author: McGawn, Patrick J. Jr., J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD BOWMAN, JR., DEFENDANT-APPELLANT.
    Monmouth County Court Law Division
    October 17, 1974.

      Mr. Gregory S. Baxter for appellant (Messrs. Saling, Moore, O’Mara and Coogan, attorneys).

      Mr. Russell Cottrell, Assistant Prosecutor, for respondent (Mr. James M. Coleman, Jr., Monmouth County Prosecutor, attorney).
   McGawn, Patrick J. Jr., J. S. C.,

Temporarily Assigned. Defendant-appellant Bowman challenges his sentencing by the Municipal Court of the Borough of Belmar 'as a second offender under § 2 of the Compulsory Motor Vehicle Insurance Law (N. J. S. A. 39:6B-2.)

On May 31, 1974 Bowman was charged in the Borough of Brielle with operating a motor vehicle without having the motor vehicle liability insurance coverage required by N. J. 8. A. 39:6B-1. On June 2, 1974, in the Borough of Belmar, he was again issued a summons charging him with the same violation. On June 26, 1974 he pled guilty to the first violation and was fined. On August 28, 1974 he pled guilty to the second violation and was sentenced as a second offender to 90 days in the county jail plus costs of $15. It is his status as a second offender that he contests on this appeal.

N. J. 8. A. 39 :6B-2 in pertinent parts reads as follows:

Any owner * *' * of a motor vehicle registered * * * in this State who operates * * * a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by this act * * * shall be subject, for the first offense, to a fine of not less than $50.00 nor more than $200.00 or imprisonment for a term of not less than 30 days nor more than 3 months or both, in the discretion of the municipal judge, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of 6 months from the date of conviction. Upon subsequent conviction, he shall be imprisoned for a term of 3 months and shall forfeit Ms right to operate a motor vehicle for a period of 2 years from the date of his conviction. ® * ®

A literal reading of the statute justifies the action of the municipal judge. The plea of guilty before him was a “subsequent conviction” for the same offense. Defondant-appel-lant argues that the rather severe penalty mandated by the statute is not deserved or legally appropriate. In his view “subsequent conviction” must bo expanded to read “subsequent conviction of an offense which took place after a prior conviction for the same offense”. He argues that such interpretation accords with a fundamental sense of justice and points to State v. Johnson, 109 N. J. Super. 69 (App. Div. 1970), as supporting that rationale.

The State agrees that the J ohnson case does generally support that rationale, but distinguishes Johnson as applicable only to a criminal proceeding. The proper approach, in the State’s view, is that set forth in the drunken driving cases, N. J. S. A. 39 :4 — 50(a), to wit, State v. Guiendon, 113 N. J. Super. 361 (App. Div. 1971); State v. Cain, 107 N. J. Super. 215 (Cty. Ct. 1969), and State v. Deckert, 69 N. J. Super. 105 (1961). Tt argues that since the instant case involves an. offense under the Motor Vehicle Act, the stricter and more literal construction of “subsequent violator” made in the above cited cases logically should be applied here.

in State v. Johnson, supra, defendant was sentenced as a second offender under the Eareotic Drug Law, for an offense which occurred prior to his first conviction. The statute involved provided that “for a second offense” the accused would be liable to enhanced punishment. The options! available in construing legislative intent were expressed as follows by the court:

If the statute is considered as essentially punitive and repressive, then it may be argued that it is the mere commission of the offense that is critical, and enhanced punishment would therefore be justified. On the other hand, if one accepts the more modern view that our system of criminal justice is aimed equally at rehabilitating offenders, then it would not be appropriate to sentence an accused as a second offender before he had had an opportunity to amend his ways after initial confrontation with the courts of law. [109 N. J. Super. at 75]

Significant impact was given by tbe court in Johnson to the concluding paragraph contained in the penalty section of the Narcotic Drug Law. The following appears:

We cannot overlook the final paragraph of N. J. 8. A. 24:18-47 which we reproduce here for convenient reference:
In case a person charged with a violation of any of the provisions of this chapter shall have been previously convicted of a violation of the laws of the United States or of any other State, territory or district relating to narcotic drugs, such previous conviction shall for the purpose of this section, be deemed a first or second offense as the case may be.
This provision clearly evinces a legislative intent to require that a conviction for a prior violation precede an accused person’s being charged with a second offense before bringing into play the enhanced penalty provisions, where the prior violation involved the laws of another state or the federal law. That the words “previously convicted” and “such previous conviction” in the final paragraph of N. J. S. A. 24:18-47 must be considered with respect to the date the person is charged is obvious, if for no other reason than that the quoted language offers no other temporal point of reference. It would be incongruous if this paragraph of the statute imposed a limitation which was not equally applicable to the paragraphs preceding it, particularly in view of the fact that its sole function is to place out-of-state and federal convictions on the same footing as New Jersey convictions. It does no more than comport with justice and sensibility to apply an equivalent standard to local offenses, [at 77]

The court also relied on State v. McCall, 14 N. J. 538 (1954), in which the Supreme Court had held that under the Habitual Offenders Act (N. J. 8. A. 2A:85-8 et seq.) the words “subsequent offense” “could only be an offense committed after a prior conviction and emphasized that the essential evil to be combatted was recidivism. Patently, there can be no recidivism prior to conviction of a crime. Absent such a prior conviction, the sentencing court is unable to weigh the corrective, influence of a first conviction,” State v. Johnson, supra, 109 N. J. Super. at 78.

Under the circumstances present in the Johnson case and under its analysis of the applicable criminal law, the court concluded as follows:

We therefore conclude that the sentencing judge committed plain error: defendant could not be sentenced as a second offender when the second offense occurred prior to his conviction for the first offense. We read the statute as intended to punish recidivism — the failure of a person to reform his ways after a prior conviction for his antisocial behavior — and not merely to provide increased punishment for multiple offenses. The problem is not that a person has committed two similar crimes, but rather that he has failed to restructure his life-style after haring formally been punished, [at 78]

In the course of Its analysis in the Johnson case the court adverted to State v. Deckert, supra, but distinguished its apparently opposite result —■ without disagreeing with the same — based on the statutory interpretation set forth therein.

State v. Guiendon, supra, involved a chronologically similar factual situation to the present one, albeit the charge was drunken driving in violation of N. J. S. A. 39:4-50(a). The facts there were these:

Defendant’s first arrest for drunken driving was on December 28, 1969. Before he could be tried on that charge he was again arrested for drunken driving on February 6, 1970. He was then tried on the first charge on February 19, 1970 and found guilty. Trial on the second charge was held on April 27, 1970, and again defendant was found guilty. He was then sentenced as a second offender. [113 N. J. Super. at 363]

That conviction was affirmed. The Appellate Division recognized that theoretical dichotomy between State v. Johnson, supra, and State v. Deckert, supra, and affirmed the holding of Deckert:

However, the rationale of DecTcert and the language of N. J. S. A. 39:4-50(a) are controlling. The statute first provides that a drunken driver shall be subject, “for the first offense,” to a fine of $200 to $500, imprisonment for 30 days to 3 months, or both, and suspension of his driver’s license for 2 years from the date of his conviction or until he reached 21, whichever was the greater period of time. The statute then goes on to state that, “for a subsequent violation,” imprisonment shall be for three months and the driver’s license forfeited for ten years — mandatory language. The use of the words “for a subsequent violation” distinguishes the drunken driving statute from one considered in Johnson, [at 364]

It is apparent, then, that had the Legislature used the phrase “Upon a subsequent violation” rather than “Upon a subsequent conviction” in N. J. S. A. 39 :6B-2, this court would have no conceptual difficulty in applying the Dechert rationale to the instant ease. Both drunken driving and failure to have the mandated liability insurance are violations of the motor vehicle laws rather than criminal acts. The penalties for second offenses in each case are relatively severe but obviously intended to be so by the Legislature. There would be little “compulsion” to the Compulsory Motor Yehicle Insurance Law unless a jail term of some duration were mandated — at least for a second offense, if not for the first. In other words the public policy indication is firm and strong.

What legislative intent, if any, should this court read into the use of the word “conviction” rather than “violation”? In theory, when it enacted the Compulsory Motor Yehicle Insurance Law, the Legislature had in mind the principles of State v. Guiendon, supra, and State v. Johnson, as well as its prior enactment of N. J. S. A. 39:4-50(a).

As pointed out in State v. Deckert, supra, the phrase in the drunk driving statute, “for a subsequent violation,” must be read to mean “for a conviction of a subsequent violation” since punishment is imposed only upon conviction and not on a violation without a conviction. I find that “for a conviction of a subsequent violation” is the equivalent for “Upon subsequent conviction”.

Had the Legislature wished to change what is the clear meaning of the statutory language it could have. It did not. In view of the rather close attention given by the judicial branch to the question of legislative intent under the drunken driving statute and the subsequent enactment of the similar penaL provisions in the Compulsory Motor Vehicle Insurance Law, the legislative oversight appears deliberate.

This court concludes; that under N. J. S. A. 39 :6B-2, when defendant was sentenced for the second offense, he was being sentenced for a “subsequent conviction” within the intendment oí the statute; that the sentence imposed was mandatory and proper. The sentence is accordingly affirmed.

Appellant raises an additional point. He argues that his first plea of guilty was made without benefit of counsel and that there was no formal showing at the time of his second conviction that ho had intelligently waived his right to counsel at the first hearing. It must be observed that those allegations are outside the record upon which this appeal is based. 11. 3:23 — 8(a) ; State v. Horn, 120 N. J. Super. 203 (App. Div. 1972). That argument is not cognizable by this Court.

