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

text:
      IN THE MATTER OF APPEAL OF JOHN E. DARCY, INSPECTOR, MOTOR VEHICLES, DIVISION OF MOTOR VEHICLES, ON HIS REMOVAL.
    Superior Court of New Jersey Appellate Division
    Argued March 23, 1971
    Decided May 4, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. Robert A. Coogan argued the cause for appellant (Messrs. Sating, Moore, O’Mara & Coogan, attorneys).

      Mr. David S. Litwin, Deputy Attorney General, argued the cause for respondent (Mr. Stephen Shillman, Assistant Attorney General, of counsel; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

John E. Darcy appeals from a final order and judgment entered by the Civil Service Commission, affirming the termination of his services by the Division of Motor Vehicles, Department of Law and Public Safety.

We now consider the particular points made by Darcy on this appeal.

I

Darcy contends that the not guilty verdict in his trial on criminal charges of nonfeasance in office acts as a collateral estoppel of matters pending before the Civil Service Commission.

The law is to the contrary. The quantum of proof in a criminal trial is different from and higher than that in proceedings before an administrative agency. In the former the proof must establish guilt beyond a reasonable doubt; in the latter, "it is only necessary to establish the truth of the charges by a preponderance of the believeable evidence and not to prove guilt beyond a reasonable doubt.” Atkinson v. Parsekian, 37 N. J. 143, 149 (1962). It has been held that the acquittal of a member of the bar following trial of a criminal indictment is not res judicata in a subsequent disciplinary proceeding based on substantially the same charge or conduct. The basis for the holding was that the quantum of proof is lower in the latter than in the former criminal trial. In re Pennica, 36 N. J. 401 (1962).

In Freudenreich v. Mayor, &c., Fairview, 114 N. J. L. 290 (E. & A. 1935), a police officer was found guilty of unbecoming conduct and dismissed from office. The unbecoming conduct was based on a charge that he carried on an illicit relationship with one J. L., an unmarried woman, as a result of which an illegitimate child was born. Some months prior to the departmental hearing he had been prosecuted and acquitted in the criminal court of Bergen County in a filiation proceeding that arose out of the same alleged illicit relationship. It was held that the doctrine of res judicata was clearly not applicable.

See Helvering v. Mitchell, 303 U. S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938), holding that an acquittal of income tax evasion would not bar a suit by the government to recover a tax deficiency which had been alleged in the criminal action.

So also in the instant case, Darcy’s acquittal of the criminal charges does not preclude a finding by the Civil Service Commission of conduct unbecoming an officer, sufficient to warrant termination of his public employment.

II

Darcy’s next point is that the testimony of those Latin-speaking witnesses who did not appear at the hearing before the Division of Motor Vehicles was improperly received at the hearing before the Civil Service Commission and such testimony should have been stricken.

There is no substantial merit in this claim. The live witnesses who had not testified at the departmental level merely recited other similar instances supportive of the same charges, which remained unaltered.

On appeal to the Civil Service Commission from a departmental determination a hearing de novo is held at which all relevant testimony may be introduced. Campbell v. Dept. of Civil Service, 39 N. J. 556, 561; East Paterson v. Civil Service Dept. of N. J., 47 N. J. Super. 55, 64 (App. Div. 1957). It is not a new hearing “on the record” below, but a new plenary hearing at which evidence and testimony are presented. The de novo hearing before the Commission on an administrative appeal is limited to the charges made below, West New York v. Bock, 38 N. J. 500, 522 (1962), but it is not confined to the precise testimony below.

III

It is next argued that the opinion of the Division’s handwriting expert was based upon an improper foundation and thus should have been stricken.

Where identification of handwriting is in issue and reliance is placed on the opinion testimony of an expert, such identification may be established by a comparison of the disputed writing with an admitted or proven genuine as the standard of comparison. 29 Am. Jur. 2d, Evidence, § 806. The genuineness of a standard may be shown by the testimony of an eyewitness to its execution. Annotation, “Genuineness of Exemplar-Proof,” 41 A. L. R. 2d 575, 584, § 6 (1955), or it may be shown by a witness who through business transactions with the person having made the signature had obtained personal knowledge of the party’s handwriting. Storm v. Hansen, 41 N. J. Super. 249, 254 (App. Div. 1956).

In this case the witness Lynch, a co-worker of Darcy, was qualified to identify Darcy’s signature. Lynch’s identification of Darcy’s signature on various writings used in the performance of routine, day-to-day administrative work in the Division of Motor Vehicles qualified him to testify to genuineness of the signatures usable as standards of comparison. This is so even if Lynch never personally saw Darcy sign his name. It is proof by circumstantial evidence. Cf. Hoisting Machinery Co. v. Goeller Iron Wks., 84 N. J. L. 504, 507 (Sup. Ct. 1913). Darcy stipulated that he had signed various documents in evidence. The authenticity of those signatures remains undisturbed. The expert’s “comparison of hands” was properly admitted. The weight and probative value of his testimony were for the hearing officer.

There was no error as to this aspect of the case.

IV

It is next asserted on Darcy’s behalf that the conclusion of the hearing officer that Darcy’s testimony was not credible is not supported by the record.

Darcj1- refers to comments by the Commissioner that (1) “Mr. Darcy * * * spoke very nicely on the witness stand and presented himself most favorably,” and (2) “As far as Mr. Darcy is concerned, I regard him afe an intelligent man.” These comments as to nice speech, favorable presentation and intelligence do not negate or render inconsistent a finding that Darcy was “not credible.” His defense was essentially a denial of testimony sworn to by others. Eor example, he denied ever having seen “Pipo” or “Risa,” who collected money from the Latin-Americans for getting them licenses without taking the tests. In rebuttal, the Division presented Alexander Binaco, a tavern owner in Eatontown, who testified that he had often seen Darcy and “Pipo” in his bar at the same time.

The issue of credibility was the most important factor in this case. “In such a context the conscientious conclusion of the trier of the facts as to which witnesses were more worthy of belief must be given great weight and accepted by the appellate tribunal unless clearly lacking reasonable support.” Abeles v. Adams Engineering Co., Inc., 35 N. J. 411, 427 (1961). We cannot say that the hearing officer’s appraisal of Darcy’s lack of credibility was clearly without reasonable support.

V

We have reviewed the record and find the hearing officer’s conclusions supported by substantial credible evidence. We do not agree with Darcy’s assertion that the findings and conclusions are against the weight of the evidence. Nor do we subscribe to his allegation that they “are not the product of an independent, detached review of the evidence.”

VI

Darcy argues that he was denied a public hearing and effective assistance of counsel at the hearing before the appointing authority and this vitiates that body’s findings.

In the first place, this appeal is from the hearing before and decision by the Civil Service Commission. There was a plenary de novo hearing before the Commission. Alleged procedural deficiencies attendant upon the departmental prior hearing must be considered cured by the later hearing. 1 Davis, Administrative Law, § 7.10 at 448-452 (1958).

Moreover, the alleged deficiencies lack merit. At the time of the departmental hearing there was no regulation in existence requiring a hearing within 30 days, as now required by N. J. A. C. 4:5-15. Nor is there any evidence that the hearing was deliberately closed to the public.

As to Darcy’s request for an adjournment to seek counsel, the request was justifiably denied. Darcy had had notice of the charges for over a month and had failed to retain an attorney. The grant of continuances is a matter within the sound discretion of the hearer. We find no abuse of discretion under the circumstances herein.

VII

The final point presented for a reversal is that the two-year delay between the departmental hearing and the hearing before the Civil Service Commissioner unduly prejudiced Darcy.

The Commissioner delayed the hearing until there was a final determination of the criminal charges against Darcy. A conviction would have obviated any need for a lengthy hearing. During this time, the Division’s major witness, one Sgt. Eraealossy, died.

Darcy nowhere indicates how he was prejudiced by the delay and death of Eraealossy. He states that he would have “definitely” called him, but he does not indicate “why.”

Delay will not, generally, affect the validity of administrative decisions. 1 Davis, Administrative Law, § 8.08 at 548 (1958). Cf. Irish v. S. E. C., 367 F. 2d 637 (9 Cir. 1966); Gearhart and Otis, Inc., v. S. E. C., 121 U. S. App. D. C. 186, 348 F. 2d 798 (1965). Here, the delay on its face was primarily to protect Darcy and was reasonable. No prejudice having been shown, the determination is unaffected thereby.

We affirm essentially for the reasons set forth in the decision rendered by Civil Service Commissioner Jack Bailan. The findings of fact therein are supported by substantia] and adequate evidence. The legal conclusions based thereon have been properly made. Under the limited scope of our judicial review, we may not upset a determination by the Commission “in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the civil service act.” Campbell v. Dept. of Civil Service, supra, 39 N. J. at 562. No such showing has been made in this case.

The order and judgment of the Civil Service Commission are affirmed.


source: Caselaw Access Project

author: Lane, J. A. D.

license: Public Domain

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 1959, AN UNINCORPORATED ASSOCIATION, APPELLANT, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION, CITY OF JERSEY CITY, A MUNICIPAL CORPORATION, AND JERSEY CITY PUBLIC WORKS EMPLOYEES, INC., LOCAL 245, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 27, 1971
    Decided May 4, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. Abraham, L. Friedman argued the cause for appellant (Messrs. Roihbard, Harris & Oxfeld, attorneys; Mr. Emil Oxfeld and Mr. Friedman, of counsel).

      Mr. Theodore A. Winard, Deputy Attorney General, argued the cause for respondent Public Employment Relationsi Commission (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Winard, of counsel, submitted statement in lieu of brief).
    No brief was filed on behalf of respondent, Jersey City Public Works Employees, Inc., Local 245.
   The opinion of the court was delivered by

Lane, J. A. D.

American Federation of State, County and Municipal Employees, AFL-CIO, Local 1959 (Local 1959) appeals from a Supplemental Decision and Certification of Representative by the Public Employment Relations Commission (PERC).

