author: Haipekjst, J. A. D.

text:
    STATE OF NEW JERSEY, COMPLAINANT-APPELLANT, v. JOHN LEWIS GRAHAM, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 4, 1971
    Decided May 17, 1971.
    Before Judges Kilkenny, EL'aleern and Lane.

      Mr. David Linett, Assistant Prosecutor, argued the cause for appellant {Mr. Michael R. Imbriani, Somerset County Prosecutor).

      Mr. Robert I. Esposito, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley G. Van Ness, Public Defender).
   The opinion of the court was delivered by

Haipekjst, J. A. D.

On September 15, 1970 defendant was indicted for murder. On January 15, 1971, pursuant to N. J. S. A. 2A :74-9, an order was entered to summon a special panel of petit jurors to serve for the trial of the indictment on February 16, 1971. Because about 20 of the prospective petit jurors were excused from service, the trial judge decided there were insufficient jurors available to start the trial and postponed it without date. On February 22, 1971 the court entered a new order for another special panel of petit jurors for the trial of the indictment to be held on March 8, 1971.

However, on the original trial date, February 16, 1971, the trial judge commenced hearing motions to determine whether a tape-recorded inculpatory statement given by defendant at the county jail to members of the prosecutor’s staff, would be admissible at trial. Defendant contended it was inadmissible because his constitutional rights under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were violated. The motions also sought a pretrial ruling as to whether three oral statements made by the victim to the police were admissible as either dying declarations, or as spontaneous declarations under the res gestae doctrine.

The trial judge heard testimony on these motions on February 16, and March 8, 1971. He thereafter determined that neither the. defendant’s nor the victim’s statements would be admissible at trial. At that point, on motion of defendant, he further ruled that if defendant testified, the tape recording of his statement could be used at the trial to impeach his credibility. See Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).

We granted the prosecutor’s application for .leave to appeal from the' order entered on these pretrial motions. We advised counsel for the parties that we intended, pursuant to R. 2 :ll-2, to decide the appeal on the papers submitted and such additional briefs as either side desired to file prior to oral argument. This course of action was utilized because of the importance of the case, and because we were aware of the conflicting practice in various counties with respect to hearing such motions (particularly those dealing with confessions) prior to trial.

Our Supreme Court rules do not authorize motions before trial to test the validity of confessions, or the admissibility into evidence of statements made by defendants or other witnesses. Nor do the rules permit pretrial motions to obtain advisory rulings on the admissibility of evidence to be offered at trial. Where pretrial motions akin to the ones before us are permitted, the rules specifically provide for it; e. g., R. 3:5 — 7 dealing with motions to suppress illegally seized evidence, and R. 3 :10-1 to' 3 .TO-7 dealing with pleadings and motions before or after trial.

We are aware that a conflict of opinion exists as to the advisability of expanding the use of pretrial motions to include the testing of confessions, identification and other issues. The arguments advanced by both sides need not be dealt with in this opinion. Until such time as our Supreme Court, by rule or decision, changes our accepted procedure in this regard, trial courts are duty-bound to hear the type of motions involved on this appeal at the time of trial only.

We see no merit in the argument that trial courts have the inherent power to consider such motions in view of the proscription enunciated by the Supreme Court, through Justice Jacobs, in State v. Yough, 49 N. J. 587 (1967) wherein he said:

Under our long-standing practice, the determination as to the admissibility of a confession is properly made at rather than prior to trial. See State v. Cicenia, 6 N. J. 296, 301-302 (1951), certiorari denied 350 U. S. 925, 76 S. Ct. 215, 100 L. Ed. 809 (1955) ; State v. Green, 49 N. J. 244 (1967) ; cf. State v. Ferrara, 95 N. J. Super. 329 (App. Div. 1967). Proposed alterations of the practice were the subject of discussion at the last Judicial Conference and are receiving study. See 90 N. J. L. J. 257 (1967). In the meantime and pending the promulgation of formal rules, pre-trial exclusory motions addressed to confessions, particularly where fragmented as here, are not to be entertained. However, in the instant matter, the motion was heard with the State’s consent and we therefore pass the procedural irregularity, [at 590-591]

To date, the Supreme Court has not altered the rules of practice in this regard. There is no sound reason for us to overlook the procedural irregularity and accept jurisdiction. Based on the record before us, the judge assigned to try the indictment against defendant will be in a better position to decide the issues raised by the pretrial motions, when considered against the backdrop of all the evidence as it unfolds at trial.

The order entered by the trial judge is reversed, without prejudice to either party to make appropriate motions or objections at the trial pertaining to defendant’s or the victim’s statements.


source: Caselaw Access Project

author: Lane, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT JAVON BOONE, DEFENDANT, AND HERBERT LEE TERRY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 20, 1971
    Decided April 27, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Herbert Waldman, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley O. Van Ness, Public Defender, Attorney; Mr. Waldman, of counsel and on tlie brief).

      Mr. Edwin 11. Stern, Assistant Prosecutor, argued the cause for respondent {Mr. Geoffrey GaulMn, Pludson County Prosecutor, Attorney; Mr. Armand Polían, Assistant Prosecutor, on the brief).
   The opinion of the Court was delivered by

Lane, J. A. D.

Defendants were jointly indicted for unlawful possession of heroin in violation of N. J. S. A. 24:18-4. Defendant Terry was also indicted for unlawful possession of a pistol in violation of N. J. S. A. 2A:151-41. The indictments were tried without a jury. Boone was acquitted. Defendant Terry was convicted on both indictments. On the possession of heroin indictment, he was sentenced to the New Jersey State Prison for a minimum of 2 years and a maximum of 5 years and fined $100. On the indictment for possession of a pistol, he was sentenced to a minimum of 1 3rear and a maximum of 2 years, to run concurrently with the other sentence. Defendant appeals both judgments of conviction alleging that it was error to deny his motion to suppress the narcotics and the pistol.

On March 22, 1969 at approximately 10 a.m., New Jersey State Trooper Richard Roberts, assigned to the New Jersey Turnpike, observed a 1956 Buick automobile, driven by Boone in which Terry was a passenger, which had just entered the Newark Bay Extension, proceeding towards Newark. After following the vehicle for about one and a half miles, he stopped it because it was proceeding between 10 to 15 miles an hour and had changed lanes twice. Both occupants appeared to be under the influence of alcohol. When the Trooper asked for Boone’s license and the vehicle registration, they were not produced immediately. The vehicle registration showed that Terry was the owner. He ordered both occupants to get out of the vehicle and go to its rear. He then observed a large bulge at Terry’s belt in the center of his pants which was a gun. He searched both men and found a magazine clip in Boone’s jacket with five rounds of ammunition which was of a type used in the gun taken from Terry. He then searched the automobile for other weapons and found in the glove compartment five decks of heroin, a hypodermic needle, a syringe and a cooker cap. In the back seat of the automobile, he found approximately 10 other bullets.

The Trooper testified that it was standard procedure where alcohol is suspected to have the driver get out of the automobile. He further said that since the time a Trooper had been shot on the Newark Bay Extension while engaged in a routine road check, it has been State Police policy when stopping an automobile on the Turnpike for a routine road check to have the occupants get out.

Defendant concedes that the State Police had a right to stop the automobile but contends that once the driver produced a valid driver’s license and the vehicle registration “any further detention or search must be based on probable cause.” Implicit in the argument is a general attack upon the conduct of the New Jersey State Police on the Turnpike. In his brief he says:

Furthermore, it should be noted that troopers on the New Jersey Turnpike are said by many to operate in nearly total disregard of citizens’ Fourth Amendment right.

Our function, however, is only to judge the facts of this case. Terry v. Ohio, 393 U. S. 1, 15, 88 S. Ct. 1868, 1876, 20 L. Ed. 2d 889, 902 (1968).

A police officer in the performance of his duty has a right to take reasonable precautions for his own safety and for that of others. Terry v. Ohio, supra, at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; State v. Dennis, 113 N. J. Super. 292 (1971). In view of the way in which the automobile was being operated and since both the driver and occupant appeared to be under the influence of alcohol, the Trooper was exercising reasonable precaution in directing them to get out oí the automobile.

Defendant argues that although the Trooper may have had a right to ask Boone to get out of the automobile; that right did not extend to defendant. The argument is untenable. Having reason to believe that Boone was under the influence of alcohol, the Trooper could search the automobile. State v. Boykins, 50 N. J. 73, 77 (1967); State v. Cusick, 110 N. J. Super. 149 (App. Div. 1970). In connection with such search and for his own safety, he had a right to order Terry out of the automobile.

Having seen the suspicious bulge in Terry’s belt, the Trooper would have been foolhardy not to have determined whether it was a weapon. State v. Dilley, 49 N. J. 460 (1967).

