author: McGann, J. C. C.

text:
    THE STATE OF NEW JERSEY v. CHARLES FISHER, ET AL., DEFENDANTS. THE STATE OF NEW JERSEY, v. GEORGE LAUDISI, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division — Criminal
    Decided October 23, 1970.

      Mr. Bobert A. Googan for defendants Fisher and Laudisi.

      Mr. Thomas J. Smith, Jr., Assistant Prosecutor, for the State.
   McGann, J. C. C.

(temporarily assigned). Similar motions were filed in each of tire above matters. They were consolidated for argument and decided the same day as the argument, to avoid trial delays. Because defense counsel indicated that, if convicted, each defendant would appeal both the conviction and this pretrial decision, the court indicated that an opinion would be filed setting forth the reasons for the denials.

Defendant Eisher was indicted, along with four others, for armed robbery, breaking and entering with intent to rob, conspiracy to commit robbery, and conspiracy to break and enter with intent to rob. Pursuant to an appropriate discovery order defendant received a copy of the transcript of the grand jury minutes containing the testimony leading to his indictment. An investigating officer, one of the victims, a neighbor and a sixth conspirator, Henry 0. Brandimarte, testified. The testimony of Brandimarte supplied the identification of the five defendants. There was also testimony from a State Police detective who coordinated the investigation. At the close of his testimony the following appeared:

MR. APPLEGATE: Thank you, Detective.
JUROR: Gould I ask an off-the-record question?
MR. APPLEGATE: Off the record.
(Discussion off the record)
EXAMINATION BY THE GRAND JURY:
Q. Did they make any statement?
A. These other individuals? None of them are aware that this investigation has proceeded to the point other than Henry 0. Brandimarte.
Q. What is he getting in consideration of this leniency as the State’s witness?
A. Just the State’s witness, from my understanding.
Q. Was there any identification from Mr. Saggese of any of the individuals?
A. No. He was shown photographs, that was Mr. Saggese, and Mr. Samuel Oanneto; and they were unable to pick out any of the photographs of the individuals involved.
Q. They were all masked?
A. Yes.
Foreman: Any other questions?
Grand Jury: (No response).

Laudisi was indicted along with three others, for receiving stolen goods and for conspiracy to steal the goods. The “off the record” discussion took place after the grand jury had heard testimony from the investigating officer. That testimony indicated that Laudisi had been arrested for shoplifting and that after his arrest the complicity of the other three appeared, leading to the charges against all four. When the investigating officer completed his testimony the following colloquy appears:

MR. KEUPER: Any question you want to ask the witness?
JUROR: This is conspiracy to commit a crime. It is not —
MR. KEUPER: Off the record.
(Discussion off the record.)
BY MR. KEUPER:
Q. There is a charge of theft against Laudisi?
A. Yes.
Q. Shoplifting. And the other is possession of stolen property.
MR. KEUPER: They can’t prove they stole it.
JUROR: Isn’t there a charge of theft there?
MR. KEUPER: No. No.
Q. What happened to the charge of shoplifting against Laudisi?
■A. It was held over to go with the rest of these.
Q. Beg your pardon?
A. He was held over at the Preliminary Hearing. The Judge sent it up to the Grand Jury.
MR. KEUPER: You have no charge under the disorderly persons act. So you are only concerned — Do you have any other questions you want to ask the witness?
(No response)
MR. KEUPER: All right.
(Witness excused.)

In each case the defendant moved to obtain the “off the record” remarks before the grand jury. Fisher asserts that he is entitled to know, pretrial, what promises, if any, were given to Brandimarte in return for his testimony.

In Laudisi defendant is curious as to the subject matter of the “off the record” discussion, although he cannot point to any specific area in which that information might aid his defense.

Assuming for the purpose of this opinion that there might be some competent procedure whereby the “off the record” discussions could be reproduced, and passing over the question as to whether defendants have demonstrated a “particularized need” for this information, Dennis v. United States, 384 U. S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966), the basic question is a policy one —■ should such discussions be disclosed to defendants? We determine that they should not.

Initially it should be clear that such information is not necessary for a motion directed to the sufficiency of the basis for the indictment. Based on what was before it — in the record — the grand jury either had probable cause to indict, or it did not. State v. Ferrante, 111 N. J. Super. 299 (App. Div. 1970). Cf. State v. Chandler, 98 N. J. Super. 241 (Cty. Ct. 1967); State v. Costa, 109 N. J. Super. 243 (Law Div. 1970).

R. 3:6~7 sets forth the policy of this State that “except as otherwise provided by R. 3:13 — 3 and R. 3:17, the requirement as to secrecy of proceedings of the Grand Jury shall remain as heretofore, * * *.”

R. 3:17 applies to grand jury minutes in a trial situation. R. 3:13-3 permits defendant to obtain copies of his own testimony before the grand jury as a matter of right, and to obtain copies of the grand jury testimony of co-defendants and other witnesses unless the State can show good cause to the contrary.

Secrecy of grand jury proceedings, “as heretofore,” traditionally has been applied to the pre-indictment stage. The reasons for such secrecy, set forth in United States v. Rose, 215 F. 2d 617, 628-629 (3 Cir. 1954), and quoted with approval in State v. Clement, 40 N. J. 139, 143 (1963), are as follows:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

Once an indictment has been returned against a particular person the first reason no longer has logical validity; nor does the last clause of reason (2), and to prevent persons subject to indictment or their friends from importuning the grand jurors.” Our Supreme Court has weighed the dangers of subornation of perjury and of discouraging prospective witnesses from freely testifying as to commission of crimes set forth in reasons (3) and (4), and found the desirability of disclosure to he an overriding policy consideration. B. 3:13— 3(a)(3) and B. 3:13-3(e) (3); State v. Farmer, 48 N. J. 145 (1967). Reason (5) continues to be a valid basis for secrecy where an indictment is not returned and falls, where the sufficiency of the basis for the indictment is challenged by the defendant. B. 3 :10-2 and 3.

The question thus presented is whether the court should enlarge the present pretrial discovery rule to permit a defendant to inquire into the nature of “off the record” comments before a grand jury or, for that matter, “on the record” comments which are not the testimony of defendant, co-defendants or witnesses. The simple answer is that a trial court has no power to enlarge the rule. More basic than that, however, is a policy consideration. Public policy requires that the rule of discovery not be so enlarged.

Adverting to the second reason for secrecy set forth above, i. e.., “to insure the utmost freedom to the grand jury in its deliberations,” it remains as a matter of unshaken public policy. If the discussions of grand jurors among themselves or with the prosecutor (B. 3 :6-6 (a)) are to he exposed to the prying curiosity of a defendant, the freedom of deliberations of the grand jurors obviously would be inhibited. Grand jurors and the prosecutor are privy to many matters under broad investigation which might come up in discussion as the result of a witness’ testimony or of a grand juror’s inquiry and yet not have an essential relationship to a particular indictment. Cf. in Re Essex County Grand Jury, 110 N. J. Super. 24, 32 (App. Div. 1970). The historic value of the grand jury system has been its freedom of inquiry — freedom from threats of violence or retribution, freedom from political pressures. State v. Smith, 102 N. J. Super. 325, 340 (Law Div. 1968); State v. Beck, 56 Wash. 2d 474, 349 P. 2d 587 (Wash. Sup. Ct. 1960), aff’d sub nom. Beck v. Washington, 369 U. S. 541, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962); Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 399, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (1959).

So long as. there is available to a defendant, the testimony of witnesses, himself and his co-defendants, he is in a position to test the adequacy of the indictment. Motive in seeking the indictment is not in issue. Therefore, comments of grand jurors or prosecutors are not and should not be available to him. State v. Borg, 8 N. J. Misc. 349 (Sup. Ct. 1930).

Defendants here argue that such “off the record” discussions are important to their evaluation of whether there was grand jury “misconduct” in returning the indictment. State v. Chandler, 98 N. J. Super. 241 (Cty. Ct. 1967); State v. Ferrante, 111 N. J. Super. 299 (App. Div. 1970). “Misconduct” bears only on the question of probable cause of lack of it, and for that one must look to the testimony Which was heard. Assume a vindictiveness on the part of the prosecutor or grand jurors. Assume that an overzealous prosecutor was “out to get” a particular accused; assume he told a grand jury that they should indict, no matter what; assume the grand jurors are inflamed with public indignation — those considerations have no effect on the basic inquiry, which is whether, on the testimony before, it, the grand jury had probable cause to return the indictment it did. State v. Grundy, 136 N. J. L. 96, 99 (Sup. Ct. 1947); State v. Beck, supra, 349 P. 2d at 389-392.

Defendant argues thei applicability of People v. Benin, 186 Misc. 548, 61 N. Y. S. 2d 692 (Gen. Sess. 1946). In that case, prior to presenting witnesses to the grand jury, the district attorney admittedly had addressed the jurors for an hour concerning the case. By way of dictum the trial judge held such “off the record” colloquy to be improper and indicated that he considered it to be grounds for dismissal of the indictment. As indicated above, this court disagrees with that reasoning. See also State v. McFeeley, 136 N. J. L. 102, 111 (Sup. Ct. 1947); State v. Beck, supra. Annotation, 20 A. L. R. 3d 98 (1968).