As a result of petitions filed for certification of representative of certain employees of the Department of Public Works of the City of Jersey Oitv, an election was held May 15, 1969 at the direction of PEEO. PEEC set aside the election npon objections filed by Local 245. A rerun election was held December 4, 1969 as a result of which the majority of votes were cast for Local 245. This appeal is from the Supplemental Decision of PEEC overruling Local 1959’s objections to the rerun election.

The objections filed were:

(1) At the pre-election conference sponsored by the American Arbitration Association, the rules and procedures for conducting the election were worked out by mutual consent of all parties. One such item of agreement was that there would be no electioneering within 100 feet of the polling place. This rule was flagrantly and almost continuously violated by officers of Local 245 during the entire polling period, (between 7 :30 A.M. and 5:00 P.M.).
(2) In the garage next to the voting room, and connected by an open doorway, officers of and others representing Local 245 freely and openly dispensed alcoholic beverages to eligible voters before and after entering the polling place, as an inducement for votes.
(3) The President of Local 245, Mr. Thomas DeCarlo was afforded special privileges by the employer in that he was permitted to park his personal automobile in the D.P.W. garage within 10 feet of the doorway to the polling area. From time to time he and others representing Local 245 got in and out of his ear and during most of the remainder of voting hours they stood in groups between Mr. DeCarlo’s ear and the doorway to the voting room. By contrast, representatives of and supporters of Local 1959 were required by representatives of the employer to remove their cars which were parked outside at the curb across the street from the building where the voting was taking place.
By these and other acts representatives of Local 245 did engage in conduct which improperly affected the outcome of the above election. The Commission is therefore urged to set aside the above election and reschedule another, taking whatever steps as are appropriate in order to assure that the new election will be conclusive.

The Hearing Officer recommended that Objections 1 and 2 be sustained, Objection 3 he overruled and a third election be directed. The basis of his recommendation for sustaining Objection 1 was stated:

Though there is a temptation to say a plague upon both your houses or to say that conduct by one countervails the conduct of the other, 1 cannot make such a recommendation. The election process is too important a matter for compromise. There must be conduct that does not affect the results of the election. There must be stringent standards.

The basis of his recommendation for sustaining Objection 2 was his belief "that the highest of all standards should be promulgated and maintained. Again, the election process, the heart of Chapter 303 Laws of 1968, must be beyond compromise.”

Local 245 filed objections to the hearing officer’s report and recommendation. PERC overruled the hearing officer as to the objections that had been filed by Local 1959 to the conduct of the election, stating asi to:

Objection No. 1 — As more fully set forth in his Report, the Hearing Officer found that the parties agreed to refrain from electioneering within a 100 feet radius of the polling place, that Petitioner’s President DeCarlo parked his car for a time within the restricted area, that this car bore Petitioner’s campaign stickers, that DeCarlo and his supporters congregated for a time within the restricted area, moved away but later returned and were joined by Intervenor’s representative and his adherents. The Commission does not agree that this conduct is sufficient to warrant setting aside the election. To hold that the act of entry within the restricted area is, without more, a valid objection, would reduce the issue of an election’s legitimacy to a rather mechanical exercise, emphasizing form over substance. In this case the record discloses that representatives and adherents of both organizations did enter within 100 feet of the polling place, but the record fails to disclose that these individuals, once present, engaged in electioneering. Though not a preferred condition, their mere presence is not, per se, electioneering and does not necessarily establish interference with the election process or the voters’ freedom of choice. Concerning DeCarlo’s car and its display of campaign stickers, the record shows that it was parked in the restricted area for a period of time, the duration of which the objecting party and the record as a whole fails to establish, the car was promptly removed when objection was raised, and was moved to a location where the stickers were no longer visible; at least, there is no evidence that voters saw such. Intervenor’s representative Klingensmith states he saw no stickers after the ear was removed. Under all the circumstances the Commission concludes the conduct described does not constitute interference. Accordingly Objection No. 1 is overruled.
Objection No. 2 •— The Commission adopts the Hearing Officer’s findings of fact concerning Intervenor’s Objection No. 2. However, the record is barren of any testimony not only that any voters were inebriated but also that voters were given alcoholic beverages as an inducement or reward for voting for Local 245. Mr. Klingensmith and Mr. Nardolilli testified that they were offered drinks by Petitioner’s representatives. But neither of these two men were eligible to vote. The fact that people were drinking in a garage near a polling place is no basis for setting this election aside absent proof that the dispensing of alcoholic beverages interfered with the voters’ ability to cast their ballots freely without inducement or reward. Moreover, the record fails to establish how many of these “people” were employees on their way to vote. The Commission in no way condones dispensing of alcoholic beverages to voters during an election. However, the Commission must examine the record carefully to determine if the drinking interfered with the voting. In the instant case the Commission finds insufficient evidence of interference with orderly voting due to drinking or dispensing of alcoholic beverages.
For the foregoing reasons, the Commission overrules Jntervenor’s Objection No. 2.

PERG’s standard for its review of the conduct of elections was stated in its decision as follows:

The Commission presumes that an election conducted under its supervision is a valid expression of employee choice unless there is evidence of conduct which interfered or reasonably tended to interfere with the employee’s freedom of choice. Conduct, seemingly objectionable, which does not establish interference, or the reasonable tendency thereto, is not a sufficient basis to invalidate an election. The foregoing rule requires that there must be a direct relationship between the improper activities and the interference with freedom of choice, established by a preponderance of the evidence.

Simply stated, the position of Local 1959 is that there having been an agreement not to electioneer within 100 feet of the polling place, any violation of that agreement without more is sufficient to taint the election. Its position is similar with regard to the dispensing of alcoholic beverages by Local 245. It nrges the adoption of a policy for the review of contested elections based upon an objective standard.

N. J. S. A. 34:13A-6(d) empowers the Commission to resolve questions1 concerning representation “by conducting a secret ballot election or utilizing any other appropriate and suitable method designed to ascertain the free choice of the employees.” There is no additional legislative direction insofar as elections are concerned.

The Rules and Regulations of the Commission contain no specific rules governing the holding of the election. Rule 19 :11-19 merely provides that the election shall be by secret ballot. Rule 19:11-19 (f) allows any party to file objections to the conduct of an election within five days after the tally of ballots.

We turn for guidance to cases decided under the National Labor Relations Act. In N. L. R. B. v. Golden Age Beverage Company, 415 F. 2d 26 (5 Cir. 1969), the court stated:

Certain well established principles guide this inquiry. Most important is the wide discretion Congress has entrusted to the Board in its conduct and supervision of elections, N. L. R. B. v. Huntsville Manufacturing Co., 203 F. 2d 430, 434 (5th Cir. 1953), and the considerable weight which must therefore be accorded the Board’s findings, with judicial review narrowly limited to ascertaining only their reasonableness. N. L. R. B. v. Laney & Duke Storage Warehouse Co., 369 F. 2d 859, 864 (5th Cir. 1966). As this Court said in Pepperell Manufacturing Co. v. N. L. R. B., 403 F. 2d 520 (5th Cir. 1968), cert. denied, 395 U. S. 922, 89 S. Ct. 1774, 23 L. Ed. 2d 238 (May 26, 1969), “Determination whether union representation election was fairly or unfairly conducted and should be set aside is primarily for the National Labor Relations Board. Thus, the only question presented to the Courts in an election review is whether the Board has reasonably exercised its discretion.” 403 F. 2d at 522, citing Neuhoff Brothers, Packers, Inc. v. N. L. R. B., 362 F. 2d 611 (5th Cir. 1967). Because it is for the Board to decide if the conduct charged reasonably tends to interfere with the employees’ free choice, N. L. R. B. v. Dallas City Packing Co., 251 F. 2d 663 (5th Cir. 1958), this Court, in reviewing this decision, “must be slow to overrule a discretionary determination by the Board.” Neuhoff Brothers, Packers, Inc. v. N. L. R. B., supra, 362 F. 2d at 616. Whether this Court would reach the same conclusion as the Board from the conflicting evidence is immaterial, so long as the Board’s finding that the election was fairly conducted is supported by substantial evidence in the record considered as a whole. N. L. R. B. v. Waterman Steamship Corp., 309 U. S. 206, 226, 60 S. Ct. 493, 496, 84 L. Ed. 704, 716 (1940); Universal Camera Corporation v. N. L. R. B., 340 U. S. 474, 477, 71 S. Ct. 456, 459, 95 L. Ed. 456, 462 (1951); Anchor Manufacturing Company v. N. L. R. B., 300 F. 2d 301, 303 (5th Cir. 1962).
Further, in reviewing the Board’s disposition of the Company’s objections to the election, it “must be kept in mind that the burden is on the party objecting to the conduct of the representation election to prove that there has been prejudice to the fairness of the election.” Southwestern Portland Cement Co. v. N. L. R. B., 407 F. 2d 131, 134 (5th Cir. 1969), pet. cert. filed, 37 U. S. L. W. 3444 (May 14, 1969). See also N. L. R. B. v. Ortronix, Inc., 380 F. 2d 737, 740 (5th Cir. 1967) ; N. L. R. B. v. O. K. Van Storage, Inc., 297 F. 2d 74, 75 (5th Cir. 1961). This is a heavy burden; it is not met by proof of mere misrepresentations of physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election. Cf. Southwestern Portland Cement Co. v. N. L. R. B., supra 407 F. 2d at 134; Anchor Manufacturing Co. v. N. L. R. B., supra 300 F. 2d at 303. [415 F. 2d at 29-30]

See also, Bush Hog, Inc. v. N. L. R. B., 420 F. 2d 1266 (5 Cir. 1969); Southwestern Portland Cement Company v. N. L. R. B., 407 F. 2d 131 (5 Cir. 1969), cert. den. 396 U. S. 820, 90 S. Ct 59, 24 L. Ed. 2d 71 (1969); Home Town Foods, Inc. v. N. L. R. B., 379 F. 2d 241 (5 Cir. 1967), and N. L. R. B. v. Laney & Duke Storage Warehouse Co., 369 F. 2d 859 (5 Cir. 1966).