The search of the automobile was justified not only because of the condition of its driver but also in connection with the lawful arrest of Terry for carrying a pistol. Cf. Chambers v. Maroney, 400 U. S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970); Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964).

Defendant also argues that the claim that Boone and Terry appeared to be under the influence of alcohol was a sham. That determination depends upon the credibility of the witnesses. If there was substantial credible evidence to support the order denying the motion to suppress, it will not be reversed. State v. Johnson, 42 N. J. 146 (1964). Our review of the transcript leaves no doubt that there was no reason why the Judge should not have accepted as credible the testimony adduced by the State. At the conclusion of the hearing on the motion to suppress, Judge Edward E. Hamill denied the motion, making detailed findings of fact. These findings are supported by substantial credible evidence.

The judgments of conviction are affirmed.


author: Pee Cukiam.

text:
    STANLEY YACKER, RECEIVER FOR MAR BUILDING, INC., PLAINTIFF-RESPONDENT, v. MARKUS WEINER, MARTIN BLASHINSKY AND MIDDLESEX APARTMENTS, INC., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 11, 1971
    Decided May 20, 1971.
    Before Judges Lewis, Matthews and Mintz.

      Mr. Barry D. Keith argued the cause for appellants (Messrs. Keith, Keith and Winters, attorneys; Mr. Nestor A. Winters, on the brief).

      Mr. William G. Bossier argued the cause for respondent.
   Pee Cukiam.

The judgment is affirmed substantially for the reasons expressed by Judge Lane in his reported opinion, 109 N. J. Super. 351.


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

text:
    IN THE MATTER OF THE SUPERVISION AND ASSIGNMENT OF THE PETIT JURY PANELS IN ESSEX COUNTY, NEW JERSEY.
    Superior Court of New Jersey Law' Division
    Decided May 12, 1971.

      Mr. Francis Patrick McQuade, Essex County Counsel, appeared for Sheriff John E. Cryan.

      Mr. Dickinson B. Debevoise appeared for the Essex County Bar Association, amicus curiae (Messrs. Samuel S. Saiber and Joseph F. Walsh, of counsel; Mr. Daniel Brie Knee, on the brief).
   Giuliano, A. J. S. C.

This is an administrative proceeding initiated by order of the court directing John E. Cryan, Sheriff of Essex County, to show cause why he should not be permanently enjoined from interfering with- the exercise by the Court of its duties and responsibilities to supervise petit jurors and petit jury panels and to assign petit jury panels for trials to the Superior Court, the Essex County Court and the Essex County District Court. On the return day of the order leave was granted to the Essex County Bar Association, upon its application made on proper notice, to submit its brief and be heard in the matter amicus curiae.

The circumstances which impelled the issuance of the Order are set forth in the exhibits annexed thereto. By its Order of Eebruary 3, 1971 the court, pursuant to B. 1:33-3(b), appointed and designated William Williams, Senior Court Clerk, as Assistant Assignment Clerk-Civil, “to assist the Assignment Judge of Essex County in summoning and supervising the daily attendance of the petit jurors and the assigning of petit jurors required for trials by the Superior •Court, the Essex County Court and the Essex County District Court, effective March 1, 1971.” By letter of April 2, 1971 the sheriff asserted that effective April 5, 1971 he was assigning William K. McTague as Jury Control Supervisor. By letter of April 5, 1971 the court responded, informing the sheriff, among other things, that “the matter of supervision of the jury system in this County rests exclusively with” the assignment judge, exercised by him directly or through personnel assigned by him for that, purpose; and that the court “cannot and will not .permit interference by anyone with the jury system in this County.” By an office memorandum of April 19, 1971 the sheriff directed that “Effective immediately Frank Nigro will be in charge of JURY CONTROL.”

The sheriff contends that he has certain “powers and duties with respect to petit jurors and jury panels as are mandated by law to his office as an elected constitutional officer of the State.” Any suggestion that the mere mentioning of the office of sheriff in the State Constitution precludes the Legislature from altering the duties of sheriffs was firmly laid to rest 60 years ago by the former Court of Errors and Appeals in State v. De Lorenzo, 81 N. J. L. 613 (1911). One of the contentions made in that ease was that since the Constitution provided that “sheriffs * * * shall be elected by the people of their respective counties,” the implication was “that the attributes and faculties of the office of sheriff as they existed at the time of the adoption of the constitution are, by this mention of the office in the constitution, erystalized and rendered immune from alteration or subtraction by the legislature.” At the time, this contention had support in a decision of the former Supreme Court in the case of Virtue v. Freeholders of Essex, 67 N. J. L. 139 (Sup. Ct. 1901). In firmly rejecting that contention and in disapproving the decision in Virtue, the court in De Lorenzo, unanimously held that the duties of sheriffs are “always subject to legislative change” (81 N. J. L. at 622).

Legislative reform to eliminate political influence and control over the jury system was strongly urged by Governor Woodrow Wilson in his Second Annual Message to the Legislature on January 14, 1913. Although a number of legislative modifications in the approach to the jury system followed, it wab not until the enactment of L. 953, c. 240, that the full administration of the jury system was vested in the court.

The situation as it existed following the adoption of L. 1929, c. 17, is referred to in the opinion of the former Court of Errors and Appeals in State v. Profita, 114 N. J. L. 334, 340 (1935), as follows:

By chapter 20 of the Special Session of 1913 (Pamph. L. 1913, p. 828), the legislature took from the sheriff, by revision of the subject-matter, the right to act alone in selecting juries and provided that a citizen should be appointed by the chancellor to be designated a commissioner of juries and that he and the sheriff should constitute “the commissioners of juries.” The two-man commission still endures, the appointing of the citizen commissioner having been transferred by amendment (Pamph. L. 1929, ch. 17), from the chancellor to the governor acting with the advice and consent of the senate. * * *

By L. 1934, c. Ill, the appointing of the “citizen commissioner” was vested in the Supreme Court Justice presiding in the county. Further modification occurred in 1944. By L. 1944, c. 96 the Legislature vested in the Governor, by and with the advice and consent of the Senate, the power to appoint in each county “two citizens, resident therein who shall not be members of the same political party, who shall constitute and be designated as ‘commissioners of juries/ hereinafter designated jury commissioners, of the county.”

In 1953 the appointing of the two citizen commissioners was transferred by amendment (L. 1953, c. 240, § 1; N. J. S. A. 2A:68-1) from the Governor to the Supreme Court. The clear intent of tire Legislature in enacting this legislation is set forth in the Statement appended to Assembly Bill 2 of 1953 which became L. 1953, c. 240. That Statement reads as follows:

In his Annual Message to the Legislature on January 13, 1953, Governor Driscoll again urged that “the authority to appoint jury commissioners be transferred to the Supreme Court where it naturally belongs.” He pointed out that: “The jury system is an integral and very important part of our judicial system, and it should be administered as part of the general administration of justice. Such a step could, moreover, develop into a useful contribution to improved law enforcement.”
This bill would implement the above recommendation of the Governor.

See also, Editorial, 73 N. J. L. J. 20 (January 19, 1950), entitled “A Proposed Improvement in the Jury System.” A copy is appended to this opinion.

That jurors should be selected by commissioners appointed by the courts was one of the recommendations adopted by the American Bar Association in July 1938. The essential character of this recommendation is stressed in Minimum Standards of Judicial Administration (National Conference of Judicial Councils, 1949) edited by former Chief Justice Arthur T. Vanderbilt, as follows:

The efficacy of jury trials depends as much on the caliber of the jurors as on the character and training of the trial judges and the powers accorded them in the conduct of jury trials. The caliber of the juries in turn hinges on the mode of selecting them. In selecting jurors, the elimination of political influence is a paramount consideration. This can never be accomplished when the jury commissioners are politically elected or appointed officials. Therefore, the recommendation for the appointment of jury commissioners by the courts is a fundamental one. [at 147]

Pursuant to its constitutional grant of authority to pass general laws for “selecting, drawing, summoning or empaneling grand or petit jurors” (N. J. Const. (1947), Art. IV, § VII, par. 9), the Legislature has, in addition to its enactment of L. 1953, c. 240, provided a comprehensive series of statutes relating to jurors and jury panels. N. J. S. A. 2A chapters 68 through 79. In doing so, it has vested exclusively in the assignment judge for the county the ordering, selection, processing, and assignment for trials of petit jury panels in the county. The assignment judge must determine the number of persons on the petit jury list, N. J. S. A. 2A :70-1; he is required to check closely the petit jury list prepared by the jury commissioners and may, in his discretion, strike therefrom the name of any person, N. J. S. A. 2A:70-2; he or a judge designated by him is required to supervise the drawing of petit jury panels, N. J. S. A. 2A:71-2; he may, in his discretion, “divide the general panel of petit jurors summoned for the trial of causes in the county into 2 or more separate panels and designate the court and place in which each separate panel shall serve and the period of service,” N. J. S. A. 2A :71-8; and he may direct that the panel of petit jurors drawn “shall serve ohty during a designated part of the next ensuing stated session of the court,” N. J. S. A. 2A:71-9.