For the foregoing reasons the motions are denied.


source: Caselaw Access Project

author: Camakata, J. S. C.

license: Public Domain

text:
    IN THE MATTER OF THE ADOPTION OF “E”.
    Essex County Court Probate Division
    Decided November 2, 1970.

      Mr. David M. Beckerman, for plaintiffs adoption applicants.

      (Messrs. Beckerman, Franzblau, & Cohen, attorneys).

      Mr. Edward Temer, as intervenor, for Children’s Aid & Adoption Society.
   Camakata, J. S. C.

The issue presented for determination is whether adopting parents who do not believe in the existence of a Supreme Being should be permitted to adopt a child 11 month of age.

Plaintiffs, husband and wife, in 1965 applied to the Bureau of Children’s Services of the New Jersey Department of Institutions and Agencies seeking to adopt a child. They informed the Bureau that they had no religious affiliation and were not members of any organized church.

Because of plaintiffs’ lack of religious affiliation, the Bureau would not consider them as eligible adoptive1 parents — the Bureau relying in part on its Children’s Manual, volume 2, 5245-31, entitled “Religious.”

At that time the Bureau required each applicant for adoption to designate their religious affiliation and made it mandatory that a religious reference be obtained from a religious leader of the sect to which they belonged.

In February 1966 plaintiffs instituted proceedings in the Appellate Division alleging that this requirement was illegal and in violation of the New Jersey and Federal Constitutions. By stipulation entered October 4, 1966 the suit was dismissed. Thereafter, the regulations of the Bureau of Children’s Services were changed. The pertinent part now provides as follows:

5.23 — Religion of applicants

Opportunity for religious or spiritual and ethical development of the child should receive full consideration in the selection of adoptive homes. Lack of religious affiliation or of a religious faith, however, should not be a bar to consideration of any applicants for adoption. (2.6, 4.7).
Agencies under religious auspices are free to stipulate requirements consistent with their faith and practice, and that of their clients.
When prospective adoptive parents are identified with a religious faith group, a clergyman of their religious faith may be consulted in order to secure his evaluation of the religious factors.
Couples in which the husband and wife have different religious faiths should not be denied consideration for adoptive placement on this account alone. It is necessary to evaluate in each case what their religious faiths and particularly the difference in religious faith means to them, and how this difference may affect the rearing and development of a child. [Emphasis added]

On July 11, 1967 plaintiffs obtained a male child D, then one month old, from the Children’s Aid and Adoption Society of New Jersey. The report of the Society to the court stated that plaintiffs were not religiously affiliated. However, the Society recommended the adoption, and it became final on September 10, 1968.

■ On June 27, 1969 plaintiffs received from the Children’s Aid and Adoption Society another child, E, born on June 19, 1969. E and I) are now residing with plaintiffs. The; Society in its report to the court stated: “Plaintiffs have no church affiliation however the agency has found them to be people of high moral and ethical standards.”

They recommended to the court her adoption.

At E’s hearing on August 25, 1970, the court questioned plaintiffs as to their religious affiliations. They testified they had no belief in any religion and did not believe in the existence of a Supreme Being. The court must consider the physical and spiritual welfare of the child. 2 Am Jur. 2d, Adoption § 64.

The Declaration of Independence refers to: “Nature’s GOD * * * Creator * * * The Supreme Judge of the World * * * Divine Providence.” The founders of our country were most sympathetic to the fundamental belief' in the existence of a God.

In Zorach v. Clauson, 343 U. S. 306, 313, 72 S. Ct. 679, 684, 96 L. Ed. 954, 962 (1952), Mr. Justice Douglas speaking for the court said: “We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses.”

Supreme Being has been defined as “A Supreme Being is God.” — Webster’s 7th New Collegiate Dictionary.

God has been defined as “The Supreme Being is the eternal infinite spiritual creator and sovereign of the universe.” 38 C. J. S. at 935. See also United States v. Seeger, 380 U. S. 163, 174-185, 85 S. Ct. 850, 858-863, 13 L. Ed. 2d 733, 741-748 (1965).

After the hearing the court granted the request of the Children’s Aid and Adoption Society to intervene in these proceedings.

Courts should be loath to intervene in matters of religion. Donahue v. Donahue, 142 N. J. Eq. 701 (E. & A. 1948). That case involved a matrimonial action where1 both parents sought the custody of two children born of the marriage. The father sought to have the children reared in a faith of his selection. See also T. v. H., 102 N. J. Super. 38 (Ch. Div. 1968), aifd. on other factual grounds, 110 N. J. Super. 8 (App. Div. 1970). These eases are distinguishable from the instant one. In Donahue, the custody of natural-born children was involved, whereas here it is the placing of a child by adoption into the custody of plaintiffs.

N. J. S. A. 9:3-17 et seq., relating to adoptions, is silent as to any religious requirements of adopting parents. The only guidelines are those set forth in the Bureau of Children’s Service requirements, 5.23, supra.

N. J. Const. (1947), Art. I, par. 5, provides:

No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.” [Emphasis added]

Plaintiffs’ right to adopt a child is subject to court approval as to whether the best interests of the child would be promoted by permitting the adoption. There is no absolute right of adoption — it is a privilege. Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852, 855-856 (Sup. Ct.) (1958); Eggleston v. Landrum, 210 Miss. 645, 50 So. 2d 364, 23 A. L. R. 2d 696 (Sup. Ct. 1951).

The welfare of the child is the paramount consideration in controlling the discretion of the court. In re Jacques, 48 N. J. Super. 523, 533 (Ch. Div. 1958). This paramount consideration supercedes any right the plaintiffs have in seeking the adoption.

N. J. Const. (1947), Art. I, par. 3, in part provides:

No person shall be deprived of the inestimable privilege of worshiping Almighty God, in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obligated to pay tithes, taxes, or other rates for buildings or repairing any church or churches, place or places of worship, or for the maintenance of any ministers, or ministry, contrary to what he believes to be right or has deliberately voluntarily engaged to perform. [Emphasis added]

N. J. S. A. 2A:4-3 states:

• It is hereby declared to be a principle governing the law of this state that children under the jurisdiction of said court are wards of the state, subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them." [Emphasis added]

E is the court’s ward. The court is concerned with the1 dictates of the child’s conscience. The court has the right and duty under either the cited statute or under the doctrine of parens patriae to carry out the constitutional privileges and rights afforded to E, namely, “the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience.”

In Torcaso v. Watkins, 367 U. S. 488, 495, 81 S. Ct. 1680, 1683-1684, 6 L. Ed. 2d 982, 987 (1961), Torcaso was appointed, to the office of notary public; he was refused a commission to serve because he would not declare his belief in God. The Declaration of Eights of the Maryland Constitution provided that “no religious test ought ever to be required as a qualification for any office of profit or trust in this state, other than a declaration of belief in the existence of God.” [Emphasis added] The court held this provision unconstitutional in that it invaded Toreaso’s freedom of belief and religion. The court stated that neither a state nor the federal Constitution can constitutionally force a person

To profess a belief or disbelief in any religion * * * Tnor] impose requirements which aid all religions as against non-believers and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs, [at 495, 81 S. Ct. at 1683]

Torcaso was of age to make his own decision as to his belief or nonbelief in God.

In the present case E is of tender years. The decision of the child to form a belief or nonbelief in a Supreme Being must await the time when it has the maturity, understanding and independent volition to do so. In Jacques, supra, the court said

* * * It is the instinct of a child to attach itself and cling to those who perform toward it the parental office, and they become endeared to it by ministering to its dependence. [48 N. J. Super. at 533]

The child should have the freedom to worship as she sees lit and not be influenced by parents or exposed to the views of prospective parents who do not believe in a Supreme Being.

The court concludes that the best interests of E will not be promoted by granting the adoption. Accordingly, plaintiffs’ application to grant the adoption of Eleanor is denied.

The child is to be returned to the Children’s Aid and Adoption Society for further action by it. N. J. S. A. 9 :3-27(D).


author: Mintz, J. A. D.

text:
    ENGLISHTOWN AUCTION SALES, INC., ETC., PLAINTIFF-RESPONDENT, v. MOUNT VERNON FIRE INSURANCE COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, ET AL., DEFENDANTS, AND QUAKER AGENCY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 22, 1970
    Decided November 24, 1970.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Charles W. Cipolla, attorney for appellant Quaker Agency, Inc.

      Messrs. Stout, O’Hagan, DeVito & Hertz, attorneys for respondent (Mr. William J. O’Hagan, Jr. on the brief).
   The opinion of the court was delivered by

Mintz, J. A. D.

This is a declaratory judgment proceeding in which plaintiff in a jury trial sought a determination that there was insurance coverage in effect with defendant Mount Yernon Eire Insurance Company, a Pennsylvania corporation (Mount Yernon), on September 2, 1967 when an automobile accident occurred on its premises. As a consequence of that accident several law suits were instituted against plaintiff. At the close of the trial the court granted plaintiff’s motion for judgment against Mount Yernon and its general agent Quaker Agency, Inc. (Quaker) declaring the policy to be in force and effect on the stated date. Quaker’s motion for a new trial was denied and it appeals therefrom. Mount Yernon did not join in the appeal.

