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

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. RALPH EVANGELISTA, DEFENDANT.
    Superior Court of New Jersey Law Division (Criminal)
    Decided April 25, 1975.

      Mr. John M. Polloway, Assistant Prosecutor, for plaintiff (Mr. James M. Coleman, Jr., Prosecutor of Monmouth County, attorney).

      Mr. Howard Schwartz for defendant Ralph Evangelista.
   McGowan, A. J. S. C.

Defendant was indicted for assault with intent to kill, assault with a dangerous weapon; atrocious assault and battery, possession of a dangerous weapon and conspiracy to commit an atrocious assault and battery.

A juvenile transfer hearing was held on December 4, 1974 before the Juvenile Court judge pursuant to N. J. 8. A. 2A :4-48 and R. 5:9-5.

This motion to dismiss the indictment is based upon alleged violations of defendant’s right to due process of law by the admission of hearsay testimony at his transfer hearing.

Before approaching the substantive issue concerning the alleged due process violations, however, the question of whether this court has the jurisdiction to hear this type of case on a motion to dismiss or whether the proper procedure should be by appeal to the Appellate Division must be discussed.

N. J. 8. A. 2A:L-40 provides that “An appeal may be taken from any final order or judgment of the juvenile and domestic relations court to the appellate division of the superior court.” See also R. 2 :2-3, providing that final judgments of the the Juvenile and Domestic Relations Court may be appealed to the Appellate Division.

The question is, then, whether the decision to transfer the juvenile is a final order or judgment within the intendment of the above statute and rule.

The problem has not been directly approached by any New Jersey decision. However, see State v. Loray, 46 N. J. 179 (1965); State v. Van Buren, 29 N. J. 548 (1958), and State v. Tuddles, 38 N. J. 565 (1962).

The courts of other jurisdictions have been confronted with this question, and the majority consider these orders final orders or judgments and permit direct appeal therefrom. See P. H. v. State, 504 P. 2d 837, 839 (Alaska Sup. Ct. 1972) ; In re Doe I, 50 Hawaii 537, 538, 444 P. 2d 459, 460 (Sup. Ct. 1968); Templeton v. State, 202 Kan. 89, 91, 447 P. 2d 158, 161 (Sup. Ct. 1968); Aye v. State, 17 Md. App. 32, 36, 299 A. 2d 513, 517 (Ct. of Spec. App. 1971); In re Doe, 86 N. Mex. App. 37, 519 P. 2d 133 (Ct. App. 1974), and extensive citation of cases contained therein.

The rationale employed in these decisions is that an order of the juvenile court waiving jurisdiction is an appealable final judgment because it terminates further consideration in that court. P. H. v. State, supra at 839.

A minority of states do not permit a transfer to be considered a final order or judgment, the rationale being that by permitting appellate review the primary issue (guilt or innocence) is deferred while the question of punishment appropriate for a defendant who has not yet been convicted is being litigated in the reviewing courts. See People v. Jiles, 43 Ill. 2d 145, 148, 251 N. E. 2d 529, 531 (Sup. Ct. 1969); In re T. J. H., 479 S. W. 2d 433, 434 (Mo. Sup. Ct. 1972); In re Becker, 39 Ohio St. 2d 84, 85, 314 N. E. 2d 158, 159 (Sup. Ct. 1974). In those states the indication is that the matter should be raised after criminal conviction, see In re Becker, supra 39 Ohio St. at 160, 314 N. E. 2d 158, a practice which our Supreme Court seemed to frown upon in State v. Loray, 46 N. J. supra at 190-191, and upon which the Becker court specifically declined to rule (114 N. E. 2d at 143).

The New Jersey courts have permitted direct appeal from referral hearings in the past. See State v. Van Buren, State v. Tuddles and State v. Loray, all supra.

In State v. Tjoray the court was dealing with an appeal of the State from a hearing of post-conviction relief in which the County Court vacated the judgment of the trial court and remanded a juvenile for a proper transfer hearing. In discussing defendant’s method of attacking the referral hearing, the court stated (at 190), “He could have made an appropriate attack long before.” The court also stated:

Although Tuddles, with its holding of the necessity for counsel and also of the right to challenge' and reopen the referral hearing after indictment (but before tidal in' that case), was not decided until after Loray’s conviction, Van Buren, which was an appeal from a referral order after indictment, had been on the books for almost three years prior to the order in the instant case. Loray was indicted a few days after the referral and counsel was assigned him in the criminal court shortly following, who could then have raised the validity of the referral proceeding by a timely appeal.
The remand order is modified. [46 N. J. at 191]

A direct appeal from the transfer hearing would seem to be the proper method of review of the proceedings.

Defendant argues, however, that the holding in Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), in which the Supreme Court approved of the court of appeals decision in Kent v. Reid, 114 U. S. App. D. C. 330, 316 F. 2d 331 (D. C. Cir. 1963), should control.

In Kent v. Reid the Court of Appeals held (at 344, 345) that a motion to dismiss the indictment was the proper method of review of referral hearings, basing its determination on the delay factor and the fact that the controversy between the parties was not finally adjudicated.

In the case of In re Doe I, supra, the Supreme Court of Hawaii discussed and specifically distinguished Kent v. Reid as follows:

The statute involved in Kent v. Reid, being District of Columbia Code § 11-1553, provides that the court to which a minor is held over for trial “may exercise the powers conferred upon the Juvenile Court * * As construed in court decisions predating that case, this statute authorized the district court to make a de novo determination of a minor’s right to non-criminal processes. Thus, the juvenile court order in that case did not finally withdraw noncriminal processes from the minor.
The situation here is quite to the contrary. Our statute does not authorize the Circuit Court, as such, to exercise the power conferred upon the family court, in the treatment of a minor held for criminal proceedings there. That being the case, once the family court waives its jurisdiction, all of the safeguards accorded a minor are gone, and the minor’s only recourse for the preservation of those safeguards is appeal to this court for reversal of the family court order. It is argued that the minor may appeal from the circuit court judgment, if it should be adverse to him. However, there is some question whether a family court order can bo reviewed on an appeal from a circuit court judgment. Even if such review is possible, the right to such review is a hollow one, for, by then, many of the safeguards, including freedom from adverse publicity, would have been irretrievably lost.

It must be observed that the New Jersey statutes do not permit any de novo determination after the matter has left the Juvenile Court.

In light of the prevailing view in the country that transfer orders are to be considered final orders, directly appeal-able to an appellate tribunal, and in view of the past approval pf the New Jersey Supreme Court concerning direct appeal of these orders, this court now holds that said orders should be considered final orders or judgments, and therefore the proper forum to hear a motion of this nature is the Appellate Division.

Defendant’s motion for dismissal of the indictment is accordingly denied.


source: Caselaw Access Project

author: Douglas, J. J. D. R. C.

license: Public Domain

text:
    L., PLAINTIFF, v. M., DEFENDANT.
    Juvenile and Domestic Relations Court Camden County
    April 24, 1975.

      Mr. Arthur Jay Cohen, of the Camden County Welfare Board, for plaintiff pursuant to B. 1:21-3 (c). (Ms. Mary E. Dugdale, Camden County Welfare Board, attorney).

      Mr. Lee Sherman for defendant.
   Douglas, J. J. D. R. C.

The issue here is whether defendant husband should be required to support a child conceived and born to plaintiff wife after defendant underwent a vasectomy operation.

The parties were married June 28, 1969. Three children were born of the marriage, after which the family doctor advised the wife not to have more children due to medical reasons. The parties agreed that the husband would have a vasectomy by Dr. Yorker on July 28, 1972, the same month in which the third child was born. This was done.

On January 21, 1974 the wife gave birth to the child at issue. The pregnancy was full term, with conception occurring apparently in April 1973. The parties separated in June 1973. The wife testified that the parties occupied separate rooms for three months before the separation, hut had sexual relations about once every two weeks during that time, using no birth control methods. The husband testified that they had separate rooms for five to six months prior to the separation and had sexual relations less than every two weeks and none for the two months before the husband left.

There is no testimony or suggestion of any impropriety on the wife’s part with any other man, except inferentially by the husband’s claim that he cannot be the father of the last child by reason of his operation.

The wife testified that she has had no relations with any man other than her husband; that she is an active and regular church member, and that she has not dated since the separation.

The husband is also a good church member, studying to be a minister. The parties have had sexual relations in 1974 since their separation and after the last child’s birth.

Dr. Yorker testified in substance as follows: He tells his patients that success with a vasectomy is better than any other kind of operation; that usually tests are made of the sperm count the second and third month after the operation, and if the count is zero at the second month and two to zero at the third month, the patient is considered sterile; that complete sterility is usually seen in three months; that this defendant had tests in October 1973 and April 1974, with no .sperm seen, which means defendant was sterile at the time of the tests; that he has never had a vasectomy with sperm 10 to 11 months after the operation; that the outside limits for the existence of sperm is not much more than six months; that it is medically not probable that defendant is the father of the child conceived 10 to 11 months after the vasectomy; that the probability of sterility at the time of conception is great but is not 100%, and that normal gestation is nine months previous to birth.

