author: Albano, J. D. C.

text:
    FAMILY FINANCE CORPORATION, PLAINTIFF, v. WILLIAM JENKINS, ET AL., DEFENDANTS. AVCO FINANCIAL SERVICES, PLAINTIFF, v. WILLIAM S. JENKINS, ET AL., DEFENDANTS.
    District Court — Essex County
    November 20, 1974.

      Mr. Charles H. Sachs for plaintiff Family Finance Corporation (Messrs. Irving & Charles H. Sachs, attorneys).

      Mr. Irving U. Young for plaintiff Avco Financial Services and Mr. Robert E. Young on brief for plaintiff Avco Financial Services (Messrs. Young & Young, attorneys).
    No appearance for any defendant.
   Albano, J. D. C.

Family Finance Corporation (Family), by notice of motion, asks to have the priorities of two wage executions determined. It would appear, however, that the relief sought is not so much the settling of priorities as it is the postponement of a wage execution secured by Avco Financial Services (Avco) to one secured by Family.

On or about April 9, 1970 William S. Jenkins and Lillian Lowe executed a promissory note to Seaboard Finance Company, a predecessor of Avco. The parties defaulted in the payment of the note and an action was brought in this court. Personal service of process was effected on William S. Jenkins and service on Lillian Lowe was effected by service on said William S. Jenkins. Default was entered and judgment recovered on April 18, 1972. Thereafter, on May 17, 1972, the amount of the debt being $972.36, orders for wage executions were issued to Constable Joseph Y. Esposito, in Essex County, against wages of William S. Jenkins, and to Constable Alan Higgs, in Union County, against wages of Lillian Lowe. Shortly before the motion here, approximately $700 had been collected on the wage execution against the wages of Lillian Lowe, and there is no dispute with regard to this wage execution.

The problem lies with the wage execution issued against the wages of William S. Jenkins and the subsequent wage execution of Family. By letter of December 13, 1973 counsel for Avco informed the employer of William S. Jenkins of an agreement for the making of voluntary weekly payments and authorized the employer to withhold the making of deductions from wages until further notice. This letter contained also, the following:

The writ of execution is to remain on file in your office and retain its priority until the judgment is paid in full, at which time we will notify you to that effect. If in the meantime you are served with another wage execution against the same employee, this suspension is-to be cancelled and the aforesaid writ of execution is to be automatically reinstated so that it does not lose its position.

A copy of this letter was sent to Constable Esposito.

On or about December 26, 1962 William Jenkins and Jessie Caldwell Jenkins executed a promissory note to Family. The parties defaulted in the payment of the note and an action was brought in this court. Personal service of process was effected on William Jenkins and service on Jessie Caldwell Jenkins was effected by service on said William Jenkins. Default was entered and judgment recovered on March 14, 1974. Thereafter, on April 5, 1974, the amount of the debt being $607, an order for wage execution was issued to the same Constable Esposito against the wages of William Jenkins. For a period of time moneys wore collected under this second wage execution, and then stopped. Family’s objective, now, is to have its wage execution honored by Jenkins’ employer and to have deductions made for its benefit. The question of any defense to the earlier promissory note to Family, being collateral, is not before the court — only the consequent judgments and wage executors are to be considered.

In its memorandum of law Family argues that the December 13, 1973 letter suspending deductions under Aveo’s wage execution amounted to a modification of a court order, in violation of N. J. 8. A. 2A:17-55; was done without the consent or knowledge of the court; was an interference with a court order and, without such interference, the first judgment would have been satisfied, so that the result of Avco’s act has been prejudicial to Family’s interests, and, therefore, Family’s wage execution is entitled to priority even though junior in point of time. No eases are cited in support of Family’s position.

Aveo, in its memorandum of law, argues that it has been common practice to modify wage executions, by letters similar to that of December 13, 1973, to avoid hardship on a defendant or to avoid the possibility of employment termination where a second wage execution is served on an employer. No cases are cited in support of Avco’s position.

Two wage execution statutes could come into play in this proceeding: N. J. 8. A. 2A:17-52, “Number of executions issued and levied at same time,” and N. J. 8. A. 2A:17-55, “Modification of Execution.” Essentially, N. J. 8. A. 2A: 17-52 provides that only one wage execution shall be satisfied at a time, and where more than one execution shall be issued their priority shall be determined by the order in which they are presented. N. J. 8. A. 2A:17-55 provides that either party may apply to the court issuing the execution for its modification.

The wage execution issued in favor of Avco, being earlier in time,- should have priority over that issued in favor of Family, if N. J. 8. A. 2A.Y7-52 is applied literally, and should be effective since no modification, if required by N. J. 8. A. 2A:17-55, was sought.

Yet, there is much equity in the position taken by Family. The Avco judgment was $972.36. Avco secured its wage execution on May 17, 1972, and Family secured its wage execution on April 5, 1974, or 97 weeks later. The Avco judgment would have been satisfied if $10.02 a week had been paid, and the Family judgment could have begun to be satisfied without interruption. Additionally, if credit is given to the $700 collected from the co-obligor, Lillian Lowe, the amount needed from William S. Jenkins was $272.36. This could have been satisfied by the payment of $2.81 a week. Avco has not submitted any proof as to its collection efforts or as to the balance due from William S. Jenkins, but relies on the common practice of counsel to suspend wage executions to alleviate hardship to defendants.

Counsel cited no case law to support their conflicting contentions, and the court has found no case law under the wage execution statutes, N. J. 8. A. 2A:17-50 et seq. On the other hand, by analogy to N. J. 8. A. 2A:17-1 et seq., “Executions,” a good legal conclusion can be reached without straining statutory construction and without unwarranted judicial ingenuity.