Plaintiff maintains business premises in Englishtown and its broker ordered an insurance policy through Quaker which, as general agent for Mount Yernon, issued an “Owners’, Landlords’ and Tenants’ Liability Policy” for a one-year period commencing April 18, 1967. The total premium amounted to $2,678. Efforts to collect this premium from plaintiff were unsuccessful. On June 2, 1967 plaintiff wrote Quaker:

We presently have a policy with your company which is up for renewal.
With deep regret we must ask for a temporary lapse in the renewal of this policy, due to current financial conditions.
This lapse in time will be for a period of three to six months. At which time we expect.to continue the current policy and pay its premium. We are also aware of the extreme risk involved by taking such action.
Will you please advise us immediately as to the affect (sic) of such action with your company and .if this temporary lapse in the policy is acceptable by your company.

Upon receipt of said letter Prank S. Walsh, who controls and operates Quaker, called Sobeehko, president of English-town. Walsh testified that he advised Sobeehko that it would be unwise to be without coverage and inquired as to what action he was taking with his bank to procure financing for the payment of the premium. According to Walsh the premium was to be forwarded by plaintiff’s bank by July 1, 1967. It was not received. Thereafter a cancellation notice, dated July 6, 1967 and effective July 17, 1967, was mailed to plaintiff by Quaker for Mount Vernon. The notice recited that the cancellation was at the broker’s request for nonpayment of premium. The broker testified that he made no such request.

Walsh testified that on or about July 11, 1967 he received from plaintiff two checks each for $500, one dated July 8 and the other July 17. They were deposited in Quaker’s bank account in a Newark bank. One check cleared and the other was returned for insufficient funds. A few days later he drove to Preehold and had the cheek certified, thereafter redepositing it to Quaker’s account. The $1,000 was retained by Quaker. Significantly, Walsh never communicated with plaintiff after receipt of the $1,000 and admitted that his company never rendered an accounting to plaintiff for that sum or offered to return any unearned premium, either on a pro-rata or short-rate basis. Walsh testified that he computed the premium on a short-rate basis and that there was $62 remaining, which he applied to his effort and expenses in getting the $500 check certified.

Judge McGowan, in a comprehensive oral opinion, concluded on the motion for judgment that the receipt and retention by Quaker of the partial payment constituted a waiver of the previously issued cancellation notice by the insurance company and that the policy was in full force and effect on September 2, 1967. On the motion for a new trial the same ruling was made by the trial judge.

We agree with these determinations. We are satisfied that, accepting as true the evidence together with all legitimate inferences to be drawn therefrom in favor of Quaker, reasonable minds could not differ and that as a matter of law plaintiff was entitled to the requested declaratory judgment. Dolson v. Anastasia, 55 N. J. 2 (1969).

Initially, we note that there is no merit in the contention that Quaker is not an aggrieved party lacking standing to appeal. Mount Yernon filed a cross-claim for indemnification against Quaker. Hence Quaker is vitally interested in the result.

We agree with the trial court’s ruling that plaintiff’s letter did not constitute a cancellation of the policy, but rather an inquiry respecting the effect and acceptability of a temporary “lapse.” Paragraph 20 of the¡ policy provides that it may be cancelled by the insured ££by. surrender thereof to the company or any of its authorized agents or by mailing to the company written notice stating when thereafter the cancellation shall be effective.” The policy was not surrendered and no date was specified when the alleged cancellation was to become effective. Clearly, the insurer did not regard plaintiff’s letter of June 2, 1967 as an effective notice of cancellation, for on July 6, 1967 it forwarded its cancellation notice to plaintiff, effective July 17, 1967.

We are of the view that the insurer endeavored to cancel the policy in accordance with its right to do so under paragraph 20 of the insurance policy, in which instance the earned premium should be computed pro-rata and adjustment made as soon as practical after cancellation becomes effective. On this basis defendant retained $332.64 over and above the amount of the earned premium as of July 17, 1967, which it never offered to return. Nor did it offer to return the sum of $62, the unearned premium improperly computed by Walsh on a short-rate basis. Eather, Quaker, without authority in fact or law, elected to retain said sum of $62 to defray its alleged expenses incurred in securing the aforementioned certification.

The average purchaser of insurance is entitled to the broad measure of protection necessary to fulfill his reasonable expectations. Harr v. Allstate Ins. Co., 54 N. J. 287 (1969). Upon making partial payment of the premium prior to the effective date of cancellation, plaintiff clearly evidenced its intention to avert this result. Plaintiff could rightfully rely upon the retention of this substantial payment as an indication that it need not look for coverage elsewhere and that the insurer would continue the policy in force — not having been advised to the contrary. In these circumstances the insurer may be estopped to deny coverage. Cf. Harr v. Allstate Ins. Co., supra.

In any event, the undisputed facts, especially the retention of the $1,000, constitutes a waiver as a matter of law. As observed in New Jersey Rubber Co. v. Commercial Union Assur. Co., 64 N. J. L. 580 (E. & A. 1900):

Clearly, the defendant could not assert a right to the premium for valid insurance, and at the same time insist that the insurance had never been effected. By claiming and maintaining such a right, with full knowledge of all material circumstances, it unequivocally affirmed the validity of the insurance for the period covered by the premium, and definitively waived every objection on which its validity could be denied, [at 586]

Ciccone v. Colonial Life Ins. Co., 110 N. J. L. 276, 279 (E. & A. 1933), is also in point. The court there said: “By the acceptance of the premium, defendant waived the forfeiture. The policy was thereby revived, and continued to be a valid and outstanding obligation against the insurer. Kozloski v. Prudential Ins. Co., 95 N. J. L. 101.”

A similar view was expressed in Bruni v. Prudential Ins. Co. of America, 51 N. J. 408 (1968), where the court adopted the dissenting opinion of Judge Carton in the Appellate Division, 100 N. J. Super. 154, 163-164 (1967). It was there stated :

It is elementary that an insurer may waive any provision for its benefit and may waive any representation, warranty, condition or limitation in the policy upon which it would otherwise be entitled to rely. Since provisions for payment of premiums and reinstatement are considered to be for the benefit of the insurer, they may likewise be the subject of waiver, thus rendering the insurance company liable for loss occurring during a time when, according to its contract, it would be relieved of liability. * * *
A waiver of a forfeiture clause is predicated upon the acts or conduct of the insurer with knowledge of a breach tending to show a recognition of the policy, or an intent to relinquish the right to declare a forfeiture for the known breach. See 16 Appleman, § 9084. Because the courts are loathe to enforce forfeitures, it is always open to the assured to show a waiver of policy provisions when the conduct of the insurer gives reasonable ground to the assured, as a layman unversed in insurance provisions, to believe that such a forfeiture will not be incurred and the assured relies thereon to his prejudice. See Allen v. Metropolitan Life Insurance Company, 44 N. J. 294, 305 (1965).

In Bohles v. Prudential Ins. Co., 84 N. J. L. 315, 317 (E. & A. 1912), the court declared that an unconditional acceptance of a premium constitutes a waiver of the default. However, the issue of waiver was held to be a fact issue since the company retained the premium for only three weeks and then returned the same. The case is distinguishable from the instant situation for here there never was a return of any premium. Likewise, in Barbera v. John Hancock Mutual Life Ins. Co., 127 N. J. L. 122 (Sup. Ct. 1941), the insurer accepted and retained premiums in default and did not offer to return same until eight days after the insured’s death. Apparently the offer to return said premium raised a fact issue as to whether the company elected to keep the policy in force.

Panizzi v. State Farm Mutual Automobile Ins. Co., 386 F. 2d 600 (3 Cir. 1967), cert. den. 392 U. S. 937, 88 S. Ct. 2308, 20 L. Ed. 2d 1395-1968), relied upon by defendant, is distinguishable in that it applies the Pennsylvania law of waiver, which is admittedly at variance with the relevant doctrine in other jurisdictions. See Mackie v. Prudential Ins. Co. of America, 148 Pa. Super. 498, 25 A. 2d 736 (1942). Furthermore in Panizzi, in addition to the mailing of the cancellation notice effective on a certain date, the insurer included an invitation to the insured to reinstate his policy and stated that the reinstatement would be effective upon payment of the fall premium due. Hence, the conduct of the insurer in retaining a partial premium would not lead a reasonablei man to believe that the insurance company waived a forfeiture under the contract. Bather, the reinstatement invitation constituted notice to the insured that the policy would lapse if full payment was not made within the prescribed time, and reinstatement would be effective only upon full payment of the overdue premium.

We fail to perceive and do not make the distinction urged by Quaker with respect to the doctrine of waiver — namely, that it may be invoked against the insurer on life insurance policies but not as to insurers issuing liability insurance policies under the Surplus Lines Law, N. J. S. A. 17:22-6.59. This statute requires the surplus lines agent to collect from the insured the full premium at time of delivery of the certificate of insurance. The general rule is that in the absence of an express provision in the policy to the contrary, the actual prepayment of the premium is neither essential for a contract of insurance to be valid nor a condition precedent to the inception of the policy and the assumption of the risk by the insurer. Kromenski v. Meyer, 47 N. J. Super. 434, 441 (App. Div. 1957). Clearly, as already observed, Quaker was at least clothed with apparent authority to receive the partial premium payment. See Kromensld.

