limit.

We find both contentions to be devoid of merit. A motorist who entrusts his car to the control of an automatic device is “driving” the vehicle and is no less responsible for its operation if the device fails to perform a function which under the law he is required to perform. The safety of the public requires that the obligation of a motorist to operate his vehicle in accordance with the Traffic Act may not be avoided by delegating a task he normally would perform to a mechanical device.

The trial judge found, and we agree, that defendant’s conviction of violating N. J. S. A. 39 :4-98(c) did not depend upon a showing that he intended to operate his vehicle at a speed in excess of the limit. 7 Am. Jur. 2d, Automobiles and Highway Traffic § 193, p. 745 (1963); Annotation, 11 A. L. R. 1434 (1921); cf. Halsted v. State, 41 N. J. L. 552, 589-591 (E. & A. 1879). State v. Kremer, 262 Minn. 190, 114 N. W. 2d 88 (Sup. Ct. 1962), on which defendant relies, is clearly inapposite. There defendant went through a flashing traffic signal at an intersection without stopping. It developed that his brakes had failed without prior warning and through no negligence on his part. Thus there was no opportunity to correct or counteract the malfunction. Here defendant was required to drive in conformity with the statutory speed limit and if he was unable to achieve that objective through use of the cruise control, he had but to touch the brake to disengage it and slow the car down.

The judgment of the County Court is accordingly affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES PALLITTO, III, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 2, 1969.

      Before Judges Kilkenny, Labeecque and Leonard.

      Mr. Daniel R. Coburn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley Van Ness, Public Defender, attorney).

      Mr. Robert Podvey, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Defendant appeals from an order denying his motion to correct an allegedly illegal sentence.

He was originally tried before a jury and found guilty of illegal possession of a narcotic drug. Por this offense he was sentenced on May 25, 1966 to a term in State Prison of not less than two nor more than three years. Execution of the sentence was suspended and he was placed on probation for three years and ordered to pay $5 weekly until a fine of $250 was paid. As a result he actually served no time in State Prison on this conviction.

He violated the conditions of probation by being convicted on September 28, 1966 of possession of barbiturates, ‘Teing under the influence of barbiturates” and failing to register for 90 days in the Essex County Penitentiary. He was sentenced for one year to the penitentiary.

On October 21, 1966 defendant pleaded guilty to a violation of the probation conditions of the original sentence of May 1966. As a result he was sentenced anew. The new sentence committed him to Bordentown Reformatory for a minimum period of two years and imposed the same fine. The commitment was to be concurrent with the balance of the term he was serving in the Essex County Penitentiary. It is this new sentence imposed because of violation of probation conditions which defendant alleges was illegal.

Defendant’s first contention is that his sentence to Bordentown Reformatory is illegal under N. J. S. A. 30:4-147. That section provides:

Any male person between the ages of 15 and 30 years, who has been convicted of a crime punishable by imprisonment in the State Prison, who has not teen previously sentenced to State Prison in this State, or in any other State, may be committed to the reformatory Emphasis added).

Prom this language defendant argues that, since lie was originally “sentenced” to State Prison for the offense, he may not thereafter be committed to the reformatory.

We do not agree with that interpretation of the statute in its relation to the facts herein. The purpose of this legislation was to restrict commitments to a reformatory to those who had not been previously sentenced to and confined in State Prison, so that the institution’s rehabilitative function as a “reformatory” would not be obstructed by the presence of former State Prison inmates of the recidivist type. See Ex parte Zienowicz, 12 N. J. Super. 563 (Cty. Ct. 1951); In re Nicholson, 69 N. J. Super. 230, 237 (App. Div. 1961) ; and Report of the Prison Inquiry Commission to the Governor and Legislature, January 1, 1918, where reference is made to “less hardened criminals.”

“The reason of the enactment prevails over the literal sense of terms * * * and the intention is to be taken or presumed according to what is consonant to reason and good discretion.” State v. Spindel, 24 N. J. 395, 402-403 (1957). The statute in question uses the word “sentenced” to State Prison. Though defendant was theoretically “sentenced” to State Prison originally, that sentence was “suspended,” so that he was never actually incarcerated therein and exposed to the potentially baleful influence of hardened criminals confined therein.

Fpon imposing a sentence for violation of probation, the trial judge was free to “impose any sentence which might originally have been imposed.” N. J. S. A. 2A :168-4. Therefore, the trial court acted within its powers and discretion when it decided herein that defendant’s youth then justified a commitment to a reformatory with the idea that potential rehabilitation in that type of institution was the more desirable course to pursue. That sentence could have been originally imposed.

Defendant’s second claim of illegality in the sentence is that the sentencing judge, in sending him to the reformatory for an indeterminate maximum term, fixed a minimum term of two years. State v. Ammirata, 104 N. J. Super. 304 (App. Div. 1969), is dispositive of this contention. We there held that every reformatory commitment for illegal possession of narcotics must be for the two-year minimum fixed by N. J. S. A. 24:18-47(c) (1), despite the language of N. J. S. A. 30:4;—148.

Defendant’s final point is that his present sentence is illegal because it arbitrarily subjects him to a two-year increase over his original maximum sentence. Reference is made to the fact that a reformatory confinement, other than in a homicide case where it may be longer, could result in a maximum period of five years. This is opposed to the original maximum of three years in the State Prison sentence. We find no substantial merit in this point. As noted above, when a defendant is sentenced anew for violation of probation, N. J. S. A. 2A :168-4 authorizes the imposition of “any sentence which might originalty have been imposed.” The old sentence is no longer binding upon the sentencing judge, although it may be reimposed within the court’s discretion. For violation of probation an increased sentence is permitted. See In re White, 18 N. J. 449 (1955); State v. Driesse, 95 N. J. Super. 491, 494 (App. Div. 1967). See, also, Remer v. Regan, 104 F. 2d 704 (9 Cir. 1939), cert. den. Regan v. Remer, 308 U. S. 553, 60 S. Ct. 105, 84 L. Ed. 465 (1939).