If it wore, it would have no merit. The Sixth Amendment right to counsel is applicable to criminal prosecutions. There is no ease cited to the Court which equates a motor vehicle violation to a criminal prosecution for Sixth Amendment right-to-counsel purposes. See State v. Koch, 118 N. J. Super. 421 (App. Div. 1972). Cf. Bloom v. Illinois, 391 U. S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968); Baldwin v. New York, 399 U. S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970).

The Prosecutor will submit the formal judgment within ten (10) days.


source: Caselaw Access Project

author: Morgan, J. A. D.

license: Public Domain

text:
    ALBA SCHULTZ, PETITIONER-APPELLANT, v. MAURICE G. KOTT, PH.D., IN HIS CAPACITY AS ACTING COMMISSIONER, NEW JERSEY DEPARTMENT OF INSTITUTIONS AND AGENCIES; G. THOMAS RITTI, IN HIS CAPACITY AS ACTING DIRECTOR, NEW JERSEY DIVISION OF PUBLIC WELFARE; FRANCES ROBBINS, IN HER CAPACITY AS HEARING OFFICER, NEW JERSEY DIVISION OF PUBLIC WELFARE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 7, 1974 —
    Decided November 13, 1974.

      Before Judges Michels, Morgan and Kentz.

      Mr. Murray J. Klein argued the cause for appellant (Camden Regional Legal' Services, Inc., attorney; Mr. Klein of counsel and on the brief).

      Mr. Paul N. Waiter, Deputy Attorney General, argued the cause for respondents (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Richard M. Conley, Deputy Attorney General, of counsel; and Ms. Joan W. Murphy and Mr. Walter, Deputy Attornej^s General, on the brief).
   The opinion of the court was delivered by

Morgan, J. A. D.

Plaintiff appeals from a decision of the New Jersey Department of Institutions and Agencies, Division. of Public Welfare (hereinafter Division), denying her aid under New Jersey’s program of public assistance to needy persons who are permanently and totally disabled, N. J. S. A. 44:7-38 el seq., because of the .Division’s so-called “homemaker” regulations. New Jersey Administrative Code 10: 81-8.7(A), 8.8(0), 8.13, 8.16. Plaintiff challenges the validity of these regulations as violative of the Supremacy Clause (U. S. Const., Art. VI) and Equal Protection Amendment of the United States Constitution (U. 8. Const., Amend. XIV).

The public assistance program, known as Aid to the Permanently and Totally Disabled (hereinafter APTD), was a federal-state jointly funded public assistance program established by the federal Social Security Act, 42 U. S. C. A. § 1351 et seq., in which the State of New Jersey participates pursuant to N. J. S. A. 44:7-38 ei se.q. On January 1, 1974, however, those portions of the federal Social Security Act which provided for grants-in-aid to the states for the APTD program (Title XIV) were repealed pursuant to the provisions of Pub. L. 92-603, Title III, § 303; and a new program, known as the Supplemental Security Income (SSI) program, paid for and administered by the Eederal Government, was created by Congress to aid the disabled, as well as the blind and elderly. (42 U. S. C. A., § 1381 et seq.). Through the enactment of L. 1973, c. 256 (N. J. 8. A. 44:7-85) the New Jersey Legislature authorized the Commissioner of the Department of Institutions and Agencies to transfer funds previously appropriated for the former programs, including APTD, if such funds were necessary to implement the federally administered SSI program in New Jersey. Thus, as of January 1, 1974 the APTD program is nonexistent and the state “homemakers” regulation is no longer in effect. Although plaintiff’s request to have this court enjoin enforcement of the “homemaking” regulation has consequently become moot, her eligibility for benefits under the repealed act from the date of her application therefor on June 12, 1973 until its xepeal is still a justiciable claim cognizable by this court.

Plaintiff is a 44-year-old woman who contends she has been unable to engage in gainful employment due to a chronic asthmatic condition which prevents her from tolerating even normal dust levels. She had previously received APTD benefits on a conditional basis until medical data concerning her condition was compiled. Such data disclosed to the Division that she was able to function as a homemaker for herself, her father and hex daughter who live with her, and therefore was not totally disabled under the challenged “homemaker” regulations. She reapplied for benefits, which were denied on the basis of the State’s “homemaking” regulations in the following terms:

The Decisional Panel concurs that the medical data relied on by the Medical Review Team establish the existence of a respiratory problem which could be considered permanent in relation to dura-tional criteria specified in official regulation. However, the evidence supports a conclusion, despite the permanence of such condition, that the appellant, with some assistance from other persons possesses a significant combination of manipulative and managerial skills to assume responsibility for homemaking duties. Accordingly, a finding of total disability would be precluded and the finding of medical ineligibility to receive Disability Assistance is affirmed.

This appeal ensued.

The provisions of the federal Social Security Act pertaining to the formerly existing APTD program set forth the general purpose thereof, which was to enable each state:

[T]o furnish financial assistance, as far as practicable under the conditions in such State, to needy individuals eighteen years of age and older who are permanently and totally disabled :i" * *. [42 U. S. C. A. § 1351]

In an attempt to implement the stated purpose of the APTD program, the Division adopted by way of regulation the following standards against which an applicant’s claim of total disability was to be measured:

The term total refers to the inability of the client to perform those activities involved in carrying out the normal responsibilities necessary in employment or homemaking. Thus, total disability means inability to engage in a useful occupation, including homemaking. [N. J. A. C. 10:81-87(a), emphasis supplied]

The term “homemaking” was defined in New Jersey Administrative Code 10:81-15 in the following terms:

(B) 1. Homemaking involves ability to carry the home-management and decision making responsibilities and to provide essential services within the home for at least one person in addition to one’s self. Homemaking may be generally divided into manipulative skills and managerial skills.
2. Manipulative skills include food preparation and service, cleaning and care of the home: washing and ironing clothes and household linens; care and repair of clothes and linens; feeding, bathing and dressing children and caring for adults who are invalids.
3. Managerial skills include the ability to manage household expenditures, and to plan, decide, select and purchase the food, clothing, household supplies and furnishings for the family. Social decisions include the ability to supervise tiie health care, to direct the education and to give social direction to the family, and to direct the training of young children.
(O) If a person is not able to perform a significant combination of these manipulative and managerial activities on a routine basis with little or no supervision or help from others, then a finding of permanent and total disability (in relation to the issue of homemaker) is authorized.

Although plaintiff was concededly in financial need and was not gainfully employed, she was declared ineligible for APTD benefits because she was found capable of performing household duties for one other than herself in accordance with the above-described “homemaker” regulations. Plaintiff challenges the validity' of the “homemaker” regulations, contending they are in conflict with the stated purpose of the APTD program as set forth in 42 U. 8. C. A. § 1351 and therefore violative of the Supremacy Clause of the United States Constitution. According to her position, Congress intended that all persons unable to participate in gainful employment due to a medical disability be eligible for APTD benefits, and since her disability precludes gainful employment, she qualifies for assistance under federally mandated standards. Plaintiff contends that the “homemaking” criterion, used as the basis for denying her APTD benefits, betrays the stated purpose of § 1351 and is therefore invalid under the Supremacy Clause of the United States Constitution. She also contends that rejection of her claim for APTD benefits violated her right to the equal protection of the laws since homemaking capability is not reasonably related to the essential criterion for eligibility under the Social Security Act, that of capability for gainful employment.

When faced with the question of eligibility under various programs created by the Social Security Act purportedly implemented by challenged state regulations defining eligibility standards, the United States Supreme Court has set forth and applied the following guide:

[I]n the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance, under federal * * * standards violates the Social Security Act and is therefore invalid under the Supremacy Clause. [Townsend v. Swank, 404 U. S. 282, 286, 92 S. Ct. 502, 505, 30 L. Ed. 2d 448 (1971)]

Carleson v. Remillard, 406 U. S. 598, 600, 92 S. Ct. 1932, 32 L. Ed. 2d 532 (1972); referring to King v. Smith, 392 U. S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). This test has been applied by the United States Supreme Court in three cases to invalidate state eligibility regulations which were found to be more restrictive than those found in the applicable federal Social Security Act standards for eligibility.

In King v. Smith, 392 U. S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), at issue was an Alabama regulation denying eligibility to children otherwise qualified for aid to Eamilies with Dependent Children Assistance (APDC) if their mother cohabited with any man. This regulation, known as the “substitute father” regulation, had been adopted as giving meaning to the term “parent” as contained in 42 U. S. C. A. § 606(a). The court struck down the regulation, holding, in substance, that the stricken regulation defined “parent” in a manner inconsistent with the definition of “parent” in the Social Security Act, and since the effect of this inconsistency was to deny benefits to those who would have been eligible therefor under the federal act, the more restrictive state regulation was violative of the Supremacy Clause.

In Townsend v. Swank, 404 U. S. 282, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971), the court was concerned with an Illinois regulation denying AXtDO benefits to needy children 18 to 20 years of age who attended a college or rmiversity, while providing such benefits to children of the same age who attended a high school or vocational training school. The regulation was stricken as invalid under the Supremacy Clause since no authority for that discrimination could be found in the provisions of the parent federal legislation.

