author: Leonard, J. A. D.

text:
    IN THE MATTER OF THE REVOCATION OF THE DRIVING PRIVILEGES OF GRACE R. EMBERTON BY THE NEW JERSEY DIVISION OF MOTOR VEHICLES. STATE OF NEW JERSEY, RESPONDENT, v. GRACE EMBERTON, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 24, 1970
    Decided March 16, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. William V. Kennedy argued the cause for appellant (Messrs. Colquhoun & Pollock, attorneys).

      Mr. Gary D. Rosenberg, Deputy Attorney General, argued the cause for respondent {Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of Counsel).
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant Grace Emberton appeals from an order entered by the Director of the Division of Motor Vehicles which suspended her driver’s license for six months, pursuant to N. J. S. A. 39:4-50.4, for her refusal to submit to the chemical breath test required by N. J. S. A. 39:4-50.2.

In a hearing under N. J. S. A. 39:4-50.2 et seq., the issues are whether (1) the arresting officer had reasonable ground to believe that defendant had been driving or was in actual physical control of the vehicle on a public highway or gwisi-public place while under the influence of intoxicating liquor, (2) she was placed under arrest, and (3) she refused to submit to a breath test upon the request of the officer. The Director, upon the evidence, found an affirmative answer to each of the above statutory inquiries.

Defendant challenges only the first finding. She argues that since the evidence does not support the determination that the arresting officer had reasonable grounds to believe that she committed the conduct set forth in the statute, her arrest was invalid. The point lacks merit.

Reasonable grounds means probable cause, which exists “if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” State v. Smith, 37 N. J. 481, 495 (1962). The fact that some of the officer’s information was hearsay does not deprive it of probative efficacy in establishing probable cause. State v. Doyle, 42 N. J. 334, 350 (1964). Particularly, is this so if the hearsay is “coupled with something to give it credit.” State v. Burnett, 42 N. J. 377, 387 (1964). In reaching the belief that an offense has been committed by the person arrested, the police are not limited to evidence admissible in a courtroom. State v. Cook, 47 N. J. 402, 414 (1966). Probable cause “is a eommonsensible rather than a technical concept.” Id., at 414.

Under the totality of the circumstances here present we find that the proofs adequately support the Director’s finding of a reasonable belief on the part of the arresting officer that the offense had been committed by defendant. The officer received a radio call at or about 5:20 p.m. on the day in question, June 14, 1967, to go to a scene of a traffic accident near the corner of Broad and Baldwin Streets, Bloomfield. Upon arriving he found a 1960 Pontiac, half of which was on the sidewalk and the remaining half in the parking space of a small dirt parking area. The officer discovered a dent in the rear trunk of the vehicle. Prom the people standing about he ascertained that a woman, who had come out of the car, had walked to the corner of the two streets, turned to the right and disappeared. Upon radioing the license plate number to headquarters, the officer further found out that the registered owner of the vehicle was defendant and that she resided at 417 Broad Street, Bloomfield.

The officer thereupon went to defendant’s nearby apartment. On the way up the stairs he found two shoes and a tube of lipstick. Upon entering he found two women, one of whom was defendant. She was crying, her hair was awry and her coat was half on and half off. Additionally, she was shouting, had the smell of alcohol on her breath and was unable to hold an intelligent conversation. When asked where she had been, what she had been doing and where she had parked her car, she merely indicted the police force in general for the kind of job they were doing. She did not deny that she had been operating her vehicle at the time and place here involved. The officer then took her into custody, with the result first noted above.

Defendant next asserts that the Director abused her discretion in allowing two years to elapse between the date of the hearing and the date when the Director filed her memorandum decision and entered the order of suspension. The hearing in the Division was held on August 14, 1967, the decision was filed on July 1, 1969 and the order of suspension was filed September 13, 1969. Although we do not approved of the delay and recommend that in the future such delays be eliminated, we find no merit to the argument that the delay per se amounts to a mistaken exercise of discretion on the Director’s part. Defendant suffered no prejudice thereby. The record does not disclose whether she was convicted of the substantive offense of operating her automobile while under the influence of intoxicating liquor (N. J. S. A. 39:4-50). If she was, her license was probably revoked during the two-year period of which she now complained. If she wasn’t, she had the benefit of her license during that time. In either event, the imposition of a six-months suspension for refusal to submit to the test, is mandatory. N. J. S. A. 39 :4-50.4. Moreover, if there was a. conviction for driving under the influence, then the six months suspension for the refusal to take the test would have to be imposed independent of and consecutive to any suspension imposed by virtue of the drunken driving conviction. Bean v. Strelecki, 101 N. J. Super. 310 (App. Div. 1968).

Finally, defendant contends that the aforesaid two-year time interval is a denial of her right to a “speedy trial,” as provided by the Sixth Amendment to the United States Constitution. This contention is without merit. The Sixth Amendment specifically refers to “criminal prosecutions” and to the commission of a “crime.” Further, the statutory purpose of the proceeding before the Director is not to punish the driver for infractions of the Motor Vehicle Act—that function is left to the courts. The primary object is to foster safety on the highway. David v. Strelecki, 51 N. J. 563, 566 (1968). Thus, it is clear that the special rules attaching to criminal proceedings do not extend to administrative hearings of this nature. Id., at 566.

However, even assuming that the eonstittuional guarantee of a speedy trial extends to this departmental hearing, defendant is precluded from legally asserting a violation of that right. She was given a speedy hearing—two months after the offense. Further, during the following two years she never demanded that the Director make a decision and impose a suspension, in the event she was found guilty. Therefore, she is deemed to have waived her right to a speedy trial. See State v. Hulsizer, 42 N. J. Super. 224, 228 (App. Div. 1956).

Judgment affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    MARIE C. BAPTISTA, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF LEOPOLDO A. BAPTISTA, DECEASED, PLAINTIFF-APPELLANT, v. SAINT BARNABAS MEDICAL CENTER, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1969—Supplemental Briefs Filed December 3, 1969
    Decided March 13, 1970.

      Before Judges Coneord, Collester and Kolovsky.

      Mr. Gerald W. Conway argued the cause for appellant (Messrs. Schreiber and Lancaster, attorneys).

      Mr. Wilbur A. Stevens argued the cause for respondent (Messrs. Stevens and Mathias, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

During a period beginning some six months prior to May 1963 Leopoldo A. Baptista had been treated by Dr. Zins for hypertension. During the night of May 4, 1963 he became seriously ill and when Mrs. Baptista reported his symptons to Dr. Zins the next day, the doctor suggested immediate hospitalization. Leopoldo entered defendant hospital on Sunday, May 5, 1963.

Tests revealed a serious malfunctioning of Leopoldo’s kidneys so that body poisons were being built up rather than eliminated. Dr. Zins decided that use of an artifical kidney would help carry his patient along, with the hope that in the meantime the patient’s kidney condition would heal itself. He finally ascertained that there was an artificial kidney available for use at Poliak Hospital in Jersey City. Leopoldo was transferred to the latter hospital on May 10.

In the meantime, on May 9, pursuant to Dr. Zins’ directions, defendant hospital had given Leopoldo a blood transfusion. Plaintiff contends that “incompatible” blood was used in the transfusion and that as a result Leopoldo’s condition continued to grow worse, ending with his death on May 18, 1963 at Poliak Hospital. Plaintiff offers no criticism of the treatment, including four blood transfusions, which Leopoldo received while at Poliak.

In this action by plaintiff as administratrix ad pros, for damages under the Death Act, N. J. S. A. 2A:31-1 et seq., and as general administratrix to recover damages for Leopoldo’s injuries, pain and suffering, plaintiff charged defendant Saint Barnabas Medical Center with (1) negligence and (2) breach of warranty.

At the close of all the evidence defendant moved for judgment in its favor. While the trial court denied the motion for judgment, it ruled that it would submit the case to the jury only with respect to the allegations of negligence. The verdict returned by the jury was, “We find the defendant not negligent.” A subsequent motion by plaintiff for a new trial was denied. Plaintiff appeals.

Plaintiff’s principal contention is that the court erred in refusing to submit the case to the jury on the pleaded theory of breach of warranty, and that “the doctrine of strict liability in tort should apply to the furnishing of blood by a hospital to a patient for transfusion purposes.” Proper evaluation of these contentions requires a review of the proofs in this case with respect to the alleged incompatibility of the transfused blood.

To support her claim that a transfusion of incompatible blood was a contributing cause of Leopoldo’s death, plaintiff relied on the opinion testimony of a Dr. Graubard, whom she called as an expert witness, and the statement to that effect in the death certificate signed by a Dr. Speckhart, then a resident physician at Poliak Hospital. Dr. Speckhart was on the service of Dr. Lasker, an associate professor of medicine of the New Jersey College of Medicine and the staff physician at Poliak Hospital who was in charge of Leopoldo’s case.

The pertinent portion of the death certificate (with the misspellings therein corrected) reads as follows :

IT. CAUSE OE DEATH

Interval between Onset and Death

Part I. Death was caused by:

Immediate Cause (a) Acute Tubular Necrosis Due to (b) Chronic Glomerulonephritis 1 yr. 3 mos. Due to (c) Arteriolar Nephrosclerosis Conditions, if any, which gave rise to above cause (a), stating the exciting cause last.

Part II. Other significant Conditions Contributing to Death But Not Related to the Terminal Disease Condition Given in Part 1(a)

Transfusion of Incompatible Blood.

Dr. Graubard defined acute tubular necrosis as “the death of certain cells within the kidney so that there is no absorption of the waste products: they are allowed to accumulate in the blood.” Nephritis is an inflammation of the kidney. Glomerulonephritis is a variety of nephritis characterized by inflammation of the capillary loops in the blood vessels of the kidney, Dorland’s Medical Dictionary, 619 (24 ed. 1965), arteriolar nephrosclerosis is a form of nephritis characterized by a thickening of parts of the kidney. Ibid., at 990. According to Dr. Lasker, the last mentioned condition is “the type of kidney lesion which we see in patients with severe hypertension.”