Similarly, B. 1:33-3 (a) imposes upon the assignment judge, subject to the direction of the Chief Justice or rule of the Supreme Court, the responsibility “for the administration of civil and criminal justice and for the administration of all courts in the county for which he is the Assignment Judge,” with duties including:

(1) The supervision of all trial judges sitting in the county and of all court clerks and other officers and employees of or serving the trial courts in the county.
(2) The supervision of the jury commissioners, the selection of all grand and petit jurors, and the organization and operation of the grand jury in the county.
(3) The supervision and expeditious movement of the civil and criminal trial calendars of the Superior and county courts and, through the judge or presiding judge thereof, of the juvenile and domestic relations court, the county district court and the municipal courts in the county.

And by B. 1:3A-3 jury eomznissioners are “responsible to and under the supervision of the assignment judge of the county.”

None of the statutes relating to juries places in the sheriff even the slightest scintilla of authority to supervise or direct petit jurors or petit jury panels returned to the court for jury .service in the county. Any ministerial functions which he performs for the court are under the supervision and direction of the court.

In State v. Sturdivant, 31 N. J. 165, 171 (1959), cert. den. 362 U. S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960), Chief Justice Weintraub, writing for the court, points out:

It was the ancient function of the sheriff to select and summon jurors in response to the writ of venire facias. His discretion was described as “uncontrolled.” 1 Thompson, Trials (1889), § 13, p. 12. The process was attended by abuses, chiefly the packing of juries. To guard against that evil, the English courts were authorized by statute to reform the panel by taking out names and inserting others. State v. McCarthy, 76 N. J. L. 295, 300 (Sup. Ct. 1908). To the same end, statutes today generally provide for the preparation of lists of jurors in advance of the court sessions, from which lists panels are chosen, by lot, and from which panels jurors are chosen again by lot for service in individual cases. Such, of course, is the overall plan of our statute, with jury commissioners rather than the sheriff being charged with the duty to select qualified persons for inclusion in the basic jury lists. N. J. S. 2A:70-1.

See also, State v. Pacheco, 38 N. J. 120, 130 (1962).

Dormer Chief Justice Vanderbilt, in his articles entitled “Improving the Administration of Justice — Two Decades of Development” (College of Law, University of Cincinnati, 1957), points out in regard to the functions of the assignment judge:

So that you may have a clearer idea of the function of the Assignment Judge and his importance in our administrative organization, I should like to take the time to mention specifically some of his responsibilities. He is directly responsible for the management of the civil and criminal calendars in both the Superior and County Courts and for the assignment of eases for trial. He is directly responsible for the selection of jurors in his county and for the organization and instruction of the grand jury. He generally reserves for himself those civil and criminal cases which for one reason or another are of 'extraordinary public importance. He must work with the governing body of the county to see that adequate appropriations are made for the courts financed by the county. He must generally supervise the work of the county clerk and the work of the Juvenile and Domestic Relations Court, the County District Court and the several municipal courts in his county. In short there is virtually nothing affecting the administration of civil and criminal justice in his county with which he is not concerned. In many ways the Assignment Judges are the most important part of our court administrative machinery ; for without them the entire system would break down, [at 79]

In light of all of the foregoing, it is evident that any attempt by the sheriff to interfere with the court’s functions in the supervision, processing, selection, or assignment of petit jurors or petit jury panels is inimical to the sound administration of civil and criminal justice in the county and in direct violation of the applicable rules, statutes and decisional law of the State. In Lichter v. Monmouth County, 114 N. J. Super. 343, decided April 13, 1971, the Appellate Division stressed:

The intent of the 1947 Constitutional Convention was to vest the Supreme Court with the broadest possible administrative authority. Conceptually, such authority encompasses all facets of the internal management of our courts. Cf. [In re] Mattera, supra [34 N. J. 259] at 272. This was made clear by the committee on the judiciary which considered it a fundamental requirement that the courts be vested with “exclusive authority over administration.” 2 Constitutional Convention, 1947, at 1180, 1183.

The attempt by the sheriff to impinge upon the exclusive authority of the court over the administration of the jury system, disclosed in the exhibits annexed to the order to show cause, cannot be countenanced.

Accordingly, a permanent injunction will issue enjoining and restraining John F. Oryan, Sheriff of Essex County, from in' any way interfering with or attempting to interfere with the exercise by the court, and the assignment judge thereof for Essex County, of their duties and responsibilities to supervise, process and select petit jurors and petit jury panels and assign petit jury panels for trials to the Superior Court, the Essex County Court and the Essex County District Court.

APPENDIX

A PROPOSED IMPROVEMENT IN THE JURY SYSTEM

The program of court reform which was inaugurated by the Constitution of 1947 has been primarily concerned with the roles played by the judge and the lawyer in the trial of an action. It is important that the role of a third participant, the jury, be not overlooked. We all recognize the fact, very likely as a result of bitter experience, that in the average trial at law, despite the excellence of the performance of a lawyer or even the judge, the ultimate decision of whether justice or injustice shall be meted out to the litigants lies within the control of the jury. In the development of an entire system of administering justice, the importance of efficiency and high principles in the administration of the jury system cannot be overestimated.

At the present time our jury panels are selected by two jury commissioners in each county, who are appointed by the Governor by and with the consent of the Senate. The statute, R. S. 2 :87 — 1, provides that the commissioners shall not be members of the same political party, shall not hold any public office other than that of sheriff, and shall not be licensed to practice law in this State.

A bill, S-92, was introduced into the Senate last year to amend the statute to provide for the appointment of commissioners of juries by the Supreme Court rather than by the Governor. The bill carries out a recommendation adopted by the American Bar Association in 1938. The statement to the bill indicated that the proposed amendment met with the approval of the Governor, but the bill was never reported out of committee. We believe this bill should receive favorable action for two principal reasons.

Eirst, as heretofore noted, the jury system is not an independent system; it performs a function, in the same way as lawyers and judges perform their functions, in an integrated process for the administration of justice. It is the intent and spirit of our new judicial system that the administration of the entire integrated process shall be centered in the Supreme Court. The proposed bill carries out that intent.

Secondly, the importance of the function of a jury commissioner in the judicial system is so great that he should be removed, as far as humanly possible, from the pressures and influences to which a person holding political office is often subjected. The jury system is one of the basic pillars of a free society. Its administration must be kept at all times at the highest possible level, and must never be permitted to become suspect in the eyes of the public. The proposed bill would help to insure the continued strength and integrity of our system.

       N. J. Const. (1844), Art. VII, § II, par. 6, now N. J. Const. (1947), Art. VII, § II, par. 2.

       “There is another matter that cries out for reform and lias long cried out for it. IVhy has no Legislature ever seriously and earnestly set itself to correct it? The drawing of grand juries, and even upon occasion the drawing of petit juries, is notoriously subject to political influence and control in this State, of whose processes of justice we are so proud and whose honor we are in most cases so quick to defend against question or slander. This can and should be remedied. You cannot neglect it without seeming indifferent to justice and fair play in matters which are matters of life and death and reputation and honor and which cut to the very quick of human rights. The free, prompt, unbiased administration of criminal justice has been time out of mind at the very center of the fight for individual right and liberty. It is to be hoped that the commission now investigating the various methods of governing this all-important matter will presently submit a thorough and conclusive report.”

       Also imblished in 26 Cincinnati L. Rev. 155 (1957).

      Editorial, New Jersey Law Journal, January 19, 1950 ( 73 N. J. L. J. Index Page 20)


author: Wood, William Fillmore, J. C. C.

text:
    RUTH BEGLEY, PETITIONER-RESPONDENT, v. INTERNATIONAL TERMINAL OPERATING CO., INC., RESPONDENT-APPELLANT.
    Union County Court Law Division
    Decided May 6, 1971.

      Mr. Frederick Klaessig for petitioner.

      Mr. Andrew Lawrie for respondent (Messrs. Lawrie, Jennings and Buggeln, attorneys).
   Wood, William Fillmore, J. C. C.

This is a workmen’s compensation death action brought by decedent’s widow, wherein there is very little, if any, dispute concerning the essential facts. On the other hand, the parties are in complete disagreement on the basic legal question, namely, whether the accident which caused the death arose out of and in the course of decedent’s employment. More specifically, the question is whether, under the so-called going-and-coming rule, and under the exceptions thereto that are either established by precedent or justified by reason and fairness, the accident is compensable. With respect to exceptions to the general rule, this case presents a question that has never been decided in this State.

The judge of compensation decided the case in favor of petitioner and respondent appeals.