Both parties impressed the court as being honest, sincere and straightforward in their testimony.

The legitimacy of every child born in wedlock is now, and since the earliest times has been, bolstered by an exceedingly sturdy presumption, which presumption is recognized in this State. In re Rogers, 30 N. J. Super. 479 (App. Div. 1954). In such circumstances legitimacy, though strongly presumed, may be rebutted. B. v. 0., 50 N. J. 93 (1967). At one time the proof to establish illegitimacy of a child born in wedlock had to be such that there was no probable escape" from the conclusion. In re Rogers, supra. This test has been modified and the appropriate burden now is “clear and convincing evidence”. Sarte v. Pidoto, 129 N. J. Super. 405 (App. Div. 1974).

The reasons for the presumption have been collected in In re Adoption by K., 92 N. J. Super. 204 (Cty. Ct. 1966), as follows:

* * * the protection of innocent children from disinheritance, the promotion of public morals and chastity by encouraging husbands to keep watch over their wives, the avoidance of difficulty in ascertaining paternity, and the avoidance of inquiries into the privacy of domestic life . . . From the child’s viewpoint, bastardizing the child not only affects his rights of inheritance but may permanently wound him emotionally. One would expect that a child has a natural yearning to know his true parentage. Every child has the need to feel rooted, to find himself, and to know his true origins.

In the present factual context is tfie claimed illegitimacy of the child established by “clear and convincing evidence”? I conclude that it is not. The medical testimony, while dealing with probabilities, does not close the door. On the medical testimony a doubt remains, and it is the only area of uncertainty in the testimony. Sterility from a vasectomy is not guaranteed but is, at best, merely better than any other form of operation. The usual tests in the second and third month after the operation were not made here. The tests of October 1973 and April 1974 do not establish sterility at the time of conception in 1973. It may be unlikely that sperm existed in the husband nine months after the operation, but it is not impossible. To resolve that doubt in favor of defendant would be to determine that the wife had sexual relations at the time of conception with someone other than her husband, but there is no shred of evidence to support such a holding. To the contrary, the undisputed testimony is that the wife has never had sexual relations with anyone except her husband. There is no proof the wife was even interested in any other man. Although the husband testified that the parties had no relations for two months before he left, this differs from the wife’s testimony, and in view of the fact that their relations continued even after the birth of the child whose paternity is at issue and on into 1974, well after the separation, I accept the wife’s testimony on this point. I hold that the child is legitimate.

This holding is not inconsistent with decisions from other jurisdictions.

In the Arizona case of Pyeatte v. Pyeatte, 21 Ariz. App. 448, 520 P. 2d 542 (1974), the Court of Appeals of that jurisdiction, in deciding a claim of sterility on the part of the husband, held:

The trier of fact is not compelled to believe expert opinion in the face of evidence of practical results indicating otherwise. * * * Here there was evidence of repeated intercourse between plaintiff and defendant during the period of conception and a denial by plaintiff of access to other men during this time. Taken together with the lack of total conclusiveness inherent in a medical determination of sterility, we cannot hold as a matter of law that defendant clearly and convincingly established non-paternity.

In Pyeatte the doctor testified that no one could state as “an absolute fact” that defendant could not have produced the pregnancy — only that it was “highly improbable”. The ultimate holding there was that the husband failed to rebut the presumption of paternity. New Jersey’s rule of “clear and convincing” evidence was the test applied.

In the Indiana case of Whitman v. Whitman, 140 Ind. App. 289, 215 N. E. 2d 689 (Ind. App. 1966), the court affirmed the trial court and held that the evidence supported the finding that the husband was the father of the wife’s child born during marriage despite evidence that the husband had undergone a vasectomy. In Whitman the operation occurred January 26, 1946; the parties had normal marital relations until 1963, and the child in question was born April 1962. The operating doctor did not testify and the medical testimony did not establish the length of time plaintiff could have been sterile on the basis of sperm analysis performed two weeks before the trial, as a result of which the medical opinion was that plaintiff was presently sterile and was “almost certainly” not the father of the child. In affirming paternity, the court held that

* * * considering the evidence most favorable to appellee; the strong presumption of the legitimacy of a chlid born in wedlock; the fact that appellant admittedly was having normal marital sexual relations with the appellee at the time of conception; and the failure of proof to show that anyone else had such access; and the lack of the evidence to directly, clearly, and convincingly establish the sterility of appellant at the time of conception, we conclude that the decision of the trial court is sustained by sufficient evidence and is not contrary to law.

Again the “clear and convincing” test was applied.

In Tosh v. Tosh, 214 Cal. App. 2d, 483, 29 Cal. Rptr. 613, 46 A. L. R. 3d 175 (D. Ct. App. 1963) the parties were married in July 1958, the vasectomy occurred in October 1958, the separation occurred March 19, 1960, but the marital relations continued until April 24, 1960 and the child whose paternity was at issue was born November 13, 1960. The wife denied sexual relations with anyone but the husband and there was no evidence of wife’s affection for, propinquity to, or acquaintance with any other man. Tests were made in November 1958, June 1960 and July 1960 that showed an absence of live sperm, but the November test was too soon after the operation to be conclusive. The appellate court held the doctor’s opinion of sterility is not entitled to conclusive effect in view of the substantive evidence sustaining an implied finding of the trial court that the husband was not sterile, which evidence consisted of the wife’s testimony of no relations with any other men and lack of proof of any other men although the defendant lived next door after the separation.

Cochran v. Cochran, 2 Wash. App. 514, 468 P. 2d 729 (App. Ct. 1970), is a case which was remanded by the appellate court for additional findings of fact, and hence is not conclusive as to the end result. Moreover, the facts differ in material parts from the present case. The vasectomy was performed August 10, 1966 and the husband was tested five times from November 1966 to August 1968, with each test negative. A child was conceived in September 1967 while the parties lived together. The medical testimony was that the chance of the husband being able to impregnate during the critical period was “to a reasonable medical certainty, nil”. There was some inference of misconduct by the wife. The trial court had found the husband to be the father.

The matter will be listed for further hearing on the issue of the amount of support.


author: Yaccarino, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. K-MART, DEFENDANT.
    Monmouth County Court Criminal Division
    April 21, 1975.

      Mr. William P. Ford for defendant (Messrs. Grunewald, Turk, Gillen & Ford, attorneys).

      Mr. Jerome Kineavy, Assistant Prosecutor for the State (Mr. James W. Coleman, Jr., Prosecutor of Monmouth County, attorney).
   Yaccarino, J. S. C.,

Temporarily Assigned. This is a trial de novo on the record. Defendant was convicted in the Hazlet Township Municipal Court on two counts of the Sunday Closing Law, N. J. 8. A. 2A:171-5.8. A fine of $100 plus costs was imposed on each violation.

At the hearing below defendant made three separate pretrial motions. First, it moved to dismiss the complaints because they failed to properly inform defendant of the charges against it. The municipal judge denied the motion. Defendant next moved to dismiss the complaint for failure to charge a crime under the statute, which prohibits certain activities on Sunday, except “as works of necessity or charity or as isolated transactions not in the usual course of the business of the participants.” The complaints did not negative the exceptions in the statute; there was no allegation that defendant was not within the statutory exceptions. The motion was denied. Defendant then moved to dismiss the complaints on the grounds that part of the statute referring to the exception for works of necessity and charity was unconstitutionally vague. That motion was denied. Defendant then entered a plea of not guilty.

The facts are undisputed. Joseph Kahn, one of the complainants, testified that he purchased a boy’s shirt in the K-Mart Store in Hazlet on Sunday, December 15, 1974, for $2.77. George Beaman, the other complainant, testified that he purchased a man’s shirt in the K-Mart store in Hazlet on Sunday, December 15, 1974, for $4.56.

At the end of the State’s case defendant renewed its motions to dismiss; again the judge denied the motions. The judge then found defendant guilty of both offenses.

Defendant’s argument is based on the interpretation to be given N. J. S. A. 2A:171-5.8. It argues that the complaint is insufficient as a matter of law, and asserts that the complaint did not adequately apprise defendant of the charges against it and did not charge a crime because it did not negative the exceptions in the statute. Defendant also claims that the exception in the statute, to wit, “works of necessity and charity,” is unconstitutionally vague.

