author: Doan, J. C. C.

text:
    LITTON INDUSTRIAL SYSTEMS, INC., PLAINTIFF, v. KENNEDY VAN SAUN CORPORATION (NOW OR FORMERLY ALSO KNOWN AS KENNEDY VAN SAUN MANUFACTURING AND ENGINEERING CORPORATION), DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 26, 1971.

      Mr. Archibald S. Alexander, Jr. appeared for plaintiff (Messrs. Lowenstein, Sandler, Brochin, Kohl and Fisher, attorneys).

      Mr. John J. Hanlon, Jr. appeared for defendant (Messrs. Milton, Keane and He Bona, attorneys).
   Doan, J. C. C.

(temporarily assigned). This is an action in breach of contract by a Delaware corporation (Litton) with its main offices in Delaware, but which also has offices in Totowa, N. J. under the name of its division, Hewitt-Robins Inc., against another Delaware corporation (Kennedy Van Saun), with offices only in Delaware. Both are authorized to do business in this State and such business appears in both instances to be substantial.

The facts as uncontroverted in the pleadings to date are these: On December 27, 1968 plaintiff and defendant entered into a contract under the terms of which defendant was to manufacture and deliver certain steel rotary elevators, the first of which was to be delivered to plaintiff on June 15, 1969, with time of the essence. Litton, at that time, was obligated to ship said elevators to another of its subsidiaries. Erie Marine Division of Rust Engineering, which was in turn obligated to ship to Bethlehem Steel. The first elevator was not delivered by defendant until September 25, 1970, which Litton claims is a substantial breach and for which it claims damages in the amount of $50,000, and its subsidiary, Erie Marine, claims of plaintiff damages of $1,044,000 for alleged loss of profits by preempt of yard space. Bethlehem Steel also claims expenses from Erie who, in turn, seeks reimbursement from plaintiff therefor.

Kennedy Van Saun, by way of answer, admits the contract of December 27, 1968, but alleges that under that contract Litton supplied plans, drawings, and specifications for the elevator which proved faulty and led to impossibility of performance. It appears from the affidavit of Edwin Stebbins (purchasing manager of Robins Engineers and Constructors, part of Hewitt-Robins) that their plans and specifications were drawn up in Hewitt-Robins’ offices in Totowa and sent to Kennedy Van Saun from there. The records of these plans and specifications remain at the Hewitt office in New Jersey. Defendant Kennedy Van Saun further alleged in its answer that the contract was amended on September 12, 1969, changing the plans and specifieations, setting a new time for performance and relieving Kennedy of all liability under the prior contract. Kennedy also claims that subsequent to the amended contract Litton caused further delay hy submitting eight change orders at various times through the following year. Lastly, defendant has preserved its jurisdictional objections in its answer and has moved within the time limit required by B. 4:6-3.

Kennedy Van Saun started the series of actions surrounding this litigation when it filed a complaint against Litton in the United States District Coirrt for the Middle District of Pennsylvania on March 35, 1971 for monies due on the contract. That action was dismissed on June 16, 1971 by stipulation of counsel, both parties agreeing that the court lacked jurisdiction because there was no diversity of citizenship. Prior to this dismissal Litton had started the current action here in New Jersey on May 14, 1971. Fot to be outdone, Kennedy countered by commencing another action in Pennsylvania on June 6, 1971, this time in the Common Pleas Court for Montour County —• this also prior to the federal court dismissal. This state action in Pennsylvania appears to be dormant. According to the affidavit of Russell J. O’Malley (representing Litton in the Pennsylvania action) Litton has yet to file an answer, the time for which had been extended until August 11, 1971. By contrast, this action in New Jersey is alive and thriving; an answer has been filed, defendant and plaintiff have exchanged notices to take depositions, plaintiff has served interrogatories and four letters have passed between the parties regarding the taking of depositions. Service was made in New Jersey on Kennedy Yan Saun by serving the Corporation Trust Co., Kennedy’s registered agent for the service of such process designated under N. J. S. A. 14A:4-1.

Defendant moves to dismiss the complaint on the grounds that the forum is inconvenient and that service on the registered agent did not give this court jurisdiction of a cause of action allegedly unrelated to the activities of defendant in the State of New Jersey.

I

In support of its jurisdictional objection defendant cites Sielcken v. Sorenson, 109 N. J. Eq. 397 (Ch. 1931), and Kane v. Essanay Film Mfg. Co., 98 N. J. L. 363 (Sup. Ct. 1923), the former involving substituted service on the Commissioner of Banking and Insurance, and the latter involving service upon the Secretary of State on behalf of a foreign corporation. Neither case is relevant to the problem at hand, where we have service on a registered agent specifically designated by the foreign corporation expressly for that purpose. More importantly, both were decided long before the expanded jurisdictional concepts espoused in International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and McGee v. International Life Ins. Co., 355 U. S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957).

Sielchen and Kane stood for the proposition that substituted service on the in-state agent for service was only available for causes of action arising out of the business activities done by the corporation in New Jersey and was not sufficient for unrelated causes of action.

Assuming, for the sake of argument, that the contract sued on herein was in fact unrelated to the defendant’s business activities in New Jersey, and even assuming that defendant had not designated Corporate Trust Co. as its agent for service, and service had been made by registered mail (a supposedly less effective mode of service), we would have little trouble sustaining jurisdiction in this case.

In sustaining long-arm jurisdiction over foreign corporations admittedly doing business in this State we are circumscribed only by the requirement that the corporation be afforded due process. In our search for a constitutional basis upon which jurisdiction may be founded we are reminded once again of the careful statements of Chief Justice Stone in International Shoe, supra:

* * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it, such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

See McGee v. International Life Insurance Co., supra, where the court noted that “a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.” See also Hanson v. Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 72 S. Ct. 413, 96 L. Ed. 485 (1952), and Justice Jacobs’ discussion in J. W. Sparks & Co. v. Gallos, 47 N. J. 295, 298-304 (1966).

In our own jurisdiction these limitations of “minimal contacts” and “substantial justice,” imbedded in the International Shoe doctrine and in our own long-arm statute, have been interpreted as vesting our courts with jurisdiction over foreign corporations to the outer limits permitted by due process. Roland v. Modell’s Shoppers World of Bergen Cty., 92 N. J. Super. 1 (App. Div. 1966); Avdel Corporation v. Mecure, 58 N. J. 264 (1971).

Consistent with this interpretation of the limits of due process, our courts have been quick to sustain jurisdiction where the cause of action sued on arises out of the business being done in this state by the foreign corporation and where there have been sufficient minimal contacts present to suggest the reasonableness of subjecting the corporation to suit in this State. Corporate Development Specialists, Inc. v. Warren-Teed Pharmaceuticals, Inc., 102 N. J. Super. 143 (App. Div. 1968); Roche v. Floral Rental Corp., 95 N. J. Super. 555 (App. Div. 1967).

Where, however, the cause of action has been unrelated to the business activities carried on within the State, the jurisdictional basis required has gone beyond the mere “minimal contacts” test. In such a situation it has been held that before subjection to jurisdiction can be seen as “reasonable,” defendant’s activities in the State must be both “continuous” and “substantial.” In a word, local contacts must be greater where the cause of action is unrelated. Corporate Dev. Spec., Inc. v. Warren-Teed Pharm, supra; Arrowsmith v. United Press International, 320 F. 2d 219, 6 A. L. R. 3d 1072 (2 Cir. 1963). See also, Restatement, Conflict of Laws 2d, § 47.

This concept of “substantiality” is a relative one. It really means sufficient substantiality (with continuity) of the forum business to make it reasonable to exert jurisdiction as against the countering influence of nonrelation of the cause of action. In the Warren-Teed case the Appellate Division upheld jurisdiction where the foreign corporation had local sales in New Jersey constituting 1.4% of its national gross, which sales the court held to meet the test of “substantiality” where the contract sued on was unrelated. In Lehn & Fink Products Corp. v. Milner Products Co., 117 F. Supp. 320 (D. C. S. D. N. Y. 1953), local jurisdiction was sustained in an unrelated cause of action on the basis of only 1% local sales (plus a “desk-space” office, a local sales manager and a warehouse).

Perhaps reaching those outer limits of due process referred to in the Modell’s Shoppers World case, supra, the Supreme Court of the United States in Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 72 S. Ct. 413, 96 L. Ed. 485 (1952), said that an Ohio court could properly take jurisdiction where a Philippine corporation had temporarily halted its activity in the Philippines due to the Japanese occupation and its president had set up an office in his home in Ohio out of which he carried on some internal corporate business, including banking and a few directors’ meetings. The court felt that jurisdiction would be nonviolative of the due process clause even though the corporation owned no property in Ohio and had entered into no contracts in that state. Such activitiy was held to meet the requirements of “substantiality” and “continuity” where the cause of action was unrelated.

Defendant Kennedy Van Saun admits to doing business in New Jersey and nowhere does it state that this business activity is neither substantial nor continuous. It merely alleges that the contract here sued upon is unrelated to that activity, an allegation which alone is insufficient to defeat the jurisdiction of this court. Indeed, it has given evidence of the continuity and substantiality of its activities in this State by its compliance with N. J. S. A. 14A:4-1 which, while not conclusive, has been seen as a helpful test in determining the reasonableness of subjecting the foreign corporation to jurisdiction. Perkins v. Benguet Consolidated Mining Co., supra, 72 S. Ct. at 418. This indication of the substantiality of defendant’s admitted business activities in this State, in the absence of any allegations to the contrary, is sufficient to sustain the jurisdiction of this court, even assuming that the contract sued on is in fact unrelated to defendant’s business activities here.