The- order under review is affirmed.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHNNY LEE LEMON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided October 2, 1969.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Daniel B. Coburn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Rushton H. Ridgway, Assistant County Prosecutor, argued the cause for respondent (Mr. J oseph Tmo, Cumberland County Prosecutor, attorney).
   Halpern, J. A. D.

Defendant appeals from a conviction after a jury trial on a charge of breaking and entering a Bridgeton liquor store with intent to steal, contrary to N. J. S. A. 2A :94—1.

The State’s proofs were to the effect that during the early hours of January 1, 1967 a burglar alarm sounded at the city hall from a burglar alarm system connected with the liquor store. The members of the Bridgeton police dispatched to investigate came upon defendant and one Cole in or near the store premises when they arrived at the scene. Officer Heath testified that while he was looking through the window of the door of the store he observed a man, later identified as Cole, climbing through a hole made in the store ceiling; that he fired two shots at Cole, but Cole escaped through the hole. Cole was later apprehended and ultimately pled guilty to the charge of breaking and entry and was confined to jail awaiting sentence when defendant’s trial commenced.

So far as defendant’s involvement in the transaction was concerned, the thrust of the evidence was that a window on the second iioor of the building w'as found broken, and that defendant had sustained injuries when ho escaped through the broken window, leaving a trail of blood, and that he staggered from the side of the building to the street, where he was apprehended and found to be bleeding profusely from the head and a cut on the left arm. His story to the police was that he had just been mugged.

The State’s proofs were sufficient to sustain the jury’s guilty verdict. The narrow issue presented is whether what occurred at the trial comported with due process and whether the verdict reached was the result of a fair trial. ’ '

A number of errors occurred at the trial which so deeply affected the fundamental rights of the defendant as to require a new trial:

(1) Cole, the only witness for the defense, completely exonerated defendant from any implication in the breaking and entry. This was the situation when the prosecutor finished his cross-examination of Cole and the court questioned the witness:

Q. Did you ever tell Detective Gauntt that Mr. Johnny Lee Lemon went upstairs to warn you that the cops were coming at the Bridge-ton Liquor Store while you were breaking through the ceiling?
A. No.
Q. What did you tell Mr. Gauntt with respect to Johnny Lee Lemon ?
A. Nothing I can remember, because Johnny Lemon really wasn’t on the premises.
Q. I didn’t ask you that, I asked you what you told Mr. Gauntt.
Mr. Bailey: (counsel for defendant) He answered your question, your Honor please.
The Court: Yes, he did.
Q. You know Mr. Gauntt when you see him, don’t you?
A. Yes.
The Court: Very well.

Up to this point in the trial no evidence of any kind was introduced to indicate that Cole had ever made the alleged statement to Gauntt implicating defendant. This line of questioning was not followed up by the prosecutor by calling Gauntt, who was available, or by producing any evidence to contradict Cole’s statement. The question, coming as it did from the court, certainly had the tendency to make the jury believe that Cole made the statement involving defendant. The resulting prejudice to defendant is obvious.

A trial judge is looked upon by jurors as the symbol of justice. While he may, and often has the duty to intervene in the trial, he must exercise his power with extreme delicacy and caution. It was vividly stated by the court thusly:

The trial judge is an imposing figure. To the jurors he is a symbol of experience, wisdom, and impartiality. If he so intervenes as to suggest disbelief, the impact upon the jurors may be critical. Hence in the usual case it is well to leave the primary burden of examination with counsel and to supplement their efforts, if necessary to clarify the scene, in a way which will lead the jurors to believe the objective is their better understanding. [State v. Guido, 40 N. J. 191 at 208, 191 A. 2d 45 at 54 (1963)]

(2) The State’s proofs amply revealed a breaking and entry but no proof was offered to sustain the count for larceny. In summation, the prosecutor told the jury:

* * * I am going to suggest to you on the second count, which is the larceny count, perhaps there is not enough evidence. It’s the first time I have done this since I have been prosecutor, and I am going to suggest after deliberation pierhaps you ought to return a verdict of not guilty on that count. * * *

The court, in its charge, commented on the prosecutor’s suggestion, and in telling the jury that he didn’t recall any testimony on the larceny count prefaced his comment by saying “I am rightfully proud of the prosecutor * *

In discussing the role of the police in apprehending defendant the court commented in its charge:

® * * I am mighty proud of our policemen, young kids [referring to the police] are fairly courageous apparently, he looked through the window and saw legs through a ceiling * * *.

These comments by the court concerning the prosecutor and the police placed the weight of his office on the side of the State. This form of comment was severely criticized and held to be prejudicial in State v. Jones, 104 N. J. Super. 57, 65 (App. Div. 1968).

(3) The court, after instructing the jury as to its proper function as fact finders, ended that part of his charge by saying, “Now, it shouldn’t be hard in this case, it shouldn’t be hard at all.” Near the end of the charge, when discussing the jurors’ function to decide the breaking and entry count, he again stated, “You heard it [the facts] and it shouldn’t be any trouble whatsoever, none at all. The case wasn’t a long case, it’s a short case * *

When defense counsel objected to these comments as being unfair and prejudicial, the court supplemented the charge and explained to the jury that he was referring only to the fact that the case did not take very long to try. It is very doubtful that such supplementary limiting instructions cured whatever harm had resulted. State v. Green, 46 N. J. 192, 196, 197 (1965).