The statute under present scrutiny is N. J. S. A. 2A:171-5.8, which reads:

On the first day of the week, commonly known and designated as Sunday, it shall be unlawful for any person whether it be at retail, wholesale or by auction, to sell, attempt to sell or offer to sell or to engage in the business of selling, as hereinafter defined, clothing or wearing apparel, building and lumber supply materials, furniture, home or business or office furnishings, household, business or office appliances, except as works of necessity and charity or as isolated transactions not in the usual course of the business of the participants.
Any person who violates any provision of this act is a disorderly person and upon conviction for the first offense, shall pay a fine of $25.00; and for the second offense, shall pay a fine of not less than $25.00 or more than $100.00 to be fixed by the court; and for the third offense, shall pay a fine of not less than $300.00 or more than $200.00 to be fixed by the court or, in the discretion of the court, may be imprisoned for a period of not more than 30 days, or both; and for the fourth or each subsequent offense, shall pay a fine of not less than $200.00 or more than $500.00 to be fixed by the court or, in the discretion of the court, may be imprisoned for a period of not less than 30 days or more than 6 months, or both. A single sale of an article or articles of merchandise of the character hereinabove set forth to any 1 customer, or a single offer to sell an article or articles of such merchandise to any 1 prospective customer, shall be deemed to be and constitute a separate and distinct violation of this act.

Defendant contends that the State has failed to either plead or prove that defendant is not within the exception set forth in the enacting and prohibiting clause of the statute. It relies on the case of West Orange v. Jordan Corp., 52 N. J. Super. 533 (Cty. Ct. 1958). The ordinance there proscribed all wordly employment or business “except works of necessity and charity.” The court held that the town had the burden to negative in its complaint and to show hy its proof that defendant’s work was not work of necessity and charity.

This rule of construction emanates from State v. Reilly, 88 N. J. L. 104 (Sup. Ct. 1915), aff’d 89 N. J. L. 637 (E. & A. 1916).

In the present case this court is dealing with a legislative enactment created in 1959, which was specifically given to the public to approve in the form of a referendum. The question before this court is whether to apply the rigid rule of State v. Reilly, supra, or, in the alternative, to interpret this statute in light of the interpretive aid known as in pari materia. Statutes in pari materia, i. e., related statutes dealing with the same subject matter, may be resorted to as aids to the construing of a particular statute. “Statutory interpretation as a component of the judicial task and function is not — and indeed in its nature it cannot be — an exact science.” Nutting, Eliott c& Dickerson, Legislation: Gases & Materials (1968), at 416. This court chooses not to grapple with the narrow construction given the enactment clause of the statute, but rather would decide this case in view of correcting the mischief this statute sought to end.

The common scheme of N. J. S. A. 3A :171 — 1 et seq., Arts. 1, 1A and 3, is laws governing the observance of the Sabbath. The statute under scrutiny, N. J. S. A. 3A:171-5.8, is found in Article 1A of chapter 171. The theme of this entire chapter pertains to what the State views as activities allowable and those not allowable on the Sabbath. In Gundaker Central Motors v. Gassert, 23 N. J. 71 (1956), the Supreme Court dealt with, the Sunday closing ban against automobiles. Chief Justice Vanderbilt wrote:

The public policy of this state is against all wordly employment on Sunday, except works of charity and necessity, N. J. S. A. 2A: 171-3. The means selected for accomplishing and maintaining that policy is not for us to question as long as there is a reasonable basis for the enactment * * *. [at 841

The proper articulation of chapter 171 will be found in N. J. 8. yl. 2A: 171-1, the initial statute in Art. 1. The statutes which follow", emanate from and revolve about the purposes enunciated in N. J. 8. A. 2A:171 — 1. 2A:171-1 reads:

No wordly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.

This court is of the opinion that in applying the concept of in pari materia the words “except works of charity and necessity” should be read in the context of the entire legislative scheme of chapter 171. Bead in this light, the words are no longer merely an appendage of the enacting and prohibiting clause; rather, they stand quite apart as a pronouncement of the legislative scheme. Consequently, the words should be viewed from a different vantage point.

The confusion in this area is caused by the proper definition of what constitutes the enacting clause. If the clause is part of the description of the offense, it must be included in the averment, but if the clause is a separate substantive qualification, it need not be pleaded and consequently is only a matter of distinct defense. See McGear v. Woodruff, 33 N. J. L. 213 (1868).

Strictly speaking, the enacting part of the statute is that which declares its enactment and identifies it as an act of legislation, which is no part of the prohibitory or declaratory clause of the act. [State v. Reilly, supra 88 N. J. L. at 106].

This court is of the opinion that by reading the statutes in pari materia the clause, “except works of necessity and charity,” fits into the category of words merely describing the statement of the statute, the ultimate purpose of which is to exclude these activities from a description of the oifense.

We are also of the opinion that the fact that the exception appears in the same section of the act with the prohibitory clause, does not change the rule if the clause containing the exception is distinct and substantive, and that such a condition exists in the statute being considered. Conner v. Fogg, 75 N. J. L. 245. [State v. Reilly, supra 88 N. J. L. at 108]

Therefore, this court finds that the words in question are not to be read as part of an essential thing to be negatived. The prosecution must merely prove that defendant violated the prohibitory cluase. The burden is upon defendant to prove that he is within one of the exceptions. See West Orange v. Jordan Corp., supra; Plainfield v. Watson, 57 N. J. L. 525 (Sup Ct. 1895); State v. Lee, 100 N. J. L. 201 (Sup. Ct. 1924).

This court is in pursuit of a utilitarian principle labeled by some authorities as the “mischief rule.” The rule was enunciated by Sir Edward Coke in Heydon's Case, 3 Co. Rep. 7a, 7b, 7c, Eng. Rep. 657, 658 (1584). The essence of the rule is for the judge, when interpreting legislation, to keep in mind the mischief that the Legislature through its enactment is seeking to suppress. See Legislation: Gases & Materials, supra at 409. Here the mischief is quite clear.

There is a plethora of opinions in this jurisdiction which deal with how the court should exercise its discretion in interpreting the statutes. A reading of the decisions rendered by the courts of New Jersey in the area of legislative interpretation reveals an adherence to Lord Coke’s admonition “to suppress the mischief and advance the remedy.”

The pertinent language of the complaint reads, “defendant did sell items on Sunday in the store in violation of the Sunday Closing Law.” This is the mischief that N. J. S. A. 2A:171-5.8 was intended to stop. The purpose of an indictment or complaint is to place defendant on notice as to what accusations have been made against him. Here the statute spells out what cannot be sold. To say that the complaint is defective because the specific violation (the sale of a shirt) was not included, or that the State has the burden of proving the purchase was not made through charity or out of necessity, would defeat the purpose of the statute. Although criminal or quasi-criminal statutes are to be strictly construed against the State, they should not be so construed as to place an intolerable burden upon it. The purpose of a statute should not be frustrated because of an unduly narrow interpretation. Cammarata v. Essex Cty. Park Comm’n, 26 N. J. 404 (1958). Statutory interpretation that would lead to an absurd result should be avoided. State v. Gill, 47 N. J. 441 (1966). The Legislature’s plan for the statute must be read in its full light, with the primary concern being the fulfillment of its true purpose. State v. Gill, supra.

The interpretation of the statute urged by defendant places an onerous burden on the State, a burden the Legislature did not intend to create. The purpose of the statute is to see that certain items are not sold on Sunday. An explicit exception in cases of charity and necessity was included in the act in order to make the store owner aware of the circumstances under which the statute did not apply. It is ludicrous to now say that the State must prove in every case that the exception did not exist.

But statutes should not be construed without regard for the manifest intent of the Legislature. The legislative goal serves as a guiding consideration, Bechler v. Parsekian, 36 N. J. 242 (1961), and accordingly words in a statute must he interpreted in context to serve the spirit of the law. Walnut Realty Co. v. Director of Division of Taxation, 36 N. J. 365, 375 (1962) [Bd. of Education of Asbury Park v. Hoek, 38 N. J. 213, 231 (1962) ]
In construing the legislative intent we must look to the objective sought to be attained, the nature of the subject matter, the contextual setting, and all statutes in pari materia. The statute must be construed as a whole with reference to the system of which it is a part. State v. Brown, 22 N. J. 405 (1956). Nor will a statute be construed so as to reach an absurd or anomalous result. Robson v. Rodriquez, 26 N. J. 517 (1958). [Pfitzinger v. Bd. of Trustees, etc., Retirement System, 62 N. J. Super. 589, 601 (Law Div. 1960)]

To construe this statute in light of West Orange v. Jordan Corp., supra, would render the intent of the statute impotent. It is unthinkable that the Legislature intended, in enacting N. J. 8. A. 2A:171-5, to place the burden on the state to prove the exceptions within the statute. Specific language can be avoided in interpreting a statute in order to escape what the Legislature might see as an inconceivable result from its intent. See Sandler v. Springfield Tp. Bd. of Adj., 113 N. J. Super. 333 (App. Div. 1970). Courts will not construe certain clauses in a statute in such a manner as to render the whole act impotent. State v. Deckert, 69 N. J. Super. 105 (Law Div. 1961).

This court construes the legislative intent to mean that N. J. S. A. 2A:171~5.8 precludes the sale of certain items on Sunday; the State does not have the burden of proving that the sale was within the exceptions of the statute. Rather, this court, in interpreting the statute, sees the burden of proving an exception of “necessity or charity” resting on defendant. This court finds as a matter of law that proof by the defendant of “necessity or charity” will be deemed a defense to an action brought under N. J. S. A. 2A :171-5.8.

