author: Bbm’ord, J. O. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ANTON CHAIT-KIN, ELIJAH BOYD, MARK CHRISTOPHER KWICIN-SKI, MAX SAWICKY, RICHARD FREEMAN, KONSTAN-DINOS KALIMTGIS, DEFENDANTS.
    Essex County Court Law Division
    March 24, 1975.

      Mr. Robert J. Schmitt, Jr., attorney, for defendant, Anton Chaitkin (Messrs. Aronsohn, Kahn & Springstead, attorneys; Mr. Robert J. Schmitt, Jr., on iho brief).
    Mr. Lee Shelly for defendant Elijah Boyd.
    Mr. Edward Colligan for defendant Mark Christopher Kwicinski.
    Mr. Myroslaw Smorodsky for defendant Max Sawicky.
    Mr. Sanford Gudger for defendant Richard Freeman.
    Mr. John P. Gleason for defendant Kostandinos Kalimt-gis.
    Mr. Donald Rinaldi, Assistant Prosecutor, for plaintiff (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Bbm’ord, J. O. C.

On January 22, 1975 a motion was granted by this court to consolidate for trial the indictments pending against the five named defendants. The present pretrial motion was filed by defendant Anton Chait-kin on February 19, 1975 and scheduled for preliminary hearing on February 24, 1975. On the date of the hearing Chaitkin’s four codefendants joined in his motion. Subsequently, a sixth defendant, not joined for trial, was permitted to join in the motion.

Tn this motion defendants seek four types of relief, as set forth in the notice of motion and the original brief in support thereof prepared by counsel for Chaitkin: (1) disclosure pursuant to 18 U. S. C. A. § 3504(a), by the Central Intelligence Agency, the Federal Bureau of Investigation and the Attorney General of the United States of the existence or nonexistence of illegal wiretaps and electronic surveillance relating to these defendants; (2) the issuance by the court of a certificate under seal requiring the appearance in this State, before this court, of William Colby, Director of the C. I. A., and Edward Levi, Attorney General of the United States, or their legal representatives, pursuant to N. J. S. A. 2A:81-20, to affirm or deny the existence of electronic surveillance relating to the defendants; (3) staying Joseph P. Lordi, Essex County Prosecutor, from prosecuting defendants until such time as the above federal authorities affirm or deny the existence of electronic surveillance relating to defendants, and (4) dismissal of the indictments against defendants on the grounds of denial of equal protection of the laws with respect to them, in that the indictments were drawn and returned for the improper purpose of chilling the exercise of rights constitutionally guaranteed by the Eirst Amendment and to further punish defendants for the articulation of their political beliefs, and to stifle their participation in constitutionally protected activities against both the policies of the City of Newark and the C. I. A.

The indictments returned against defendants charge them variously with violations of three statutes: (1) N. J. S. A. 2A:151-41, possession of a dangerous weapon; (2) N. J. S. A. 2A:90-4, assault and battery on law enforcement officer, and (3) N. J. S. A. 2A:119-1, larceny from the person. The charges arose from incidents which occurred during a rally conducted by the United States Labor Party at Newark City Hall on September 5, 1973.

Defendants first contended that the various agencies of the Eederal Government, set forth above, must affirm or deny the existence of illegal wiretaps and electronic surveillance pursuant to the procedure established in 18 U. S. C. A. § 3504(a) which reads in relevant part as follows:

Sec. 3504. Litigation concerning sources of evidence (a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States • — ■
(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.

In deciding certain of the issues presented the court refers to the following federal and state authorities for purposes of guidance only. Additionally, the court holds for purposes of this motion that 18 II. 8. O. A. § 3504 and the procedure enacted therein in no way binds a court of this State. At the preliminary hearing of the motion, counsel for the State, counsel for defendants and the Court were in agreement on this point.