(4) The court on its own initiative charged the jury on how to treat with the testimony of an accomplice. Cole having exonerated defendant, the court should not have given the “accomplice” charge. State v. Gardner, 51 N. J. 444 (1968); State v. Anderson, 104 N. J. Super. 18 (App. Div. 1968), aff’d 53 N. J. 65 (1968). The court in Anderson refused to invoke the plain error rule since no objection was made to the charge, but the court was careful to note that the judge in his charge did not use the term “accomplice.” In the instant case the court used the term “accomplice” in three different places. This portion of the charge ended with this admonition:

* * * Therefore, you may consider whether he [Cole] has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward of any feelings of revenge or reprisal * * *.

The inconsistency of the above quoted portion of the charge is apparent. Cole could have no hope or expectation of favorable treatment or reward at the hands of the prosecutor, since his testimony favored defendant. Against whom would Cole have any feeling of revenge or reprisal? Certainly not defendant, and hardly likely the State. It is because an “accomplice”' charge just does not make sense where the witness exonerates a defendant that its giving was condemned by the courts in Anderson and Gardner. Even in the classical situation where a co-defendant turns state’s evidence and implicates the defendant being tried, the trial judge should normally not give the “accomplice” charge unless requested to do so by defendant; and when given he should avoid the “use of the term ‘accomplice’, with its rather opprobrious connotation against a defendant * * State v. Begyn, 34 N. J. 35, 55, 167 A. 2d 161, 171 (1961).

(5) During the jury’s deliberations they were returned to the courtroom, at which time the court answered the question they posed to him. While the jury was still in the courtroom one of the jurors asked to be disqualified. The court summarily denied it without ascertaining the reasons for the request. Without indulging in improper speculation we will never know the juror’s reasons for making the request. The court should have ascertained the basis for the juror’s request, on the record, in the absence of the balance of the jury, but in the presence of all counsel. If the basis was a proper one the court should have declared a mistrial— if improper he could have returned the jurors to their deliberations after properly instructing them.

Even if these errors considered separately might not be sufficiently prejudicial to warrant a reversal of the conviction, collectively they denied the defendant the fair trial to which he was entitled.

Reversed and remanded for a new trial.


author: Kolovsky, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MICHAEL FIELD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided October 3, 1969.

      Before Judges Coneoed, Collester and Kolovsky.

      Mr. Walter R. Cohn argued the cause for appellant (Messrs. Cohn & Turk, attorneys).

      Mr. David 8. Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mr. Fred Kieser, Jr., Deputy Attorney General, argued the cause for Mr. Arthur J. Sills, Attorney General of New Jersey (Mr. Arthur Abba Goldberg, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

After a trial de novo in the County Court on his appeal from a conviction in the municipal court, defendant was adjudged a disorderly person and fined $50 for having violated N. J. S. 2A 170-92.1 (L. 1967, c. 215), which reads as follows:

“Any person, firm or corporation or any agent, officer or employee thereof who threatens to or takes reprisals against any tenant for reporting or complaining of the existence or belief of the existence of any health or building code violation, or a violation of any other municipal ordinance or State law or regulation which has as its objective the regulation of rental premises, to a public agency, is a disorderly person and shall be punished by a fine of not more than $250.00, or by imprisonment for not more than 6 months or both.
In any action brought under this section the receipt of a notice to quit the rented premises or any substantial alteration of the terms of tenancy without cause within 90 days after making a report or complaint or within 90 days after any proceeding resulting from such report or complaint shall create a rebuttable presumption that such notice or alteration is a reprisal against the tenant for making such report or complaint.”

The record fully supports the factual findings of the County Court judge. Defendant is the owner of a seven-family house. The tenant involved had filed several complaints — most if hot all of which were found to be justified — with the board of health relating to the condition of the premises.

Defendant admitted at the trial that he had increased his tenant’s rent from $117.50 to $175 per month in order to force her to move, but said that this was done, not in retaliation for her having made the complaints to the board of health but because she was otherwise an undesirable tenant.

The tenant testified, however, and the trial court had the right to credit her testimony, that defendant had told her that “since I called the Board of Health and I put the inspectors on him that he was going to raise my rent so high until Essex County wasn’t going to be able to pay and I was going to have to move.”

On his appeal to this court defendant’s argument is limited to an attack on the constitutionality of N. J. S. 2A :170-92.1. He urges that the statute deprives a landlord of property and the right of freedom of contract without due process of law, and that it is void for “overbreadth” and for vagueness.

The “due process” and “overbreadth” arguments are bottomed on the claim that the statute constitutes an unreasonable exercise of the police power. We are satisfied, that there is no substance in the claim, and this even without invoking the presumption in favor of the statute’s constitutionality. Jamouneau v. Harner, 16 N. J. 500, 515 (1951). The statute is on its face addressed to a lawful end.

It is settled that the State may in the exercise of the police power, either by itself or through its empowered instrumentalities, adopt reasonable health and building regulations, even though the effect of such regulations is necessarily to restrict property rights and the freedom of contract. David v. Vesta Co., 45 N. J. 301, 311 (1965); Jones v. Haridor Realty Corp., 37 N. J. 384, 391 (1962); Jamouneau v. Harner, supra, 16 N. J., at 514; Earruso v. Board of Health, East Hanover Twp., 120 N. J. L. 463, 468 (Sup. Ct. 1938).

The governmental agencies charged with the enforcement of those regulations cannot effectively enforce them and take steps to eliminate violations thereof unless they learn of them, either through their own inspections or through information furnished by others. Complaints made by tenants of buildings which fail to conform to the regulations obviously are and should be the prime source of the agencies’ information.