Defendant also contends that the exception in the statute, to wit, works of necessity and charity, is unconstitutionally vague. In particular, defendant argues that the phrase “works of necessity” is so vague, indefinite and uncertain that it fails to inform men of common intelligence what conduct on their part in any particular circumstance will render them liable to its penalties.

The statute must be read in its entirety. Read in its entirety, the purported vagueness of the phrase in question does not really exist. A legislative enactment is presumed to be constitutional, and the burden is on the party challenging it to prove otherwise. Jamouneau v. Harner, 16 N. J. 500, 515 (1964).

The statute clearly prohibits what is to be sold on a Sunday. The exceptions of necessity and charity must be read within the contextual sphere of the statute itself. When read in this way, it is clear that this argument of vagueness fails.

To meet the requirements of due process, a law must not be so vague that it leaves the public uncertain as to what conduct it prohibits or leaves judges and jurors free in each particular case to decide without any legally fixed standards what is prohibited and what is not. Giaccio v. State of Pa., 382 U. S. 399, 402-403, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). [Kochman v. Keansburg Bd. of Ed., 124 N. J. Super. 203, 209 (App. Div. 1973)]

The words “of necessity and charity” are sufficient to avoid the defect of vagueness. The seller is aware of the normal definition of both words. It is also clear from the record that in this case there is no evidence that the sale was prompted by either necessity or charity.

Therefore, the court finds defendant guilty on each complaint and will impose a fine of $100 plus costs of $25 for each violation, plus costs of $25 for hearing on appeal.

        L. 1959, c. 119.

      N. J. S. A. 2A :-171-5.12, origin in L. 1959, c. 119.

      See first paragraph of N. J. S. A. 2A :171-5.8, quoted supra.


author: Kole, J. A. D.

text:
    CHARLES R. DAVENPORT, PLAINTIFF-APPELLANT, v. ALFRED TERRY, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL NUMBERS 52, 102, 164, 211, 262, 269, 358, 400, 439, 456, 581, 592, 375, 334, AND 367 AND BERNARD J. CLARKIN, E. LOUIS BARAM, HOWARD SCHIER, JR., HARRY F. HILTNER, JR., ROBERT CARTWRIGHT, JR., DONALD KENNEDY, JOHN C. BOLL, GRANTE TATE, JR., PHILIP KELLY, FRANK MARCHITTO, FRANK KELLY, GEORGE J. ROWSON, JOHN O’CONNOR, THOMAS ALLEN, ROBERT J. SHAFFER AND WALTER TERRY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted April 15, 1975
    Decided May 6, 1975.

      Before Judges Lora, Crane and Hole.

      Mr. William O. Barnes, attorney for appellant (Messrs. Yauch, Peterpaul and Clark, of counsel; Mr. Frank J. Peterpaul on the brief).

      Messrs. Lamb, Hutchinson, Thompson and Chappell and Messrs. Sherman, Dunn, Cohen and Leifer, attorneys for respondents, Alfred Terry and International Brotherhood of Electrical Workers (Messrs. Raymond J. Lamb, Thomas X. Dunn and Robert L. Barton, Jr., on the brief).

      Messrs. Parsonnet, Parsonnet and Duggan, attorneys for respondents Locals 52, 102, 164, 358, 400, 456, 581, and 367 of the I. B. E. W. and respondents Clarkin, Baram, Schier, Boll, Tate, Marchitto, Kelly and Shaffer (Mr. Thomas L. Parsonnel, o£ connsel).

      Messrs. Meth, Wood, Neff and Cooper, attorneys for respondents Local 262 of the I. B. E. W. and Robert Cartwright, Jr. (Mr. Robert Carey Neff on the brief).

      Messrs. Nolan, Lynes, Bell and Moore, attorneys for respondents John O’Connor and Local 675 — I. B. E. W. (Mr. Jerome M. Dynes of connsel; Mr. Jay Scott MacNeill on the brief).

      Messrs. Pellettieri and Rabsiein, attorneys for respondents I. B. E. W. Local Numbers 269 and 334, Donald Kennedy and Thomas Allen, filed a statement in lieu of brief.

      Messrs. Tomar, Parks, Seliger, Simonoff and Adourian, attorneys for respondents I. B. E. W. Local Numbers 211, 439 and 592, Harry P. Hiltner, Jr., Philip Kelly and George J. Bowson, filed a statement in lieu of brief.

      Messrs. Nugent, Russo and Tumulty, attorneys for respondent Walter Terry, filed a statement in lieu of brief.
    No brief was filed on behalf of Local Number 375 of the I. B. E. W.
   The opinion of the court was delivered by

Kole, J. A. D.

Plaintiff instituted this action on January 28, 1973 against Alfred Terry, his son Walter Terry, the International Brotherhood of Electrical Workers (IBEW), 15 locals of IBEW and the business agents of each local for allegedly conspiring tortiously, to interfere with his employment and cause it to be terminated by spreading false and malicious statements concerning his character. The complaint also requested relief against Alfred Terry alone for tortious interference with plaintiff’s employment relationship. Compensatory and punitive damages were sought. Defendant moved for summary judgment and dismissal of the complaint, claiming that jurisdiction over the subject matter of the action had been preempted by the National Labor Relations Act, as amended (NLRA), and that plaintiff’s cause of action, if one for slander or libel, was barred by the one-year statute of limitations, N. J. S. A. 2A :14-3. The motions to dismiss the complaint were granted, predicated on lack of jurisdiction. Plaintiff appeals.

The allegations of the complaint, which were not disputed for the purposes of the motions, showed the facts which are hereafter set forth.

The National Electrical Contractors Association, New Jersey Chapter (NECA), an organization that represents electrical contractors in their bargaining relationship with various electrical worker trade unions, hired plaintiff in 1968 to serve as its manager. The following year plaintiff was promoted to the position of general manager and the NECA employed Walter Terry, Alfred Terry’s son, as an assistant manager. A conflict with Alfred Terry, an international representative of IBEW, followed plaintiff’s selection of someone other than Terry’s son to assist plaintiff in handling an increased workload. Threats of union reprisal and bribery attempts were thereafter made by the elder Terry to induce plaintiff to give Walter Terry “first consideration” in placement and promotion within the NECA. Alfred Terry also sought $1,000 cash for his son or “your contractors will have a hell of a lot of trouble.” He further instructed plaintiff to discharge his new assistant, in which event, he said, plaintiff would be given a better position, have a car at his disposal, paid a good salary and would be “well taken care of.”

In July 1970 plaintiff fired "Walter Terry on the grounds of incompetence and conduct detrimental to the interests of the NECA. Plaintiff thereupon became the subject of a malicious campaign directed principally by Alfred Terry, in which veiled charges of corruption were made concerning plaintiff’s handling of certain NECA funds, assaults upon his character were made by the heads of defendant locals, and work stoppages by IBEW members were encouraged on jobs they wore performing for NECA contractors. Alfred Terry also disrupted and caused a termination of a union-management negotiating meeting by alleging that plaintiff, who was participating therein, was associated with organized crime. Plaintiff asserts that these acts and statements, together with pressure exerted upon members of the NECA and its national office, were intended to effect, and were responsible for, his dismissal.

Prom the description of plaintiff’s duties contained in the complaint, plaintiff is a supervisor as that term is defined in 29 U. 8. C. A. § 152(11). As a representative of management he would not be protected by the NLEA insofar as his relationship with his employer, the NECA, is concerned. See Beasley v. Food Fair of North Carolina, 416 U. S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

The present dispute, however, involves a union rather than an employer. Under these circumstances, the actions complained of describe possible violations of NLEA provisions that prohibit unfair labor practices by labor organizations or their agents.

29 U. 8. C. A. § 158(b)(1)(E) provides that it is an unfair labor practice for a union to “restrain or coerce * * * an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.”

Plaintiff was discharged because of his refusal to advance, and his later firing of, Walter Terry. The conduct of defendants in causing such dismissal would adversely affect plaintiff’s performing the duties of, and acting in his capacity as, a collective bargainer on behalf of his employer, ÑECA. The unions and their agents may be said to have attempted thereby to dictate to the employer association who would represent it’s members in collective bargaining. To that extent defendants’ conduct arguably constitutes an unfair labor practice under 29 U. 8. G. A. § 158(b)(1)(B) subject to the exclusive jurisdiction of the National Labor Relations Board (NLRB) and thus are matters preempted from state court jurisdiction. See Florida Power & Light Co. v. Int'l Bhd. of Elec. Workers, 417 U. S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477, 484, 487-488 (1974); NLRB v. Silver Bay Local Union No. 962, etc., 487 F. 2d 26 (9 Cir. 1974); NLRB v. Sheet Metal Workers’ Int'l Ass’n, 477 F. 2d 675 (5 Cir. 1973).