At the time of the trial Dr. Speekhart was in the Congo. However, Dr. Lasker testified that what was set forth by resident physician Dr. Speekhart in the death certificate represented his •— Dr. Lasker’s — opinion at the time, an opinion which lie had since revised following his examination of the records of defendant hospital which indicate that “The blood was properly cross-matched prior to its administration.” That being so, it was his opinion at the time of the trial that “it’s unlikely that [Leopoldo’s] demise was due to incompatible transfusion.”

Dr. Zins and other physicians called as witnesses by defendant testified that there was no indication that the blood nsed was incompatible.

Dr. Graubard expressed a contrary opinion. In response to a hypothetical question embodying what was shown in the records of the two hospitals, his opinion was that “incompatible blood produced the tubular necrosis which led to the eventual death of Mr. Baptista.” But he was unable to tell in what respect the blood was incompatible “other than the fact that it ultimately resulted in Mr. Baptista’s death.” He was certain, however, to quote from plaintiff’s brief, that “there was no indication of serum hepatitis, syphilis or virus or infection in the blood nsed for transfusion.”

While there may be some question as to the evidential value of Dr. Graubard’s opinion in view of his inability to specify the nature of the alleged incompatibility, cf. Germann v. Matriss, 55 N. J. 193 (Jan. 19, 1970), we assume, for present purposes, that his opinion and that set forth in the death certificate would be sufficient to support a jury finding that the transfused blood was incompatible with that of decedent.

In view of plaintiff’s concession that the blood used in the transfusion was wholesome and free from infection or other defect, the only explanations for the administration of the allegedly incompatible blood would be either (1) the failure of defendant to follow standard recognized procedures in receiving or storing the blood or in testing to insure that the blood of the donor and that of the patient were not ineompatible, or (3) the inadequacy of then existing recognized tests and procedures to disclose all possible kinds of incompatibility.

The first hypothesis appears to have been the gravamen of the contentions made by plaintiff in the pretrial order where her sole assertions were that :

The blood was furnished to plaintiff’s decedent by St. Barnabas Medical Center, cross-matched, and typed inaccurately producing incompatible blood from, which plaintiff’s decedent died. Plaintiff contends that the defendant St. Barnabas Medical Center impliedly and expressly warranted that the blood was fit and wholesome and that it was properly cross-matched and typed and compatible with plaintiff’s decedent’s blood. As a result of its breach of warranty and its negligence, plaintiff’s decedent died. [Emphasis added]

The italicized language basically sounds in negligence. However, plaintiff offered no affirmative proof that in fact the blood was “cross-matched and typed inaccurately.” No evidence was offered to contradict what appeared from the hospital records and from the testimony of the clinical pathologist who was the director of its laboratory that all standard procedures were followed in receiving and storing the blood; that the donor blood and that of the patient were subjected to all tests in use in 1963 to determine incompatibility (some other tests have been developed since), and that the tests showed that the two blood samples were compatible.

Dr. Graubard, plaintiff’s expert witness, conceded that if the hospital had in fact followed the procedures and tests so testified to, then it had complied with established standards and could not be charged with malpractice. In this aspect the issue thus became one of the credibility of the hospital records and of the director of its laboratory — an issue which the jury resolved in defendant’s favor by its verdict, “We find defendant not negligent.”

The question of the scope of the liability of a hospital for the deleterious effects of a blood transfusion has heretofore arisen only in a case where the transfused blood contained viral hepatitis. The Law Division held that transaction was a “sale” and that the supplying blood hank and hospital should be held liable for the harm caused by the defective product or blood they “sold.” Jackson v. Muhlenberg Hospital, 96 N. J. Super. 314 (Law Div. 1967). But the Supreme Court reversed, 53 N. J. 138 (1969), saying:

[T]he issue of whether a commercial blood bank and a hospital may be held accountable on the basis of implied warranty or strict liability where their furnishing of blood containing viral hepatitis has resulted in consequential injury to the complaining party. * * * is a very important one involving highly significant policy considerations and obviously should not be decided on the wholly inadequate record before us. * * * cf. Public Service Commission of Utah v. Wycoff Co., 344 U. S. 237, 2-43, 73 S. Ct. 236, 240, 97 L. Ed. 291, 296 (1952) : “A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case.”
In the factual situation presented here, the plaintiffs’ cause of action would traditionally be grounded on principles of negligence and accordingly tlieir complaint contained appropriate allegations that the defendants had failed to exercise due care with consequential injury to the plaintiffs, [at 141-142]

The court then reinstated negligence counts which plaintiffs had abandoned and remanded the matter for trial, directing that:

At the trial, a complete record should be made, including not only detailed testimony as to the nature of the defendants’ operations, but also expert testimony as to the availability of any tests to ascertain the presence of viral hepatitis in blood, the respective incidences of hepatitis in blood received from commercial blood banks and other sources, and such other available testimony and materials as may be relevant to any of the questions presented by the parties, including such economic and other factors as may bear on the question of whether the doctrine of implied warranty or strict liability should apply io deliveries and transfusions of blood, [at 142-143]

Whatever may be the final policy decision to be reached in cases involving blood infected with viral hepatitis, we find no justification for extending the doctrine of strict liability to a case such as this where the blood is not infected or defective.

To accept plaintiff’s contention would be to adopt a rule that a hospital is accountable on the basis of implied warranty or strict liability in tort for injuries resulting from a blood transfusion even though the article allegedly “sold” was wholesome and free from internal defect and even though the hospital followed standard recognized procedures in dealing with donor blood and in testing both the donor blood and the patient’s blood for incompatibility.

To adopt such a rule would be to make a hospital an insurer of what are in essence medical services and opinions, the cross-matching and typing of blood. In our view, the same policy considerations which led the court in Newmark v. Gimbel’s Incorporated, 54 N. J. 585, 596-597 (1969), to hold that the rules of strict liability in tort and implied warranty should not be imposed on dentists and doctors apply to the services rendered by defendant hospital in this case. The obligation of hospitals in cross-matching and typing blood in cases of blood transfusions should continue to be as it is now, grounded and expressed in a duty to exercise reasonable competence and care.

Plaintiff’s only other contention is that the court’s charge on the issue of proximate cause was erroneous. However, our reading of the court’s charge as a whole satisfies us that although there was room for improvement in its explanation of “proximate cause,” still the issue was adequately dealt with and the jury could not have been misled.

In any event, even if the charge be deemed erroneous, no prejudice appears since the jury’s finding that defendant was not negligent — a finding which the evidence mandated if the jury believed the testimony of defendant’s laboratory director and the hospital records — made it unnecessary for it to reach the issue of proximate cause.

The judgment is affirmed.

Conford, P. J. A. D.

(dissenting). I conclude the trial court erred in not submitting plaintiff’s case to the jury on the theory of breach of warranty in addition to the claim of negligence.

Firstly, there was clearly presented a jury issue on whether the blood transfused into the decedent was incompatible. The fact that Dr. Graubard, plaintiff’s expert, could not say in what respect the blood was incompatible does not moderate the weight of his opinion. Indeed, it would be difficult, if not impossible, for any expert not a party to the laboratory work to say after the event in what respect the blood was incompatible since it could possibly have been the mismatching of blood types or of blood groups or the presence of other incompatible factors in the blood of donor or recipient. The administration of the incompatible blood could have resulted from error in typing blood, in labeling containers, in cross-matching before transfusing, or in giving the blood to the wrong patient. See Haut and Alter, “Blood Transfusions-Strict Liability?”, 43 St. John’s L. Rev. 557, 558 (1969); Thomas, “Blood Transfusion Liability,” 10 Clev.-Mar. L. Rev. 469, 470-473 (1961); Zeitlin, “Blood Transfusion Hazards,” 2 Medicine, Science & Law. 294, 295-299 (1961). See also Kandall, “Medico-Legal Problems in Blood Transfusions,” 20 S. C. L. Rev. 1, passim (1968).

Dr. Graubard’s conclusions of incompatibility and causal contribution to death were arrived at by the same general reasoning process as Dr. Lasker’s, when he came to a similar conclusion, reflected by the death certificate admitted in evidence, after the patient’s death at the Poliak Hospital —■ i. e., inference from attendant circumstances. They considered the indicia from the hospital records of the nature of the patient’s condition and symptoms before the transfusion, certain untoward symptomatic manifestations during the transfusion consistent with incompatible transfusion and a rapid downhill course of his kidney disease immediately after the operation resulting in renal shutdown followed by death nine days after the transfusion in question. This, too, was suggestive of incompatible transfusion. Dr. Lasker’s initial conclusion to that effect was influenced also by a consultation with Dr. Zins, the treating physician, in which he was told that the patient got worse after the transfusion and had a reaction in the course of it. The Poliak hospital records contain a notation of “History obtained from Dr. Zins,” part of which, written by Dr. Lasker, reads:

Given blood transfusion and developed acute renal failure with anuria and gross hematuria. Apparently dealing with case of arteriola nephrosclerosis or chronic GN with acute tubular necrosis superimposed by transfusion of incompatible blood.

Dr. Lasker testified that the type of kidney lesion which the patient had indicated a usual prognosis of six months to a year and that this applied specifically to decedent. Yet, as noted, the patient died within nine days of the transfusion, following what Dr. Lasker described as a “rapid downhill course” thereafter. At the trial, on the basis of a hypothetical question including the facts that the blood was typed as to classification and cross-matched without reaction, Dr. Lasker said it was “unlikely that his [decedent’s] demise was due to incompatible transfusion.” However, the hypothesized facts were not conclusively established by the evidence.

Dr. Bernhard, in charge of defendant’s laboratory, testified as to the standard practices followed in selecting, typing and cross-matching blood before transfusion. He does not personally do this work. It is done by laboratory technicians. The hospital records designed to record the progress of this blood work were only partially filled out in the case of this patient. The technician who probably did this work was not a witness.