That that source not be depleted by fear of retaliatory action — as it would be particularly in the case of low-income tenants — is legitimately a matter of legislative concern. The Legislature was justified in concluding that the effectiveness of the remedial legislation embodied in health and building regulations will be substantially impaired if tenants reporting violations thereof can legally be intimidated. Cf. Edwards v. Habib, 130 U. S. App. D. C. 126, 397 F.2d 687, 701 (D. C. Cir. 1968), cert. den. 393 U. S. 1016, 89 S. Ct. 618, 21 L. Ed. 2d 560 (1969). It was therefore reasonable to make such reprisals or retaliatory action illegal and to subject offenders to a penalty.

There is no merit in defendant’s additional argument that the statute’s use of the words “reprisals” and “without cause” renders it “so vague that reasonable men would be compelled to speculate whether their action would be included within the statute’s proscription.” Moreover, the contention may not be advanced by defendant whose conduct was clearly within the proscription of the statute.

As the court said in State v. Moretti, 52 N. J. 182, 192, 244 A. 2d 499, 504 (1968) :

The only inquiry before us is whether these defendants bad sufficient warning that their conduct was criminal. A contention that a statute violates due process because of vagueness is based on the theory the defendant had no fair warning that his conduct was proscribed. Thus, a defendant whose conduct was such that be clearly could tell that it was prohibited will not be heard to say that the statute is overly broad and that another, in some hypothetical case, could be misled.

Defendant’s final contention is that the rebuttable presumption created by the second paragraph of the statute is invalid. We disagree. In our opinion, there is, as the Legislature recognized, a rational connection in common experience between the fact to be proved and the ultimate fact to be presumed. The statutory presumption satisfies the test set forth in Tot v. United Slates, 319 U. S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). See also State v. DiRienzo, 53 N. J. 360, 370-373 (1969).

We may add that there is no indication in the record that the presumption played any part in the trial court’s resolution of the issue of defendant’s guilt.

The judgment of conviction is affirmed.


text:
    LILLIAN SCHNEIDERMAN AND MORRIS SCHNEIDERMAN, PLAINTIFFS-RESPONDENTS, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 3, 1969.

      Before Judges Kilkenny, Labeecque and Leonakd.

      Mr. Martin Kirsch argued the cause for appellant.

      Mr. Richard P. Weitzman argued the cause for respondents (Messrs. Weitzman, Brady and Weitzman, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

In this suit against her under the “hit and run” provisions of the Unsatisfied Claim and Judgment Eund Act, N. J. S. A. 39 :6-78 and 79, the Director of the Division of Motor Vehicles appeals from a judgment based upon a jury verdict in favor of plaintiffs.

At the trial plaintiff Mrs. Schneiderman testified that on the morning of the accident she had been walking on the easterly side of Halsey Street, Newark, and as she was crossing its intersection with Raymond Boulevard, she was struck by a truck which continued on without stopping. She stated that the light was green when she started to cross but that it changed when she was on the crosswalk about halfway across. She then slowed her pace, but the truck, travelling eastward, struck her on her left side. A police officer, who did not see the accident, testified that one Decker, a bystander, had told him he was a witness but the latter was not called by either side.

Defendant’s appeal challenges the judgment against her on two grounds: (1) the court erroneously withdrew from the jury’s consideration the issue of plaintiff’s asserted contributory negligence, and (2) the police report should not have been received in evidence.

In general, -whether a plaintiff has been contributorily negligent is an issue for the trier of the facts. Battaglia v. Norton, 16 N. J. 171, 179 (1954); Kopec v. Kakowski, 34 N. J. 243 (1961). The test in determining whether the issue is to go to the jury is whether different minds could reasonably reach different conclusions as to the facts or reasonably disagree as to the inferences to be drawn from them. Kent v. County of Hudson, 102 N. J. Super. 208, 215 (App. Div. 1968), aff'd 53 N. J. 546 (1969). In the absence of disputed facts or disputed inferences to be drawn from undisputed facts, there is no warrant for submission of the issue of contributory negligence to the jury. Kaufman v. Pennsylvania Railroad Co., 2 N. J. 318, 324 (1949). More specifically, if Mrs. Schneiderman’s uncontradicted testimony as to her freedom from contributory negligence was unaffected by any conflicting inferences to be drawn from it, and was not improbable, extraordinary or surprising in its nature, or there was no other ground for hesitating to accept it as the truth, there was no reason for denying the motion to withdraw that issue from the jury. Ferdinand v. Agricultural Ins. Co. of Watertown, N. Y., 22 N. J. 482, 498 (1956).

Plaintiffs urge that here there was no possibility of conflicting inferences and no ground for hesitating to accept Mrs. Schneiderman’s testimony. We disagree. The record reveals items which, in the absence of explanation, could well have raised doubts as to the correctness of portions of her testimony. She had testified that the light was green when she started across; she was the last pedestrian to start to cross; she was walking “like a person walks,” and when the light turned green when she was halfway across, “I stopped. I slowed up.” However, the police officer who had found her still lying in the street when he arrived two or three minutes after the accident, testified that she told him at that time, “she was running across the street, trying to reach the next corner * * *. She was trying to hurry to the next corner.” In his report he had written down that she had stated that “the signal light had changed while she was in the middle of the intersection and when she went to run to the next corner she was struck * * We cannot say that the jury could not have believed that what she told the police officer was true, in which ease it would have been for the jury to determine whether, in view of the apparent emergency, she was in the exercise of reasonable care in proceeding as she did and, if she was not, whether her failure to exercise such care was causally related to the accident.