It appears that the National Labor Eelations Board will set aside an election where there is a breach of its rule against electioneering at or near the polls where the electioneering is “sufficient to warrant the inference that it interfered with the free choice of the voters.” Star Expansion Industries Corporation and Local 1968, International Brotherhood of Electrical Workers AFL-CIO, 1968-1 CCH NLRB ¶ 22,243. See also, N. L. R. B. v. Union Carbide Caribe Inc., 423 F. 2d 231 (1 Cir. 1970).

The ultimate test under the National Labor Eelations Act appears to be whether the election wag' fair. The resolution of that question is left to the National Labor Relations Board. National Labor Relations Board v. Mattison Machine Works, 365 U. S. 123, 81 S. Ct. 434, 5 L. Ed. 2d 455 (1961).

The Legislature has left to PEEC the resolution of questions concerning representation, including the manner in which elections are to be held. The Commission has by its decision in this case adopted a policy based upon a subjective standard; namely, that elections will not be set aside unless the objector carries the burden of proving that there was conduct which interfered with or which reasonably tended to interfere with the employees’ freedom of choice. The decision of the Commission to adopt this policy is not arbitrary or capricious and will not be disturbed by us. Thomas v. Board of Education, Morris Tp., 89 N. J. Super. 327 (App. Div. 1965), aff’d 46 N. J. 581 (1966).

There is substantial credible evidence in the record to support the decision of the Commission under the policy which it has adopted. Atkinson v. Parsekian, 37 N. J. 143 (1962).

Local 1959’s argument that the Commission violated its own rules by disposing of the objections to the hearing officer’s report directly rather than by having it first dealt with by the executive director is without substance.

The Supplemental Decision and Certification of Representative of the Public Employment Relations Commission is affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GARY S. MAIK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 23, 1971
    Decided May 4, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. Harold G. White, Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Alfred M. Bitting, Assistant Prosecutor, argued the cause for respondent (Mr. Dominick J. Ferrelli, Burlington County Prosecutor, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

On June 12, 1970 defendant was found guilty by a jury of murder in the second degree (N. J. S. A. 2A:113-2). He was sentenced to the New Jersey Reformatory for an indeterminate term, but the sentencing judge imposed a maximum of 25 years. N. J. S. A. 30:4-148.

On this appeal defendant contends: (1) the trial court erred in its charge on legal insanity and the availability of this defense; (2) a remark made by the prosecutor in his opening was so prejudicial that it deprived defendant of his right to remain silent; (3) evidence of the use of drugs by defendant should not have been submitted to the jury on the question of defendant’s guilt; (4) the court erred in denying defendant’s motion for a judgment of acquittal, and (5) the trial court erred in its answers to the jury’s questions during its deliberations.

There was evidence from which the jury could reasonably find the following facts.

On October 18, 1969, at approximately 11:30 p.m., the body of John Tomlinson was found lying face down outside a service station in Bordentown. The victim had been stabbed numerous times. A large hunting knife was found next to the body.

The overwhelming evidence presented by the State established that defendant was the one who- had caused the death of John Tomlinson. One of the victim’s shoes was found in an automobile used by defendant; the victim’s blood was in the car and on defendant; the two were together earlier that evening and purchased knives, and defendant admitted to Patrolman Burke that, “This guy was murdered,” and “It is a stabbing,” and “I did it.” Moreover, defendant made no effort to deny commission of the act. Bather, his entire defense was premised upon his mental incapacity when the homicide occurred.

There was testimony as to defendants family history and personal background. Defendant was just 24 years old at the time of the trial on June 10, 1970. He was the second oldest of five children. His father was a musician and teacher. Between the ages of one and eleven defendant and his brothers had lived in 26 different placesi. His parents’ marriage was extremely “incompatible.” They were separated numerous times when he was young and were finally divorced in 1959. His mother had a psychiatric history and was institutionalized a number of times. Defendant was placed in an orphanage on occasion when she was confined. His mother often inflicted physical punishment upon him, striking him with her hand, a broom, or a frying pan. Gary’s older brother, Kenneth, testified as to the family life, summing it up in these words, “* * * to make a long story short we just grew up in a reign of terror and insanity.”

This older brother Kenneth, according to the father’s testimony, had received a medical discharge from the Navy. After four months of service he had “an emotional breakdown,” was transferred to the Naval Hospital in Philadelphia and was confined for four months in the psychiatric ward. He was found to be not adjustable to military life and discharged.

Defendant’s father also acknowledged that he had sought psychiatric help for himself about 1948-1949 and had six visits with a Dr. Zigarelli in Paterson as the result of a court recommendation. However, defendant had not undergone any psychiatric help prior to the incident on October 18, 1969.

During the summer of 1969 defendant and his brother Kenneth were residing in their own apartment in Trenton. Gary was attending Trenton State College as a junior. His personality began to change noticeably. He became more extrovert in his manner and concerned himself with many philosophical pursuits'. During the late summer he had experimented with narcotics. He told his brother Kenneth that he had taken “pot a couple of times * * * pot or marijuana.” He also mentioned “LSD, that he took.” Kenneth became frightened and called Skillman Neuropsyehiatric Hospital, obtained the name of a Dr. Jack Ward and explained the problem to the doctor. Later he went with Gary to see Dr. Ward. In that same summer defendant had an unsuccessful romance with a young lady who resembled his mother.

Three psychiatrists and a psychologist testified as experts on behalf of defendant, and one psychiatrist testified in rebuttal for the State. Significantly, all of the experts agreed that, in all probability, defendant was “legally insane,” not knowing the difference between right and wrong, and was in a psychotic state on the day the homicide was committed. He had related that he believed that he and the victim were being pursued by a narcotics ring.

The experts opined that defendant was a latent schizophrenic and that an event or series of events could have triggered the psychosis. All agreed that his experiences with drugs may have been a dominant factor in precipitating the insanity — defendant’s experts emphasizing LSD and the State’s expert stressing marijuana or “hashish.” They all felt that his romantic encounter may have contributed but was not traumatic enough to be significant.

At the end of the testimony defendant made a motion for a judgment of acquittal, which was denied.

I

Was the trial court’s charge with regard to legal insanity and the availability of that defense to defendant erroneous?

The challenged instruction to the jury was as follows:

Therefore, if you conclude from the evidence that the defendant Gary Maik did kill John Tomlinson on the night of October 18, 1969, but that at the time of the killing, Gary Maik was temporarily insane, and further that his temporary insanity was triggered or precipitated by his voluntary use of LSD and/or Hashish, and its reaction on his mental condition which was predisposed to weakness, then that defense of temporary insanity is not available to this defendant and he is still responsible for his criminal conduct. [Emphasis added]

We deem that instruction erroneous. If defendant were temporarily “legally insane” when he committed the killing, he is not criminally responsible for his act. The unanimous opinion of all the medical experts, for defendant and the State, was to the effect that defendant was legally insane when he killed Tomlinson. Thus, we do not have here conflicting testimony which required resolution of that issue by the jury.

We adhere to the M’Naghten rule, see State v. Lucas, 30 N. J. 37, 68 (1959), and State v. Di Paolo, 34 N. J. 279, at p. 291, under which legal insanity requires that (1) by reason of a defect of reason due to disease of the mind, (2) the accused did not know the nature and quality of the act he was doing, or did not know it was wrong. [State v. Trantino, 44 N. J. 358, 367 (1965)]

The trial judge confused a killing by a legally insane person with a killing by a person whose mental operations have been impaired by voluntary intoxication or use of drugs. In the former, legal insanity is a defense. In the latter, the voluntary intoxication by alcohol or other drugs is not a defense, but it may be shown to mitigate the degree of the crime. The distinction is pointed up in State v. White, 27 N. J. 158 (1958), wherein the court said:

The general rule is that the voluntary use of drugs, like the voluntary use of alcohol, is not a defense to murder {in the absence of mental disease resulting therefrom), although in some situations it may be pertinent with respect to the degree of that crime by negating the existence of the specific intent to kill [at 165; emphasis added]

Noteworthy and applicable herein is the statement above in parentheses. See Schlosser, Criminal Laws of New Jersey (1970), § 4:70.

If defendant was in fact “legally insane” at the time of the offense, his insanity was a defense, even though his prior use of drugs may have triggered or precipitated an underlying psychosis. The trial judge’s instruction would have recognized a new concept of “voluntary insanity,” thereby whittling away the defense of “legal insanity.” To hold otherwise would be to visit criminal responsibility upon a person who did not know, by reason of a defect due to disease of the mind, (1) the nature and quality of the act he was doing, or (2) did not know it was wrong. It has been clearly stated that, if at the time of the killing, the accused, by reason of temporary “insanity” was incapable of distinguishing between right and wrong with respect to the act, he is not guilty of the crime. State v. Lynch, 130 N. J. L. 253, 257 (E. & A. 1943).

The awesome details of the killing add support to the uneontradicted medical opinions that defendant was legally insane at the time of the killing. The victim was a friend, a fellow student at Trenton State College. They had been together from 6 p.m. on the fatal evening. There were in excess of 60 stab wounds.

In Commonwealth v. McGrath, 264 N. E. 2d 667 (Mass. Sup. Jud. Ct. 1970), it is stated broadly that in instruction in a murder prosecution, that the defense of insanity was not available to defendant if the jury found the insanity was caused or induced by his voluntary use of drugs or alcohol, was not erroneous. We do not subscribe to that broad language. There are also distinguishing facts in that case. There, defendant’s insanity was in issue. One expert testified that there was no evidence of mental disease. There was other testimony in that case of the party’s having taken drugs on the day of the murders. In our case there was no proof that defendant was under the influence of drugs voluntarily taken at or shortly before the homicide. His insanity at the time of the offense is conceded by all. His diseased mind having been caused, at least in some measure, by the, prior voluntary use of drugs, should not make him criminally responsible for an act whose quality was unknown to him and which he did not know was wrong when he committed it.

II

The trial court also erred in denying the motion on defendant’s behalf for a judgment of acquittal by virtue of his insanity at the time of the homicide. Here, the State’s expert agreed with defendant’s experts as to defendant’s insanity at the time of the act. In the light of the uncontroverted testimony as to defendant’s insanity, the motion for a judgment of acquittal should have been granted under R. 3:18-1. See State v. Reyes, 50 N. J. 454, 458 (1967), for the test to be applied in passing upon such a motion.