Quaker does business only with brokers specializing in the furnishing of insurance coverage on risks rejected by domestic carriers. It is argued that Quaker was not authorized to issue this “surplus line” policy without first collecting the full premium. N. J. S. A. 17:22-6.59. This statute places the burden upon the surplus lines agent to collect the full premium upon delivery of a policy issued by a foreign insurance company unauthorized to do business in New Jersey. Although the general agent did not collect the full premium, such dereliction on its part cannot work to the detriment of plaintiff who accepted delivery of the policy from the general agent. Cf. Wolfstern v. Pennsylvania R. R. Co., 76 N. J. Eq. 78, 80 (Ch. 1909).

There was coverage afforded plaintiff under the policy in question unless effectively terminated by the insurer. On the basis of the undisputed facts we conclude that the cancellation notice dated June 2, 1967 was effectively waived. Since no subsequent cancellation notice was ever sent to plaintiff, the policy was in full force and effect on September 2, 1967.

Affirmed.


author: Confokd, P. J. A. D. Pee Curiam.

text:
    GABE COLLINS REALTY, INC., A NEW JERSEY CORPORATION, FOURTH WARD PROPERTY OWNERS ASSOCIATION, INC., A NEW JERSEY CORPORATION, MARIE BIGGS, HARRY BIGGS, RICHARD NUGENT, DORIS NUGENT, DONNA CATRAMBONE, ANTHONY R. CATRAMBONE, HARRY BURKHARDT, BARBARA BURKHARDT, PATRICK TRICOCCI, EDWARD HARROLD, STEPHEN JACOBS, PLAINTIFFS-APPELLANTS, v. CITY OF MARGATE CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND MARGATE CIVIC ASSOCIATION, INTERVENOR-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1970
    Decided November 20, 1970.

      Before Judges Confoed, Kolovsky and Caeton.

      Mr. John W. Gilbert argued the cause for appellants.

      Mr. Enoch A. Higbee, Jr. argued the cause for respondents.
   The opinion of the court was delivered by

Confokd, P. J. A. D.

Plaintiffs, who are for the most part owners of two-family houses (“duplexes”) held for summer rental, challenge the validity of a zoning ordinance of Margate City, an oceanside community in Atlantic County. Under attack is the provision of the ordinance which defines “family,” for purposes of the use restriction of certain zones to “single family dwellings” and to “two family houses,” among other uses, as follows:

* * * one or more persons related by blood, marriage or adoption or not more than two unrelated persons occupying a dwelling unit as a single non-profit housekeeping unit.

The foregoing definition is contained in a revised zoning ordinance adopted in October 1967, and it was legislated for the purpose of eliminating what the governing body considered undesirable conditions, hereinafter described, attending the summer rental of dwelling units to substantial groups of unrelated young men or young women. Plaintiffs contend that this limitation on the use of their property is an arbitrary and unwarranted encroachment on the use of private property. The Law Division judge, after a hearing at which testimony was taken, concluded that plaintiffs had failed to carry their burden of overcoming the presumption that the provision was valid and free from arbitrariness or unreasonableness.

Plaintiffs had tendered a subordinate contention that the municipal authorities were enforcing the ordinance in a discriminatory and oppressive manner. We do not reach this issue, which the trial court resolved in favor of defendant, as we have concluded that, as written, the provision impugned is void as an arbitrary and unreasonable restriction upon plaintiffs’ right to use or rent their properties, contrary to the constitutional requirements of substantive due process. As further indicated in the course of this opinion, however, we do not entertain the view that the municipality is necessarily without legislative power to control the problem with which it has been concerned by a proper exercise of the zoning authority in relation to occupancy of dwelling units.

Defendant offered proofs at the trial that “group rentals,” as tenancies of groups of unrelated persons are commonly denominated in the area affected, are frequently attended by “noise and disturbance.” The renters are usually in the 20-30 age range and unmarried. The testimony of the mayor was: “We got phone calls from neighbors who can’t sleep, who can’t enjoy their homes.” The police respond and “pick up any large numbers that were making the disturbance.” Moreover, substandard structural and sanitary conditions were found in some cases, allegedly attributable to absentee ownership and irresponsibility of the renters, with premises littered with empty beer and liquor bottles and dirt and debris.

Plaintiffs emphasize that under the terms of the definition of “family” in the ordinance, even occupancy of dwelling units by unrelated owners themselves is proscribed; for example, three schoolteachers, or close friends, or other small groups of unrelated persons nevertheless constituting a regular housekeeping unit and having common interests. They contend that, in principle, the unreasonableness of the foregoing restrictions under the ordinance extends to occupancy of dwelling units by such innocuous groups in possession as tenants, whether on an all-year basis or for the summer months. As owners, they contend that their property rights are unreasonably curtailed in their being deprived of the opportunity to rent to groups unreasonably restricted by the tests of relationship or numerical limitation to two persons. They argue that such criteria unwarrantably impair the normally expectable economic return from the properties which are functionally appropriate to occupancy by more than two persons. The proofs indicate, however, that such units as are held by plaintiffs are generally rented to groups of six to eight persons. The record is devoid of information as to the number of rooms contained in such units and as to the extent of the kitchen (if any) and sanitary facilities made available to groups of that size.

The economic stake of the plaintiffs in freedom from the restriction of the ordinance is that, by and large, greater rentals can be realized from groups than from normal families usually having only one wage-earning head.

Case authority directly or tangentially bearing upon the constitutional validity of ordinances restricting occupancy of conventional dwelling units to groups related by blood, marriage or adoption is fairly sparse. In this State we may consult Larson v. Mayor, etc., Spring Lake Heights, 99 N. J. Super. 365 (Law Div. 1968); Marino v. Mayor, etc. Norwood, 77 N. J. Super. 587 (Law Div. 1963); and Newark v. Johnson, 70 N. J. Super. 381 (Cty. Ct. 1961). The latter two cases involved zoning ordinances. Larson was concerned with two ordinances, of similar purport, adopted under the general welfare police powers of municipalities granted by N. J. S. A. 40:48-1(6) and 40:48-2, but designed to meet problems arising from summer group rentals in shore resort communities of substantially the same nature (with some exacerbation) as the problems presented to the Margate City authorities.

In Johnson, supra, the court held valid a restriction of one-family dwellings to persons related by blood, marriage or adoption maintaining a common household, as applied against families harboring foster children. The regulation was upheld as designed to prevent excessive numbers of children in the neighborhood and to preserve property values. In Marino, supra, a substantially similar restriction was held unreasonable as construed, in relation to the joint residence in a common housekeeping unit of an unrelated elderly couple, to constitute them two “families” and thereby to cause the two-family dwelling which they shared with another family to violate the zoning restriction limiting the use of the building to two families.

In Larson, supra, the decision of closest pertinence to the present case-, the regulatory ordinances involved prohibited, in effect, the use or occupancy of houses or dwellings by, inter alia, groups of persons not qualifying as a “family” as defined in the ordinances. A family was defined as:

A collective group of persons related by kinship, adoption, blood or marriage, living together under the same roof, in a common household whose relationship is of a permanent and distinct domestic character and not resort or seasonal in character or nature, including any domestic servants, lodgers, boarders or guests. [99 N. J. Super., at 370]

It is noticeable that these ordinances are more restrictive than the Margate City ordinance in not allowing any non-related group whatsoever, nor even a related group if living together only for the summer, whereas Margate! City allows an unrelated group of not in excess of two persons. Judge Simmill found that while the evident problems associated with group rentals were fit subjects for police power regulation, these particular ordinances were unreasonable in that they went “beyond the public need,” constituted “an excessive restriction” on the use of private property, and were “palpably excessive as a 'requirement necessary to minimize the offensive character of the conduct to be regulated,’ ” citing principles enunciated in Katobimar Realty Co. v. Webster, 20 N. J. 114 (1955) (a zoning case), and State v. Mundet Cork Corp., 8 N. J. 359 (1952), cert. den. 344 U. S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952) (regulatory ordinance), among other decisions. The court pointed out, as one of several examples of' the arbitrary character of the restriction, that under the ordinance it would be unlawful for two friends to share a house or apartment, even if their relationship were of a permanent and domestic character (99 N. J. Super., at 375). The court concluded that the municipalities should not “burn the house to roast the pig” (at 374).

However, defendant emphasizes that in Larson the court observed that its determination involved “no. opinion as to the validity of a properly enacted zoning ordinance which might deal with the subject in similar fashion to the ordinances in question” (at 376; emphasis ours), noting that a restriction to single-family use has been upheld, as in Collins v. Board of Adjustment, Margate City, 3 N. J. 200 (1949), and Guaclides v. Englewood Cliffs, 11 N. J. Super. 405 (App. Div. 1951). But we do not believe that the court meant to imply, nor would we agree, that arbitrary or patently unreasonable restrictions on the use of property, subject to condemnation when adopted as police-power regulations, would necessarily survive judicial scrutiny merely because dressed in the garment of a zoning ordinance. Zoning is simply one broad segment of the police power, exerted for the public welfare. Schmidt v. Board of Adjustment, Newark, 9 N. J. 405, 414 (1954). All police power legislation, including zoning, is subject to the constitutional limitation that it be “reasonably exercised,” i. e., conditioned by the demands of due process — that the regulation “not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.” Iiid.