Decedent was employed by respondent as a pier superintendent at the Elizabethport Marine Terminal in the Port Newark area of Elizabeth. His duties were to supervise the loading and unloading of ships. He regularly worked five days a week, Mondays through Fridays. Normally he began work at about 8 a.m. and quit at about 5 or 6 p.m. However, at times, whenever there was in the terminal a vessel that required loading or unloading, he had to work as late as 9 p.m. His salary was $260 for the five-day week, regardless of the number of hours worked. On occasions he was called upon to work Saturdays or Sundays. Work on those days was considered overtime, and for this overtime work he was paid $35 a day, irrespective of whether he worked a full day or only a fraction thereof.

Because decedent’s duties necessitated Ms travelling frequently from place to place within the terminal area during the course of a day’s work, and because of the substantial distances between the various places where he worked, it was established practice for him to use his own car for such travel. The only exception to that practice was when one of respondent’s vehicles was available for his use, but respondent’s vehicles were never available when there was a ship in the pier to be loaded or unloaded. There was such a ship in the pier, and consequently decedent actually used his car for employment purposes, on the date of the accident.

The evidence does not indicate that respondent actually required or ordered decedent to use his car. However, since, as above indicated, no other mode of transportation was available to him when there were ships in the terminal requiring his services as supervisor, the use of his own car at such times must have been, under the circumstances, a practical necessity. In any event, respondent compensated decedent for his car use at the rate of 12 cents a mile, thereby indicating that it recognized and accepted such use as being substantially beneficial to its enterprise. Moreover, decedent’s immediate supervisor, appearing as a witness for respondent, testified that, although decedent could perform his duties without a car, to do so “would cause a very slow process”; and respondent’s general operating manager, likewise appearing as respondent’s witness, conceded that decedent’s use of his car was “productive.” The compensation did not include the distance travelled to and from decedent’s home (which was in Staten Island, New York) to the terminal.

Decedent’s death was caused by a collision of his car with an item of road construction machinery known as a baekhoe or crane. The accident occurred on a public street on Saturday, January 27, 1968,.at about 6:15 p.m., shortly after decedent had left his place of employment and while he was apparently on his way home. It was dark and the baekhoe was parked on or near the street without adequate lighting or sufficient barricade.

Under these circumstances, the accident is not compensable unless it comes within an exception to the general rule that Workmen’s Compensation Act benefits are not payable for accidental injury or death occurring while the employee is in the process of travelling between his home and his place of employment. Morris v. Hermann Forwarding Co., 18 N. J. 195 (1955).

One long-recognized exception to the above rule allows compensation in cases where the employer pays for or otherwise provides transportation between the home and the employment site. However, under this exception, as illustrated by Morris, where the employer provides transportation only during the time and in the area of actual employment, and/or only for a portion of the distance between the employment area and the employee’s home, workmen’s compensation liability ceases at the point where the employer-provided transportation terminates.

In Morris decedent lived in New Brunswick in Middlesex County, New Jersey, and worked as a travelling salesman. His sales areas were New York City and the New Jersey Counties of Bergen, Hudson and Essex. His employer paid all of his travelling expenses within those areas and also paid his train fare between those areas and New Brunswick. The accident occurred while decedent, after having completed his day’s work and returned to New Brunswick by train, was on his way from the train station to his home. Although decedent used a bus to go from the station to a point within the vicinity of his home, his bus fare was not paid by his employer. The court held that the accident was not compensable since decedent left the scope of his employment when he departed from the station.

In so far as the employer’s payment for transportation is concerned, the facts in the present case are strikingly similar to Morris. In both cases decedent had, at the time of the accident, gone beyond the point to which or the area within which the employer provided transportation.

Petitioner took the position that in the present ease the employer did.pay for transportation from the place of employment to decedent’s home. To support her position she relied upon the fact that decedent’s immediate superior referred to the $35 a day payable for work on Saturdays or Sundays as “expense money” or money that covered the “normal expenses for coming to and from work and incidentals.” While at first blush petitioner’s view might appear to .have some merit, it must, upon critical analysis, be rejected since it rests too heavily upon semantics. To accept her view would mean that the right to workmen’s compensation would depend upon the particular term used to describe a general payment by an employer to an employee for the latter’s services. Moreover, while decedent and his immediate superior may have referred to the per diem payment for Saturdays and Sundays as expense money, the testimony of the general operating manager indicates that this term was not used or authorized by respondent itself. It follows that the payment-for-transportation exception to the general rule does not help petitioner’s cause.

Petitioner also stressed the facts that decedent worked irregular hours and that there was no convenient public transportation for him to use to travel from his home to the place of employment and she contended that these circumstances are an appropriate basis for another exception to the going-and-coming rule in cases where injury or death arises out of the employee’s use of his own car or other private transportation. However, in these days when many large industrial employers are rapidly moving from the larger cities to suburbs or other areas where there is little or no public transportation, and when needed public transportation even to and within the larger cities is diminishing, to accept petitioner’s contention, under the circumstances of this case, would eventually lead to an almost complete elimination of the going-and-coming rule. Elimination of the rule might be a good idea in any event (see Hammond v. Great Atlantic & Pacific Tea Co., 56 N. J. 7 (1970)), but of course this court, being at the trial level, has no authority to overrule long-established and widespread precedents of the appellate courts.

O’Reilly v. Roberto Homes, Inc., 31 N. J. Super. 387 (App. Div. 1954), cited by petitioner as precedent for an exception to the general rule in situations where an employee uses his own car because public transportation is not readily available, does not rest upon such an exception at all. In that case it appeared that decedent was actually paid on an hourly basis for the time needed for travelling between his home and his place of employment site. Although reference was there made to the fact that the decedent had to travel during odd hours “when bus transportation was unlikely or at best round about travel,” the court’s decision actually rested upon an inference that, since decedent was paid at a three-hour rate when his duties and travel required no more than about an hour and a half, the use of his automobile “was part of the arrangement for which he was compensated.” Thus, O’Reilly is nothing more than another example of the application of the payment-for-transportation exception.

Although petitioner’s contention that this ease falls within the payment-for-transportation exception to the going- and-coming rule, and her contention that there is or should be an exception to that rule in cases of accidents arising out of an employee’s use of his own car to get to and from work when public transportation is not available or convenient, have both been rejected, she is nevertheless entitled to a compensation award. Her right to compensation rests upon the principle that whenever an employee, because of contract, necessity, express permission or established and accepted practice, uses his car regularly or frequently in connection with his employment and for the employer’s benefit, he is within the scope of his employment when transporting the car to and from the place of employment in order to have it available for such use. While 1 have found no clear New Jersey precedents for this principle, it is supported by reason and fairness and is consistent with current trends toward increasingly liberal construction of our Workmen’s Compensation Act. See Hammond v. Great Atlantic & Pacific Tea Co., supra. The principle is also supported by precedents in other states. Borak v. H. E. Westerman Lumber Co., 239 Minn. 327, 58 N. W. 2d 567 (Minn. Sup. Ct. 1953); Pittsburgh Testing Laboratories v. Kiel, 130 Ind. App. 598, 167 N. E. 2d 604, 607 (Ind. App. Ct. 1960).

Furthermore, the principle herein announced is not without significant judicial support in this State. Cf. Demerest v. Guild, 114 N. J. L. 472 (E. & A. 1935). That was a negligence case involving a question identical to the one presented here, namely, whether the employee was in the course of employment at the time of an accident occurring while the employee was on the way home. The employee, defendant Edith Guild, lived in Dunollen and worked for co-defendant Metropolitan Life Insurance Company as a visiting nurse in the area of Union City, where the offices of the company were located. She had to use her car in connection with her work. The accident occurred after Mrs. Guild had finished work and had arrived at a point on her way home that was much nearer her home than it was to her employment area. Although the Company paid Mrs. Guild $20 a month for use of her car, the court decided the case on the assumption that this payment was for use of the ear only in the employment area. This assumption (which appears to be correct) makes that case factually similar to the one here present. In reversing the trial judge’s directed verdict in favor of Metropolitan on the ground of lack of agency between Mrs. Guild and that company at the time of the accident, the court stated:

In order to get the ear to the district in which she worked it was necessary for her [defendant Guild] to drive it from her home to the Union City district where she was employed. It seems to us that this use of the car in driving from her home to the district where she was employed and after her duties in the district had been performed in driving the car back to her home was for the benefit not only of Mrs. Guild but also of the company which employed her. [at 475-476]

Decedent’s use of his car in connection with respondent’s business was not merely casual or incidental. On the contrary, it was both frequent and substantial. At times the car was so used for as much as 200 to 500 miles a month.

The decision of the judge of compensation is affirmed.


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

text:
    A-126-69
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT, v. ETHEL W. PROBASCO, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1970
    Decided December 21, 1970.

      Before Judges Conford, Kolovsky and Carton.

      Mr. David A. Biederman, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General, and Richard L. Bonello, Fsq., attorneys).