In Cumberland Bank v. Hann, 19 N. J. L. 166, 168-170 (Sup. Ct. 1842), various rules were laid down as being representative of New Jersey law in relation to writs of execution against goods and chattels. Not all of these rules can be applied to the matter at hand, but those that can be said to control are:

Fifth: The plaintiff may wait on the sheriff, as long as the sheriff chooses to indulge the defendant; or the plaintiff may consent to reasonable adjournments from time to time, or even direct such adjournments, without thereby losing his priority, provided it is done in good faith.
Sixth: The plaintiff, when he delivers his execution to the sheriff, or at any time afterwards, may direct the sheriff not to proceed to a sale, without further orders from him; or unless urged on by younger executions, without thereby losing his priority; provided the same be done in good faith. But,
Seventh: If the defendant is permitted with the knowledge and consent of the plaintiff express or implied, not only to retain the possession of the property and to use and enjoy it for its ordinary and appropriate purposes, as in the case of household goods; but to exercise an unlimited control over all the property levied on, whatever may be its nature; to use, sell, exchange or consume it, as the rightful and absolute owner, it is such evidence of a fraudulent and color-able use of the process of the court, whether the debt be a real and just one‘or not, as to postpone the execution to younger ones sued out and prosecuted in good faith. And lastly, it is not necessary to prove actual fraud in the concoction of the judgment; nor an actual deliberate intention or design to defeat, hinder or delay other creditors. A man may lose his rights, as well by negligence, and a disregard to the rights of others, as by positive fraud or malfeasance.

Admittedly, Cumberland Bank v. Hann, supra, is a relatively old ease. There is no subsequent one modifying or changing the various rules it stated. And there is no reason not to apply those rules to wage executions.

Aveo had priority over wage executions subsequent in time to the one it secured. Avco then interfered, without benefit of court order, with the running of the wage execution.

Under the “Eifth” rule above, what difference is there in theory between a wage execution delivered to an employer and an execution against goods and chattels delivered to a sheriff ? One is satisfied by deductions from wages and the other is satisfied by a sale. What difference is there if plaintiff suspends the wage execution or postpones the sale of goods and chattels? In either case there is no substantive difference.

Under the “Sixth” rule above, what difference is there in theory if the employer is directed to suspend deductions under a wage execution or a sheriff directed not to proceed with a sale under an execution against goods and chattels, until further order or urged on by a younger execution? There is no substantive difference.

Under the “Seventh” rule above, there can be no real difference in theory either. William S. Jenkins, during the suspension of the wage execution, retained his wages and exercised an unlimited control over them. True, he had a voluntary agreement with Avco, but simply because it was voluntary and without court order, it was tantamount to no legal limitation and left William S. Jenkins in full control of his wages, as the rightful and absolute owner of them.

As has been pointed out, the Avco wage execution could and should have been satisfied before the Family wage execution issued. No fraud or malfeasance is suggested; however, there has been interference with the running of the Avco wage execution, and there obviously has been negligence in the Avco collection efforts. But for this interference and negligence, Family would be entitled to have its wage execution honored. This amounts to such a disregard of the rights of others, under the “Seventh” rule above, as to effect a postponement of the Avco wage execution to that of Family.

If wage execution holders wish to suspend proceedings, they either should utilize N. J. 8. A. 2A:17-55 or pursue their collections so as not to cause injury to others.

The motion of Family will be granted postponing the priority of the Avco wage execution to that of Family.


source: Caselaw Access Project

author: Morgan, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LEE ARTHUR FELTON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 4, 1974 —
    Decided December 9, 1974.

      Before Judges Michels, Morgan and Kentz.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Julian Wilsey, Deputy Attorney General, of counsel and on the brief).

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Michael Suffness, Assistant Deputy Public Defender, of counsel and on the brief).
   The opinion of the court was delivered by

Morgan, J. A. D.

Defendant appeals from his conviction upon a two-count indictment charging him with robbery, N. J. S. A. 2A:141-1, while being armed, N. J. 8. A. 2Á: 151 — 5, contending that reversible error was committed when the prosecutor, in the presence of the jury, made repeated references to the fact that defendant’s confederate, one Thomas Williams, had been indicted and convicted for the same crime. Williams did not testify at defendant’s trial.

James Melvin, the alleged victim of the robbery, testified that as he left a local poolroom and proceeded to his car in the late afternoon of December 28, 1972, he was accosted by two men with knives, later identified as Eelton and co-defendant Williams, who forced him into the front seat of his ear where he then sat between the two of them. Once in the car, Williams took $65 from him.. Melvin maintained that he had seen defendant earlier in the day.

Thereafter, the three of them drove around for a short period of time during which time Williams allegedly suggested killing Melvin, a suggestion rejected by Felton' who expressed the thought that since he had worked with Melvin, Melvin would not tell anyone about the incident. Accordingly, Melvin was released. Once home, Melvin called the police and an unsuccessful search for the assailants ensued. Back at the police station Melvin was told to come back later because he had had a few drinks. Subsequently, Melvin selected defendant’s picture from a book of photographs.

Two officers from the Paterson Police Department confirmed Melvin’s testimony concerning the search for the assailants and the circumstances in which the photographic identification of defendant was made. The only other evidence introduced on the State’s case consisted of testimony confirming that defendant had previously worked with Melvin at Barney’s Furniture Store. The State then rested its case.

Felton testified that he and Melvin had known each other previously and had in fact gone drinking together on several occasions. On a prior occasion Felton had loaned Melvin $10 and Felton’s requests for repayment of the loan had gone unheeded for three weeks. On the day in question Felton had entered Melvin’s car at Melvin’s request and the two of them began drinking a pint of liquor which had been left under the seat of Melvin’s car. They then had dinner and after returning to the poolroom Felton continued to dun Melvin for repayment of the $10 loan. Melvin finally gave Felton $3, promising to repay the balance at a later time. This part-payment did not apparently satisfy Felton since an argument concerning the unpaid balance ensued during which Williams joined them and asked for a ride home. Melvin did the driving and all three of them were intoxicated. Melvin and Felton continued to argue about the money and this argument soon led to a fistfight which Williams aided in terminating. Melvin received a bloody nose in the affray and gave Eelton $10. After threatening Eelton, Melvin departed.

