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

text:
    SIDNEY LICHTER, FREDERICK J. JOHNSON, III, GERALD DONIS, ALEXANDER JASMAN, ROBERT SOKOL AND HAROLD A. RAPPAPORT, WHO SUE ON BEHALF OF THEMSELVES AND ALL OTHER CERTIFIED SHORTHAND REPORTERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, v. THE COUNTY OF MONMOUTH, AND ALL OTHER COUNTIES SIMILARLY SITUATED, AND THE TOWNSHIP OF MIDDLETOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY AND ALL OTHER MUNICIPAL CORPORATIONS SIMILARLY SITUATED, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 22, 1970
    Decided April 13, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Michael D. Parren argued the cause for appellants (Messrs. Sating, Moore, O’Mara & Coogan, attorneys).

      Mr. Lawrence A. Carton, III, argued the cause for respondent County of Monmouth (Messrs. Pittsburg, Barnacle, Russell & Carton, attorneys; Mr. John M. Pittsburg, County Counsel; Mr. John G. Colannino, on the brief).

      Mr. Robert II. Otten argued the cause for respondent Township of Middletown (Messrs. Crowell, Crowell & Otten, attorneys; Mr. Whitney Crowell, Township Attorney; Mr. David W. Ciarle, on the brief).

      Mr. Stephen Shillman, Assistant Attorney General, argued the cause amicus curiae {Mr. George F. Eugler, Jr., Attorney General of New Jersey, attorney; Mr. David S. Lit,win, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Plaintiffs, six certified shorthand reporters (reporters), who instituted this action on behalf of themselves and all other reporters similarly situated, appeal from an order of the Chancery Division granting the motion of defendant Township of Middletown (Middletown) for a summary judgment dismissing plaintiffs’ complaint.

The reporters instituted suit against Middletown and the County of Monmouth (Monmouth) to enjoin the installation and use of sound recording devices in juvenile and domestic relations courts, county district courts and municipal courts. After a hearing on cross-motions for summary judgment by the reporters and Middletown, the Chancery Division determined that both defendants have a right to such judgment as a matter of law” and entered an order granting Middletown’s motion.

On appeal from that order the reporters here argue that (1) R. 5:10-6 and R. 6:12-1 and the New Jersey Supreme Court order dated April 1, 1969, requiring the installation of sound recording devices in certain municipal courts, are contrary to law and void, and (2) the rule-making power of our Supreme Court does not extend to the position^ of court reporters.

In pertinent part, R. 5:10-6 states that the Administrator of the Courts “shall provide for the verbatim recording of all hearings and trials in all juvenile and domestic relations courts,” except in certain instances not here relevant, “either by an official or temporary stenographic reporter * * * or by an electronic sound recording device.” A similar provision, applicable to proceedings in all county district-courts, is provided by R. 6:12 — 1. The order promulgated by our Supreme Court on April 1, 1969 requires that

* * * on or before January 1, 1970, provision shall be made for the sound recording of all proceedings in all municipal courts in municipalities having a population of more than 20,000 according to the 1967 population estimates published by the Division of Economic Development of the New Jersey Department of Conservation and Economic Development * * *.

The reporters argue that in 1940 the Legislature, by N. J. S. A. 45:15A-1 et seq., “elevated the 'art and practice’ of shorthand reporting to the dignity of a profession” and thus, as in many other jurisdictions, recognized their individual status to be that of State or public officers or officials. See 82 C. J. S. Stenographers § 2 at 1053-1054. They urge that this rationale is implemented by N. J. S. A. 2A :11-11 which, as originally enacted, provided:

The supreme court shall appoint such number of official stenographic reporters (referred to in this article as reporters), either on a full-time or part-time basis, as may he necessary from time to time to properly perform the work specified in this article for the several parts of each division of the superior court and for the county courts. The supreme court may remove any reporter so appointed at any time for cause and appoint another in his place.
The county judge or county judges, as the case may be, with the approval of the board of chosen freeholders of the county may appoint an official stenographic reporter for the county court of such county * * * . [Emphasis added]

This legislation was amended in 1967 to read:

The Supreme Court shall appoint such number of official court reporters (referred to in this article as reporters), to serve on a full-time basis, as may he necessary from time to time to report proceedings in the Superior Court, the County Courts, and such other proceedings as the Supreme Court may direct. The Supreme Court may remove any reporter so appointed at any time for cause. [Emphasis added]

Plaintiffs misconceive the purport of this legislation. To begin with, N. J. S. A. 45:15A-1 et seq. does not pertain to the method of court reporting but, rather, to the regulation of the official reporting profession inter se. See Statement to Assembly Bill No. 397 (1940); cf. Statement to Senate Bill No. 262 (1969). Moreover, it is plain that N. J. S. A. 2A:11-11 was not enacted to create a vested right in a particular profession but, rather, to allow the Supreme Court to provide for a method of accurate recordation where necessary. Cf. Statement to Assembly Bill No. 876 (1966); compare Statement to Assembly Bill No. 397 (1940); Statement to Senate Bill No. 262 (1969).

At the time this basic legislation was adopted, tape recorders were still in the experimental stage. Note Stewart, Magnetic Recording Techniques, at v (1958). In light of the modern developments of tape recording and the ever-increasing volume of appeals from the nonconstitutional courts', our Supreme Court has determined that stenographic reporters are not “necessary” for the transcription of proceedings in the particular courts governed by the rules and court order here under review.

The use of the word “shall” in the phrase “shall appoint * * * reporters” in N. J. S. A. 2A:11-11 is of no controlling significance because, in order to execute the clear intent of the Legislature, the word “shall” must be presumed to be directory. See Harvey v. Essex County Board of Freeholders, 30 N. J. 381, 392 (1959), for the proposition that “shall” and “may” are held to be interchangeable when necessary to give effect to the language and intent of the Legislature. Furthermore, assuming, arguendo, that the statute does mandate that only reporters be allowed to report proceedings in the Superior and County Courts, it is evident that it does not compel their usage in the courts affected by the challenged rules and court order. As originally enacted, the statute: was not even arguably applicable, and, to the extent that it has become applicable by the 1967 amendment, its' language is manifestly permissive.

Plaintiffs recognize that the Legislature conferred discretion upon the Supreme Court in determining which additional proceedings shall be reported but claim that the statutory enactments did not vest any discretion in the Supreme Court as to “the method of reporting.” It is contended that the dourt rules and order under review, which were not promulgated until after the aforementioned amendment, contravene the legislative intent of the statute. In support of this strained hypothesis, they cite generally irrelevant escerpts from the statement accompanying the 1967 amendment.

In the main, plaintiffs assert that their official positions cannot be classified as practice or pleading within the rationale of Winberry v. Salisbury, 5 N. J. 240, cert. den. 340 U. S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950), and that to consider their positional rights within the court’s rule-making jurisdiction “would be a usurpation of the Legislature’s power to create laws for the protection of its citizens.” We find this argument to be devoid of any rational merit.

This is not a Winberry case. The jurisdiction of the Chief Justice and the Supreme Court over court reporters is not dependent upon the court’s power to supervise practice and procedure “subject to law” but, rather, the power to make rules governing the administration of the courts. N. J. Const., Art. VI, § II, par. 3. Within the meaning and concept of that constitutional provision, whether court proceedings should be recorded and, if so, by what means, is a matter within the ambit of the administration of the courts. The constitutional administrative power is absolute and unqualified, and our Supreme Court has characterized it as the “plenary responsibility for the administration of all courts in the State.” State v. De Stasio, 49 N. J. 247, 253, cert. den. 389 U. S. 830, 88 S. Ct. 96, 19 L. Ed. 2d 89 (1967). See In re Mattera, 34 N. J. 259, 271-272 (1961). See also N. J. Const., Art. XI, § IV, par. 5; cf. N. J. Const., Art. VI, § VII, par: 1. Additionally, compare Kagan v. Caroselli, 30 N. J. 371, 379 (1959), wherein the court observed that “[t]he Constitution places the administrative control of the municipal court in the Supreme Court and the Chief Justice. Art. VI, § 2, par. 3; Art. VI, § 7, par. 1. Thera is no room for divided authority.”

The intent of the 1947 Constitutional Convention was to vest the Supreme Court with the broadest possible administrative authority. Conceptually, such authority encompasses all facets of the internal management of our courts. Cf. Mattera, supra, 34 N. J. at 272. This was made clear by the Committee on the Judiciary which considered it a fundamental requirement that the courts be vested with “exclusive authority over administration.” 2 Proceedings of Che Constitutional Convention of 1947, at 1180, 1183. See also the monograph of Morris M. Schnitzer entitled “Judicial Administration,” Id. at 1651, in which the author listed the court reporters as among the essential nonjudicial officers over whom the court must exercise control and without whom it could not properly function. “Judicial Control Over "Non-Judicial Officers Concerned With the Administration of Justice,” Id. at 1656. Other jurisdictions likewise recognize that court reporting is an administrative matter and that its supervision is routinely administrative. See, e. g., Hydramotive Mfg. Corp. v. Securities and Exchange Com’n, 355 F. 2d 179, 180 (10 Cir. 1966).