      Mr. Ralph 8. Heuser, Jr. argued the cause for respondent Ethel W. Probaseo (Messrs. Heuser & Heuser, attorneys; Mr. Ralph 8. Heuser, of Counsel).
   The opinion of the court was delivered by

Conford, P. J. A. D.

In this condemnation case, tried to a jury, involving two separate properties of the same owner, bnt differently located, the trial judge vacated the jury verdict as to both properties on the ground that the testimony of the State appraisal expert, Walter H. Geary, “was wilfully false, * * * was of a substantial natnre, conld have affected the creditability of the witnesses” of the landowner, “impeded cross-examination * * * as to a comparable property * * * and could have had an * * * influence” upon the jury’s verdict. We granted leave to appeal.

Essentially, the trial court determined that the named witness testified willfully falsely in that he failed on direct examination to cite or nse as a “comparable sale” a sale from Mapland Corporation to Jersey Central Power and Light Company of nearby property, and that he explained on cross and re-direct examination as his reason for failure to use the sale that the buyer was under stress of a special need to obtain land in the particular area for use as a substation to replace an existing sub-station being eliminated by a new jughandle on the highway. The basis for the conclusion of willful falsity of the foregoing was the circumstance that the same .witness, in testifying for the State a few days later in another condemnation case but before a different judge, as to the value of property of one Kaupelis located in the general area of the Probaseo and Mapland properties, had there cited and relied on the Map]and-Jersey Central sale in arriving at his valuation.

On the argument of the motion to vacate the judgment before the trial court the State requested the opportunity to have Geary explain by deposition his use of the Mapland sale in the Kaupelis ease in the light of his failure to use it in the instant case, no inquiry as to that question having been addressed to him in either trial, but the request was denied. We ordered such a deposition to be taken, in the exercise of our original fact-finding jurisdiction, and will refer to it later, but we are of the view that the action of the trial court was unjustified without regard to the contents of the deposition.

We emphasize at the outset that the jury verdict was not set aside on the ground that it was against the weight of the evidence, notwithstanding that was one of the grounds of the motion to set aside the verdict, but only for the assertedly willfully false testimony of the State’s appraisal expert.

It is clear that willfully false testimony of a witness may in some circumstances justify setting aside a verdict or judgment. But there are stringent qualifications on the appropriate exercise of the power to vacate on that ground. They have been stated as follows in Shammas v. Shammas, 9 N. J. 321, 330 (1952) :

“. . . Perjured testimony that warrants disturbance of a final judgment must be shown by olear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. Further, a party seeking to be relieved from the judgment must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial or that for other good reason the failure to use diligence is in all the circumstances not a bar to relief. Balip Automotive Repairs, Inc. v. Atlantic Casualty Ins. Co., supra. Clearly the necessity to satisfy these tests before the judgment may be disturbed is itself a deterrent to repeated litigation of the same factual issues.” (Emphasis ours).

See Balip Automotive Repairs, Inc. v. Schroeder, 8 N. J. Super. 238 (App. Div. 1950), aff’d, Balip Automotive Repairs, Inc. v. Atlantic Casualty Insurance Co., 7 N. J. 152 (1951); Cermak v. Hertz Corp., 53 N. J. Super. 455 (App. Div. 1958), aff’d o. b. 28 N. J. 568 (1959).

In the present ease, the allegedly false testimony being that of an expert witness, the general rule aforestated must be further refined to reflect the concept that to be accounted perjurious the rendition by a witness of an opinion must be shown to have been adduced in bad faith, i- e., that the opinion was one which in fact the witness did not entertain. State v. Sullivan, 25 N. J. Super. 484, 490 (App. Div. 1953), certif. den. 13 N. J. 289 (1953); State v. Sullivan, 24 N. J. 18, 43 (1957) (per Weintraub, J., dissenting).

Here, willful falsity by Geary could be predicated only on either (1) falsity of the witness’s testimony in this case, on cross and re-direct examination, that in effect the Mapland sale was made under the influence of some compulsion on the part of the buyer or (2) that Geary’s omission of use of the sale when testifying on direct examination was in bad faith, his true, concealed opinion being that the sale did have a bearing upon his evaluation of the parcels under appeal.

As to the first hypothesis of falsity, the theory of compulsion in the sale could be argued both ways, and Geary was vigorously cross-examined on the point. He said discussions with Jersey Central officials supported his view of the sale. If the property owner disputed the factor of compulsion she could have offered rebuttal on the point by her own expert witness, who did cite the sale as a comparable in his testimony (but only as to the “small” Probasco parcel, not the “large” one; see infra). Thus (1) subject to the effect to be given the transcript of Geary’s testimony in the Kaupelis ease, as to which see infra, the trial court had no fair basis for finding Geary’s testimony willfully false as to the fact of an element of compulsion in Jersey Central’s purchase; and (2) there was no satisfaction of the requirement for relief that the defendant should have been without the means to refute the fact at the trial. Shammas v. Shammas, supra (9 N. J. at 330).

In dealing with the second potential theory of falsity of the testimony —• bad faith in failure as an expert witness to use the Mapland sale in evaluating the property under condemnation — some further explanation of the facts is necessary. Gearv’s failure below to use the Mapland sale is pertinent in the present context only to his valuation of the small Probasco piece, which is situated on the east side of Millhurst Tennent Eoad, a short distance south of Eoute 33. He was challenged by defendant on the sale only as to the small parcel. None of the witnesses on either side (the property owner had three experts) cited the sale as pertinent to the valuation of the large Probasco parcel which occupies the northwest corner of Eoute 33 and Millhurst Tennent Eoad, apparently because of the great size and depth of the latter. The Mapland parcel was on the east side of Millhurst Tennent Eoad, but became connected with Eoute 33 by a 35-foot easement grant which Jersey Central negotiated at about the time it purchased from Mapland. The Kaupelis property is on the south side of Eoute 33, some distance east of Millhurst Tennent Eoad, and directly across the highway from the Jersey Central easement. Eoute 33 was zoned commercial on both sides, but the small Probasco parcel was zoned residential at the time of the taking, being a vacant lot between two old residences. Geary testified that its highest and best use was for residential purposes. The liaupelis property was the site of a tavern when taken.

As a matter of law and good real estate appraisal practice, the comparability of a sale to a subject property is a matter of the judgment of the individual appraiser, and different appraisers can and frequently do have good-faith differences of opinion. The comparability of a sale to a given subject property is not necessarily a mandate of its comparability to another subject property, even if located in the same general area. Differences in the highest and best use, the actual or intended use, the zoning of the respective subject parcels, or other factors may legitimately lead an expert to the conclusion that the sale has probative valuation weight in relation to the one subject parcel but not to the other.

The essential criterion in an expert’s decision to use a sale as a comparable is a substantial similarity of conditions. See the discussion in Moorestown Tp. v. Slack, 85 N. J. Super. 109, 113-114 (App. Div. 1964), certif. den. 43 N. J. 452 (1964). But the expert may well discount dissimilarity of one or more conditions, if there is siuch similarity as to others so that, after adjusting for the dissimilarities, there remains such educational value in the sale price as to help the appraiser in valuing the subject property. Id., at 114. The differences requiring consideration, and, perhaps, adjustment, may include those as to physical aspects, degree of improvement, actual or highest and best use, location, time or date of sale and the degree of deviation from the willing buyer-willing seller concept (e. g., as here, pressure on the buyer to buy or on the seller to sell). Id., at 115.

The gist of the reason for the trial court’s decision that Geary here gave willfully false testimony was that he used the Mapland sale as a comparable in the Kaupelis ease but not in this one. But he was not questioned in Kaupelis concerning any factor going to the concept of willing buyer-willing seller as to that sale. Eor reasons hereinabove explained, Geary may well have considered that the Mapland sale was usable in valuing the Kaupelis property, after adjusting for the factor of compulsion in the sale, because of the outweighing factors of similarity of character of special use (commercial or industrial) and direct access to Route 33, with its high commercial location-value factor, and nevertheless rejected the sale in valuing the small Probasco piece because of tire residential zoning and highest utility of the latter for residential purposes. In the deposition given by Geary after argument the foregoing is essentially, with some differences in detail and emphasis, the approach he took in explaining why he used the sale in testifying in the Kaupelis case but not in this one. If Geary omitted the Mapland sale in his testimony in the present case for the dishonest purpose of keeping from the jury the relatively high value reflected by the sale, it is difficult to understand why he would not have had the same motive to omit the sale in testifying for the State in the Kaupelis case a few days later, where it was also to the State’s interest to show lower location value. Yet he did cite it there.

