author: Rosenberg, J. S. C.

text:
    JULES BOUBLIS, JOSEPH MARGETT AND HILDA MARGETT, HIS WIFE, JOSEPH ROONEY, JOHN SOTNECK, GENA VITALE, PAUL ELWOOD, DANIEL O’CONNELL AND JOSEPH PSOTA, PLAINTIFFS, v. GARDEN STATE FARMS, INC., THE BOARD OF COMMISSIONERS OF THE BOROUGH OF HAWTHORNE, BUILDING INSPECTOR OF THE BOROUGH OF HAWTHORNE, AND THE STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DIVISION OF AERONAUTICS, DEFENDDANTS.
    Superior Court of New Jersey Law Division
    Decided November 22, 1972.

      Mr. Kenneth S. Stein for plaintiffs (Messrs. Hunziker, Hunziker, Stein & Jones, attorneys).

      Mr. Herman Jeffer for defendant Garden State Farms, Inc. (Messrs. Jeffer, Walter, Tierney, DeKorte, Hopkinson & Vogel, attorneys).

      Mr. Douglas C. Borchard, Jr. for defendants Board of Commissioners and the Building Inspector of the Borough of Hawthorne (Messrs. Evans, Hand, Allabough & Amoresano, attorneys).

      Mr. Remo M. Croce for defendants State of New Jersey, Department of Transportation, Division of Aeronautics (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Rosenberg, J. S. C.

This proceeding originated as a complaint in lieu of prerogative writ. Plaintiffs demanded a restraining order to enjoin the defendants from proceeding with plans to build a helistop, and such other relief as was deemed just and proper under the circumstances.

The question of whether a restraining order should issue to enjoin defendants was decided in favor of defendants on May 10, 1972. This decision was followed by an agreement by the parties for final determination of all issues in the form of cross-motions for summary judgment.

Defendant Garden State Earms, Ine. is the owner of premises located in the northeast section of the Borough of Hawthorne at and adjacent to the boundary dividing the borough from the Township of Wyckoff, which boundary is also the dividing line between the Counties of Passaic and Bergen. Said property is known as Lot 4 in Block 286 and is part of a large parcel or tract of land principally located in the Township of Wyckoff and County of Bergen, on which the defendant operates an extensive dairy products business.

Defendant owns some 85 or more stores in northern New Jersey which sell milk, dairy products and related products. The source of the supplies for their stores comes from a number of plants located in New Jersey, New York and in Pennsylvania. There is one in Phillipsburg, New Jersey; one in Dimock, Pennsylvania; one in Lemon, Pennsylvania; one in Scranton, Pennsylvania; one in Springville, Pennsylvania; one in Tnnkhannoek, Pennsylvania; one in Warwick, New York, and another in Poland, New York, so that tho supplies that are brought to the main plant in Hawthorne come from various areas.

The products are extremely perishable and are subject to frequent examination and inspection by various state health agencies. This requires the people at the main plant location in Hawthorne to have constant contact with the various mentioned plants. The equipment used at these various plants is extremely sophisticated, mechanized equipment and is subject to frequent breakdown because of the high rate of production for their use. Someone has to make an inspection, someone has to make repairs and someone has to meet a board of health inspector at one of these plants. The method of modern transportation to these various plant areas has to he either by motor vehicle or by a more modern sophisticated method of transportation such as by airplane and helicopter. Of course, Garden State Farms, Inc. is using the helicopter much in the same way that you or I would be using a car. It is to facilitate the operation and management of their business. It is to he used exclusively, according to the briefs, by the personnel of Garden State Farms. It is not for public hire.

The portion of said premises which lies in the Borough of Hawthorne, known as Lot 4 in Block 286, is located at the intersection of Hopper Street and Braen Avenue and is in the 1-1 Industrial Zone of the borough, as described in ordinance 3175, and has been for many years in the Industrial Zone as described in ordinance 626, revised and amended by ordinance 1175.

Plaintiffs aro all neighboring residents in the general area of Braen Avenue adjacent to or nearby the property of defendant Garden State Farms, Inc. The area north of Braen Avenue and west of Hopper Street is partially within B-2’ Residential Zone and R — 1 Residential Zone, and the area south of Braen Avenue is partially within the I — 1 Industrial Zone and partially within the R-S Residential Zone.

Defendant Garden State Farms, Inc., apparently intending to construct and maintain a landing pad suitable for use by a helicopter on a portion of Lot 4 in Block S86, submitted a statement of such intention to the board of commissioners of Hawthorne by letter dated October 6, 1971. Upon the advice of defendant Garden State Farms, Inc., and the general understanding of applicable administrative procedures, the commissioners understood and believed that an application to the Department of Transportation, Division of Aeronautics, State of New Jersey, for licensing of such helipad must be accompanied by a statement or certificate of appropriate local officials regarding either the granting of a variance, or in the event no variance is required, a statement of permission. In response to such understanding the board of commissioners did on October 6, 1971, at its regular meeting, adopt a resolution granting such permission. Thereafter, numerous objections were received from neighboring landowners, including plaintiffs, primarily directed to the safety of the proposed operation of the helipad.

The State of New Jersej^, Department of Aeronautics, will conduct a public hearing as required by law in conjunction with an application for a helistop, which public hearing will be conducted in the Borough of Hawthorne before issuing the permit for the private helipad. The hearing to be held by the Department of Transportation will concern itself with the safety aspect of the use of the property in question as a private helipad.

To date no application for a building permit for the construction of such facilities has been submitted to the Borough of Hawthorne, and to the knowledge of borough officials no license or permit for the operation of the heliport has been granted by the Department of Transportation, Division of Aeronautics, nor has F. A. A. approval of such facility been granted.

I

The first issue to be determined is whether the State of New Jersey has preempted the field of licensing and regulating private helistops and heliports, and if so, whether the State of New Jersey thereby excludes the ability of a municipality to zone.

Local power to regulate the location of heliports is preempted only when an act of the Legislature, fairly interpreted, is in actual conflict with the ordinance of a municipality. In State v. Pinkos, 117 N. J. Super. 104 (App. Div. 1971), it was held that

“In llio absence of an intent to totally preempt the field, a municipality, acting pursuant to its delegated powers, can deal with specific local problems by expanding control in that area so long as there is no conflict with the legislative proscription. Fred v. Mayor, etc., Old Tappan, 10 N. J. 515, 521-522 (1952) ; Kligman v. Lautman, 98 N. J. Super. 344, 355 (App. Div. 1967), aff’d 53 N. J. 517 (1969). [at 116]

So the question arises as to whether there is an intention on the part of the State of New Jersey to totally preempt the field of regulating the location of heliports. Air transportation is no longer in a stage of adolescence. It serves all segments of onr economy and society in general. The State Constitution has recognized the importance of providing facilities to accommodate the public interest in air travel. N. J. Const. (1947), Art. IV, § VI, par. 3. The legislative response may not be viewed in a different light.

The Legislature has legislated on the subject: N. J. S. A„ 6 :l-29, as amended by L. 1966, c. 100, § 1, effective June 14, 1966, provides as follows:

Except as otherwise specifically provided by law, the Commissioner of Conservation and Economic Development shall promote progress and education in and shall have supervision over aeronautics within this State, including, but not by way of limitation, the avigation, flight and operation of aircraft, the establishment, location, maintenance, operation, size, design, repair, management and use of airports, landing fields, landing strips, heliports and helistops, sport parachuting centers, air markings and other avigational facilities, and the establishment, operation, management and equipment of fixed base operators. The commissioner may adopt and promulgate reasonable rules, regulations and orders regulating air traffic and establishing minimum standards for aircraft, pilots, fixed base operators, airports, landing fields, landing strips, heliports and helistops, sport parachuting centers, air markings and all avigational facilities within the State and establishing minimum altitudes of flight commensurate with the needs of public safety, the safety of persons operating or using aircraft and the safety of persons and property on the ground, and to develop and promote aeronautics within this State. The commissioner shall have power to promulgate and adopt any reasonable rules and regulations that may be necessary to effectuate the purposes of this act in the interest of public safety and the development of aeronautics in this State. [Italics provided]

The provisions of N. J. S. A. 6 :l-44, as amended by L. 1971, c. 118, § 4, effective April 39, 1971, in pertinent part, provides:

The commissioner shall provide for the licensing of airports * * * or other avigation facilities * * * by rules, regulations and orders adequate to protect the public health and safety and the safety of those participating in aeronautical activities; * * *. [Italics provided]

However, it is not enough that the Legislature has legislated on the subject — the question is whether the Legislature intended its action to preclude the exercise of the delegated authority granted municipalities to enact zoning ordinances. Summer v. Teaneck, 53 N. J. 548 (1969).