It was on cross-examination of Eelton that the prosecutor made the references to the fact that Williams had been indicted for the Melvin robbery and that he had in fact been brought to justice. After examining Eelton concerning Eel-ton’s knowledge that Williams had been indicted for this robbery, the following transpired:

Q. A man who according to what you told the ladies and gentlemen of this jury several minutes ago is completely innocent of the armed robbery he had been indicted for, just as you are, isn’t tha correct?
A. That’s right.
Q. Are you aware that he was brought to trial and brought to justice earlier this year in August?

At this point the trial judge intervened, and defendant’s counsel registered an objection. The judge sustained the objection although no curative instruction was given to the jury. The prosecutor, nonetheless, continued to inquire of Eelton as to his knowledge concerning the fact that Williams had been indicted for this very robbery.

Q. Are you aware, Mr. Felton, that your friend went along for the ride, his case has been disposed of prior to yours; are you aware of that?
A. No.
Q. You’re not aware of that?
A. No.
Q. Your attorney hasn’t told you that?
MR. MILLER: Objection your Honor, to communication between attorney and client.
THE COURT: Yes. The objection is sustained.
Q. I will withdraw the question. In any event you are aware that your friend Williams was charged with an armed robbery.
A. Yes.
Q. The same armed robbery you were charged with?
A. Yes.
Q. Isn’t that correct?
A. Yes.
Q. Have you attempted to subpoena that innocent man who is charged on the basis of Melvin’s testimony to bring him into court to corroborate your story?
A. I don’t know where he is.
Q. Have you asked your lawyer where he is?
A. No.
MR. MILLER: Objection, your Honor; same basis; attorney client. THE COURT: He said no he didn’t ask.
Q. Have you attempted to find out where he is, Mr. Felton?
A. No.
Q. You haven’t?
A. No.

In summation, too, the State laid heavy emphasis upon the fact that Williams had been indicted for this same robbery, clearly intending to imply that he had been adjudicated guilty.

. Who would call James Melvin a liar. Could you imagine that? And who would be the first man through that door. Who would be leading the parade? Who would be the number one man to come in here and sit on that witness stand and call James Melvin a liar? Why the man who was indicted for armed robbery as a result of James Melvin’s story.

Defendant’s objection was sustained by the judge on the ground that “the defendant said that he did not know the whereabouts of Williams.” The prosecutor continued:

All right. Here is a man, Thomas Williams, who is, according to the defendant, in the defendant’s own words, a friend; my friend Williams. The defendant’s own testimony. A man — let’s talk about facts; who was indicted on the same charge that the defendant in this case was indicted. Williams and Felton. The State of New Jersey vs. Thomas Williams and Lee Arthur Felton.

Another objection made by defense counsel was sustained again on the basis that since defendant did not know where Williams was, he could not produce him. Accordingly, the judge instructed the jury to draw no inference adverse to defendant from his failure to produce Williams.

In his charge the judge informed the jury that the indictment charged both Pelton and Williams with commission of the armed robbery in question, advising them that although two persons were charged, only the guilt of defendant Eelton was at issue.

The charges against the other defendant have been disposed of. The matter of such disposition should not be of any concern to you since you are only to be concerned with the charges as they relate to this defendant.

The judge then informed the jury of the nature of an indictment, that it is merely a vehicle by which a charge “against this defendant” comes before the court for trial. The jury was advised that the mere fact that an indictment has been returned provides no evidence of guilt because an indictment is just a formal charge.

The jury convicted defendant of both counts and this appeal ensued.

Defendant contends that the repeated references to the fact that the codefendant had been indicted for the robbery and that, inferentially, he had been adjudicated guilty of this charge constituted reversible error in the absence of any fully sufficient curative charge clearly directed to correcting this error. We agree.

In the context of the present ease the intent of the prosecutor in bringing to the jury’s attention that Williams had been indicted for the robbery of Melvin and that Williams had been “brought to justice” on this charge is quite clear. Felton’s testimony connected his own innocence of the charge to that of Williams, and the prosecution was trying to suggest to the jury that Williams was guilty as a basis for the inference that Felton was equally so. The prosecutor implemented this strategy by laying stress on the fact that Williams had been indicted, thus inviting the jury to infer Felton’s guilt from the fact that he had been indicted. Clearly, the invited inference was not a permissible one. An indictment is no evidence of guilt of the charges contained therein, as the court’s own instruction noted with respect to Felton’s indictment. Trap Rock Industries, Inc. v. Kohl, 115 N. J. Super. 278 (App. Div. 1971), rev’d 59 N. J. 471 (1971); State v. Orecchio, 16 N. J. 125 (1954).

Although this error might not have been considered prejudicial if coupled with a sufficiently explicit instruction to the jury to ignore it, reference to the disposition of the charges against Williams without any curative instruction constitutes error of such magnitude as to require reversal.

Although the prosecutor was precluded from informing the jury in explicit terms of Williams’ conviction of the Melvin robbery, there is no question but that the repeated references to Williams having been indicted, together with the suggestion that he had been brought to justice earlier in the year, sufficed to convey the fact of Williams’ conviction to the Felton jury. Evidence concerning conviction of a co-defendant is improper. In State v. Costa, 11 N. J. 239 (1953), a case involving the charge of keeping a gambling place, the State produced five codefendants, each of whom had been indicted with defendant for the same offense. Each of those co defendants had been asked by the State whether they had been indicted for the same offense as defendant and whether they had pleaded non vult to that charge. Each had answered both questions in the affirmative. Subsequently, the indictments themselves, which contained notations of the non vult pleas and the sentences imposed, had been received into evidence. With respect to the oral testimony given, the court noted that it was “wholly without probative value against Costa.” The State’s contention that the admission of all five co defendants of their guilt of the same offense of defendant made the latter’s guilt more likely was dismissed by the court as being “utterly devoid of merit.” Id. at 248.