While some types of inimical conduct may be related to land use, so as to suggest the possible appropriateness of municipal regulation by either the zoning or the general police power authority, see Fred v. Mayor, etc. Old Tappan, 10 N. J. 515, 521-522 (1952); Kligman v. Lautman, 98 N. J. Super. 344, 356-357 (App. Div. 1967), aff'd 53 N. J. 517 (1969); cf. Andover Tp. v. Lake, 89 N. J. Super. 313 (App. Div. 1965), it would seem that, given arbitrariness or unreasonableness in classification or in impairment of property rights sufficient to nullify a regulation under the one genus of legislative authorization, it should also ordinarily fall if adopted under the other.

In Illinois the Supreme Court recently held an ordinance restricting one-family use to such groups as were related to each other by blood, marriage or adoption (plus servants and one guest) to have been beyond the legislative delegation of the zoning power. City of Des Plaines v. Trottner, 34 Ill. 2d 432, 216 N. E. 2d 116 (Sup. Ct. 1966). The ordinance was sought to be enforced against the rental of a single-family residence to four young men, not related. Although the attack on the ordinance was based on due process and equal protection grounds, the court chose to rest its determination on lack of legislative authority. But its reasoning emphasized considerations of unreasonableness of classification. In an expression basically pertinent, as well, to the instant ordinance, the court said:

The considerations that the defendants advance to show that the ordinance classification is unreasonable, and so violates the due process and equal protection provisions of the constitution of the United States * * *, are relevant in determining whether the legislature has authorized such a classification. The defendants point out that if the four tenants in this case were cousins, no matter how distant, or if two of them were servants and one was a gratuitous guest, the same four individuals could live in the same home in an identical manner. School teachers who might choose to live together are prohibited by the ordinance from doing so, and a widow whose grown-up children have established homes of their own can not take in.a friend who would share the expenses of tbe establishment, but must live alone unless she is financially able to support someone else or to hire a servant. A family living in a single-family residence district can not take in a foreign exchange student who pays something for his room, nor could they take into their home a foster child under the provisions of the Child Care Act. [216 N. E. 2d at 118]

The court discussed Newark v. Johnson, supra, but found that the considerations advanced by the County Court therein in support of a similar zoning classification were not “particularly persuasive.” (216 N. E. 2d at 119).

In Kellog v. Joint Council of Women’s Auxiliaries W. Ass’n, 265 S. W. 2d 374 (Mo. Sup. Ct. 1954), the court dealt with a St. Louis zoning ordinance defining “family,” for purposes of restriction of a zone to single-family dwellings, as a group immediately related by blood, marriage or adoption living together as a single housekeeping unit, but inclusive also- of a group of not more than five persons not necessarily related but living together as a single housekeeping unit. The ordinance was sustained as valid against a challenge by defendant which maintained a building in the zone affected housing 21 elderly or convalescent women. The court observed that the municipality might under the zoning function properly legislate against “too intensive use of parcels of land” (at 378). However, the court also- stressed the “multiple occupancy” of defendant’s property in an area zoned for single families. 16id. Thus, the decision is construable as upholding the ordinance in its application to prohibit the particular defendant’s use and not necessarily generally, as in application to a less “multiple” use.

There is a plethora of decisions construing the term “family,” as in “one-family” or two-family,” when used in zoning ordinances without more particular definition of the term, but we are cited to none in which the constitutionality of a construction thereof as requiring relationship by blood or marriage of the group is considered to any degree. See Annotation 172 A. L. R. 1172. Eor an offhand dictum affirming the power, see Missionaries of Our Lady of La Salette v. Village of Whitefish Bay, 267 Wis. 609, 66 N. W. 2d 627, 630 (Sup. Ct. 1954); cf. Application of Laporte, 2 A. D. 2d 710, 152 N. Y. S. 2d 916, 918 (App. Div. 1956), aff'd 2 N. Y. 2d 921, 161 N. Y. S. 2d 886, 141 N. E. 2d 917 (Ct. App. 1957). An interesting exposition of the proposition that the term "family” in a zoning ordinance does not necessarily mean a related group may be found in Brady v. Superior Court, 200 Cal. App. 2d 69, 19 Cal. Rptr. 242 (D. Ct. App. 1962).

Upon a consideration of all of the foregoing, it is our judgment that a general municipal restriction of occupancy of dwelling units to groups of persons all of whom are related to each other by blood, marriage or adoption is unreasonably restrictive of the ordinary and natural utility of such property as dwellings for people, and of the right of unrelated people in reasonable number to have recourse to common housekeeping facilities in circumstances free of detriment to the general health, safety and welfare. We are in agreement with much of what was said in Larson v. Mayor, etc., Spring Lake Heights, supra, which is in harmony with these conclusions. Moreover, there is, in our view, no significant amelioration of such unreasonableness in allowing occupancy by two unrelated people. Dwelling units of a size adequate to accommodate a normal family are reasonably susceptible of occupancy by more than two unrelated persons without such accompanying threat to the public welfare, in any of its many aspects, including zoning, as warrants a restriction of occupancy to so few a number. Thus, even in the light of the legitimate concern of the municipality with the undesirable concomitants of group rentals experienced in Margate City, and of the presumption of validity of municipal ordinances, we are satisfied that the remedy here adopted constitutes a sweepingly excessive restriction of property rights as against the problem sought to be dealt with, and in legal contemplation deprives plaintiffs of their property without due process. As presently written, the ordinance may not be' enforced against them.

Although the foregoing suffices to dispose of the particular matter before us, we deem it appropriate to. express our view that the municipality is not necessarily without power to control the evils apparently emanating in recent years from rentals to unrelated groups in resort communities. We are not holding, for example, that an ordinance may not limit a group of unrelated renters or owners to a reasonable number in a single dwelling unit (but there may well be a difference as between renters and owners). Resolution of the question of validity in such case would depend upon whether the numerical limitation chosen was a fair accommodation of the legitimate municipal interest in freedom from the neighborhood harms assertedly accompanying occupancy of dwelling units by substantial numbers of unrelated persons with the rights of unrelated persons in general to occupancy of such a unit in a group of moderate number comprising a single housekeeping unit. It is, of course, not our function to write such a proviso for the municipality in advance.

It would seem, moreover, that the criterion that the occupying group constitute a bona fide single housekeeping unit is a reasonable zoning prerequisite in areas restricted to one-and two-family occupancy and that enforcement thereof might in and of itself validly and effectively curtail occupancy by those unrelated groups whose use is essentially of a dormitory or rooming house character rather than as true housekeeping units.

The judgment is reversed and the cause remanded to the Law Division for entry of an order declaring the ordinance provision here involved invalid and restraining its enforcement. No costs.

SUPPLEMENTAL OPINION (filed December 1, 1970)

Pee Curiam.

Since the filing of our opinion in this matter November SO, 1970, our attention has been called to Kirsch Holding Co. v. Manasquan, 111 N. J. Super. 359 (Law Div. 1970), holding valid a zoning ordinance which defines “family,” inter alia, as including “a collective number of persons living together in one house, whose relationship is of a permanent and distinct domestic character, and cooking as a single housekeeping unit,” but not if their “association is temporary and resort-seasonal in character or nature.”

To the extent that Kirsch holds or implies that arbitrariness or unreasonableness of classification which would invalidate an ordinance adopted under the general police powers of municipalities, see Larson v. Mayor, etc., Spring Lake Heights, 99 N. J. Super. 365 (Law Div. 1968) (by the same court which decided Kirsch), is saved from condemnation by mere reason of the incorporation of the same classification into a zoning ordinance, we disagree, for the reasons stated in our opinion on that point. However, the ordinance involved in Kirsch is less restrictive than that dealt with in Larson. The latter forbade occupancy by a group of “unmarried” persons under any circumstances. That in Kirsch allows unrelated persons provided their association is “permanent,” etc. and not “resort-seasonal” in nature. The case before us does not involve qualifications of that nature on the right of unrelated persons to rent or occupy, and we do not undertake to pass upon them or imply any opinion in relation thereto.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CLYDE BAKER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 2, 1970
    Decided November 30, 1970.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Harold J. Shlarew assigned counsel, argued the cause for defendant.

      Mr. Peter A. DeSarno, Assistant Prosecutor, argued the cause for respondent (Mr. JSdward J. Dolan, Middlesex County Prosecutor, attorney; Mr. Gilbert L. Nelson, Assistant Prosecutor, of Counsel and on the Brief).
   Pee Cueiam.