In Carleson v. Remillard, 406 U. S. 598, 92 S. Ct. 1932, 32 L. Ed. 2d 352 (1972), a, California regulation denied eligibility to needy children deprived of parental support as a result of their parent’s military service commitment. The Supremo Court held that § 606(a), in defining “dependent child” as one deprived of parental support by reason of the “continued absence” from the home, did not exclude from eligibility those children whose parents were continually absent from home as a result of military service, and held the California regulation invalid under the Supremacy Clause.

Hence, according to King, Townsend and Carleson, a state may not impose more restrictive eligibility standards for federal-state funded public assistance programs established by the Social Security Act unless the state is able to find authority for such a restriction in the act itself evidencing legislative intent to permit such a restrictive application.

As previously noted, that portion of the Social Security Act which created the AI’TD program of public assistance (42 U. S. C. A. § 1351 et seq.) defined the fundamental eligibility standard in terms of providing assistance to those persons 18 years of age and older who are in financial need, and who are permanently and totally disabled. In our view, the inclusion of requirements that the applicant be both in financial need and totally disabled compels the conclusion that it was disability precluding gainful employment which was the fact essential to APTD eligibility. If inability to support oneself through gainful employment had not been the intended standard for eligibility, Congress could have provided for all persons in financial need. If disability alone was to be the determinant for eligibility, then the fact of need would have been irrelevant. Inclusion of both standards, need and disability, therefore yields no conclusion other than that benefits were to be provided to those persons in financial need who, because of permanent and total disability, were unable to seek and hold a position of gainful employment.

The Division contends, however, that nowhere in the applicable provisions of the Social Security Act is the term “permanently and totally disabled” defined, and that the states were therefore free to provide specific content to that term by regulations adopted in intended implementation thereof. Such a contention ignores the circumstance that the phrase “permanently and totally disabled” had achieved a settled meaning by court construction of similar phraseology in a line of cases decided long prior to the adoption of § 1351. Eor example, in Miller v. United States, 294 U. S. 435, 55 S. Ct. 440, 79, L. Ed. 977 (1935), the Supreme Court, in interpreting the eligibility standard described by the words “total permanent disability” as used in the War Risk Insurance Act, 40 Stat. 407, held that

The burden was * * * not only to show the character and extent of his injury, but also to show that the result of the injury was to disable him permanently from following any substantially gainful occupation. [at 440, 55 S. Ct. at 442.]

In giving the words “total permanent disability” the meaning “they are ordinarily used and understood to convey,” Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492 (1934), the Supreme Court observed:

That which sometimes results in total disability may cause slight inconvenience under other conditions. Some are able to sustain themselves, without serious loss of productive power, against injury or disease suflicient totally to disable others. It cannot be said that injury or disease sufficient merely to prevent one from again doing some work of the kind he had been accustomed to perform constitutes the disability meant by the act, for such impairment may not lessen or affect Ms ability to follow other useful, and perchance more lucrative, occupations. Frequently serious physical impairment stimulates to successful effort for the acquisition of productive ability that theretofore remained undeveloped, [at 559, 54 S. Ct. at 275-276]

In defining the phrase “permanently and totally disabled” the courts have therefore emphasized the “productive ability” of the applicant or his ability to pursue a gainful occupation. In light of these decisions handed down long before § 1351 was adopted, it is understandable why Congress deemed unnecessary a more specific definition of the phrase in light of the settled meaning attributed to substantially similar phrases by previous decisions of the United States Supreme Court.

This assumption, that such is the settled meaning of the phrase, seems implicit throughout Congressional debate of the 1950 amendments to the Social Security Act which created the APTD program. In explaining H.R. 6000 (including the APTD program) to the House, Congressman Dough-ton, the sponsor not only of the 1950 amendments but also of the original Social Security bill in 1935, first described the “permanent and total disability insurance” provision of the bill in the following terms:

All persons covered by tbe old-age and survivors insurance program would be protected against the hazard of enforced retirement and loss of earnings caused by permanent and total disability. [95 Cong. Rec. 13822 (1949)]

After explaining the insurance program, Congressman Dough-ton further explained that the hill created “public assistance programs * * * to those persons who are unable, for one reason or another, to be eligible for insurance benefits." Id. The APTD program here under consideration was one of the public assistance programs referred to, apparently intended to be made available on the same basis as the companion permanent and total disability insurance program.

The House Reports, too, specifically House Report 1300, relating to H.R. 6000s APTD provisions, corroborate that deprivation of productive capacity, inability to pursue a gainful occupation, are the factors essential to eligibility under this program.

Persons who work in non-covered employment will be among those particularly in need of the protection afforded by aid to the permanently and totally disabled. Of further pressing concern at the moment is the fact that there are many former workers disabled today who cannot qualify for insurance coverage. [H. R. 1300, 81st Cong., 1st See. at 54 (1949)]

Thus, from legislative history as well as from the terms of the act itself and prior court construction, the intent of Congress in establishing the APTD program appears clearly to have been to provide assistance for needy persons unable to engage in a remunerative occupation because of disability. Their expressed concern clearly was deprivation of earning capacity due to medically demonstrable permanent and total disability. The assistance provided by the program was to be in partial substitute of the earnings of the applicant who, by reason of his medical disability, showed himself totally unable to provide for his own support.

Yiewed against this clear purpose implicit in that portion of the Social Security Act which provided for APTD benefits, the “homemaker" regulation adopted by the Division of Public Welfare is clearly invalid under the Supremacy Clause of the United States Constitution, and cannot serve as the basis of denying petitioner benefits. This regulation rendered ineligible needy persons who were unable to obtain and hold gainful employment because of total and permanent medical disability merely because such persons were shown capable of keeping house for themselves and for one other person. Thus, persons eligible under 42 U. 8. C. A. § 1351 were ineligible under the state’s “homemaker” regulation in circumstances where the federal legislation provides no authority for their exclusion.

The issue raised in this appeal is not one of first impression. The courts of several of our sister states have stricken similar “homemaker” regulations, adopted to implement their state APTD programs, as violative of the Supremacy Clause of the United States Constitution. Thus, in doing so the court in Zunino v. Carleson, 33 Cal. App. 3d 36, 108 Cal. Rptr. 769, 771 (Sup. Ct. 1973) stated:

The term “disabled” and its noun form “disability,” in the context of the problem before us have a settled meaning. They connote am inability substantially to engage in any gainful occupation by reason of medically determinable physical or mental impairment. (See Gov. Code, § 31740; Unemp. Ins. Code, § 2626; Alaska Ind. Bd. v. Chugach Assn., 356 U. S. 320, 323-324, 78 S. Ct. 735, 2 L. Ed. 2d 795, 17 Alaska 575; Berry v. United States, 312 U. S. 450, 455-456, 61 S. Ct. 637, 85 L. Ed. 945; Culley v. New York Life Ins. Co., 27 Cal. 2d 187, 191, 163 P. 2d 698; Erreca v. Western States Life Ins. Co., 19 Cal. 2d 388, 394, 121 P. 2d 689; Clark v. Metropolitan Life Ins. Co., 47 Cal. App. 2d 773, 778, 118 P. 2d 919; Webster’s New Internat. Dict. (3d ed.) “Disability”; Words & Phrases (perm. ed). “Disabled,” “Disability.”) The same usage is given the words by the Social Security Act. (See 42 U. S. C. A. § 416, subd. (i), (2), § 423, subd. (d), (1), (A) ; Pierce v. Gardner, 7 Cir., 388 F. 2d 846, 847-848, cert. den. 393 U. S. 885, 89 S. Ct. 197, 21 L. Ed. 162; Levine v. Gardner, 2 Cir., 360 F. 2d 727, 730; Flemming v. Booker, 283 F. 2d 321, 325).

Other courts have reached a similar conclusion with respect to the essential federally mandated purpose of APTD assistance program as providing benefits to those in financial need because of inability to earn due to physical or mental impairment. Those courts which have had occasion to consider “homemaker” regulations substantially similar to the one being challenged in this appeal, have, in a series of unreported decisions, held them invalid under the Supremacy Clause of the United States Constitution. Doffer v. Martin, Civ. No. C-70-919 (N.D. Calif. 1973); Center v. Vowell, A71-CA-118 (W.D. Texas 1973); McLaughlin v. Norton, H158 (Conn. 1973). Research has disclosed no case in which a homemaker regulation has withstood a Supremacy Clause challenge.

Although we find the “homemaking” regulations to be violative of the Supremacy Clause, we do not believe it appropriate to grant any relief to plaintiff at this time. The decision denying her relief was predicated upon her ability to perform household duties for herself and at least one other. The Division made no finding, however, with respect to total disability precluding gainful employment, and without considering the homemaker regulation, although plaintiff specifically requested they make such an alternate finding. We therefore reverse the decision appealed from and remand the matter to the Division for a redetermination of plaintiff’s ability to engage in remunerative employment. We do not retain jurisdiction.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROGER BROWN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1974 —
    Decided February 25, 1974.

      Before Judges Oaeton, Seidman and Demos.

      Mr. Edward Weisslitz, Pirst Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Richard Berg, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mr. Howard A. Cohen, Legal Assistant, on the brief).
   Pee Cueiam.

Defendant was indicted for the murder of one Johnson J. Robins. After a trial to a jury, he was found guilty of murder in the first degree, and his subsequent motion for a new trial was denied. He was sentenced to life imprisonment.

On this appeal he asserts a number of grounds, the first of which is that the State failed to prove a prima facie case of murder in the first degree and that the verdict was against the weight of the evidence.