It is this court’s opinion that it is clear that the intention of the Legislature was to regulate licensing and licensing matters only. Our Supreme Court, speaking through Chief Justice Weintraub, said in Kennedy v. Newark, 29 N. J. 178 (1959) :

* * * Had the Legislature intended to restrain local action, the more likely course would have been to express that purpose. Before it can be said that the police power delegated to local government must remain inert, it must be clear that the Legislature intended to occupy the field or declared a policy at war with the decision made by local government. The delegated power may not be restrained upon the basis of speculation or dubious inference. The Constitution enjoins a liberal construction of legislation in favor of local authority. Article IY, § 7, par. 11. [at 187]

If comparisons are to be made with respect to the way local zoning ordinances apply to other similar fields, the natural comparison should be made to the field of aviation. The line of New Jersey cases, have held that the regulation of aviation fields is within the scope of municipal zoning. See Ridgewood Air Club v. Bd. of Adj., Ridgewood, 136 N. J. L. 222 (Sup. Ct. 1947); Yoemans v. Hillsborough Tp., 135 N. J. L. 599 (Sup. Ct 1947).

Por the foregoing reasons this court feels the State of New Jersey has not preempted the field of regulating helistops and heliports so as thereby to exclude the ability of municipal zoning ordinances to properly apply

II

The next issue to be determined is whether the use of the property in question requires a variance. The answer is no.

This court believes that no variance is required for the same reasons as those decided in Schantz v. Rachlin, 101 N. J. Super. 334 (Ch. Div. 1968), aff'd 104 N. J. Super. 154 (App. Div. 1969) — specifically, the use is an accessory use by definition.

The Hawthorne zoning ordinance defines an accessory use as follows:

ACCESSORY USE OR BUILDING. A subordinate use or building, the purpose of which is incidental to that of the main or principal use or building and located on the same lot.

The definition of an accessory use in the Schantz case, was quite similar to the definition in the present case. In Schantz the court held that maintenance of a landing strip on defendant’s property for his personal use was accessory to its use as a residence and farm and was thus not prohibited by zoning ordinances. The case developed the meaning of accessory use by citing Zahn v. Newark Board of Adjustmen, 45 N. J. Super. 516, 521-522 (App. Div. 1957):

* * * The allowance of a primary use generally authorizes all uses normally accessory, auxiliary or incidental thereto, 8 McQuillan, Municipal Corporations (3d ed. 1950), sec. 25.125, p. 206, and ‘accessory use’, in turn, is defined as a use ‘customarily incidental to the principal use of a building-,’ State v. Mair, 39 N. J. Super. 18, 23 (App. Div. 1956) ; cf. Wright v. Vogt, 7 N. J. 1 (1951) ; ‘one customarily incident,’ Dolan v. DeCapua, 16 N. J. 599, 605 (1954) ; * * * ‘a use which is dependent on or pertains to the principal or main use,’ Town of Needham v. Winslow Nurseries, 330 Mass. 95, 111 N. E. 2d 453, 40 A. L. R. 2d 1450 (Sup. Jud. Ct. 1953), * * *.

The case of Shell Oil Co. v. Bd. of Adjustment, Hanover Tp., 38 N. J. 403 (1962), further holds that:

* * * Each ease must be considered on its own particular facts, controlled by the particular language of the creative statute. A consideration of the opinions treating of this subject evokes the conclusion that the test to be applied to a land use in order to ascertain whether it qualifies for an immunity from local zoning regulations is whether it is reasonably accessorial or incidental to the primary purpose sought to be advanced by the creation of the separate authority, [at 409]

Using Schantz, supra, as a guideline it is clear that the intended use of the heliport in the present case is accessory to the current use of the land as the main plant of a large group of widely scattered dairies. To emphasize this, it is noted that the use of the heliport in this case involves property located in an 1-1 Industrial Zone, whereas the landing strip in the Schantz, was to be used on land zoned as residential. The only purpose of the proposed heliport is for those purposes connected with the operation of Garden State Farms’ business.

The applicable section of the Hawthorne zoning ordinance regulating uses in Industrial Zones mates no mention of accessory uses; however, the law is clear that such accessory uses are impliedly permitted even where not expressly described or allowed. Northvale v. Blundo, 85 N. J. Super. 56, 59 (App. Div. 1964); Zahn v. Newark Board of Adjustment, supra; Newark v. Daly, 85 N. J. Super. 555, 560 (App. Div. 1964), aff’d 46 N. J. 48 (1965).

Canvassing the Hawthorne zoning ordinance I find that Section XIV-B, “Prohibited Hses,” does not specifically list aviation or heliport facilities. Plaintiffs argue that such a use is prohibited according to item 52 of Section XIV-B, which states: “Any other trade or use that is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise * *

However, this argument has no merit because it appears that plaintiffs are alleging that the proposed use, possibly containing these objectionable features will constitute a nuisance. And the settled law in New Jersey holds that the use of one’s land cannnot be a nuisance per se; and specifically, the operation of an airport has been held not to be a nuisance per se. Oechsle v. Ruhl, 140 N. J. Eq. 355 (Ch. Div. 1947); Schantz v. Rachlin, supra.

Based on the foregoing reasons that the use of said premises as a helistop would be a permitted accessory use, and there being no specific prohibition of such use in the zoning ordinance, a variance is not required.

Ill

The final issue to be determined is whether the proposed use requires the issuance of a building permit, site plan approval or certificate of occupancy.

Section XIV-D of the Hawthorne zoning ordinance provides as follows:

Site Plan Approval — Review and approval by the Planning Board of a site plan, in accordance with Section XX, Paragraph G, shall be required prior to issuance of any building permit or certificate of occupancy for uses permitted under this Section.

It is clear that this and other related sections, relate to the contemplation of some construction. However, the factual situation, presented here as to the use of the property in question requires absolutely no construction in the physical sense. Defendant Garden State Farms seeks permission to use the property to land helicopters.

The State of New Jersey, Department of Transportation, requires application for license to operate a heliport. If the Department of Transportation, upon reviewing said application by Garden State Farms, requires that some kind of a structure be placed on said property, then this decision on this particular issue should be reviewed again.

There being no indication at the present time that a structure of any kind will be placed on the property in question, site plan approval, building permit or certificate of occupancy are not required.


source: Caselaw Access Project

author: Gascoyne, J. C. C.,

license: Public Domain

text:
    JEAN A. HULL, AN INFANT, BY HER GUARDIAN AD LITEM, WILLIAM J. HULL, AND WILLIAM J. HULL INDIVIDUALLY, PLAINTIFFS, v. NANCY WEIR, DOROTHY A. WEIR, HER MOTHER, AND HENRY A. SILVERTHORNE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 19, 1973.

      Mr. William A. Feldman, for plaintiffs.

      Mr. Kenneth J. Fost, for defendants Nancy Weir, and Dorothy A. Weir (Messrs Stevens and Mathias, attorneys).

      Mr. Edward G. D'Alessandro for defendant Silverthorne (Messrs Friedman and D'Alessandro, attorneys).
   Gascoyne, J. C. C.,

Temporarily Assigned. This matter comes before the court on a very narrow issue: whether Jean A. Hull, who has now attained the age of 18, can sign a release without the necessity of the court approving the settlement.

Jean A. Hull was an infant at the time of the accident. As a result of a settlement conference this matter has now been settled in the sum of $2,500. Prior to the adoption of N. J. S. A. 9:17B-1 et seq., it would have been necessary for the court to approve the settlement. Counsel for defendant argues that pursuant to N. J. S. A. 9:17B-3, which provides in part, “Except with respect to the provisions of N. J. 8. 2A :M — 21, with respect to the right of a court to take any action it deems appropriate and in the interest of a person under 21 years of age, or to require a change in action heretofore taken by a court with respect to a person under 21 years of age, * * the court should require a “friendly”.

A reading of the statute shows clearly that, except in certain limited instances, the legislative intent was to give all the rights and obligations formerly reserved in a 21-year-old to 18-year-olds. It is equally clear that, for the protection of the individual, certain discretion was vested in the court both prior to and subsequent to January 1, 1973. The Legislature intended that such discretion remain intact. It is beyond argument that prior to adoption of N. J. 8. A. 9:17B-1 et seq., if an 18-year-old was injured in an accident, he could settle his case without judicial approval upon reaching 21. There is no valid distinction between this situation and the present one in which the injured party has reached majority, 18 years of age.