Defendant was convicted of possession of two marijuana cigarettes found on his person by New Brunswick Detective Saloom as a result of a search at defendant’s barber shop in that city on December 31, 1967. Since the validity of the conviction rests on the correctness of the denial of a motion to suppress the cigarettes for alleged illegality of the search, we state the facts adduced through Saloom’s testimony on the hearing of the motion to suppress.

On December 31, 1967, a Sunday, Saloom and another officer were on duty “investigating gambling establishments.” The dispatcher had received complaints at 9:30 a.m. of “noise and disorderly crowds coming out of 56 Albany Street.” Saloom and another officer went to Albany Street and parked half a block from the store at the address. An unidentified man Saloom knew “walked out of” the store and “smelled like drink.” Saloom “asked him where did he get the drink from, because he was a person that I know that likes to drink.” The individual, who had “supplied reliable information” to Saloom in the past, said he had bought the drink at 56 Albany Street and had paid a dollar for the “shot.”

Saloom went back to headquarters, returned with three other officers to 56 Albany Street, the exterior of which is a store-front, and “walked in.” They had no arrest or search warrant. They met defendant, who identified himself as the owner. They found themselves in a “main room” containing a pool table, two barber chairs, a shoeshine stand and a showcase. Two employees of Baker were also present, in working clothes. Saloom asked defendant whether he was selling drinks, and he denied it. Then Saloom and his men proceeded to “look[ed] through everything.” Seeing nothing incriminating in the main shop-room, they “gradually went to the back” of the building, searching, in turn, a women’s room, a storage room and a wash room before reaching a large back room at the end of a corridor. The doors of all these rooms were open, but the large back room could not be seen from the main room in the front.

Defendant accompanied the officers on the search but there appears to have been no conversation. In the large back room the officers saw a 4^' bar, two stools, a table with six chairs, and a refrigerator loaded with beer. On and in the bar was whisky, some bottles full and some partly consumed. The air conditioner in the room was on but no one was present. Saloom at once placed defendant under arrest for illegal sale of alcohol. He then conducted a search of his person which revealed, in a vest pocket, two cigarettes which Saloom thought, and later chemical anatysis revealed to be, marijuana. The officers gathered together the evidence and left. The whole episode took 30 to 40 minutes, most of which was consumed in searching the premises.

At the argument of the motion to suppress below the State sought to defend the warrantless search preceding the arrest on two theories: (a) there was probable cause to enter to arrest for illegal sale of liquor and the “search that follows is incidental to the arrest”; (b) the police had the right to enter the premises as a place open to the public, and “it was all one business establishment.” In denying the motion the court said:

The Court is of the opinion that the information given by this individual, the reliable informant indicated that the sale had just been made, that is, just within a few minutes prior thereto and that the officer had a right to search the property and to see whether or not sufficient illegal — there was evidence of an illegal sale of alcohol.
Having found such evidence, they had a right to arrest the man and that having a right to arrest the defendant, they had a right to make a search of Ms person.

Defendant later moved for rehearing of the motion on the basis of the incredibility of Saloom’s story about the “reliable informer,” in light of his account of the episode as a witness at the earlier preliminary hearing. On that occasion there was a total omission of the encounter with the “informer.” When asked what had brought him to the location that Sunday morning in the company of the four other officers he said, “complaints we had received earlier.” Not only was there omitted the interlude with the informer, but also, on the previous recital, the story was that Saloom came there directly with the four other officers and entered; not that he first came with only one other, parked at a distance and, after talking to the informer, returned to headquarters for the assistance of three more men. Appellate defense counsel calls our attention, moreover, to Saloom’s testimony at the trial when, for the first time, he added the detail of having smelled the odor of marijuana coining from the “rear of the store.” The motion judge found the discrepancies not material as to credibility in the light of the different purposes of the respective hearings. In reaffirming its decision on the motion, the court said:

The court is of the opinion that under the circumstances the police had reasonable cause to believe that a violation of the law had been committed and that under all of the circumstances that the search of the premises was reasonable. The product of the search justified the arrest of the defendant and the search of the person of the defendant was justified as a search accompanying an arrest. [Emphasis added],

In determining this appeal we shall assume the trial court’s right as hearer of the evidence to credit Saloom’s testimony as given on the motion to suppress. On that testimony and the motion findings of fact the denial of the motion to suppress must be reversed. The warrantless search to look for evidence to support an arrest for a liquor violation was in violation of plain principles as to Fourth Amendment rights as judicially construed. Probable cause to enter premises for purposes of a search must ordinarily be passed upon by a judicial officer who certifies thereto by issuing a search warrant. The policeman’s own evaluation of probable cause cannot justify an entry to search without a warrant. State v. Macri, 39 N. J. 250, 262 (1963); Johnson v. United States, 333 U. S. 10, 13-15, 68 S. Ct. 367, 92 L. Ed. 436 (1948).

While there are judicially recognized exceptions to the warrant requirement, none apply here. The argument on the motion that this was a search incidental to an arrest is unsupportable. On oral argument of the appeal the State frankly conceded that the entering officers had no intention of arresting anyone unless their search of the premises revealed evidence of a liquor violation. This fact, moreover, is implicit in the trial court’s fact-finding, and is fairly compelled by the record. Only after a thorough search of the premises revealed the incriminating liquor set-up, a half-hour after the officers entered the store, was defendant arrested. In the meantime he was subjected to no restraint. As was said in State v. Doyle, 42 N. J. 334 (1964) :

Officers cannot search in order to arrest, nor arrest because of the product of the search. A search undertaken merely for the purpose of uncovering evidence with which to arrest and convict of crime is not made lawful because the desired evidence is obtained [case citation]. Absent a valid search warrant, they must arrest validly in which event they may search reasonably as an incident of the arrest.” [342-343; emphasis added]

The foregoing is precisely applicable here and serves to reveal the error of the trial court’s rationale. Basically, it is the fact of arrest which triggers the right of incidental search. See Weeks v. United States, 232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652 (1914); Carroll v. United States, 267 U. S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Agnello v. United States, 269 U. S. 20, 30, 46 S. Ct. 4, 70 L. Ed. 145 (1925); Marron v. United States, 275 U. S. 192, 199, 48 S. Ct. 74, 72 L. Ed. 231 (1927); Chimel v. California, 395 U. S. 752, 762-763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). It is, of course, not necessarily fatal to the incidency of a search to an arrest that the search is absolutely precedent in time, so long as they “occur as parts of a single transaction, as connected units of an integrated incident.” State v. Doyle, supra, 42 N. J. at 342 (where, in fact, the arrest preceded the search, at 342). But Jones v. United States, 357 U. S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958), holds that there must be an intention on entry to arrest without regard to the success of the search, in order to validate the warrantless entry. It was there determined that a warrantless search could not be sustained as incidental to an arrest when the purpose of the officers in entering the premises was to search, not arrest (357 U. S., at 499-500, 78 S. Ct. 1253), even though there was actually probable cause to arrest and defendant was arrested later that night, after the search, on the basis of what was found in the course of the search. The decision is precisely apposite here. See also Taylor v. United States, 286 U. S. 1, 52 S. Ct. 466, 76 L. Ed. 951 (1932). It is dispositive of the State’s first point, supra, on the argument of the motion.

The search is not sustainable on the theory of the right of police officers to enter a public store. The implied invitation does not extend beyond the area to which the public is admitted, i. e., the store premises proper. State v. LaDuca, 89 N. J. Super. 159 (App. Div. 1965). Observations made in that area by police are not a “search.” Ibid. Here the rear room was not visible from the combination barber shop, shoe-shine, and poolroom store, and the incursion to the rear room in the course of a thorough search of the whole first floor of the building beyond the store was plainly not justified on the theory of store premises open to the public. See State v. LaDuca, supra, at 164-165.

Nor can the search be sustained on the theory of “exigent circumstances,” as where evidence is so imminently threatened with destruction or removal, see Johnson v. United States, 333 U. S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948), as to make the by-passing of the warrant requirement “imperative,” see McDonald v. United States, 335 U. S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 153 (1948). Neither below nor in the State’s appellate brief is there a suggestion that it was reasonably (or actually) feared that evidence of the illegal liquor outlet would be destroyed in the time it would take to get a warrant. The record would not support such an hypothesis, were the argument advanced.

The search of the premises was illegal because without a warrant.

The search of the premises in the first instance having been illegal, the arrest based on the fruits thereof was also, and the marijuana cigarettes, the product of the consequential search of the defendant’s person, must be held to have been come by illegally. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. LaDuca, supra, 89 N. J. Super at 168. Therefore they must be suppressed as evidence.

At the hearing of the motion plaintiff was denied a request for the name of the so-called informer. Although our holding renders the point uncritical, the matter appears to have reposed within the trial court’s discretion. See State v. Burnett, 42 N. J. 377, 388 (1964).

Defendant also raises certain grounds of error asserted to have arisen at the trial. We find none of such importance as would warrant reversal of the verdict of conviction were there no error in the denial of the motion to suppress. But because of the latter error, the judgment must be

Reversed.

       Deseribed in Vale v. Louisiana, 399 U. S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409, 413 (1970) as “only in ‘a few specifically established and well-delineated’ situations”.