The question here is not the soundness of Geary’s approach or the probative weight of Ms testimony. That was for evaluation by the jury, which had the Mapland sale details before it, furnished, as noted above, by one of the defendant’s experts. The verdict has not been held to be against the weight of the evidence. The issue is solely whether what the trial court had before it, including the transcript of the Kaupelis trial, justified a nullification of the instant verdict on the basis of a finding that Geary gave willfully false testimony in the present case or omitted the Mapland sale in his testimony dishonestly. We are firmly of the view that no such conclusion should have been drawn — much less that such alleged willful falsity or dishonesty was shown “by clear, convincing and satisfactory evidence” or that Geary’s testimony as to the sale in either its positive or negative aspect could not reasonably have been met by defendant at the trial and that it “probably * * * controlled the result”. Shammas v. Shammas, supra (9 N. J. at 330).

We are not in accord with the view of our dissenting colleague that the matter should be remanded for redetermination by the trial judge as to the merits of the motion for new trial so far as based on the weight of the evidence. The judge’s conclusions do not suggest a view by him that if Geary’s testimony were not impugnable as willfuly false the verdict would be against the weight of the evidence. He could well have adopted that as an alternative ground for granting a new trial had that been his opinion but he did not. The verdict was, in our opinion, well within the evidence. Indeed, as to the large Probasco tract, as noted above, no witness on either side used the Mapland sale.

Reversed.

Carton. J. A. D.

(dissenting). The omission by the State’s expert witness in his direct testimony of any reference as a comparable to the recent sale of a tract in the immediate vicinity of the property being taken seems incongruous in light of his use of the very same sale only four days later in support of his opinion as to the value of similarly situated property being acquired by the State. The fact that the expert had made a field survey of all the tracts in this small area, that only a few sales were used as comparables, some of Which involved properties more distant from the subject property than the Mapland sale, and that the Mapland property does appear to bear certain similarities to the property taken by the State underscores the omission of any reference to it. Especially is this so when it is recalled that the expert sought to justify the omission by the assertion that to consider the Mapland property as a comparable “would be grossly misleading.”

Although these circumstances render this witness’s testimony highly vulnerable to attack, they do not rise to the level of demonstrating by “clear, convincing and satisfactory evidence” that such testimony was willfully false or dishonest. Therefore, I agree with the view of the majority that a new trial should not have been granted on that ground. I differ, however, as to the disposition of this cause. The trial court, in view of its conclusion, found it unnecessary to consider the alternative ground presented by defendants in quest of a new trial. I would remand the matter for a determination as to whether the verdict was contrary to the weight of the evidence.

Value is the central issue in an eminent domain proceeding. In determining the amount to be awarded to the property owner, the jury must make its determination in large measure on the basis of opinion evidence of expert witnesses. The validity of any such opinion evidence, and in turn, the weight to be attributed to it, depends heavily on which proximate property sales the expert uses as the basis for his opinion, the reasons for their asserted comparability, and the exclusion of other sales from consideration. Here, the sale price of the omitted property, if accepted as a comparable, would have justified a much higher verdict than the jury saw fit to award. That verdict closely followed the conclusion offered by the State’s expert Geary as to the value of both parcels being acquired. Inescapably, the jury attributed great weight to the critical testimony of this witness, the only one offered by the State as to value. The trial judge was in a peculiarly advantageous position to gain the feel of this case through observation of the demeanor of this witness during the course of the several days of trial. In view of all the circumstances and the strong doubts Judge Crahay expressed as to the credibility of this witness, it is my view that the matter should be remanded for a determination of the merits of the alternate ground urged for a new trial.


author: Pee Cubiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CURTIS COX, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 11, 1971
    Decided January 19, 1971.

      Before Judges Goldmann, Leonabd and Mountain.

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

      Mr. Michael H. Stieber, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. David S. Baime, Assistant Prosecutor, of counsel).
   Pee Cubiam.

Defendant and Anna Coltrane were jointly indicted for illegal possession of heroin. Coltrane apparently skipped bail; defendant was tried to a jury, found guilty, and sentenced to a State Prison term of 3-5 years and a $25 fine. This appeal ensued.

Briefly, Sergeant Bimbo and Detective Cleary and Paxiso went to apartment E-3 at 18 Custer Place, Newark. They stood in the common hallway just outside the apartment door for a few moments and during that time heard a female voice say, “These bags are wrapped sloppy. The junk is falling out.” A male voice replied, “They’ll buy it. No matter.” Bimbo testified that he recognized this conversation as referring to narcotics. The officers knocked at the door, a woman opened it on a chain lock, looked out and said, “The man. Get rid of the stuff,” at which point the police made a forced entry. As they entered they saw 15 loose glassine envelopes on a coffee table in the living room. Present in the apartment were two women — one of them Coltrane —• and defendant. Defendant and Coltrane were placed under arrest and the apartment searched. Glassine envelopes were found in a brown teapot.

Detective Cleary’s testimony supported what Bimbo had said, adding that they found a key case containing glassine envelopes, tinfoil packages containing a white powder, and a plastic bag containing more powder, in addition to what was on the living room table and in the teapot.

Defendant first argues that it was plain error to receive the narcotics in evidence; at the least, an evidentiary hearing should be held to determine whether defendant waived his right to move to suppress the evidence before trial. R. 3:5~? (a) (formerly R. R. 3:2A-6) requires that a motion to suppress evidence obtained by search or seizure be made within 30 days after the initial plea, unless the court for good cause enlarges the time. If timely motion is not made, a defendant is deemed to have waived any objection to the admission of the evidence. Defendant never moved to suppress, nor did he at any time during trial object to the introduction of tire drugs. R. 3:5-7 is strictly adhered to. State v. Fair, 45 N. J. 77, 85-86 (1965); State v. Morse, 106 N. J. Super. 1, 4 (App. Div. 1968), aff'd 54 N. J. 32 (1969). Defendant relies on State v. Burton, 99 N. J. Super. 52 (App. Div. 1968), an entirely distinguishable case.

If defendant attempts to shift the blame on trial counsel, he must fail; his attorney gave him quite adequate representation. State v. Woodard, 102 N. J. Super. 419, 429 (App. Div. 1968), certif. den. 53 N. J. 64 (1968), cert. den. 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1968).

We conclude that the narcotics seized were properly received in evidence. Whatever led the officers to the apartment door, there was nothing wrong in law with their listening and then acting on what they heard. State v. Kuznitz, 105 N. J. Super. 33, 37 (Cty. Ct. 1969). Defendant would have had them get a search warrant. The reasonableness of a warrantless search depends on the circumstances present at the moment. A policeman cannot be expected to strip himself of his experience and expert knowledge. State v. Contursi, 44 N. J. 422 (1965). The situation here demanded immediate action; there might have been nothing to seize had there been any delay. A search warrant was not necessary.

Defendant argues that the search which followed the arrest was illegal. Not so. The narcotics were in plain view on the living room table, and the rest of the contraband was obviously in the control of Coltrane and defendant, i. e., within the ambit of possession. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), does not factually apply in the present circumstances and, further, should not be given retroactive effect.

The next main attack is on alleged errors by the trial judge in the reception of evidence. We conclude that: (1) The ruling that defense counsel could not inquire as to Coltrane’s whereabouts was proper. She was not being tried; defendant was, and whether Coltrane fled or not was not relevant with respect to defendant’s guilt or innocence. Moreover, the scope of cross-examination was within the judge’s sound discretion. (2) The ruling that defense counsel could not inquire into Officer Bimbo’s prior knowledge of Coltrane as a narcotics user and a prostitute was correct, not only because it represented a proper exercise of judicial discretion but also because it was not relevant to defendant’s guilt or innocence. (3) The trial judge properly permitted the State to rebut defendant’s testimony that Coltrane had not said to him, “Aren’t you going to take the weight for this?” Rebuttal testimony for the purpose of contradicting a specific subject introduced on cross-examination of a defense witness is proper. State v. Steensen, 35 N. J. Super. 103, 107 (App. Div. 1955). The trial judge also properly restricted defense counsel’s cross-examination on the rebuttal because that cross-examination was directed to matters other than what was presented on rebuttal.

The Public Defender has presented a number of points at defendant’s special request, and we dispose of them summarily. (1) The verdict was not against the weight of the evidence. See R. 2:10-1. (2) The trial judge’s charge on constructive possession accorded with what was said in State v. Reed, 34 N. J. 554 (1961), where the court cited State v. Lobato, 7 N. J. 137, 148 (1951). (3) It was not error to permit the State to move the indictment against defendant alone. Coltrane had jumped bail, and defense counsel knew it. (4) Defendant was not denied a preliminary hearing. He admits that he cannot document his contention and his counsel says that he is unable to affirm or disaffirm it. The record shows that a preliminary hearing was in fact held. And, as was said in State v. Smith, 32 N. J. 501, 536 (1960), cert. den. 364 U. S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1960), the right to a preliminary hearing “is not so vital that the failure to afford it will invalidate an indictment or a conviction. The right was not known at the common law and is not a constitutional requirement.”