Ill

In view of our determinations above, it becomes unnecessary to consider defendant’s other three points. Suffice it to say, defendant’s third and fourth points lack substantial merit. The remarks of the prosecutor in his opening did not deprive defendant of his right to remain silent. He did remain silent. The trial judge offered to make curative instructions, which offer was refused by defense counsel. See Commonwealth v. Lowery, 440 Pa. 361, 269 A. 2d 724 (Pa. Sup. Ct. 1970). As to the evidence of the use of drugs by defendant, this was adduced by the defense from its own witnesses, lay and expert.

As to the fifth point, the trial court’s additional instructions in answers to the jury’s questions contained some error for the same reasons expressed under I, supra.

The record discloses that there was a pre-trial sanity hearing on April 24, 1970 to determine defendant’s fitness to stand trial. He had been admitted to the New Jersey State Hospital for the Criminally Insane on October 20, 1969 and discharged on April 11, 1970 to await trial. The determination that he was fit to stand trial does not derogate from the conclusion that he was legally insane some eight months earlier, approximately, when the killing occurred.

The judgment of conviction is reversed and the matter is remanded to the trial court for a determination as to whether defendant’s insanity at the time of the commission of the offense continues and, if it does continue, the court shall order him into safe custody and commit him to the New Jersey State Hospital at Trenton until such time as he may be restored to reason. Cf. N. J. S. A. 2A:163-3. If defendant is found to be sane at this time, he should be discharged.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EDWIN McCOY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 20, 1971
    Decided May 4, 1971.

      Before Judges Kilkenny, Halpekn and Lane.

      Mrs. Mary Aurigemma, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley O. Van Ness, Public Defender, attorney; Mrs. Aurigemma, of counsel and on the brief).

      Mr. Edward Roy Rosen, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth

      County Prosecutor, attorney ; Mr. Rosen, of counsel and on the brief).
   The opinion of the court- was delivered by

Halpern, J. A. D.

Defendant was indicted for robbery (not while armed), in violation of N. J. S. A. 2A:141-1. He was charged with having taken $256.67 from the person of Robert Shields. When the jury completed its deliberations, the court clerk erroneously asked them “What is your verdict as to armed robbery?” The foreman responded by saying, “Guilty as charged.” No objection was made to the verdict as returned. However, the judgment entered in the court records was for robbery only.

Defendant was sentenced to an indeterminate term to the New Jersey Reformatory (now Youth Correctional Institution). We were advised at oral argument that he has been released and is now on parole. The appeal is from the judgment of conviction for robbery.

No useful purpose would be served in reciting the facts surrounding the alleged robbery and the events subsequent thereto. Suffice it to say, the State proved all the elements of a robbery except that any money or other thing of value was taken. The State’s argument that the jury could infer that money was taken from the cash register, even though no proof was offered that any money was in it, is specious. State v. Brown, 67 N. J. Super. 450, 458 (App. Div. 1961).

Robbery is the commission of a larceny from the person of another by violence or intimidation. State v. Hoag, 35 N. J. Super. 555, 559 (App. Div. 1955), aff’d 21 N. J. 496 (1956), aff’d 356 U. S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958), rehearing den. 357 U. S. 933, 78 S. Ct. 1366, 2 L. Ed. 2d 1375 (1958). The State having failed to prove the element of larceny, the trial judge should have granted defendant’s motions for acquittal as to the charge of robbery. State v. Reyes, 50 N. J. 454 (1967).

However, since the State’s proofs warranted the jnry’s finding that defendant had used violence and intimidated the victim, the trial judge should have left for the jury the issue of an attempt to commit robbery, in violation of N. J. S. A. 2A:85-5. This would have been proper because a verdict may be rendered for an offense different from the one charged if it is included in the offense charged. 23A C. J. S. Criminal Law § 1400; 5 Wharton's Criminal Law and Procedure, § 2131 at 324 (1957). Thus, it has always been the rule in New Jersey that one charged with a crime may be convicted of an attempt thereof. State v. Mathis, 47 N. J. 455, 463 (1966); 1 Schlosser, Criminal Law of New Jersey (3d ed. 1970), § 8:17.

In charging the jury the trial judge instructed them that they could return one of three verdicts — namely, an acquittal; guilty of robbery, or guilty of an attempt to commit robbery. In doing so he erred. As previously indicated, he should have removed the charge of robbery from the jury, and submitted only the attempt charge.

Since the jury determined defendant was guilty of robbery, it could be assumed that they would have found him guilty of the attempted robbery if properly instructed by the trial judge. The State argues we should mold or amend the jury’s verdict and the judgment entered thereon so that the defendant would be guilty of the attempt. We are without power to do so, because such action would be usurping the jury’s function. See State v. Butler, 27 N. J. 560, 597-598 (1958); Poland v. Parsekian, 81 N. J. Super. 395, 402-403 (App. Div. 1963), certif. den. 41 N. J. 520 (1964).

The other ground of appeal urged by defendant related to the admission of testimony concerning a pretrial identification of defendant by the victim. There was no error in this regard. State v. Edge, 57 N. J. 580 (1971).

The judgment of conviction of robbery is reversed and a new trial ordered limited to the charge of attempted robbery.' Cf. State v. Spagnola, 48 N. J. 326, 332 (1966).


author: Heine, J. S. C.

text:
    THOMAS DOUGHERTY, PLAINTIFF, v. THE HANOVER INSURANCE CO., ET ALS., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 30, 1971.

      Mr. Antonio F. Doganiero for plaintiff.

      Mr. G. Paul Craivshaw for defendants Hanover Insurance Co. and Josephine Conville (Messrs. Taylor, Bischoff, Williams & Marlin, attorneys).

      Mr. James J. Gasby, Jr. for defendant, Mert Francis Con-ville and The Unsatisfied Claim and Judgment Fund Board. (Messrs. Gasby £ Garrigle, attorneys).
   Heine, J. S. C.

Having recovered a judgment against Mert Francis Conville for injuries arising out of automobile negligence, plaintiff brings this insurance coverage action, in the alternative, against Hanover Insurance Co. and the ITnsatsified Claim and Judgment Fund. At the time of the accident Conville was operating his wife’s vehicle, which was insured by Hanover. Prior to trial and following the occurrence of events which are described later in detail, Hanover, citing lack of cooperation, disclaimed all responsibility for either coverage or representation. Thereafter, Conville’s defense was handled by the Fund. The sole issue before the court centers upon an automobile liability assured’s covenants of cooperation.

On March 20, 1964 Conville, driving his wife’s vehicle, struck plaintiff’s automobile under aggravating circumstances — passing through a stop street and crossing three one-way lanes of a major highway before colliding — justifying Conville’s being charged with both careless driving and driving under the influence of intoxicating liquor. The charges required Conville to post bail. Hanover was notified of the accident through Oonville’s personal insurance agent within two days after the event and subsequently reimbursed Conville for the cost of the bail he had posted. Shortly thereafter Hanover sent plaintiff a claim form which he ignored. In the face of that silence Hanover closed its file, only to re-open it about 14 months later when it received a letter of representation from the plaintiff’s counsel.

Plaintiff instituted suit against Conville and his wife, and the summons was served at a Stratford, New Jersey, address where it was believed Conville and his wife resided. The suit papers were forwarded to Hanover, which in turn transmitted them to its attorneys. Without contacting either defendant they filed an answer on their behalf. A later attempt to amend the answer to raise lack of jurisdiction by reason of defective service on Conville was unsuccessful. The claim against Conville’s wife was dismissed upon her showing that her husband was not driving as either her servant or agent at the time of the accident.

Plaintiff then served interrogatories upon defendant. Following Hanover’s unsuccessful efforts to locate Conville — he had apparently left his wife and family — Conville’s answer was suppressed. Immediately thereafter Hanover’s attorneys successfully moved to be relieved as attorneys for Conville. The Fund then appeared to defend Conville.

It should be noted that between May 1965, when Hanover was presented with a written list of plaintiff’s special damages, and January 1966, Hanover’s investigative efforts were superficial and, with one exception, primarily conducted through the mails; on one occasion Hanover’s investigator personally visited a gas station where he thought Conville was employed. That excursion was fruitless.

Although it is fundamental that the “cooperation” clause in an automobile liability insurance policy is a material condition, Pearl Assurance Co. Ltd. v. Watts, 58 N. J. Super. 483, 490 (App. Div. 1959); Kraynick v. Nationwide Insurance Co., 72 N. J. Super. 34, 39 (App. Div. 1962); Mariani v. Bender, 85 N. J. Super. 490, 500 (App. Div. 1964), certif. den. 44 N. J. 409 (1965), Hanover has failed to demonstrate that Conville, the assured, deliberately breached the cooperation clause in a material and essential particular. Pearl Assurance Co. Ltd. v. Watts, supra, at 490; accord, Pearl Assurance Co. Ltd. v. Watts, 69 N. J. Super. 198, 206 (App. Div. 1961); Sutera v. Provident Insur ance Co., 67 N. J. Super. 554 (App. Div. 1961); Mariani v. Bender, supra, at 500. On the issue of deliberate breach, the carrier retains the ultimate burden of persuasion. Cooper v. Government Employees Ins. Co., 51 N. J. 86, 94 (1968).

While the court acknowledges that in the days immediately preceding trial Hanover was unsuccessful in making contact with its assured, it nevertheless finds that that estrangement was precipitated by Hanover’s inaction. Immediately after the accident Hanover did nothing to investigate the accident or contact Conville, save forwarding a proof of claim to the injured victim. It made no effort to uncover evidence when witnesses were available. Moreover, if the carrier had promptly checked out the police report and bail bond, it would have learned that after Conville was taken from the scene of the accident and examined by a doctor, he was charged with driving under the influence of intoxicating liquoT, which in and of itself should have apprised a reasonable carrier of particularly serious implications under its liability policy. Additionally, the police report should have motivated them to additional inquiry.