The State’s principal witness was one Unell Andfield, who knew both defendant and the victim, the latter being the father of three of her six children. She testified that the decedent had visited her home briefly late in the afternoon of March 7, 1972, and that soon after he left defendant arrived and she went with him for a drive. Robins, whom they observed in a parked car, followed them, sounding his horn and twice forcing their car to come to a stop off the road. On each occasion she got out and spoke to Robins who, she said, was very angry. He stopped their car again in the same way and this time he walked over to the automobile, called defendant obscene names and tried to open the locked door oni the driver’s side. Mrs. Andfield, who was standing outside the car, heard a noise like a pistol shot. She observed that the car window where defendant was seated was open. Robins returned to his car and drove away. Mrs. Andfield said, further, that Eobins, a large man, had two weeks before, in her presence, threatened to kill defendant.

The police later found that Eobins’s car had run off the road into a tree and that he had been taken to a hospital, where he was pronounced dead as the result of a bullet wound in the left chest area.

Upon being arrested and charged with the homicide, defendant gave the police a voluntary statement, the admissibility of which is not challenged. In it, after describing the events substantially as Mrs. Andfield had done, he stated that Eobins came over to the car, said “Nigger, I told you I was going to kill you,” and reached into his pocket with his right hand while pulling on the door handle with his left. Defendant stated further that he picked up a pistol he had in the car and fired one shot at Eobins, who then returned to his own automobile and drove away. He also said that Eobins had threatened his life two weeks before at Mrs. Andfield’s home, and that when he went to visit her on the day of the incident he put the pistol in his car “acting on intuition.”

Testifying in his own behalf, defendant claimed he became frightened when his ear was forced off the road. He thought Eobins was going to kill him because of the prior threat, although he also said he did not believe the threat when it was made. He testified further that when he was compelled to stop the third time he took the gun from the glove compartment and put it on the floor. When he fired the shot, he did so, he said, to scare Eobins and not to inflict bodily harm upon him.

Although no motion was made at the trial for a judgment of acquittal, defendant now argues that on the evidence presented a reasonable jury could not, as a matter of law, find beyond a reasonable doubt that defendant had committed first degree murder. He contends further that the verdict of the jury was against the weight of evidence. We disagree.

We find in the record sufficient evidence of the requisites of first degree murder to have warranted submission of that issue to the jury and we are satisfied that the jury’s verdict, leaving aside the trial judge’s charge- on self-defense, was not against the weight of the evidence. A reasonable jury could have found defendant guilty of first degree murder beyond a reasonable doubt. See State v. Reyes, 50 N. J. 454, 463-464 (1967) .

Homicide with a deadly weapon in itself justifies a factual presumption of an intent to take life. State v. Bucanis, 26 N. J. 45, 54 (1958), cert. den. 357 U. S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). The kind of weapon used and the manner and circumstances of the killing may support an inference of deliberation and premeditation. State v. Peterson, 10 N. J. 155, 163 (1952).

The jury was not required to accept defendant’s explanation of why he took the pistol with him on the day in question or his testimony that he fired at decedent only to frighten him. The jury could also have rejected the plea of self-defense. Moreover, even if the jury concluded that defendant had not taken the weapon with him that day with the intent to kill the decedent, the formation and weighing of a design to kill could have occurred during the period of time when defendant’s car was being forced off the road. It is not necessary for first degree murder that any particular time elapse between the formulation of the purpose to kill and its execution. State v. Coleman, 46 N. J. 16, 45 (1965), cert. den. 383 U. S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966).

Defendant is on more substantial ground with respect to the sufficiency of the trial judge’s charge on self-defense, although the absence of an objection or a request for a specific instruction places the problem within the restriction of plain error. Such error is to be disregarded unless it is of such nature as to have been clearly capable of producing an unjust result. R. 2:10-2; State v. La Porte, 62 N. J. 312, 318 (1973); State v. Hock, 54 N. J. 526, 538 (1969).

It is not contended that the trial judge’s charge on the law of self-defense was erroneous. Concededly, the applicable principles of law were correctly set forth. The argument advanced is that the jury was not instructed on the burden of proof as directed in State v. Abbott, 36 N. J. 63, 72-73 (1961) :

* ' *' if such evidence [of self-defense] appears either in the State's case or upon the defendant’s case, the issue must be left to the jury with this instruction: that the burden is upon the Slate to prove beyond a reasonable doubt that the defense is untrue, and hence there must be an acquittal if there is a reasonable doubt as to whether the defendant did act in self-defense within the definition of that defense. Accordingly, if the issue of retreat is raised in connection with the defense of self-defense the jury should be instructed that the burden is also the State's to prove beyond a reasonable doubt that defendant hnew he could have retreated icith complete safety, and that if a reasonable doubt upon the question should exist, the issue of retreat must be resolved in defendant's favor." [Emphasis supplied.]

The trial judge in this case gave the jury a standard instruction on the State’s burden to prove beyond a reasonable doubt that defendant was guilty of the crime charged in all its elements. He correctly defined murder and stated that “without justifiable cause or excuse” meant that the killing may not have occurred by accident or in self-preservation. The elements of first and second degree murder and of voluntary manslaughter were properly set forth.

The defense of self-defense, including the issue of retreat, was then explained, after which the trial judge told the jury that “in order to find the defendant guilty of any of the offenses I have mentioned, the State must prove each and every element of the offense beyond a reasonable doubt.”

There is no doubt that a charge must he read as a whole in the context of the factual and legal issues presented in order to ascertain whether it fairly set forth the controlling legal principles and fairly submitted the crucial factual issues to the jury. State v. Laws, 50 N. J. 159, 176 (1967). If the subject matter is adequately covered “in the text and purport of the whole charge, no prejudicial error comes into existence.” State v. Thompson, 59 N. J. 396, 411 (1971).

The jury was not informed specifically that the State’s burden of proving beyond a reasonable doubt that the homicide was murder included the burden of proving that the killing was not justified or excusable. 3STor was it told that if a reasonable doubt as to defendant’s guilt arose from a consideration of the issues of self-defense and retreat, such doubt must be resolved ini favor of defendant.

We do not believe that the general instructions on burden of proof and reasonable doubt, or even the more specific instruction that the State must prove every element of the offense charged beyond a reasonable doubt, sufficiently alerted the jury to the fact that it was the State’s burden to prove the untruth of the defense of self-defense beyond a reasonable doubt, and that the burden of proving the defense was not cast on defendant.

Such interpretation would have to be extrapolated from those segments of the charge which excluded from the definition of murder a killing with “justifiable cause or excuse,” and which explained, though inaccurately, that “[wjithout reasonable provocation or justifiable cause or excuse means that the killing may not have occurred by accident or in self-preservation.” We are not persuaded that the jury could clearly comprehend the applicable principles of law from the charge as it was given.

Since the defense of self-defense was a critical issue in this case, defendant was entitled to have it placed before the jury in unmistakable terms, and it was the trial judge’s obligation to dissipate the danger that the jury might misconstrue the law and place upon defendant the burden of proving the defense. Cf. State v. Garvin, 44 N. J. 268, 274 (1965). This is what State v. Abbott, supra, intended to ensure. In our view, considering the charge as a whole, the failure to incorporate within it at least the essence of State v. Abbott, supra, was clearly capable of producing an unjust result and thus constituted plain error mandating a reversal and a remand for a new trial.

Having reached this conclusion, we need not consider the remaining assertions that (1) the prosecutor misled the jury in his summation as to the law of self-defense (not raised below), (2) the trial judge failed to charge as requested on death by misadventure, (3) involuntary manslaughter was not charged (not raised below), (4) defendant was not permitted to testify to decedent's reputation for violence (since prosecutor acknowledges that the inquiry was proper, we assume the problem will not recur at the new trial), (5) defendant was denied effective assistance of counsel, and (6) the aggregate effect of all errors denied defendant a fair trial. In any event, except as otherwise noted in the one instance, the contentions are not meritorious.

Eeversed and remanded for a new trial.


author: Gruccio, J. S. C.

text:
    PHILIP B. ROBINSON, PLAINTIFF, v. BOARD OF ADJUSTMENT OF CAPE MAY; CITY OF CAPE MAY, A MUNICIPAL CORPORATION AND THE PLANNING BOARD OF THE CITY OF CAPE MAY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    October 30, 1974.

      Mr. Marvin D. Perskie for plaintiff (Messrs. Perskie & Callinan, attorneys).

      Mr. Louis C. Dwyer, Jr. for defendant Board of Adjustment of Cape May (Messrs. Kay, Corino & Dwyer, attorneys) .

      Mr. Vincent J. Pancari for defendant City of Cape May, a municipal corporation (Messrs. Halpin, Bailey & Pancari, attorneys).

      Mr. John L. Ludlam for defendant Planning Board of the City of Cape May.
   Gruccio, J. S. C.

This is an action in lieu of prerogative writs. The matter is before this court for the purpose of a summary adjudication on the basis of an agreed statement of facts.

Plaintiff is the owner of several lots of land (lots 39 through 68) situated on block 100 in the City of Cape May. This area is zoned R — 1, which primarily allows only single-family residential dwellings. Plaintiff intended to build 11 twin houses on these lots but was precluded from doing so due to the present R-l zoning classification.

On August 2, 1973, at the regular meeting of the Cape May Planning Board, plaintiff requested that consideration be given to the change of block 100 from R-l to R-3, which change would permit plaintiff to construct the twin houses. At that time, however, the planning board was in the process of reviewing the entire zoning map and plaintiff’s request was tabled pending the completion of the review.