Additionally, Alfred Terry’s slanderous interference with plaintiff’s negotiating session with a union local resulted in the termination of discussions. Such acts on the part of Alfred Terry and the union local conceivably also may be construed as a violation of the union’s obligation to bargain collectively in good faith with the employer’s representative, pursuant to 29 U. 8. G. A. § 158(b) (3), and thus an unfair labor practice subject to the exclusive jurisdiction of the NLRB. See, e. g., Associated Gen. Contractors of America v. NLRB, 465 F. 2d 327, 334-335 (7 Cir. 1972), cert. den. sub nom. Local Union No. 103, Int’l Ass’n, etc. v. NLRB, 409 U. S. 1108, 93 S. Ct. 907, 34 L. Ed. 2d 689 (1973); NLRB v. Bhd. of Teamsters, etc., Local No. 70, 459 F. 2d 694 (9 Cir. 1972).

The fact that plaintiff describes his cause of action as a malicious interference with his employment relationship and a conspiracy to procure his discharge, rather than as an unfair labor practice, will not preclude federal preemption if the federal statutory scheme is designed, as here, to regulate the type of conduct by a union or its agents set forth in the complaint. The focus of concern is the conduct being regulated and not the formal description of applicable legal standards. Amalgamated Ass’n of Street, etc., Employees v. Lockridge, 403 U. S. 274, 287, 292, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971); Zarelli v. Operative Plasterers’, etc., Local No. 699, 125 N. J. Super. 412 (App. Div. 1973), and cases cited therein.

We need not determine whether in fact the conduct complained of is controlled by federal legislation. We need only decide, as we have, that the malicious activity described is arguably subject to 29 U. S. C. A. § 158 and thus preempted by the Federal Government. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959).

Plaintiff contends that defendants’ conduct falls within one of the three exceptions to the preemption doctrine promulgated in Amalgamated Ass’n of Street, etc., Employees v. Lockridge, supra, 403 U. S. at 297, 91 S. Ct. 1909. He claims that, in accordance with one of the exceptions — i. e., where Congress has affirmatively indicated that there should be state court jurisdiction —• there is such jurisdiction under the circumstances set forth in the complaint. He relies on 29 U. S. C. A. § 186(b)(1) and § 187.

The provisions of § 186(b)(1) make it a crime for any person to request, demand, receive or accept, or agree to receive or accept, any payment or delivery of any money or thing of value prohibited by § 186(a). Although we express no views on this issue, it is possible that, read together, these two sections may prohibit payments or demands therefor, with certain exceptions, between any person acting in the interest of an employer and any union representative. See United States v. Lanni, 466 F. 2d 1102 (3 Cir. 1972). If this is so, conceivably Alfred Terry violated these provisions when he threatened to cause labor troubles if he did not receive $1,000 cash for his son or when he promised plaintiff pecuniary rewards and advancement in return for the dismissal of plaintiff’s assistant. However, jurisdiction over violations of this section, including the issuance of injunctions relating thereto, has been placed exclusively with the federal courts. See 29 U. S. C. A. § 186 (e); Branch v. White, 99 N. J. Super. 295, 811 (App. Div. 1968), certif. den. 51 N. J. 464 (1968).

Whether Congress intended that a claim for relief for civil damages may lie in either a federal or state court in favor of plaintiff in this kind of case by reason of violation of this federal criminal statute, § 186(b)(1), need not be decided. The parties have not briefed the matter and it is not appropriate that we determine it.

Although an action brought pursuant to 29 U. S. C. A. § 187 may be instituted in a state court, the thrust of this enactment and the statute to which it relates (29 U. C. C. A. § 158(b)(4)) is to prohibit the practice of secondary boycotts, rather than the kind of conduct here involved. See Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U. S. 252, 258, 84 C. Ct. 1253, 12 L. Ed. 2d 280 (1964); Nat'l Woodwork Mfrs. Ass’n v. NLRB, 386 U. S. 612, 87 S. Ct. 1250, 18 L. Ed. 2d 357 (1967). Hence, we have concluded that plaintiff has no claim for relief under this statutory provision.

The second exception to the preemption doctrine relied on by plaintiff involves matters where it may not be conscientiously presumed that Congress meant to intrude so deeply into areas traditionally left to local law. These situations are characterized by the compelling state interest in the maintenance of domestic peace and in protecting its residents from malicious libels. See Int'l Union, United Auto., etc., Workers v. Russell, 356 U. S. 634, 78 S. Ct. 932, 2 L. Ed. 2d 1030 (1958); Linn v. Plant Guard Workers Local 114, 383 U. S. 53, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966). Compare Old Dominion Branch No. 496 v. Austin, 418 U. S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

We are satisfied that, to the extent that the complaint alleges libel or slander and damages resulting therefrom, there is state court jurisdiction under the foregoing exception. The court below did not pass on the issue raised on the summary judgment motions as to the bar of the statute of limitations with respect to this claim for relief. The parties should have an opportunity to have this question determined by it. We consider the allegations in the complaint alone as inadequate for the resolution of that matter.

The final exception to the preemption doctrine in this area in which plaintiff seeks refuge is the situation where the particular rule of law sought to be invoked in a state court is so structured and administered that in virtually all instances it may be safely presumed that judicial supervision would not disserve the interests promoted by the federal labor statutes. See Amalgamated Ass’n of Street, etc., Employees v. Lockridge, supra, 403 U. S. at 291-298, 91 S. Ct. 1909, citing Vaca v. Sipes, 386 U. S. 171, 87 S. Ct. 903, 11 L. Ed. 2d 842 (1961).

Vaca v. Sipes held that state courts had jurisdiction over an action by an employee for damages against an employer for wrongful discharge and against a union for breach of its duty of fair representation. But the case involved a claimed breach of a collective bargaining agreement, a matter over which the state courts have jurisdiction by virtue of 29 U. S. C. A. § 185, even though arguably the breach is also an unfair labor practice subject to NLRB jurisdiction. See P. T. & L. Constr. Co. v. Teamsters Local Union No. 469, 131 N. J. Super. 104 (Law Div. 1913), aff'd 66 N. J. 91 (1914). The factual pattern there is obviously different from that before us.

However, Lockridge, supra, seems to indicate that intentional and severe conduct unrelated to legitimate union objectives may ensure “that the risk of conflict with the general, congressional policy favoring expert, centralized [NLRB] administration and remedial action is tolerably slight,” and in such a situation “the sheer logic of the preemption principle might otherwise cause it to be extended to a point where its operation might be unjust.” 403 U. S. at 301, 91 S. Ct. at 1925. It further states that it “may be that a similar exception would arise where the Board affirmatively indicates that, in its view, pre-emption would not be appropriate.” 403 U. S. at 298, n. 8, 91 S. Ct. at 1923.

Although in Loclcridge the court was speaking in the context of hostile treatment of a union member by his union, what it stated might well be applicable in principle to plaintiff’s role, not as his employer’s representative in collective bargaining, but rather, if it may be separated therefrom, simply as a supervisor for this employers’ association. In that setting his discharge as a supervisor by reason of the deliberate and malicious conduct alleged in the complaint not related to any possible legitimate union objective, if sustained, conceivably might warrant state court jurisdiction. Because he is a supervisor of the employer association and by reason of the nature of the conduct involved, the NLRB might affirmatively indicate that preemption here would not be appropriate, even though defendants claim that the time for filing an NLRB complaint has expired. In any event, his status only as a supervisor generally would preclude NLRB jurisdiction. See Florida Power Light Co. v. Int'l Bhd. of Elec. Workers, supra; NLRB v. Bell Aerospace Co., 416 U. S. 267, 94 C. Ct. 1757, 40 L. Ed. 2d 134 (1974).

In view of Lockridge we have concluded that the factual context of Yaca does not exhaust the area of state court jurisdiction covered by this last exception to the preemption doctrine. To the extent, therefore, that the complaint alleges malicious interference with plaintiff’s employment solely as a supervisor for the employers’ association unrelated to any possible legitimate union objective, we hold that it states a claim for relief over which the state court has jurisdiction. Obviously, the complaint in this respect needs refinement. We assume that discovery before trial and a pretrial conference will clarify this issue.

Eor the foregoing reasons the judgment is reversed and the matter is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.


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

text:
    JACQUELINE GOSS, PLAINTIFF-APPELLANT, v. STEVEN ALLEN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 29, 1975
    Decided May 12, 1975.

      Before Judges Halpern, Crahay and Wood.

      Mr. Herbert E. Weiland argued the cause for appellant (Messrs. Hoyt, Jeffers & Weiland, attorneys).

      Mr. Rocco L. D’Ambrosio argued the cause for respondent (Messrs. O’Donnell, Leary & D’Ambrosio, attorneys).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Plaintiff Jacqueline Goss appeals from a final judgment, entered on a jury verdict, in favor of defendant, and from the denial of her motion for a new trial.