To this point we have assumed, for the sake of argument, that service was made on defendant by a less effective mode of service than service on defendant’s designated registered agent in Yew Jersey, arguing that if the lesser could be sustained, the more effective would certainly be proper. We have already seen that substituted service would have been proper under the circumstances herein. We turn now to the effect of the defendant’s designation of an agent for the service of process ou the reasonableness of this court’s taking jurisdiction and on the issue of the alleged insufficiency of process.

The Yew Jersey statute, N. J. S. A. 14A:A-1, makes it clearty evident that, preliminary to authorization to transact business in Yew Jersey is the appointment of an agent upon whom process against the corporation may be served. There is no qualification upon this obligation. The United States Supreme Court, in Neirbo v. Bethlehem Shipbuilding Corp., 308 U. S. 165, 60 8. Ct. 153, 84 L. Ed. 167, 128 A. L. R. 1437, decided that designation of an agent in a state for service of process constituted consent to be sued in the federal courts of that state, and was tantamount to a waiver of the privilege accorded by section 51, 28 U. S. C. A. § 112, providing that a civil suit in Federal District Court shall be brought only in the district of residence of either plaintiff or defendant where jurisdiction is founded on diversity of citizenship. In Randolph Laboratories v. Specialties Development Corp., 62 F. Supp. 897 (D. C. N. J. 1945), compliance with the New Jersey statute was seen as consent by the foreign corporation to be sued in the courts of New Jersey, both state and federal. See also Da Cunha v. Grasselli Chemical Co., 46 F. Supp. 28 (D. C. N. J. 1942), construing the New Jersey statute in the same manner.

The Supreme Court has also commented on the effect of service on an in-state agent, again in Perkins v. Benguet Consolidated Mining, supra:

Today if an authorized representative of a foreign corporation be physically present in the state of the forum and be there engaged in activities appropriate to accepting service or receiving notice on its behalf, we recognize that there is no unfairness in subjecting that corporation to the jurisdiction of the courts of that state through such service of process upon that representative. [72 S. Ct. at 418]

This was applied to the action in that case, which was unrelated to the foreign corporation’s business activities in that state.

Under the foregoing authorities, this court has no hesitation in finding that the defendant’s designation of an agent for the service of process under N. J. S. A. 14A:4-1 amounted to a consent by defendant to be sued in the state courts of New Jersey, and that service on said authorized representative was reasonable and sufficient even if it be established that the contract here sued on was unrelated to defendant’s New Jersey business activities, a proposition yet to be proved.

Even were it to be proved that defendant’s business activities in this State are so insubstantial as to provide no basis for jurisdiction in an unrelated cause of action, the events surrounding the performance of this contract alone would be enough to sustain jurisdiction in accordance with due process. Defendant admits in its answer that its performance under the contract depended on plans and specifications submitted by plaintiff. Plaintiff contends, in its answering brief to this motion, that the plans and designs for the elevator originated in plaintiff’s New Jersey plant and that these plans were either mailed to defendant from New Jersey or hand delivered to defendant’s representatives in New Jersey. These contentions are not denied by defendant. In addition, since defendant admits that the order form for the elevator was received from plaintiff’s New Jersey plant, it is safe to assume that defendant contemplated that a part of the performance of this contract would occur in New Jersey. By this contract then, defendant set in motion various activities at Litton’s plant in New Jersey, which activities were contemplated by the defendant. The significance of the contemplated performance of part of the contract in suit in New Jersey is covered by the Restatement, Conflict of Laws 2d, § 49, which reads:

(2) A state has power to exercise judicial jurisdiction over a foreign corporation which has done, or has caused to be done, an act in the state as to any cause of action not in tort arising from the act * * *.

The commentary to this section is in the Reporter’s note to § 36 which explains:

A state is naturally interested in all acts done within its territory. There will usually be jurisdiction over an individual who does, or who causes to he done in the state an act, even though not claimed to be tortious, as to causes of action arising from the act. This is true for the reason that a heavy burden may be imposed upon a local inhabitant if he is compelled to litigate without the state a claim based upon an act done within the state, whether the act done is a tort or a breach of contract.” [Emphasis added]

Here, defendant bases an affirmative defense arising out of allegedly faulty plans prepared in New Jersey by plaintiff. In addition, it is suing plaintiff in Pennsylvania for monies allegedly due him on a contract partly to be performed in New Jersey, and, if enjoined from pursuing that action, will most likely set up a plea for affirmative relief in the current action by way of counterclaim. Since defendant entered into a contract which it knew would have substantial business effects in this State, and since an affirmative defense is based in fact on acts caused to be done in this State, we have no difficulty holding defendant amenable to suit here, solely on the basis of this one transaction. Kennedy Van Saun purposely availed itself of the opportunity to engage in a commercial transaction involving activities in this State; it should not now be heard to complain that this court lacks jurisdiction. See Avdel Corp. v. Mecure, 58 N. J. 264 (1971), and Corporate Dev. Spec., Inc. v. Warren-Teed Pharm., Inc., supra.

Lastly, defendant argues that this court lacks jurisdiction because the contract was executed in Pennsylvania and consequently should be governed by Pennsylvania law. Such an argument has no bearing on the jurisdictional question since from the preceding discussion it can be readily seen that this State has sufficient minimal contacts with defendant to satisfy the requirements of due process. Resin Research Lab., Inc. v. Gemini Roller Corp., 105 N. J. Super. 401 (App. Div. 1969). The question of where the contract was executed would only have relevance on the issue of what law should be applied on the merits once this court already has jurisdiction. Auten v. Auten, 308 N. Y. 155, 124 N. E. 2d 99 (Ct. App. 1954); W. H. Barber Co. v. Hughes, 223 Ind. 570, 63 N. E. 2d 417 (Sup. Ct. 1945); Bernkrant v. Fowler, 55 Cal. 2d 588, 12 Cal. Rptr. 266, 360 P. 2d 906 (Sup. Ct. 1961), see also, Restatement, Conflict of Laws 2d, § 332 and comments thereto.

In summary, then, it has been seen that regardless of whether this cause of action arose out of defendant’s continuous and substantial business activities in this State, this contract alone is sufficient to provide the court with the “minimal contacts” needed to meet the International Shoe rule and the requirements of due process. Hence, jurisdiction over the defendant is sustained.

II

Having sustained jurisdiction over defendant Kennedy Yan Saun, we now pass to defendant’s second contention, that this court should refuse to take jurisdiction under the doctrine of forum non conveniens.

The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when such jurisdiction is authorized. Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Traditionally in our Anglo-American law, defendant can be sued wherever he can be served. An individual may be served far from his home while he is transiently in a state. The cause of action may have nothing to do with the state where service is made, and plaintiff may be, and oftimes is, a nonresident of that state. Where foreign corporations are involved, suit may be brought wherever the foreign corporation has been certified to do business, which includes appointing an agent for the service of process, or wherever the corporation does business or, in many cases, where it has done an isolated act. See Cheatham et al., Conflict of Laws (5th ed. 1964), 235-237.

Such a varied menu of forums in which a plaintiff may sue has led to a well-known practice in our jurisprudence called “forum shopping.” A plaintiff may make the choice to harass a defendant, in hopes of perhaps getting a better settlement or a higher jury verdict, by bringing the action in a forum where it is inconvenient and oppressive for defendant to litigate. Plaintiff may, of course, have wholly legitimate reasons for his choice of forum, such as convenience of witnesses. In order to combat the use of this practice, the doctrine of forum non conveniens has been developed over the last 50 years by many courts, and applied in situations 'where there is no substantial or legitimate basis for the plaintiff’s choice of forum. See “The Doctrine of Forum Non Conveniens in Anglo-American Law,” 29 Col. L. Rev. 1 (1929); Dainow, “The Inappropriate Forum,” 29 Ill. L. Rev. 867 (1934); Ehrenzweig, Conflict of Laws, 120-137 (1962).

Standards for the application of the doctrine of forum non conveniens vary to some degree in the different jurisdictions, see 90 A. L. R. 2d 1109 (1963), yet most generally follow the considerations cited by Justice Jackson in Gulf Oil Corp. v. Gilbert, supra:

An interest to be considered * * * is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses ; possibility of view of premises, if view would be appropriate to the action and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained.

By way of a cautionary note Justice Stone added, unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”

Our courts in New Jersey and elsewhere have heeded this word of caution and have only rarely granted a dismissal on this ground in exceptional cases where the oppressiveness of defendant’s litigating in the forum has been manifest. Two such cases are Gore v. United States Steel Corp., 15 N. J. 301 (1954), cert. den. 348 U. S. 861, 75 S. Ct. 84, 99 L. Ed. 678 (1954), and Semanishin v. Metropolitan Life Ins. Co., 46 N. J. 531 (1966), and they provide excellent examples of the kind of circumstances in which the doctrine was meant to apply. In Gore an Alabama resident sued a New Jersey corporation for death resulting from an accident on the corporation’s premises in Alabama. The Supreme Court (by Justice Jacobs) held that since the corporation was amenable to process in Alabama and plaintiffs and all witnesses resided in Alabama, and since interpretation of Alabama' statutes was involved, the action should be tried in Alabama. There it was noted that New Jersey had no real connection with the controversy and that “the distance between Alabama and New Jersey is substantial and the expense and inconvenience of having a New Jersey trial would burden all of the parties and their witnesses.”

In Semanishin, it was also painfully evident that the controversy to be litigated had absolutely nothing to do with the State of- New Jersey. This was an action by European residents against a New York Life insuror to collect proceeds of a number of New York residents’ life policies. The contracts of insurance were not made in New Jersey, none of the insureds ever lived in New Jersey, none of the plaintiffs or witnesses were New Jersey residents, and defendant corporation was not a New Jersey corporation. The only slight connection was that defendant was licensed to do business in New Jersey and could be served with process in this State. This was held not enough to defeat the application of the doctrine of forum non conveniens.