We conclude that R. 5:10-6, R. 6:12-1 and the Supreme Court order of April 1, 1969 were adopted pursuant to the court’s broad constitutional power and, accordingly, should be enforced.

Judgment affirmed.


source: Caselaw Access Project

author: Wick, J. S. C.

license: Public Domain

text:
    PROVIDENCE WASHINGTON INSURANCE COMPANY, A CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, AND CHARLES H. WALTER, PLAINTIFFS, v. GLENS FALLS INSURANCE COMPANY, A CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, AND HARRY P. JOHN AND EILEEN M. CAREY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division.
    Decided April 1, 1971.

      Mr. Donald S. Levenson for plaintiffs. (Messrs. Melnilc, Tarter, Muller & Morgan, attorneys).

      Mr. Michael Patrick King for defendant Glens Falls Insurance Company {Messrs. Kisselman, Devine, Deighan and Montano, attorneys).

      Mr. Raymond F. Drozdowski for defendant Eileen M. Carey {Messrs. Brown, Connery, Kulp, Wille, Purnell & Greene, attorneys).
   Wick, J. S. C.

The parties ara seeking a declaratory judgment under N. J. S. A. 3A:16-50 et seq. to determine liability insurance coverage under certain policies issued by Providence Washington Insurance Co. (Providence), which insures Charles Harvey Walter, and Glens Falls Insurance Co. (Glens Falls), which insures Harry P. John. Eileen II. Carey has sued Walter for personal injuries resulting from an accident in which Walter was driving an automobile owned by John. The essential facts have been stipulated and the case was submitted on briefs.

John left his automobile at Fisher Chevrolet to be spot-painted. Fisher did not do such work, so the automobile was taken to Charles H. Walter, t/a Rishel’s Auto Body, which did automobile painting and body repair work. Walter would neither pick up nor deliver vehicles for Fisher.

John’s automobile was left overnight and parked outside Walter’s shop contiguous to his residence. After the shop was closed Walter went on an errand for his wife. Because Walter’s own automobile was not functioning, Walter drove John’s automobile for the errand; the accident occurred while Walter was on his way homei from the errand.

To determine which insurer should afford coverage to Walter the court must interpret the automobile business exclusion clause of John’s automobile liability policy as well as the coverage provisions of Walter’s garage liability policy. Plaintiff asserts that the automobile business exclusion of the Glens Falls policy does not apply to Walter. The exclusion provides that coverage does not apply:

(g) to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, * * *
“automobile business” means the business or occupation of selling, repairing, servicing, storing or parking automobiles; * * *.

Glens Falls seeks to have plaintiff defend Walter solely under the garage liability policy in which Walter is the named insured. One of the risks which Providence assumed was:

Automobile Hazard 1.
(1) The ownership, maintenance or use (including loading and unloading) of any automobile for the purpose of garage operations, and (2) the occasional use for other business purposes and the use for nonbusiness purposes of any automobile owned by or in the charge of the named insured and used principally in garage operations, * *
“garage operations” means the ownership, maintenance or use of the premises for the purposes of a garage and all operations necessary or incidental thereto.

For purposes of this case the court is concerned with clause (2).

Because of the broad interpretation given by our courts to the standard omnibus clause of an automobile liability policy, Walter would at first glance qualify as an additional insured under the policy issued to John. See, e. g., Small v. Schuncke, 42 N. J. 407 (1964); Odolecki v. Hartford Accident & Indemnity Co., 55 N. J. 542 (1970); State Farm Mutual Auto. Ins. Co. v. Travelers Ins. Co., 57 N. J. 174 (1970). But whether exclusion (g) of that policy applies to the facts here is the controlling question so far as coverage under the Glens Falls policy is concerned.

Glens Falls Exclusion

The cases reveal several types of automobile business exclusions. One form states that the policy does not apply to an owned automobile "while used in the automobile business.” Another form states that coverage is not afforded to any person operating an automobile business with respect to any accident “arising out of the operation thereof.” Both of these types of exclusion have been generally construed as relating to the use of the automobile at the time of the accident, that is, was the use of the vehicle at the time of the accident within the scope of the automobile business. See 71 A. L. R. 2d 964 (1960) and 47 A. L. R. 2d 556 (1956).

Plaintiff cites several New Jersey cases referring to one or the other of the exclusions described above. In LeFelt v. Nasarow, 71 N. J. Super. 538 (Law Div. 1962), aff’d 76 N. J. Super. 576 (App. Div. 1962), certif. den. 39 N. J. 86 (1963), the court held that a part-time mechanic who was road testing an automobile he had repaired in his spare time was not using the vehicle in the automobile business within the owner’s policy exclusion. In construing the LeFelt type of exclusion the court was concerned with the use of the vehicle at the time of the accident and not with business or occupation of the person driving it. The exclusion in LeFelt is less inclusive and distinguishable from the exclusion in the Glens Palls policy, which denies coverage to a group of persons engaged in a particular occupation. Thus, the holding of LeFelt and similar eases in no way determine the issue presented here.

In Capece v. Allstate Ins. Co., 86 N. J. Super. 462 (Law Div. 1965) the court said:

In disclaiming coverage, State Farm, * * * relied upon an exclusion in the policy which removed bodily injury coverage from its terms, as to anyone but the named insured, when the car was used in the automobile business. The law is to the contrary. A customer’s automobile which is left in the custody of the proprietor of a service station for servicing or repairs is not being used in the automobile business within the meaning of an exclusion clause such as the one here involved. [Citing LeFelt; at 475]

In Insurance Co. of State of Penna. v. Palmieri, 75 N. J. Super. 350 (Ch. Div. 1962), aff’d 81 N. J. Super. 170 (App. Div. 1963), certif. den. 41 N. J. 389 (1964), this court was concerned with an exclusion where the accident arose out of the operation of a service station. Again the court looked to the nature of the use of the vehicle at the time of the accident: if the use was for a purpose not related to the garage or similar business, then the exclusion as worded would not apply. In dictum the court cited Berry v. Travelers Ins. Co., 118 N. J. L. 571 (E. & A. 1937), to support the conclusion that if a vehicle were being delivered to a garage for repair or returned after repair then the exclusion as worded would apply. Such a phrase is not being interpreted here. The provisions of the Providence and Glens Falls policies are under the scrutiny of this court so that the wording of other policies as applied to different facts are not controlling. Since no reported New Jersey cases have construed the exclusion as phrased in the Glens Falls policy, eases from other jurisdictions will be reviewed briefly.

The briefs cite only one case construing the exact wording of the Glens Falls exclusion. In Northern Assurance Co. of America v. Truck Insurance Exchange, 151 Mont. 132, 439 P. 2d 760 (Mont. Sup. Ct. 1968), the court found that the exclusion applied when the automobile is being returned to the owner because that is part of the business of repairing automobiles. The court rejected the argument that the exclusion of the owner’s policy did not apply because the use of the time of the accident was personal; any personal use was merely incidental to the purpose of repairing the vehicle. Several other eases were found involving the same automobile business exclusion now before this court.

In Dumas v. Hartford Accident & Indemnity Co., 181 So. 2d 841 (La. Ct. App. 1965), the court concluded that the act of returning the automobile to the customer was not within the exclusion. The court relied on the fact that the servicing of the automobile had been completed. In both Northern and Dumas the courts looked to the use of the car or the purpose for driving it at the time of the accident. While the Louisiana court found the clause ambiguous, other courts have not.

In Tindall Pontiac, Inc. v. Liberty Mutual Ins. Co., 441 S. W. 2d 948, 949 (Tex. Civ. App. 1969), an employee of a garage had an accident while the automobile was left for servicing and the court found that coverage under the automobile liability policy “was excluded under the clear and unambiguous terms of said policy.” The court reasoned that

Under the standard automobile policy, a limitation is applied to the coverage of the omnibus policy so as not to extend coverage over to a * * * repair shop, * * * even though such establishment has rightful custody of the vehicle during its operation, maintenance, or use by an employee thereof, [at 949]

The court distinguished Dumas on the facts because the accident there occurred after all repairs had been completed. Actually, the holding of Dumas was rejected under the reasoning of the case which again looked only to the scope of the garage operations.

The most recent case found where the exclusion is the same as here was Universal Underwriters Ins. Co. v. Northwestern National Ins. Co., 306 F. Supp. 437 (S. D. Ill. 1969), where the accident occurred while the automobile was driven by an automobile salesman while returning to the owner a vehicle which had been repaired. The Federal District Court found the language of the exclusion to be “quite clear” and applicable to those facts.