Ho “friendly” is necessary in this matter.


author: Pee Cubiaji. Lewis, P. J. A. D.

text:
    MARY MUZIO AND ANGELO MUZIO, PLAINTIFFS-APPELLANTS, v. GEORGE KRAUZER, NICHOLAS KRAUZER AND JACOB KRAUZER, t/a KRAUZER’S QUALITY DAIRY STORE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1971
    Decided October 27, 1971.
    Before Judges Lewis, Kolovsky and Haepern.

      Mr. Andrew M. Rockman argued the cause for appellants (Messrs. Levinson, Conover, Lieberman & Fink, attorneys).

      Mr. Philip S. Epstein argued the cause for respondents (Messrs. Krieger & Klein, attorneys).
   Pee Cubiaji.

In this sidewalk-fall down case, plaintiffs appeal from the grant of defendants’ motion for an involuntary dismissal at the conclusion of plaintiffs’ case.

The evidence offered by plaintiffs may be briefly summarized. Defendants conducted their dairy store business in a store at 31 East Railroad Avenue, Jamesburg, which they had leased from the owner of the property Ered A. Kullmer. Kullmer had originally been joined as a party defendant to this action but on plaintiffs’ motion in open court the complaint against him had been dismissed.

Mrs. Muzio had parked her car across the street from defendants’ dairy store preparatory to entering the store to purchase a loaf of bread. She crossed the street, stepped onto the curb and proceeded to walk across the public sidewalk towards the door of the store. She stepped aside to permit tray-carrying bakery delivery men who had exited from the store to pass. As she did so, she “tripped on [a] hole” in the sidewalk and fell, sustaining injuries.

The concrete public sidewalk in front of defendants’ store extended some 19 feet from the face of the building to the curb line. The hole' or depression in the sidewalk which allegedly caused Mrs. Muzio to fall was situate about seven feet from the front of the store and four to five feet to the left of the entrance door.

An expert witness, viewing a picture, estimated that the depth of the hole varied from nothing to four inches. In his opinion the sidewalk had been defectively constructed because it lacked “pre-molded joint fillers.” The crack and hole must have taken a few years to develop; to permit it to develop indicated that the sidewalk had not been “properly maintained.”

In granting the motion for dismissal, the trial court said:

[I]n this case I can find absolutely no evidence that the condition of this sidewalk was the result of these defendants’ wrongful conduct or was a nuisance that they had either created or participated in maintaining.

It therefore deemed itself hound by the settled rule in this State that:

An abutting owner is not liable for Injuries suffered by a pedestrian on a defective or dilapidated sidewalk even though it constitutes a nuisance, unless the proofs show that that owner or his predecessor in title participated in the creation or continuance of the nuisance. [Citations omitted] The owner of premises abutting a public sidewalk is not responsible for defects therein accused by the action of the elements or by wear and tear incident to public use, and not caused by his own wrongful act. (Moskowitz v. Herman, 16 N. J. 223, 225 (1954))

It is to be noted that a recent challenge to the Moskowitz rule was rejected in Murray v. Michalak, 58 N. J. 220 (1971).

On appeal, plaintiffs do not dispute the court’s findings that their proofs did not show that the condition resulted from defendants’ wrongful conduct. They rely instead on the rule that the owner or occupant of business premises must maintain the premises in a safe condition for the use of his business invitees. They argue that plaintiff-wife should be deemed a business invitee of defendants while she was on the public sidewalk just as she coneededly would have been once she entered the store.

Plaintiffs’ attempt to include the public sidewalk as part of the business premises which defendants as the occupants of a store must maintain in a safe condition for use of customers intending to enter the store finds no- support in the law. See MacGregor v. Tinker Realty Co., 37 N. J. Super. 112, 115 (App. Div. 1955); Skupienski v. Maly, 27 N. J. 240, 248 (1958).

The sidewalk is a public sidewalk not a part of defendants’ business premises and defendants’ duty and obligation with respect thereto was that set forth in Moskowitz v. Herman, supra.

Plaintiffs purport to find support for their argument in Merkel v. Safeway Stores, Inc., 77 N. J. Super. 535 (Law Div. 1962), in which the court held that where a store provided an adjacent parking lot for the use of its customers and no entrance is provided from the parking lot to the store except over the public sidewalk

the store owner assumes the responsibility for a direct path from the parking area to the store and care must be exercised to keep that path in reasonably safe condition for customers. (At p. 541)..

We find no need to evaluate the correctness of the decision of the Law Division in Merkel. The factual complex in that ease makes the precedential value thereof inapplicable to the circumstances of the present case.

The judgment is affirmed.

Lewis, P. J. A. D.

(concurring). I concur in the result reached because we are an intermediate appellate tribunal and are bound by the decisions of our Supreme Court.

The facts and circumstances of this storekeepers-patron sidewalk case augur well for a needed change in our public policy as indicated in the dissenting opinions in Moskowitz v. Herman, supra, 16 N. J. at 226-231 and Murray v. Michalak, supra, 58 N. J. at 220-226.

Here, a glance at the photographic evidence and a reading of the testimony of the injured plaintiff and her expert witness suggest that the granting of defendants’ motion immunized from liability occupiers-invitors who may have wrongfully suffered a dangerous condition to exist, in the direct path of the only entrance to their store, and thus left an innocent invitee-victim without legal recourse.


author: Lynch, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH ZICARELLI, FRANK MALLAMACI, WILLIAM C. FOURGEREL, JR. AND LUDWIG BRUSCHI A/K/A NINNI, DEFENDANTS-APPELLANTS AND JOHN ARMELLINO, MICHAEL ARMELLINO AND WILLIAM C. FOURGEREL, SR., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 1972
    Decided January 29, 1973.

      Before Judges Fritz, Lynch and Barrett.

      Mr. Michael A. Querques argued the cause for appellant Joseph Zicarelli (Messrs. Isles & Weissbard, attorneys).

      Mr. I. Mark Cohen, Assistant Deputy Public Defender, argued the cause for appellant Frank Mallamaci (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Elmer J. Herrmann argued the cause for appellant William C. Fourgerel, Jr. (Messrs. Herrmann and Blasi, attorneys).

      Mr. John P. Bussell argued the cause for appellant Ludwig Bruschi.

      Mr. Michael R. Perle, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Attorney General, attorney).
   The opinion of the court was delivered by

Lynch, J. A. D.

Defendants Joseph Zicarelli, Prank Mallamaei, William Pourgerel, Jr., William Pourgerel, Sr. and Ludwig Bruschi, a/k/a Ninni, were charged in a 14-count state grand jury indictment with conspiracy to corrupt Mayor John Armellino of West New York, Hudson County, New Jersey, to the end that an illegal gambling enterprise being conducted by said defendants would be kept free of prosecution. Also indicted and charged as participants in the same conspiracy were defendants John Armellino and his brother Michael Armellino.

The indictment charged that Zicarelli, Mallamaei, both Fourgerels and Bruschi operated an illegal gambling enterprise consisting of lottery and bookmaking between November 1965 and April 1970. In addition, John Armellino was indicted for misconduct in office in failing to enforce the criminal laws of the State, and in using his office to keep safe from investigation and prosecution the gambling enterprise being conducted by the defendants Zicarelli, Mallamaci, the Fourgerels and Bruschi. The Armellinos were also indicted for having received bribes for their said misconduct and Zicarelli, Mallamaei and Pourgerel, Sr. were indicted for corruptly aiding, abetting and causing the payment of the bribes.

Michael and John Armellino pleaded guilty to the conspiracy counts and their cases were severed for trial. Both testified on behalf of the State.

Defendants Zicarelli, Mallamaei, Pourgerel, Sr., FourgoreL, Jr. and Bruschi were convicted and received various sentences to State Prison and fines, together with an assessment against Zicarelli and Mallamaei of one-fifth of the trial costs against each. This appeal followed.

The contentions of defendants may be summarized as follows: (1) the venue was improperly laid in Burlington County; (2) the court erred in allegedly refusing to ask the jurors finally selected whether they had been exposed to any publicity concerning the case; (3) the court erred in permitting the recording of several conversations between one Policastro and several of the defendants to be received in evidence and in allowing the jury to use a state-prepared transcript of the recordings as a listening aid; (4) defendants’ motion for judgment of acquittal should have been granted; (5) the court erred in its charge to the jury; (6) defendant Zicarelli contends that the court erred in permitting testimony that he was in custody during part of the time covered by the indictment; (7) the court erred in permitting the State to proceed with its proofs that one Eluccari was a co-conspirator and in permitting the State to adduce testimony that Eluccari could not be found; (8) the court erred in permitting a state trooper to testify concerning the structure of a lottery organization and permitting a chart depicting the same to be received in evidence; (9) Zicarelli contends that the court erred in sustaining numerous objections made by the prosecutor during the summation of Zicarelli’s attorney; (10) defendants Zicarelli and Mallamaci contend that the sentences imposed upon them were illegal insofar as they included an assessment against each of them of one-fifth of the costs of trial, and (11) defendant Mallamaci contends that the sentence imposed upon him was excessive and should be reduced.