The considerations motivating the decisions in these two extraordinary cases have little bearing on the facts in this case. Here, as we have already established, we have a suit on a contract that involved substantial performance in the State of New Jersey; at least half of the witnesses are residents of this State; plaintiff corporation, while not technically a New Jersey resident, carries on much business activity here and maintains a large plant under the name of its division, Hewitt-Robins, in which all records of this transaction are currently being kept. We see sufficient factual differences between this case and the two cases just discussed to distinguish them and eliminate them from our discussion.

In a small number of other New Jersey cases the doctrine of forum non conveniens has primarily been applied in actions based on out-of-state, nonstatutory torts involving personal injuries, where defendant is not a New Jersey resident and the bulk of witnesses are also nonresidents. See Vargas v. A. H. Bull Steamship Co., 25 N. J. 293 (1957), cert. denied 355 U. S. 958, 78 S. Ct. 545, 2 L. Ed. 2d 534.

On the other hand, actions based on contract in this and other jurisdictions appear to be allowed to proceed to trial in the forum chosen by the plaintiff, even where the relationship of the action and of the parties to the state are more tenuous than in the ease at hand. This is true even where both parties are nonresidents. See Amercoat Corp. v. Reagent Chem. & Research, Inc., 108 N. J. Super. 331 (App. Div., 1970); James H. Rhodes & Co. v. Chausovsky, 137 N. J. L. 459 (Sup. Ct. 1948); Quigley Co. Inc. v. Asbestos Ltd., Inc., 134 N. J. Eq. 312 (1944), J. W. Sparks & Co. v. Gallos, 47 N. J. 295 (1966); Cofrode v. Wayne County Circuit Judge, 79 Mich. 332, 44 N. W. 623 (Sup. Ct. 1890); Reeve v. Cromwell, 227 App. Div. 32, 237 N. Y. S. 20 (App. Div. 1929).

Defendant, in its brief in support of this motion, argues that plaintiff, Litton, should be given nonresidency status in our considerations under forum non conveniens. Although the court is not in complete agreement with this view, we will grant it for the sake of argument since, in the court’s view, the nonresidency of both parties will not change the determination of this motion.

In Standard Surety & Casualty Co. v. Caravel Ind. Corp., 128 N. J. Eq. 104 (Ch. 1940), a case more appropriate to our discussion since it involved a contract action, a New York corporation sued another New York corporation and individual New York residents for specific performance of one covenant of an indemnity contract. None of the parties or any of the witnesses were residents of New Jersey and both corporations had done all of their business in New York. The sole connection with the action was that defendant corporation had stored its equipment in Newark for a while after it had discontinued its business in New York, and its president had been served in New Jersey. There the court recognized that its acceptance of jurisdiction was wholly discretionary because of the nonresidency of the parties and laid down guidelines for the application and consideration of forum non conveniens when both parties are nonresidents, among them: (1) the fact that defendant might be subject to unnecessary inconvenience and expense in being compelled to litigate far from home; (3) the difficulty of procuring the attendance of witnesses in a foreign forum, and (3) the fact that a judgment might be unenforceable if defendant had no property in this State. Citing the principle that “the court usually acts when it has jurisdiction unless cause appears for declining to do so,” the court sustained jurisdiction on the grounds that none of the above considerations were seen to exist.

In a similar case, Quigley Co., Inc. v. Asbestos Ltd., Inc., 134 N. J. Eq. 313 (Ch. 1944), aff’d 135 N. J. Eq. 460 (E. & A. 1944), we find facts remarkably familiar to the parties currently at bar. There a New York corporation sued another New York corporation for specific performance of a contract executed in New York and for an injunction restraining defendant from violating certain terms of the contract. There, as here, both parties were licensed to do business in New Jersey and there, also, service was made by serving defendant’s registered agent. Defendant made exactly the same jurisdictional objection as here — that the right to serve process on the registered agent of a foreign corporation doing business in this State existed only with respect to acts which arose out of the transaction of business in this State — a contention which was, in turn, rejected by that court as it is here. Defendant also contended that all of the parties and witnesses were nonresidents; that all of its records of the transaction were in New York, and that the sole purpose of bringing the litigation in this State was to subject defendant to hardship, expense, inconvenience and difficulties, which could be avoided if suit were brought in New York. In stating these to be insufficient grounds for declining to assume jurisdiction the court noted that both parties were actively engaged in the manufacturing business in this State, with rights and liabilities defined by our statutes, and were so engaged when the contract sued on was entered into. More importantly for our considerations here, the court stated:

When defendant obtained a license to engage in business in this state and had business relations with the plaintiff, defendant voluntarily subjected itself to the liability of being sued in the courts of this state and to all the hardship and inconvenience which usually attend trial in any court of a law suit of importance * * *.

See in accord, Doctor v. Desmond, 80 N. J. Eq. 77 (Ch. 1912). Lastty, the court also noted the general rule in forum non conveniens cases that “unless a compelling reason appears that the parties should be relegated to the courts of their domicile, discretion in all transitory actions is usually exercised, especially in actions arising out of contracts, in favor of retaining jurisdiction.” See also James H. Rhodes & Co. v. Chausovsky, supra, a suit by a New York corporation against an Argentine resident on a contract executed in New York, where the Supreme Court, in retaining jurisdiction, also stated that “Jurisdiction is rarely declined where the action arises out of contract.” Also, see in accord with the general tendency to retain jurisdiction in contract actions in other states: Hagen v. Viney, 124 Fla. 747, 169 So. 391 (Sup. Ct. 1936); Trojan Engineering Corp. v. Green Mountain Power Corp., 293 Mass. 377, 200 N. E. 117 (Sup. Jud. Ct. 1936); Marks v. Fireman’s Fund Ins. Co., 109 F. Supp. 800 (S. D. N. Y., 1953); Rhodes v. Barnett, 117 F. Supp. 312 (S. D. N. Y. 1953).

Defendant cannot escape this great weight of authority compelling us to retain jurisdiction in this contract action. More specifically, it has not sought to distinguish the Quigley ease or to argue against the reasonableness of its assertion that a corporation which has designated an agent for the service of process in a state in which it is doing business should not be deemed to have consented to being sued there and to have been put on notice of whatever hardship and inconvenience would have to be indured there in defending such suits. We may well ask defendant why it designated this agent for service of process if it felt it would be inconvenient to be sued here in the first place? Defendant has not demonstrated how this action may be different from any other action it has defended or will defend in this State, or how it would be any more inconvenient. It has stated that all its witnesses are residents of Pennsylvania but gives us no list of their names or addresses and does not say why we should consider the inconvenience of its witnesses of any greater moment than the inconvenience of Litton’s witnesses, who are all New Jersey residents, should Litton be forced to litigate in Pennsylvania. Kennedy has also failed to demonstrate how it would be easier to demonstrate how ‘lamellar tearing” occurs in a Pennsylvania court rather than in a New Jersey court. In addition, all of Litton’s records of the transaction are within the jurisdiction of this court and it would appear equally as inconvenient for Litton to litigate in. Pennsylvania as it would for Kennedy Van Saun to litigate here. A mere showing of inconvenience on the part of a defendant is not enough; it must also be established that dismissal of the action will cause no serious inconvenience to the plaintiff. Amercoat Corp. v. Reagent Chem. & Research Inc., supra, 108 N. J. Super. at 347; Starr v. Berry, 25 N. J. 573 (1958). Defendant has not met that burden in this case. Nor has it met the burden established in Gore v. United States Steel Corp., supra, 15 N. J. at 311, and approved in Starr v. Berry, supra, that, “the plaintiff’s choice of forum will be permitted to control except where the circumstances decisively establish that there is available another forum where trial will best serve the convenience of the parties and the ends of justice.” See in accord with this test, Marshall v. Geo. M. Brewster & Son, Inc., 37 N. J. 176, 188 (1962).

Lastly, defendant cites as another reason for the application of forum non conveniens the burden on the taxpayer and our crowded court calendars when controversies having no connection with this state are allowed to go to trial. These considerations were noted in Gore v. United States Steel Co., and Semanishin v. Metropolitan Life Ins. Co., supra, two cases already distinguished by this court as resting on facts having no relation to this case. It is sufficient for us to quote the rejoinder to this argument by Chief Justice Weintraub in Starr v. Berry, supra:

s.' * * prior decisions in this State to indicate that the taxpayers’ interest is more a reason for the existence of the doctrine than an operative fact in determining whether to apply it in a given case. We incline to the view that if as between the litigants justice dictates that plaintiff’s choice of forum be upheld, such should be the result notwithstanding its impact upon the economy of the judicial system. [25 N. J. at 588]

In view of the substantial contacts existing between this State and the parties to this action, and in view of the fact that defendant has availed himself of the opportunity to do business in this State, and has voluntarily created a procedure by which he may be sued here, this court does not deem it unfair or oppressive to submit defendant to litigation here arising out of a contract invisioning substantial activities in this -state. Moreover, there is certainly no special inconvenience to defendant, since the two states involved are contiguous. Avdel Corp. v. Mecure, 58 N. J. 264 (1971). Under the circumstances, this court deems it proper that it exercise its discretion and retain jurisdiction of this case.

Restraint will issue against the further prosecution of the Pennsylvania action, and leave is granted to defendant to serve and file a counterclaim.


source: Caselaw Access Project

author: Gelman, J. J. & D. B. Ct.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOHN J. HORN, SR., DEFENDANT.
    Bergen County Court
    Decided October 29, 1971.

      Mr. Eugene 8. Garrett, Assistant Prosecutor, for plaintiff (Mr. George F. Kugler, Jr., Attorney General for the State of New Jersey, attorney).