The relevant facts are not in serious dispute and will be briefly set forth. Defendant, a 17-year-old college student, went siding at Mad Eiver Glen, in Vermont, on Eebruary 21, 1972. He testified that he had done a limited amount of cross-country skiing in New Jersey, but had never done any “downhill skiing as such.” There is nothing in the record to indicate whether he had ever received any skiing instructions. On the day in question he had walked on his skiis about one-fourth of the way up the beginner’s slope and then started skiing down. During his descent he made a left turn toward the ski lodge and a car parking lot. When he was about 100 feet away from plaintiff, and at a time when he had lost control of his skiis, he saw plaintiff standing in the parking lot but could not avoid running into her. As he put it:

* * * well, I was out of control — I admit that •— and I was trying to regain my control and I was not having much success at all and I was getting very near to Miss Goss, and I guess by the time that I yelled out to her I was almost right on top of her, and in that respect I did collide with Miss Goss.

Plaintiff testified she was a ski patrol volunteer and a first aid advisor. She was standing with a friend in the parking lot, near a ear, when at her friend’s warning she turned and saw defendant almost on top of her. She attempted to get out of his way but was unable to do so.

Wo indicate at the outset that counsel have agreed the law of Vermont is applicable to this incident, and that Vermont law in this negligence suit is the same as New Jersey’s. We agree with that stipulation, particularly with respect to the duty of care owed by a 17-year-old to another. See Johnson's Adm'r v. Rutland R. Co., 93 Vt. 132, 106 A. 682 (Sup. Ct. 1919); Bush v. N. J. & N. Y. Transit Co., Inc., 30 N. J. 345 (1959).

The issue in this case, as we see it, which is presented as plain error, is whether the trial judge properly charged the jury with respect to the duty of care owed plaintiff by defendant under the existing facts. We find plain error to exist and reverse.

At the outset of the charge the trial judge properly instructed the jury that they must accept the law of the case as he submitted it to them, irrespective of their feelings about the law, or even if they disagreed with it. After instructing on the burden of proof, he defined negligence and proximate cause. In defining negligence with respect to defendant die instructed the jury as follows:

The law says that as far as one under 18 is concerned — 18 or younger — we don’t exact from him or her the same degree of care that we exact from an adult. We expect what we call an infant, which is anyone under 18 — we exact that degree of care which a reasonably prudent person of that age would have exercised under-the same or similar circumstances. So, as I said to you, Steven Allen on this date was 17 years old, and the law exacts from him the standard of care that a 17 year old would exercise under the circumstances.

In reviewing the testimony of defendant the trial judge again said:

Mr. Allen, on the other hand, says there is no question that “I came in contact with her, but I exercised reasonable care as a 17-year-old beginner skier. I didn’t get on the T-bar and go all the way to the top and come down the slope. I walked up.” I don’t quite know how he did it, but anyway he says he walked up about 30 feet up the slope, halfway, and started down, and he said somehow or other he managed to make that left turn and he saw Miss Goss some hundred feet away and he knew he was out of control, but he also says, “Like any 17 year old or like any beginner skier or both — any beginning 17-year-old skier — I tried to regain control. At the last minute I realized that I couldn’t control my skis. I shouted too late; there was contact,” and he says, “I exercised that degree of care that might reasonably be expected of a 17-year-old beginner skier; that if there was an accident, it wasn’t my fault.”

Eollowing the trial judge’s charge, and after a side bar conference was held (the content of which is not disclosed by the record), he again instructed the jury:

All right. Perhaps I didn’t charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case.

Since comparative negligence is applicable in Vermont, the trial judge submitted four interrogatories to the jury. The jury found defendant not negligent and therefore did not answer the remaining three interrogatories.

The problem of determining the degree of care the law imposes upon children has received varying and conflicting treatment over the years by courts throughout the country, as well as in New Jersey. See Bush, supra. We are convinced that much of the confusion stems from the courts’ interchangeable use of the words “children,” “infants” and “minors.” When the terms “minor” or “infant” are used by the courts, they are generally equated with one under a given age of majority which, in New Jersey was 21 but effective January 1, 1973 is 18. See N. J. S. A. 9 :17B-1 et seq. Therefore, many courts, including the trial judge in the instant case, have, erred in defining to a jury the degree of care to be exercised by a “minor” or an “infant,” by using the statutorily determined age of majority as the magic moment when he has reached adulthood and is chargeable as such. This kind of reasoning is obviously faulty since we know from our daily life experiences that a 17-year-old may be as negligent or free of negligence as an 18-year-old. In short, such a standard will not withstand the test of common sense.

The trial judge here instructed the jury, at three different points in his charge, that defendant’s standard of conduct to which he must conform to avoid being adjudged negligent is that of a reasonable person .of like age, intelligence and experience under like circumstances. This is the standard of conduct prescribed for “children” and we are in complete agreement with that standard. It is the standard suggested in the Restatement, Torts 2d, § 283A (1965), and the one we have followed in New Jersey. Bush, supra. However, as indicated in the Comments under § 283A, the “rule stated in this section is commonly applied to children of tender years. In practice, it has seldom been applied to anyone over the age of sixteen * *

While the problem in the instant case may be one of first impression in New Jersey, we deem the desirable rule to be, in accordance with the principles herein enunciated, that where a child engages in an activity which is normally undertaken by adults, such as skiing, he should be held to the standard of adult skill, knowledge and competence, without allowance for his immaturity. See Comment (c) of § 283A of the Restatement, Torts 2d. It is axiomatic that a “minor” or “infant,” who has not reached the legal age of majority, is as capable as an adult to engage in skiing and, therefore, should be chargeable with the same standard of care toward others as an adult similarly circumstanced would be. It makes little sense to say that defendant, who was 17 years old when this incident occurred, should be held to a lesser standard of care than an 18-year-old.

Nor should we overlook the fact that in the majority of cases the problem is presented when the issue of a child’s contributory negligence has to be decided, to determine whether he should be barred from recovering from an alleged wrongdoer. Where, as here, he is charged with negligent conduct, public policy mandates that the consequences of his act be borne by him and not a possible innocent victim. This is particularly true when, as here, a 17-year-old engages in a sport which he knows or should know may be dangerous to others.

Eor the authorities which support the principles herein enunciated see: Restatement, Torts 2d, § 283A and § 299A (1965), and Comments thereunder; Prosser, The Law of Torts (4 ed. 1971), § 32 at 154-157; 2 Harper and James, The Law of Torts, § 16.8, at 924^928 (1956) and the Supplement thereto at 38-41 (1968); Annotation, 97 A. L. R. 2d 872 (1964); Dorais v. Paquin, 113 N. H. 187, 304 A. 2d 369 (Sup. Ct. 1973); Dellwo v. Pearson, 259 Minn. 452, 107 N. W. 2d 859 (Sup. Ct. 1961); Daniels v. Evans, 107 N. H. 407, 224 A. 2d 63 (Sup. Ct. 1966); Neumann v. Shlansky, 58 Misc. 2d 128, 294 N. Y. S. 2d 628 (Cty. Ct. 1968), aff’d o.b. 63 Misc. 2d 587, 312 N. Y. S. 2d 951 (Sup. Ct. App. Term 1970), aff’d o.b. 36 A. D. 2d 540, 318 N. Y. S. 2d 925 (App. Div. 1971). In Neumann, an 11-year-old golfer who hit another golfer with his drive off the tee was held to be engaged in an adult sport and should be held to the same standard of care as an adult participant. Neumann espouses the law we believe applicable to the instant case.

Having decided that the trial judge erred in his charge to the jury, we turn to the issue of whether it was plain error under R. 2:10-2. To qualify as plain error the erroneous charge must prejudicially affect plaintiff’s substantial rights and be sufficiently grievous to warrant our holding that of itself the error possessed a clear capacity to result in an injustice.

We believe the erroneous charge clearly resulted in an injustice to plaintiff requiring a new trial. The trial judge’s charge, at three different points, directed the jury to apply the standard of care attributable to a 17-year-old beginner skier. This was the primary, if not the sole issue, by which the first interrogatory had to be judged. If an adult standard of care had been imposed, as we say it should have been, the jury might well have found defendant negligent in that he should have taken instructions from a ski instructor or other competent persons before venturing out on a downhill slope which terminated near a point where other persons were likely to be, or he.should have intentionally fallen down rather that hit someone, or he should have given an earlier warning of his loss of control, or taken such other precautions in the circumstances as would have avoided the accident.

Under the circumstances, the erroneous charge had a manifest capacity to mislead the jury with the resulting injustice to plaintiff. See Atlas v. Silvan, 128 N. J. Super. 247, 251-252 (App. Div. 1974); State v. Spano, 128 N. J. Super. 90, 92-93 (App. Div. 1973), aff’d 64 N. J. 566 (1974); State v. Hock, 54 N. J. 526 (1969), cert. den. 399 U. S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Reversed and remanded for a new trial.