I conclude on the whole case, as the majority assumes, that the jury could reasonably have found that defendant transfused incompatible blood into the decedent. The question then arises whether its liability therefor should be confined within the ambit of the law of negligence or broadened toward either or both of the cognate principles of implied warranty of fitness for intended purpose and strict tort liability. The closest judicial approach to the question in this State is the case of Jackson v. Muhlenberg Hospital, cited and discussed in the opinion of the majority. The question there related to liability of a hospital and a blood bank for damage from the administration of blood containing viral hepatitis. What is significant about the remand opinion of the Supreme Court is that that tribunal apparently presently entertains an open mind on whether liability in this area should be extended by application of the doctrines of implied warranty and strict tort liability, and is disposed to resolve the issue on broad policy considerations rather than by the sterile criterion as to whether the provision of the blood is a sale or a service. See the comment on Jackson in Haut and Alter, supra, 43 St. John’s L. Rev., at 570-573.

The “service” concept was the basis for rejection of breach of warranty or strict liability in Perlmutter v. Beth David Hospital, 308 N. Y. 100, 123 N. E. 2d 792 (Ct. App. 1954), and most cases throughout the country have followed it in both hepatitis and incompatibility cases. Annotation 59 A. L. R. 2d 768 (1958). The Florida cases alone make the distinction that blood supplied by a blood bank is a sale (with liability for breach of warranty of quality), while that supplied by a hospital is a part of its service, immune from the broadened liability. Russell v. Community Blood Bank, 185 So. 2d 749 (Fla. App. 1966), modified 196 So. 2d 115 (Sup. Ct. 1967).

The validity of the general service-sale criterion for imposition of warranty-strict tort liability has been fully laid to rest in this State by the Supreme Court in Newmark v. Gimbel’s Incorporated, 54 N. J. 585 (1969). In an opinion holding a beauty parlor operator liable for breach of implied warranty of fitness of a hair wave solution the operator used in giving a customer a permanent wave, the court held that the transaction was a “hybrid partaking of incidents of a sale and a service. It is really partly the rendering of service, and partly the supplying of goods for a consideration.” (At 593). Consequently, “an implied warranty of fitness” of the product used in giving the wave existed “with no less force than it would have in the case of a simple sale.” Id. The court emphasized that the patron relied on the implicit assurance of the operator that the latter had the skill and knowledge to select proper materials and to use them with the requisite expertise so as not. to injure her. She was a “mere passive recipient” of the ministrations and products controlled and selected by the operator. (At 594).

This rationale • is perfectly apposite here, but even more markedly. The case is not different, as the majority suggests, because the blood here was not inherently defective, i. e., if administered to an appropriate recipient. The implied warranty here breached is not that of quality or merchantability but of fitness for the recipient’s particular purposes, known to the supplier, and involving reliance on the supplier’s skill and judgment. N. J. S. A. 12A:2-315. If incompatible, the blood was just as inimical to this recipient as if it were polluted by the virus of a contagious disease.

Were the supplier not a hospital, I entertain little doubt that the principle of implied warranty-strict liability would apply here, having in mind the steady progression of the law of strict tort liability in this State toward broad public protection since Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960). See the appellate court opinion and that of Roberts, J., concurring in the.Supreme Court, in Community Blood Bank, Inc. v. Russell, supra. The only real basis for dispute is whether the immunity from strict liability expressly staked out by dictum in Newmark v. Gimbel’s Incorporated, supra, for the benefit of doctors and dentists (discussed hereinafter), should be extended to hospitals.

An important consideration in determining whether to apply the principle of imposition of strict tort liability is whether the class of defendants affected has available, if resorted to, the means and techniques for preventing the injurious effect of the product supplied to the claimant. That was one of the factors which led the trial court in Jackson v. Muhlenberg Hospital, supra, to conclude against strict tort liability in respect of administration of a transfusion of blood containing viral hepatitis, 96 N. J. Super., at 329, the consensus hitherto being that detection thereof is scientifically impossible. In remanding in that case, the Supreme Court called for “expert testimony as to the availability of any tests to ascertain the presence of viral hepatitis in blood.” 53 N. J., at 142.

There- is no comparable difficulty in relation to incompatibility. There is virtual unanimity that efficient administration of standard techniques of typing, grouping and cross-matching of blood (even as of 1963) reduces the chances of transfusion of incompatible blood to the minimal. Haut and Alter, supra, 43 St. John’s L. Rev., at 559. Vis-a-vis the patient, who is completely dependent upon the hospital personnel and has paid the institution for a compatible transfusion, it would seem consonant with elemental justice that the hospital assume liability for the damage caused by a mischance which it could in all probability have prevented.

As noted above, there must be an appraisal of the effect upon the present issue of the deliberate declaration, albeit by dictum, of the Supreme Court in Newmark v. Gimbel’s Incorporated, that the doctrine of strict liability will not be extended to doctors and dentists. 54 N. J., at 595—597. While some of the considerations advanced therein might appear here also to support limitation of liability to exercise of reasonable care (rendition of sui generis services intimately related to the public health and welfare), others mentioned do not. The professional status of the physician and the essence of his function as the furnishing of opinions and services devoid of certainty or assurance of cure or relief is not comparable to the function of the hospital staff in providing and administering blood for a transfusion. In this regard the hospital is merely the independent instrumentality of the physician who has ordered the transfusion performed; a thoroughly careful administration of the standard procedure of transfusion is highly unlikely to eventuate in transfusing incompatible blood, and the actual procedure is routinely performed by laboratory technicians, as the testimony indicates was the case in the present instance, not by physicians. Moreover, the remand in Jackson, supra, seems inconsistent with any notion that the Supreme Court was then of the fixed view that hospitals should as a matter of public policy necessarily be free from strict tort liability in a blood transfusion case.

Giving consideration to all of the foregoing and to the injustice of leaving the victim of an incompatible transfusion remediless except for the uncertainties of a negligence action, I cast my vote for application of the rule of implied warranty-strict liability in this situation. Tort liability of hospitals is limited by statute to a maximum of $10,000. Adding the increase in premiums for insurance to cover strict liability for sitch exigencies as this to the overall expense of providing hospital service for the community does not seem to me to place such an undue burden on the institution—and through it on the community it serves — as to justify the alternative of leaving the innocent victim of such a misfortune to bear his burden alone if he cannot convince a jury of negligence.

I would reverse and order a new trial on the issue of implied warranty-strict liability.

       The records of the trial court in Jackson v. Muhlenberg Hospital (Docket L 21730-64) show that no further proceedings were taken following the remand by the Supreme Court. The only instrument thereafl.er filed was a stipulation dated June 29, 1969, signed by all counsel, reciting that the matters in difference had been amicably adjusted by and between the parties and dismissing the action with prejudice but without costs.

       It may be significant, although of course not evidential in this case, that according to the literature, the most serious type of injury to a blood transfusion recipient in case of use of incompatible blood is damage to the kidney tissues, causing anuria—the arrest of urinary output—which results in death. Gordy-Gray, Attorney’s Textbook of Medicine (1969 Supp), § 1.57, pp. 1-17; Note, “Liability for Blood Transfusion Injuries,” 42 Minn. L. Rev. 640, 645 (1958). This was the ultimate development in the present case.

       It must be kept in mind that I am here discussing the considerations for imposition of a rule of law, and it is therefore irrelevant that in this particular case the jury found no negligence. Moreover, the verdict does not establish that in fact no mistake in the blood analysis and administration process occurred—merely that the jury was not satisfied that plaintiff had shown by a preponderance of the evidence that defendant failed to exercise due care in transfusing the decedent.


author: Lane, J. S. C.

text:
    PAUL KIERNAN, JR., PLAINTIFF, v. RUDOLPH F. PRIMAVERA AND MINNIE I. PRIMAVERA, HIS WIFE, JAMES VANCELIS, SINGLE, AND MONMOUTH COUNTY NATIONAL BANK, A NATIONAL BANKING CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 3, 1970.

      Mr. Martin M. Barger appeared for plaintiff (Messrs. Beussille, Cornwell, Mausner & Carotenuto, attorneys).

      Mr. V. David Shaheen, Jr. appeared for defendants Primavera (Messrs. Giordano, Giordano & Halleran, attorneys).
   Lane, J. S. C.

Plaintiff seeks to quiet title to certain premises in the City of Long Branch insofar as any claims of defendants are concerned. Defendants Primavera counterclaimed to quiet their title insofar as any claim of plaintiff is concerned. Defaults have been entered against the other defendants. The matter is before the court on final hearing.

The premises in question consist of a strip of land approximately 200' x 40' which was originally part of a large tract of land owned by Carolyn M. Shepard. A subdivision map was filed in the Monmouth County Clerk’s office September 24, 1871 designating the premises in question as Shepard Avenue. The premises and the lands lying south of it in the tract were conveyed by the Shepards and on October 15, 1903 came into the ownership of William C. Keller. The property immediately south of the premises in question became, by mesne conveyances vested in the New Jersey Mortgage & Trust Company. On August 25, 1913 that company conveyed a portion of this property to the City of Long Branch for a roadway, now a public street known as West End Court. This street lies immediately to the south of the premises in question, and the Primavera property lies immediately to the north.

On the 1906 Long Branch tax map the premises in question is shown as an enclosed lot although designated both “Shepard Avenue” and “Block 65, Lot 22.” The tax duplicates for 1928 (the records in Ereehold and Long Branch go back no further) show the premises in question as being owned by the New York and Long Branch Railroad Company. In 1959 the error in assessment was discovered and the last record title holder, William C. Keller, was assessed for the taxes for that year. Since the 1959 taxes were not paid, there was a tax sale to the City of Long Branch in 1960. Thereafter, Long Branch commenced an in rem tax foreclosure action which resulted in a judgment dated Eebruary 6, 1964 and recorded Eebruary 13, 1964.

On December 29, 1964 Long Branch passed an ordinance vacating Shepard Avenue. On January 11, 1965 the city sold the premises to plaintiff’s immediate predecessor in title. The deed to plaintiff was dated January 5, 1968. There is no charge of any intrigue or venal impropriety on the part of the city, the purchaser from the city or plaintiff.