      Mr. Thaddeus O. Raczhowslci for defendant (Messrs. Sailer, Fleming & Raczhowshi, attorneys).
   Gelman, J. J. & D. B. Ct.

(temporarily assigned). Defendant appeals from a judgment of conviction entered in the Bergen County District Court for violation of N. J. S. A. 39 :4 — 75. The court ordered a plenary trial de novo pursuant to R. 3:23-8(a) so that both parties would have an opportunity to present a complete record in view of the importance of the issues raised on this appeal.

The essential facts are these: On April 8, 1971 Officer Saccenti of the Bergen County Police Department was detailed with one other county police officer to enforce the gross weight limitation on the Perry Street bridge in the Borough of East Butherford. The bridge is maintained by Bergen County and is posted for a maximum load of 15 tons. A permanent sign stating the gross load limit is posted on Paterson Plank Boad 500 feet from the bridge entrance and another such sign is located on the bridge itself. The weight limit was fixed by resolution of the Bergen County Board of Preeholders adopted May 6, 1959 pursuant to the authority vested in the board by N. J. S. A. 27:19-13. The resolution provided, among other things, that the county police department would be charged with the enforcement of the regulations set forth in the resolution, and that persons violating the weight limitation would be “subject to the punishment prescribed by the provisions of section 39:4-75 of the revised statutes, as amended and supplemented.”

On the day in question the weighing team was stationed at the East Rutherford side of the bridge, and they observed defendant driving a tractor-trailer containing a liquid cargo off the bridge. He was directed by the officers to stop, and the tractor and trailer were weighed on a pair of portable scales known as loadometers. The weighing proceedure was as follows: first, the scales were balanced and the driver directed to approach the scales by proceeding up ramps located at each side of the vehicle. The vehicle was then moved forward so that the right and left front wheels of the tractor passed over the runners and came to rest directly on the scales. An officer was stationed at each scale and operated the loadometer to determine the weight registered on his side. Officer Saccenti then checked the weights registered on each of the scales and recorded them on his report, the total of the two readings constituting the axle weight. The vehicle was then moved forward and each axle weight was recorded in turn, except for one axle which could not be weighed because an outside wheel on one side was missing. The total of all the recorded axle weights was found to be 56,220 pounds, or 26,220 pounds in excess of the posted limit.

A summons was issued to defendant by Officer Saccenti, who testified to the facts set forth above. This officer was trained in the use of loadometers between October 1970 and February 16, 1971, when he was certified as a weighmaster by the State Division of Weights and Measures. He further testified that the scales used in the weighing of the vehicle in question were calibrated on March 19, 1971 by the Division of Weights and Measures, and the certificate evidencing the calibration of the scales was introduced in evidence.

The officer described, in explicit detail, the weighing procedure which was followed in this case, and there is nothing in the record to suggest that the procedure was incorrect. While counsel urged that such an inference can be drawn because the total axle weight of one side of the vehicle was 2,000 pounds in excess of the other side, the side-to-side weight differential is readily attributable to the liquid cargo shifting because of a slight beveling of the road surface where the weighing took place. Certainly the differential obtained does not give rise to a reasonable inference that the scales were incorrect or that the weighing procedure was improper. Loadometers are in widespread use by law enforcement agencies throughout the country, and they are a relatively simple but accurate means of determining vehicle or axle weights without seriously delaying commercial traffic. Loadometer readings have been accepted as satisfactory evidence in other jurisdictions to support convictions for vehicle weight violations (see, e. g., People v. Vinciguerra, 24 Misc. 2d 63, 203 N. Y. S. 2d 953 (Sup. Ct. 1960)), and even assuming that loadometers are “scientific instruments” equivalent to drunkometer devices, the criteria set forth in State v. Johnson, 42 N. J. 146, 171 (1964), were sufficiently met in this case so as to warrant the acceptance of the results obtained.

Defendant’s principal contention on this appeal is an asserted lack of authority on the part of county police officers to stop and weigh vehicles or to issue a summons for any weight violation of the Motor Vehicle Act.

N. J. S. A. 39 :4r-75, the Motor Vehicle Act section involved here, does not contain any language limiting its enforcement to a specific class of law enforcement officer. The section states:

No commercial motor vehicles shall be driven over a bridge in this state upon which is posted in a conspicuous place a sign stating the gross weight the bridge will carry, if the gross weight of the commercial vehicle and load is greater than the gross weight stated on the sign.
A person violating this section shall be subject to a fine not exceeding one hundred dollars. In default of the payment thereof imprisonment in the county jail for a period not exceeding ten days shall be imposed.
The owner and operator of any vehicle used in violation of this section shall be responsible to the municipal or other corporation owning or maintaining- such bridge, or to the state if such bridge is maintained by the state, for any damage done to the bridge by reason of the violation.

The Legislature has elsewhere vested general authority to enforce all provisions of the Motor Vehicle Act, without exception or limitation, in “the police * * * 0f * * * any municipality or county or * * * the State.” N. J. S. A. 39:5 — 1. In addition, the authority of the county police is the subject of specific legislation. N. J. S. A. 40:22-5 states (insofar as here relevant):

The [county police] shall have all the powers to enforce * * * all the provisions of Title 39 of the Revised Statutes. * * *

The statutory grant of authority to the county police (and local police as well) to enforce the provisions of N. J. S. A. 39:4-75 would appear to be clear, and there is no judicial precedent to support defendant’s position. However, he urges that all police officers other than the State Police and motor vehicle inspectors were stripped of authority to enforce any vehicle weight statute by virtue of N. J. S. A. 39:3 — 84.3 and the legislative history preceding its enactment. The first paragraph of N. J. S. A. 39:3 — 84.3 states that

Any State Police officer or motor vehicle inspector having reason to believe that the size or weight of a vehicle and load is unlawful is authorized to require the driver to stop and submit to a measurement or weighing of the same. * * *

The cited section also provides for the off-loading or redistribution of the excess portion of the load in the event a violation is found, and prescribes minimum and maximum penalties, including a fine measured by the amount of the excess load under certain conditions. The offending vehicle is also subject to detention and its registration may be revoked by the Director of Motor Vehicles.

This section of the Motor Vehicle Act was adopted in 1950 as a part of a comprehensive revision of the law dealing with vehicle weights and dimensions. As originally introduced on March 6, 1950, the provision of Assembly Bill 13 (hereafter “the truck bill”) corresponding to N. J. S. A. 39:3-84.3, authorized “any police officer” to stop and weigh or measure a vehicle believed to be in violation of the act. On March 29, 1950 hearings on the truck bill were held before the Senate Judiciary Committee, and a spokesman for the trucking industry, in commenting upon this section of the bill, urged that it be amended because

[A]t present Motor Vehicle Inspectors and State Police are believed to be the only persons having and exercising this power. Transcript, Public Hearing on Assembly Bill No. 13, The Truck Bill, at 38.

Following the hearings the truck bill was amended so as to omit reference to “any police officer” and to substitute instead the present language of N. J. S. A. 39:3 — 84.3.

The question, then, is whether the language of N. J. S. A. 39:3-84.3 and its legislative history constituted an implied repeal of county and local authority to enforce N. J. S. A. 39:4-75. The answer is in the negative. In the first instance, when the Legislature enacted the truck bill it was aware of the provisions of N. J. S. A. 39 :4-75. Section 1 of the truck bill specifically referred to N. J. S. A. 39 :4-75 and stated:

This section shall not be construed to supersede or repeal the provisions of either Sections 39:3-84 or 39:4-75 of this Title. [N. J. S. A. 39:3-20]

It is difficult to conceive that a legislature which proclaimed its intent not to disturb an existing statute in one section of a bill would have intended a partial repeal of the statute in the same enactment without expressing that intent in so many words. As the Supreme Court noted in Henninger v. Board of Chosen Freeholders, 3 N. J. 68 (1949) :

Repeals by implication are not favored in the law. In the absence of an express repealer indication of an intention of the Legislature to repeal a prior act must be clear and compelling. There is a strong presumption against such an intention. * * * Wherever possible statutes dealing with the same general subject will be recognized and harmonized. * * [at 71]

The legislative history of N. J. S. A. 39 :4 — 75 confirms the conclusion that an implied repeal was not intended here. As early as 1911 first-class counties were authorized to adopt rules and regulations governing traffic on county roads, including the regulation of truck weights, and to appoint county police officers to enforce such regulations. L. 1911, c. 272. This authority was further extended in 1918 to include the making and enforcement of “rules and regulations for the protection and use of the viaducts and bridges” by all counties. L. 1918, c. 185. The 1918 act clearly encompassed the adoption of weight limits for county bridges, and this authority continues to the present day. N. J. S. A. 27:19-13. In section 21(6) of the Motor Vehicle Act of 1921 (L. 1921, c. 208), which is the source of N. J. S. A. 39 :4-75, the Legislature supplemented the 1918 act by making it a state offense to exceed the posted weight limits on bridges. This section of the act necessarily had reference to weight limits established for county bridges pursuant to the 1918 act, since it mandated civil liability to a county for any damage to the bridge structure caused by a violation of this section. While the next succeeding section of the 1921 Motor Vehicle Act, section 21(7), authorized motor vehicle inspectors to stop and weigh vehicles, the intent there was not to supplant county enforcement of bridge regulations but to extend the same enforcement powers previously granted to county and local officers to state officials as well. This intent was further manifested in 31(1) of the 1921 Act, which expressly authorized enforcement of any provision of that act by “any * * * police officer.”