Defendants Eourgerel, Jr. and Bruschi join in the contentions made by Zicarelli and Mallamaci as to Points 1, 3 and 4. Eourgerel, Sr. did not appeal.

A

Venue

Tlie indictment here involved (SGJ 2-70-8H) was one of a series of seven indictments which were returned by the state grand jury (selected pursuant to N. J. S. A. 2A:73A-1 et seq.) and in all of which Joseph Zicarelli was a named defendant. All seven charged offenses committed in Hudson County. One (SGJ 2-70-8A) also charged a conspiracy ■faking place in Bergen, Hudson and Burlington Counties, and one (SGJ 2-70-8B) charged a conspiracy said to have occurred in Mercer and Hudson Counties, and elsewhere.

The venue of the within indictment, the last of the seven to be returned, was laid in Burlington County by Judge Kingfield, the assignment judge designated by the Chief Justice to administer state grand jury proceedings as provided in the State Grand Jury Act (N. J. S. A. 2A:73A-2).

Defendants’ first contention is that the trial court erred in denying their motion for change of venue to Hudson County. The argument is that (1) E. 3:1A-1 requires that an offense shall be prosecuted in the county where it was committed; (2) the Sixth Amendment to the United States Constitution guarantees an accused the right to trial by an impartial jury in the county wherein the crime has been committed, and (3) the allocation of venue to Burlington County, without an adversary hearing in the first instance, denied defendants due process of law.

Of the seven indictments, the venue of the first (SGJ 2-69-2) was initially laid in Hudson County. Venue on the next five was initially laid in Mercer County (SGJ 2-70-8A, 8B, 8C, 8D and 8E). The Attorney General filed a petition with Judge Kingfield seeking to have the first indictment (SGJ 2-69-2) changed from Hudson to Mercer County where the other five had been allocated. Without notice to defendants an order was entered effecting the change of venue to Mercer County. However, on October 9, 1970 the Attorney General filed another petition seeking to transfer the six indictments (the instant indictment had not yet been returned) to Burlington County. The grounds asserted were that defendant Zicarelli was incarcerated in Burlington County, the prosecution required protection of its principal witness (Peter Policastro), whose personal safety was in danger for which security arrangements could adequately be made in Burlington County, and that all cases involved common questions of law and fact to be best disposed of by a single judge. Again, without notice to defendants, the court entered an order reallocating the indictments to Burlington County.

Shortly thereafter, the subject indictment (SG-J 2-70-8H) was returned and Judge Kingfield designated Burlington County as the venue for trial.

On January 8, 1971 all defendants moved before Judge Van Sciver, to whom the cases had been assigned for trial, for an order to reallocate venue to Hudson County. The motion was denied. However, the Supreme Court remanded the matter to Judge Kingfield to decide the question of venue anew, in order to give defendants an opportunity to oppose the State’s petition — an opportunity which they had not been afforded on the original allocation to Burlington County.

After a hearing Judge Kingfield decided that Burlington County was the proper county for venue. He stated his reasons: (1) “somewhat a matter of convenience”; (2) the availability of a judge and a courtroom in Burlington County; (3) the State Grand Jury Act (N. J. S. A. 2A:73A-3) created a district which embodies the entire State, and the act authorized the designated assignment judge to allocate the venue of trial; (4) in adopting B. 3:14H the Supreme Court did not contemplate the state grand jury, and the rule was not intended to apply to it; (5) the security of state witness Policastro, an “important factor,” could be maintained better in Burlington County; (6) the Sixth Amendment to the United States Constitution did'not stand in the way of Burlington County venue; (7) there would he less publicity there than in Hudson, and (8) there would be an impartial jury which would give defendants a fair trial and defendants would suffer no prejudice by Burlington County venue.

R. 3:14-1

This is the venue rule normally applicable to county grand juries and would, with certain exceptions not applicable here, require trial in the county where the offense was committed.

The State Grand Jury Act (N. J. S. A. 2A:73A-3) contemplates a grand jury quite unlike the traditional county grand juries. Its powers are set forth in N. J. S. A. 2A :73A-3:

A State grand jury shall have the same powers and duties and shall function in the same manner as a county grand jury established pursuant to Title 2A of the New Jersey Statutes except that its jurisdiction shall extend throughout the State. The law applicable to county grand juries shall apply to State grand juries except insofar as they are inconsistent with this Act. The Supreme Court may promulgate such rules and regulations as it deems necessary to govern particularly the procedures of State grand juries. [Emphasis added]

The act has also dealt with the problem of venue in the following manner:

Any indictment or presentation by a State grand jury shall be returned to the assignment judge without designation of venue. Thereupon, the judge shall, by order, desígnale the county of venue for the purpose of trial * * *. [N. J. S. A. 2A:7SA-8; emphasis added]

There is no doubt that one of the purposes of the State Grand Jury Act was that it was to be unfettered by the limitations of a county grand jury. To that end it was given sfate-wide jurisdiction and venue was to he directed hv the assignment judge designated by the Chief Justice.

Venue is not a matter of jurisdiction, nor is it of constitutional dimension. State v. Di Paolo, 34 N. J. 279, cert. den. 368 U. S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). It must not bow to circumstances which no longer exist. In Di Paolo, the court said:

■r * * Although a rule developed at early common law that a prosecution he instituted in the county in which the crime was committed, the reasons seem unrelated to the stated aim of the guarantee. Rather the rule reflected a practice made necessary hy circumstances which no longer exist. Communities were scattered and travel difficult. Petit jurors decided causes upon their personal knowledge rather than upon the testimony of witnesses and probably grand jurors as well relied upon what they knew or learned from their neighbors. That the concept of venue was not thought to be an essential attribute of the procedural guarantee is evidenced by the fact that when changing circumstances made the then concept of venue a fortuitous haven for the guilty, Parliament enacted numerous exceptions to the common law rule and did so long before the separation of the American colonies. [34 N. J. at 285-286; emphasis added]

And, again demonstrating the subservience of venue concepts to legislative purposes and accommodation to changing needs, the Supreme Court said in Di Paolo:

Thus at the time of the adoption of the American constitutions the common law rule of venue had already been modified hy legislation designed to meet situations for which the general rule was inadequate or inapt. Moreover, the nature of the subject suggests that room must be left for accommodation with changing needs, * * *.
This conclusion is fortified by the fact that our Legislature has dealt with the subject of venue without, so far as we know, any question as to its constitutional authority to do so. See State v. Wyckoff, supra (31 N. J. L. 65 at p. 69) ; State v. James, 96 N. J. L. 132, 148 (E. & A. 1921) ; R. S. 2:184-1 to 6; A. 1944, c. 198 § 1, p. 715, N. J. S. A. 2:184-2.1. [Emphasis added]

R. 3:14-l was adopted when there were only county grand juries. Necessarily, then, only such juries were contemplated in the adoption of the rule. The state grand jury, on the other hand, was created because of the need to investigate and prosecute crime without regard to county boundaries. It was premised on the notion that the institution of the state grand jury can cope with the problems of modern law enforcement only if it be relieved of outmoded concepts of jurisdiction and vicinage which too often have imposed an artificial restraint on grand jury probes and a particular burden upon inquiries into syndicated criminal activities. Statement of Governor Hughes, signing S. 654, December 16, 1968. It is a new weapon, or agency, created by the Legislature to enforce the criminal law, just as creation of a new police force would be such an instrument. In that instance it could not be said that creation of the State Police was merely a matter of procedure committed solely to the courts (cf. Winberry v. Salisbury, 5 N. J. 240 (1950)), but rather a matter of substance created by the Legislature to aid the executive arm of the government in enforcement of the law. The power of the designated assignment judge to allocate venue is a reasonable implementation of that agency to serve the end ordained by the Legislature. Thus, the question of venue under the State Grand Jury Act is not, by use of the “broad brush,” to be brought within the purely “procedural” framework of Winberry v. Salisbury, supra.