      Please answer the following in accordance with the Court’s instruction.
      (1) Was the defendant guilty of negligence which was a proximate cause of the accident?
      YES □ NO □
      (If answered in the negative, stop.here.)
      (2) Was the plaintiff guilty of negligence which was a proximate cause of the accident?
      YES □ NO □
      (If answered negatively go on to #4. If answered affirmatively, answer both ^3 and 4.)
      (3) What percentage of the total negligence do you attribute to each.
      A. Plaintiff ..............% (Must total
      B. Defendant ..............% ( 100%
      (If plaintiff’s negligence was greater than 50%, you need go no further. If the plaintiff’s negligence was equal to or less than that of defendant, answer #4)

      (4) What were the total damages sustained by the plaintiff?
      $..............


author: Per Curiam.

text:
    HILL HOMEOWNERS ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, BRUNO BARBARESE AND VELIA BARBARESE, HIS WIFE, AND JOSEPH WEINSTOCK AND HILDA WEINSTOCK, HIS WIFE, AND MARTIN L. HELFGOTT AND ESTHER HELFGOTT, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC, ELIAS DRAZIN, AS BUILDING INSPECTOR OF THE CITY OF PASSAIC, MAYOR AND COUNCIL OF THE CITY OF PASSAIC, DEFENDANTS, AND HARRY STANFORD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 6, 1975
    Decided May 13, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Steven E. Pollan argued the cause for appellant (Mr. Harry Kampelman, attorney).

      Mr. Marvin A. Stern argued the cause for respondents.

      Messrs. Wittman, Anzalone, Bernstein & Dunn filed a brief on behalf of amici curiae New Jersey Federation of Planning Officials and Englewood Planning Board (Mr. Frederick L. Bernstein on the brief).
   Per Curiam.

This is a zoning action. In a prerogative writ suit the trial judge set aside, as arbitrary exercises of the zoning power, certain variances granted under the ostensible authority of N. J. S. A. 40:55-39(c) by the board of adjustment of the City of Passaic (board). In addition to this, he included in his opinion, which is published, sweeping dictum broadly criticizing some planning and zoning concepts heretofore thought to be established. 129 N. J. Super. 170.

We agree entirely that no statutory reasons sufficient to support the grant of the variances appear in the record. This fact is demonstrated by the reasons for the grant as they appear in the record of the board’s action:

The application be approved as this variance is re — as the variance required is insignificant in proportion to the magnitude of the proposed project. The proposed use is not unreasonable, nor oppressive and blends into the scheme of the SR.DD zone.
Aesthetically the complex structure would tend to beautify and enhance the area and therefore increases property values.
Approval will help alleviate a crucial housing shortage and would provide for the health and welfare of the general public.
It would not impair the safety of the nearby residents and would provide for the promotion of the general welfare of society.
The granting of this variance would in no way be detrimental [sic] to the public good and will not substantially impair the intent and purpose of the Zoning Ordinance.

Such is quite obviously not a finding of the prerequisites for a “subsection (c)” variance. Eather it is in effect a rezoning of the parcel in question to allow a “proposed project” thought by the board not to be “unreasonable, nor oppressive.” Even when the underlying motivation is well-intentioned, local zoning action must comply with the statutory requirements. Kohl v. Fair Lawn Mayor and Council, 50 N. J. 268, 275 (1967). Without sufficient record support for a necessary finding of “exceptional narrowness, shallowness or shape * * * 0r * * * exceptional topographic conditions, or * * * other extraordinary and exceptional situation or condition * * *,” the granting of a variance is an arbitrary, act and will be set aside. The trial judge was eminently correct in recognizing this, and we affirm his judgment in this regard. There is no doubt that “hardship personal to the owner which is unrelated to the physical characteristics of the land is not contemplated by subsection (c) and does not constitute sufficient ground for the granting of a variance under that subsection.” Isko v. Livingston Tp. Planning Bd., 51 N. J. 162, 174 (1968).

Accordingly, it is unnecessary for us to consider the balance of the opinion of the trial judge. If it undertakes to reverse Kozesnik v. Montgomery Tp., 24 N. J. 154 (1957), and its progeny, either expressly or impliedly, with regard to references to the planning board, when authorized by ordinance, for review and recommendations as well as site plan approval (N. J. 8. A. 40:55-1.13; see also Loechner v. Campoli, 49 N. J. 504, 512 (1967)) or in other respects, we register disapproval, for, as pointedly said in Reinauer Realty Corp. v. Paramus, 34 N. J. 406, 415 (1961), “Trial judges are privileged to disagree with the pronouncements of appellate courts; the privilege does not extend to noncompliance.” To the extent it attributes a “less than whole hearted” acceptance of the authority of the planning board to determine site plan approval to the opinion of Justice (then Judge) Hall, writing for the Appellate Division — as it turned out, the Supreme Court affirmance was on his opinion — in Saddle River Country Day School v. Saddle River, 51 N. J. Super. 589 (App. Div. 1958), aff'd o. b. 29 N. J. 468 (1959), we believe the characterization is unsound.

In any event, since he and we have rejected the action of the board we need not, and indeed should not, here go further. Appropriate is the expression of policy inherent in a statement of the United States Supreme Court in a case where a corporation sought a declaration of its immunity from regulation by a state public service commission:

But when all of tlie axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular ease will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of * * * judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especially in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. * * * [Public Service Commission of Utah v. Wycoff Company, 344 U. S. 237, 243 (1952)]

We have been advised by the brief of the amici curiae that unrest and uncertainty have already been caused by this intrusion into that which both the Appellate Division and the Supreme Court have heretofore thought to be soundly established law. Onr affirmance must not be considered approbation of any of the dictum in the opinion below.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HENRY E. BUCICH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted February 25, 1975
    Decided May 15, 1975.

      Before Judges Halpern, Crahay and Ackerman.

      Messrs. Persky, Jones & Persky, attorneys for appellant (Mr. Robert S. Persky on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Robert Frank, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

A municipal court complaint charged defendant with operating a motor vehicle in excess of posted speed limits, in violation of N. J. 8. A. 39:4-98. Eollowing a hearing in municipal court, at which defendant did not testify, he was adjudged guilty and fined. A trial de novo on the record in the Hudson County Court resulted in the same holding.

The essence of the State’s case was that two Port of New York Authority patrolmen were operating an electronic timing unit on the Bayonne Bridge. The accuracy of the unit was supported by testimony and was not meaningfully challenged. On the day of the offense the police observed a vehicle on the bridge and activated the timer, which indicated that the car was traveling at 59 m.p.h — the posted limit being 40 m.p.h. The vehicle was stopped and the driver produced a driver’s license which reflected defendant’s name thereon. A summons was issued to the named driver on the basis of the license as produced.

At trial neither officer was able to identify defendant as the operator to whom the summons had been issued on the day in question. The conviction is challenged on this appeal basically on the grounds that (1) the State failed to prove a necessary element of the charged offense — defendant’s identity beyond a reasonable doubt, and (2) the judge could not infer the identity of defendant as the operator merely from the issuance of a summons in his name and 'his appearance in court to contest the charge. We view the appeal as frivolous and affirm.

First, while we agree with defendant that it is the State’s obligation to prove that he was the named offender beyond a reasonable doubt, State v. Ring, 85 N. J. Super. 341 (App. Div. 1964), certif. den. 44 N. J. 407 (1965), cert. den. 382 U. S. 812, 86 S. Ct. 24, 15 L. Ed. 2d 60 (1965), reh. den. 382 U. S. 933, 86 S. Ct. 306, 15 L. Ed. 2d 344 (,1965), we are satisfied that on this record there was a fair inference that defendant was the operator of the speeding car. While it was not a mandatory conclusion, it was in our view perfectly logical and reasonable to find that the driver of the speeding vehicle in fact produced a driver’s license and that defendant was in fact the party who made the production. The evidence was clear that the operator produced a driver’s license with defendant’s name on it and that the summons was issued on that basis. That evidence was clearly relevant and possessed the tendency to prove the material fact of defendant’s identity as the operator. We are satisfied that the inference drawn in that regard by the courts below on this record was a fair one, see Evid. R. 1(2), and a prima facia case had been established.

In support of his argument defendant addresses us principally to two New York cases> but we find those authorities readily distinguished from the matter at hand. In People v. Ross, 41 Misc. 2d 260, 245 N. Y. S. 2d 8 (Sup. Ct App. T. 1963), defendant testified that he was not aware of the violation which occurred several years before his appearance in court. There, he was the sales manager of a company which owned the vehicle and testified that he kept his driver’s license in the vehicle along with the owner’s registration. Other employees of the company used the car. In view of his testimony the court concluded that it was not improbable, surprising or suspicious that defendant’s custom was to leave the operator’s license in the glove compartment of the car and concluded that there was reasonable doubt as to who was operating it at the time of the alleged violation.