Defendants contend that since the deeds to their predecessors in title conveyed the respective lots by description abutting Shepard Avenue, the conveyances included one-half of Shepard Avenue subject to the rights of the public by the prior dedication, and therefore, upon the adoption of the ordinance vacating Shepard Avenue it vested in them to the center line discharged of the public easement. State v. Cooper, 24 N. J. 261, 267 (1957), cert. den. 355 U. S. 829, 78 S. Ct. 41, 2 L. Ed. 2d 42 (1957); Stockhold v. Jackson Twp., 136 N. J. L. 264 (E. & A. 1947). They contend that the in rem tax foreclosure proceedings were invalid because Shepard Avenue had, in fact been accepted as a public street and, therefore, was not the subject of taxation, and because they had no notice of the in rem tax foreclosure action.

It is conceded that when lands are sold with reference to a map upon which lots and streets are delineated, there is a dedication of the streets to the public, which dedication cannot be revoked except by consent of the municipality. Highway Holding Co. v. Yara Engineering Corp., 22 N. J. 119, 126 (1956). There must, however, be an acceptance of the dedication, either by municipal action or by public usage, before the municipality becomes responsible for the street.

Here, there was no ordinance or resolution of the municipal governing body accepting Shepard Avenue. The failure to assess until 1959 did not constitute acceptance. Arnold v. Orange, 73 N. J. Eq. 280, 282 (Ch. 1907); Fuller v. Belleville Tp., 67 N. J. Eq. 468 (Ch. 1904). It was consistent with the tax duplicates showing the owner as the New York and Long Branch Railroad Company. Defendants have failed to show any action on the part of Long Branch that would constitute express or implied acceptance of Shepard Avenue.

Defendants urge that there has been acceptance by public use. Stores have been erected on their property. Since 1958 customers and deliverymen to the stores have used the premises in question for parking purposes. In addition, a portion of the premises has been used for access to the rear of the stores, although such use for access is not necessary. It is contended that if retail stores are built on the property known as Shepard Avenue (which is plaintiff’s intention), parking in the surrounding public streets for patrons of the stores on defendants’ property and others would be congested and suppliers would have difficulty making deliveries to the stores. The lot itself is vacant, unoccupied and partially overgrown with weeds.

Defendants assert that with the dedication, public use for less than 20 years constitutes acceptance as a public street. In Velasco v. Goldman Builders, Inc., 93 N. J. Super. 123 (App. Div. 1966), the court stated:

Municipalities by appropriate ordinance or resolution may, and often do, formally accept an offer of dedication, see N. J. S. A. 40:67-1(b), but tbe acceptance may also be effectuated by other official conduct which manifests an intent to treat the land in question as dedicated to public use. Thus, an acceptance of dedicated lands may be found “even though no action has been taken by the appropriate public authorities, if there has been ‘an actual enjoyment by the public of the use for such length of time that the public accommodation would be materially affected by a denial or interruption of enjoyment,’ * * Cunningham and Tischler, supra, 15 Rutgers L. Rev., at p. 398. * * *[at 137-138]

Cunningham and Tisehler in “Dedication of Lands in New Jersey,” 15 Rutgers L. Rev. 377 (1961), said:

An acceptance of dedicated lands may be found even though no action has been taken by the appropriate public authorities, if there has been “an actual enjoyment by the public of the use for such length of time that the public accommodation would be materially affected by a denial or interruption of enjoyment,” or public user for twenty years without proof that the public would be seriously discommoded were the use to be interrupted. Sed quaere why either a showing of necessity for continued public user or twenty years’ public user should be required when the issue is not whether a dedication should be implied but whether a dedication established by proof of facts other than public user has been accepted. * * * [at 893]

In support of the statement that acceptance may be found if there has been “an actual enjoyment by the public of the use for such length of time that the public accommodation would be materially affected by denial or interruption of enjoyment” the authors cite N. Y. & L. B. R. R. Co. v. South Amboy, 57 N. J. L. 252 (Sup. Ct. 1894), and Packer v. Woodbury, 3 N. J. Misc. 661, 129 A. 406 (Sup. Ct. 1925).

The portion of the opinion in N. Y. & L. B. R. R. Co. v. South Amboy, supra, relied upon by Cunningham and Tischler was dictum. In addition, that court relied upon Attorney General ex rel. Stickle v. Morris & Essex R. R. Co., 19 N. J. Eq. 386 (Ch. 1869), reversed on jurisdictional grounds sub nom. Morris & Essex R. R. Co. v. Prudden, 20 N. J. Eq. 530, 539 (E. & A. 1869).

In that case the Chancellor stated:

* * * It is now too well settled to be doubted or discussed, that if the owner of a tract of land lays it out in blocks, lots, streets and squares, and sells lots by reference to the map, or in the conveyance abuts them on the streets so laid out, the streets and squares on the maps so referred to, or the street on which the lot is so abutted when the map is not referred to, become thereby dedicated to public use; or, if the owner of land marks out a street by erecting buildings on each side of it, and then sells or leases these buildings, the space so marked out is thereby dedicated to public use. The purchasers of the lots acquire an easement or right in the lands so laid out as streets, and have a right to pass over them, and to have them taken by the proper authorities for public streets, without compensation to the owner. By such dedication the streets do not become public highways; they are not such until accepted by the proper public authorities, or until used by the public as highways for twenty years; until then, there is no right acquired by the public, but only by the purchasers of lots, by whose consent the easements may be surrendered and the land freed from all claim by the rest of the public. These principles have been declared as law by the courts of this state, and affirmed by the Court of Errors, by repeated decisions. Den v. Dummer, Spencer 106; Holmes v. Jersey City, 1 Beas. 299; Jersey City v. Morris Canal and Banking Company, Ibid. 547. [19 N. J. Eq., at 391]

Packer v. Woodbury, supra, used the same language as Cunningham and Tischler did from N. Y. & L. B. R. R. Co. v. South Amboy, supra. The statement was dictum.

In support of the proposition that to constitute acceptance by public user there need be no specific length of time of user shown, Cunningham and Tischler refer to Booraem v. North Hudson County R. R. Co., 40 N. J. Eq. 557 (E. & A. 1885), and Schmidt v. Spaeth, 82 N. J. L. 575 (E. & A. 1911). 15 Bulgers L. Rev., at 398, n. 115.

Booraem v. North Hudson County R. R. Co., supra, is of no assistance in determining whether to constitute acceptance the public user may be for a period of less than 20 years. The court merely stated:

The extention of Ogden Avenue over the premises conveyed did not, ipso facto, become a public highway by the provisions in the complainant’s deed. Acceptance by the public authorities or public user is essential to the creation of public highways. Holmes v. Jersey City, 1 Beas. 299. The reason of this rule is that private persons cannot impose upon the public the expenses of the opening or emendation of public highways. * * * [40 N. J. Eq., at 563]

Schmidt v. Spaeth, supra, stated the general rule;

* * * But the dedication of land for the purpose of a public highway does not, ipso facto, create such a highway. There must be not only a dedication by the owner for that purpose, but an acceptance of that dedication by the public, in order to create it. Holmes v. Jersey City, 1 Beas. 309; Pope v. Town of Union, 3 C. E. Gr. 283; Attorney-General v. Morris and Essex Railroad Co., 4 Id. 391; Booraem v. North Hudson County Railway Co., 12 Stew. Eq. 467; S. C., on appeal, 13 Id. 563; New York and Long Branch Railroad Co. v. South Amboy, 28 Vroom 258, 259. Such acceptance may be indicated by formal action on the part of the representatives of the public having authority over highways, or by public user of the dedicated land. Booraem v. North Hudson County Railway Co., 13 Stew Eq. 563; Abbott v. Cottage City, 143 Mass. [521] 525; [10 N. E. 325]; Ell. S. & Roads (ed. 1890) 114. [82 N. J. L., at 578]

The case held that there was no formal act by the public authorities indicating an acceptance and no conclusive evidence of “such a public user of the street as would indicate an acceptance of it by the public.” It was later held that there had been acts on the part of the municipality that constituted acceptance. Schmidt v. Spaeth, 86 N. J. L. 179 (E. & A. 1914).

The most recent statement by our highest court on the subject is contained in Highway Holding Co. v. Yara Engineering Corp., 22 N. J. 119 (1956). The court stated:

It is settled that mere dedication of streets by a filed map or a reference in a deed to such map, and the opening of the streets as laid out, does not constitute them public highways, unless or until such streets are in some way accepted by public authorities or they are used by the public generally for 20 years as highways. Holmes v. Jersey City, 12 N. J. Eq. 299, at page 309 (E. & A. 1857); Attorney General ex rel. Stickle v. Morris and Essex R. R. Co., 19 N. J. Eq. 386, at page 391 (Ch. 1869), reversed on jurisdictional ground Morris & Essex R. R. Co. v. Prudden, 20 N. J. Eq. 530, at page 539 (E. & A. 1869) [at 127]

As to this case Cunningham and Tischler say, 15 Rutgers L. Rev., at 398, n. 115:

In the Highway Holding Co. case, supra note 114, the statement as to twenty years’ user by the public was obiter dictum.

Actually, no New Jersey case has been cited to or found by this court, nor is any case referred to by Cunningham and Tischler, which holds that there was acceptance of a dedication by public user for any number of years. All of the statements in the cases are dicta. There can be no doubt that the public can acquire a right to use a street that has been dedicated and used for a period of less than 20 years. Attorney General ex rel. Stickle v. Morris & Essex R. R. Co., supra, 19 N. J. Eq., at 392. Such right to use, however, is entirely different from acceptance so as to make the municipality responsible for the street and take the land off the tax rolls.

In each case finding acceptance the court has relied upon municipal action evidencing an intention to accept. Although the statement in Highway Holding Co. v. Yara Engineering Co., supra, was dictum, it expresses a rule based upon logic. Serious financial consequences to a municipality follow upon acceptance of a dedicated street. The expense of maintenance, sewering, lighting and patrolling the street; the possibility of liability in connection with use of the street, and the removal of the land from the tax rolls are not to be taken lightly. So indefinite a standard as “an actual enjoyment by the public of the use for such length of time that the public accommodation would be materially affected by a denial or interruption of enjoyment” should be avoided in view of the consequences to the municipality. If a sufficiently large segment of the public wants a municipality to assume the burden of a dedicated street, it can accomplish its aim directly by causing the municipality to accept the street by ordinance or resolution.