Hence, when the truck bill was adopted in 1950, all police officers in this State were authorized to enforce the provisions of N. J. S. A. 39:4-75 and, as a necessary adjunct of that authority, all police officers were authorized to stop and weigh vehicles to determine the existence of a violation. Nothing in the truck bill or its legislative history suggests an intent to alter the design of the prior law in this respect. Indeed, in the hearings on the truck bill, the proponents of the legislation emphasized that an important purpose of the legislation was to protect bridges in the county road system, and both the then Attorney General and members of the Senate Judiciary Committee expressed concern that there be more enforcement of the law and not less. See Transcript, supra, at 71 — 77.

The amendment to the truck bill prior to its enactment which resulted in the present wording of N. J. S. A. 39:3-84.3 is not inconsistent with this view. In that section the Legislature extended enforcement powers under the new law far beyond the mere issuance of a summons, which was then and remains the sole means of enforcing N. J. S. A. 39:4-75. Under N. J. S. A. 39:3-84.3 the officer can direct the off-loading of the vehicle’s cargo so as to reduce the gross weight to the authorized limit, or he can permit a redistribution of the load. The amount of the fine for violation of this section is not less than twice the amount prescribed by N. J. S. A. 39:4-75. The vehicle and its contents may also be detained until a bond is posted, and finally, the vehicle registration may be revoked by the Director for a violation of this section of the statute. Without passing upon the question whether county police are authorized to enforce N. J. S. A. 39 :3-84.3 by reason of the general grant of authority contained in N. J. S. A. 39 :5-l and 40:22-5, it is apparent that the range of enforcement activity and the penalties authorized are more comprehensive and drastic than under N. J. S. A. 39 :4-75. The Legislature could well have decided to limit enforcement of the former to state police and motor vehicle inspectors, while at the same time continuing the existing authority of all police officers to enforce the provisions of N. J. S. A. 39:4-75.

It is concluded, therefore, that county police officers have the authority to enforce the provisions of N. J. S. A. 39 :4-75 and to stop and weigh vehicles suspected to be in violation of the weight limits posted for bridges.

It is also urged that the “extension” of law enforcement authority for overweight violations would create an unconstitutional burden upon interstate commerce because vehicles engaged in interstate transportation would be subject to harassment and interference by multiple law enforcement jurisdictions as they made their way into or through the State. However, the right of state governments to regulate vehicle weights and sizes was sustained by the United States Supreme Court in South Carolina State Highway Dept. v. Barnwell Bros., 303 U. S. 177, 58 S. Ct. 510, 82 L. Ed. 734 (1938). Mr. Justice Stone, speaking for a unanimous court, stated: See also Morris v. Duby, 274 U. S. 135, 47 S. Ct. 548, 71 L. Ed. 966 (1927); Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167 (1932).

New subjects of state regulation are so peculiarly of local concern as is the use of state highways. * * * The state has a primary and immediate concern in their safe and economical administration. The present regulations, or any others of like purpose, if they are to accomplish their end must be applied alike to interstate and intrastate traffic both moving in large volume over the highways. * * *
In each of these cases regulation involves a burden on interstate commerce. But so long as the state action does not discriminate, the burden is one which the Constitution permits because it is an inseparable incident of the exercise of a legislative authority, which, tinder the Constitution, has been left to the states. [303 U. S. at 187, 58 S. Ct. at 515, 82 L. Ed. at 740]

If the states may regulate truck weights and sizes without running afoul of the Commerce Clause, the enforcement of such legislation may be accomplished by any class of police officer in whom such authority is generally vested, so long as there is no discrimination against interstate traffic. We note that under similar legislation in our sister states, local as well as state police officers are authorized to enforce vehicle weight limits. See, e. g., New York Vehicle and Traffic Law, McKinney’s Consol. Laws, c. 71, § 393. There is no suggestion made here that local law enforcement against weight violators, as distinguished from state enforcement, has been conducted in a manner so as to work any discrimination against interstate traffic; absent such discrimination, any incidental burden on commerce by reason of the enforcement of valid state laws does not offend the United States Constitution.

The judgment of conviction below is therefore affirmed.

       The juxtaposition of these two sections may have given rise to the belief that only state officials could enforce weight restrictions. It is more likely, however, that this belief arose from the fact that eounty and local agencies apparently did not exercise the authority granted to them by the Legislature. Indeed, as the transcript of the hearings on the truck bill makes clear, there was little or no enforcement activity against truck weight violators even by state officials prior to 1950. See Transcript, supra, at 76-77.


author: Pee Cukiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT LEE HARRIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 13, 1971
    Decided November 9, 1971.

      Before Judges Kilkenny, Labkeoque and Lake.

      Mr. Francis J. DeVito, designated attorney, argued the cause for appellant {Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. B. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Pee Cukiam.

Defendant was found guilty by a jury of robbery, N. J. S. A. 2A:141-1. On April 29, 1970 he was sentenced to the State Eeformatory at Yardville, a maximum of seven years to apply. He timely appeals.

Defendant contends: (1) the admission of the in-court identification of him by the victim was reversible error because it was the product of an out-of-court identification which was a denial of due process; (2) the court erred in not permitting him to call his mother as an alibi witness. thereby depriving him of due process of law; (3) the court committed plain error in not specifically charging the jury on “alibi,” and (4) the court misled the jury as to what the contentions of the defense were.

On June 21, 1969, at approximately 9:50 p.m. to 10 :15 p.m., Mr. Britt Hendrickson was standing in front of the Adams Theater in Newark. He had been in Perth Amboy, where he had had a few beers, until about 8:45 p.m. and then had come by automobile to Newark. As he was looking across the street at the Branford Theater, he was pulled to the ground from behind by three colored males. He was struck in the face by two of the men, while the third —- a Negro in a white coat — went through his pockets and took his wallet containing $105. The lights of the marquee were on. Hendrickson testified that he could clearly see the face of this third man. As a result of the attack, Hendrickson was rendered unconscious and was hospitalized for a number of days thereafter.

Officer James Braekin was on duty in the area of the incident at the time of its occurrence. After making his 10:30 p.m. call into headquarters, the officer was approached by a pedestrian. As a result of what this man told him, the officer proceeded towards the Adams Theater. Another passer-by approached him and his attention was directed across the street to a Negro male in a white coat. This proved to be defendant.

Officer Braekin called for assistance on his walkie-talkie and then followed defendant through a crowd on Broad Street and into a pizzeria. There the defendant was apprehended and placed under arrest. The officer took defendant back to the scene of the robbery where Hendrickson still lay unconscious. After an ambulance arrived for the victim, defendant was taken to the First Precinct where he was searched. Nothing of an incriminating kind was found in his possession. He gave his name as Robert Johnson, 17 years of age, and also told the police his social security number. All this was false. His correct identification, name and age, were ascertained the next day. There was no record of the social security number given.

At the trial in the County Court a voir dire hearing, out of the presence of the jury, was held concerning the identification procedure. Hendrickson testified thereat that he had been called to come to the Municipal Court about a month and a-half after the incident. The courtroom that day was "full of colored.” While he and his wife were sitting there, defendant was brought in by “a white man.” Hendrickson immediately recognized defendant as the man who had gone through his pockets. He was asked by the judge in the Municipal Court if he recognized defendant and he answered in the affirmative. When asked if he had had any doubts, he responded:

No, sir. 1 wouldn’t forget him, not that face over me, and going in my pockets.

The trial judge held all testimony concerning identification admissible, apparently finding the identification at the Municipal Court proper and the in-court identification at trial not tainted. In the judge’s words:

The court is satisfied that, neither the out-of-court or the Magistrate’s Court identification, or the in-eourt identification, are tainted.

During direct examination before the jury Hendrickson identified defendant as one of his assailants. Nothing was elicited by the prosecutor concerning the Municipal Court identification. This was, however, brought out by defendant’s attorney on cross-examination.

Defendant asserts that at his arraignment, on September 22, 1969 in the County Court, he was not represented by counsel. At that time a demand was made upon him for a bill of particulars if he intended to rely on the defense of alibi. However, such a bill was never delivered by him or on his behalf. Eather, a letter was sent from the Public Defender’s Office to the Prosecutor’s Office approximately four months prior to trial. This stated that “the defendant may rely on the defense of an alibi. The alibi witness is Mrs. Doris Harris, 151 Clifton Avenue, Hewark, New Jersey [defendant’s mother].” It was defendant’s contention that he was with his mother, sister, and nephew and one Lloyd Harris at his cousin’s house in the evening of the day of the robbery. They allegedly left at about 10 :15 p.it., at which time he was driven to Broad and Market Streets, in Hewark. This is only a short distance from the scene of the crime. He walked over to get some pizza in a restaurant when he was arrested. Defendant’s mother was offered as a witness at the trial to establish the fact that they were at the cousin’s until 10:15 p.m. and then they drove defendant to Broad and Market Streets, where he alone left the car.

The State objected to the mother’s testimony on the ground that B. 3:11-1 had not been complied with. After argument on the issue, the court disallowed alibi testimony by defendant’s mother.

Defendant testified in his own behalf. He denied participation in the crime. He contended that he gave a false name and age, because he was warned that they (the police) would beat him up if he was an adult.

Defendant’s cousin, Shirley Jones, testified that defendant and others had been at her house that evening; however, she did not know what time they left. A Doris Adams testified as a character witness.

I

Was the in-court identification of defendant the product of an improper out-of-court identification? This is the first question to be answered.

Defendant places reliance upon the fifth amendment due process requirement. As pointed out by Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 1199 (1967), and subsequent cases, where identification is based upon improper suggestive procedures, it will be inadmissible. Such determination must be made by viewing the identification in the totality of the circumstances. Id. at 302, 87 S. Ct. 1967. It must be considered whether the “identification procedure was so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). See also State v. Edge, 57 N. J. 580, 586-587 (1971); State v. Mustacchio, 57 N. J. 265, 271-272 (1970).