The Chief Justice of our Supreme Court accepted his responsibility under the State Grand Jury Act and designated Judge Kingfield as the assignment judge thereunder. In doing so he clothed that judge with the authority, as provided by N. J. S. A. 2A:73A-2, to designate the county of venue. Implicitly, he recognized that R. 3 :14-1 was here inapplicable. We so hold. If it be assumed, as defendants argue here, that venue is solely for the Supreme Court’s direction and within its control, the answer must be the same. It must be presumed that the court was well aware of the venue provision of the State Grand Jury Act, as well, of course, of its own R. 3 :14 — 1. The court’s failure to amend that rule to cover indictments returned by a state grand jury bespeaks an intent on the part of the court that the venue provisions of the statute (i. e., that venue was to be allocated by the assignment judge designated by the Chief Justice), were acceptable to the court and were not contrary to its intent.

In any event, under R. 1 :l-2, Judge Kingfield could have relaxed R. 3:14-1 in assigning venue to Burlington County. In exercising our original jurisdiction under R. 2:10-5, we do so. There is no prejudicial error in the action of the court below.

The Sixth Amendment to the United States Constitution

The Sixth Amendment provides in part that

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law *' * *.

Defendants equate “district/5 as therein provided, to “county.55 Such argument is not only a semantic distortion of the language of the amendment (which does not mention “county55), but is totally illogical. And so it was rejected in State of Maryland v. Brown, 295 F. Supp. 63, 80 (D. Md. 1969). There the court said:

It is also obvious that the words “district” and “county” were not used synonymously in the three provisions. The word “county” was used in section 29 of the first Judiciary Act. The words “State and district” were used in the Sixth Amendment. A reading of the texts of that constitutional Amendment and of that statute makes it clear that “district” was not meant to connote “county,” or vice versa.

Due process of law

Defendants argue that they were denied due process of law when, without a hearing, Judge Kingfield first designated Burlington County as the venue herein. However, after remand from the Supreme Court, Judge Kingfield gave defendants full opportunity to be heard and thereupon settled the venue in Burlington. Therefore defendants suffered no prejudice in the original ex parle proceeding in allocating venue, nor can it be said that due process was denied.

B

The voir dire examination of the jury panel

Defendants contend that the court did not adequately inquire of the jury finally selected as to whether they had been exposed to publicity concerning this case.

Approximately 12 jurors were questioned by the judge before the final jury was selected. Of those, 15 were excused by the court because of exposure to pretrial publicity and that therefore they could not be impartial. Ninety-two others were excused for various reasons or on peremptory challenge.

There is no dispute that there was adequate inquiry made of the initial jury panel. The complaint is that members of the reserve panel were not sufficiently interrogated on this subject. We disagree.

When the reserve panel was brought into the courtroom on the second trial day, the judge told them that the intent of his questioning was to determine whether any reason existed why they could not be impartial. Juror Cline was the first person drawn from the reserve panel. The judge inquired of Cline in the presence of the reserve panel:

Having in mind that wo readily admit that none of us live or operate in a vacuum, that wo are all exposed to circumstances and media about us, and having in mind also that there may well have appeared in various of the press media certain articles that relate in some fashion to the trial of this case or the personalities involved, is there any experience that you have had with regard to reading, hearing or discussing the merits of this ease or expressing our [sic] opinion with respect to the merits of this case?

Later two prospective jurors were excused specifically because of exposure to pretrial publicity.

We find that the trial court adequately inquired of all jurors as to exposure to pretrial publicity.

C

The tapes

(1) Their alleged inaudibility

Defendants contend that the trial court erred in admitting into evidence certain taped conversations between the State’s principal witness, Peter Policastro, and others, including defendant Zicarelli.

Policastro had been a member of the West New York Police Department for 18 years and had attained the rank of detective sergeant. After retiring on a disability pension he was engaged in private detective work, but was not successful. He had known defendant Zicarelli for 15 years and, during his police service, had carried messages from Zicarelli to various politicians and police chiefs. Policastro was weU familiar with the gambling business in Hudson County. In fact, he had acted as a courier for Zicarelli in carrying “payoffs” to certain public officials.

However, in 1969 Policastro’s attitude changed. After meeting with State Police Detective Trainor, he began exchanging information with him and ultimately agreed to become a witness for the State in this case. Policastro suggested that a tape recorder be placed upon his person to tape conversations. After being instructed concerning the use of the equipment he was outfitted with the recorder. There followed several conversations between Policastro and Zicarelli, Michael and John Armellino, Mallamaci and Eluccari. The conversations were taped and transcripts thereof were made with the aid of Policastro, State Trooper Herbert and a stenographer. The tapes were played at the trial and the transcripts were used by the jury as a listening aid.

The only tape, admission of which deserves comment, is that between Polieastro and defendant Ziearelli on February 20, 1970, while Ziearelli was confined to St. Mary’s Hospital in Hoboken, New Jersey. The main thrust of defendant Zicarelli’s argument is that the tape is largely inaudible and unintelligible and therefore should have been excluded, citing State v. Driver, 38 N. J. 255 (1962).

This court listened to that tape and we agree that a substantial part is inaudible. However, the transcript of the tape correctly indicates the portions which were audible and those which were not. Cf. United States v. Hall, 342 F. 2d 849 (4 Cir. 1965), cert. den. 382 U. S. 812, 86 S. Ct. 28, 15 L. Ed. 2d 60 (1965), to the effect that use of a transcript is of assistance to jurors and is within the province of the trial judge’s discretion.

It is true that in State v. Driver it was suggested that the tape there involved was so inaudible and garbled that, as a matter of discretion, it should have been excluded.

In reviewing the exercise of discretion here we consider the evidential purpose which the tape served. It has been held that if a tape is partially intelligible and has a probative value, it is admissible even though substantial portions thereof are inaudible. State v. Spica, 389 S. W. 2d 35, 48 (Mo. Sup. Ct. 1965), cert. den. 383 U. S. 972, 86 S. Ct. 1277, 16 L. Ed. 2d 312 (1966); United States v. Hall, supra; Addison v. United States, 317 F. 2d 808, 815 (5 Cir. 1963), cert. den. 376 U. S. 905, 84 S. Ct. 658, 11 L. Ed. 2d 605 (1964).

Certainly, the tape of the conversation between Polieastro and Ziearelli at St. Mary’s Hospital on February 20, 1970 proved the intimacy between them and, considered with Policastro’s direct testimony, the relationship of that intimacy to the central conspiracy of suppressing prosecution of the gambling enterprise headed by Ziearelli. Therefore, it had probative value to that extent, and was admissible for that purpose. In Driver, on the other hand, the only relevance of the tape was that it was a confession. It had no other probative value. In that case the inaudibility of the tape was central to the purpose for which it was offered and, because it was largely inaudible (in addition to its involuntary nature), it would have been grossly unfair to admit it. As said above, the Policastro-Zicarelli tape had probative value for reasons other than what was said. Inaudibility had no relevance to those reasons. The question of admissibility of the tape was a matter of discretion. Cf. State v. Driver, supra, 38 N. J. at 288. Here there was no abuse of discretion in its admission.

In any event, there was no prejudice to defendants in the introduction of the tapes or the transcript thereof. Policastro testified that everything therein was truly said. He was subjected to cross-examination. See People v. Jackson, 125 Cal. App. 2d 776, 271 P. 2d 196, 199 (D. Ct. App. 1954). In turn, the tapes served the probative purpose of corroborating Policastro’s testimony. The resolution of the weight of that evidence was left to the jury.

We therefore find no error in the admission of the tapes or transcript thereof.

(2) Reference to other crimes

We hold that references in the tapes to other crimes were admissible under the exceptions to Evidence Rule 55.

In State v. Kociolek, 23 N. J. 400 (1957), the court lists a number of exceptions to the general rule that, upon the trial- of a person for one crime, evidence that he has committed other crimes is irrelevant. Such exceptions include: (1) when the circumstance of the crime charged and those of the extraneous crime indicate that they were both committed by the same person; (2) when the accused’s perpetration of an extraneous crime shows that he had the opportunity of committing the crime in issue; (3) when the several crimes may have sprung from a single motive, aiming at the accomplishment of the same end, and (4) whenever defendant’s guilt of an extraneous crime tends to logically prove some particular element of the crime for which he is being tried. See State v. Kociolek, supra, at 419. All of the above instances are fairly applicable to the instant case. See also State v. Mulero, 51 N. J. 224, 228 (1968); State v. Baldwin, 47 N. J. 379 (1966), cert. den. 385 U. S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966).