The decision not to investigate the case when the evidence was fresh and the witnesses available was a calculated risk on Hanover’s part. It gambled on the outcome and it lost.

Quite apart from the facts which portray an absence of deliberate noncooperation on the part of Conville, and affirmatively suggest an imprudence of Hanover’s own making, there is additionally an absence of a showing by Hanover that it performed its reciprocal duties under the cooperation clause. Numerous decisions have discussed the dual nature of the cooperation covenant. See, e. g., Carpenter v. Superior Court in and for County of Maricopa, 101 Ariz. 565, 422 P. 2d 129 (Sup. Ct. 1967); Jameson v. Farmers Mutual Auto Ins. Co., 181 Kan. 120, 309 P. 2d 394 (Sup. Ct. 1957); 8 Appleman, Insurance Law and Practice, § 4784; 8 Blashfield Automobile Law and Practice, § 342.11. In Imperiali v. Pica, 338 Mass. 494, 156 N. E. 2d 44, 47 (Sup. Jud. Ct. 1959), the court neatly discussed that proposition:

* * * the “problem of non-cooperation has a dual aspectnot only what the assured failed to do, but what the insurer on its part did to secure co-operation from an apathetic, inattentive, or vanished policy holder, must be considered.” Pennsylvania Threshermen & Farmer’s Mut. Cas. Ins. Co. v. Owens, 4 Cir., 238 F. 2d 549, 550. * * * It has been held, in accordance with the language quoted above, that an insurer cannot be relieved of liability because of an alleged breach of a cooperation clause by the insured in a situation where it has not itself exercised diligence and good faith. [Citations omitted] Elementary principles of justice and fair dealing require such a rule. The obligations under a cooperation clause are reciprocal. The insured must cooperate; but the insurer is under a duty to exercise diligence and good faith in bringing that about. The demand for cooperation by the insurer must not be unreasonable. There is the additional circumstance in cases of this sort that an attorney undertaking the defense of the case covered by the policy is an attorney for both the insurer and the insured and owes to each a duty of good faith and due diligence in the discharge of his duties. The rights of one cannot be subordinated to those of the other.

There is no showing that Conville knew of any duty on his part to keep Hanover informed of his whereabouts or knew that Hanover sought his cooperation in connection with the lawsuit. In contrast, the facts in Kraynick v. Nationwide Insurance Co., supra, show that there the insured was explicitly notified to keep his carrier advised of his correct current address.

In the same vein, and with even more onerous implications than those arising out of Hanover’s failure to advise Con-ville of his duties under the policy, Hanover, by filing an answer on Conville’s behalf, subjected Conville to the jurisdiction of the court and to the possibility of judgment. While it is true that Hanover may at one time have had the opportunity to attack the jurisdiction of the court over the person of Conville, it did not raise that defense in a timely manner. Consequently, and apart from the implications of its other neglect, Hanover’s affirmative conduct served to place Conville in greater jeopardy than his own conduct would have otherwise produced. 7A Appleman, op. cit., § 4693; Cf. Imperiali v. Pica, supra.

Hanover argues that this court should not hear any evidence that in'any way refutes the sheriff’s return in the original suit, since this would be a collateral attack upon the return. This evidence was not received for that purpose; it was received for the purpose of showing what Hanover did or did not do. Such evidence is material to the issue, the same as the action or inaction of the insured. Cf. Kraynick v. Nationwide Ins. Co., supra.

The court considers Hanover estopped from raising the issue of noncooperation. 8 Appleman, op. cit., §§ 4693, 4784, 4786; cf. Nationwide Mutual Ins. Co. v. Tillman, 249 Miss. 141, 161 So. 2d 604 (Sup. Ct. 1964).

Parenthetically, the court cannot overlook that insofar as the insurer may rely on its defense of noncooperation, it is very much to the insurer’s benefit that the insured not be located. Tuder v. Commonwealth Cas. Co., 10 N. J. Misc. 1206, 163 A. 27 (Sup. Ct. 1932); Carpenter v. Superior Court, supra; Bachman v. Monte, 326 Pa. 289, 192 A. 485 (Sup. Ct. 1937). It has not gone unnoticed that when the Fund entered the case it very shortly thereafter discovered Conville to be an inmate of the Camden County Hospital.

Lastly, as pointed out above, the breach of a condition of cooperation must result in a “likelihood of appreciable prejudice.” Cooper v. Government Employees Ins. Co., supra. In the underlying negligence action, although contested, the issue of liability was virtually an admitted fact, and one which could have easily been evaluated in Convillo’s absence. The only significant dispute requiring resolution was the extent of plaintiff’s injuries and damages. Conville, himself, could have made very little meaningful contribution to the resolution of those issues. Accordingly, Conville’s absence did not appreciably prejudice Hanover’s position in the meaningfully litigated phases of the case. See Allstate Ins. Co. v. Grillon, 105 N. J. Super. 254 (App. Div. 1969).

For these reasons I find that plaintiff is entitled to judgment against the Hanover Insurance Company. Judgment is also entered in favor of the Fund against Hanover for the expenses and fees of representation in the stipulated sum of $1050.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ARTIS. L. DRAYTON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 5, 1971
    Decided May 3, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Harvey I. Marcus, designated counsel, argued the cause for appellant (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Bison P. Kendall, Assistant Prosecutor, argued the cause for respondent (Mr. Karl Asch, Union County Prosecutor, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

Following a jury trial defendant appeals from convictions for assault with a deadly weapon (N. J. S. A. 2A :90-3) and for threatening to take the life of another (N. J. S. A. 2A:113-8). He was acquitted of a charge of atrocious assault and battery (N. J. S. A. 2A:90-1)

On September 28, 1968 defendant and Nathaniel Smith, the alleged victim, following a.n exchange of hostile words, engaged in fisticuffs in which Smith sustained a cut eye.

Smith, his mother, Lizzie Hardy, and his aunt, Ella Mae Harvey, all testified substantially the same as to what followed. They stated that Smith was walking back to his mother’s house when he met her and his aunt on the street. While they were conversing, defendant returned, pulled out a gun, put it to Smith’s chest and said “I will kill you * * * Don’t you know I just got back from Vietnam.”

Smith further testified that he was frightened by the gun, which he estimated to he a .38-caliber snub-nosed revolver. He ran to the Second Precinct, and from there was taken to a hospital for stitches in his eye.

Defendant testified that following the fight, he walked up to Smith and “pointed my fist out to him and I told him this better not happen no more.” He denied having a gun and he did not remember whether he stated that he would kill Smith.

Defendant first contends that in order to convict him for a violation of N. J. 8. A. 2A:90-3 the State must prove beyond a reasonable doubt that he had the present ability to carry out the attempt or offer to injure another. Thus, he argues that the State’s burden was to prove that the gun allegedly used by him was loaded. He urges that the trial court erred in not so charging the jury.

This point was not presented to the court below and is raised here for the first time. At the trial defendant advanced no such defense, rather he denied that he used a gun. The record does not disclose whether the gun was loaded or not.

N. J. S. A. 2A:90-3, in its relevant part, provides:

Any person wlio wilfully or maliciously assaults another with an offensive weapon or instrument * * * is guilty of a high misdemeanor.

The issue of whether present ability, as opposed to mere apparent ability, is necessary to support a conviction under the above statute does not appear to have been previously determined in this State. There is a considerable conflict of authority in other jurisdictions as to whether a criminal assault may be committed with an unloaded firearm where it is not used or intended to he used as a club or bludgeon. See 6 Am. Jur. 2d, Assault and Battery, § 34 at 34, and § 54 at 51; 79 A. L. R. 2d 1412 (1961), A. L. R. 2d Later Case Service (Vols. 79-84) at 80. Much of this conflict stems from the wording of the specific statutes enacted in the various jurisdictions. 6 Am. Jur. 2d, supra at 35. We believe the sounder rule to be that apparent present ability will suffice. The pointing of an unloaded gun at another within range is sufficient to support a finding of guilt, if the one assaulted had a well-founded apprehension of peril. State v. Stationak, 73 Wash. 2d 647, 440 P. 2d 457 (Wash. Sup. Ct. 1968), adhering to an earlier rule enunciated in State v. Shaffer, 120 Wash. 345, 207 P. 229 (Wash. Sup. Ct. 1922).

' Although, as we have noted, there is no case on point in our State, we do find support for our holding. In State v. Sill, 112 N. J. Super. 368, 370 (App. Div. 1970), we approved the following definition of an assault “force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of imminent peril, coupled with an apparent present ability to execute the attempt if not prevented.” (Emphasis added) Likewise, in State v. Schultheis, 113 N. J. Super. 11, 17 (App. Div. 1971), we held that the gist of the crime of threats to take life (N. J. S. A. 2A:113-8) is that the words used are of such a nature as to convey “the menace or fear to the ordinary hearer.” Therein (at 17) we further stated that, “It is necessary only that the threats import the expectation of bodily harm or death, thereby inducing fear and apprehension in the person threatened.” (Emphasis added)

Additionally, it is to be noted that N. J. S. A. 2A :151-1 et seq., which regulates and proscribes certain conduct with respect to the purchase, sale, use, possession and carrying of weapons or firearms, including any revolver or pistol, does not in any manner require that the weapon be loaded. More significantly, N. J. S. A. 2A:151-5, which provides an additional sentence for any person who commits the major crimes therein noted “when armed with or having in his possession any firearm” specifically provides that it is applicable “whether or not [the firearm is] capable of being discharged” or “whether toy or imitation, having an appearance similar to or capable of being mistaken for any of the” dangerous instruments enumerated in the statute.

In the instant case defendant, according to the State’s witnesses, placed a .38 caliber revolver against Smith’s chest and threatened to kill him. The ordinary victim in such a predicament would instantly be placed in fear of bodily harm or death, and this reaction would be “well founded” whether the gun was loaded or not. Thus, based upon all of the above, we hold that defendant’s first contention lacks merit.

Defendant’s argument that N. J. S. A. 2A:113-8 is void for vagueness is without substance. This identical position was rejected in State v. Schultheis, supra, 113 N. J. Super, at 18-19.