Here there was no evidence that Shepard Avenue was used by the public “generally for 20 years” as a highway. There has been no acceptance by public usage.

Such use as has been made of the premises in question by the public, even if continued for a period of 20 years, would not constitute acceptance. To constitute acceptance the public user “must be unequivocal and consistent with the purpose of the dedication * * *.” 15 Rutgers L. Rev., supra, at 398. Here the use by the public was as a parking lot and not as a street. Not having been used for the purpose of dedication, there could be no acceptance. Brindley v. Lavallette, 33 N. J. Super. 344, 352 (Law Div. 1954). The so-called “avenue” connected nothing. It was never used as a thoroughfare to get from one street to another street.

There has been no acceptance by public usage. It follows, therefore, that an assessment was properly made upon the premises in question even though there had been a dedication. Pt. Pleasant Manor Building Co. v. Brown, 42 N. J. Super. 297, 305 (App. Div. 1956), certif. den. 23 N. J. 140 (1957).

It is argued by defendants that the assessment was void because at the time of the assessment Long Branch owned one-half of Shepard Avenue. Even if the assessment in fact was made on the entire parcel known as Shepard Avenue, it would not be void but merely irregular. Such irregularity cannot be collaterally attacked by these defendants. N. J. S. A. 54:3-21.

Defendants do not dispute that Long Branch complied “with the letter of the Notice statute involved herein.” It is admitted that the in rem tax foreclosure statute only requires publication. Newark v. Yeskel, 5 N. J. 313 (1950). Defendants seek to distinguish that case because the court was there dealing with landowners, whereas defendants claim that they were not the owners of the land until the adoption of the ordinance vacating the street. That contention, however, is in error. If they had ownership of part of Shepard Avenue, the dedication did not deprive them of the fee but merely made it subject to the rights of the public. State by State Highway Com’r. v. Cooper, 24 N. J. 261, 267 (1957), cert. den. 355 U. S. 829, 78 S. Ct. 41, 2 L. Ed. 2d 42 (1957); Stockhold v. Jackson Tp., 136 N. J. L. 264 (E. & A. 1947).

N. J. S. A. 54:5-104.31 provides that the in rem statute shall be “liberally construed as remedial legislation to encourage the barring of rights of redemption * * *.” It is admitted that the city complied with the notice provisions contained in N. J. S. A. 54:5-104.42. Defendants assert that the city should have gone further and given actual notice to them because they were the last persons in the chain of title. In East Rutherford v. Sisselman, 26 N. J. Super. 133 (Ch. Div. 1953), it was held that plaintiff had complied with N. J. S. A. 54:5-104.38 (repealed, L. 1953, c. 51), by setting forth in the complaint the name of the last record owner rather than the name of the last person in the chain of title. At the time of the filing of the complaint in the in rem tax .foreclosure proceeding, the contents of the complaint was governed by R. R. 4:82-7. That rule did not differ from the provisions of N. J. S. A. 54:5-104.38. Defendants'" argument here is the same as that made in East Rutherford v. Sisselman, supra. Here the 1959 assessment was made to the last record owner. The complaint needed to go no further. There was no defect in the in rem tax foreclosure proceedings.

There will be a judgment that defendants Primavera have no interest in the lands that are the subject matter of this suit and that in respect to such lands, so far as relates to any claim by or on behalf of defendants Primavera, plaintiff has an estate in fee simple. Costs will be allowed to plaintiff.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ALBERT W. COSTA AND PHILIP E. SOLIMENE, DEFENDANTS.
    Superior Court Law Division—Criminal.
    Decided March 5, 1970.

      Mr. William L. Kattalc, Assistant Prosecutor, attorney for plaintiff.

      Mr. Melvin Fine, attorney for defendant Costa.

      Mr. Robert B. Cherry, attorney for defendant Solimene.
   Crane, A. J. S. C.

Defendants have been indicted for breaking and entering the dwelling house of one Paul Whitehead and stealing therefrom $34,751.75 in assorted coins, four pieces of luggage and two pieces of jewelry. Defense counsel have moved to dismiss the indictment upon the ground that it was returned without adequate evidence having been presented to the grand jury.

The transcript of the testimony before the grand jury was made available to defense counsel as the result of pretrial discovery proceedings. (Cf. State v. Graziani, 60 N. J. Super. 1 (App. Div. 1959), where such testimony was not available in accordance with the rules then prevailing.) It reveals that only one witness testified before that body, namely Lieutenant Vincent J. Mangiafico of the Hawthorne 'Police Department. A brief extract from his testimony will demonstrate its nature.

Q. Lt. Mangiafico, you’re a member of the Hawthorne Police Department?
A. Yes, sir, I am.
0. And did you participate in the investigation there leading to these charges against Albert W. Costa and Philip E. Solimene?
A. Yes, sir.
Q. Will you give us the benefit of the police investigation in this matter?
A. Yes. The day of the offense was on a Friday, February 28, 1969 at approximately 3:58 p.h. The offense took place at Mr. and Mrs. Paul Whitehead of 18 Wagner Place of Hawthorne, New Jersey. Upon arriving at the scene there I spoke to the victim, Mr. Whitehead, and made an observation of the entire premises. Three or .four rooms had been ransacked. And from the preliminary investigation, Mr. Whitehead stated that his entire coin collection had been taken. Also, he also took inventory that there were several pieces of luggage missing and several pieces of jewelry. His inventory was not complete for several days. However, lie did present an inventory ■which amounted to the market value of these rare coins which were gold, silver and other coins were $34,751.75. The face value of the coins were $1,970.24.
As we proceeded with the investigation at that time, we started to canvass the neighborhood and we spoke to one witness, a Betty Mitchell of 5 Midland Avenue and she stated to us that she did observe a white male, dark hair, wearing black gloves standing at the rear door of the Whitehead residence at approximately 1 p.m. that day. She couldn’t give us any other description. However, we did check around the block from Mr. Whitehead. We spoke to a Jane — Joan Iseman of 22 Wagner Place. She stated she was on her way home from school and she did pass the Whitehead house at approximately 2:45. There she saw standing at the rear door what she described as a white male, approximately 25 to 30 years old, 5' 9", stock-built and she described him as having a thick neck or like an athlete or a fullback. He bad red hair. He had a three length quarter coat [sic] and he had black gloves. She stated that she could identify the subject if she saw him again. This was all on the initial date.
On March 14, Miss Marlene Brockheiser of 334 Diamond Bridge Avenue came forth on her own. She came to Headquarters. She thought it was important that she give testimony to what she saw on that particular day. She stated she was in her backyard attending to her child when she observed a white male about 30 years old, 5'8", about a hundred sixty-five pounds, black hair, wearing a sport jacket. She stated the subject was carrying two green suitcases, which were described as the type suitcases taken from the Whitehead’s house. In her own terminology she said appeared to be very heavy and she felt sorry for the man, because his face was burned. However, she stated she can identify the subject. At 5:30 that same day on Tuesday I contacted Patrolman Jack Lombardi of the Pompton Lake Police Department. He agreed to come down and make a composite of each one of the suspects. Sketches were made as a result of descriptions given by Joan Iseman as the party she saw at the rear door of the Whitehead house and Marlene Brockheiser gave a description of the person she saw walking up the street from the Whitehead house carrying green suitcases.
On Wednesday, the following day, March 5, a Margaret Panning came forth. Her house is directly on the comer of Diamond Bridge Avenue and Wagner Place. She stated that she saw a person on 3 occasions that particular day of the crime and she describes the person as being a white male, about 20 to 25 years old, 5'9", curly brownish red hair. He was wearing a three length—3 quarter length coat. She saw him on three different occasions and she also saw this person carrying a green suitcase and she also stated that she could positively identify this person in the event that he was saw again.
On March 18, on Tuesday, I received information, the result of a phone call submitting the names of Albert Costa and Phillip E. Solimene as the persons responsible for committing the crimes in the Borough of Hawthorne. Acting on this information, I immediately made a routine check on both of these suspects. I check their records—

The lieutenant, whose excellent police work is to be commended, then went on to describe the process of the identification of the defendant from photographs shown witnesses. Other than the description of the observations he made, from which he concluded that three of the four rooms had been ransacked, the officer was simply relating what had been told him by other persons.

The use of hearsay testimony before a grand jury does not in and of itself invalidate an indictment. Costello v. United States, 350 U. S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956). Nor is it necessary that all of the evidence before a grand jury be legally competent. State v. Dayton, 23 N. J. L. 49 (Sup. Ct. 1850). But it has been recently held that where the sole witness before the grand jury was a detective who did nothing but present the prosecutor’s file, the indictment was subject to dismissal. State v. Chandler, 98 N. J. Super. 241 (Cty. Ct. 1967). In the present case there was not even an attempt to introduce sworn statements of witnesses before the grand jury upon which an indictment might properly have been based. See State v. Laws, 50 N. J. 159, 182 (1967).