* * * If his plea of non vult be considered as an admission by each of the five of the facts stated in the indictment against him, such admissions, singly or collectively, are not admissions by Costa and therefore are not evidential against Costa unless falling -within some recognized exception to the general rule * * *

This view is consistent with Evid. 22. 63(10) which precludes admission of a statement against a declarant’s penal interest when offered against a defendant in a criminal prosecution. In the present ease, however, Williams did not plead guilty or non vult, and nothing he did can be regarded as an admission concerning his own guilt. A verdict of a jury adjudicating Williams’ guilt can be accorded no greater effect than a plea of non vult or guilty. Moreover, in this case, Williams was not even called to testify, and there was therefore no occasion to inform the jury of his conviction as a permissible means of impeaching his credibility. State v. Costa, supra; State v. Fox, 12 N. J. Super. 132 (App. Div. 1951).

Where two or more persons are jointly indicted for the same criminal offense which is in its nature several, or are separately indicted for such offense or for separate offenses growing out of the same circumstances, and are tried separately, evidence that one defendant has pleaded guilty or has been convicted is, as a general rule, inadmissible as against the other. United States v. Harrell, 436 F. 2d 606 (5 Cir. 1970); LeRoy v. Government of Canal Zone, 81 F. 2d 914 (5 Cir. 1936); People v. Kief, 126 N.Y. 661, 27 N.E. 556 (Ct. App. 1891). In United States v. Toner, 173 F. 2d 140 (3 Cir. 1949), a case charging defendant with several counts of conspiracy, the judge instructed the jury that they could consider the guilty plea of defendant’s co-conspirator in any way they pleased. Although it is not clear as to how the jury learned of the plea, the court held this instruction to bo error, stating:

From the common sense point of view a plea of guilty by an alleged fellow conspirator is highly relevant upon the question of the guilt of another alleged conspirator. If A’s admission that he conspired with B is believed, it is pretty hard to avoid the conclusion that B must have conspired with A. This is one of the cases, therefore, where evidence logically probative is to be excluded because of some countervailing policy. There are many such instances in the law * * * The foundation of the countervailing policy is the right of every defendant to stand or fall with the proof of the charge made against him, not against somebody else. Acquittal of an alleged fellow conspirator is not evidence for a man being tried for conspiracy. So, likewise, conviction of an alleged fellow conspirator after a trial is not admissible as against one now being charged. The defendant had a right to have his guilt or innocence, determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else * * * [at 142]

Accordingly, and with few exceptions, the universally accepted rule has been that statements of coeonspirators made outside the presence of defendant are not admissible against him, unless made during the progress of the conspiracy and in furtherance of its objects. Scarborough v. United States, 232 F. 2d 412, 415 (5 Cir. 1956). It is perhaps even clearer that unless the charge is conspiracy, the statements of a codefendant made outside the presence of the defendant on trial are never admissible as being against penal interest. United States v. Harrell, supra 436 F. 2d at 616. As to defendant on trial, such statements are hearsay. See also, State v. Pikul, 150 Conn. 195, 187 A. 2d 442 (Conn. Sup. Ct. Err. 1962) (admission of co defendants’ testimony that they had pleaded guilty, held improper and highly prejudicial); Gray v. State, 221 Md. 286, 157 A. 2d 261 (Ct. App. 1960) (evidence of codefendant’s conviction and sentence, held reversible error); Commonwealth v. Thomas, 443 Pa. 234, 279 A. 2d 20 (Sup. Ct. 1971) (evidence of eodefendant’s conviction, held error but not prejudicial in' light of overwhelming evidence of guilt). 2 Wharton, Criminal Evidence (12 ed. 1955), § 439; Annotation, 48 A.L.R. 2d 1016.

In United States v. Baete, 414 F. 2d 782 (5 Cir. 1969), Lindsey, Baete’s codefendant in the Dyer Act prosecution, testified without objection and without request for a limiting instruction that he (Lindsey) had earlier pled guilty to the charges. The judge, sua sponte and without request, charged the jury not to consider Lindsey’s guilty plea in determining the innocence or guilt of Baete. The Circuit Court affirmed because of the sufficient instruction given, noting:

In cases where the jury bas become aware of a codefendant’s guilty plea, we think the appellate court should carefully focus its attention on the sufficiency of the corrective instruction. * * *
We recognize the fact that there may be aggravated circumstances in which the strongest corrective instruction would be insufficient, as, for example, where the guilty plea of one eodefendant necessarily implicates another or others. However, in the absence of such circumstances, we think that a clear and strong cautionary instruction should be deemed sufficiently curative. * * *

The court in Harrell concluded with the following observation:

Again, we decide only the case before us. But we think that the evidentiary purpose ordinarily to be served by proof of a eodefend-ant’s plea of guilty is so shadowy, so insubstantial that it would be the better practice in run-of-the-mill cases to exclude such proof altogether.

Nowhere in his charge did the trial judge clearly instruct the jury to disregard the fact that Williams had been indicted and convicted of the same robbery. In all fairness to the judge, it should be noted that his failure to so charge probably stemmed from the circumstance that this information was convoyed to the jury by way of innuendo (that Williams had been brought to justice), and he did not wish to compound the error. Nonetheless, the net result is that the jury went uninstructed in this regard. The instruction that the jury should not be concerned with the disposition of the charge against Williams is patently insufficient to correct the prejudicial effect of this information.