Finally, defendant urges that the State must elect, prior to trial, whether it desired to proceed under N. J. S. A. 2A:113-8 or N. J. S. A. 2A:90-3. He argues that since these statutes are identical, when applied to the facts of this ease, he is placed in a position of double jeopardy. In no event would defendant’s prosecution in a single trial upon a multi-count indictment amount to double jeopardy. State v. Roller, 29 N. J. 339, 346-350 (1959). Further, in State v. Montague, 101 N. J. Super. 483, 489 (App. Div. 1968), mod. on other grounds, 55 N. J. 387, 407 (1970), we held that the elements of the offense of threatening a police officer’s life (N. J. S. A. 2A:113-8) and the offense of committing an assault and battery upon the officer (N. J. S. A. 2A :90-4) were separate and distinct. We are of the same opinion as to the elements of the two offenses here involved. In the one there was evidence of a voiced declaration distinct from the use of the weapon. Lastly, only one indeterminate sentence at the reformatory was imposed on both counts. We find no merit to this point.

Judgment affirmed.


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

text:
    ROBERT L. CLIFFORD, COMMISSIONER OF INSURANCE OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CONCORD INSURANCE COMPANY, A NEW JERSEY INSURANCE CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 19, 1971
    Decided April 28, 1971.
    Before Judges Sullivan, Collestee and Labeecqub.

      Mr. William J. O'Shaughnessy argued the cause for appellant (Messrs. Clapp & Eisenberg, attorneys).

      Mr. Theodore A. Winard, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the Court was delivered by

Sullivan, P. J. A. D.

This appeal involves a proposal to partially rehabilitate the Concord Insurance Company which has been previously deemed to be insolvent and is about to be liquidated under the supervision and control of the Commissioner of Insurance. N. J. S. A. 17:30-1 et seq. The proponents of the proposal are the present stockholders of Concord.

In substance, the proposal, which was originally submitted on December 17, 1970 and amended on January 14, 1971, provides that a new insurance company will be organized, having paid in capital and surplus of $1,226,591.50. The new company will take over all of Concord’s outstanding policies in force and will also assume selected claims and contingent liabilities of Concord aggregating $1,553,183, and have transferred to it selected assets of Concord valued at $776,591.60. (Apparently, no asset value is placed on Concord’s going business.) The assets to be received are one-half the amount of claims being assumed. The Commissioner has estimated that on liquidation, general creditors of Concord will receive approximately 50 cents, on the dollar. Proponents say that by using the same ratio of assets to liabilities no undue preference to the new company will result, nor will the remaining creditors of Concord be prejudiced. Finally, the proposal contemplates that an additional $100,000 be put in escrow “to assure further payment to the Concord in the event that the liquidating value is less than fifty cents on the dollar.” Under the proposal, third-party (liability) claims pending against Concord, estimated to amount to three to five million dollars, will not be assumed by the new company but will have to be paid, to the extent of policy coverage, out of the Motor Vehicle Liability Security Fund pursuant to the provisions of N. J. S. A. 39 :6 — 92 et seq. This Fund is made up by pro rata assessments against automobile liability insurance companies doing business in New Jersey. The purpose of the Fund is to provide for automobile accident liability claims which remain unpaid because of the insolvency of the tortfeasor’s motor vehicle insurance carrier.

The Commissioner, on the advice of the Attorney General, ultimately rejected the proposal on the ground that the Fund’s resources could not be used as a means “for, in effect, the reorganization and rehabilitation of Concord.”

Proponents then applied to the trial court to review the Commissioner’s position.

The motion sought a ruling authorizing the Commissioner to proceed with a plan for partial liquidation and partial reorganization in accordance with the concept of the proposal. The trial court denied the application not on the strict ground relied on by the Commissioner but rather because the Commissioner had no statutory power “to scale down claims, fail to provide for any claim or group of claims or otherwise do anything short of full liquidation, except to approve of a rehabilitation plan which will provide for payment of all claims in full or in a percentage to which all claimants have agreed.”

We agree with the result reached by the Commissioner and the trial court. We hold that Fund assets may not be used in connection with the partial rehabilitation of an insolvent insurance company under a plan of reorganization which does not provide for full reimbursement to the Fund. According to present estimates, under the proposed reorganization, whatever the Fund is called upon to pay in third-party claims could only be recouped to the extent of 50% from the liquidation of the remaining Concord assets. The depletion in the Fund resulting from the payment of third-party claims would then have to be replenished by contributions from other, solvent, insurance companies.

Proponents argue that the Eund is no worse off under the proposal, since if complete liquidation were to be had, the Eund would also have to pay the same amount of third-party claims and would recoup approximately the same 50%. However, it is one thing to call upon insurance companies doing business in New Jersey to contribute to a fund for tire payment of claims against one of their insolvent brethren, but quite another to require these insurance companies in effect to contribute towards the partial financing of a new insurance company. In short, while the statutory plan empowers the Commissioner to approve the partial rehabilitation of an insolvent insurance carrier, any plan of rehabilitation which does not provide for reimbursement in full to the Eund of the amount of all claims paid by it on behalf of the insolvent company is not cognizable.

Beyond this, the proposal would restrict the Fund’s right of subrogation to Concord’s remaining assets, which it has been estimated on liquidation will yield 50 cents on the dollar to creditors. However, other claimants and creditors of Concord whose claims are proposed to be assumed by the new company will be paid in full. Manifestly, the proposal discriminates against the Eund by preferring these other creditors. We also note that the proposal contemplates the taking over of all of Concord’s policies in force. Whatever asset value this going business has would redound to the benefit of the proposed new company’s creditors (and stockholders) to the exclusion of Concord’s other creditors, including the Eund.

Affirmed.


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

text:
    STATE IN THE INTEREST OF D. C. STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. D. C., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 3, 3971
    Decided May 10, 1971.

      Before Judges Goldmann, Leonard and Eritz.

      Mrs. Susan T. Sinins, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Martin B. Kayne, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Qourley, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

A juvenile delinquency complaint was filed against D. C. charging that on October 26, 1969 “he did have in his possession, a stolen 1962 Chev., * * * said auto being the property of one L. Peterson” of Rutherford, N. J. The juvenile, represented by counsel, waived indictment and trial by jury. The matter was thereupon set down on the formal calendar. There was a motion to dismiss the complaint at the close of the State’s case on the ground that there had been no proof by competent testimony that the automobile was stolen property. The motion was denied and, after the juvenile had testified and the assistant deputy public defender again argued that the complaint should be dismissed, the trial judge sustained the complaint, found D. C. guilty of juvenile delinquency beyond a reasonable doubt, and committed him to the Yardville Youth and Reception Center. This appeal followed.

The adjudication must be reversed. The only evidence presented by the State as to the automobile being a stolen vehicle was the testimony of arresting officer Paz. While he was being cross-examined by D. C.’s counsel, the trial judge asked Paz whether he had checked out ownership of the car. When he answered that he had, the judge inquired, “What was it?” Counsel’s immediate objection that this was not competent testimony was overruled, and Paz then said that he had called headquarters which, in turn, “called NCIC for a look-up on the vehicle and they found it was stolen out of Eutherford, your Honor.”

This double hearsay should not have been permitted. Evidence Rule 63. Whatever the informalities that are tolerated in formal hearings of juvenile matters, hearsay of a kind so fundamental to the State’s case as here should not be allowed. In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), which held that juvenile court proceedings are subject to the constitutional requirements of due process of law, requires no less. Compare State in the Interest of Carlo, 48 N. J. 224 (1966) (juvenile entitled to constitutional safeguard of voluntariness with respect to use of his alleged confession); State in the Interest of L. B., 99 N. J. Super. 589 (J. D. R. Ct. 1968) (motion to suppress evidence cognizable in juvenile court). And see, Annotation, “Applicability of rules of evidence in juvenile delinquency proceeding,” 43 A. L. R. 2d 1128, 1141 (1955) ; A. L. R. Later Case Service (vol. 40-48), at 373. The double hearsay testimony of Paz struck at the heart of due process.

The State skirts the due process question by arguing that the proofs establish beyond any reasonable doubt that D. C. had committed acts of juvenile delinquency, namely, that although only 16 years old he was driving a motor vehicle, that he drove it in a careless and reckless manner, and that he knowingly attempted to elude the police. But he was not so charged. It has been said that a juvenile complaint need not refer to the precise subsection of N. J. S. A. 2A :4-14 alleged to have been violated. State in the Interest of A. R., 57 N. J. 71 (1970), and State in the Interest of L. N., 109 N. J. Super. 278, 284 (App. Div. 1970). However, where, as here, the charge brought is precisely stated, the State must prove that charge by competent evidence.

No matter how strong the suspicion that D. C. was in possession of and driving a car he knew to have been stolen, he was entitled to a fair trial. An adjudication of delinquency based solely on hearsay cannot be sustained.

Reversed.


author: Per Curiam.

text:
    WILLIAM DEBOLD, GEORGE FULLER AND FREDERICK SMITHLINE, TRUSTEES IN LIQUIDATION OF CAMBRIDGE DEVELOPMENT CORP., A NEW JERSEY CORP., PLAINTIFFS-APPELLANTS, v. TOWNSHIP OF MONROE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, MONROE PLANNING BOARD AND JOSEPH INDYK, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 27, 1971
    Decided May 11, 1971.
    Before Judges Lewis, Matthews and Mintz.

      Mr. Stanley Tannenbaum argued the cause for appellants (Messsr. Beibel, Isaac, Tannenbaum & Epstein, attorneys).

      Mr. Bichará S. Cohen argued the cause for respondents Township of Monroe and Joseph Indyk.

      Mr. Joseph L. Stonaker argued the cause for respondent Monroe Planning Board.

      Messrs. Suit and Berlcow filed a brief amicus curiae for New Jersey Builders Association (Mr. Stewart M. Mutt, of counsel and on the brief, appeared; Mr. Richard W. Kracht, on the brief).
   Per Curiam.

The judgment is affirmed substantially for the reasons expressed in the reported opinion of Judge Furman, 110 N. J. Super. 287.