Affirmed.


author: Feller, J. S. C.

text:
    EDWARD GARY REISDORF, JOSEPH J. STYPA, DAVID A. WALSH AND JOSEPH J. McMAHON, PLAINTIFFS, v. MAYOR AND COUNCIL OF THE BOROUGH OF MOUNTAINSIDE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 27, 1971.

      Mr. Robert II. Jaffee for plaintiffs (Messrs. Reisdorf & Jaffe, attorneys).

      Mr. Murray Staub for defendants (Messrs. Irwin, Post & Staub, attorneys).
   Feller, J. S. C.

This is an action in lieu of prerogative writs. Plaintiffs move for summary judgment and defendants have filed a cross-motion for summary judgment. Counsel agree that there is no genuine issue of fact involved.

With reference to the specific questions raised under the statutes, there have not been many court decisions construing and interpreting these statutes on these particular questions. Thus it has been necessary to resort to court decisions involving similar situations, and to resort to the definition of words and phrases used in the statutes, as well as other factors in an attempt to interpret the same.

Plaintiffs contend that on February 16, 1971 defendant enacted an ordinance known as Ordinance No. 438-71; entitled “An Ordinance to Amend Ordinance No. 257-58 and to Provide for the Establishment of New Election Districts and the Location of said Election Districts within the Borough of Mountainside.”

Public notice that the ordinance was passed after second reading and notice of public hearing given by publication of the ordinance in the Mountainside Echo on February 18, 1971. The publication did not include a copy of the redistricting map and no prior publication of such map was made.

Plaintiffs further contend that prior to the redistricting, the number of registered voters in the five districts of Mountainside were as follows: 681 voters in the First, 1,166 in the Second, 582 in the Third, 964 in the Fourth, and 937 voters in the Fifth District. In the First and Third Districts there was one voting machine utilized during the election, and in the Second, Fourth and Fifth Districts two.

Plaintiffs state that it is also important to note that the number of registered voters and the number of ballots cast in each of the five districts has not increased in any significant manner in the last five years. They contend that defendants had no authority to enact the Ordinance under N. J. S. A. 19:4-6 and 19:4-7. Plaintiffs state that N. J. S. A. 19:51-1 is applicable, that defendants violated its provisions, and there was not proper publication of the ordinance; that the map was not set out in the body of the ordinance but only referred to and was advertised in the same way.

Defendants contend that because of a substantial increase in population in Mountainside since 1958 when the election districts were established, and because that increase resulted in a serious differential between the number of voters in the districts, the borough council determined that it would be in the best interests of the voters to readjust and subdivide the election districts. At the time of such determination the borough was divided into five election districts, three of which were districts in which more than 600 votes had been cast in the last two general elections. Ordinance No. 438-71, which provided for the establishment of new election districts and their location, divided the borough into ten election districts, none of which contained more than 550 or less than 350 registered voters. In adopting the ordinance the readjustment will not require that the Union County Board of Elections, which supplies the borough with voting machines, purchase any new machines, nor will there be any more than a nominal additional expense to such board (if there is any additional expense at all) for election workers.

Defendants contend that N. J. S. A. 19 :51-1 is not applicable; that the ordinance represented a proper exercise of power under N. J. S. A. 19 :4-6 and 19 :4-7, and that the ordinance was properly published when it referred to the map on file in the office of the borough clerk.

Plaintiffs contend that the action of the mayor and borough council violates N. J. S. A. 19 :51-1. This statute provides that election districts in which voting machines are to be used may be altered, divided or combined by the county board of elections so as to provide that each district in which one machine is to be used shall contain, as nearly as may be, 750 registered voters; districts with two machines approximately 1,000, and districts with three machines approximately 1,500 registered voters. The statute provides that nothing contained therein shall prevent any election district from containing a lesser number if necessary for the convenience of voters, but this must be determined by the county board of elections. It is therefore evident that this statute alone does not permit the readjustment of election district boundary lines by the local governing body when there are voting machines.

In considering this case it must be remembered that N. J. Const. (1947), Art. IV, sec. 7, par. 11, provides, that any law concerning municipal corporations formed fox local government shall be liberally construed in their favor, and the powers of such municipal corporations include not only those granted in express terms but also those of necessary ox fair implication, or incident to the powers expressly conferred or essential thereto, and not inconsistent with or prohibited by the State Constitution or by law.

Courts are enjoined by our Constitution and Home Rule Act to interpret statutes liberally in favor of the existence of local power to deal with local needs. Whelan v. New Jersey Power and Light Co., 45 N. J. 237, 251 (1965).

N. J. S. A. 19 :4 — 6, par. 1, provides that when, in any two consecutive elections in any election district, over 600 or less than 250 votes have been cast in counties other than counties of the first class, the governing body of the municipality may readjust the boundary lines of such election district or other election districts as may be necessary to effect the change, so that none of the election districts affected shall have more than 550 or less than 350 registered voters. Eor this purpose the governing body shall have power to consolidate any number of election districts and subdivide the same.

N. J. S. A. 19 :4 — 6, par. 3 provides that in redistricting election districts using voting machines, a like procedure may be followed, provided that in counties other than counties of the first class the municipal governing body shall upon notice from the county board redistrict the election districts in which voting machines are to be used.

The record shows that in two consecutive elections (1969 and 1970) over 600 votes were cast in most of Mountainside’s election districts. Since Union County is a county of the second class and voting machines are used, N. J. S. A. 19 :4-6, par. 3, applies. Paragraph 3 says that “a like procedure may be followed”. The only logical and legal conclusion is that this refers to the procedure set out in paragraph 1 which gives the governing body the right to readjust the district lines so that election district affected shall have more than 550 or less than 350 registered voters. “A like procedure” means having the same qualities, or characteristics similar to or in the same manner, in following the mode of proceeding by which a legal right is enforced through the successful application of proper remedies. See Webster’s New Collegiate Dictionary, 487 (1960); Black’s Law Dictionary (3d ed., 1430).

Therefore, it is the opinion of this court that under N. J. S. A. 19 :4-6 Mountainside had the authority to readjust the district boundary lines. As a result of the redistricting the following results were attained. District 1, 421 registered voters; District 2, 439; District 3, 453; District 4, 459; District 5, 426; District 6, 406; District 7, 418; District 8, 447; District 9, 442, and District 10, 427 registered voters. In no district are there more than 550 or less than 350 registered voters.

At oral argument the court raised the question of whether this procedure may be followed only upon notice from the county board of elections, which the statute provides for. The county board had not given the municipality notice to realign the districts. However, it is apparent that the county board acquiesced in the action of the mayor and the governing body of Mountainside and raised no objection. The record shows that the office of the clerk of the board of elections was duly notified by the governing body that the ordinance readjusting the election districts had been adopted; that a copy of the map of the newly established election districts was provided, and that on March 23, 1971 the clerk’s office mailed to each registered voter in Mountainside a notice advising him of his new election district. There was substantial compliance with the statute.

N. J. 8. A. 19 :4^6 also states that in every district change or readjustment, geographical compactness shall be maintained and as nearly rectangular as possible. Plaintiffs contend that an examination of the map of the ten new election districts referred to in Ordinance No. 438 — 71 clearly shows that districts drawn violate the statutory requirement of geographical compactness and rectangular shape, and, therefore the ordinance is ultra vires and of no force and effect.

Defendants argue that the district lines were drawn with the intention of making the districts as nearly rectangular as possible, and to keep the number of registered voters in each district as equal in number as possible; and that it was necessary in a number of instances for the district lines to follow the pattern of the street lines.

An examination of the map reveals that District 3 is anything but rectangular in shape. There seems to be a narrow bottleneck toward the center. However, the district seems to be somewhat wedged in by the Watchung Beservation on the north and the Town of Westfield on the south. The narrowest part of the borough is in the western section.

The proper construction and interpretation of N. J. 8. A. 19 :4-6 would seem to be that the governing body, in readjusting the boundary lines of the district so that there shall be no more than 550 nor less than 350 registered voters, shall maintain each district as nearly rectangular as possible. This does not make it mandatory that each district be rectangular — only that each district be maintained as nearly rectangular as possible. In Black's Law Dictionary (3d. ed.) 1385 the word “possible” is defined as “capable of existing or happening, feasible.” The word does not mean probability, but denotes extreme improbability without excluding the idea of feasibility. Therefore, absent proof indicating an abuse of this power, this court holds that the redistrieting was within the requirements of the statute. See Stroud v. McCallen, 53 N. E. 2d 422, 424, 425 (Ill. Sup. Ct. 1944).

The judiciary does not pass upon the wisdom of a municipal ordinance, nor does it nullify decisions of a governing body merely because there is disagreement as to the wisdom of municipal action, or a debatable issue has been presented. Fred v. Mayor, etc. Old Tappan, 10 N. J. 515 (1952).