An important function of a grand jury, and one of the principal reasons for the existence of the grand jury system, is the protection of innocent persons against having unfounded accusations brought against them. Such an important function cannot be performed in a perfunctory manner. If a grand jury is merely to stamp approval upon the findings of an investigative police officer, why have grand jury proceedings at all? This grand jury was specifically instructed, as are all grand juries in Passaic County, that

Tour principal function as members of the Grand Jury will be to hear evidence presented by the Prosecutor concerning allegations of violations of the criminal law. The Prosecutor will present witnesses he has interviewed or persons who have made complaints that a crime has been committed. Xou will be required to determine, after hearing legal evidence, not merely hearsay or rumor, whether any offense has been committed. If you find that an offense has been committed, you are to determine who shall be accused of the offense and return indictments in proper cases. Ordinarily you would only hear the state’s side of the case and after you have heard the evidence, you are to decide whether a prima facie case has been made out. This means that you are to determine whether or not the State has presented evidence which, by itself if unexplained or uncontradicled indicates first that a crime has been committed, that the defendant committed it, and thus a conviction of the accused would be justified. If you so find, you must vote on the matter in accordance with your oath and return an indictment. There is another very important part of your duty and that is that you have an obligation to protect innocent persons from unfounded criminal accusations brought againi them. If the evidence that you hear does not convince you that a crime was committed or that if a crime was committed that it was not committed by the person or persons accused, then it will be your duty not to return an indictment. In such a case you will vote “no bill.” [Emphasis added]

Tile testimony presented to the grand jury in this case had the characteristic of smoothness described in United States v. Arcuri, 282 F. Supp. 347 (D. E. D. N. Y. 1968). A grand jury presented wtih such “evidence” is unable to perform its proper function. It is unable to determine whether a crime has in fact been committed and whether there is sufficient evidence to justify a charge against the accused without relying completely upon the testimony of the investigative officer.

Some cases have referred to the returning of an indictment under circumstances such as are here present as “misconduct” of the grand jury. See e. g., State v. Dayton, supra; State v. Donovan, 129 N. J. L. 478, 483 (Sup. Ct. 1943); State v. Chandler, supra. The real dereliction, however, is on the part of the prosecutor. Grand jurors are lay people; while they are for the most part highly intelligent and perform their functions exceedingly well, they are not expected to have a professional understanding of the propriety of proceedings before them. The prosecutor is a professional, however, and he is expected to present evidence to a grand jury in a manner which conforms to the appropriate legal precedents. That the proceedings have reached this stage is regrettable. No one doubts that the prosecutor has adhered to high ethical standards but it appears that it would have been a relatively simple matter for him to obtain a superseding indictment.

Motions of this nature are directed to the sound discretion of the court. State v. Dayton, supra. Among the factors to be considered are the complexity of the case, United States v. Costello, supra, and the availability of witnesses with first-hand knowledge, United States v. Umans, 368 F. 2d 725 (2 Cir. 1966). Here no difficulty in producing witnesses appears; they are all local people and the case itself is relatively simple. No sound reason has been advanced by the State to justify its virtually exclusive reliance on hearsay. In view of all the factors the indictment will be dismissed.


author: Yanoff, J. D. C.

text:
    PETER FIDUCCIA AND BARBARA FIDUCCIA, PLAINTIFFS, v. SUMMIT HILL CONSTRUCTION CO., INC., A CORPORATION OF NEW JERSEY AND THE BOROUGH OF ROSELAND, DEFENDANTS.
    District Court Essex County
    Decided March 4, 1970.

      Mr. Francis W. Donahue appeared for plaintiffs (Messrs. Rubin, Dolgoff & Sussman, attorneys).

      Mr. Norman A. Doyle appeared for defendants (Mr. Thomas F. Durkin, attorney).
   Yanoff, J. D. C.

The problem raised on this motion to dismiss count II of the complaint for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(a) and 6:3-1 is whether, as a matter of law, a municipality may be held liable to a landowner for negligence in granting a certificate of occupancy.

The background facts are that defendant Summit Hill Construction Co., Inc. built a home for plaintiff for which the municipality issued a certificate of occupancy. The howeowner now complains that the builder improperly graded the land and failed in other respects to construct the home properly, and sues both builder and municipality. The municipality is charged with negligence in the issuance of the certificate of occupancy.

Yiewed analytically, it is possible to build a chain of logic under which plaintiff might prevail. If the scope of duty is determined by whether “it was within- the realm of foreseeability that some harm might result,” Hartman v. Brigantine, 42 N. J. Super. 247, 262 (App. Div. 1956), aff’d 23 N. J. 530 (1957); Avedisian v. Admiral Realty Corp., 63 N. J. Super. 129 (App. Div. 1960), and if the foreseeability of harm may be considered as a matter of hindsight, see Mitchell v. Friedman, 11 N. J. Super. 344 (App. Div. 1951), there is a question here for the trier of fact. Certainly it was foreseeable that a landowner might rely upon the certificate of occupancy, and that if the certificate of occupancy were negligently issued, a landowner so relying might suffer damage. On such analysis the breach of obligation of due care, and the chain of causation, would be satisfied. But as the cases have made clear, the consequences of the application of such a chain of logic may require limitation as a matter of policy. In Goldberg v. Housing Authority of Newark, 38 N. J. 578 (1962), Chief Justice Weintraub, in a decision holding a municipal housing authority under no duty to provide police protection in a housing project, said:

The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution, [at 583]

To the same effect, are the remarks of Justice Hall in Caputzal v. Lindsay Co., 48 N. J. 69, 75 (1966).

The basic question was discussed in detail in Seidel v. Greenberg, 108 N. J. Super. 248 (Law Div. 1969). There it was said:

The existence of “causation in fact” having been established, the problems of “proximate cause,” “foreseeability,” “duty,” “intervening cause” and the like are presented. In the last analysis, they resolve themselves down to problems, not simply of factual causation, but rather of policy, justice and fairness, [at 259]

The complaint states the ease against the municipality as if it were a private individual, without charging active wrongdoing or specifying the position in the municipal chain of command of the officer who issued the certificate.

In the light of Hayden v. Curley, 34 N. J. 420 (1961), and Cloyes v. Delaware Tp., 23 N. J. 324 (1957), I doubt that dismissing count II for failure to allege active wrongdoing is warranted.

In Hayden, the jury involved was caused by the natural growth of a tree. The court said:

To constitute ‘active wrongdoing’ a municipality’s injury-conflicting conduct must consist of something more than a negligent failure or omission to act. [at 424]

The court, nevertheless, held that

By planting the tree, the city affirmatively created an obstruction in the public way. The jury could find it was reasonable [sic] foreseeable at the time of the planting that the tree in the course of its natural growth, which includes the growth and spreading of its roots, would probably disrupt the alignment of the sidewalk. Put another way, a jury could find it was reasonably foreseeable that the tree, if not properly inspected and maintained, would so affect the surrounding sidewalk as to develop from a potential to an actual public nuisance, [at p. 427]

In Cloy.es, Chief Justice Weintraub, 23 N. J., at 330, pointed out that whether wrongdoing is active or passive often depends upon a choice of point of view; that wrongful conduct viewed from one aspect may he deemed passive, and from another, active. Not since Boyle v. County of Hudson, 8 N. J. 294 (1951), has a suit against a municipality been lost on the ground that the liablity-creating contract was not active. In Hartman v. Brigantine, 23 N. J. 530 (1957), the court said:

And the more recent cases have displayed a just readiness in finding that the negligent conduct of the defendant municipality in the maintenance and care of the highway included affirmative action which would support a jury determination of active wrongdoing. [at 533]

It may, therefore, be inferred that, given the right to amend, the ingenuity of counsel would not be beyond phrasing the negligence of the municipality in terms of acts of commission rather than omission.

The rank of the person who issued the occupancy permit in the municipal hierarchy is of no significance so long as he had authority.

In McAndrew v. Mularchuk, 33 N. J. 172 (1960), it was held:

Where negligent acts of commission form the basis of the claim against a municipal corporation, the issue of obligation to respond in damages shall be determined on general principles of respondeat superior, [at p. 193]

That issuance of the certificate was authorized cannot be doubted.

The basic question, therefore, is whether this is the kind of activity for which a municipality should be held responsible under ordinary principles of tort liability. Clearly, there are areas in which governmental activities involve questions of discretion and judgment for which, in the absence of bad faith, corruption, oppressive conduct, or other abuse of power, there is immunity from tort liability. In Amelchenko v. Freehold, 42 N. J. 541 (1964), a municipality was held not responsible for its policy determination that snow be removed from other public areas before removal from a parking lot. In Hoy v. Capelli, 48 N. J. 81 (1966), a municipality was exonerated from liability because it had removed a traffic light from an intersection. In Visidor Corp. v. Cliffside Park, 48 N. J. 214 (1966), cert. den. 386 U. S. 972, 87 S. Ct. 1166, 18 L. Fd. 2d 132 (1967), it was held that a municipality was not responsible in tort because it had illegally designated a one-way street. See also Bedrock Foundations, Inc. v. Geo. H. Brewster & Son, Inc., 31 N. J. 124 (1959).

In B. W. King, Inc. v. West New York, 49 N. J. 318 (1967), it was held that a municipality might be liable where it operated a pier in its proprietary capacity. Nevertheless, the court, in considering which municipal activity would be immune from tort liability, said:

The analytical approach ought not to be one of asking why immunity should not apply in a given situation but rather- one of asking whether there is any reason why it should apply, [at 325]

Nevertheless in Miehl v. Darpino, 53 N. J. 49 (1968), the Supreme Court held that as a matter of policy a municipality should not be held liable for injuries caused by the presence of a pile of snow created in connection with snow removal.

The line at which governmental activity becomes immune is not readily defined. In 2 Harper & James, Law of Torts, § 29.3, at 1612 (1956), it is said:

On the other hand, no one today urges that a judicial remedy be given for all the injuries that may result from mistaken governmental action, * * *.

And, at 1642:

The American rule today, then, is that judicial, legislative, and administrative officers are not generally liable for injurious eon-sequences of discretionary action or nonaction. And the tendency has been to define the concept of discretionary or quasi-judicial action broadly in favor of immunity.

Cases showing the divergence of view on the subject are collected in 60 A. L. R. 2d 1198 (1958). See also Prosser on Torts (3d Ed. 1964) p. 1006.

For the view that immunity should be confined to the planning level see Hint and Schacter; “American Governmental Tort Liability,” 20 Rutqers Law Review 710, at 753 (1965-66)

Municipal power to issue the certificate is created by N. J. S. 40:48-1(13) which gives a municipality power to:

Regulate and control the construction, erection, alteration and repair of buildings and structures of every kind within the municipality * * *

In this case, the ordinance of defendant, municipality, provides:

2 (a) Certificate of Occupancy. No building hereafter altered or erected shall be used or changed in use until a Certificate of Occupancy shall have been issued by the Building Inspector stating that the building and the proposed use thereof complies with all other applicable ordinances of the Borough.