In the instant case we find no such impropriety. The confrontation here, though one-to-one, was in no way suggestive. Immediately, upon defendant’s being brought into the municipal courtroom — which was crowded with other Negroes — Hendrickson recognized defendant. This recognition was totally spontaneous and free of any external pressures. When called upon by the Magistrate, Hendrickson merely gave voice to his earlier recognition. The trial court was justified in finding that this “identification” was a product of the victim’s familiarity with defendant by reason of the happening on the night of the robbery, rather than any untoward procedure.

Defendant also attacks the identification on the ground that he was denied his sixth amendment right to counsel. This is, of course, in reliance upon the rule set forth in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). There it was held that a post-indictment line-up is a critical stage of the criminal process which requires representation of an attorney.

The United States Supreme Court has not decided specifically whether this rule encompasses pre-indictment situations. (It is interesting to note that Stovall v. Denno involved a pre-indictment situation, yet the issue never entered the court’s consideration.) Nor has our Supreme Court ruled on the issue. See State v. Edge, 57 N. J. 580, 586 (1971); State v. Mustacchio, 57 N. J. 265, 269-270 (1970). Courts in various jurisdictions have reached differing views. ■See cases cited in Mustacchio, supra, at 270. Compare State v. Jordan, 113 N. J. Super. 563 (App. Div.), certification denied 58 N. J. 338 (1971), with State v. Earle, 112 N. J. Super. 523 (App. Div. 1970), certification granted 57 N. J. 602 (1971).

In Earle, the court held that a defendant under arrest and in police custody is entitled to counsel at a confrontation. In Jordan, the court, in affirming the conviction, found that the mere fact that defendant was in custody at the time of the line-up did not require presence of counsel. A functional test was there emphasized which would weigh “possible prejudice to the accused * * * against countervailing policy considerations.” 113 N. J. Super. at 569-570.

In light of the witness’ unequivocal identification of defendant, his proximity to him, and the excellent lighting conditions at the time of the offense, it is reasonable to find that the victim’s identification stems from his first encounter with defendant and not from the subsequent confrontation.

We note, too, that the State limited its evidence on identification and the defense brought out the pretrial identification before the jury on the cross-examination of Hendrickson.

II

We next consider whether the trial court committed reversible error when it refused to permit defendant’s mother to testify as an alibi witness.

R. 3:11-1 provides that if a defendant intends to rely upon the defense of alibi, upon demand by the prosecutor, he must furnish the prosecutor with the specifics of that defense including the contentions and witnesses. R. 3 :11-2 provides:

If such bill of particulars is not furnished as required, the court may refuse to allow the party in default to present witnesses at trial as to defendant’s absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment as the interest of justice requires.

The purpose of this rule is to avoid the sudden introduction of factual contentions at trial which cannot be investigated without a recess. State v. Garvin, 44 N. J. 268, 272-273 (1965). It seeks to do away with previous “unfairness in criminal trials of a surprise alibi.” State v. Baldwin, 47 N. J. 379, 388 (1966). Similar rules are in effect in most, if not all, jurisdictions, and their constitutionality has been repeatedly upheld. See Williams v. Florida, 399 U. S. 78, 80-86, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); State v. Angeleri, 51 N. J. 382, certiorari denied 393 U. S. 951, 89 S. Ct. 372, 21 L. Ed. 2d 362 (1968).

At the time of the arraignment (September 22, 1969), defendant was served with the requisite demand which he acknowledged. It is contended that defendant was not represented by counsel prior to this acknowledgement. There-is no indication whether defendant had waived his right to counsel at this time, or whether he understood the demand. However, on November 7, 1969, a letter was sent from the Public Defender’s office indicating that alibi might be a defense, and merely giving the name and address of the witness. Detective O’Hare of the Prosecutors Office sent a letter to the person named but made no further inquiry. He allegedly was awaiting formal compliance with the earlier demand.

The response by the defense attorney indicates that he was aware of the demand; and, it would thus not be unreasonable to consider the demand effective. However, it must be considered whether the exclusion of the particular “alibi” testimony by the trial judge was an abuse of discretion.

Normally, the rule applicable to the defense of “alibi” is applied strictly. Annotation, “Notice of Alibi ’’ 30 A. L. R. 2d 480 (1953). However, in State v. Baldwin, 47 N. J. 379 (1966), in a somewhat comparable situation, a demand from the defense attorney was misplaced in the prosecutor’s office and never answered. The court pointed out that the State had not refused to disclose the witnesses and defense could have readily obviated the problem by a pretrial motion to compel the State to answer. Eather, as the court expressed it, “the defense chose to sit back in the hope of gaining some advantage at trial.” Id. at 390.

In State v. Nunn, 113 N. J. Super. 161 (App. Div. 1971), after holding that circumstantial witnesses were contemplated in B. 3:11 — 1, this court held that there was no clear abuse of discretion in excluding certain alibi testimony in light of the surrounding circumstances. The defense counsel had been aware of the witnesses’ existence more than two weeks prior to trial. See also State v. Woodard, 102 N. J. Super. 419, 426 (App. Div.), certification denied 53 N. J. 64 (1968); certiorari denied, 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1969).

Other jurisdictions have had opportunity to treat this issue. In State v. Martin, 2 Ariz. App. 510, 410 P. 2d 132 (Ct. App. 1966), it was held that there was no abuse of discretion in the trial court’s exclusion of alibi testimony because of non-compliance with the disclosure rule. Defendant had made an offer of proof at the trial. The court stated that for alibi to be an effective defense it must be shown that defendant was so far from the place of the alleged crime that he could not with ordinary exertion have participated in the crime. 21 Am. Jur. 2d, Criminal Law, § 136 (1965). The court found that the evidence presented did not meet this standard and thus there was no abuse in excluding it.

By way of contrast to strict compliance with the rule, see Founts v. State, 483 P. 2d 654 (Nev. Sup. Ct. 1971). There, defendant orally informed the prosecutor prior to trial that he intended to call an alibi witness. However, the trial judge disallowed the testimony in that no written notice had been timely submitted giving the specifics. The Supreme Court of Nevada reversed. Under their rule, such evidence was admissible “upon good cause shown.” They noted that the prosecutor had had time to investigate and was not surprised; the evidence directly controverted the State’s case. “[Sjtrict compliance should not be blindly required if the end result will make the criminal prosecution a game.” Id. at 656. Accord: Commonwealth v. Shider, 209 Pa. Super. 133, 224 A. 2d 802 (Super. Ct. 1966).

Likewise, in the instant case it is difficult to appreciate the State’s claiming any surprise. The prosecutor had been aware of the one potential witness upon whom defendant would rely if he was going to urge the defense of alibi. The ambiguity of defendant’s notice that he might rely on the defense is understandable in light of the tenuousness of the evidence. Moreover, even had the notice been explicit, the prosecutor would have been in no better position since defendant would not be hound to this defense. The trial judge should have permitted defendant to present this evidence. (It should also be noted that the judge refused to permit an offer of proof.)

The question, however, is whether the error was reversible. Would the mother’s testimony, in fact, amount to an effective alibi defense? Could the mother’s testimony, if believed, exculpate defendant? The time of the robbery was set at between 10 p.m. and 10:30 p.m. The intended testimony was to be that defendant, his mother and others, had left the cousin’s house at approximately 10:15 p.m. and traveled to Broad and Market Streets (apparently 15 minutes from the cousin’s house). At that point, defendant got out of the car alone. The Broad and Market Street intersection is only about a block and a-half from the Branford Theater and less than two blocks from the Adams Theater — a three minute walk at best. The mother could not place defendant once he left the car. The time sequence is close but not precise. The mother’s testimony could not have reasonably exculpated defendant. It would have placed him close to the scene of the robbery and probably there at the critical time, as testified to by the victim and the police officer. Thus, we conclude the exclusion was not reversible.

III

The court did not err in failing to instruct the jury on the specific issue of alibi. No request to charge as to the defense of “alibi” was made and no exception was taken to the court’s instructions to the jury. Moreover, it has been held that alibi is not a “separate” defense which requires a specific charge to the jury. State v. Edge, 57 N. J. 580, 590 (1971); State v. Garvin, 44 N. J. 268 (1965). Thus, there was no error in this regard.

IV

Nor did the court mislead the jury was to what the contentions of the defense were. In its charge the trial court indicated that it was going to reiterate the contentions of both defendant and the State. This was done. Defendant’s attorney claimed that the trial judge failed to indicate the “highly suggestive nature” of the identification. The court refused to recharge after this was noted. We find no error in this ruling.

The trial judge had indicated that he was stating the facts as he recollected them. The defense attorney had had ample opportunity to set forth defendant’s contentions in summation. Reliance was placed essentially on the matter of identification. The omission by the judge as to this matter was not reversible error.

The judgment of conviction is affirmed.


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

text:
    DATA ACCESS SYSTEMS, INC., A NEW JERSEY CORPORATION, RESPONDENT-APPELLANT, v. THE STATE OF NEW JERSEY, BUREAU OF SECURITIES, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY AND JOSEPH F. KRUPSKY, CHIEF, BUREAU OF SECURITIES, PLAINTIFFS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 27, 1971
    Decided November 9, 1971.

      Before Judges Sullivan, Leonard and Carton.

      Mr. John B. M. Frohling argued the cause for appellant (Messrs. Sharkey & Brandi, on the brief).

      Mr. Charles Parker, Deputy Attorney General, argued the cause for respondents {Mr. Joseph Charles, Deputy Attorney General, on the brief; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

This appeal, in the main, involves the issue of whether the State of New Jersey, acting through its Bureau of Securities, has jurisdiction over an offering of capital stock by a New Jersey corporation when such offering is covered by a registration statement filed with the Securities and Exchange Commission under the Federal Securities Act of 1933.