Although all of the above eases are factually distinguishable, one conclusion can be made. A garage owner or repairman is not an agent of the customer but a bailee. A bailment arises when the bailee has physical control of the vehicle, i. e., possession for a special purpose, and the vehicle is to be returned to the bailor or to a third person when the “object of the trust is accomplished, * * Tomko v. Sharp, 87 N. J. L. 385, 387 (Sup. Ct. 1915); J. L. Querner Truck Lines, Inc. v. Safeway Truck Lines, Inc., 65 N. J. Super. 554 (App. Div. 1961), aff'd 35 N. J. 564 (1961). Thus, the status of Walter as a bailee is important to the interpretation of the Glens Rails automobile business exclusion. That the use of the automobile at the time of the accident was for personal reasons did not prevent the exclusion from applying to Walter, who owned a repair shop and only received possession of John’s automobile because it was delivered to Walter for painting. Certainly the intent of the exclusion was to exclude from the policy benefits those persons whose occupation or business is repairing or servicing automobiles. This court has noted that “the purpose of having an ‘automobile business’ exclusion is to protect the company against the greater risks involved in that business than in normal everyday use of a car.” Willis v. Security Ins. Group, 104 N. J. Super. 410, 414 (Ch. Div. 1968).

Plaintiff’s argument repeatedly stresses the use of John’s automobile at the time of the accident: it was being used for a personal errand not connected with the repair shop. The court feels that the wording of the exclusion here does not require such a narrow interpretation. Since the courts have generally found this form of exclusion to be unambiguous, the words will be given their ordinary and usual meaning without any strained or distorted construction to find coverage. Schneider v. New Amsterdam Casualty Co., 22 N. J. Super. 238, 242-243 (App. Div. 1952). If this court were to sustain plaintiff’s position, the automobile business exclusion would be worthless as far as restricting the scope of the coverage to persons other than the owner, and consequently the omnibus clause would be given a construction not intended by the parties to the insurance contract. Such a result would reach beyond the bounds of this particular case.

Again, the exclusion would have little meaning if the owner of a repair shop could step outside, disassociate himself temporarily from his business, and then use a customer’s car which was left in his charge. Therefore the court finds that when an automobile is delivered for repairs, a bailment is created and the owner of the garage is responsible for his negligence in driving the customer’s automobile. The automobile business exclusion, however, is construed to be limited to the facts before the court, i. e., a bailment of a vehicle to a repair shop or similar business, and the court is not implying that the exclusion would apply to a person in the automobile business just because that happened to be the nature of his occupation. The court doubts that such an interpretation was intended by the insurer. The exclusion is valid and applicable to Walter.

Coverage Under the Providence Policy

A garage liability policy such as the one issued to Walter contemplates coverage for vehicles in the charge of Walter because they were being repaired or painted. It is difficult to imagine which articles should be regarded as used in the garage business if they are not nonowned automobiles. in Walter’s possession. John’s automobile was used in the garage because the nature of the business is to repair or paint automobiles. See 93 A. L. R 3d 1047, § 8 (1964).

Walter had no separate automobile liability insurance other than the garage liability policy. Certainly, Providence assumed coverage for Walter’s driving of his own automobiles for personal errands not connected with the garage operations. If Walter could have driven his own automobile and come within the coverage of the Providence policy, it follows that Walter is covered by the same policy when he drives an automobile in his possession in place of his own vehicle. If Walter’s own automobile had been functioning the day of the accident, no doubt he would have been driving his own automobile.

It is the opinion of this court that Walter was using John’s automobile only as a temporary substitute for his own nonfunctioning vehicle. That Walter was on a personal errand at the time of the accident is inconsequential, for the court is not concerned with the nature of the use at that time. Since Providence ■would have afforded coverage for Walter’s own automobile in any event, it can not dodge the consequences of Walter’s driving another car in his charge because of the garage business. If Providence were discharged from responsibility here, the effect would be to release it from an obligation for which it has contracted. The mere happenstance that Walter was driving John’s automobile at the time of the accident is not a valid reason for holding Glens Palis liable to defend the suit by Carey. Walter is covered by the Providence policy and excluded by the Glens Palls policy. Glens Palls has no duty to assume the defense of the Carey suit and is awarded costs for this action.


author: Rauffenbart, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. LAMONT THOMAS, DEFENDANT.
    New Jersey Superior Court Law Division (Criminal)
    Decided April 5, 1971.

      Mr. Steven Perslcie, Assistant Public Defender, for defendant {Mr. Morris R. Goldsmith, County Public Defender, attorney).

      Mr. James McGeary, Assistant Prosecutor, for plaintiff {Mr. Robert McAllister, Prosecutor, attorney).
   Rauffenbart, J. C. C.

(temporarily assigned). This matter is before the court on defendant’s motion to dismiss an indictment charging murder.

On or about June 5, 1969 Eannie Murray was the victim of a robbery and physical wounds apparently inflicted during the commission of that robbery. The defendant was subsequently indicted for the crimes arising out of that incident. The indictment (I 689-68-M) charged atrocious assault and battery, assault with intent to rob and robbery; thereafter, on October 27, 1969, subsequent to an initial plea of not guilty, defendant, with the aid of counsel, entered a reiraxite plea of guilty to the first count, to wit, atrocious assault and battery. The assistant prosecutor indicated at the time of the retraxit plea that the prosecutor would move, at the appropriate time, to dismiss the remaining counts of the indictment. Sentence on the first count followed on December 5, 1969, defendant being sentenced to an indeterminate term in the New Jersey Reformatory; the commitment was directed to the Youth Reception and Correction Center at Yardville. Dannie Murray died on January 23, 1970. Pursuant to a motion made by the prosecutor, an order was signed by the court on September 15, 1970 dismissing the second and third counts of the indictment. Oil October 29, 1970 the grand jury returned the present indictment (I 179-70-S) charging defendant wdth murder. Counsel for defendant now moves, consistent with E. 3 :10-2, to dismiss the present indictment contending that trial upon it is barred by the double jeopardy guarantee’s proscription against prosecution for “same offenses.”

Our Constitution provides that “no person shall, after acquittal be tried for the same offense.” N. J. Const. (1844), Art. I, par. 10; N. J. Const. (1947), Art. I, par. 11. New Jersey’s constitutional guarantee, although narrow in its phraseology, was not meant to restrict the common law protection, but rather to insure against the contention that a defendant may be entitled to immunity from further trial where his first trial ends, not in acquittal, but in jury disagreement or other indecisive disposition. State v. Roller, 29 N. J. 339 (1959); Newark v. Pulverman, 12 N. J. 105 (1953). For the common, law history of the double jeopardy guarantee, see 4 Blackstone, Commentaries 335; State v. Littlefield, 70 Me. 452 (Sup. Jud. Ct 1880); State v. DiGiosia, 3 N. J. 413 (1950).

The courts of this State have employed three distinct tests to determine whether a defendant is threatened with prosecution for the same offense. The “same transaction” test determines what are same offensefe by viewing the underlying act of the wrongdoer and ascribing all the results naturally flowing therefrom to the underlying act. State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833); State v. Rosa, 72 N. J. L. 462 (E. & A. 1905); State v. Mowser, 92 N. J. L. 474 (E. & A. 1919); see also State v. Fitzsimmons, 60 N. J. Super. 230 (Cty. Ct. 1960) and State v. Hoag, 21 N. J. 496 (1956), aff’d 356 U. S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1957).

The “lesser included” offense test holds that the finding of same offense is satisfied when there has been an acquittal or conviction upon a necessary ingredient of a criminal act which is presently threatening the accused with prosecution. State v. Midgeley, 15 N. J. 574 (1954); State v. Greely, 30 N. J. Super. 180 (Cty. Ct. 1954), aff’d 31 N. J. Super. 542 (App. Div. 1954); State v. Fitzsimmons, 60 N. J. Super. 230 (Cty. Ct. 1960); State v. Dixon, 40 N. J. 180 (1968); State v. Wolf, 46 N. J. 301 (1966).

Holding that two acts are the same offenses by the use of the “same evidence” test requires a determination whether the evidence necessary to sustain the second prosecution would have been sufficient to secure a legal conviction on the first prosecution. State v. Midgeley, 15 N. J. 574 (1954); State v. DiGiosia, 3 N. J. 413 (1950); State v. War, 38 N. J. Super. 201 (Cty. Ct. 1955); State v. Hoag, 21 N. J. 496 (1956), aff’d 356 U. S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1957); State v. Leibowitz, 22 N. J. 102 (1956); State v. Francis, 67 N. J. Super. 377 (1961).

Our Supreme Court has held that no test is absolute in its acceptability; in various fact situations one of the various tests may properly be applied. State v. Roller, 29 N. J. 339 (1959).

Our courts have not had occasion to decide what test is to be applied where the victim dies after judicial determination with regard to the initial criminal act, but cases from other jurisdictions are unanimous in holding that where the victim dies after a conviction for the underlying wrongdoing, double jeopardy principles will not bar prosecution for the homicide. Carmody v. Seventh Judicial Dist. Court, 81 Nev. 83, 398 P. 2d 706 (Nev. Sup. Ct. 1965); see 11 A. L. R. 3d 828.