The case submitted to the jury concerned primarily an issue of credibility —■ whom the jury was to believe, the victim Melvin or defendant Felton. Felton did not deny being with Melvin on the night of the robbery. The ease did not therefore involve an identification issue. Felton admitted there had been a fight. The only issue for the jury to decide was whether they would believe the alleged victim’s version of what had transpired or Felton’s. The State suggests that Fel-ton’s own version of the incident establishes that he robbed Melvin. Thus, it is noted that Felton testified that he and Melvin had a fight and thereafter Melvin repaid him $10 on the debt owed. The jury could have concluded, but did not have to, that such conduct constituted a robbery. At any rate, such testimony, if believed, would not have constituted armed robbery for which Eelton was convicted. This is not a case, therefore, where the' proof of defendant’s guilt can be regarded overwhelming. In this context the evidence of Williams’ conviction for the same offense, particularly in light of defendant’s testimony tying Williams’ innocence to his own, was prejudicial and clearly capable of producing an unjust result. R. 2:10-2; State v. Tirone, 64 N. J. 222, 227 (1974).

We, therefore, reverse the conviction and remand the ease for a new trial. Because of this decision, we need not pass on the other claims of error raised in this appeal.


text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH SMITH, MICHAEL RYTELEWSKI, HERBERT DOLAN AND JAMES W. HYRES, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1974 —
    Decided December 6, 1974.

      Before Judges Michels, Moegah and Demos.

      Mr. Joseph J. Rodgers, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).

      Mr. Robert F. Levy argued the cause for appellant Smith.

      Mr. Paul J. Feldman argued the cause for appellant Rytelewski (Mr. Charles Frankel, attorney).

      Mr. Theodore J. Labrecque, Jr. argued the cause for appellant Dolan (Messrs. Labrecque, Parsons & Bassler, attorneys).

      Mr. James J. McLaughlin argued the cause for appellant Hyres (Messrs. McLaughlin, Abbotts & Cooper, attorneys; Mr. Roland R. Formidoni, on the brief and on the appendix).

       The court ruling: “* * * Nevertheless, [despite absence of demand for trial] under the highly unusual circumstances present here, the slightest proof of embarrassment occasioned by the delinquency of the prosecution might well, I am sure, have [altered] our decision in O’Leary’s favor.” [25 N. J. at 112; emphasis supplied]. Even this quest for an affirmative showing of prejudice as a necessary condition to a dismissal on speedy trial ground is now eliminated under Moore v. Arizona, supra.

   The opinion of the court was delivered by

Morgan, J. A. D.

Defendants, public officials of Jackson Township, appeal from an order, entered October 26, 1973, dismissing without prejudice Indictment 289-71 charging them in 14 counts with conduct amounting to extortion, misconduct in office and conspiracy to commit some or all of those offenses. Defendants Rytelewski, Dolan and Hyres also appeal, pursuant to leave granted, from an interlocutory order of April 19, 1974 denying their motions for a judgment of acquittal with respect to Indictment SGJ 14-73-2, charging them with the same offenses with which they were charged in Indictment 289-71 which had previously been dismissed without prejudice. With respect to both indictments defendants contend that their rights to a speedy trial guaranteed by N. J. Const. (1947), Art. I, par. 10, and the U. S. Const., Amends. VI and XIV, and implemented in B. 3:25-2, have been violated by the orders from which they are here appealing.

The events germane to this appeal commenced oh March 3, 1971 when the Ocean County grand jury returned In-tiótment 158-70 against five defendants charging them with the offenses described above, which were alleged in the 14-count indictment to have occurred between December 1, 1969 and August 1, 1970. The matter was first scheduled for trial on October 18, 1971 and then was rescheduled for October 26, 1971. Although all counsel appeared on both dates, the case was not tried.

Thereafter, the State resubmitted the case to the grand jury, which on January 14, 1972 returned a superseding indictment, No. 289-71, virtually identical to the previous indictment, and one of the two indictments here under consideration. The previous indictment, 158-70, was not, however, ordered dismissed until April 19, 1972, i. e., after the trial court, at the State’s request, had dismissed the superseding indictment No. 289-71, without prejudice.

The case was next listed for trial on February 14, 1972, this time under its new designation, No. 289-71, but was again not tried. It was thereafter scheduled for trial on March 27, 1972, not moved, and relisted for April 10, 1972. On that date the State requested an adjournment indicating that it was unprepared to proceed, and the court, over objection of defendants Dolan and Hyres, adjourned the matter until Monday, April 17, 1972, following a conference with the assignment judge.

On April 14, 1972, three days before the peremptorily scheduled trial date, the State moved to have Indictment No. 289-71 dismissed without prejudice on the ground that new developments in the case required further investigation. All defendants, except Smith, objected, requesting instead judgments of acquittal. The court granted the State’s motion on that date, although the order reflecting this dismissal was not entered until October 26, 1973, almost 18 months after the decision granting it. Defendants appeal from this order, contending that its entry violated their constitutionally guaranteed rights to a speedy trial.

All adjournments were secured by the State. No defendant ever requested an adjournment and at every scheduled trial date all defense counsel appeared presumably ready to proceed with the trial.

Following the dismissal of April 14, 1972 the matter remained in a quiescent state. On May 16, 1973, 13 months later, the state grand jury returned Indictment SGJ 1A-73-2 charging defendants with having committed the same offenses as were charged in the preceding two indictments. No dates were assigned for the trial of this indictment, and on April 19, 1974 defendants moved for a judgment of acquittal. The court denied this motion and, pursuant to leave granted, defendants appeal from the order. The appeals concerning the two orders were consolidated for consideration by this court.