This affirmance is without prejudice to plaintiffs’ right to apply to the Board of Adjustment of the Township of Monroe for variances from the 1957 zoning ordinance for their respective parcels of realty.


author: Lake, J. A. D.

text:
    J. D. LAND CORP., AND .1. D. CONSTRUCTION CORP., BOTH CORPORATIONS OF THE STATE OF NEW JERSEY, PLAINTIFFS-APPELLANTS, v. JOHN T. ALLEN, BUILDING-INSPECTOR OF THE TOWNSHIP OF FREEHOLD; TOWNSHIP OF FREEHOLD, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF FREEHOLD, IN THE COUNTY OF MONMOUTH, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 4, 1971
    Decided May 12, 1971.

      Before Judges Kilkekky, Halpej&k and Lake.

      Mr. V. David Shaheen, Jr., argued the cause for appellants (Messrs. Giordano, Giordano ■& IIaderan, Attorneys; Mr. John R. Haderan, on the brief).

      Mr. John A. Kaye, Substituted Attorney, argued the cause for respondents {Mr. Donald J. Cunningham submitted the brief).

      Messrs. Hutt <& BerTcow submitted a brief on behalf of N. J. Builders Association, Amicus Curiae {Mr. Stewart M. Hutt, of counsel; Mr. Hutt and Mr. Richard W. Kracht, on the brief).
   The opinion of the Court was delivered by

Lake, J. A. D.

Plaintiffs appeal from a summary judgment declaring that Article IX, Section 8 of the Freehold Township Land Subdivision Ordinance is valid.

The first count of the complaint in lieu of prerogative writ sought a judgment compelling John T. Allen, Building Inspector of the Township of Freehold, to issue a certificate of occupancy for a particular dwelling constructed by plaintiffs in Section 3 of a development under construction by plaintiffs in the township. Allen’s refusal was based upon Article IX, Section 8 of the Land Subdivision Ordinance. The complaint sought in the second count a declaratory judgment that the ordinance was invalid. During the course of the proceedings, a consent order was entered directing that the certificate of occupancy requested be issued and dismissing the first count.

In 1967 plaintiffs purchased 102 lots designated as Section 3 and Section 4 of a subdivision known as Green Tree at Freehold. Final approval of the proposed subdivisions had been obtained. To obtain final approval for Section 3, a bond in the amount of $121,755.28 and cash in the amount of $13,528.37 was posted in accordance with the Subdivision Ordinance to guarantee the installation of the required subdivision site improvements.

An affidavit in support of the complaint stated that on December 6, 1969 plaintiff entered into an agreement to sell a residence to a Mr. and Mrs. Holloway. Closing of title was fixed for June 5, 1970. The residence had been approved by the building inspector as being constructed in accordance with the applicable building codes and township ordinances. Application for a certificate of occupancy was denied although before that time certificates of occupancy for 11 residences in Section 3 had been granted. The refusal to issue a certificate of occupancy was based upon Article IX, Section 8 and the fact that certain of the Section’s site improvements had not been completed, including a portion of “the final top on street pavement,” some concrete curbs and sidewalks, shade trees, monuments and concrete aprons. The estimate for the completion of these improvements was $22,085.50. At the time of the refusal, the municipality still held the performance bond and the cash deposit referred to above.

Article IX, Section 8 provides:

SECTION 8. ISSUANCE OF CERTIFICATE OF OCCUPANCY. No dwelling shall be deemed habitable nor shall a certificate of Occupancy be issued by the Building Inspector unless all required improvements have been completed in the section for which final approval has been granted. Prior to the issuance of a Certificate of Occupancy, all improvements as set forth in Article VIII of this Ordinance shall have been installed including but not limited to the following: complete pavement (base and surface course, concrete curb, gutter, driveway and sidewalk), finish storm sewer system, connection to operative sanitary sewer system, water supply system, and source of electricity, landscaping, shade trees and monuments. The owner or subdivider shall have the right to make application to the Township Committee in respect to the completion of one or more of the required improvements set forth in Article VIII of this Ordinance, which application shall be in writing addressed to the Township Committee at least fourteen (14) days prior to the next regular meeting of the Township Committee. Upon receipt of such request, the procedure in connection with such application shall be as follows :
(a) The Township Committee may at its discretion allow the owner or subdivider an opportunity to be heard in respect to such application at a time and date to be set by the Township Committee.
(b) The Township Engineer shall, within five (5) days of receipt of the request of the Township Committee, report his findings in respect to the application of the owner or subdivider for a Certificate or Certificates of Occupancy to the Township Committee.
(e) In the event that the Township Committee approves the issuance of a Certificate or Certificates of Occupancy pursuant to the application of the owner or subdivider, the owner or subdivider shall be obligated to post a cash bond in addition to the performance guarantee heretofore posted, to cover the cost of the required improvements. The Township Engineer shall be obligated as part of his report aforesaid, to set forth the amount required for such cash bond.
(d) The Building Inspector shall be informed in writing by the Township Engineer to issue such Certificate or Certificates of Occupancy. The owner or subdivider shall complete those improvements referred to aforesaid within six (6) months from the date of the posting of the cash bond. In the event that such owner or sub-divider has failed to install the improvement or improvements which is the subject matter of this section, the owner or subdivider agrees that the cash bond shall be retained by the Township as a reasonable amount for the purpose of permitting the Township to complete (he improvement or improvements.

Paragraph (c) refers to a “cash bond/’ meaning a deposit with the municipality of cash.

The trial judge held that Section 8 was valid but recognized that it was “inequitable.” He further recognized that the requirement for a cash deposit in addition to the performance bond that had been required at the time of the final approval resulted in a “double indemnity” to the municipality. The ordinance was held to be a valid exercise of the municipality’s police powers.

The questions raised on this appeal are:

(A) Does a municipality have the power to condition the issuance of a certificate of occupancy upon the deposit of further security for the installation of subdivision site improvements ?

(B) May a municipality withhold certificates of occupancy to enforce its land subdivision ordinance?

(0) If a municipality may use certificates of occupancy to enforce a land subdivision ordinance, does the ordinance under review contain adequate standards?

A

Since municipalities are creatures of the State and can only exercise powers granted to them by the Legislature, statutory authorization must be found before the ordinance under consideration can be determined to be valid. Wagner v. Newark, 24 N. J. 467 (1957). The power to control planning and subdivision approval is granted by N. J. S. A. 40:55-1.1 et seq. (Municipal Planning Act (1953)). Certain powers concerning land control are also granted to municipalities by N. J. S. A. 40:55-1.30 to 1.42 (Official Map and Building Permit Act (1953)). Power for subdivision regulation is derived from these acts. Any exercise of that power must be in accordance with the procedures and methods set forth in the acts. Cf. Brazer v. Mountainside, 55 N. J. 456 (1970); Kligman v. Lautman, 53 N. J. 517 (1969). In construing the provisions of these acts, questions arising should be resolved in favor of the municipality whenever reasonably possible. Levin v. Livingston Tp., 35 N. J. 500 (1961).

N. J. S. A. 40 :55-1.18 provides that tentative approval of a subdivision plat may be granted which confers upon tbe subdivider certain rights enumerated in the statute for a three-year period. Such approval may be subject to certain conditions set forth in N. J. S. A. 40 :55-1.20.

N. J. S. A. 40 :55-1.21 provides in part:

Before final approval of plats the governing body may require, in accordance with the standards adopted by ordinance, the installation, or the furnishing of a performance guarantee in lieu thereof, of any or all of the following improvements it may deem to be necessary or appropriate: street grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor’s monuments, water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, and such other subdivision improvements as the municipal governing body may find necessary in the public interest.

The statutory scheme is clear. A municipality may require tire installation of all subdivision site improvements before final approval. It may, on the other hand, grant final approval subject to the subdivision site improvements being made at a subsequent time. To assure that such site improvements will in fact be made, the Legislature has authorized municipalities to require as a condition for granting final approval the posting of a performance guarantee. N. J. S. A. 40 :55-1.22. This procedure was followed by Freehold Township here. The estimated cost of the subdivision site improvements was $135,283.65. The subdivider posted a bond with a corporate surety in the amount of $121,755.28 and deposited in escrow with the municipality cash in the amount of $13,528.37 representing 10% of the estimated cost of the subdivision site improvements.

Assuming that certificates of occupancy can be used for subdivision control (see B hereafter), we find no statutory authorization allowing a municipality to require the posting of an additional cash deposit to assure the completion of subdivision site improvements as a condition to the issuance of a certificate of occupancy. The legislative scheme provides for one performance guarantee to be given as a condition to final approval. N. J. S. A. 40 :55-1.21 and N. J. S. A. 40 :55-1.22 relate the amount of the bond to the cost of the subdivision site improvements. A municipality may not exact a performance guarantee in excess of such amount. Under Article IX, Section 8, Freehold Township is attempting to do exactly that. Cf. Legion Manor v. Wayne Tp., 49 N. J. 420 (1967); McKenzie v. Arthur T. McIntosh and Company, 50 Ill. App. 2d 370, 200 N. E. 2d 138 (App. Ct. 1964); 3 Rathkopf, Law of Zoning and Planning, § 8, at 71-81 (3d ed. 1971). The ordinance insofar as it requires a cash deposit as security, in addition to the performance guarantee under N. J. S. A. 40:55-1.22, for the same action by the subdivider is invalid. Cf. West Park Ave., Inc. v. Ocean Tp., 48 N. J. 122 (1966).

B

Plaintiffs urge that a certificate of occupancy may not be used by a municipality to enforce a land subdivision ordinance.