The most cited case is Commonwealth v. Roby, 12 Pick. 496 (Mass. Sup. Jud. Ct. 1832), where defendant wounded his victim and was indicted for felonious assault with intent to kill. After disposition of the assault indictment the victim died. A plea of autrefois convict to bar the homicide indictment was rejected, the court holding that defendant had not previously been in jeopardy for the crime of murder:

The indictment for murder necessarily charges the fact of killing, as the essential and most material fact, which gives its legal character to the offense. If the party assaulted, after a felonious assault, dies within the year and day, the same act, which till the death was an assault and misdemeanor only, though aggravated, is by that event shown to have been a mortal wound. The event, strictly speaking, does not change the character of the act, but is related back to the time of the assault, and the same act, which might be a felonious assault only had the party not died is in truth shown by that event to have been a mortal wound; and the crime, which would otherwise have been an aggravated misdemeanor, is thus shown to be a capital felony. The facts are essentially different, and the legal character of the crime essentially different, [at 504-505]

The difficulty in Roby is determining on what basis the Court determined that the assault and murder were not “same offenses” within the purview of the double jeopardy clause. Application of any and all of the traditional tests would have necessitated a finding that the assault and murder were “same offenses.” An examination of the opinion discloses that the court decided the issue by use of its own test. Notwithstanding dictum, acknowledgment of the same evidence test to determine same offenses, it is clear that the court’s holding was based upon a hybrid test to determine same offenses, or it was based upon an exception to any of the traditional tests.

Not departing from the approach in Roby-, the collected cases indicate that where the victim dies subsequent to a disposition of an earlier indictment charging the crime which is the efficient cause of the victim’s death, a new crime legally and factually distinct has been committed. And although the murder resulted from the same act which constituted the basis of the previous indictment, double jeopardy would not attach. Commonwealth v. Evans, 101 Mass. 25 (Sup. Jud. Ct. 1809); State v. Littlefield, 70 Me. 452 (Sup. Jud. Ct. 1880); Southworth v. State, 98 Fla. 1184, 125 So. 345 (Fla. Sup. Ct. 1929); Medlock v. Commonwealth, 216 Ky. 718, 288 S. W. 670 (Ct. App. 1926); Centers v. Commonwealth, 318 S. W. 2d 57 (Ky. Ct. App. 1958); Carmody v. Seventh Judicial Dist. Court, 81 Nev. 83, 398 P. 2d 706 (Nev. Sup. Ct. 1965); Commonwealth v. Vanetzian, 350 Mass. 491, 215 N. E. 2d 658 (Sup. Jud. Ct. 1966).

The leading federal case is in accord, and not inconsistent with, the rational enunciated in the state decisions. Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1911). In Diaz, defendant wounded his victim; after sentence upon a charge of assault and battery the victim died. The United States Supreme Court, citing as authority Roby and Littlefield, held that defendant should face prosecution for murder:

The homicide charged against the accused in the Court of First Instance was assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter, the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense, [at 448-449, 32 S. Ct. at 251.]

In the present case defendant pleaded guilty to atrocious assault and battery before the victim died. In this situation what test is this court bound to employ in determining “same offenses”? Defendant maintains that the court is bound by the Fifth Amendment to the United States Constitution to employ the same evidence test. Applying this test, evidence necessary to sustain a murder conviction would also sustain a conviction for atrocious assault and battery — prosecution for the murder indictment would then be barred. I do not agree. In 1969 the Fifth Amendment guarantee against double jeopardy was held applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Subsequent to the Benton decision, the United States Supreme Court held that the same evidence test was the proper test in determining what are. same offenses. Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). But where, as here, defendant pleaded guilty to atrocious assault and battery before the victim died, I do not feel bound to employ the same evidence test in determining same offenses. Bather, I rely on the “hybrid” or exception rationale expressed in Roby, Diaz and the other cases collected above. This departure from the same evidence test is not inconsistent with the holding in Ashe. Even the justices ascribing to the same transaction test, which more than any other test protects the accused from piecemeal prosecution, noted that there would be an exception in fact situations not unlike the one before me. therefore hold that atrocious assault and battery and the present charge of murder are not “same offenses” within the scope of double jeopardy.

But the “hybrid” or exception rationale is not the proper test of same offenses when the two remaining counts of the first indictment are considered. Pursuant to the “bargain” entered into between defendant and the prosecutor, the prosecutor successfully moved, after the victim’s death, to dismiss the counts charging assault with intent to rob and robbery. There is no doubt that the prosecutor knew of the supervening fact when the motion was made; the only intelligible reason for such action is that he felt bound by the bargain he had made with defendant. Plea bargaining is not unwholesome and the prosecutor cannot be criticized for this action, but whatever the motive for the dismissal, the State is bound by such dismissal and its effects upon the disposition of this motion. Because the counts charging assault with intent to rob and robbery were dismissed after the victim’s death, the precedent established in Ashe requires that I employ the same evidence test vis á vis those two counts.

Defendant has been indicted under N. J. S. A-2A:113-1 and N. J. S. A. 2A:113-2, the general murder statutes. Included within these general statutes is the so called felony-murder doctrine; that is, a conviction for first degree murder will lie when the victim has been killed during a robbery (an intent to rob is a recognized substitute for the actual robbery). State v. Mathis, 47 N. J. 455 (1966). Applying the same evidence test, evidence sufficient to convict for felony-murder is also sufficient to convict for the robbery or the felonious intent to rob, for the robbery or felonious intent to rob are requisite elements of a felony-murder conviction. As the facts present themselves in this ease, within the purview of double jeopardy, assault with intent to rob, robbery and felony-murder are same offenses. To protect the defendant from prosecution for these same offenses, the State is hereby precluded from presenting its case upon the theory of felony-murder.

Defendant also contends that trial upon the murder indictment is barred by the doctrine of collateral estoppel. Collateral estoppel is an “awkward phrase”; as an element of the general doctrine of res judicata, its roots are found in civil litigation. In such a perspective the doctrine of collateral estoppel is that “where a quantum of fact essential to the judgment is actually litigated and determined by a valid and final judgment; the determination is conclusive between the parties in a subsequent action on a different cause of action.” Restatement, Judgments, § 68(1). Its application in federal criminal law is certainly not novel, United States v. Oppenheimer, 242 U. S. 85, 37 S. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516 (1916), Sealfon v. United States, 332 U. S. 575, 68 S. Ct. 237, 92 L. Ed. 180 (1948); United States v. Kramer, 289 F. 2d 909 (2 Cir. 1961); and its libera] application in this State cannot be doubted. State v. Cormier, 46 N. J. 494 (1966); cf. State v. Hoag, 21 N. J. 496 (1956). See also “Collateral Estoppel in Criminal Cases — A Supplement to the Double Jeopardy Protection,” 21 Rutgers L. Rev. 274 (1956). In Cormier, defendant was acquitted on a conspiracy charge that he and another had unlawfully agreed to obtain loans from banks through false statements regarding his company’s financial condition. He was later tried and convicted on the substantive charge of unlawfully having obtained loans from the same banks through such false statements. At the conspiracy trial the defense was that defendant and his confederate had agreed to obtain the loans but that the loans were made by the banks on the security of certain purchase orders rather than fraudulent accounts receivable, and that the purchase orders were bona fide. Our Supreme Court reversed the conviction on the doctrine of collateral estoppel, convinced that upon a review of the record of the conspiracy trial “the only rational explanation is that the jury accepted the defendant Cormier’s contention that the loans were made by the banks on the basis of bona fide purchase orders actually on hand and that he was therefore not guilty of any fraud.” 46 N. J. at 508-509. A guilty verdict at the second trial was an “impermissible disavowal of the first jury’s determination.” 46 N. J. at 509. The liberal application of collateral estoppel has not only been recognized by the United States Supreme Court, but the same court has held that collateral estoppel is now an ingredient of the Fifth Amendment double jeopardy clause which, since the Benton decision, is binding upon the state courts through the Fourteenth Amendment: “the ultimate question to be determined, then, in the light of Benton v. Maryland, supra, is whether the established rule of federal law embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is.” Ashe v. Swenson, 397 U. S. at 444-445, 90 S. Ct. at 1195.

The doctrine’s application necessitates a record of a previous trial in 'Order that 'a court can determine whether a rational jury has already determined an issue which is also present in the second trial. If the examining court can, from the record, discover what issues have already been determined, those issues cannot be litigated'again. But the prohibition against an issue’s relitigation in criminal law is cognizable only where there has been a determination in defendant’s favor at the previous trial,- for unlike the doctrine in civil litigation, collateral estoppel’s application in criminal cases inures to the benefit of defendant .only.. The State cannot claim that collateral estoppel bars litigation of an issue previously determined in its favor; to do so would permit the State to obtain a conviction without proving all the elements of the crime charged. For example, at the murder trial in the present case the State could, if collateral estoppel were binding on both parties, offer the plea of guilty on the charge of atrocious assault and battery as conclusive proof that the defendant physically wounded Fannie Murray. This issue must be proven even though there has been a previous determination of that issue favorable to the State. Collateral estoppel therefore has no application to or effect upon the previous plea of guilty to atrocious assault and battery.

But there has been a finding favorable to defendant on the previous charges of assault with intent to rob and robbery. The dismissal of the two counts must be treated as a general verdict of acquittal; there have been no proofs advanced and there has been no jury determination. This court is unable to examine a record and determine in which way certain issues have been decided. Consequently, only two issues can be deemed already litigated and decided •— defendant did not assault Fannie Murray with intent to rob her nor did he rob her. Collateral estoppel prohibits the relitigation of these issues. The effect of this prohibition upon the present case is coincidentally the same as that demanded by the doctrine of same offenses, i e., preclusion of conviction upon the theory of felony-murder. Defendant’s contention that collateral estoppel bars prosecution for the murder indictment, beyond that already indicated, is therefore without merit.