      See A. L. I., Model Code of Pre-Arraignment Procedure (Tent. Dr. No. 3), § SS 3.01:
      (1) * * * an officer who has made a valid arrest * * * may, without a search warrant, conduct a search of the person, property, premises, or vehicle of the arrested individual « *

      See A. L. I., Model Code of Pre-Arraignment Procedure (Tent. Dr. 3), sec. SS 3.04(2) (b), reading:
      “Search of premises [incidental to arrest] shall only be made contemporaneously with the arrest and consequent upon the entry into the premises which was made in order to effect arrest.” (Emphasis ours).


author: IIalpern, J. A. D.

text:
    HOUSING AUTHORITY OF THE CITY OF HOBOKEN, NEW JERSEY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MIRIAM KRAMER SEGAL, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 10, 1970
    Decided November 30, 1970.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. Samuel J. Davidson argued the cause for appellant.

      Mr. Michael A. Oerreto argued the cause for respondents (Mr. Leo Rosenblum, attorney).

      Messrs. Brack, Eichler, Rosenberg <& Silver, attorneys for New Jersey Association of Housing and Redevelopment Authorities, filed a brief amicus curiae.

   The opinion of the court was delivered by

IIalpern, J. A. D.

Defendants owned four five-story buildings in Hoboken, New Jersey, each of which contained stores on the ground level and apartments on the upper floors. On September 20, 1967 the area in which the four buildings were located was declared blighted by plaintiff. On October 14, 1968 plaintiff filed separate complaints to acquire the buildings, and ultimately commissioners were appointed to fix the compensation to be paid. On April 17, 1969 plaintiff filed declarations of taking and, pursuant to court orders, deposited in court sums totalling $50,100 and took possession of the four buildings.

The commissioners filed their report on February 17, 1969, and plaintiff appealed to the Superior Court. On March 22, 1969 pretrial orders were filed in which, among other things, the parties agreed upon the method of determining market value and stipulated that October 14, 1968 would be the control date for its determination. They further stipulated that defendants were to remain liable for real estate taxes until plaintiff took possession, or until determination of this litigation, whichever was sooner. The pretrial order set forth the only issue to be, “Fair Market value of premises in question as of October 14, 1968.” Such stipulations are generally binding on the parties. Housing Authority of Long Branch v. Valentino, 47 N. J. 265 (1966).

At the trial plaintiff’s expert testified that the four buildings were worth a total of $50,500. Defendants’ expert place the value at $83,000. The jury’s verdict was for $64,500. In answer to the court’s sua sponte inquiry, the jury determined that the four buildings were unoccupied between September 30, 1967 and October 14, 1968 because condemnation proceedings were imminent.

Partial judgments were entered on October 31, 1969 totalling the $64,500 awarded by the jury, plus the amount determined to be interest due totalling $6,535.50. The trial judge computed the interest on the awards from September 30, 1967 (date of blight declaration) to April 17, 1969 on the full amount of the verdicts, and on the excess over the deposit from April 17, 1969 to October 10, 1969 (date of jury verdict).

The trial judge then asked the parties to brief the issue, “Is the landowner entitled to be exempt from paying taxes from the date of the declaration of blight ?” The trial judge ultimately determined the issue in the affirmative. Final judgments were then entered on December 13, 1969 covering the four properties:

Jury award ........................................ $64,500.00
Interest from 9/20/67 to 10/10/69 .................... 6,535.50
Reimbursement for taxes paid by defendants from
9/20/67 to 3/31/69 ............................... 7,832.60
Interest thereon at 6% ............................. 693.99

Plaintiff appeals from so much of the final 'judgments as awarded interest and reimbursement for taxes. As we read the record, and as stated at oral argument, no appeal has been taken from that part of the judgment based upon the jury’s verdict fixing the fair market value of the four properties at $64,500. We consolidated the complaints and ike judgments entered thereon for the purposes of this appeal.

In all condemnation cases the statute, N. J. S. A. 20 :l-9, requires a jury to fix the value of the property being taken as of the date the complaint was filed, except that if property is acquired in connection with redevelopment of a blighted area, then it is fixed at no less than its value as of the date of the declaration of blight. Jersey City Redevelopment Agency v. Kugler, 111 N. J. Super. 50, 56 (App. Div. 1970). The exception in the statute became effective October 10, 1961, but since the pretrial order fixed October 14, 1968 (the date the complaint was filed) as the control date, and the case was tried on that basis, the general rule is applicable.

The problem dealing with the allowance of interest and taxes on a condemnation award is more troublesome. Generally speaking, interest on a jury award, for the period pending condemnation, is decided on a case-by-ease basis in order to fix compensation which is “just.” State v. Nordstrom, 54 N. J. 50, 54 (1969). The courts recognize that a considerable period of time may elapse between the filing of the complaint and the date the owners receive payment. During such period the owners are compelled to pay taxes and other carrying charges. The courts have therefore in such instances allowed interest, but have required the owners to account for the rents and profits. Nordstrom, at 55. However, if there is no inordinate delay, or the owners have not been hurt in any significant way, no interest is allowed. State, by State Highway Com’r v. Hankins, 63 N. J. Super. 326 (App. Div. 1960). The philosophy for the rule allowing interest is best summarized by the quotation from Meller v. Easton and Amboy Railroad Co., 37 N. J. L. 222 (Sup. Ct. 1874) approved in Nordstrom, 54 N. J. at 54:

Interest for the intermediate period is allowable, not strictly as damages for the taking, but as an equitable mode of compensating the owner for the necessary delay in ultimately ascertaining the amount he is entitled to be paid, and as the means of reaching the full measure of the just compensation which, by the constitution must precede tbe taking of the property of a private citizen for public uses.
This general rule for the allowance of interest is liable to be controlled by the circumstances of each particular case. If the owner has not been disturbed in the possession, and has had a profitable use of the premises, or has received the rents for them pending the appeal, these circumstances should be taken into account and the interest abated accordingly. Possibly the like effect may be given to a tender and payment into court, where the statute provides for such proceeding * * *.
Interest on demands of this character, not being a matter of contract, or of positive law, is allowed on equitable principles * * *. Id. 37 N. J. L., at 224-225.

Condemnation to acquire a property in blighted areas is distinguishable from other types of condemnation. The statute authorizing the taking after a declaration of blight, N. J. S. A. 40:55-21.10, provides that the municipality “shall not be required to acquire the real property * * Therefore, even though an area is declared blighted the municipality may decide at a future date to drop the project. If dropped, the owners, although they may suffer pecuniary loss, are without remedy. Wilson v. Long Branch, 27 N. J. 360 (1958), cert. den. 358 U. S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958).

In the instant case the record is clear that about a year before the declaration of blight the owners had no tenants in the four properties; they had cut off all utilities; they had boarded up the buildings and had made no effort to rent or otherwise utilize the properties. Under such circumstances there is no equitable reason for allowing interest or taxes for a period prior to the taking. The trial judge allowed interest and reimbursement for taxes from the date of the declaration of blight as compensation to the owners because of their inability to rent the property because condemnation was imminent. Such was not in conformity with the proofs, the statute or the equitable principles heretofore enunciated.

Of necessity, there must be an administrative lag between the time a municipality begins to decide whether it should declare an area blighted and the time it decides to condemn. See the steps required to be taken before condemnation can be filed as prescribed in N. J. S. A. 40:55-21.1 et seq. We can see no basis in this case, legal or equitable, to charge the Housing Authority with interest and taxes for such delay. See State by State Highway Com’r v. Angleton, 89 N. J. Super. 85, 91 (App. Div. 1965).

As previously stated, plaintiff deposited the sum of $50,100 into court on April 17, 1969 and took possession of the four properties on that date. We find that the owners are not entitled to interest for any period prior thereto. The judgments below will be modified to allow interest at 6% on the sum of $14,400 (the difference between the jury award and the deposits) from April 17, 1969 to October 10, 1969. State v. Nordstrom, supra, 54 N. J. at 57; N. J. S. A. 27:7-22, applicable to highway acquisitions but indicative of the legislative intent where deposits in court are made. See also East Orange v. Bd. of Chosen Freeholders, Essex County, 89 N. J. Super. 493, 500, 501 (App. Div. 1965).

For the reasons expressed heretofore in denying interest to the owners for the period commencing September 20, 1967, we find that the owners are liable for the payment of taxes up to April 18, 1969.

We modify the judgment accordingly.


author: Pee Ctjkiam.

text:
    ALBERT WOLL AND VIRGINIA WOLL, EXECUTRIX OF THE ESTATE OF WILLARD WOLL, DECEASED, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. MATTHEW DUGAS, AN INFANT BY HIS GUARDIAN AD LITEM, JOHN D. MORRISON, GRAHAM C. DUGAS, JR., JANE DUGAS FROJEN AND AMERICAN CANCER SOCIETY, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS, AND CITIZENS FIRST NATIONAL BANK OF RIDGEWOOD, NEW JERSEY, AS EXECUTOR AND TRUSTEE OF THE WILL OF CELEONOR E. WOLL (KNOWN ALSO AS ELEONOR WOLL), DECEASED, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued November 17, 1970
    Decided November 30, 1970.

      Before Judges Kilkenny, Halpebn and Lane.