On August 2, 1973 plaintiff applied to the building inspector of Cape May for building permits to erect 11 twin houses on lots 39 through 68 of block 100. The total land area covered by these lots is 900' in frontage by 125' in depth. Each twin house was to be built on a lot 80' wide by 125' deep. The building inspector refused to issue the building permits due to the present zoning classification.

On August 14, 1973 plaintiff filed an appeal with the Cape May Zoning Board of Adjustment for a variance under the provisions of A. J. 8. A. 40:55-39 (c) and (d) to construct 11 twin houses on lots 39 through 68 of block 100, A public hearing was conducted by the board of adjustment concerning this appeal on August 22, 1973.

At the hearing, after allowing plaintiff an opportunity to state specifically what relief he was seeking, the zoning board of adjustment took a short recess to discuss the jurisdictional aspects of the application. Upon the advice of counsel the zoning board unanimously decided that it did not have the jurisdiction or the power to entertain the variance application inasmuch as what was being sought by plaintiff was an amendment to the zoning ordinance and not a variance.

The zoning board was aware of plaintiff’s previous request for a rezoning with the planning board and claimed that the relief sought by plaintiff was solely within the province of the planning board. The zoning board therefore declined to make any determination on the variance application and suggested that plaintiff pursue this matter with the planning board and city council. No opportunity was given, for anyone present to offer comment on the granting or denial or recommendation or nonrecommendation of the variance application because of the refusal of the zoning board to take jurisdiction in the matter. Plaintiff therefore filed this action.

This matter is now being brought before this court solely for the purpose of determining whether a local zoning board of adjustment can refuse to consider an application for a variance under A. /. 8. A. 40:55-39 (c) and (d), claiming lack of jurisdiction on the grounds that the matter is one exclusively within the jurisdiction of the local planning board.

The issue is apparently a novel one in this State. No case has been found which involves an incident where in similar circumstances a zoning board refused to take any action whatsoever upon a variance application.

It is the zoning board’s contention that to have acted in this matter would have been an unwarranted and illegal extension of its powers under N. J. 8. A. 40:55-39. It is true that there have been numerous cases dealing with the situation where zoning boards have been held to have exercised undelegated authority, thereby having their action invalidated. Grimley v. Ridgewood, 45 N. J. Super. 574 (App. Div. 1957); Schoelpple v. Woodbridge Tp., 60 N. J. Super. 146 (App. Div. 1959); Tzeses v. Board of Adjustment, 22 N. J. Super. 45 (App. Div. 1952). There is an important distinction to be made between these cases and the instant one. In all of the above cases the zoning boards of adjustment granted variances under circumstances which did not warrant such action. In these cases the various courts found that the zoning boards should not have granted the variances since the requirements for such grants under the relevant sections of N. J. S. A. 40:55-39 had not been met.

The crux of this case is the recognition of the distinction between the decision of a zoning board to grant or deny a variance and the decision of a zoning board to act or not to act upon a variance application. The former is one properly within the expert discretion of a zoning board, Schmidt v. Board of Adjustment, 9 N. J. 405 (1952), whereas the latter one is not. The board of adjustment is a statutory grosi-judicial body whose powers and jurisdiction are specified and strictly delimited by statute. Auciello v. Stauffer, 58 N. J. Super. 522 (App. Div. 1959). The relevant statute here is N. J. S. A. 40:55-39, which provides, among other things:

The board of adjustment shall have the power to:
(a) Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the zoning ordinance.
(b) Hear and decide, in accordance with the provisions of any such ordinance, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which such board is authorized by any such ordinance to pass.
(c) Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions, or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under the act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship; provided, however, that no variance shall be granted under this paragraph to allow a structure or use in a district restricted against such structure or use.
(d) Recommend in particular eases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use. Whereupon the governing body or board of public works may, by resolution, approve or disapprove such recommendation. If such recommendation shall he approved by the governing body or board of public works then the administrative officer in charge of granting permits shall forthwith issue a permit for such structure or use.
No relief may be granted or action taken under the terms of this section unless such relief can he granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

The Legislature by this statute has placed the responsibility upon local boards of adjustment to grant a hearing to the applicant, and depending upon the nature of the relief sought, the evidence, arguments and the law, to grant or deny a variance or recommend or decline to recommend the application to the governing body. Tomko v. Vissers, 21 N. J. 226 (1956).

It is clear from an examination of the statute and the cases construing the statute that a zoning hoard of adjustment has only the following alternatives in response to an application for relief under N. J. 8. A. 40 :55-39 — see (c) or (d) : (a) it may grant or deny a variance application on the basis of undue hardship; (b) it may recommend to the governing body that a special use permit be granted or denied, and (c) it may refuse to grant relief on the grounds that such relief would cause detriment to the public good or would substantially impair the intent and purpose of the zone plan and zoning ordinance.

Nowhere in the statute or in the cases construing the statute can it be found that a zoning board is free to determine upon application for relief under N. J. 8. A. 40:55-39 that it did not have the jurisdiction to hear this application. In fact, when a zoning board has reservations about entertaining jurisdiction in such matters it still may proceed with the hearing, take all relevant evidence and condition any variance approvals, if granted, upon subsequent approval of the planning board. Imperato v. Zoning Board, 91 N. J. Super. 540 (App. Div. 1966). The only situation where zoning boards have been found to lack jurisdiction to hear an application for a variance is where applicant failed to fulfill the formal requirement of notice.

The right to own and enjoy private property is fundamental in this country. Constitutional protections permit few infringements upon this right. One such infringement is the sustainment of the municipal power to enact zoning ordinances which no doubt may curtail the enjoyment and burden the ownership of real property. Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Such authority is generally deemed to stem from the state’s police powers inherent in the promotion of the public’s health, welfare and morals. N. J. 8. A. 40:55 — 30 et seq. However, in certain circumstances it has been recognized that the burdens placed upon particular landowners would be too severe to justify on this basis. Thus the variance procedure was established. In the scheme of the procedure the proper function of a zoning board of adjustment is to give relief in certain instances to these landowners in order to prevent any unwarranted invasions of the right of private property. United Advertising Corp. v. Maplewood Board of Adjustment, 136 N. J. L. 336 (Sup. Ct. 1947). To allow a zoning board of adjustment to act in the manner that defendant did herein would be in clear contravention of this established policy.

This opinion is not to be construed to intimate any conclusions on the part of this court as to the propriety of the granting or nongranting of a variance in this case or the conditions that may be attached to any variance if such is granted. What this court is holding is that where a person submits a colorable application for a variance, the zoning board must consider the application, take evidence and consider that evidence in light of the statutory criteria in making one of the aforementioned decisions.

The matter is remanded to the zoning board of adjustment for action consistent with the holding herein.


author: Margolis, J. C. C.,

text:
    TOWN OF MONTCLAIR, BY THE MONTCLAIR REDEVELOPMENT AGENCY, PLAINTIFFS, v. JOSEPHINE D’ANDREA, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 4, 1974.

      Mr. V. Seeley Romaine for plaintiff.

      Mr. Michael A. Cerreto for defendants (Messrs. Cerreto & LaPenna, attorneys).
   Margolis, J. C. C.,

Temporarily Assigned. This is a condemnation case.

In August 1972 plaintiff Town of Montclair, by the Mont-clair Redevelopment Agency (Agency), commenced proceedings pursuant to N. J. 8. A. 40:55C-12(j) et seq., to acquire defendant D’Andrea’s land for the purpose of redeveloping an area in the Town of Montclair known as the Lackawana Plaza Project.

Plaintiff took title to the premises by filing a declaration of taking, and commissioners were appointed for the purpose' of assessing value. The condemned property consists of land and a building thereon operated as Al’s Kestaurant, containing restaurant equipment and fixtures, and is presently in operation and paying a rental to Agency on a month-to-month basis.

Defendant D’Andrea appeals to this court from the commissioners’ award. The matter was tried without a jury. Counsel have stipulated the value of the real estate, leaving for determination the question of compensation for the personal property in the restaurant.

D’Andrea contends she is entitled to just compensation and that under the Eminent Domain Act of 1971, N. J. 8. A. 20:3-1 (hereinafter new act), this must be the value of the real estate as it is enhanced by the restaurant equipment and fixtures which include a neon sign, counters, stools, cash register, glass display case, work bench with dishwasher and sink, refrigerator, exhaust fan, broiler and grill, steam table, toaster, three-ton air conditioner, slicing machine, freezer, tables and chairs, plates, knives and forks. Many of these items are installed by electricity and plumbing connection.

“Property” is defined in the new act as follows:

(d) Property means land, or any interest in land, and (1) any building, structure or other improvement imbedded or affixed to land, and any article so affixed or attached to such building, structure or improvement as to be an essential and integral part thereof, (2) any article affixed or attached to such property in such manner that it cannot be removed without material injury to itself or to the property, (3) any article so designed, constructed, or specially adapted to the purpose for which such property is used that (a) it is an essential accessory or part of such property; (b) it is not capable of use elsewhere; and (e) would lose substantially all its value if removed from such property” [N. J. S. A. 20:3-3(d)1

D’Andrea maintains that the restaurant equipment -would lose substantially all of its value if severed from the building. Shé relies on State v. Gallant, 42 N. J. 583 (1964), holding essentially that where there is a substantial difference between the value of a building with such articles and without same, compensation should reflect the enhanced value. This is generally referred to as the “functional unit” rule.