Defendants contend that from the inception of the charges against them in March of 1971, when Indictment No. 158-70 was returned, they have been subjected to a series of delaying tactics on the part of the State precluding disposition of these charges for about a 3 -year period of time. They point to the promptness with which charges were brought and the State’s unconscionable delay in seeking their resolution. Time and time again, defendants had appeared for a series of scheduled trial dates, ready and eager for a trial of the charges levelled against them, only to be met by one excuse or another by the State as to why the ease could not conveniently be tried. As a result they have been forced to live under a humiliating penumbra of suspicion and distrust generated by these unresolved charges which question their personal and professional integrity, suitability for public service and their general worth as individuals. In short, they contend that the interests sought to be protected by the right to a speedy trial have been undermined and that, therefore, the charges should be dismissed.

Although an accused’s right to a speedy trial has been held to be a fundamental one, the criteria by which its scope is to be judged have only recently been redefined. Moore v. Arizona, 414 U. S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); Strunk v. United States, 412 U. S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973); Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Klopfer v. North Carolina, 386 U. S. 213, 87 Sup. Ct. 988, 18 L. Ed. 2d 1 (1967). In Barker the court observed the “impossibility” of determining with precision when an accused’s right to a speedy trial has been denied. How long is too long, the central inquiry, cannot be answered by sole reference to the lapse of a specified amount of time between indictment and trial, or lack of trial.

We find no constitutional basis for bolding tbe speedy trial right can be quantified into a specified number of days or months. [407 U. S. at 523, 92 S. Ct. at 2188, 33 L. Ed. 2d at 113]

Thus, in Barker a delay of five years between indictment and trial was held not violative of Barker’s right to a speedy trial, where as in Klopfer, under an unusual state procedure, a delay of 18 months was held violative. In Strunk the lower court held that a delay of ten months violated defendant’s right to a speedy trial, although the Súpreme Court had no opportunity to pass on the correctness of that determination because the state had not appealed it.

The courts in Hew Jersey have experienced a similar inability to calculate the extent of tolerable delay with anything approaching mathematical exactitude. Thus, in State v. Coolack, 43 N. J. 14 (1964), an indictment charging murder was ordered dismissed after a delay of approximately 12 years where witnesses had died in the interval. In State v. Smith, 10 N. J. 84 (1952), the court refused dismissal following a delay of approximately six years between indictment and the motion to dismiss. In State v. O’Leary, 25 N. J. 104 (1957), the court refused to vacate a conviction based upon a trial held 22 years after the return of an indictment. Application for dismissal based upon a nine-year delay between indictment and trial was denied in State v. Von Atzinger, 81 N. J. Super. 509 (App. Div. 1963).

Rejecting a rigid approach in favor of a flexible one to the troublesome problem created by trial delays, the court in Barker adopted a so-called “balancing test” to determine compliance with constitutional requirements. This test is to be applied to each speedy-trial case on an ad hoc basis, and requires the consideration and weighing of four factors in evaluating a claim that an accused’s right to a speedy trial has been violated. They are: length of delay, the reason for the delay, defendant’s assertion of his right, and prejudice to defendant. These were only some of the factors which the court in Barker was able to identify as bearing on disposition of speedy trial claims. The list of factors referred to was not intended to be an exhaustive one but only illustrative of type of factors properly considered by a court in determining the merits of any speedy trial claim. Each of these, then, will be discussed in the following sections of this opinion in the context of the present case, and the changes in New Jersey law necessarily wrought by Barker v. Wingo, supra, will be identified in appropriate points of the discussion.

First, confining discussion for the moment to the decision of April 14, 1972 dismissing Indictment No. 289 — 71 without prejudice, the time lapse between the indictment and the dismissal without prejudice can be viewed as three months, if measured from the date on which the superseding indictment. No. 289-71, was returned, or 13 months if measured from the date the superseded indictment, No. 158-70, was returned. The State calculates the time lapse by reference to the indictment to be moved (three months), whereas defendants compute the time lapse by reference to the inception of' charges made against them, whatever their form (13 months). Since both the superseded and superseding indictments were both outstanding against defendants on the date the trial court dismissed the superseding indictment without prejudice, we conclude that both indictments, charging the same offenses, must be considered as one for this purpose, and we therefore conclude that a 13-month lapse of time intervened between indictment and the last scheduled trial date for Indictment No. 289-71.

We have termed this 13-month lapse of time between indictment and the dismissal as á time lapse and not a delay bécause, quite obviously, trial of matters charged in an indictment cannot be held immediately following its return. Time must be allotted for arraignment, retention of counsel, investigation, discovery and preparation for trial, and the like. In addition, some consideration must be given to pressures of the trial calendar. Thus, some undefined period of time following indictment cannot, with justice, be considered delay in assessing the validity of any speedy trial claim. The permitted period of time, here too, cannot be quantified with respect to all eases. The special circumstances inherent in each case being considered must govern in this regard. Simple street crimes involving only one defendant and few witnesses may take less time to bring to trial. Complex criminal charges, such as the ones here involved, concerning multiple defendants and multiple but related charges, may take a substantially longer period of time to reach the point of trial readiness. Barker v. Wingo, supra.

The first date upon which Indictment No. 289-71 (then No. 158-70) was scheduled for trial was October 18, 1971 and, following an adjournment requested by the State, was rescheduled for October 26, 1971. No defendant sought any earlier trial date. Thus, in adjudging the validity of the April 14, 1972 dismissal without prejudice, the “delay” as of that time must be regarded as no moré than six months.

Passing now to the second aspect of the “balancing test” to be applied, the reasons given by the State to justify this delay are less than wholly satisfactory, although special circumstances did exist to at least partially explain what happened. First, the State refers to the fact that it became necessary to replace the county prosecutor, who had been charged with responsibility fox' preparation and trial of the case, with a deputy attorney general because of a conflict of interest which had arisen or become identified. That substitution required a new attorney to familiarize himself with a file in this complex and difficult case of some public importance. According to the best estimates of all parties, this substitution occurred in March or April of 1972, shortly before the dismissal here being appealed from. Furthermore, in its application to dismiss Indictment No. 289-71, the State informed the court of new information concerning the case which required further investigation. During oral argument on appeal the State represented to this court that what was really involved was the possibility of one of the defendants appearing as a witness for the State against his codefendants. Following the dismissal, the State engaged in several months of negotiation with this witness with ultimate lack of success. Nonetheless, the State felt obliged to make the attempt at the time, and accordingly sought and obtained the dismissal without prejudice.