      Mr. Harry Schaffer argued the cause for defendants-appellants and cross-respondents, Graham C. Dugas and Jane Dugas Ero jen.

      Mr. Richard Wayne Stickel argued the cause for defendant-appellant, American Cancer Society, Inc. {Messrs. Stickel, Frahn & Stockholm, attorneys).

      Mr. Milton T. Lasher appeared on the brief for defendant-respondent, Citizens First National Bank of Ridgewood, New Jersey.

      Mr. John D. Morrison appeared on the brief as Guardian ad Litem for Matthew Dugas, an infant, defendant-appellant and cross-respondent.

      Mr. Walter Henry Jones argued the cause for plaintiffs-respondents and cross-appellant {Mr. Walter H. Jones, III on the brief).
   Pee Ctjkiam.

The issue before the Trial Judge was whether Matthew Woll and Celeonor Woll, his wife, had entered into a valid oral agreement in 1949 to execute identical, mutual, reciprocal and irrevocable wills, to dispose of their combined estates. After a full hearing he concluded “that the aforesaid agreement has been established by evidence that is cogent, clear and convincing, and which has left no doubt in the court’s mind as to the parties actually having entered into such an agreement.”

We have considered the entire record and find substantial credible evidence therein to justify the conclusions reached by Judge Lora. We are in accord with the views expressed in his opinion reported in 104 N. J. Super. 586 (Ch. 1969).

On this appeal at oral argument appellants contended that the real estate located in New Jersey of which Celeonor died seized should not have been impressed with a constructive trust because she obtained the fee thereto as the surviving tenant by the entirety, and not from her husbands estate. This contention was not raised or considered by Judge Lora, nor was it included in the briefs before us. Under the circumstances it may not be presented for the first time on appeal. Oradell Village, et al. v. Township of Wayne, 101 N. J. Super. 403 (App. Div. 1968), aff’d 53 N. J. 496 (1969). In any event, we see no merit to the contention.

Affirmed in all respects. No costs.


author: Leonard, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WAYNE STILL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 26, 1970
    Decided December 1, 1970.

      Before Judges Goldmann, Leonabd and Mountain.

      Ira BabTcin, Camden assigned counsel, argued the cause for appellant.

      Robert L. Messick, Asst. Prosecutor, argued the cause for respondent (A. Donald Bigley, Camden County Prosecutor, attorney; John P. Jehl, Asst. Prosecutor, on the brief).
   The opinion of the court was delivered by

Leonard, J. A. D.

The Camden County grand jury returned two indictments against defendant and two co-defendants, Milton and Sebastian, the first charging them with assault with intent to commit sodomy (N. J. S. A. 2A:90-2), and the second with attempt to commit sodomy (N. J. S. A. 2A:143-1 and 2A :85-5). Defendant and Sebastian were tried together, Milton not being within the jurisdiction. The jury found Sebastian guilty on both charges, but defendant guilty only of assault with intent to commit sodomy. The trial judge sentenced defendant to a 5-7 year State Prison term. This appeal followed.

Defendant first contends that the two verdicts returned as to him were inconsistent; that having been acquitted on the attempt charge, he was entitled to an acquittal on the assault charge. He argues that the two offenses constitute but one crime.

An assault has been defined as “an attempt or offer with unlawful force or violence to do a corporal hurt or physical injury to another,” State v. Staw, 97 N. J. L. 349, 350 (E. & A. 1922), or “force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of imminent peril, coupled with an apparent present ability to execute the attempt if not prevented.” Black’s Law Dictionary (4th ed. 1951). By contrast, an attempt to commit a crime is “an act done with intent to commit it beyond mere preparation but falling short of its actual commission.” State v. O’Leary, 31 N. J. Super. 411, 412, 417 (App. Div. 1954).

However, these classic definitions do not aid us in resolving the instant question: Are the words “attempt to commit sodomy,” in their ordinary meaning, the exact equivalent of the words “assault with intent to commit sodomy” ? We think not. Although an assault with intent to commit a particular crime is, in general, the same as an attempt to commit that crime, the two are not identical. The assault charge requires a greater degree of proximity to completion of the offense. Perkins on Criminal Law (1957), C. 6, § 3B, states that

The law of assault, crystallizing at a much earlier day than the law of criminal attempt in general, is much more literal in its requirement of “dangerous proximity to success” (actual or apparent) than is the law in regard to an attempt to commit an offense other than battery. ********
It follows that an assault with intent to commit a certain crime generally includes an attempt to commit that crime, but an attempt to commit the crime does not include an assault with intent to commit it. * * * [at 500-501]

In State v. Hetzel, 159 Ohio St. 350, 112 N. E. 2d 369 (Sup. Ct. 1953), the court held that there may be an attempt to commit rape without an assault with intent to commit that crime. The court, in distinguishing the two offenses, noted that

The distinction may be thus defined: An assault is an act done toward the commission of a battery; it must precede the battery, but it does so immediately. The next movement would, at least at all appearance, complete the battery. While an act constituting an attempt to commit a felony may be more remote * * * “the overt act done in the attempt to commit an offense need not be the last proximate act prior to the consummation of the felony intended to be perpetrated.” [112 N. E. 2d at 370],

See also People v. Welsh, 7 Cal. 2d 209, 60 P. 2d 124 (Sup. Ct. 1936). Au example of the “proximity to success” theory is found when penetration cannot be established; in that situation it is usual to prosecute for an assault with intent to commit sodomy. 2 Schlosser, Criminal Laws of New Jersey (3d ed. 1970), § 95.11 at 503.

In State v. Swan, 131 N. J. L. 67, 69 (E. & A. 1944), the court indicated that an attempt to commit rape is committed by the first overt act, i. s, by the “primary attack upon the woman made for the purpose of carrying out the intent.” (Emphasis added).

In the instant case defendant, his two co-defendants, and the victim were all prisoners confined in the county jail. The victim testified that defendant grabbed him from behind and began to punch him about his body. One unidentified inmate tried to take off his trousers. Sebastian demanded that he commit certain aberrant sexual acts,. threatened him with physical harm if he refused, and then attempted by force to copulate with him. Milton was a lookout and signalled that a guard was coming. Thereupon defendant, Sebastian and the other inmate left the cell, terminating the incident.

The State proceeded against defendant and Sebastian upon the alternative theories that each was guilty as principal and also as an aider and abettor of the other. The court charged, without objection, that “any person who aids, abets * * * another to commit a crime is punishable as a principal.” N. J. S. A. 2A:85-14. Thus, although the jury might have concluded that defendant’s conduct may not have been sufficient to have reached that “degree of proximity” to establish his guilt as the one who actually committed an assault with intent to commit sodomy, it also could have properly found that defendant aided and abetted Sebastian in the assault committed by him. Likewise, the jury also may have determined that defendant’s acts in grabbing and hitting his victim were of too equivocal a character to constitute an attempt to commit a crime of a sexual nature. Cf. People v. Goldstein, 146 Cal. App. 2d 268, 303 P. 2d 892, 897 (Cal. D. Ct. App. 1956). Under these circumstances we cannot hold that these verdicts are inconsistent.

However, in the alternative, assuming that they were inconsistent, the modern and majority rule is that consistency between the verdicts on the several counts of an indictment or on several indictments, each charging substantially the same offense, is unnecessary where defendant is convicted on one or some counts or indictments but acquitted on others. Such a conviction will generally be upheld irrespective of its rational incompatibility with the acquittal. Dunn v. United States, 284 U. S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932); see Annotation, 18 A. L. R. 3d 259, 274 and eases cited therein. In Dunn, Justice Holmes wrote,

Consistency in the verdict is not necessary. . Each count in an indictment is regarded as if it was a separate indictment. If separate indictments had been presented * * * and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. [284 U. S. at 393, 52 S. Ct. at 190]

New Jersey specifically adopted the Dunn rule in State v. Roller, 29 N. J. 339, 348-49 (1959).

Defendant also contends that the judgment of conviction should be reversed because there are facts established which are clear, almost beyond any question, which deprive the judgment of any proper foundation. In effect, he argues that the verdict was against the weight of the evidence. However, upon an assessment of the record, we are convinced that the verdict was substantially supported by credible and competent evidence. The weighing of the credibility of the various witnesses was for the jury and we find no plain or obvious failure on its part to perform its function. State v. Cook, 47 N. J. 402, 416 (1966) ; Stale v. Brown, 46 N. J. 96, 108 (1965). Specifically, defendant's identification by the victim, which is attacked here as plain error, was not unduly suggestive nor conducive to a mistaken identification. Certainly, of itself it did not possess a clear capacity to bring about an unjust result. State v. Hock, 54 N. J. 526, 538 (1969).

Affirmed.

       IThe New Jersey Criminal Law Revision Commission’s study draft of a new penal code for this State (Part II, 1970, IIC-4) recommends the elimination of the offenses of assault with intent to commit specific crimes. (A. J. S. A. 2A :148-6; N. J. S. A. 2A :90-2; N. J. S. A. 2A:90-3 and, in part, N. J. S. A. 2A:125-1) and suggests that these offenses he treated as attempts to commit the substantive crime.