Agency argues that the “functional unit” rule, as expressed in Gallant, was not adopted by the Legislature when it enacted the new act and urges the court to evaluate the restaurant equipment articles as severed from the functioning restaurant on the grounds that they do not meet the criteria of “properly” under the new act (20:3-2(d), in that (1) they are not essential accessories; (2) they are capable of use elsewhere, and (3) they will not lose substantially all their value if removed from the restaurant.

This court does not agree. It is true that the Gallant court interpreted the statute in existence prior to the new act, which authorized “just compensation for the lands, easements, rights of way or other propertj'- to be taken * * N. J. S. A. 20:1-3.1. The new act provides a definition of “property” in contrast to the absence of any such definition in the prior act. However, it is apparent that the Legislature did not do away with the Gallant rationale.

The Gallant decision and subsequent cases decided under the prior act found their basis in the N. J. Const. (1947), Art. I, par. 20, which must serve as the controlling force for the guidance of this Court.

That provision clearly states that “Private property shall not be taken without just compensation * * It is a mandate that this court must uphold, and we look to Gallant and subsequent cases for its proper construction.

In Gallant the court awarded full compensation to defendants for the value of looms situated in a building used for fabric weaving. The court found that

* * * From tlie stricken proofs it could be concluded that before condemnation the looms were an integral and valuable part of a going business housed in defendant’s factory. Upon condemnation defendants could either retrieve merely the looms secondhand value or, if they had elected to remove them to their new premises suffer the economic loss attendant upon the necessarily expensive and intricate removal procedures [at 589]

The court in Gallant held that the constitutional principles of justice and indemnity required that the owner be compensated for the articles at their enhanced value as attached to a going plant, and noted that whether the productive machine is conceptualized as a fixture or not, the injustice of-noneompensation is equally obvious.

The value of a factory containing industrial equipment employed in the business for which the property is being used is ordinarily greater than that of an empty and idle building. Such equipment in place adds more to the value of the realty than its second-hand salvage value separated from the premises. An owner, who is under no duress, and where the building and machinery are a functional unit, would undoubtedly sell only at a price which would reflect that increased value. Where, therefore, a building and industrial machinery housed therein constitute a functional unit, and the difference between the value of the building with such articles and without them is substantial, compensation for the taking should reflect that enhanced value. This, rather than the physical mode of annexation to the freehold is the critical test in eminent domain cases. See Harvey Textile Co. v. Hill, 135 Conn. 686, 67 A. 2d 851 (Sup. Ct. Err. 1949) * * *. [Gallant, supra, at 590].

Gallant’s stature as the principal authority in evaluating property remains undiminished.

In Housing Authority of Clementon v. Myers, 115 N. J. Super. 467 (App. Div. 1971), decided before the adoption of the new act, that court adopted the “functional unit” test provided in Gallant and awarded compensation for machinery and equipment in the condemnee’s dress factory and retail outlet store at its enhanced value, as it was used by the owner in his business operations. The court found value to be “the full equivalent in money of the property taken.” Further, there was no doubt in the mind of the Myers court that

* * '* the .willing buyer purchasing defendant’s premises in a free sale would be expected to include in the purchase price the enhancement of the value of the property by reason of the personalty in place * * *' To offer less to an unwilling seller forced by law to sell (or at best relocate) a going business appears to be a gross inequity 41 * *. [at 474].

The court in Myers acknowledged the constitutional requirement of just compensation and concluded that its holding was in accordance with that standard. Though it found “a margin of discretion” for both courts and Legislature in order to assure provision of just compensation, the court warned that “The Legislature cannot in any event constitutionally mandate the payment of less than ‘just compensation’ as the courts determine that to be.”

Agency, in support of its argument that the “functional unit” rule was abandoned by the Legislature in the new act, relies on State v. P. & C. Realty Co., 121 N. J. Super. 554 (Law Div. 1972). However, P. & C. is not on point factually and holds to the contrary. There, plaintiff was denied compensation on the grounds that the machinery in question had already been removed from the owner’s condemned clothing factory to a new location. The court held that the owner should not be compensated for the value of machinery retained by him but should be reimbursed for the moving of it, reasoning that to award compensation in such a case' would constitute unjust enrichment. The court went on to say:

The rule of the Myers case has not been abrogated in any sense by the enactment of the Eminent Domain Act of 1971. The rationale of the case was not .dependent solely upon statutory construction. Bather, it was founded upon notions of fundamental fairness in the light of “contemporary realities” in interpreting the constitutional phrase “just compensation” as it appears in N. J. Const. (1947), Art. I, 'par. :20. ‘.‘The Legislature cannot in any event constitutionally mandate the payment of less than ‘just compensation’ as the courts determine that to be.” Myers, supra, 115 N. J. Super. at 479. Moreover,' the term “compensation” has been defined by the statutes as meaning “the just compensation which the. condemnor is required to pay and the condemnee is entitled to receive according to law.” N. J. S. A. 20:3-2(h). Undoubtedly the Legislature had in mind the thought that the phrase “according to law” would include judicial decisions as well as legislative enactments * * *. [121 N. J. Super. 558; emphasis supplied]

Iii the case at bar D’Andrea has not removed the restaurant fixtures and machinery and there is no question of unjust enrichment. Under the principles of Gallant and Myers there is no doubt that plaintiff is entitled to an award for the sound value of the property contained in the restaurant. Though the new statute sets forth a definition which in this factual setting is perhaps more confining than the prior broad statutory language, this court has reviewed all available materials pertinent to the legislative history of the new act and has ’found nothing which would indicate an intention to do away with the “functional unit” rule.

In fact, the report of the Eminent Domain Eevision Commission relies on Gallant as an authority. The report emphasizes that the determination of “just compensation” is a “judicial function which is said to be sufficiently elastic to adjust itself to the social needs of the times as they may change from generation to generation City of Trenton v. Lenzner, 16 N. J. 465 (1954).” Report of Eminent Domain Revision Commission of New Jersey, April 16, 1965. It goes on to define “just compensation” as “the full and perfect equivalent in money for the property taken. The owner is to be put in as good position pecuniarily as he would have occupied if his property had not been taken,” United States v. Miller, 317 U. S. 369, 373, 63 S. Ct. 276, 280, 87 L. Ed. 336 (1942), or “a sum of money which fairly represents the transferable value of the property in the market place * * * in an evidential construction of a hypothetical sale between a willing and uncoerced seller and a like-minded buyer,” State v. Burnett, 24 N. J. 280, 287 (1957).

Only where the current practices clearly deviated from this standard were changes in legislation recommended. However, they do not apply in the case at bar which deals solely with personal property. Therefore, the court must assume that both the Eminent Domain Revision Commission and the Legislature were satisfied with the Gallant rule for determining just compensation and intended that that rule carry over into the new act.

The entire testimony produced at the trial consisted of the testimony of one expert witness for each party. The court had the opportunity to review the qualifications of both Richard Cohen, Agency’s expert, and Richard Glander, who testified on behalf of D’Andrea, and was afforded an opportunity to observe the demeanor and credibility of the witnesses and the bases for their opinions.

It should be noted that both experts agreed that various items of equipment were capable of being used elsewhere and that its value would be substantially diminished if it were to be sold as secondhand equipment.

Cohen conceded that this was the first time he testified in the New Jersey courts or before New Jersey condemnation commissioners. He admitted to little, if any, familiarity with the interior of the premises in question; admitted he did not know how long the owner had been in business and, further, that some equipment could be particular in size and might not readily fit into a different size or shaped structure. He did testify that many of the items could be used at another location with the same efficiency.

Glander, on the other hand, who had more experience in matters in the New Jersey courts and agencies, testified that although some of the equipment was capable of being used elsewhere, it was an integral part of the building in which it is now located and its value would be substantially reduced upon removal therefrom.

The “sound value” of the assets as testified to by Cohen was $8,017 as compared to Glander’s $8,421 — a difference of about 5%.

Both experts are qualified in their field. However, the court attaches greater weight to the testimony of Glander and the basis used by him for his evaluation, and finds just compensation for D’Andrea for the sound value of the personal property in question to be the sum of $8,421.

Judgment accordingly.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CRAIG JOHNSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 6, 1974 —
    Decided November 21, 1974.

      Before Judges Matthews, Fritz and Botter.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Maurice J. Molyneaux, Designated Counsel, on the brief).

      Mr. Karl Asch, Union County Prosecutor, attorney for respondent (Mr. Lawrence II. Posner, Assistant Prosecutor, on the brief).
   Per Curiam.

Defendant sought unsuccessfully to retract his plea of non vult to murder, entered on the day set for his trial, by counsel who represented him at the time. His motion was made before sentence, and resulted in a testimonial hearing. He appeals from the denial of that motion.

At the time the plea was entered defendant detailed in full particular his participation in the crime, a killing perpetrated during a service station robbery. Even now he does not deny this participation, arguing before us in a pro se brief that his “admitting his guilt in Court” is a “giant step towards the direction of rehabilitation.” His counsel argues here — as the circumstances would seem to require — that the guilt or innocence of a defendant is not relevant to the determination of a presentence motion to withdraw a guilty plea.

With respect to the plea defendant argues additionally that the plea was not voluntary, and that the judge erroneously applied a standard of “manifest injustice” to his determination of the motion. Finally, the argument is forwarded that the sentence was excessive.