With respect to the third factor to be considered in applying the balancing test, defendants’ assertion of the right to a speedy trial, the State contends that defendants’ failure to move for a date certain after the indictment was six months old, pursuant to B. 3:25-2, forfeited their right to complain of a trial delay. We disagree with that proposition insofar as it suggests that a defendant may only assert his demand for a speedy trial under the rule by way of formal motion. B. 3:25-2 provides:

At any time after 6 months following the return of an indictment or the filing of an accusation, the Assignment Judge may, on his or on defendant’s motion, direct that the trial thereof bo moved upon a specified day. Upon failure of the prosecuting attorney to do so, the Assignment Judge may order the indictment or accusation dismissed. The dismissal shall be equivalent to a judgment of acquittal.

The foregoing rule does not require formal motion by an accused for a date certain as a condition to a discretionary dismissal equivalent to an acquittal. The assignment judge may set such a date, and failure of the State to move the case for trial on the appointed date permits the assignment judge to exercise his discretion as to whether the case should be dismissed. Moreover, Barker clearly implies that an accused’s demand for prompt trial can be asserted by objection made to continuance requested by thei State, if he otherwise presents himself as ready, able and willing to proceed.

We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances * * *. [407 U. S. at 536, 92 S. Ct. at 2195, 33 L. Ed. 2d at 120]

B. 3:25-2 should, therefore, now be read to permit compliance with its terms by a defendant’s objection to the State’s request for an adjournment after trial date has been set by the assignment judge.

Hence, where an assignment judge undertakes on his own motion to fix a date certain for trial, such action relieves defendant of any obligation to file a formal motion seeking the same trial date. Procedural requirements are not to be construed to require superfluous applications. An accused is entitled to rely on a peremptory trial date set by the assignment judge for the county. Objection to an adjournment of a trial after such a date has been set evidences his demand for a prompt trial sufficient to satisfy the requirements of B. 3 :25-2 if he otherwise shows himself ready and able to proceed to trial on the scheduled date.

Barker does not mandate the invalidity of B. 3:25-2. This rule merely sets forth one basis upon which speedy trial claims can be evaluated, and it possesses continued validity, despite Barker, as long as it is not regarded as the only basis for adjudicating speedy trial claims. A defendant proceeding under B. 3 :25 —2 enjoys the advantage of shifting to the 'State the burden of adequately and su-fieiently explaining reasons for a requested delay where trial date has been set by the assignment judge. In the absence of such an explanation the, trial court’s discretion would, in most circumstances, require dismissal.

To dispel any possible confusion with respect to the effect of Barlcer on pre-existing New Jersey decisional law, however, it must be noted that the oft-repeated rule (sometimes referred to as the demand-waiver rule), that a.n accused waives his right to a speedy trial by failing to demand one, is no longer the law. Barlcer explicitly held:

We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court [407 U. S. 529]
to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection. [407 U. S. at 528-529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 115-116]

It is, therefore, no longer valid to define an accused’s right to a speedy trial simply in terms of his right to demand one. See, e.g., State v. Masselli, 43 N. J. 1 (1964); State v. Coolack, supra; State v. Smith, supra. No new definition of this right was offered in Barker, and we have been no more successful In devising one that would be completely acceptable in alL possible circumstances. The right is a relative one, to be defined only in terms of the decisions adjudicating claims of its violation, each requiring a functional analysis of the right in the context of each case presented and with respect to the several suggested considerations described in Barker. Barker described “the speedy trial” right as being “slippery,” “amorphous” and “vague,” but the consequent difficulties attendant upon its enforcement do not in the least detract from the vital and fundamental role it fills in protecting an accused against unfairness in trial procedure stemming from delays-between indictment and trial.

Despite verbal adherence to the rule implying a waiver of a defendants right to a speedy trial from his failure to demand one, the Yew Jersey courts have not, in their decisions, always been that restrictive. In State v. Coolack, supra, for example, a 12-year indictment charging murder was dismissed in absence of any demand for a speedy trial because of a finding that the death of witnesses had prejudiced defendant in defending against the charge. In State v. Slobiski, 100 N. J. Super. 590 (App. Div. 1968), a dismissal of an indictment following a three-year delay was upheld as a proper exercise of the court’s inherent power to control its own calendar. Even in State v. O’Leary, supra, where the question of a 22-year indictment was raised following trial and conviction, the court refused to reverse the conviction on speedy-trial grounds because defendant had not even claimed prejudice from the delay, and the court, on its own inquiry, was unable to perceive any. Pailure of the defendant to make demand during the period of delay, although certainly regarded as a factor, as it was in Barker, was not dispositive.

There have, however, been several cases in this State in which the failure of the accused to demand trial has been reluctantly regarded as virtually dispositive of his speedy trial right. State v. Smith, supra, provides the best example of rigid adherence to the demand-waiver rule. In that ease the court refused dismissal of a six-year old indictment because defendant had failed to move for an order fixing a date certain for trial, although the record did suggest that he had made more informal requests for trial. The decision in State v. Von Alzinger, supra, was based squarely upon State v. Smith, supra, and the court refused to honor defendant’s motion for dismissal of the 3y2-year old charge because demand had not been made for a date certain. In State v. Dandridge, 37 N. J. Super. 144 (App. Div. 1955), a delay of nine years was tolerated primarily because of a failure to demand trial, although the decision did note that no prejudice had been shown. In State v. Appice, 23 N. J. Super. 522 (App. Div. 1952), aff’d 13 N. J. 286 (1953), the court was constrained to deny defendant’s claim of a speedy trial violation on the basis of his failure to demand trial plus absence of prejudice, despite its observation that “[t]he long delay here [4J4 years] is not consonant with constitutional safeguards and the minimum concepts of justice.” Id. at 530.