In Honigfeld v. Byrnes, 14 N. J. 600 (1954), the Court said :

But a certificate of occupancy is merely a tangible manifestation of proper use of one’s property in accordance with the ordinance in question. Before it can issue, the building inspector is obliged to view and examine the premises to determine conformity with all appropriate regulations * * * [at 608]

To the same effect: Union County v. Benesch, 98 N. J. Super. 167, 177 (Law Div. 1967), mod. 103 N. J. Super. 119 (App. Div. 1968)

In my view, this is the kind of ease where there should be municipal immunity. While issuance of a certificate of occupancy does not involve planning or policy functions, it does entail the exercise of discretion. Not only must the building inspector determine whether there has been compliance with building regulations and health regulations, but whether the structure complies with the requirements of the zoning ordinance. The books are replete with zoning eases which demonstrate that this can be a task requiring considerable skill. The building inspector does more than mechanically apply existing regulations; he must often exercise judgment in difficult areas. While it can hardly be said that his powers are gwa,si-judicial, it seems improper to expose a municipality to the possibility of tort liability for errors in the exercising of such judgment, particularly since it is now responsible for the acts of all of its agents.

Another consideration is that, as we have seen (e. g. Honigfeld, supra; Union County, supra) the certificate of occupancy is merely a testimonial that the property is being used in compliance with applicable ordinances. It is issued for the protection of the municipality as a whole, not for the benefit of the landowner. Doubtless, the building inspector must use duo care in the performance of his functions, but his obligation is to see to it that there has been no violation of municipal ordinances, not to insure that the building has been constructed in such manner as to protect the landowner. If, incidentally, the landowner benefits from the activities of the building inspector, this does not give him the right to rely upon the certificate of occupancy for proof of proper construction.

Eor this, the landowner should—and traditionally has— protected himself by contract.

There is nothing in the enabling statute or the ordinance to indicate that there is an intent to protect the landowner against failure of the building contractor to perform properly, or an assumption by the municipality of such an obligation.

In the few cases where the problem has arisen, the municipality has prevailed. In City of Tyler v. Ingram, 139 Tex. 600, 164 S. W. 2d 516 (Tex. Sup. Ct. 1942) it was held that:

“A municipality is not liable for the negligence of a building inspector in the performance of his duties; because such duties are governmental functions. McQuillin-Municipal Corporation, Vo. 6, p. 1172 Sec. 2842; Valenti v. Mosholu Housing Corporation, 164 Misc. 788, 299 N. Y. S. 590; Stubley v. Allison Realty Co., 124 App. Div. 162, 108 N. Y. S. 759; Lindemann v. City of Kenosha, 206 Wis. 364, 240 N. W. 373.” [164 S. W. 2d, at 519],

Accord: Stubley v. Allison Realty Co., 124 App. Div. 162, 108 N. Y. S. 759 (App. Div. 1908)

In the analogous situation of liability of a municipality for issuance of a building permit, it has been held that a municipality is not liable for negligence. 9 McQuillin: Municipal Corporations (3 ed. 1964), § 26,200, p. 524, and cases cited at footnote 69.

Count II of the complaint will, therefore, be dismissed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH MUSTACCHIO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 27, 1969
    Decided March 13, 1970.

      Before Judges Coneoed, Collestek and Koloysky.

      Mr. Kenneth J. McGwire argued the cause for appellant {Messrs. Stein, Bliablias & Goldman, attorneys).

      Mr. -Joseph A. Falcone, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant Joseph Mustacchio and one Anthony D’Agostino were indicted for the crime of armed robbery, in violation of N. J. S. A. 2A:141-1 and 2A:151-5. Following a jury trial Mustacchio was found guilty and D’Agostino acquitted. Mustacchio appeals.

The indictment followed the holdup of a drug store in Bloomfield on the evening of April 4, 1967. Two men, one armed with a shotgun, entered the pharmacy and robbed David Goffman, the proprietor, of approximately $289. William Beil, who was making a phone call in the public telephone booth in the store, witnessed the crime. While the man with the shotgun covered Goffman, the other man, who kept his right hand in his coat pocket throughout the robbery (apparently giving the impression that he was armed), removed the contents of the cash register. He then made Goffman go to the rear of the store and produce a metal box containing more cash. After taking the money he cut the telephone wires. The man with the shotgun ordered Bell to remain in the booth until his partner and Goffman returned. Thereafter, both Goffman and Bell were forced to lie down on the floor until the robbers fled. The police were called and given a description of the two men. Mustacchio and D’Agostino were identified as the robbers from police photographs and, following their arrests, were identified by the eyewitnesses separately at lineups conducted by the police. At the trial Goffman and Bell again identified the two men — D’Agostino as the man who carried the shotgun and Mustacchio as the person who took the money. Both Mustacchio and D’Agostino asserted the defense of alibi.

The principal ground of appeal urged by Mustacchio is that the admission of testimony of his pretrial identification by Goffman and Bell was error because it violated his rights under the Sixth and Fourteenth Amendments. At the trial, when the State was about to offer testimony by Goffman that he had identified Mustacchio and D’Agostino at lineups conducted by the police, defendant objected, arguing that evidence as to the lineup identification was inadmissible because he had not been represented by counsel at the lineups as called for by United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and requesting a hearing to determine whether the in-court identification to be made by Goffman was tainted by the allegedly invalid lineup identification. The court overruled defendant’s objection and denied his request for a hearing, holding that the rule of Wade requiring the presence of counsel at a lineup did not apply to the lineups in this case which took place some two months before June 12, 1967, the date Wade was decided.

Defendant argues here, as he did below, that he was denied his Sixth Amendment right to the assistance of counsel at the lineups and that it was unfair not to exclude the pretrial identification testimony because the confrontations took place prior to the effective date of Wade. The argument is without merit. In Stovall v. Denno, 388 U. S. 293, 300, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), the court held that an accused’s right to counsel at a lineup mandated by Wade did not apply to lineups conducted prior to June 12, 1967. We are also satisfied that admission of the out-of-court identification did not, as asserted by defendant, constitute a violation of the rulings of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974 (1966), and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).

Defendant also contends that the trial court erred in denying the request he says he made for a preliminary hearing and determination by the court “regarding the fairness of the totality of the circumstances surrounding such pretrial identification.” The record furnishes no support for the claim that he had made such a request. Defendant’s argument for a voir dire- hearing was based solely on his contention that Wade should be given retroactive effect, e. g., “What difference does it make when the lineup was conducted * * * The element of time should not affect [defendant’s] particular right.” His request for a hearing was limited to a request that it be held to determine whether the witness’ proposed in-court identification of defendant was tainted by the lineup identification, assertedly invalid because defendant was not then represented by counsel. Absent a request that the trial court hold a preliminary hearing and rule with respect to the alleged unfairness of the lineup procedures, the lack of such a hearing affords no basis for reversal.

Defendant’s final contention with respect to the pretrial identifications is that they were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This point was not raised below, defendant relying instead on his cross-examination of the State’s witnesses and his own testimony to impugn, for the benefit of the jury, 'the weight of the pretrial identification testimony. Accordingly, we may consider the argument only if the introduction of the pretrial identification qualifies as plain error, R. 2:10-2, the test being whether the error complained of was of such a nature as to have been clearly capable of producing an unjust result. State v. Lowery, 49 N. J. 476, 484 (1967).

A pretrial identification, if made under circumstances precluding unfairness or unreliability, is admissible where the person making the prior identification is in court as a witness. State v. Matlack, 49 N. J. 491, 497 (1967). The validity of a claim that a pretrial identification is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a violation of due process must be evaluated upon the totality of the circumstances surrounding the confrontation. Ibid., at 498; Stovall v. Denno, supra, at 302, 87 S. Ct. 1967: State v. Mars, 107 N. J. Super. 36, 39 (App. Div. 1969), certifi. den. 55 N. J. 319 (1970).

In the instant case both Goífman and Bell were able to observe defendant at the time of the robbery, and separately identified him from photographs before his arrest and subsequently at lineups conducted by the police — all within three days after the crime was committed. Both eyewitnesses positively identified defendant at the trial. We find no plain error in the admission of the in-court or out-of-court identifications.

We proceed to consideration of the other grounds of appeal.

Defendant argues error in the denial of his motion for a mistrial, based on alleged praise of a State witness’ testimony by police officers, during an intermission of the trial, within the hearing of some of the jurors. We conclude that based upon the court’s investigation of the incident with all involved, including the jurors in question, its denial of the motion was justified.

Complaint is made that the court should have granted a mistrial when one of the witnesses supporting defendant’s alibi defense was improperly questioned by the State concerning a criminal record for which the prosecutor had no foundation. We deem the impropriety to have been adequately neutralized by appropriate instructions by the court to the jury.

We find no mistaken exercise of discretion in the court’s restricting cross-examination of a State witness to the scope of what his testimony was on direct examination, in certain instances complained of by defendant. Moreover, we find no error in restricting cross-examination of a police detective concerning investigation of an alleged wave of drug store hold-ups at about the time of that here involved.

Einally, error is assigned to the introduction by the State of evidence of defendant’s prior criminal convictions upon his cross-examination. The argument is frivolous under the settled law of this State.

Affirmed.

Conford, P. J. A. D.

(dissenting). I am constrained to dissent on the single ground that the circumstances attending the lineup identifications were such as to have called for a voir dire hearing and preliminary determination as to fairness by the trial judge. I read the record, contrary to my colleagues, to show that defendant did make the point at trial and thus preserved his right of appellate review thereon.