Factually we see very little to distinguish this case from that of State v. Herman, 47 N. J. 73 (1966). In this respect, we are satisfied that while the judge below mentioned the standard of “manifest injustice” in connection with a historical recitation, including the standards said to have been set forth by the American Bar Association in its Minimum Standards for Criminal Justice, and in quoting from State v. Daniels, 38 N. J. 242 (1962), cert. den. 374 U. S. 837, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1963), he in fact did not apply this test, but rather, properly applied the precise standards of State v. Deutsch, 34 N. J. 190 (1961), and properly recognized the controlling influence of State v. Herman, supra. Our review of the record produces agreement with his conclusion that the plea of the defendant was not coerced but was freely and understandingly made, and that defendant’s motion simply represented a change of mind. This is amply demonstrated by the entire thrust of the motion evidence, at which time defendant attributed the “coercion” to “pressure on me and then my family.” That defendant was neither coerced nor confused at the time of his plea, hut rather was electing an available option fully consistent with his admitted guilt, is apparent from Ms own statement at the motion hearing, “Well, at the time I entered the plea I knew that I was doing, I was just getting it all over with.”

We are satisfied that the court below complied assiduously with the instruction of State v. Deutsch, supra, where the following appears:

* * * In exercising its discretion the court must fairly and justly weigh the policy considerations which favor the finality of judicial procedures against the policy considerations which dictate that no man be deprived of his life or liberty except upon conviction after a fair trial or after the entry of a plea of guilty or its equivalent under circumstances which evidence that it was made truthfully, voluntarily and understandingly. [Citations omitted]
Where the application to withdraw the plea is first made after sentence the courts in our State, in practice, generally decline to interfere in the absence of a strict showing by the applicant that there was manifest injustice which requires correction through vacation of the conviction and the granting of a new trial. [Citations omitted] However, where before sentence the defendant asserts his innocenee and seeks to withdraw his plea and proceed to trial, the courts in our State, in practice, generally exercise their discretion liberally to enable withdrawal of the plea and a trial on the merits; this approach conforms with the enlightened views expressed in many judicial opinions elsewhere. * * * [34 N. J. at 197-198]

Other factors additionally compel our conclusion that we should affirm. The plea of non vult here eventuated from a plea bargain. In such instance defendant’s burden “of presenting a plausible basis for his request to withdraw his guilty plea is heavier.” State v. Huntley, 129 N. J. Super. 13, 18 (App. Div. 1974), certif. den. 66 N. J. 312 (Docket No. C-40, decided September 19, 1974).

Eurther, we are convinced that innocence or guilt is indeed relevant among the several considerations which should properly mold the discretion of a judge on a motion before sentencing to retract a guilty plea. AH else being equal, we see no reason why one who is admittedly guilty of the crime with which he is charged, and who, on the motion, cannot suggest any defense that wiH be of avail to him, should be permitted — to borrow a phrase from State v. Herman, supra, 47 N. J. at 79 — “to play fast and loose with our courts.” It is to be observed that even the presentence liberality of State v. Deutsch, quoted above, suggests the requirement of an assertion of innocence before that Hberality is to be invoked, and the opinion in that case characterizes guilt of the defendant as a “related pertinent issue.” 34 N. J. at 201.

We are completely satisfied that the findings of the judge below on the motion are predicated upon an abundance of credible evidence in the record, and that the judge’s conclusions of law are sound. We are equally satisfied that his exercise of discretion in denying the motion was sound and ■we will not interfere. State v. Johnson, 42 N. J. 146, 162 (1964).

With respect to the alleged excessiveeness of sentence, we have reviewed the entire record, including the presentence investigation, and have considered the nature of the crime. The sentence imposed was within statutory limits and in accord with the terms of the plea bargain. Indeed, the indeterminate nature of the sentence (even considering that pursuant to N. J. S. Á. 30:4-148 a maximum of 24 years was established) was a concession to the defendant not mandated by the plea bargain. In view of this and the serious crime involved it cannot be said that the judge abused his discretion. State v. Tyson, 43 N. J. 411, 416 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 359, 14 L. Ed. 2d 279 (1965).

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DOMINIC PISCOPO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 15, 1974 —
    Decided November 21, 1974.

      Before Judges Carton, Crane and Kole.

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for appellant (Mr. Martin F. Siegal, Assistant Prosecutor, of counsel and on the brief).

      Mr. Michael A. Querques, attorney for respondent (Mr. Larry Bronson of counsel).
   Per Curiam.

The State appeals, pursuant to leave granted, from an order of the trial court setting aside a jury verdict finding defendant guilty of possession of lottery slips and knowingly engaging as an employee of a lottery, and from an order granting a new trial. A previous trial ended in mistrial when the jury reported it was unable to come to a verdict.

The State’s proofs were to the following general effect: It was shown that defendant had been kept under surveillance on three separate occasions in May 1912 when he met, each time in the vicinity of Montclair Avenue and Parker Street in Newark, with one Abrusio, known to bo a pick-up man for a numbers operation. On each occasion the meetings took place in automobiles registered to members of defendant’s family and on each occasion Abrusio was observed to carry a brown paper bag or a bag wrapped in newspaper into the car occupied by defendant.

On June 14, 1912 State Police, armed with a search warrant, conducted a search of the vehicle occupied by defendant after having again observed Abrusio enter the vehicle with a paper bag. They discovered some empty paper bags and a paper bag, similar to that carried by Abrusio, which contained betting slips. A partial tabulation indicated that the lottery play contained in the bag exceeded <$5,000. Abrusio attempted to flee from the approaching police bnt was quickly apprehended.

On defendant’s ease Abrusio testified to the effect that the bag containing the lottery play belonged to him; that defendant was unaware of what was in it; that he met defendant in order to repay a loan, and that the bag, which was on his lap, fell to the ground outside the car when he attempted to flee from the police.

The jury returned a verdict of guilty on both charges against defendant. The trial judge later granted defendant’s motion for a new trial.

Defendant raises the threshhold question of whether the State has a right to appeal. State v. Sims, 65 N. J. 359 (1974), decided after this case was tried, indicates that the State may seek leave to appeal from any new trial order granted in a criminal case, although such leave should not always be granted. Id. at 373.

Leave to appeal was granted to the State in this case prior to the date Sims was decided. In light of the principles enunciated in Sims, we believe that order was proper and see no occasion for reconsideration of our determination. We note that defendant did not seek a review of this court’s interlocutory order granting such leave.

The sole ground on which the trial judge granted defend-' ant’s motion for new trial was the prosecutor’s action in calling defendant’s wife, in the presence of the jury, as a witness for the State. The question before this court is whether that action by the prosecutor constituted a valid basis for setting aside the jury verdict.

The great majority of the jurisdictions which have considered this problem has held that it is improper for the prosecutor to call defendant’s spouse as a witness under such circumstances. However, most of such courts hold that such action does not require a reversal as a matter of law, but that each case must be determined on the basis of the particular circumstances. See 76 A. L. R. 2d 920 (1961) where the cases are collected. We are of the opinion that the latter is the proper approach and best designed to achieve a just result. We shall consider the present case on that basis.

Evid. R. 23(2) specifically allows the exercise of the marital privilege in criminal actions. Evid. R. 39 prohibits the court and counsel from commenting on the exercise of a privilege not to testify or to prevent another from doing so. It provides, in pertinent part:

* * * [l]f a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege as herein provided may be misunderstood and unfavorable inferences drawn by the trier of fact, or be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.

The language of this rule indicates that while the fact of the exercise of the privilege should not be disclosed to the jury against the wishes of tire one exercising it, if such knowledge does come to the jury’s attention, instructions may be given at his request to cure any potential adverse inference.

While the rule itself makes no provision for procedures to be followed in situations where a privilege may be exercised, proper procedures were outlined in State v. Anderson, 35 N. J. 472, 486-488 (1961). In Anderson Chief Justice Weintraub pointed out that an objection to testimony by a spouse should be heard outside the presence of the jury. When the prosecutor wishes to call the spouse and is uncertain whether the spouse intends to exercise the privilege of not testifying or whether the accused will consent to such testimony, the proper procedure is for the prosecution to inquire, outside the presence of the jury, whether the marital privilege will be invoked. See State v. Cullen, 103 N. J. Super. 360 (App. Div. 1968), and State v. Fournier, 91 N. J. Su per. 477 (App. Div. 1966), eases concerning exercise of the privilege against self-incrimination.

It is therefore cléar that the prosecutor’s action in calling defendant’s wife as a witness, in the presence of the jury, was improper. It remains to consider whether, under the circumstances of this case, the calling of Mrs. Piscopo was of such prejudicial nature as to warrant the granting of a new trial. When Mrs. Piscopo’s name was announced as the next witness, the court immediately excused the jury. It is significant that the court at that point concluded that defendant had sustained no prejudice and denied a motion for mistrial. The court then promptly and emphatically instructed the jury to disregard the incident.

It is difficult to perceive how this brief and fleeting incident could give rise to any real prejudice to defendant. However, the court in its opinion setting aside the conviction and granting a new trial, made the following comments:

* * *' When [Mrs. Piscopo, defendant’s wife] heard her name, she rose from the seat which she occupied in the courtroom. The defendant’s attorney immediately objected and the court dismissed the jury, ¡r * *
*. * * The jury could not help but draw harmful inferences from the vivid scene which took place and the subsequent failure of the wife to testify. It is possible that this action did substantially sway the thinking processes of the jury so as to affect the defendant’s substantial rights. Courts should not permit this type of procedure.