Turning to the police report defendant argues, in substance, that (1) it was not a business record under Evidence Rule 63(13); (2) it was not admissible as relevant evidence in plaintiffs’ case; (3) it contained self-serving matter which barred its admission, and (4) the fact that the officer who had prepared it was called as a witness precluded its allowance into evidence.

We are satisfied that a routine report of an automobile accident, prepared by the investigating policeman in pursuance of his duty and duly filed in the regular course of business, where relevant and not otherwise inadmissible, may be received in evidence as a business record under Rule 63(13) of the Rules of Evidence. Brown v Mortimer, 100 N. J. Super. 395, 402-04 (App. Div. 1968). See also comments on Rule 63(13) in the Report of the Supreme Court Committee on Evidence (1963), at 177-181. Compare Fagan v. Newark, 78 N. J. Super. 294, 319 (App. Div. 1963).

We likewise hold that in view of the nature of the case and the claim being made by plaintiff the police report would have been relevant evidence on her behalf. In a iChit and run” case against the Director the pivotal issue is whether plaintiff’s injuries were proximately caused by the negligence of an unknown driver. Here it was incumbent upon Mrs. Schneiderman to establish that the driver who struck her had failed to stop and for this reason his identity had not been ascertained. As the only eyewitness who testified, she was vigorously cross-examined, and property so, in an effort to affect her credibility and raise an inference that the accident did not occur as she had testified. In the absence of corroborating testimony the jury could well hare been dubious as to her veracity. The fact that the occurrence was officially reported by the police as having involved an unknown driver and owner tended to substantially support this phase of her testimony. Its exclusion could well have prejudiced her substantial rights. Cf. Lieberman v. Saley, 94 N. J. Super. 156, 163 (App. Div. 1967).

Defendant urges that the report was rendered inadmissible because it contained Mrs. Schneiderman’s “hearsay account of the happening of the accident.” We are at a loss to understand how defendant was prejudiced by this in view of the somewhat different version she testified to at the trial. In any event, we are unable to determine from the record whether plaintiff’s statement as recorded in the report qualified under Rule 63 (4) as a spontaneous declaration made at the scene immediately upon the arrival of the officer, see Lieberman v. Saley, supra., at 161, or whether it was no more than a later, self-serving narration of past events such as the court found to be the case in Rogalsky v. Plymouth Homes, Inc., 100 N. J. Super. 501, 506 (App. Div. 1968), certif. den. 52 N. J. 167 (1968). Undoubtedly, that issue will be determined at the new trial when and if an objection is made to the offer of the report in evidence.

Defendant urges that the report was not admissible in view of the fact that the officer who had prepared it had testified, substantially, to the information it contained. However, we note that at the time it was received in evidence the police officer had not so testified. On the contrary, when plaintiffs’ counsel had sought to elicit from him what Mrs. Schneiderman had told him when he first arrived on the scene his testimony was excluded upon defendant’s objection. It was only after his oral testimony was excluded that counsel qualified the report and offered it in evidence. Thereafter, he was examined and cross-examined (without objection) as to specific matters which were also referred to in the report.

We are in agreement with defendant that to permit a police officer to testify as to the facts contained in an accident report made by him and thereafter to allow his report into evidence is to give a plaintiff “two bites of the apple.” The better course would be to exclude the latter where its contents had been fully developed by the oral testimony. However, we are not prepared to hold that in the context of the facts before the trial judge his admission of the report was erroneous on that ground. The report was admissible not only as establishing that the driver of the truck had left the scene of the accident before the arrival of the officer, but also as pointing to the possibility that a witness whose name and address was contained therein had seen the occurrence. The judge, who was vested with considerable discretion in determining the admissibility of such evidence, was in a better position than we to determine whether its probative value was outweighed by any risk of undue prejudice to defendant which it entailed. Rule 4, Rules of Evidence.

Eeversed and remanded for a new trial.

No costs.


author: Rimm, J. C. C.

text:
    CATHERINE UNICK, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOAN D. UNICK AND CATHERINE UNICK, GENERAL ADMINISTRATRIX OF THE ESTATE OF JOAN D. UNICK, PLAINTIFF, v. KESSLER MEMORIAL HOSPITAL, SALVATORE A. PENNISI, M. D. AND HOWARD L. KENT, M. D., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided September 29, 1969.

      Mr. Carl Valore, Jr. for plaintiffs (Messrs. Miller, Brone, Valore McAllister, attorneys).

      Mr. Robert E. Bteedle for defendant Kessler Memorial Hospital (Messrs. Lloyd, Megargee & Bteedle, attorneys).

      Mr. Burchard V. Martin for defendant Dr. Kent (Messrs. Taylor, Bischof, Neutze & Williams, attorneys).

      Mr. James W. Taylor, attorney for defendant Dr. Pennisi.
   Rimm, J. C. C.

(temporarily assigned). This is (1) a motion by plaintiff to compel defendant Dr. Howard L. Kent, (Kent) to answer two of plaintiff’s interrogatories, and (2) an application to compel defendant Kessler Memorial Hospital (Kessler) to produce its operating room schedule and record book for September 14, 1966.

The interrogatories propounded by plaintiffs addressed to Kent, and here in issue, are as follows:

74. Have you ever been a party to any lawsuit other than the present one?
ANSWER: Refused to answer without order of court.
75. If the answer to the preceding Interrogatory is in the affirmative, state: (a) the name of the parties to such suit, (b) your status therein, (c) the court in which it was filed.
ANSWER: [left blank]

If Kent is ordered to answer No. 74, then it follows that No. 75 must also be answered.