Data Access Systems, Inc., a New Jersey corporation (Data), was organized in June 1969. Its principal office is in Dover, New Jersey, and it is engaged in the assembly of electronics communication equipment relating to computers. After its original organization Data issued additional shares of its stock on a “private placement” basis. As of February 28, 1971 it bad 432,400 shares issued and outstanding. Its total assets as of that date, as shown by its balance sheet, were $320,383.

In the early part of 1971 Data proposed to issue an additional 200,000 shares of its capital stock for $3.50 per share. A registration statement was filed with the Securities and Exchange Commission. On February 16, 1971 copies of the registration statement and prospectus were filed with the New Jersey Bureau of Securities (Bureau). (Regulation 13:13-52 of the Bureau provides for written notice of the federal filing as a condition of qualifying the security for offer and sale in New Jersey.)

Rejecting the contention of Data’s counsel that the Bureau had no jurisdiction over a security offering registered under the federal act, the Chief of the Bureau ruled that the proposed issue, so far as it involved an offer from or within the State of New Jersey, was subject to the New Jersey Uniform Securities Law (1967), N. J. S. A. 49:3-47 et seq. Ultimately the Bureau issued a final order of cease and desist against the issuance or sale of the proposed stock from or within the State of New Jersey. The order was bottomed on the Bureau’s findings that the offering involved unreasonable amounts of promoters’ participation, contrary to N. J. S. A. 49:3-64(a) (vi). The Bureau gave as an added reason that Data, from July 1, 1969 to July 1970, engaged in the sale of securities in this State without complying with New Jersey securities laws, evidencing a disrespect and disregard therefor.

Data appeals on the following grounds: (1) the Bureau had no jurisdiction to pass on the substance of a federally registered offering; (2) even assuming the Bureau had jurisdiction in the instant matter, it improperly applied principles of administrative law in reviewing the matter of unreasonable promoters’ participation; (3) Data’s alleged sales of unregistered‘securities in 1969-1970 is not a proper legal basis for the Bureau’s order.

Preliminarily we conclude that the 1969-1970 sale of securities should not operate to permanently bar Data from future sale of securities in this State. The record indicates that during the period in question some 125,000 shares were sold to approximately 23 persons in New Jersey. On its face it would appear that these securities should have been registered under the New Jersey Securities Law. However, there are mitigating circumstances and there does not appear to have been a deliberate attempt to circumvent the law. We think the public interest will be protected and justice satisfied by alternatives such as requiring Data to offer to buy back such stock from original subscribers at cost price, the offer to remain open for a limited period of time.

The basic issue, as heretofore noted, is the jurisdiction of the Bureau to make a substantive review of a federally registered offering of securities. Data does not contend that Congress has preempted this field by its enactment of the Securities Act of 1933. Eather, Data argues that the limited Uniform Securities Law adopted in New Jersey indicates a legislative intent to exempt federally registered offerings from state control. We do not agree.

Eegulation of the issuance of securities under the Eederal Securities Act of 1933 is basically in the area of requiring full and fair disclosure via registration statement and prospectus. The federal act specifically permits the exercise of concurrent jurisdiction by state securities regulatory agencies. 15 U. S. C. A. § 77v.

The Uniform Securities Act, adopted in New Jersey with certain modifications hereinafter referred to, provides more extensive investor protection than the federal act. It not only requires full and fair disclosure but empowers the Chief of the Bureau of Securities to issue a stop order suspending the effectiveness of a registration statement covering a security if he finds that order is in the public interest and that any one of certain irregularities, specified in N. J. S. A. 49:3-64, exist. Unreasonable promoters’ profits or participation is listed as one of the grounds for a stop order.

The omission of section 303 of the Uniform Act from the New Jersey act, contrary to appellant’s contention, does not indicate a legislative intent to exempt federally registered securities from the provisions of the New Jersey act. Section 303 specifically provides for coordinate state registration of a federally registered security. However, its omission from the New Jersey act merely excuses the issuer from the duplicitous requirement of dual registration. As heretofore noted, the New Jersey Bureau of Securities’ regulations require written notice of the federal filing. In this case Data filed with the Bureau copies of SEC registration statement and prospectus. The Bureau Chief used the information contained in those documents, as well as matters brought out at the hearing, as the basis for his findings and his final order of cease and desist.

Appellant argues that indicative of a lack of jurisdiction is the Bureau’s own Regulation 13 .T3-52, which prescribes only minimal standards for notifying the Bureau of an offering covered by a registration statement filed with SEC.

We do not read the regulation in the same light. It provides that offerings of securities which have been filed with SEC may be qualified for offer and sale within or from New Jersey by the filing with the Bureau Chief of a written notice setting forth (a) the name of the issuer, (b) the filing with the SEC, and (c) the name and address of the broker-dealer or underwriter who is to effect sales within or from New Jersey. The notice is to be accompanied by a copy of the prospectus or offering circular.

It is to be noted that the regulation uses the expression “may be qualified” rather than “shall be qualified,” indicating a reservation of control over whether or not the offering becomes qualified in New Jersey. Moreover, there would be no point in requiring an issuer to file a written notice containing the information specified and to submit the material required, if the Bureau had no jurisdiction to utilize the same for investor protection.

Nor does N. J. S. A. 49:3-60 support appellant’s contention. Consistent with the omission of section 303 of the Uniform Act, this statutory provision, so far as relevant to the present discussion, dispenses with the need for a separate state registration statement where there has been a filing with SEC. However, this section does not exclude Bureau of Securities’ jurisdiction whore there has been a registration statement filed under the Federal Securities Act of 1933. The need for protection of investors in this State is just as great whether the proposed offering is intrastate or interstate.

We are informed that few security issue filings with the Bureau involve purely intrastate offerings. Since the New Jersey act regulates in a comprehensive way the issuance of securities in this State, whereas the federal act does not, it would frustrate the legislative purpose of providing extensive investor protection if state jurisdiction could be thwarted by the device of federal registration. In short, we conclude that the Bureau may exercise full jurisdiction over a federally registered issue insofar as it involves the offer or sale of a security from or within this State.

Appellant also argues that, assuming the Bureau has power of substantive review, it improperly applied principles of administrative law in reviewing the matter of unreasonable promoters’ participation. Specifically, it is urged that the term “unreasonable promoters’ participation” is so broad that basic fairness requires promulgation of a rule defining the term. In the same vein it is further argued that failure to promulgate such a rule violates the New Jersey Securities Law as well as the Administrative Procedure Act.

We find no substance in this argument. The present extensive control over the offering or sale of a security in this State, vested in the Bureau, was added to the New Jersey Uniform Securities Law in 1967. The Bureau must be afforded a fair opportunity, based on experience, to evolve statutory standards within the framework of the law. As was stated by the United States Supreme Court in Securities and Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947) :

Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforseeable situations.
* * * * * * * *
[T]he agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problem on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency, [at 202-203, 67 S. Ct. at 1580]

We recognize that continued experience with the provisions of N. J. S. A. 49:3-64 may develop guidelines which should then be embodied in appropriate regulations. Cf. R. H. Macy & Co., Inc. v. Director, Div. of Taxation, 41 N. J. 3 (1963). For the present we are satisfied that the Bureau approach the problems on a case-by-case basis.

Appellant does not seriously challenge the sufficiency of the facts on which the Bureau’s finding of unreasonable promoters’ participation is based. The proposed offering price is more than ten times present book value. Net proceeds of the offering would increase the total corporate assets from $320,383 to $925,000, an increase of some 200%, but the new shareholders who would contribute this massive injection of capital would only have a 30% stock ownership. Immediately upon consummation of the proposed offering the present stockholders would have the book value of their stock increased from $0.31 a share to $1.27 a share, while the new purchasers would hold stock having a book value of $1.37 per share for which they paid $3.50 per share, a dilution of more than 60%.

While it may be difficult to define “unreasonable promoters’ participation” in the abstract in precise terms, we are satisfied that the enumerated facts substantially support the Bureau’s findings and conclusions as to such participation in this case.

Appellant charges that the Bureau action is illegal because it has failed to apply the standards it uses in a consistent manner. Reference is made to Bureau action on three offerings by other New Jersey corporate businesses. Details of the various offerings have been set forth in a comparison chart in an effort to support appellant’s contention that it has not received equal treatment from the Bureau.

We conclude that no invidious discrimination has been shown. Corporate offerings cannot be compartmentalized in the manner suggested by appellant. Each filing must be considered on its individual merits, considering all the relevant circumstances which necessarily vary from offering to offering and from business to business. The type of business, its age, corporate structure, operating experience, type of assets, are only a few of the relevant considerations. We must recognize the expertise of the Bureau in this area and the necessity of using a flexible approach to the matters that come before it. The rigid application of standards suggested by appellant would deny to the Bureau the discretion so essential to proper application of its expertise.

Affirmed.


author: Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RAYMOND A. PINKOS, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 3, 1971
    Decided November 12, 1971.
    Before Judges Kilkenny, Labkecque and Lane.

      Mr. George F. Hendricks, Jr. argued the cause for defendant-appellant (Messrs. Pincus, Shamy & Sheehan, attorneys).

      Mr. Roland A. Winter argued the cause for plaintiff-respondent (Mr. Sam Weiss, of counsel).

      Mr. Stephen L. Gordon, Deputy Attorney General, argued the cause for Mr. George E. Kugler, Jr., Attorney General of New Jersey, amicus curiae.

   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant Raymond A. Pinkos, Jr. was convicted in the Edison Township Municipal Court of violating section 1 of an ordinance of the township entitled “An Ordinance to Prohibit Hunting and the Discharge of Eirearms and other weapons in the Township * * He was fined $25, plus $10 costs. On appeal to the Middlesex County Court his conviction was affirmed. The present appeal followed.