       “The Grand Jurors of the State of New Jersey, for the County of Atlantic upon their oath present that Lamont Thomas on or about the 5th day of June, 1969 at the City of Atlantic City in the County of Atlantic aforesaid and within the jurisdiction of this Court, did willfully, feloniously and of his malice aforethought, kill and murder one Fannie Murray, contrary to the provisions of N. J. S. 2A:113-1 and N. J. S. 2A:113-2, against the peace of this State, the Government and dignity of the same.”

      “In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This ‘same transaction’ test of ‘same offenses’ not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience.” (397 U. S. at 453 — 454, 90 S. Ct. at 1199), concurring opinion of Brennan, J., Douglas and Marshall, J. J. joining. Justice Brennan’s footnote No. 7 clearly enunciates the exception, “For example, where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the ‘same transaction’ rule should be made to permit a separate prosecution. See e. g., Diaz v. United States, 223 U. S. 442, 448-449, 32 S. Ct. 250, 56 L. Ed. 500, 503 (1912).” [397 U. S. at 454, 90 S. Ct. at 1199]


author: Yannoff, P. J. D. C.

text:
    EDWIN URDANG, ASSIGNEE OF MONARCH CHRYSLER PLYMOUTH INC., PLAINTIFF, v. PHILIP MUSE, DEFENDANT.
    District Court Essex County
    Decided March 30, 1971.

      Mr. Joseph H. Cerame, attorney for plaintiff.

      Mr. Philip Muse, defendant pro se.

   Yannoff, P. J. D. C.

This case involves the enforceability of an acceleration provision in a retail installment contract in the light of Uniform Commercial Code provisions, N. J. S. 12A:l-203 and 12A:2 — 302, and the equitable powers declared applicable to County district courts in Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459 (1961), and Carteret Properties v. Variety Donuts, Inc., 49 N. J. 116 (1967).

The procedural aspects of the case merit comment. Plaintiff, appearing pro se, claimed a balance of $771.25 after sale of the security, an automobile, under a retail installment sales contract. Default was entered on August 25, 1970. The case was set down for proof on September 30, 1970, when defendant appeared. The case was then adjourned to October 7, 1970. The result of the hearing was that the default was opened and the case adjourned.

On December 18, 1970 I wrote a letter to the parties fixing a date for taking of testimony as to the balance at time of default, tender made by defendant after default, and the commercial setting pursuant to N. J. S. 12A:2-302 of the transaction, for the purpose of aiding the court in ascertaining whether the results in the case would be unconscionable. Thereafter counsel appeared for plaintiff and a hearing was held in which plaintiff was represented by counsel. Defendant still appeared pro se.

At the hearing a representative of the finance company testified. Defendant also testified and was subject to cross-examination.

I find the following facts from the testimony before me: Under date of April 17, 1968 defendant (buyer) entered into a retail installment sales contract with Monarch Chrysler Plymouth Inc., for the purchase of an automobile. The time sales price was $4245.14, with a down payment of $1103.54, leaving a balance of $3141.60, payable in 30 monthly installments of $104.72. Seller assigned to Chrysler Credit Corporation by an assignment which is an integral part of the agreement. Plaintiff obtained the contract by assignment, ■for the sum of $160. The contract contains a default clause which reads in part:

' In the event Buyer defaults in any payment * • * Seller shall have the right at its election to declare the unpaid portion of the Time Balance under said contract to be immediately due and payable. * * * Waiver by Seller of any default shall not be deemed a waiver of any other default. * * *

December 16, 1969, when the 20th installment fell due, defendant defaulted under the contract. At about that date he took the motor vehicle to Washington, D. C., for the purpose of finding employment there, and did not return until the' end of March 1970. The finance company attempted unsuccessfully to find him and had reason to believe that he was out of the State with the motor vehicle. The repossession occurred when defendant returned to New Jersey. His wife at all times remained in the State.

Defendant’s testimony was that after repossession he made a loan from a small loan company and offered to pay Chrysler Credit Corporation $900. In corroboration he produced a note dated April 2, 1970 evidencing a loan of $1000. The finance company employee testified that on April 3, 1970 he received a telephone call from defendant and quoted him a pay-off figure of $1180.71. He stated he could not deny that defendant had offered the $900. He testified also that as of that date the defaulted installments amounted to $266.39, and that repossession costs amounted to $52.77, making a total of $319.16. I find as a fact that defendant offered to pay $900 on account to the finance company to obtain repossession of the vehicle.

The representative of the finance company testified that one of the reasons he refused the tender of $900 was that defendant had been out of the State and that he had difficulty in locating him. He testified also as to a record of late payments prior to January 1970, ranging up to a period of ten days in the most extreme occasions.

The contract provides that removal from the state in which delivery was made for a period of 30 days or more without the seller’s consent constituted an event of default. The contract contains no provision to the effect that the seller may repossess if he feels insecure. I find as a fact that defendant committed a breach of contract in removing the property from the State for a period in excess of 30 days. The finance company was therefore justified both for that reason and for the nonpayment of two installments in its repossession.

I have no doubt that the court may under its equitable powers, as enunciated in Vineland Shopping Center Inc., and Carteret Properties, supra, relieve against forfeiture. This it may do despite the fact that defaults have talcen place which entitled the seller to repossess the vehicle. The essence of the power to relieve against forfeiture is that equity may intervene to mitigate inequitable consequences of a breach. 2 Pomeroy’s Equity Jurisprudence (5th ed. 1941), § 450 at 282.

If there were no default, the case would terminate at that point. But the question remains whether, after default, the finance company had the right to retain possession and sell the vehicle despite defendant’s offer to pay all but $280.71 of the indebtedness. In considering this issue, I must take cognizance of the finance company’s witness’ testimony that the vehicle was worth the balance remaining after crediting the $900. Thus, it is clear that if the finance company had accepted the $900 and retained its lien, it would, in a realistic sense, have been in no jeopardy.

Plaintiff is an assignee and, of course, in no better position than the assignor. The contract in question is a product of the security draftsman’s art. The warranty provisions are similar to those in Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960) — in effect a limitation of the seller’s obligations. There can be m> doubt that here defendant buyer had no more power to negotiate the terms of this contract than did the buyer in Henningsen. There also can be no doubt that, if defendant had read the contract — a pointless effort in view of his lack of bargaining position — he would not have understood it. Henningsen, invalidated the warranty provisions of a contract such as this as against public policy. Here the crucial question is whether the seller’s acceleration option should be enforced and to what extent. •

An acceleration provision is not the law of the Medes and Persians, operating with iron rigidity under all circumstances, but is itself subject to normal, equitable principles, which the court may apply. Vineland Shopping Center, Inc., and Carteret Properties, supra. Thus, taxes paid late, but prior to the commencement of foreclosure, do not trigger the acceleration clause. In Williams v. Evenstein, 2 N. J. 60 (1949), Chief Justice Vanderbilt said:

“The real purpose of the tax default clause in a mortgage is to preserve the mortgagee’s security unimpaired by the existence of unpaid taxes as superior liens on the mortgaged premises”. Ewald v. William Fairchild, Inc., 139 N. J. Eq. 449, 452 (Ch. 1947). The complainants’ security having been restored before their suit was commenced, it would be inequitable in the circumstances to permit them to take advantage of the defendants by the strict enforcement of their legal rights. [At 63]

Where the obligee has engaged in a course of conduct which results in late payment, which would otherwise set off the acceleration clause, the intervention of equitable principles prevents the clause from becoming operative. Balmoral Arms v. Rutkin, 104 N. J. Super. 354 (Ch. Div. 1969); S. D. Walker, Inc. v. Brigantine Beach Hotel Corp., 44 N. J. Super. 193 (Ch. Div. 1957).

This has long been the view in this State. In Sire v. Wightman 25 N. J. Eq. 102 (Ch. 1874) the mortgagor made a late payment of interest which was accepted. Further payments were met promptly and accepted by the mortgagee. Two years after the “default” mortgagee attempted to accelerate. It was held that the acceleration provision was not operative. The court said

His [mortgagee’s] acceptance of the interest which was due in June, 1871, accompanied as it was by his deliberate acknowledgment of the receipt as of the very day on which it had fallen due, was a waiver of the forfeiture to which he had become entitled. (At p. 104)

See also Martin v. Melville, 11 N. J. Eq. 222 (Ch. 1856). As was said in S. D. Walker, Inc., supra,

It is established law that if the mortgagor’s default was the result of the conduct of the mortgagee, a court of equity will relieve the mortgagor from the effect of the acceleration clause. [44 N. J. Super, at 204]

Accord, Freund v. Weisman, 101 N. J. Eq. 245 (E. & A. 1927); and see 79-83 Thirteenth Ave. v. DeMarco, 44 N. J. 525, 535 (1965); Gilbert v. Pennington Trap Rock Co., 135 N. J. Eq. 587, 591 (Ch. 1944).