Defendant was one of two persons (the other, one D’Agostino) tried for the hold-up of Goff man’s pharmacy in Bloomfield the evening of April 4, 1967. D’Agostino was acquitted. Goffman and one Bell, who was making a phone call in a booth in the store, witnessed the crime, and both identified defendant at lineups and in court. (They both also identified D’Agostino at lineups and in court.) D’Agostino was identified as carrying a gun; defendant as not, but as having taken the money. According to the testimony of Goffman and Bell, respectively, before the conducting of the lineups Goffman identified defendant from police photographs; Bell, shown the same pictures, could not. One of several detectives who conducted the investigation testified to precisely the reverse. At trial Bell was able to identify defendants’ photos. Goffman had the opportunity to make a good observation of defendant at the scene of the crime, having been close to him both at the cash register in the store and in a back room where he turned over additional moneys to him. Bell, however, had only seconds to observe defendant before being commanded to lie on the floor face down, along with Goffman, while the culprits fled.

In separate lineups at police headquarters, about 10 or 15 minutes apart, on April 7, 1967, Goffman and Bell each identified defendant immediately from among four other men, all Caucasian, as is defendant. However, defendant testified that each of the others was dressed in jachet, shirt and tie, and was clean shaven, while he, stationed in the middle position, wore a T-shirt and sweater, and was unshaven. Defendant testified that on April 4, 1967 he was 5 foot 8, weighed 200-210, had dark brown hair, a bandage over a discolored eye, a discolored nose and a bandaged right hand, the latter conditions stemming from an accident sustained prior to April 4. The bandages and discoloration still existed April 7.

Of the other men in the lineup, according to defendant, one weighed 160-175 and had a very white complexion (defendant’s is dark); another was much younger and much smaller than defendant, with fair complexion and sandy hair; another was slender and six inches taller than defendant, with blond hair; and the last, a detective, was 5 foot 8, but of medium build, light complexion and younger-looking than defendant.

Bell testified that at the lineup all the men were about the same height and the same build, and all were wearing “plain civilian clothes.” They more or less fit the description he had given of the suspects to the police (but the police testified Bell was unable to give them a description of the man without the gun, only the other). Goffman could not remember the appearance of the other participants at the lineup. The only other testimony as to their appearance was by a detective, on cross-examination, that one of them was 5 foot 10 or 11 and weighed 180-190.

Goffman testified that the man without the gun ■ (defendant) was 5 foot 6 or 7 and very heavy set. In his original description of that man to the police, he had described him as 5 foot 11. He also testified that that man kept his right hand in his pocket throughout the course of the robbery.

In making their in-court identifications both Goffman and Bell were positive, Goffman “extremely” so.

Both defendant and D’Agostino supplied well corroborated alibis at trial.

At the trial, as the State was about to offer testimony of pretrial identification of defendants by Goffman, defendant, after referring to anticipated Tineup” testimony, objected to any of the “present testimony dealing with in court identifications” until after a hearing out of the presence of the jury to determine whether the circumstances of any pretrial identifications (1) tainted the in-court identification under the criterion of United States v. Wade, 388 U. S. 218, 240-241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and (2) violated defendant’s “Fifth Amendment” [but, from the subsequent context, clearly intending “Sixth Amendment”] rights.

The colloquy on the motion (out of the presence of the jury), after statement of the grounds of the motion as aforesaid, dealt entirely with the legal question as to whether Wade, generally, applied to pretrial identifications made in fact before the date of the Wade decision (June 12, 1967). There was no discussion of the testimony to be adduced. The court, without explanation beyond saying that the matter had been ruled upon both by the United States Supreme Court and the Supreme Court of New Jersey, denied the motion for a voir dire hearing.

I note, preliminarily, that when a Wade-type problem is anticipated and the defense moves in advance of proofs for a voir dire hearing, the court should elicit from both sides their understanding (or intention) as to the general charaeter of the pretrial and in-eourt identification proofs expected to be adduced, and also, from the defendant, whether his objection will be to admissibility of the evidence of pretrial identifications, or of in-court identifications, or both. Only in that way, generally speaking, can the court make a sound judgment as to whether a sufficiently colorable ease of illegal or unfair pretrial identification procedures, or as to tainting of the in-court identification, is made out, within the criteria of the controlling cases, cited hereinafter, as to justify the preliminary hearing out of the presence of the jury. Had the trial court done so here, it would have learned, as indicated hereinafter, that such a hearing and preliminary determination was required because of the nature of the anticipated testimony relating to the issue of unfairness of the lineup.

I agree with the majority in dismissing the argument made below and here that the lineups were illegal under Wade because defendant was not attended by counsel. In Stovall v. Denno, 388 U. S. 293, 300, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), decided the same day as Wade, the court squarely held that the requirement of counsel at a lineup declared in Wade would not apply to lineups conducted before the date of the Wade decision. See also State v. Matlack, 49 N. J. 491, 499 (1967), cert. den. sub nom. Matlack v. New Jersey, 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). I also concur with the majority that there is no merit in defendant’s argument that, aside from Wade, his lineup identification without attending counsel constituted a deprivation of counsel within the authority of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974 (1966), and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). However, Stovall apparently ruled by implication that the expressions in Wade and in Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (also decided June 13, 1967), as well as in Stovall—that overall unfairness in pretrial identification confrontations, apart from absence of counsel, could fatally taint ensuing in-court identifications (deprivation of due process)—were not necessarily confined to post-indictment confrontations.

Stovall involved a pretrial identification confrontation under what the court indicated might normally have been unfair circumstances (388 U. S., at 301-303, 87 S. Ct. 1967; and see Wade, 388 U. S., at 234, 87 S. Ct. 1936), but the procedure was held justified in the particular case because of the uncertainty of survival of the only witness of the crime. 388 U. S., at 302, 87 S. Ct. 1967. The court did not allude to the fact that the confrontation was pre-indictment—a factor which would of itself have sufficed to dispose of the argument of unfairness if antecedence to indictment was determinative. See also State v. Woodard, 102 N. J. Super. 419, 424-425 (App. Div. 1968), certif. den. 53 N. J. 64 (1968), cert. den. sub nom. Woodard v. New Jersey, 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 3d 453 (1969).

I consequently here conclude that the chronology of the pretrial identification procedures in relation to the date of the indictment is not dispositive of defendant’s contentions on unfairness and taint.

The majority appears to rule out the appellate claim of right to voir dire hearing on unfairness in the circumstances attending the out-of-court identifications and alleged ensuing taint of the in-court identifications on the basis that the point was not made below — that defendant argued only the right to counsel during such identification. My own examination of the transcript shows the former point was in fact made, although obvious stenographic errors in transcription becloud it. Edited to correct the reporter’s errors, the transcript shows that when the State asked the victim of the crime whether he ever subsequently saw the men who robbed him, the defense objected, and among other things counsel said:

At any rate, I would like to interpose my objection of the present testimony dealing with in court identification until your Honor has had an opportunity to review in a hearing out of the presence of the jury the circumstances surrounding the pretrial identification of both defendants to determine whether or not what will [not] be elicted by in court identification [.] [This] is totally independent of or has some basis or some independency from what was done at some police station in Bloomfield or elsewhere, and further more, whether or not during the course of the pretrial identification, the accused in this instance my client * * * were afforded their rights under the amendment, the Fifth [sic.] Amendment of the United States Constitution. [Italics to show additions by court]

To me the implication from the foregoing, and particularly what follows the adverb “further more,” is that counsel was urging both taint from unfairness of circumstances attending the out-of-court identifications and a right to a voir dire hear-' ing on the point, on the one hand, and the illfounded contention of retroactivity of Wade in respect of the right to counsel during identification, on the other. Because counsel was not as clear as he might have been, the trial judge unfortunately saw only the second point, and the ensuing colloquy was confined thereto.

Since we are dealing with a matter of due process enunciated by the United States Supreme Court I think we should not indulge in a narrow and grudging reading of the scope of the defendant’s trial position. The right of preliminary court determination of unfairness is incontestible here on the proofs.

The sharp dispute in the testimony concerning the alleged contrasting appearance of defendant vis-a-vis the other subjects standing with him in the lineup at which he was identified in the Bloomfield police station particularly mandates a remand of this matter to the judge who presided at the trial for findings thereon, as to the unfairness of the out-of-court identifications on the totality of the circumstances, and, if necessary, as to any taint of the in-court identifications. Clearly, if defendant’s version of the contrast in appearance and dress between-himself and the other subjects were found by the trial judge to have been true, this might well warrant a finding by him that the lineup was unfair as “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” — the applicable criterion of unfair identification procedures enunciated in Simmons v. United States, 390 U. S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Mars, 107 N. J. Super. 36, 39 (App. Div. 1969). See Wade, supra (388 U. S., at 232-233, 87 S. Ct. 1926); Foster v. California, 394 U. S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Note, 69 Colum. L. Rev. 1296 (1969). The burden of proof on the issue of unfairness would rest on the State. Cf. State v. Franklin, 52 N. J. 386, 402-403 (1968). But determination would be posited on the totality of all the circumstances. State v. Mars, supra (107 N. J. Super., at 39).

In remanding, I would direct that in the event that the court on remand finds no unfairness in the totality of the pretrial identification procedures in respect of either identifying witness, the conviction should stand. But should the court find to the contrary it would be incumbent upon it to make a finding as to whether either of the in-court identifications was tainted. In this regard it would be for the State to demonstrate that there was “clear and convincing evidence” that the in-court identifications were independently based upon observations of the defendant at the time of the offense and not substantially contributed to by impressions gained from examining police photographs of the defendant or from seeing him at the lineup. Wade, supra (388 U. S., at 241, 87 S. Ct. 1926); Foster v. California, 394 U. S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); People v. Caruso, 68 Cal. 2d 183, 65 Cal. Rptr. 336, 436 P. 2d 336 (Sup. Ct. 1968); People v. Ballott, 20 N. Y. 2d 600, 286 N. Y. S. 2d 1, 233 N. E. 2d 103 (Ct. App. 1967); State v. Woodard, supra (102 N. J. Super., at 425). Should the court find taint of the in-court identification of either witness, under the aforestated criteria, and that the error in receiving such testimony was not harmless beyond a reasonable doubt (Wade, supra, 388 U. S., at 242, 87 S. Ct. 1926; Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, 24 A. L. R. 3d 1065 (1967)), the conviction would have to be set aside and a new trial awarded. Cf. Wright v. United States, 131 U. S. App. D. C. 279, 404 F. 2d 1256 (1968).