In People v. Hildebrandt, 308 N. Y. 397, 126 N. E. 2d 377 (Ct. App. 1955), a speeding violation was established through the use of a "photographic camera” which took two photographs of the moving vehicle at intervals and by mathematical computation rated speed. The use of the device did not identify the driver and he was not arrested at the time of the violation. Defendant was notified of the offense two weeks later. At trial there was no direct showing that he was the offending operator, the State simply relying on the fact that the automobile was registered in defendant’s name as the owner. It does not appear that defendant testified. Hildebrandt concluded that it was improper to presume a driver’s identity from the ownership of a vehicle and that

We all know tkat many a passenger car is customarily driven at various times by various persons, we know that many a person owns more than one passenger automobile, we know that some owners are not licensed operators, and we are informed that there are outstanding in this State at least one million more automobile operators’ licenses than passenger automobile registrations. * * * [308 N. Y. at 401, 126 N. E. 2d at 379.]

We need not state whether we are in accord with the majority thinking of Hildebrandt — Judge Euld’s dissent is persuasive toward a contrary result — since we perceive a patent difference between identity by registration of ownership as opposed to the presentation of an operator’s license by a party stopped by the police. Hildebrandt did note that usually in the past, prior to the innovation of electric timers, speeding offenders were pursued, arrested and identified thereafter, presumably by the production of an operator’s license.

It would be an undue strain on the enforcement of our traffic laws to require officers issuing summons in the names of drivers who tender them a driver’s license, in every case to make some positive identification by physical characteristics.

Identity of a motor vehicle operator need not be proven to a formal certitude. If the fact found is a probable one and fairly found, it suffices. See Annotation, “Inference or Presumption that Owner of Motor Vehicle was its Driver at Time of Traffic, Driving, or Parking Offense,” 49 A. L. R. 2d 449 (1956), wherein there is analyzed generally the question of whether an owner may be presumed or inferred to have been the operator of a vehicle at the time of a violation. We are addressed to no authority which holds that a party who exhibits and presents from his person an operator’s license may not be inferred to have been the operator in fact. Justice Jacobs, in State v. Dantonio, 18 N. J. 570 (1955), instructs that

While it is vital under our basic concepts of justice and due process that every individual accused of a speeding violation be afforded a fair hearing and be not adjudged guilty without evidence which convinces beyond reasonable doubt, it is equally vital that no unnecessary obstacles be placed in the State’s efforts to deal fairly and effectively with a public threat which has reached staggering proportions. * * * [at 583-583]

We are satisfied that here the courts below were entitled to infer operation by defendant, and nothing in the record suggests any reasonable doubt on the issue. While a vehicle may be loaned to another, an operator’s license may not. N. J. S. A. 39:3-10 and 39.

Lastly, we regard defendant’s assertion of a violation of his Fifth Amendment right to remain silent in court — he having appeared there in response to the summons •— as specious. Of. California v. Byers, 402 U. S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971); Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). Proof of defendant’s identity was not meaningfully inferred from his silence (the courts below wondered, as do we, as to the manner in which defendant knew of the charge) but rather was reached from the proven fact that the driver of the speeding vehicle produced a driver’s license bearing defendant’s name. Ordinarily, identity of name bespeaks identity of person, particularly when the name is not in common use. I Underhill, Criminal Evidence (Herrick ed. 1973), § 45 at 91. The complaint issued to defendant included a date of birth, sex, height and by code, color of eyes and weight.

By law the operator of a vehicle is required to be possessed of his driver’s license while operating a motor vehicle and exhibit it when requested to do so by a police officer, N. J. 8. A. 39 :3-29, and as noted earlier, that license may not be legally loaned to nor used by another. It is not suggesied, and we would not find, that the requirement for such identification involves any Fifth Amendment overtone. California v. Byers, supra.

We perceive in this record not only a prima facie ease on the violation but that the evidence itself did not engender a reasonable doubt on any necessary element of the offense, including operation by defendant. The record reflects no basis, real or suggested, for a contrary finding. See People v. Ross, supra.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DAVID R. CRANMER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued: April 21, 1975
    Decided May 20, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. James I. Peck IV, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Marc J. Friedman, Deputy Attorney General, argued the cause for respondent (Mr. William, F. Hyland, Attorney General of New Jersey, attorney).
   Per Curiam.

Defendant was found guilty by a jury of impairing the morals of an eight-year-old boy, in violation of N. J. 8. A. 2A:96-3, and was sentenced by the trial court to the Diagnostic Unit at Eahway for an indeterminate term not to exceed three years, with instructions that he receive psychiatric treatment. He appeals.

The evidence of defendant’s guilt is substantial. The State’s proofs established that while the infant victim and his infant friend were fishing in Alceon Lake near Pit-man, New Jersey, defendant, who was not previously known to them, approached and proceeded to help them fish. The friend became frightened and asked the victim to leave with her. When he would not leave, she left, went to the victim’s home and informed his mother of what occurred. After she left defendant told the victim that he wanted to give him (the victim) “a physical”. The victim accompanied defendant into the woods where defendant pulled down the victim’s pants and underwear and committed the criminal act described by the victim at trial as follows: “He took my penis and went to put a stick up my behind and I started to cry and my brother came and he saw my brother.”

When the victim’s 17-year-old brother arrived he observed the victim, who was crying, pulling up his pants in defendant’s presence. Defendant told the victim’s brother that the victim had fallen while he “was going to the bathroom.” Defendant got on his bicycle and rode away. When the victim told his brother what had occurred, his brother went after defendant. Unable to catch him, he observed him heading in the direction of Glassboro. The victim’s mother then arrived and all three returned to the victim’s home. The police were called and the incident detailed to them. In addition, the victim gave them a description of defendant, who was subsequently apprehended.

Defendant contends on appeal that the trial judge erred in (1) prohibiting full cross-examination of the victim, (2) failing to compel the victim to return to the witness stand for completion of cross-examination, (3) denying his motion to strike the victim’s direct testimony and grant a judgment of acquittal, and (4) failing to strike or give a cautionary instruction with respect to testimony by the police officers as to the circumstances surrounding defendant’s apprehension. We have carefully considered each of the points raised and the arguments advanced in support of them by defendant and find them lacking in merit.

Defendant’s argument that he was prohibited from completing his cross-examination of the infant victim by the .trial judge’s failure to compel the infant to continue testifying and was thereby deprived of his constitutional right of confrontation requires some discussion. The infant victim became extremely emotionally upset during cross-examination. He broke down on the witness stand, sobbing uncontrollably. The judge properly took a recess and with the aid of the infant victim’s mother attempted to calm him so that he could return to the courtroom for the completion of his testimony. Both were unsuccessful, and the infant refused to testify further. Pie again broke down, sobbing hysterically. The trial judge thereupon found that the infant victim would be unable to respond to questions put to him on cross-examination, commenting: “1 fear that he may be so emotionally overcome that it may affect, adversely affect, him for a long period of time.” The judge refused to compel the infant victim to return to the stand and denied defendant’s motion to strike his testimony at the conclusion of the State’s case.

The constitutional Tight of confrontation afforded by the Sixth Amendment of the United States Constitution as well as N. J. Const. (1947), Art. 1, par. 10, in general guarantees the accused the opportunity of cross-examination in criminal proceedings. See California v. Green, 399 U. S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); Barber v. Page, 390 U. S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); Smith v. Illinois, 390 U. S. 129, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968); Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Douglas v. Alabama, 380 U. S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). The purpose served by the confrontation requirement was succinctly stated in California v. Green, supra, as follows:

* * * Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the “greatest legal engine ever invented for the diseovery of truth”; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility. [399 U. S., at 158, 90 S. Ct., at 1935, 26 L. Ed. 2d, at 497.]

The right of cross-examination, however, is not without limitation or restriction. The trial court has broad discretion in determining the proper limitations of cross-examination of a witness whose credibility is in issue. State v. Pontery, 19 N. J. 457, 472-473 (1955); State v. Zwillman, 112 N. J. Super. 6, 17-18 (App. Div. 1970), certif. den. 57 N. J. 603 (1971).

Here, cross-examination of the infant victim by defendant covered substantially the same ground as was covered by the 'State in its direct examination. It was only after the defense proceeded to cross-examine on the events which took place after the offense had occurred that the infant became so upset that the cross-examination could not continue. We are satisfied that the trial judge properly limited the cross-examination of the infant victim under the circumstances here present, and in doing so did not deprive defendant of his constitutional right of confrontation. Thus, we are also of the view that the infant’s testimony was properly admitted, and that the trial judge did not err in denying defendant’s motion to strike this testimony. See 5 Wigmore, Evidence (Chadbourne rev. 1974), § 1390, at 134^135, wherein the author comments:

But, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun but unfinished suffieies if its purposes have been substantially accomplished.

Moreover, the victim positively identified defendant in the courtroom on direct examination. While defense counsel had not yet cross-examined the victim as to his identification of defendant, his 17-year-old brother also positively identified defendant at the trial and his brother’s cross-examination was completed by defense counsel. Consequently, the failure of defense counsel to complete cross-examination of the infant victim was harmless beyond a reasonable doubt. There was no possibility that such failure to complete cross-examination led to an unjust result. See State v. Macon, 57 N. J. 325, 335-337 (1971). The evidence of defendant’s guilt was overwhelming.

Affirmed.