Plaintiffs contend that decedent came under the care of Kent and Dr. Salvatore A. Pennisi (Pennisi) at Kessler on September 12, 1966. Two days later the infant female decedent was administered anesthesia by Kent in connection with a cystoscopy and catheterization were being performed by Pennisi at Kessler. When the procedure was completed decedent became cyanotic and her vital signs diminished. Kesuseitation was undertaken with success, but decedent died on September 19, 1966 as a result of cardiac arrest under anesthesia for retrograde pyelography. Kent is charged generally with negligence and malpractice in that he failed to exercise care in the choice of an anesthetic agent and care in the administration of the anesthesia which proximately caused the death; and negligence for failure to exercise proper care. Pennisi performed the procedures in the operating room of Kessler, and allegations relating to Pennisfis negligence are not pertinent to this issue.

The question to be resolved is whether the information sought by plaintiffs may be withheld by Kent by virtue of it being a confidential communication because of the patient-physician privilege under to N. J. S. A. 2A:84A-22.1 and 22.2.

In the absence of the benefit of the statutory privilege there would be no basis for withholding the requested information at the discovery stage of the proceedings. Myers v. St. Francis Hospital, 91 N. J. Super 377 (App. Div. 1966). Hague v. Williams, 37 N. J. 328, 334—335 (1962). The answer to interrogatory No. 75 would necessarily disclose to plaintiffs the names and addresses of patients of Kent who are not parties to this action and have no interest in this litigation.

In Osterman v. Ehrenworth, 106 N. J. Super. 515, 521 (Law Div. 1969), the court held that the “statute [physician-patient privilege] reflects a legislative determination that the policy behind the patient-physician privilege is of greater weight than the evidence it makes unavailable.” However, the court held that none of the statutory exemptions from the privilege were applicable to that ease. The statutory exemption which would apply here, N. J. S. A. 2A:84A-22.1, provides that

A privilege under tkis act as to a communication is terminated if the judge finds that any person while a holder of the privilege has caused the physician or any agent or servant of the physician to testify in any action to any matter of which the physician or his agent or servant gained knowledge through the communication.

The interrogatory seeks the names of parties “to such suit” (prior litigation against Kent), and the disclosure of such information would not be improper in “such suit” if the parties testified to physical conditions. The requested information is not directed to any person involved in the present litigation, and if in the prior litigation the physician-patient privilege had been waived, Kent cannot invoke the privilege here to avoid answering this interrogatory. Only names of parties are sought and not any information relating to illness or treatment of a patient.

Under N. J. S. A. 2A :84A-22.1 the burden of determining whether the privilege has been waived is a matter for the judge. He must, therefore, be furnished with sufficient information as to prior proceedings involving Kent to be able to make a knowledgeable determination. This can only be determined by the trial judge.

R. 4:11-1 states that interrogatories to parties are permitted “relating to any matters which can be inquired into under R. 4:10-2.” R. 4:10-2 permits a deponent to “be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, * * *.” This rule further provides that “It is not ground for objection that the testimony will be inadmissible at trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence * * *.” Therefore, if the information sought could be admissible at trial, and reasonably calculated to lead to the discovery of admissible evidence, the interrogatories would he proper. Myers v. St. Francis Hospital, supra; R. 4:10-2 supra. Moreover, the testimony may also be relevant for attacking the credibility of a witness at trial. Rules of Evidence 20.

Plaintiffs’ brief argues that they are entitled to the answers to obtain “a doctor’s past record of malpractice litigation,” and further, that “past conduct may very well be relevant to the subject matter in the present controversy.” Kent will not violate the statutory patient-physician privilege, relating to previous malpractice suits against him by answering plaintiff’s interrogatories Nos. 74 and 75.

In connection with the request for the operating room schedule and record book of Kessler, this information would involve producing records relating only partly to decedent and defendants. Likewise, these records would contain information regarding other persons and perhaps defendants not parties to this litigation. Persons treated at Kessler on September 14, 1966 have not waived the physician-patient privilege. It is not necessary that such persons specifically and individually each claim such privilege. In Osterman v. Ehrenworth, supra., at pp. 521-522, the court said that “although the affected patients of the defendants, who are the ‘holders of the privilege’ N. J. S. 2A :84a-22.1, are not parties to this litigation and not present to object, the defendant-physician has the right to assert the claim. N. J. S. 2A:84A-22.2(c) (ii). This right and duty of a defendant-physician is generally recognized.”

While hospital records are not specifically mentioned in the privilege statute which is under consideration here, it is apparent that these records are encompassed by the privilege created by the statute. As defined by N. J. S. A. 2A: 84A-22.1 (d), a

‘confidential communication between physician and patient’ means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for tbe transmission of the information or the accomplishment of the purpose for which it is transmitted.

The recording of confidential communications between physician and patient in official hospital records in no way diminishes the confidential nature of the communications. To find that the written hospital records sought by plaintiffs are not covered by the privilege, as an oral communication would plainly be, would be to frustrate the intent of the Legislature in enacting a physician-patient privilege in the first instance.

The broad sweep of the statutory language clearly indicates that the Legislature was aware of the need to encompass in the physician-patient privilege not only communications between the doctor and the patient but also communications to others who are, in the words of the statute, “reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.” Merely because it is necessaiy to reduce the protected communications to writing in order to facilitate transmission of the information or accomplishment of the purpose does not remove the protection. The information in the hospital reports made by doctors or others in the hospital, and the treating physician, is protected from disclosure by the cloak of the statute allowing the privilege to the patient.