Furthermore, it has been held that where a series of crimes is committed for the accomplishment of a single purpose, and that purpose is manifestly the sole cause of the commission of the crime alleged, proof of the separate crimes is competent evidence. State v. Fay, 127 N. J. L. 77, 83 (Sup. Ct. 1941). In Fay it was said:

Where a series of crimes are committed for the accomplishment of a single ultimate purpose, and that purpose is manifestly the sole inducing cause of the commission of each separate crime, the rule applied in the case just cited makes proof of those separate crimes competent evidence. State v. Landecker, 100 N. J. L. 195, 198, 126 A. 408, affirmed, 103 N. J. L. 716, 137 A. 919. [at 83]

Finally, as specifically sanctioned by Evidence Rule 55, evidence of other crimes may be saved from exclusion where it tends, as here, to demonstrate motive, intent, plan, or knowledge.

Therefore, defendant Zicarelli’s argument must fail and the evidence is admissible. The "other crimes” here, i. e., corruption of other officials by Zicarelli, were accomplished for a similar purpose — protection of Zicarelli’s gambling enterprise. See also State v. Boiardo, 111 N. J. Super. 219 (App. Div. 1970), cert. den. 57 N. J. 130, cert. den. 401 U. S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971).

D

Other contentions of defendant Zicarelli

Defendant Zicarelli also makes the following contentions:

Point IV. The defendant's motion for judgment of acquittal should have been granted as to the substantive counts.
Point V. The court erred in its charge. * * *
A. The court erred in charging the jury on the substantive counts with respect to an offer of undue reward where such was contrary to the State’s theory and there was no evidence concerning same.
B. The court’s charge on aiding and abetting was erroneous and confusing.
O. The court erred in its charge on conspiracy.
D. The court erred in refusing to charge that a party vouches for the credibility of its own witnesses.
Point VI. The court erred in permitting testimony that Ziearelli was in custody during part of the time covered by the indictment.
Point VII. The court erred in permitting the State to proceed with its proofs on the basis that Fluccari was a co-conspirator.
Point VIII. The court erred in permitting the State to adduce testimony that Fluccari could not be found.
Point IX. The court erred in permitting Herbert’s testimony concerning the structure of a lottery organization and in allowing his chart depicting same to be received in evidence.
Point X. The court erred in sustaining numerous objections made during the summation of Zicarelli’s attorney.

We find no merit in any of these contentions.

E

Mallamaci’s sentences

Defendant Mallamaci contends that, since he was sentenced to consecutive terms of 20 to 22 months on count I (conspiracy) and counts IX, X, XI and XIII and a similar but concurrent sentence on count XIY (substantive offenses), the sentences were excessive. He contends that, in total, the substantive several offenses constituted “a single course of conduct arising out of the conspiracy to commit those crimes and as a result he should not serve a consecutive sentence on each of those counts.”

Not so. As said in State v. Cox, 101 N. J. Super. 470, 475 (App. Div. 1968), cert. den. 53 N. J. 510 (1969) :

Here we are unable to agree with defendant’s contention that the five offenses of which he was found guilty comprised a single continuous transaction. * * * These represent a sequence of separate events, deliberately undertaken in succession, rather than a single episode.

E

Assessment of costs

The court below erred in assessing the costs of prosecution against defendants Zicarelli and Malamaci. State v. Mulvaney, 61 N. J. 202 (1972). The order to that effect is reversed.

Conclusion

Except as to the assessment of costs as to defendants Zicarelli and Mallamaci, the judgments of conviction are affirmed.

       Since the contentions of all appellants are encompassed in those raised by appellant Zicarelli (except as to Mallamaei’s sentence), disposition of his contentions will he deemed to be dispositive of the contentions of all appellants.


author: Per Curiam.

text:
    STANLEY ZNOSKI AND AGNES ZNOSKI, PLAINTIFFS-RESPONDENTS, v. SHOP-RITE SUPERMARKETS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT, AND EDWARD T. BOWSER, JR., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted January 15, 1973
    Decided January 30, 1973.

      Before Judges Collester, Leonard and Halpern.

      Messrs. Enright, Bright & Saviet, attorneys for appellant (Mr. Elwyn Saviet, on the brief).

      Messrs. Schapira, Steiner & Walder, attorneys for respondents (Mr. Barry H. Evenchick, on the brief).

      Mr. Chester A. Morrison, attorney for respondent Edward T. Bowser, Jr., filed a statement in lieu of brief.
   Per Curiam.

This action sought damages as a result of personal injuries sustained by plaintiff Stanley Znoski when he was hit by a shopping cart and fell near the exterior entrance to defendant Shop-Rite Supermarkets, Inc.’s (Shop-Rite) store. Agnes Znoski, Stanley’s wife, sued per quod. By a 10-2 verdict against Shop-Rite, Stanley was awarded $25,000 and Agnes $3,000. Shop-Rite’s motions for judgment of dismissal at the end of the proofs, judgment n. o. v., or for a new trial were denied. Shop-Rite appeals, contending (a) it breached no duty owed plaintiffs for which an action sounding in negligence will lie; (b) the trial court erred in (1) dismissing its crossclaim against defendant Edward T. Bowser, Jr., and (2) removing the issue of plaintiff’s contributory negligence from the jury.

We find no merit in Shop-Rite’s contentions that the trial court erred in dismissing the crossclaim against Bowser (the architect who designed the Shop-Rite store), or determining as a matter of law that plaintiff was not guilty of contributory negligence. The lack of proofs in the case warranted the trial court’s action.

We turn to the uncontroverted facts to consider the remaining issue. Shop-Rite operated a supermarket at the corner of Dodd Street and Commerce Boulevard in East Orange. It furnished car parking facilities for its patrons immediately adjacent to a sidewalk running the length of the store premises and leading to the entrance and exit doors. The entrance and exit doors operated automatically. They are near each other, hut are separated by a metal divider attached to the sidewalk and the building. A short distance to the right of the entrance door is a long and high brick wall in front of which shrubs and small trees are planted. Bordering the planted area and abutting the sidewalk is a wooden curbing, presumably used to protect the plantings. While it is not too clear, it would seem that the curbing was approximately 3^4 feet distant from the right edge of the entrance door.

Shop-Rite furnished metal carts in which patrons wheeled their purchases while in the store and often to their cars in the parking lot. On February 17, 1968 plaintiff had parked his car and was on the sidewalk, near the entrance door, when an unknown youth hit him in the back with one of Shop-Rite’s carts. The blow propelled plaintiff’s body to the right and caused his feet to come in contact with the wooden curbing, resulting in his falling and sustaining the injuries for which this suit has been instituted.

It is undisputed also that the area around the entrance and exit doors was not crowded, and no one had activated the entrance door as plaintiff approached it. Plaintiff produced no expert witnesses to prove that the entrance and exit doors were improprly constructed or designed for the anticipated use by patrons with shopping carts. No expert proof was offered to show that the sidewalk in front of and surrounding the doors, or the wooden curbing abutting the end of the sidewalk, was improperly constructed, designed or maintained for the reasonably safe use by patrons; or that proper design required some form of railing or divider at or near the wooden curb. No proof was offered to show that the use of shopping carts in the area around the doors created a foreseeable danger or hazard requiring special precautions to be taken by Shop-Kite. Nor was proof offered to show that Shop-Kite had actual or constructive knowledge that patrons, or other third parties, used the carts for any purpose or in any manner other than those for which they were designed.

The thrust of plaintiff’s argument finds its genesis in Wollerman v. Grand Union Stores, Inc., 47 N. J. 426 (1966), and Taweel v. Starn’s Shoprite Supermarket, 58 N. J. 227 (1971). These cases are inapposite. Generally speaking, they dealt with falls within a supermarket resulting from a foreign substance on the floor which foreign substance was an item held for sale by the supermarket in the usual course of its business. Plaintiff equates those cases with the instant case thusly in his brief:

Wollerman teaches that supermarket owners should and must anticipate the carelessness of customers. By providing customers with large, heavy wheeled carts the owner must reasonably anticipate, as within common knowledge, that they will be carelessly used and, because of their size and weight, will cause injury. Contrary to what defendant says, although this particular accident was itself an unexpected occurrence, the general type of injury was not so unexpected that supervision could not have prevented it. It cannot be doubted that had defendant not conducted a self-service business in which it provided shopping carts for the use of customers, plaintiff would not have been injured. Because of the shopping carts, defendant’s mode of operation created a substantial risk of injury by the carts it provided for customers’ use. Under such circumstances, its duty to protect its invitees from mishap was breached when it did not properly supervise and control the use of such shopping carts by cusotmers. This was clearly a jury question.