In 59 C. J. 8. Mortgages § 495 (6) it is said:

Equity will relieve the mortgagor where the mortgagee has been guilty of unconscionable conduct as where the default is caused or induced by the mortgagee’s acts or declarations. Equity may also relieve against acceleration where the default results from accident or mistake, or where strict enforcement of acceleration would impose an unconscionable hardship on the mortgagor and give the mortgagee an unconscionable advantage [At 794]

In Bisno v. Sax, 175 Cal. App. 2d 714, 346 P. 2d 814 (Cal. D. Ct. App. 1960), the court took into account the hardship upon the obligor in barring application of the acceleration clause. It said:

Equity frequently refuses to recognize the express contractural provisions for the security of the loan whore their enforcement would not be consonant with substantial justice. [346 P. 2d at 822]

In Skeels v. Universal C.I.T. Credit Corp., 335 F. 2d 846 (3 Cir. 1964), the finance company loaned money to an automobile dealer on the security of the dealer’s automobile inventory. Periodically it made a physical check of the cars to ascertain the presence of the inventory. It was its practice, when it found cars missing, to allow dealer an opportunity to rectify the deficiency! On the oecalsion which gave rise to the suit it did not do so, but seized and sold the automobiles. The. dealer sued the finance company and recovered both compensatory and punitive damages. The judgment for punitive damages was reversed, but the judgment for compensatory damages was not disturbed. See also Romero v. Schmidt, 15 Utah 2d 300, 392 P. 2d 37 (Sup. Ct. 1964) where the fact that lender’s security was not endangered moved the court to hold that the indebtedness was not accelerated by late tender of both interest and principal. Annotations, 70 A. L. R. 993 and 97 A. L. R. 2d 998, contain numerous examples of application of the same principles.

Both statute and decision have made it clear that the policy of this State is that there be fair dealing in transactions such as this.

The Uniform Commercial Code provides:

(1) if the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the Court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result [N. J. S. 12A:2-302]

It also provides:

Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement. [N. J. S. 12A :l-203]

In Unico v. Owen, 50 N. J. 101 (1967), the Supreme Court voided a contractual provision under which a buyer of consumer goods agreed not to set up defenses against the seller upon the assignment of the contract. Speaking for the court, Justice Francis said:

The policy of our State is to protect conditional vendees against imposition by conditional vendors and installment sellers. See N. J. S. A. 1716 0-1 et seq. [At 124]

He continued:

And section 9-206 in the area of consumer goods sales must as a matter of policy be deemed closely linked with section 2-302, N. J. S. 12A :2-302, which authorizes a court to refuse to enforce any clause in a contract of sale which it finds is unconscionable. We see in the enactment of these two sections of the Code an intention to leave in the hands of the courts the continued application of common law principles in deciding in consumer goods cases whether such waiver clauses as the one imposed on Owen in this ease are so one-sided as to be contrary to public policy. Cf. Williams v. Walker-Thomas Furniture Co., 121 U. S. App. D. C. 315, 350 F. 2d. 445, 448-449 (1965). For reasons already expressed, we hold that they are so opposed to such policy as to require condemnation. [At 125]

Although it cannot be said as a matter of law that this contract was unconscionable at the time it was made, decisions under N. J. S. A. 12A :2-302 are instructive in determining the extent of the obligation of “good faith” imposed by N. J. S. A. 12A :l-203. While the unconseionability referred to in Section 2-302 may be conduct worse in some degree than the lack of good faith prohibited by section 1 — 203, both impose the same basic obligations of fair dealing in commercial transactions. The obligation is especially imperative where one party is at a disadvantage, as was defendant here. Unico, supra.

In Toker v. Perl, 103 N. J. Super. 500 (Law Div. 1968), the court, on the authority of section 2-302, refused to enforce a contract because the price was “exhorbitant,” aff’d 108 N. J. Super. 129 (App. Div. 1970) for other reasons without expressing any opinion as to the application of Section 2-302, Toker v. Westerman, 113 N. J. Super. 452 (Cty. D. Ct. 1970), reiterates the ruling in Toker v. Perl. In Williams v. Walker-Thomas Furniture Company, 121 U. S. App. D. C. 315, 350 F. 2d 445 (D. C. Cir. 1965), a contract with held unconscionable and unenforceable because default as to any purchase entitled the seller to repossess any item sold to same buyer. In Jefferson Credit Corp. v. Marcano, 60 Misc. 2d 138, 302 N. Y. S. 2d 390 (N. Y. Cty. Civil Ct. 1969), the contract was unenforceable because it contained waiver of warranties and defects in car. In Frostifresh Corp. v. Reynoso, 52 Misc. 2d 26, 274 N. Y. S. 2d 757 (D. Ct. 1966), rev. on other grounds, 54 Misc. 2d 119, 281 N. Y. S. 2d 964 (Sup. Ct. 1967), a contract for the sale of a freezer was not enforced because of excessive price. In American Home Improvement Inc. v. MacIver, 105 N. H. 435, 201 A. 2d 886 (Sup. Ct. 1964), unconscionability was one reason for refusing to enforce a contract.

Section 1-203 was the basis of decision in T & W Ice Cream Inc. v. Carriage Barn, Inc. 107 N. J. Super. 328 (Cty. Ct. 1968), where it was construed to require notice to secondary endorsers of a private sale under chapter 9 of the Code.

Here when defendant buyer made his tender of $900, the seller would have been completely secure in returning the automobile and retaining a lien for the balance. The payment would far have exceeded the defaulted installments. Only the acceleration provision gave the finance company a pretext for refusing the offer. On the application of general equitable principles outlined above, defendant should have been permitted to reinstate the contract. Additionally, by its own terms, the acceleration provision did not operate automatically, but at the seller’s option. The Seller’s exercise of the option was not in good faith, and in violation of N. J. S. 12A.T-203.

Had these issues been raised prior to the sale of the security, the finance company could have been required to accept the $900, the car returned to the buyer, and both parties would have received the substance of their bargain. But the transaction cannot be reconstituted. Had the finance company accepted the money offered by defendant almost certainly it would have suffered no loss. Instead of doing so it conducted a sale at which the car was sold for $275. Nor would defendant have lost his car. To require him now to pay a deficiency amounting to almost as much as the sum he offered to pay would indeed add insult to injury. Even if defendant is held to be indebted in the sum of $280.71, the difference between $1180.71 and the tendered $900, plaintiff should credit against that balance the $275 realized by sale of the car.

In sum, the equitable solution is to leave the parties in their present positions. Compare the disposition in Toker v. Westerman, supra. There will, therefore, be a judgment for defendant.


author: Doherty, J. C. C.

text:
    CONTI CAUSEWAY FORD, PLAINTIFF, v. NORMA JAROSSY AND STEPHEN JAROSSY, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, v. THE FIRST NATIONAL BANK OF TOMS RIVER, N. J., THIRD-PARTY DEFENDANT.
    District Court Ocean County
    Decided April 5, 1971.

      Mr. Eugene Jume for plaintiff.

      Mr. Denis J. Corbett of the Ocean County Legal Services, for defendants and third-party plaintiffs.

      Mr. Robert 8. Fisher for third-party defendant.
   Doherty, J. C. C.

(Temporarily assigned). This is an action brought by an automobile dealer, Conti Causeway Ford (Conti), to recover a deficiency due after the sale of a repossessed automobile previously sold by Conti to defendants Norma and Stephen Jarossy. Defendants have counterclaimed for the loss of personal property allegedly in the automobile when it was repossessed, and for damages pursuant to N. J. S. A. 12A:9-507 (1) and brought a third-party claim against The First National Bank of Toms River, N. J. (bank) pursuant to the same statute.

The Jarossys signed a retail installment security agreement with Conti on August 13, 1968 for the purchase of an automobile for a cash price of $3,321.08 with a time price differential of $539.89. After the agreement was entered into, Conti assigned the same to the bank. The Jarossys defaulted under the agreement by failing to pay the installments due in April and May 1970. On May 28, 1970 the bank caused the automobile to' be repossessed in Florida. The automobile was returned to New Jersey and a public sale was scheduled for June 8, 1970. The bank sent notice of the sale to the Jarossys on June 6, two days before the proposed sale. The notice was not received by the Jarossys until June 10, two days after the sale.

The bank was the only bidder at the June 8 sale and purchased the vehicle for $1,300. All of the) parties to this action have stipulated that this amount represents the fair and reasonable value of the vehicle as of the date of the sale. A deficiency resulted in the amount of $258.12 including counsel fees. The bank assigned the) deficiency to Conti, who brought this action.

N. J. S. A. 12A:9-504 (3) requires that the buyer be given reasonable notification of an impending sale of repossessed collateral. The court finds that the bank failed to show that the debtor received reasonable notice prior to the sale. The court must decide, therefore, whether that failure bars plaintiff from recovery of any deficiency resulting from the sale. There does not appear to be any decision on this question by a New Jersey court.

If a deficiency results from an otherwise valid sale, N. J. S. A. 12A:9-504 (2) allows the secured party to collect the deficiency. There is, however, no provision of the Uniform Commercial Code which explicitly denies recovery of the deficiency when there is defective notice.