The date of the alleged malpractice was September 14, 1966, and decedent died on September 19, 1966. As of those dates only the common law privilege between physician and patient was in effect in Hew Jersey. The statutory privileges and exemptions became effective on July 10, 1968. Thus, the communications here involved might be governed by the common law, rather than the statutory privilege. If the common law, rather than the statutory privilege, is applicable here, Kessler would not have the right to refuse to produce the operating room schedule and record book which it need not produce under the statutory privilege.

The statutory privilege which is sought to be invoked here is a rule of evidence having been incorporated into the Rules of Evidence as Rule 26A—2. Although research has disclosed no New Jersey case on point, the general rule of other jurisdictions has been that rules of evidence are at all times subject to modification by the Legislature, and a statute relating to such rule constitutes an exception to the general rule against retroactive construction. 82 C. J. S. Statutes § 424 and cases cited therein. Kessler may, therefore, invoke the statutory claim of privilege although such statutory claim did not become available until after the communications sought to be protected. The privilege thus granted by the statute may be claimed by Kessler to avoid having to produce the operating room schedule and record book sought by plaintiffs.

Kent, shall answer interrogatories Nos. 74 and 75 submitted by plaintiffs, but only as to previous malpractice actions. The motion to compel Kessler to produce its operating room schedule and record book for September 14, 1966 is denied.


author: Matthews, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JONATHAN THOMAS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided October 7, 1969.

      Before Judges Golhmanjst, Lewis and Matthews.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Vanness, Public Defender, attorney; Mr. Arthur Penn, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. M. Richard Altman, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Matthews, J. A. D.

Defendant was indicted for robbery (N. J. S. A. 2A:141-1), tried by a jury and found guilty, and thereafter sentenced to an indeterminate term at the Yardville Reformatory. This appeal followed.

On the evening of September 22, 1967 Mary Nolan entered the outer vestibule of her apartment house at 51-53 North Park Street, Orange, and rang the bell to her apartment. She heard a noise and looked behind her and there saw two men. One of the men grabbed her about the neck with a length of clothesline, and then both began to hit her about the face and head. Her handbag was taken, and the two individuals fled. The entire incident consumed a very short period of time.

Immediately after the attack Mary ran to a police station located at a short distance from the apartment house. As she approached the station house, she saw several officers standing in the driveway. She informed them that she had been mugged and they thereupon accompanied her in a patrol car to the scene of the incident. She directed them to the right-hand side of the apartment building and pointed to the direction where she had seen the two men flee. She remained in the patrol car while the three officers conducted a search of the area.

Detective Wells of the Orange Police Department testified that at approximately 10:40 p.m. Mrs. Nolan entered the driveway of police headquarters complaining that she had been mugged. She was holding her throat and her eye and lip were swollen. Wells then proceeded to 51-53 North Park Street, at the direction of Mrs. Nolan. In the rear of the building near the area of the garages he found a pocketbook and a length of rope. The pocketbook belonged to Mrs. Nolan and contained approximately $123 and personal papers.

Sergeant Burke and Captain O’Malley, both of the Orange Police Department, also responded to 51-53 North Park Street with Mrs. Nolan. They walked down the driveway to the rear of the apartment building where Burke spotted two Negro males. Burke ordered them to halt, but both jumped fences and one escaped. The other, who turned out to be defendant, ran into the arms of O’Malley.

Defendant testified that he was in Orange on the evening in question but that he was alone. He stated that he went down the driveway adjacent to 51-53 North Park Street for the purpose of relieving himself. He claims that as he was leaving the driveway he was apprehended by O’Malley.

Mrs. Nolan was taken to the Orange Police Station where she was shown defendant. She hesitated in making an identification until defendant put on dark glasses which he was carrying. When he complied she stated, “Well, it is his stature and his build and his height, and I hate to say it but I am sure.” In court, when asked if she could identify the defendant as one of the men she stated, “Well, he is slim like him and looks like him and I am sure it is him.” Moreover, she noted that at the time of the offense defendant was not wearing a mustache as he was at the time of the trial, and, in addition, that his hair was thinner at the time the offense was committed.

Defendant first contends that the circumstances of his identification by the victim were so suggestive as to give rise to substantial likelihood of misidentification, thereby depriving him of due process of law. In support of this contention he relies on several facts incident to the identification procedure: that he was alone when viewed by Mrs. Nolan and not part of a line-up; he was the only male Negro shown to her; she was in need of medical attention when making the identification; she had but very short opportunity to observe the persons who assaulted her; and, finally, prior to the identification she was able to give only a vague description of her assailants. Essentially, defendant argues that the totality of these facts was sxxch as to deprive him of a fair process of identification.

The United States Supreme Court in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), has set forth generally the standard of due process to be applied to identifications such, as are made in the case presently before us. In Stovall, defendant was accused of murdering a physician and seriously assaulting his wife. The suspect was brought, handcuffed, to the wife’s hospital room, where he was identified as the assailant. She subsequently identified him at trial. The Court acknowledged that a confrontation for identification purposes may be so needlessly suggestive and indirectly coercive as to elicit mistaken identification, and thus deny the accused due process of law. The Court recognized that the procedure of showing suspects to individual witnesses and not as part of a line-up, has been the subject of great criticism, but the question as to whether the practice constitutes a denial of due process of law “depends on the totality of the circumstances surrounding [him].” (388 U. S., at 302, 87 S. Ct., at 1972) The Court affirmed the conviction despite what appeared to be the obviously suggestive nature of the confrontation.