We disagree. Wollerman and Taweel stand for the proposition that it is fair to call upon a store proprietor, and not a patron, to explain what happened if it wants to avoid an inference of negligence “Where a substantial risk of injury is implicit in the manner in which a business is conducted.” Wollerman, supra, 47 N. J. at 430.

We are unable to say that a substantial risk of injury is implicit, or inherent, in the furnishing of shopping carts to patrons by a store proprietor. Shopping carts are not dangerous instrumentalities, and they are uniquely suitable for the purpose for which furnished. Shop-Rite was under a legal duty of exercising ordinary care to furnish a reasonably safe place and safe equipment for its patrons consistent with its operation and the scope of its invitation. It is not an insurer for the safety of its patrons. The issue is not merely whether it was foreseeable that patrons, or other third parties, would negligently or intentionally misuse shopping carts, but whether a duty exists to take measures to guard against such happenings. As indicated in Goldberg v. Housing Authority of Newark, 38 N. J. 578 (1962)

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.

Every human activity involves some risk of harm, but the reasonable probability of having other than a minor accident from the use of carts in Shop-Rite’s operation does not give rise to a duty to take measures against it. See 2 Harper and James, The Law of Torts, § 16.9 (1956). So viewed, we find that plaintiff has failed to carry the burden of showing a breach of duty on Shop-Rite’s part in furnishing its patrons with carts under the circumstances here existing. In fact, it is difficult to visualize how an incident such as here involved could have been prevented even if reasonable precautions had been taken. By submitting this issue to the jury, the court permitted Shop-Rite’s responsibility to be decided on the basis of speculation and conjecture. Genovay v. Fox, 29 N. J. 436, 438 (1959). This same reasoning is applicable to the trial court’s permitting the jury to decide, without any expert or other testimony, that the area ¿round the entrance and exit doors and the wooden curbing nearby were improperly constructed or designed.

Considering the totality of the evidence before the trial court, and giving plaintiff the benefit of all reasonable inferences to be drawn therefrom, we are satisfied that fair-minded men could not have determined that Shop-Rite breached a duty owed to plaintiff. Miles v. Parrish, 48 N. J. 554 (1967); Caliguire v. Union City, 104 N. J. Super. 210, 219 (App. Div. 1967), aff’d 53 N. J. 182 (1969). The evidence is clear and convincing, and not incredible in the light of common experience, so that the issue was properly for the trial court and not the jury. Ferdinand v. Agricultural Ins. Co. of Watertown, N. Y., 22 N. J. 482, 494 (1956) ; Riley v. Weigand, 18 N. J. Super. 66, 71 (App. Div. 1952).

The trial court should have granted defendant’s motion for a judgment of dismissal at the end of the proofs. Reversed. Judgment to be entered in favor of Shop-Rite.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FRANK D. SPIVEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 6, 1972
    Decided February 1, 1973.

      Before Judges Collester, Leonard and Halpern.

      Mr. Stanley G. Van Ness, Public Defender, attorney for appellant (Mrs. Martha K. Kwitny, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Ralph J. J abbour, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Collester, P. J. A. D.

Defendant was found guilty by a jury of the rape and robbery of Sadaline Moster. He was sentenced to a prison term of 16-23 years on the conviction for rape and to a concurrent prison term of 6-9 years on the conviction for robbery.

The crimes occurred on November 26, 1969 and defendant was arrested on that date. The case first came on for trial on September 21, 1970 but resulted in a mistrial caused by defendant’s disruptive tactics. On the second day of that trial the court conducted a voir dire hearing and found that the victim’s out-of-court identification of defendant, while she was in a hospital a few hours after the crimes were committed, was admissible in evidence.

On January 4, 1971 a hearing was held with a jury, pursuant to N. J. S. A. 2A:163-2, to determine defendant’s sanity at the time of the hearing, at the time of commission of the offenses, and his competency to stand trial. The jury found defendant sane on both occasions and that he was capable of conferring with counsel and aiding in the conduct of his defense.

Defendant’s second trial began on May 3, 1971 and continued through May 7. At the outset, over objection, the trial judge ruled that his earlier finding in September 1970, that the pretrial identification by the victim was admissible, was the law of the case. The judge also denied defense counsel’s request for another competency hearing.

Prior to the selection of the jury defendant was brought into -the courtroom, but because of his refusal to be seated or to desist from railing at the court he was bound and gagged. He continued to moan, groan and bang his hands on the counsel table. The court ruled that until defendant behaved properly the only time he would be brought into the courtroom was at the time his presence was required for identification. The court also denied defense counsel’s motion to be relieved. Thereafter, during the course of the trial when defendant was brought into the courtroom he continued his disruptive tactics.

The State’s proofs indicated that on the evening of November 26, 1969 Miss Moster alighted from a bus at Bloomfield Avenue in Montclair and started across the street looking for a taxicab. She was accosted by a black man and a white man (subsequently identified as defendant Spivey and Prank Pabrizio) who were in a pizzeria delivery truck. Miss Moster was forcibly pulled into the truck, which was then driven away to a secluded area where the men robbed her and defendant raped and beat her. When she was finally released she went to a house for aid. She was taken to a hospital and the police were notified of the attack. A short time later defendant and Pabrizio were apprehended and taken to the hospital where Miss Moster identified them as her assailants. Pabrizio testified on behalf of the State at defendant’s trial.

The defense presented no evidence to refute the State’s charges but offered expert testimony in an attempt to show that defendant was insane. The State, in rebuttal presented medical testimony to establish that defendant was sane and that he was feigning insanity.

On appeal the Public Defender, on behalf of defendant, raised the following points as grounds for reversal: (1) error in denial of a motion for a mistrial at the conclusion of the sanity hearing; (2) plain error in the court’s reliance on the jury’s findings in the sanity hearing in determining that defendant was competent to stand trial; (3) error in the failure of the court to conduct a competency hearing immediately before or during the trial and sentencing; (4) defendant was deprived of a fair trial because he was tried and sentenced while incompetent; (5) the court erred in continuing the trial after defendant’s bizarre behavior necessitated Ms removal from the courtroom; (6) the court erred in not adopting a method of courtroom discipline which would permit defendant to remain in the courtroom; (7) the court erred in denying defense counsel’s motion to be relieved; (8) plain error in depriving defendant of his right to be present at the sanity hearing; (9) there was insufficient evidence adduced to establish the elements of robbery; (10) the court erred in refusing a postponement of the trial so that one of defendant’s psychiatrists could be present to testify; (11) error in denial of a mistrial motion on the ground that the victim said defendant was pretending to be insane; (12) the court erred during the voir dire examination of jurors by referring to the racial differences between defendant and the victim; (13) defendant was denied a jury of his peers because the prosecutor contributed to the systematic exclusion of black jurors; (14) the prosecutor’s summation improperly directed the jury’s attention to the possibility that an insane defendant might be released; (15) the sentence was excessive, and (16) the aggregate errors denied defendant a fair trial. In addition thereto defendant submitted a pro se brief contending: (a) the court failed to provide a speedy trial; (b) police identification procedures were improper; defendant was deprived of a Wade hearing; (c) the court admitted testimony from a psychiatrist in violation of his Miranda rights and his doctor-patient privilege; (d) the presentence investigator never interviewed defendant, and (e) defendant was denied his right to a preliminary hearing.

We have carefully considered the points raised and find no reversible error in any of them. Only a few of them warrant any discussion.