Certificates of occupancy are not supported by any express legislative authority. Their use has been specifically approved in Honigfeld v. Byrnes, 14 N. J. 600 (1954). There the court stated:

* * * But a certificate of occupancy is merely a tangible manifestation of proper use of one’s property in accordance with the ordinance in question. Before it can issue, the building inspector is obliged to view and examine the premises to determine conformity with all appropriate regulations, and in light of this the charge of $2 would appear under the circumstances to be reasonable.
Furthermore, the plaintiff admits the right of a municipality to require a certificate of occupancy “stands or falls with the right to prohibit the character of the occupancy.” Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183 (E. & A. 1929). The right of prohibition having been established here, the certificate, according to the plaintiff’s own interpretation, was a proper requirement.
The statutes lend support to this view. R. S. 40:55-47 authorizes the board of public works to provide by ordinance for the enforcement of ordinances or regulations made under the chapter dealing with planning, building lines and zoning. And R. S. 40 :48-2, under general and regulatory powers of municipalities, provides for ordinances and regulations which may be deemed “necessary and proper for the good government, order and protecton of persons and property, and for the preservation of the public health, safety and welfare * * * and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.” [14 N. J. at 608]

In addition, authority to require certificates of occupancy may be implied from the statutory provisions for building permits. N. J. S. A. 40:48-1(13) and N. J. S. A. 40:55-1.30 to 1.42. The use of a certificate of oceupany is a method of assuring that there has been compliance with the building permit after the building has been erected. See 2 Anderson, American Law of Zoning, § 13.03 at 546-548 (1968). There is no provision in the statutory scheme or in past or present practice to indicate that they may not be used for subdivision control pursuant to the general powers of a municipality under N. J. S. A. 40 :48 — 2.

Use of certificates of occupancy for subdivision control serves a valid and useful purpose. A municipality should have control over the time for the installation of the subdivision site improvements as they relate to the health, welfare and safety of persons purchasing residences in the subdivision under construction. The parties point to no specific legislative provision under which such control can be otherwise exercised. Holding that the control can be exercised by the use of certificates of occupancy is in accordance with the legislative scheme under the Municipal Planning Act (N. J. S. A. 40:55-1.1 et seq.). The power is implied as incident to the total statutory scheme for subdivision control. Cf. Kligman v. Lautman, 53 N. J. 517, supra; N. J. S. A. 40:55-1.39.

The power to use certificates of occupancy as a legitimate tool of subdivision control, however, must be reasonably exercised and be related to the residences for which certificates of occupancy are sought. Cf. Brazer v. Mountainside, 55 N. J. 456, supra; Longridge Builders, Inc. v. Planning Bd. of Princeton, 98 N. J. Super. 67 (App. Div. 1967), aff’d 52 N. J. 348 (1968). It would be unreasonable for a municipality to provide by ordinance that all subdivision site improvements must be installed as a condition for the issuance of a certificate of occupancy for the first house built at the very entrance to the subdivision. While it is appropriate to require the installation of subdivision site improvements needed for the health, welfare and safety of the occupants of a particular house, no legitimate purpose would be served by requiring installation of all site improvements that would be serving all the other houses to be constructed in the future.

c

It remains to be determined whether Article IX, Section 8 is a valid exercise of the municipality’s right to use certificates of occupancy for its subdivision control. The answer is short. The ordinance contains no standards whatsoever. It would allow the municipality to require the installation of all subdivision site improvements as a condition for the issuance of the first certificate of occupancy. Therefore, not only is there a lack of standards, but the procedure provided for does not properly serve the purpose for which certificates of occupancy may be used in land subdivision-control. Gabe Collins Realty, Inc. v. Margate City, 112 N. J. Super. 341 (App. Div. 1970). The ordinance insofar as it provides for the issuance of certificates of occupancy is in its present form invalid for lack of adequate standards. Moyant v. Paramus, 30 N. J. 528 (1959); Weiner v. Stratford, 15 N. J. 295 (1954); Phillips v. Belleville, 135 N. J. L. 271 (Sup. Ct. 1947).

It would not be appropriate for us to try to detail what standards would be adequate. Such decision is better left until a case arises in which the question is fully briefed and argued. Lucky Calendar Co. v. Cohen, 20 N. J. 451 (1956); Hildebrandt v. Bailey, 65 N. J. Super. 274 (App. Div. 1961). It is sufficient to say that the withholding of a certificate of occupancy as a subdivision control must be related to the health, welfare and safety of the occupants of the residence for which the certificate is sought. The basis of our holding today is that there are no standards in this ordinance.

The judgment of the Law Division will be reversed, and a judgment entered declaring Article IX, Section 8 of the Ereehold Township Land Subdivision Ordinance of 1967, dated July 10, 1967, invalid.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LULU MACK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate División
    Argued March 25, 1971
    Decided May 14, 1971.

      Before Judges Coneord, Kolovsky and Carton.

      Mr. Thomas E. Bracken, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Joseph A. Fusco, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi> Essex County Prosecutor, attorney).
   Per Curiam.

Defendant appeals from a conviction for possession of narcotics. She was sentenced to a minimum term of five years at the Clinton Reformatory and fined $25.

The Public Defender made a pretrial motion to suppress upon the assumption that the search of the apartment had been made without a warrant. When it developed that in fact a warrant had been issued, the Public Defender made an unsuccessful application for an adjournment. It is unnecessary to consider the argument that the trial court should have granted the requested adjournment since we will consider defendant’s argument as to the alleged insufficiency of the affidavit on the merits.

Defendant argues that the affidavit for the search warrant does not demonstrate probable cause. The affiant, a detective of the Newark Police Narcotics Sqnad, recites that he had been involved in narcotic investigations and related arrests made during a period spanning over three years. After expressing his belief that narcotic activity was being carried on by Luln Mack at 568 High Street, first floor apartment, the affiant states the following reason for this conclusion:

1. I have received the information from a reliable source and also from an informant who has proved reliable in the past that a Lulu Mack, narcotic registrant #1819, registered at 233 Bergen St. is selling narcotic drugs from 568 High St. 1st floor front apartment, City of Newark in violation of B. S. 24:18-4.
2. The undersigned in company with Detective Frank Petrillo surveilled the premises at 568 High St. on the following dates: August 18, 1969 from 12:45 PM to 1:15 pm, August 19, 1969 from 2:45 pm, to 3:30 PM, August 20, 1969 from 11:00 am to 12:15 pm, and on August 21, 1969 from 9 :15 AM to 10 :30 am. During these times known narcotic offenders observed entering and leaving these premises were: Oliver Caldwell, narcotic registrant #875, Charles Brooks, narcotie registrant ^¿2146, Joshiah Widman, narcotic registrant # 193 and Shirley Edwards, narcotic registrant #2072.

Based on this affidavit the magistrate issued the warrant to search the apartment.

We conclude that under the rationale of State v. Mercurio, 113 N. J. Super. 113 (App. Div. 1970), aff’d o. b. 57 N. J. 367 (1971), and State v. Kasabucki, 52 N. J. 110 (1968), the affidavit provided an adequate basis for the finding of probable cause and the issuance of the warrant.

The observations on surveillance overcome the limitations of and lend credence to the information received from the informers. Cf. Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Whiteley v. Warden, Wyoming State Penitentiary, 401 U. S. -, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971).

• In State v. Ebron, 113 N. J. Super. 153 (App. Div. 1971), another part of this court held that an affidavit substantially similar to the affidavit in this case was insufficient under Spinelli. However, the decision in Mercurio which was decided a few days later is controlling.

We find no plain error in the comments on the evidence made by the trial court during the course of its charge. Nor do we perceive any error in permitting the police officer to testify as to surveillance of the premises made .on days prior to the raid.

We deem it desirable to consider also under the plain error rule a point raised after completion of the oral argument concerning the validity of the sentence imposed in this case.

Defendant urges that the minimum five year reformatory sentence contravenes the provisions of N. J. S. A. 30:4-148 because that statute prohibits the setting of any minimum term in sentences to the reformatory. That provision reads as follows:

The courts in sentencing to the reformatory shall not fix or limit the duration of sentence, but the time which any such person shall serve in the reformatory or on parole shall not in any case exceed five years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, if such maximum be less than five years; provided, however, that the court, in its dis'cretion, for good cause shown, may impose a sentence greater than five years, but in no case greater than the maximum provided by law, and the commitment shall specify in every case the maximum of the sentence so imposed. The term may be terminated by the board .of managers in accordance with its rules and regulations formally adopted.

' In State v. Hopson, 114 N. J. Super. 146 (App. Div. 1971), following earlier decisions of this court, it was held that notwithstanding the language of N. J. S. A. 30:4-148, when the conviction was for a narcotics offense sentence was controlled by N. J. S. A. 34:18-47. That statute (N. J. S. A. 34:18-47) mandates imprisonment for a term of not less. than 2 nor more than 15 years for a first such offense, and even if the sentence is to the reformatory, the 2-year minimum must be imposed. That minimum can be no more or less. Cf. State v. Lavender, 113 N. J. Super. 576 (App. Div. 1971).

Hopson requires that the minimum term of five years in this case be set aside. The sentence as imposed cannot be justified, as the State now argues, on the basis that defendant was not a first offender. The State did not seek to invoke the notice procedures required for treatment of defendant- as a habitual offender. See N. J. S. A. 24:18-47(e) and State v. Tyler, 88 N. J. Super. 396, 402 (App. Div. 1965), cert. denied 384 U. S. 992, 86 S. Ct. 1898, 16 L. Ed. 2d 1008 (1966). Although the record reveals that defendant was convicted for two prior narcotics offenses, the trial judge made no reference to the earlier convictions and did not sentence defendant as a multiple offender.

The question arises whether we should exercise our original jurisdiction and impose the sentence or remand the matter to the trial court for resentencing. Arguably, since the trial judge imposed a term requiring confinement for at least five years, he might have imposed a maximum term for more than five years in accordance with the provision contained in N. J. S. A. 30 :4-148 had he been aware of the limitation on his sentencing powers later enunciated in Hopson. Although the trial judge (who also imposed the sentence) has now retired, rather than exercise our original jurisdiction we deem it more appropriate that the matter be remanded to the trial court for resentencing. If the State seeks to sentence defendant as a prior offender under N. J. S. A. 24:18-47(c), notice thereof must be given as required by N. J. S. A. 2A:85-13. See State v. Tyler, supra.

Since Hopson is presently on appeal to the Supreme Court, either party shall have the right to apply for further correction or modification of the sentence in accordance with the ultimate ruling of the Supreme Court in that case.

Affirm except as to sentence; remand for resentencing.