In this State the failure of police to follow the line-up procedure will not, of itself, render the pretrial identification invalid as being unduly suggestive or totally unreliable. In cases where a suspect is displayed singly to a witness, “the absence of comparison ordinarily goes only to the weight of the evidence and not to its admissibility.” State v. Matlack, 49 N. J. 491, 498 (1967); State v. Sinclair, 49 N. J. 525 (1967); State v. Grant, 102 N. J. Super. 164 (App. Div. 1968). In each of these cases, however, the factual situation was such that the witnesses involved had ample opportunity to view the defendant prior to or during the commission of the crime. In this case defendant claims that such ample opportunity was missing prior to the identification in police headquarters. However, we believe that this claim goes more appropriately to the question of the weight to be accorded identification by the trier of the fact, rather than to the question of due process.

Defendant argues that the police unnecessarily avoided the use of a formal line-up. We are satisfied, under the facts developed at trial, that the procedure followed in this case comported with the convenience of all parties and prevented potentially unnecessary detention. Mrs. Nolan made her identification shortly after the crime had taken place and just after defendant had been placed in custody. The record demonstrates that the identification was made while her memory was fresh, and this supports the reliability of the recognition.

We do not find that there is a constitutional right to a line-up as such. The constitutional test may be more properly measured as a right on the part of defendant to such treatment as accords with due process of law. While there may be just criticism of individual confrontations and identifications because of inherent dangers of suggestiveness, we find, under the record here, that the identification process employed was not unreasonable or suggestive.

Defendant next contends that the recent decisions of the Supreme Court in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1953, 18 L. Ed. 2d 1178 (1967), require that counsel he present at a pretrial confrontation such as is involved here. Further, that absent such representation any subsequent testimony relating to such identification must be regarded as inadmissible.

In Wade, defendant, after indictment, was placed in a line-up for identification purposes, but his assigned counsel was not notified. The court held that the Sixth Amendment guarantee to the right of counsel extended to any “critical confronta lion” during pretrial proceedings, and that a post-indictment line-up was such a “critical stage.” In Gilbert, the court excluded all testimony with respect to a post-indictment line-up identification, absent defense counsel and, also, in-court identification testimony where there was no showing of an independent basis for the in-court recognition. While it is true that both of these cases dealt with post-indictment line-up procedures, it has been argued that the language of the opinions is broad enough to include such single confrontations as are involved in this case.

In other jurisdictions the judicial trend has been to not require the presence of counsel, or the formal requisites of a line-up, where there has been what amounts to on-the-scene identification of a defendant by a victim or witness. Russell v. United States, 408 F. 2d 1280 (D. C. Cir. 1969); Commonwealth v. Bumpus, 238 N. E. 2d 343 (Sup. Ct. Mass. 1968); and Trash v. State, 247 A. 2d 114 (Me. Sup. Jud. Ct. 1968).

This court in State v. Satterfield, 103 N. J. Super. 291, 294 (App. Div. 1968), also reached the same conclusion under a somewhat different set of facts, leaving open the question as to whether Wade is inapposite in any case.

The essential problem is whether the facts of this case, involving pre-indictment identification within a short period after the complained of incident, and immediately after the defendant was taken into custody, is such a critical stage of the proceedings as to require the presence of counsel, or whether the factual pattern is more akin to the on-the-scene identification where there is no such prescribed requirement. Decisions of federal courts in Rivers v. United States, 400 F. 2d 935 (5 Cir. 1968); and United States v. Kinnard, 294 F. Supp. 286 (D. D. C. 1968), have held that all pretrial identification procedures require the presence of counsel for the suspect. On the other hand, the Illinois Supreme Court, in People v. Palmer, 41 Ill. 2d 571, 244 N. E. 2d 173 (1969), has held that the right to counsel in pretrial confrontation applies only to post-indictment situations. We find the reasoning of the Illinois Supreme Court in the last cited case to be more persuasive than the reasoning of the federal courts in the two decisions cited, when viewed in the light of the facts before us. Here the confrontation, as we have noted, occurred no more than 90 minutes after the crime was committed and while the victim remained in police headquarters; moreover, the identification took place shortly after defendant was taken into custody. In addition, the person presented for identification was not an individual selected at random, but a suspect apprehended in the immediate vicinity of the scene of the crime shortly after its commission.

We do not suggest that the right to counsel cannot exist in pre-indictment identification proceedings, or in those preliminary investigations where the Federal Constitution has provided no explicit guarantees; nor do we hold that the right to counsel applies only to post-indictment proceedings. We conclude, under the facts of this case, that defendant was not denied his constitutional right to legal representation.

Defendant also contends that we should reverse his conviction because the trial judge did not conduct a voir dire examination of the events surrounding his original identification out of the presence of the jury, despite requests for such procedure having been made. The better practice is for the trial judge to conduct such proceedings out of the presence of the jury. We observe, however, that defendant did testify on his own behalf, and, further, that the trial judge, before submitting the case to the jury, made specific findings of fact as to the propriety of the identification procedure and concluded that the question of identity was properly for the jury. Considering these circumstances and the trial record, we find that the alleged error in procedure did not prejudice defendant. The procedure employed by the trial judge did not place him in a position which obliged him to determine that the identification procedure was proper and thus submit the question to the jury.

We have reviewed the other issues raised by defendant and find them to be without merit. The trial judge explicitly charged the jury on the presumption of innocence and that defendant was entitled to acquittal unless proved guilty beyond a reasonable doubt. The trial judge’s answer to the question of a juror was perhaps equivocal, but we do not find that it was misleading so as to have produced prejudicial error, particularly in light of his charge considered in its entirety. State v. Lane, 52 N. J. 123, 125 (1968); State v. Hodgson, 44 N. J. 151, 162 (1965). We also find defendant’s contention, that the trial judge should have granted a mistrial because of the assassination of Senator Robert E. Kennedy during the trial, to be completely without merit.

The judgment is affirmed.