We deal first with the contention that the trial judge committed error in submitting the issue of defendant’s competency to stand trial to the determination of a jury in the proceeding brought pursuant to N. J. 8. A. 2A:163-2. He argues that the statute relates only to the question of his sanity at the time of the hearing and at the time the offenses charged against him were alleged to have been committed. He asserts that the issue of competency to stand trial must be tried by the judge alone, and that since the judge, following the jury verdict, indicated that if he had been the trier of the facts he would have found defendant to be insane, he should not have allowed his own fact-finding to be overriden by the jury. We note first that defendant’s contention is raised as plain error since the record clearly indicates that at no time did his counsel object to having the jury decide the issue of defendant’s capacity to stand trial. In fact, in his opening to the jury at the sanity hearing defense counsel specifically stated, “Pirst, you must decide whether Mr. Spivey can consult with me, his attorney, in an intelligent manner, so that I can prepare his case and defend his case.” Moreover, no case has been cited which holds that it is mandatory for the judge to decide the issue of competency sitting without a jury. To the contrary, there are cases which indicate that the competency of an accused to stand trial may be submitted to a jury impaneled for that purpose. State v. Gibson, 15 N. J. 384, 387-388 (1954); State v. Auld, 2 N. J. 426, 435 (1949). See also, Aponte v. State, 30 N. J. 441 (1959), which states that the issue of capacity for trial can be decided by the court alone, or with a jury, although suggesting that it would ordinarily be more appropriate that the issue be tried by the court alone. We are satisfied that there was no plain error in the determination of defendant’s competency by the jury-

We find no error in the court’s failure to conduct another competency hearing of defendant. At the outset of the trial on May 3, 1971 a report of a psychiatric examination of defendant made on April 30, 1971 by Dr. Winsten, one of defendant’s medical experts, was submitted to the court. The record shows that it indicated no change in defendant’s mental condition since the sanity hearing held in January 1971. The granting of a request for a competency hearing is committed to the sound discretion of the trial court. The court’s failure to order such an inquiry will not be reviewed on appeal unless it clearly and convincingly appears that the defendant was incapable of standing trial. State v. Lucas, 30 N. J. 37, 73-74 (1959). We conclude there was no mistaken exercise of the court’s discretion in the instant ease.

We turn next to the Public Defender’s argument that the court erred in continuing the trial after defendant’s “bizarre behavior” necessitated his removal from the courtroom, and in failing to adopt a disciplinary measure which would have permitted defendant’s presence. The record indicates that at the outset of the trial defendant began the same disruptive tactics he had engaged in during his first trial which had resulted in a mistrial. His conduct is described in the Public Defender’s brief as “braying, kicking, spitting, singing, moaning, etc.”, and the record shows he mouthed obscenities and insults to the trial judge and others. Attempts to cope with such tactics by binding and gagging defendant outside of the jury’s presence were unsuccessful. As a result the trial judge was required to ban him from the courtroom. Defendant was advised that he would be permitted to return when he agreed to comport himself properly, but thereafter when he was brought into the courtroom he continued his disruptive tactics.

In Illinois v. Allen, 397 U. S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), reh. den. 398 U. S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970), the court stated that it is essential to the proper administration of criminal justice that dignity, order and decorum be the hallmarks of all court proceedings in our country; that the flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. The court said that trial judges confronted with disruptive, contumacious, stubborn, defiant defendants miist be given discretionary power to meet the circumstances of a case, and ruled that there were at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant: (1) to bind and gag him, thereby keeping him present; (2) cite him for contempt, and (3). remove him from the courtroom until he promises to conduct himself properly. In the instant case the trial judge clearly gave defendant every opportunity to be present in the courtroom. We find no abuse of discretion in the procedure followed here with respect to Spivey.

The final point meriting discussion concerns defendant’s claim that the court erred in refusing .to grant an adjournment of the trial so that one of the defense psychiatrists could be present to testify. The request for a postponement was made on May 3, 1971, at the outset of the trial. The psychiatrist, Dr. Davidson, was attending a convention in Washington, D. C. Although notified on April 23, 1971 that the trial would commence on May 3, defense counsel had not served the physician with a subpoena, and the record does not indicate that counsel had contacted the doctor. The trial judge refused to postpone the trial and notified defense counsel to contact the doctor to have him appear later in the week. The court also ruled that if Dr. Davidson could not lie present, he would permit defense counsel to read, a transcript of his testimony at the sanity hearing to the jury. When the ■ doctor subsequently failed to appear during the four-day trial, the judge permitted the transcript to be read despite the State’s objections.

It is well settled that the granting of an adjournment rests with the sound discretion of the court. State v. D’Orsi, 113 N. J. Super. 527, 532 (App. Div. 1971). Here the jury had the benefit of the doctor’s previous testimony. Defendant was not prejudiced. We conclude there was no reversible error in the court’s ruling.

The judgment of conviction is affirmed.

Halpern, J. A. D.

(dissenting). 1 am in substantial accord with the views expressed by the majority. However, I believe the trial court erred in denying defendant’s application for a hearing to determine his competency to stand trial on May 3, 1971. The majority’s reasoning was bottomed upon the fact that the motion was addressed to the trial court’s sound discretion, and since the jury determined on January 4, 1971 that defendant was competent to stand trial, and Dr. Winsten’s report showed no change in his condition, no mistaken exorcise of the court’s discretion was shown.

In ganging the trial court’s action, we must consider the factual picture known to it when the motion was denied. The undisputed facts were that defendant, prior to the commission of the alleged rape and robbery on November 26, 1969, had been committed to various mental institutions on six or seven occasions; on November 27, 1969 he unsuccessfully attempted suicide in jail; he was confined in the Trenton State Hospital where he received electroshock psychotherapy until his first trial in September 1970; the trial in September 1970 resulted in a mistrial because of defendant’s disruptive actions; he was recommitted to the State Hospital in October 1970 where he remained until the jury’s finding on January 4, 1971 that he was sane and competent to stand trial (this jury finding was contrary to the trial court’s own opinion as expressed to counsel) ; he was again confined in the State Hospital between January 1971 and the second trial on May 3, 1971; the State Hospital superintendent refused to honor the trial court’s personal request to bring defendant from Trenton to Newark daily while the trial was in progress; Dr. Winsten’s report of April 30, 1971 indicated that defendant was insane and could not effectively cooperate with counsel in preparation of his defense; Dr. Winsten certified on April 30, 1971, at the request of the Newark Street jail authorities, that defendant be recommitted to the State Hospital (this was refused by the trial court); and defense counsel represented that defendant did not want him as his lawyer, would not cooperate with him, and that he was unable to strike up a rapport with defendant (the trial court refused to relieve counsel and ordered him to try the ease).

With full appreciation of the trial judge’s position in this situation, it is necessary to set forth some of the remarks he made in disposing of the motion. When counsel attempted to show the trial court Dr. Winsten’s report of his recent psychiatric examination of defendant, the judge responded, “* * * I don’t care what was in Dr. Winsten’s report, this case was going on.” In denying the motion he said, “The jury found him sane; he is still presumed to be sane, and there comes a time — there is a recent case which holds there must be finality to the matter. * * * Mr. Grieco, the case is going on. The man is presumed to be sane.”

I am convinced from the record before us that a bona fide and reasonable doubt existed as to defendant’s competency to stand trial, and the trial court’s refusal to hold a hearing to determine the issue was a mistaken exercise of discretion which deprived defendant of his constitutional right to a fair trial. Pate v. Robinson, 383 U. S. 375, 385, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); see also, State v. Pugh, 117 N. J. Super. 26 (App. Div. 1971), certif. den. 60 N. J. 22 (1972), and United States v. McEachern, 465 F. 2d 833 (5 Cir. 1972). It is significant that four months elapsed between the jury’s findings of competency on January 4, 1971 and the trial on May 3, 1971. It is reasonable to infer that defendant’s mental condition could have deteriorated during that four-month period. This inference finds support not only in the actions of the authorities at the State Hospital, but in the prior testimony of the State’s witness, Dr. Elizondo, who found defendant’s mental condition to be in a state of remission in January 1971, but opined that “he might go off at any time.” In addition, Dr. Winsten’s opinion based on his examination of defendant on April 30, 1971, when considered in the light of all the other circumstances relating to defendant’s deportment, was sufficient to warrant granting the motion.

Before leaving the subject, I think it is important to reiterate for the benefit of trial judges that the issue of competency to stand trial is ordinarily more appropriately tried by the court without a jury. Aponte v. State, 30 N. J. 441, 455 (1959); Farmer v. State, 42 N. J. 579 (1964); State v. Pacheco, 106 N. J. Super. 173, 176-177 (App. Div. 1969), aff’d 54 N. J. 579 (1969), cert. den. 400 U. S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 65 (1970).

Finally, I am constrained to point out that the prosecutor improperly dealt with the issue of punishment in his summation. lie told the jury that if they acquitted defendant because of insanity, which continued to the time of trial, he would be returned to the State Hospital and would be released when the staff doctors at the State Hospital determined his sanity was restored. This was probably an unintentional misstatement since the court, and not the staff doctors, makes that final determination. State v. Maik, 60 N. J. 203, 219 (1972); State v. Bell, 102 N. J. Super. 70, 75-76 (App. Div. 1968), certif. den. 52 N. J. 485 (1968), cert. den. 394 U. S. 911, 89 S. Ct. 1026, 22 L. Ed. 2d 223 (1969).

I would reverse the conviction and remand for a new trial after first directing a hearing to be held on defendant’s competency to stand trial.