To the extent that these cases and others like them rest decision upon a defendant’s implied waiver of his right derived from his failure to demand prompt trial, they no longer represent the law and should be abandoned as precedent.

In the present case the record clearly discloses that defendants vigorously objected to the adjournment sought by the State on April 10, 1972 and to the dismissal without prejudice sought three days before the next scheduled trial date, and such objections constitute in our view demands for trial although made only seven days before the dismissal complained of.

Finally, with respect to the last factor to be considered in applying the balancing test, prejudice to the defendants, defendants candidly admit, even as of the September 1974 argument date, that they know of nothing which has occurred to hamper their ability to defend against the charges made. The only prejudice claimed is by defendant Hyres, who has submitted affidavits to this court attesting to adverse economic and professional consequences to him flowing from his continued exposure to serious criminal charges. These, however, bjr their very terms refer to events occurring May of 1973, more than a year following the decision of which he now complains, and they cannot therefore be considered in evaluating whether his right to a speedy trial was violated by dismissing Indictment No. 289-71 more than a year before. After careful consideration of the factors discussed above, we are forced to conclude that defendants’ rights to a speedy trial were not violated by the order dismissing Indictment No. 289-71 without prejudice. The delay was not an inordinately long one, even when measured from the inception of the charges and not from the return of the indictment dismissed. The charges are multiple and complex, and the conduct of several defendants is involved. Circumstances did intervene to at least partially explain and justify the delay. Defendants did not vigorously assert their demands for a prompt trial until shortly before the dismissal complained of. Einally, defendants admit they have not been prejudiced in their ability to defend against the charges.

We reach the same conclusion with respect to the appeal from the order of April 19, 1974 denying defendants’ motion for a dismissal of Indictment SGJ 1L-73-2, with prejudice. The state grand jury indictment was returned on May 16, 1973, almost 13 months after the decision dismissing the prior indictment without prejudice. During that hiatus defendants were free of all charges relating to this matter, although they continued to live with the persistent threat of a revived prosecution for these offenses because of the nondispositive nature of the prior dismissal. The motion for an order dismissing that indictment was brought less than a year after the indictment’s return, during which time defendants made no effort to secure or demand a prompt trial. To the contrary, according to representations made to this court during oral argument, defendants were content to await the result of the appeal from the prior order of dismissal without prejudice which was then pending, and that is why Indictment SGJ 14-73-2 was not moved for trial. They were, in short, hoping that there would be no trial. They are in no position to complain that the State acquiesced in this course of conduct.

The affidavits submitted by defendant Hyres attest to economic loss stemming from the return of Indictment SGJ 14-73-2 rather than from any delay in disposing of this or the previous indictments. At any rate, the absence, of prejudice or its presence in the form of adverse economic consequence deos not constitute a significant basis for the present decision.

By this decision we hold only that under all the facts and circumstances of this ease and in accordance with federal constitutional standards, defendants’ rights to a speedy trial have not been violated by the orders appealed from. We do- not wish to be understood, however, as condoning what occurred in this case. The charges against these defendants were brought over 3 y2 years ago and have yet to be disposed of. It is true that for over a year of that period of time, no charges were pending and there were therefore no charges to be tried. It is also true that during a substantial part of that time the State and defendants were awaiting resolution of this appeal. Continuing investigation by the State in hopes of strengthening its ease against defendants also accounts for some part of the delay. Nonetheless, the net result to defendants and to the public is that charges arising out of conduct alleged to have taken place in 1970 have yet to be resolved. We therefore take this opportunity to stress the imperative necessity of disposing of all criminal charges with as much dispatch as is reasonably possible in the circumstances of the particular case. Where such charges cast doubt upon the integrity and honesty of public officials in their official calling, the necessity for prompt disposition becomes even more manifest. Considerations of simple humanity and compassion -toward persons so charged, as well as the dictates of fundamental justice and the public need to obtain prompt resolution of such charges, require the State to press these matters for trial with all deliberate speed. It is as much the State’s obligation to dispose of charges expeditiously as it is to bring them, and when the charges are of such a nature as to expose those subject to them to public scorn, embarrassment and adverse financial consequences, any dereliction in the State’s duty in this regard warrants disapproval.

The orders of October 26, 1973 and April 19, 1974 are affirmed, and the assignment judge is directed to schedule trial with- all reasonable dispatch.

       The New Jersey courts have consistently considered claims of prejudice resulting from a delay between indictment and trial, even when applying the demand-waiver rule. State v. Coolack, supra; State v. O’Leary, supra; State v. Dandridge, supra; State v. Appice supra. Although prejudice resulting from a delay is a factor mentioned by Barker to be considered in determining speedy trial claims, an affirmative showing thereof is not a necessary element in the proof of denial of the constitutional right to a speedy trial. In short, a violation of an accused’s right to a speedy trial can be proven even in the absence of a showing of prejudice.
      Moreover, prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. Moore v. Arizona, supra.

       We are evaluating the order entered on October 26, 1973 as of the date the court’s decision was orally rendered, some 18 months earlier. No additional applications were made to the court between those two dates, and we regard the written order as merely reflective of a decision already made and relied upon by the parties.

       The record, however, discloses some activity with respect to SGJ 14 — 73-2. Defendants were apparently pursuing discovery, and in connection therewith made applications to the court. There is no indication that any date was assigned for the trial of the matter or that defendants took any steps to obtain a date for trial.