Eurthermore, factual support for local legislative action is presumed. Barring a showing contra, the assumption is that the measure has a rational basis within the knowledge and experience of municipal law makers. Guill v. Mayor, etc., Hoboken, 21 N. J. 574, 581 (1956).

The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable. Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957).

Assuming, arguendo, that N. J. S. A. 19 :4-6 did not give defendants the authority to redistrict the borough, it is certain that N. J. S. A. 19 :4-7 did. The latter statute provides, in substance, that where it appears that certain districts contain an unreasonably larger or smaller number of voters in comparison with others, the elective governing body of the municipality in counties other than counties of the first class may revise or readjust the election districts in the municipality without regard to whether a readjustment is authorized under N. J. S. A. 19 :4-6.

The ordinance provides that it was enacted pursuant to the authorization contained in N. J. S. A. 19 :4^6 ei seq. This would include N. J. S. A. 19 :4--7. The dispute as to this is a question of form rather than a matter of substance. The ordinance also recites, “Whereas the pattern of population growth has resulted in a serious differential in comparative numbers of voters in the present election districts * * *.” This complies with the provisions of N. J. S. A. 19 :4-7, which states that “Where it appears that * * * certain districts contain an unreasonably large or small number of voters in comparison with other districts.”

The record of voters before the readjustment of the districts bears this out. For example, in 1969 District 1 had 714 registered voters; District 2 1,200; District 3 612; District 4, 1,009, and District 5, 1,004. There were 46 absentee ballots, making a total of 4,539 registered voters. The record for 1970 revealed the following: District 1, 681 registered voters; District 2, 1,166; District 3, 582; District 4, 964; District 5, 937; absentee ballots, 61 — making a total of 4,330.

A study oí this record reveals that the pattern of population growth had resulted in a serious differential in the comparative number of voters in the election districts, and that certain districts contained an unreasonably large or small number of voters in comparison with other districts. Eor example, in 1970 District 2 had slightly more than twice as many voters as District 3, and approximately 58% more voters than District 1. Eurthermore, Districts 4 and 5 each had more than 200 fewer voters than District 2. The 1969 figures reveal substantially the same discrepancies, with minor variations. These differentials are excessive and go beyond the rules of moderation.

Accordingly, it is the opinion of this court that the borough was justified in revising the election districts under the terms of N. J. S. A. 19:4-7.

This decision seems to be consistent with Formal Opinion 25, issued in 1959 by the Attorney General in response to an inquiry from the Union County Board of Elections. The opinion advised that

* * * It is the spirit of R. S. 19 :4-7 that in counties other than counties of the first class, the elective governing body of the municipality should have exclusive jurisdiction over the entire question of drawing election district boundaries.
We understand that in the particular case with which you are concerned, the municipality is not in a first class county. Therefore, it is our opinion that in this case the responsibility for drawing the new election district boundaries rests with the elective governing body of the municipality.

Thus, N. J. S. A. 19:4-7, under the circumstances set out therein, gives the elective governing body of a municipality the right and power to revise and readjust election districts without regard to whether a readjustment is authorized under N. J. S. A. 19 :4-6. It is therefore not necessary under the circumstances to consider the conditions laid down in 19 :4^6, including the condition that each district shall be maintained as nearly rectangular as possible.

Plaintiffs state that the ordinance gives no description of the proposed election districts except by reference to a map that was not published in any newspaper circulated in Mountainside. They claim that since the map was never published with the ordinance, the voters were never given adequate notice of the actual effect of the redistrieting. The map, they say, could easily have been printed with the ordinance in the Mountainside Echo; the notice that the map was available for inspection in the Borough Hall was insufficient publication and in violation of N. J. S. A. 40:49-2.

Defendants contend that there was an adequate publication of the proposed ordinance prior to its second reading and approval by the borough council.

The purpose of requiring publication prior to the adoption of an ordinance is to afford opportunity to the parties in interest and citizens to be heard on the subject matter. Bruno v. Shrewsbury, 2 N. J. Super. 550 (Law Div. 1949) ; Masnick v. Mayor, etc. Cedar Grove Tp., 99 N. J. Super. 436 (Law Div. 1968). Defendants assert that this was accomplished, in that some 20 or 21 borough residents attended the public hearing, and at that time a letter from Robert Jaffe to the mayor and council was read objecting to the readjustment plan.

The ordinance provides in part as follows:

Now, therefore be it resolved, pursuant to authorization contained in N. J. S. A. 19:4-6 et seq., that the Borough of Mountainside is hereby divided into ten election districts as the same are designated and delineated upon a certain map entitled “Map of Election Districts of the Borough of Mountainside, Union County, New Jersey, prepared by Robert Koser, P. E. and L. S., #12311, dated January 15, 1971.” The said map is now on file in the Office of the Clerk of the Borough of Mountainside as a public record, and shall hereafter remain on file in said office.

The affidavit of the borough Clerk states that at all times Ordinance No. 435-71 was pending before the borough council, there was on file in his office and available for inspection by any interested member of the public a map entitled “Map of Election Districts of the Borough of Mountainside, County of Union and State of New Jersey,” and that said map remains on file in his office. The map referred to in the ordinance was therefore available for inspection in the office of the borough clerk.

Apparently there are no court decisions to be found in this State involving facts identical to those in this case. However, there are cases involving zoning ordinances which refer to a map on file but which was not incorporated in the body of the ordinance.

Burmore v. Smith, 124 N. J. L. 541 (E. & A. 1940), held that there is no statutory requirement that the map be published. The court went on to state:

But be that as it may, the ordinance does state, as we have already-seen, that the boundaries of each district or zone created are in fact established on the map filed wtih the city clerk. True the usual practice is to state that the map is made part of the ordinance, but we think it is quite clear, from the language used, that the map was intended to be and is in fact by reference made part of the ordinance. The copy of the map submitted to us, and undoubtedly available as-an official record to all in interest, is free from any uncertainty, [at 546]

The court noted that in State v. Morristown, 34 N. J. L. 445, the (former) Supreme Court was called upon to review two ordinances establishing street grade lines. The validity was attacked upon the ground of uncertainty, in that (among other things) both merely referred to a map on file:

Mr. Justice Depue, speaking for the Court, said (at page 447) : “The adoption of grade lines by ordinance, by reference to maps and profiles, is the usual, and indeed the only practical means of legislating on the subject.”

The Burmore court observed that this pronouncement stood unchallenged; that in all reason, it .applies with equal efficacy to the adoption of a zoning ordinance, citing cf. Willets v. Sea Girl, 8 N. J. Misc. 479; 150 A. 777 (Sup. Ct. 1930); 62 C. J. S. Municipal Corporations § 427, page 819. The court also said that it was satisfied that the ordinance was certain and properly published.

In Slattery v. Caldwell Tp., 79 N. J. Super. 591 (Law Div. 1963), the court held that district boundary lines can be established by inclusion in the zoning ordinance of a map setting forth the lines. The boundaries may also be set by reference to a map not attached or made part of the ordinance, but referred to in the ordinance. However, the court hold the ordinance under review invalid because it did not comply with the above standards, and this was affirmed in 83 N. J. Super. 317 (App. Div. 1964), where the court recited the same principle of law.

Therefore, it appears that the publication of this ordinance here in question was not in violation of N. J. S. A. 40:49-2, which contains no more detailed requisites for publication than in the case of zoning ordinance, N. J. S. A. 40 :55-34.

Plaintiffs also argue that the increase in the number of districts to ten will involve unnecessary expense for the purchase of two additional voting machines and additional poll workers and officials. However, it is apparent that plaintiffs speak without knowledge. Their claim is refuted by the affidavit of the Union County Board of Elections clerk in which he states that because of the size of the pool of voting machines maintained by the county election board and the number of machines employed in Mountainside prior to the readjustment of voting districts, the readjustment of those districts will not require the purchase of additional voting machines, lie further states that if there is any requirement for additional workers supplied by the county Election board, the cost entailed will be nominal.

Only one voting machine per district will be used because of the reduced number of voters in each district. This is the common practice in Union County. A cheek of the records reveals that there were 412 election districts in the county at the 1970 primary, and of those only 29 used more than one voting machine. On Election Day 1970, 64 of the 412 used moTe than one voting machine, but this occurred only in districts having between 750 and 800 registered voters. All of the realigned districts in Mountainside have less than 500 registered voters.

There is no evidence that this realignment will increase the total number of registered voters in Mountainside by adding any ineligible registered voters or by subtracting eligible voters from the total number. There is no proof that any qualified voter has been or will be deprived of his right to vote, or that anyone who is not entitled to vote will be permitted to vote as a result of the realignment. There is no proof that anyone will be permitted to vote in a district where he is not legally a resident.

Plaintiffs motion for summary judgment will be denied and defendants’ motion for summary judgment granted.