Prior to the adoption of the Uniform Commercial Code, conditional sales were governed by the Uniform Conditional Sales Act. Under the latter the seller was required to give at least ten days’ written notice of the sale (N. J. S. A. 46 :32-25, repealed L. 1961 c. 120). If a seller failed to comply with this notice provision, he was barred from recovery of the deficiency by the court’s interpretation of N. J. S. A. 46:32-31 (repealed L. 1961 c. 120) as decided in Frantz Equipment Co. v. Anderson, 37 N. J. 420 (1962), and Bergen Auto Co. v. Mattarochio, 58 N. J. Super. 161 (App. Div. 1959).

By contrast, the Uniform Commercial Code does not require a specific time period in which notice must be given. While the Uniform Conditional Sales Act required ten days’ notice, the Code only requires that the notice and thei sale be “commercially reasonable.” N. J. S. A. 12A:9-504 (3). It therefore must be decided whether the. sale was so commercially unreasonable as to bar recovery of the deficiency.

The court finds a brief survey of the cases in this and other states to be most useful:

T & W Ice Cream Inc. v. Carriage Barn, Inc., 107 N. J. Super. 328, 329 (Law Div. 1969), holds that when the debtor seeks damages for lack of proper notice of resale, the burden of proving the reasonableness of the sale is on the seller. However, the court did not decide whether a deficiency judgment could be recovered by the seller.

Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S. W. 2d 538 (Sup. Ct. 1966), holds that the secured party, upon showing a reasonable disposition of the collateral, is entitled to a judgment for the deficiency, and that the debtor was left to hi® remedy set forth under § 9-507 (1) of the Code, the basis for the counterclaim and third-party claim herein.

Cases holding similarly are: Carter v. Ryburn Ford Sales Inc., 248 Ark. 236, 451 S. W. 2d 199 (Sup. Ct. 1970); Weaver v. O’Meara Motor Co., 452 P. 2d 87 (Alaska Sup. Ct. 1969); Abbott Motor Inc. v. Ralston, 28 Mass. App. Dec. 35 (Mass. App. Div. 1964).

In other eases courts have denied recovery of the deficiency where the secured party fails to give adequate notice: Braswell v. American National Bank, 117 Ga. App. 699, 161 S. E. 2d 420 (App. Ct. 1968) (the court held that failure to give proper notice precludes the debtor from exercising his equity of redemption and therefore the secured party cannot recover a deficiency); Associates Discount Corp. v. Cary, 47 Misc. 2d 369, 262 N. Y. S. 2d 646 (Civ. Ct. 1965).

This court is of the opinion that the better rule is the one enumerated in the T & W and Norton cases, supra. The Code does not require the precise notice formerly required under the Uniform Commercial Sales Act. The underlying theory of the Code is to set forth rules for commercial transactions which are commercially reasonable. See N. J. S. A. 12A:9-504, Comment 1.

In the situation where reasonable notice of sale has not been given, the spirit of commercial reasonableness requires that the secured party not be arbitrarily deprived of his deficiency but that the burden of proof be shifted to him to prove that the sale resulted in the fair and reasonable value of the security being credited to the debtor’s account. When that burden has been borne, the resultant deficiency ought to be collectable by the secured party, especially in view of the rights to damages afforded the debtor by N. J. S. A. 12A:9-507. In the case at bar the parties have stipulated that the resale price was fair and reasonable. Thus, the burden of proving commercial reasonabloness has been met by the secured party. Judgment will be entered for the plaintiff on the complaint.

Defendants’ counterclaim and third-party complaint against the bank is based upon N. J. S. A. 12A:9-507(1):

(1) If it is established that the secured party is not proceeding in accordance with the provisions of this Subchapter disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by the failure to comply with the provisions of this Subchapter. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten per cent of the principal amount of the debt or the time price differential plus ten per cent of the cash price. [Emphasis added]

Under this provision the Jarossys are entitled to recover a total of $872, which is the time price differential plus 10% of the cash price. The court is not satisfied that defendants have proven the loss of personal property in the ear at the time of repossession. Additionally, they failed to give notice to the bank of the alleged loss of this personal property, as required by the retail installment security agreement between the parties.

Judgment in the amount of $258.12, the amount of the deficiency, would be allowed plaintiff Conti against the Jarossys, but since the deficiency was assigned by the bank to Conti, Conti took it subject to any defense which was available to the Jarossys against the bank.

The court therefore sets off $258.12 of Jarossys’ $872 recovery against the counterclaim eliminating it. Judgment in the amount of the balance, or $613.88, is entered for the Jarossys against the bank.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. NATHANIEL WADE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division.
    Argued December 22, 1970
    Decided April 13, 1971.

      Before Judges Lewis, Matthews and Miwtz.

      Mr. Samuel L. Biber, assigned counsel, argued the cause for appellant.

      Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph B. J. Oourley, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Defendant Nathaniel Wade appeals from an order of the Passaic County Court, denying his petition for post-conviction relief which was predicated upon the ground that his conviction was “illegal and unconstitutional” for the reason that he was precluded from cross-examining his co-defendant, John Wade, regarding an alleged extra-judicial confession inculpating defendant.

Defendant and his brother, John Wade, were jointly indicted, tried and convicted for the murder of Harry Eckstein. The facts pertaining to the crime as well as to the trial itself are cumulatively detailed in the cases of Wade v. Yeager, 415 F. 2d 570 (3 Cir.), cert. den. 396 U. S. 974, 90 S. Ct. 466, 24 L. Ed. 2d 443 (1969) [herein Fade]; Wade v. Yeager, 245 F. Supp. 62 (D. N. J. 1964), and State v. Wade, 40 N. J. 27, cert. den. 375 U. S. 846, 84 S. Ct. 100, 11 L. Fd. 2d 73 (1963). However, reference to some of the basic background facts will be helpful.

The State’s theory of defendant’s culpability, as set forth in the proofs and as stated in the trial court’s charge, was that defendant aided and abetted his brother in the commission of a robbery which claimed the life of its victim. The State charged that on March 3, 1960 the Wade brothers drove from Connecticut to Paterson, New Jersey to meet James Knox, with whom they conspired to rob Harry Eckstein, a local taverner, who also conducted a cheek-cashing business for the patrons of his father’s tavern.

Shortly before noon on the day of the robbery, Eckstein, having just returned from the bank with a bank envelope containing $5,300 in cash, was accosted by John within a few feet of his father’s tavern. In the ensuing scuffle, Eckstein was shot and killed. Defendant, who was then driving the “getaway car” around the corner, drove by the front of the tavern when John saw him, jumped into the car, took over the wheel and drove away. A bystander, Harrison Tyler, saw a car pulling away from the scene and noticed the first two digits of “31” on the blue and white license plates. On the basis of this information, the police commenced pursuit of the car.

In the course of their flight from New Jersey, the Wade’s car crashed into a retaining wall at the George Washington Bridge; they abandoned the car and fled on foot. Both of the Wades were seriously injured in their subsequent attempts to avoid apprehension and each was hospitalized after his capture. Most of the stolen money was found strewn along their escape route.

On March 33, 1960 defendant signed a confession which he repudiated at trial on the ground that it was induced by demerol, a sedative drug administered by a doctor to ease his pajn, which so critically impaired his will and capacity for self-determination that he was unaware of having confessed to the crime. John was also alleged to have confessed to the crime, but he, too, repudiated his "confession,” insisting that he never made the unsigned confession of March 9, 1960 which the State introduced into evidence as his acknowledgedly true, voluntary and complete statement.

Defendant denied participating in the robbery, and John claimed he was acting in self-defense when Eckstein was killed. They testified that they had come to Paterson for separate business dealings — defendant to purchase an interest in a tavern, and John to sell a revolver. John stated that he had agreed to sell Eckstein the gun, and when the latter refused to pay after delivery, a quarrel occurred and decedent drew the gun which accidentally discharged during a struggle. Defendant testified that he was driving around the corner near the tavern when he noticed the scuffling and pulled up, whereupon John got behind the wheel and drove away.

On March IS, 1961, two days after the completion of a SY-day trial, the jury found the Wades guilty of first degree murder with a recommendation of life imprisonment. Oil his appeal to our Supreme Court, defendant’s conviction w'as affirmed.

Since the date of conviction defendant has initiated no less than 16 legal proceedings, while his brother, who did not directly appeal his conviction, has instigated 15 separate proceedings. These several actions, principally in the nature of habeas corpus and post-conviction relief, dealt with a variety of alleged errors and have run the gamut of our State and federal judicial systems. The present appeal is based upon several arguments which can appropriately be considered under three points:

(1) John’s denial of having made a confession, implicating defendant, which was admitted into evidence at their joint trial, deprived him of his right to confront witnesses against him; the jury was prejudicially permitted to consider such inculpating statements and, accordingly, his trial was fundamentally unfair and violative of due process.

(2) In the denial of defendant’s most recent application for post-conviction relief, the trial court erred in predicating its decision on the basis that the grounds upon which defendant relied should have been asserted in a direct review of the judgment of conviction, that they were not raised in prior post-trial proceedings, and that defendant’s petition failed to recite that a denial of relief pursuant to the bar imposed by R. R. 3:10A-4 (now R. 3:22-4) would contravene fundamental justice or the New Jersey Constitution.