Section 1 of the ordinance in question provides “that hunting of any type within the limits of the Township of Edison is, and shall be, hereafter, banned and prohibited.” While we have not been furnished with a transcript of the hearing in the municipal court, defendant has stipulated that the proofs offered there were sufficient to convict him of violation of section 1.

Defendant seeks a reversal of his conviction on the sole ground that the regulation of “hunting,” including the designation of territorial limits, has been preempted by the State. The issue before us is thus a very narrow one and does not involve the right of a municipality to ban activities which may or may not be concerned with hunting but which directly affect the public safety. See Chester Tp v. Panicucci, 116 N. J. Super. 229, 235-236 (App. Div. 1971).

In Summer v. Teaneck Tp., 53 N. J. 548, 554 (1969), the court in discussing the guidelines to be followed in respect to claims of State preemption, stated:

A municipality may not contradict a policy the Legislature establishes. Auto-Rite Supply Co. v. Mayor and Township Committeemen of Woodbridge, 25 N. J. 188 (1957). Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Even absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field. This follows from the basic principle that local government may not act contrary to State law. But an intent to occupy the field must appear clearly. Kennedy v. City of Newark, 29 N. J. 178, 187 (1959). It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action to preclude the exercise of the delegated police -power. Masters-Jersey, Inc. v. Mayor and General Council of Borough of Paramus, 32 N. J. 296 (1960). Hence the fact that the State has licensed a calling may not be enough to bar local licensure to protect an additional value of local concern. Belleville Chamber of Commerce v. Town of Belleville, 51 N. J. 153, 157 (1968). The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act.

In the absence of an intent to totally preempt the field, a municipality, acting pursuant to its delegated powers, can deal with specific local problems by expanding control in that area so long as there is no conflict with the legislative proscription. Fred v. Mayor, etc., Old Tappan, 10 N. J. 515, 521-522 (1952); Kligman v. Lautman, 98 N. J. Super. 344, 355 (App. Div. 1967), aff’d 53 N. J. 517 (1969). Whether a given field has been preempted by the Legislature is strictly a question of fact. Chester Tp. v. Panicucci, supra, 116 N. J. Super. at 235.

We are in accord with defendant’s contention that section 1 of the ordinance, for violation of which defendant was convicted, conflicts with the public policy of this State and hence is ultra vires and void.

In 1948 the Legislature created an ll-member Eish and Game Conneil in the Division of Pish and Game (now the Division of Pish, Game and Shell Fisheries). N. J. S. A. 13 :1D-4. The Conneil was charged with formulating “comprehensive policies for the protection and propagation of fish, birds, and game animals * * N. J. S. A. 13 :1B-24, 28. The Council was charged with the formulation of a Pish and Game Code for the entire State as follows:

Por the purpose of providing an adequate and flexible system of protection, propagation, increase, control and conservation of fresh water fish, game birds, game animals, and fur-bearing animals in this State, and for their use and development for public recreation and food supply, the council is hereby authorised and empowered to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers such fresh water fish, game birds, game animals, and fur-bearing animals, or any of them, may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof, and may, after first having determined the need for such action on the basis of scientific investigation and research, adopt and from time to time amend and repeal such appropriate and reasonable regulations concerning the same, or any of them, penalties for the violation of which are prescribed by certain of the sections of Title 23 of the Revised Statutes amended herein, as it deems necessary to preserve, properly utilize or maintain the best relative number of any species or variety thereof, at the times, in the manner and to the extent hereinafter provided. The regulations so established shall be called the State Fish and Game Code. [N. J. S. A. 13 :1B-30; Emphasis added]

N. J. S. A. 13 :1B-32 provided that:

Any regulation of the council or amendment thereto adopted pursuant to the provisions of this article which relates to game birds, game animals or fur-bearing animals, after the council has first determined the need for such action on the basis of scientific investigation and research, may apply to all or any part of the State, at the discretion of the council, and may do any or all of the following as to any or all species or varieties of game birds, game animals, and fur-bearing animals:
a. Establish, extend, shorten or abolish open seasons and closed seasons.
b. Establish, change or abolish bag limits and possession limits.
c. Establish and change territorial limits for the pursuit, talcing, or hilling of any or all species or varieties.
d. Proscribe the manner and the means of pursuing, taking or killing any species or variety.
e. Establish, change or abolish restrictions based upon sex, maturity, or other physical distinction. [Emphasis added]

Besides the foregoing the Legislature has enacted other statutes regulating various aspects of hunting. N. J. S. A. 23:3-l et seq. requires that all hunters be licensed, prescribes who may receive a license, and provides for instructional courses in gun safety. Other provisions of Title 23 provide, among other things, for the type of weapons to be used in hunting, the seasons during which hunting is allowed, the days and hours for hunting, what animals are protected and the penalties for trespassing on posted land.

Prior to the adoption of any regulation authorized to be established by it, the Eish and Game Council is required to hold a public hearing, giving 20 days’ notice thereof by filing with the Secretary of State, publishing in the New Jersey Register, and in such other manner as the Council shall determine. N. J. S. A. 13 :1B-33. Upon the adoption of a regulation it is to become effective no sooner than five days after its publication in the New Jersey Register. N. J. S. A. 13 :1B-34. The adoption of any such regulation by the Council is made subject to review by proceedings in lieu of certiorari (now an action in lieu of prerogative writs, R. 4:69-1 et seq.) N. J. S. A. 13 :1B-35.

Erom the foregoing it would appear clear that it was the intention of the Legislature to preempt the field of hunting so as to preclude regulation of that activity by local municipal bodies. See State v. Hackney, 83 N. J. Super. 400, 402 (Cty. Ct. 1964); cf. State v. Ulesky, 54 N. J. 26, 29 (1969); Chester Tp. v. Panicucci, supra.

It follows that defendant’s conviction under section 1 of the ordinance must be set aside.

Reversed and remanded for further proceedings in conformity with this opinion.


author: Lane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FRANK R. KING, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 9, 1971
    Decided November 17, 1971.

      Before Judges Kilkenny, Labkecque and Lane.

      Mr. Stanley G. Van Ness, Public Defender, attorney for appellant (Mr. Joseph A. Abbott, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Dominich J. Ferrelli, Burlington County Prosecutor, attorney for respondent.
   The opinion of the court was delivered by

Lane, J. A. D.

Defendant appeals from tbe denial of his first petition for post-conviction relief, alleging that the trial court erred in failing to refer the petition to the Public Defender as required by B. 3:22-6(a).

On April 3,- 1965 defendant was sentenced on his plea of guilty to three indictments charging him with sodomy to three concurrent indeterminate terms at the Diagnostic Unit of the State Prison Farm, Rahway, the maximum term to be 30 years.

On February 9, 1970 defendant, pro se, filed a petition for post-conviction relief inarticulately alleging violations of his constitutional rights under the Fourteenth Amendment of the United States Constitution.

With the petition was filed a sworn statement alleging indigency on the form prescribed by-the Administrative Director of the Courts. It is perfectly obvious from this sworn statement that in fact defendant was indigent. In both the petition and the sworn statement he requested the appointment of counsel.

The trial court by letter to the defendant dated February 18, 1970 acknowledged the “Application for Post-Conviction Relief” and denied the application, stating:

The defendant’s appearance before the Municipal Court did not result in any prejudice to his subsequent indictment and Guilty plea before the County Judge. At least no reference is made to any facts which would justify that conclusion. No confession was introduced, the validity of which might come into question. His inearceralion for six (6) months before plea and sentence is not unusual since there is no indication that his right to bail was refused. It must be remembered that following his Guilty plea on January 27, 1965, it was not until April 3, 1965 that the Diagnostic Report and Presentence Report were ready for the Court.
Ifor these reasons the Application is denied.

R. 3:22-6 (a) requires that the first petition for post-conviction relief must be referred to the office of the Public Defender if the petitioner’s conviction was for an indictable offense unless the petitioner affirmatively states his intention to proceed pro se. This rule is mandatory. State v. Ellis, 116 N. J. Super. 330 (App. Div. 1971).

The direction to refer the first petition to the office of the Public Defender does not in any way depend upon whether the trial court thinks the petition is meritorious. R. 3:22-9 directs that amendments of petitions for post-conviction relief shall be liberally allowed. As a matter of course the Public Defender may serve and file an amended petition within 25 days after the referral of the first petition to him. It is of advantage to the judicial system to have a first post-conviction relief petition raise all possible issues in existence at the time the petition is heard. Our courts have expressed disapproval of a piecemeal approach to litigation whereby only one of a number of existing issues is determined. Cf. State v. Loray, 46 N. J. 179, 184 (1965) (footnote 1); State v. Jenkins, 32 N. J. 109 (1960).

We should not have to point out that reference of a first petition for post-conviction relief to the office of the Public Defender can be of great assistance to the court. In this ease the issues were poorly articulated and inadequately presented to the trial court. The Public Defender by filing an amended petition will bring all issues that can be raised by the defendant into sharp focus and provide the court with the authorities supporting defendant’s position.

Although both defendant and the State have argued in their briefs the substance of the issues thought to have been raised by the petition for post-conviction relief, we décline to consider those issues because the failure to refer the petition to the Public Defender in the first instance was a fundamental error which denied defendant a full and fair hearing on that petition.

The order denying defendant’s petition for post-conviction relief is reversed. The matter is remanded to the trial court to be proceeded with in accordance with B. 3:22. Upon reference to the Public Defender he will make a complete investigation and file any amended petition under B. 3:22-9 that may be necessary to raise all possible issues upon which defendant might be entitled to relief. Upon filing the amended petition, the matter will be disposed of by the trial court in the manner directed by State v. Odom, 113 N. J. Super. 186 (App. Div. 1971), certif. den. 58 N. J. 331 (1971).