This conclusion is in marked contrast with that reached initially by the trial court. In the later statement the court seems to rely on the conclusion that the prosecutor’s conduct was intentional and done for the purpose of compelling the invocation of the privilege in the presence of the jury. The prosecutor’s explanation was that he intended to inquire of her where she currently resided and whether she had an automobile registered in her name, and whether it was a 1971 Cutlass. That evidence was in substance already before the jury and thus would have been, at best, cumulative. This circumstance and the fact that the witness was privileged not to testify at all against her will or without defendant’s consent strongly supports the court’s conclusion that the action was done deliberately to prejudice defendant. If such was the case, the prosecutor’s conduct was highly improper and cannot be condoned.

Nevertheless, it does not follow that defendant was entitled to a new trial even if such was the purpose of the prosecutor. We see no sound reason why a defendant in a criminal trial should benefit from such action unless it appears that defendant was prejudiced by it. There are other more appropriate and effective remedies for reviewing the propriety of attorneys’ conduct in court.

Here the name of defendant’s wife was simply announced as that of a prospective witness. She did not testify. The record does not show that the j ury actually became aware that defendant was exercising his privilege not to have her testify and that defendant did not consent to her doing so. Nor are wo convinced that the jury would necessarily draw the inference that the privilege had been exercised from the wife’s subsequent failure to testify, especially in view of the language of the curative instruction from the court that it “wouldn’t permit” her to testify.

Under all these circumstances, we see no prejudice accruing to defendant which would warrant the granting of a new trial. In this connection, we note that the evidence against the defendant was very strong and that the possibility of an unjust result resulting from the prosecutor’s action was very remote.

Eeversed.


text:
    IN THE MATTER OF CHARLES VACCARO, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued May 29, 1974 —
    Decided June 11, 1974.

      Before Judges Halpery, Matthews and Bischoef.

      Mr. George T. Dougherty argued the cause for appellant (Messrs. Katz, Bitterman & Dougherty, attorneys).

      Miss Prudence H. Bisbee, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Per Curiam.

Petitioner Rose E. A^accaro appeals from a decision of the Board of Trustees of the Division of Public Employees’ Retirement System (Board), denying her application for disability retirement benefits under Option 1 of N. J. S. A. 43 :15A-50.

■ The relevant facts are undisputed. Petitioner is the widow of Charles Vaecaro (decedent) who died on November 12, 1971, and is the beneficiary designated by decedent under Option 1 to receive the benefits of his retirement allowance. Decedent had been employed by the State Department of Transportation since 1952 and was a member in good standing of the Public Employees’ Retirement System. During the summer of 1970 decedent was stricken and hospitalized with lung cancer. He returned to work but was again compelled to stop work because of his illness, and he was given a leave of absence from June 10, 1971 to September 10, 1971. During this three-month period he received medical treatments, of various types, in an attempt to arrest or cure his cancerous condition. By July 26, 1971, the doctors determined that decedent’s illness was terminal, and that he would be unable to return to work.

On July 28, 1971 decedent filed his signed application for disability retirement benefits under Option 1 of N. J. S. A. 43 rlSA-SO, with the request it he effective as -of August 1, 1971. The application was received by the Board on July 30, 1971. Due to decedent’s inability to go to a doctor’s office for a physical examination, the Board on August 4, 1971 directed Dr. Leo Goldman to examine decedent at bis home. On or about September 1, 1971 decedent was again hospitalized for his illness, and the Board was notified on September 3, 1971 that Dr. Goldman had not yet made the examination. By letter of September 7, 1971 the Board directed Dr. Howard Leveuson to make the examination at the hospital. Dr. Lcvenson made the examination on the same day, and his report of September 17, 1971 was received by the Board on September 20, 1971. On the next day the Board sent decedent’s application, together with the supporting medical data, to the Board’s Medical Review Board for its consideration. The Medical Review Board’s report of October 4, 1971 was then sent to the Board. On October 19, 1971 decedent’s retirement application was granted. It took 2 months and 20 days to process decedent’s application.

The Board denied petitioner’s claim for retirement death benefits on the basis that decedent had died on November 12, 1971, within 30 days of the date of the granting of his application on October 19, 1971. At the hearing before the Board’s designated Hearer, petitioner asserted that the Board improperly invoked the statutory time requirements since it was the Board’s inefficiency in processing the application that permitted the 30-day statutory limitation period to he set up as a bar to the claim. The hearer determined the application was handled in a proper businesslike manner, and since petitioner failed to show bad faith on the Board’s part, he recommended the application be denied. The Board, after considering the record, adopted the hearer’s recommendation.

The narrow issue on appeal is whether the Board, with full knowledge of decedent’s terminal illness, processed his application with reasonable dispatch. Unfortunately, the statute does not designate how soon an application should be processed. It merely denies benefits under Option 1 if the applicant dies within 30 days “after the date of retirement [here August 1, 1971] or the date of board approval [here October 19, 1971], whichever is later, his retirement allowance shall not become effective and he shall be considered an active member at the time of death.”

Normally, pension statutes should be liberally construed in favor of employees eligible for retirement. In re Application of Smith, 57 N. J. 368, 374 (1971). We must assume that the Legislature intended that retirement applications be processed promptly and with due diligence, depending upon the circumstances existing in each case. Therefore, the Board’s failure to act with due diligence should not bar recovery of benefits to one otherwise legally entitled thereto.

The Board’s sole contention is that it did act diligently, and that it processed decedent’s application within the normal time span of between two and five months. It asserts that for the year 1971 it acted on about 550 retirement applications. It stresses the fact that it is difficult to get doctors to make necessary physical examinations at a patient’s home. The record indicates that in processing applications the Medical Eeview Board convened twice a month, and the Board of Trustees once a month. In short, it argues that we should consider decedent’s application as a “deathbed” attempt to defeat the statute. It relies upon De Nike v. Board of Trustees of State Employees’ Retirement System, 34 N. J. 430 (1961), to support its contention. We disagree and hold that based on the facts in this case Be Nike is not applicable.

On the record before us bad faith or fraud is not chargeable to the Board or petitioner. Certainly, in view of decedent’s terminal illness and inability to continue work, he had a right to apply for the retirement benefits allowed under Option 1. He had no way of knowing how long he would live, and he did everything required of him to apply for his statutory benefits. The issue is whether the Board acted with reasonable dispatch in processing the application.

Under the factual circumstances existing in this case, we answer the question in the negative. The Board is under a statutory duty to properly process all applications for retirement benefits. N. J. S. A. 43 :15A-17; State v. Deegan, 126 N. J. Super. 475 (App. Div. 1974), certif. den. 66 N. J. 151 (1974). Knowing from experience that it will have to process more than 500 applications a year, and the difficulty of getting doctors to examine applicants on a case by case basis, it should be staffed or have readily available to it sufficient medical and other personnel to make the required physical examinations within a reasonable time. The Medical Beview Board and the Board of Trustees, when necessary, should convene more often than they do to effectuate the purposes of granting pensions to those entitled thereto. A span of two to five months to process applications strikes us as being unreasonably long. This is particularly true when it has knowledge of an applicant’s admitted terminal illness, and is aware of the drastic effect of the 30-day period in N. J. S. A. 43:15A — 50.

In dissecting the procedure followed to process decedent’s application we find that (1) although the application was received by the Board on July 30, 1971, it was unable to get a doctor to examine decedent before September 7, 1971, a matter of 39 days; (2) it took 13 days (to September 20, 1971) after the examination was made for the doctor’s report to reach the Medical Review Board, and (3) the Medical Review Board made its report of October 4, 1971 to the Board of Trustees, who did not act upon it until October 19, 1971. If decedent had lived seven more days the statute would not have been available as a bar to petitioner’s claim.

We see no valid reason, in law or equity, why this administrative lag of 2 months and 20 days should be at the expense of an employee entitled to statutory retirement benefits. We recognize that there must be some time spent in processing claims, but taking 2 months and 20 days to do so in this case is unreasonable and violates fundamental fairness. While we are unable to definitively state what period of time would be reasonable in every case, we are convinced that in the circumstances existing here, the Board did not act with reasonable dispatch in processing decedent’s application, and that petitioner is entitled to receive the retirement benefits provided for under Option 1 of N. J. S. A. 43:15A-50.

The determination of the Board is reversed, and judgment to be entered in accordance herewith.

       43:15A-50. MEMBER’S OPTION ON RETIREMENT
      Subject to the provisions of section 59 of this act, at the time of his retirement a member shall receive his benefits in a retirement allowance payable throughout life, or he may, on retirement, elect to receive the actuarial equivalent of his retirement allowance, in a lesser retirement allowance, payable throughout life, with the provision that:
      Option 1. If be dies before he has received in payments the present value of bis retirement allowance as it was at the time of his retirement, the balance shall be paid to his legal representatives or to such person as he shall nominate by written designation acknowledged and filed with the retirement system, either in a lump sum or by equal payments over a period of years at the option of the payee. If the member shall have designated a natural person as the payee, said payee may elect to receive such payments in the form of a life annuity. * * *

      Except in the case of members who have elected to receive (1) a deferred retirement allowance pursuant to section 38 or (2) early retirement allowances pursuant to section 41b after separation from service pursuant to section 38, if a member dies within 30 days after the date of retirement or the date of board approval, whichever is later, his retirement allowance shall not become effective and he shall be considered an active member at the time of death.