(3) In view of the substantial and meritorious constitutional issues he sought to raise in that proceeding, he should have been granted the right to counsel.

I

Defendant frames the principal issue of this appeal thusly:

* * * In a joint trial for murder, where an extrajudicial statement attributed to the co-defendant (John Wade) is admitted in evidence but the declarant (John Wade) denies making the statment which the State has introduced and which implicates the particular defendant involved herein (Nathaniel Wade) as well as the declarant, is the defendant (Nathaniel Wade) denied his right to confrontation guaranteed by the Sixth Amendment?

His position, naturally, is that the answer to this query should be affirmative.

He argues that John’s witness-stand denial of having made a confession which incriminated himself and defendant, deprived him of his Sixth Amendment right to confront witnesses in violation of the rule of Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In that case, decided after defendant’s trial but retroactively applicable to it, Roberts v. Russell, 392 U. S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100, reh. den. 393 U. S. 899, 89 S. Ct. 73, 21 L. Ed. 2d 191 (1968), the court repudiated the rule of Delli Paoli v. United States, 352 U. S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957), and held that a defendant’s Sixth Amendment right might bo transgressed if a. co-defendant’s confession, implicating the defendant, were admitted at their joint trial notwithstanding the trial judge’s cautionary instruction to the jury that the confession shall not be used against him.

More specifically, defendant contends that although his opportunity to cross-examine John was technically available to him, it was so effectively frustrated by John’s denial, that his Sixth Amendment right could not possibly have been satisfied. In support of this argument he relies heavily upon Bruton’s reference to Douglas v. Alabama, 380 U. S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965), 391 U. S. at 127-128, 88 S. Ct. 1620, and upon Townsend v. Henderson, 405 F. 2d 324 (6 Cir. 1968), and Cook v. Sigler, 299 F. Supp. 1338 (D. Neb. 1969), contending that the latter cases make it clear that the right to confrontation is not a mere procedural technicality and that it can only be satisfied by an adequate opportunity to effectively cross-examine witnesses against him. Accord, O’Neil v. Nelson, 422 F. 2d 319 (9 Cir), cert. granted 400 U. S. 901, 91 S. Ct. 136, 27 L. Ed. 2d 137 (1970); West v. Henderson, 409 F. 2d 95 (6 Cir. 1969); and United States v. Zentgraf, 310 F. Supp. 268 (N. D. Cal. 1970). Contra, Wade, supra; Baker v. Wainwright, 422 F. 2d 145 (5 Cir.), cert. den. 399 U. S. 927, 90 S. Ct. 2243, 26 L. Ed. 2d 794 (1970); see United States v. Insana, 423 F. 2d 1165 (2 Cir.), cert. den. 400 U. S. 841, 91 S. Ct. 83, 27 L. Ed. 2d 76 (1970); cf. United States ex rel. Hundley v. Pinto, 413 F. 2d 727 (3 Cir. 1969), cert. den. 398 U. S. 940, 90 S. Ct. 1849, 26 L. Ed. 2d 274 (1970). See also Santoro v. United States, 402 F. 2d 920 (9 Cir. 1968), cert. den. 400 U. S. 849, 91 S. Ct. 58, 27 L. Ed. 2d 86 (1970), and State v. Gardner, 54 N. J. 37 (1969).

We agree that the right to confront witnesses is not a mere procedural technicality; however, we disagree wtih defendant’s contention and incline toward the contrary rationale, especially that expounded in Wade, supra, as the better reasoned approach. Inasmuch as we find that decisión to be controlling, the folio-wing quotation from its holding, which decided the precise issue here under consideration, regarding John, is relevant.

At the joint trial of the Wades, Nathaniel’s confession was offered by the State and over his objection was admitted in evidence against him. The jury was instructed, however, under the doctrine of Delli Paoli v. United States, 352 U. S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957), that the confession was not to be considered against John. Nathaniel later took the stand in his own defense and while admitting that the confession bore his signature, claimed that it was obtained when his mind was clouded by the effects of the Demerol, his physical injuries and the suffering imposed by the travels of the day, and that when he signed the paper he thought it was merely a consent to be photographed. In cross-examination of Nathaniel, the prosecution read his confession item-by-item, followed in each instance by his denial. John did not cross-examine his brother.

Since Nathaniel already had denied the truthfulness as well as the voluntariness of the confession, which had made John the chief culprit, John asserts that so far as he was concerned he had in fact no opportunity for effective cross-examination of Nathaniel. There existed, he asserts, only the appearance of an opportunity for confrontation of Nathaniel because at the most John could expect no more on Nathaniel’s cross-examination than a reiteration of the testimony he had given on direct examination and on cross-examination by the state that his confession implicating himself and John was not truthful or voluntary.

In Bruton, where DelU PaoU was overruled, it was held that in a joint trial the introduction against a co-defendant of his confession which also implicates the defendant deprives the defendant of his Sixth Amendment right of confrontation, where the co-defendant has not taken the witness stand, because the defendant could not cross-examine him, and a cautionary instruction to the jury to consider the confession only as against the co-defendant was held to be ineffective.* The evil at which Bruton struck was the likelihood that the co-defendant’s confession might percolate into the minds of the jurors despite a cautionary instruction. The Supreme Court did not intend in Bruton to invalidate all joint trials in which a co-defendant’s confession is admitted against him. Where confrontation is available it matters not that the defendant finds it unnecessary to cross-examine his co-defendant because he has already said on direct examination or on cross-examination by the prosecution all that the defendant could possibly have expected to achieve by cross-examining him. It might, of course, be said that in every joint trial, even where there is confrontation and the co-defendant can be cross-examined by the defendant regarding the co-defendant’s confession which implicates the defendant, there is nevertheless inevitable prejudice to the defendant that cannot adequately be met by cross-examination. But we cannot view Bruton as expressing sub silentio a doctrine which would declare all joint trials invalid whenever a co-defendant has given a confession which implicates the other defendant, even though both defendants, as here took the stand and there is full opportunity to cross-examine the co-defendant who made the confession. We do not feel at liberty to extend its holding to what may appear to be the logical next stop of declaring all such joint trials inevitably unconstitutional for lack of due process.*

John’s choice not to cross-examine Nathaniel regarding the confession does not destroy the reality that Nathaniel was available for that purpose. The right of confrontation is satisfied where there is the opportunity for cross-examination and does not require that the opportunity be exercised.* If John’s cross-examination of Nathaniel could not have been of any use to John, this is only because Nathaniel had already given John the benefit on his direct examination and cross-examination by the state of the disavowal of his confession which John normally might have hoped to achieve by cross-examination. That it came voluntarily from Nathaniel instead of being wrung from him on cross-examination shows only that cross-examination was unnecessary and not that it was unavailable.

We hold, therefore, that John suffered no deprivation of his constitutional right of confrontation which made the admission of Nathaniel’s confession constitutionally invalid as to John.* [415 F. 2d at 571-573]

However, even if Wade were not entirely controlling, we find that, in light of the record, any Bruton error was “harmless beyond a reasonable donbt.” Harrington v. California, 395 U. S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 reh. den. 386 U. S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Macon, 57 N. J. 325, 338 (1971); cf. Dutton v. Evans, 400 U. S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).

II

Defendant argues that Bruton was decided long after his conviction and the affirmance thereof, and therefore he could not possibly have raised the Bruton issue either on direct appeal or in his previous post-trial proceedings. In effect, defendant challenges the trial court’s reasons for denying post-conviction relief, but it should be noted that “appeals are taken from judgments or orders and not from reasons assigned.” Janiec v. McCorkle, 52 N. J. Super. 1, 21 (App. Div. 1958), cert. den. 362 U. S. 944, 80 S. Ct. 811, 4 L. Ed. 2d 772 (1960), and 365 U. S. 804, 81 S. Ct. 470, 5 L. Ed. 2d 461 (1961). Inasmuch as the relief sought was properly denied, for the legal reasons enunciated in Wade, supra, we need not belabor the procedural reasons expressed by the trial court in buttressing a finally correct determination.

Ill

Defendant properly urges that in view of the meritorious nature of the grounds he asserted in his petition for post-conviction relief, counsel should have been assigned, notwithstanding the fact that he had on prior occasions sought post-conviction relief, see State v. Marshall, 91 N. J. Super. 346, 349 (App. Div. 1966); R. R. 3:10A-6(b); R. 3:22-6 (b). In any event, defendant suffered no prejudice. He is here represented by assigned counsel who has raised before this court all the issues which could have been heard at the post-conviction relief hearing had he been represented there by counsel.

The instant order denying post-conviction relief is affirmed.

Every book must have its final chapter. So, too, in litigation there must be a terminal point. Defendant had a fair trial and the record reveals his guilt beyond any shadow of a doubt. During the past ten years he has had more than a fair indulgence, under our judicial system, in appeals and post-trial reviews; somewhere along the line there must be a time to call a halt.

      Asterisks signify omitted footnotes.

      Asterisks signify omitted footnotes.