However, this court’s ruling that 18 U. 8. C. A. § 3504 is not binding on a court of this State does not end the inquiry, the underlying problem relating to the means by which and under what circumstances a defendant in a criminal prosecution may discover the existence of electronic surveillance remains. To denj^ a defendant any procedure to discover the existence of unlawful electronic surveillance would render nugatory the protection of the Fourth Amendment in the area of electronic surveillance, rights granted by 18 U. 8. O. A. § 2510 et seq. and the Federal and State Constitutions notwithstanding. For this reason an understanding of how federal and state courts have treated the problem is useful.

In enacting federal wiretap legislation, 18 U. 8. C. A. § 2510 et seq., Congress provided no guidance therein as to the means by which an “aggrieved person” might discover the existence of his grievance, i. e., illegal electronic surveillance. The problem thus presented was perhaps best articulated by Judge Bazelon in In re Evans, 146 U. S. App. D. C. 310, 452 F. 2d 1239, 1249 (1971) : “By hypothesis electronic surveillance functions properly when its object has no idea that his communications are being intercepted.” Aware of the problems created by the inherently covert nature of electronic surveillance in the area of Fourth Amendment rights, Congress attempted to remedy the problem by subsequently enacting 18 27. 8.' C. A. § 3504.

The meaning to- be ascribed to § 3504 was discussed in In re Evans, supra. The majority of the court took the position that upon the “mere assertion that unlawful wiretapping has been used against a party” (emphasis supplied) the government must affirm or deny the occurrence of the alleged surveillance. Id. at 1242, 1247. However, in a dissenting opinion by Judge Wilkey it was initially noted (at 1265) that no authority was cited to substantiate the majority’s view. In Judge Wilkey’s view, a “mere assertion” does not qualify as a “claim”:

The meaning of the term “claim” * * * is illuminated by the legislative history accompanying it. This history reveals a Congressional desire for specificity. Congress’ Special Findings requiring that claims that evidence was obtained by the exploitation of unlawful acts be of sufficiently recent vintage (five years or less) in order that there be some degree of certainty of the unlawful source of such evidence, indicate a Congressional intent that such alleged unlawful acts must therefore be set forth. * * * [at 1265-66, emphasis supplied]
Under this statute there are, in effect, two requirements for raising a “claim”: first, the petitioner must have standing to challenge the allegedly unlawful conduct. This would require the petitioner to plead, with at least some degree of specificity, his relation to the allegedly unlawful event and its harmful effect on him. * * * [at 1266]
The second requirement for raising a claim under ***'.§ 3504 (a) (1). * * * is that the claimant must specify whether the evidence which he alleges is inadmissible is either the primary product of an unlawful act, the illegality of which he must show, or that it was obtained by the exploitation of an unlawful act, the illegality of which he must also demonstrate. * * * [at 1268]

The Ninth Circuit is in substantial accord with the view expressed by Judge Wilkey in Evans. In a unanimous opinion by the court it was held in United States v. Alter, 482 F. 2d 1016, 1026 (1973) that in order to “trigger” a § 3504(a) inquiry the “affidavits and other evidence in support of the claim must reveal”:

(1) the specific facts which reasonably lead the affiant to believe that named counsel for the named witness has been subjected to electronic surveillance;
(2) the dates of such suspected surveillance;
(3) the outside dates of representation of the witness by the lawyer during the period of surveillance ;
(4) the identity of the person(s) by name or description, together with their respective telephone numbers, with whom the lawyer was communicating at the time the claimed surveillance took place, and
(5) facts showing some connection between possible electronic surveillance and the grand jury witness who asserts the claim or the grand jury proceeding in which the witness is involved.

The requirements thus enunciated to raise a prima facie claim requiring the government to affirm or deny the existence of electronic surveillance pursuant to § 3504 were distilled to fit the circumstances of the Alter case from Cohen v. United States, 378 F. 2d 751 (9 Cir. 1967). Alter involved a witness called before a grand jury. The witness refused to answer certain questions posed to him on the ground that the questions were predicated on information gathered by unlawful electronic surveillance, a contention which, if established, would have afforded the witness “just cause” to refuse to answer the question. 28 U. S. C. A. § 1826(a); see Gelbard v. United States, 408 U. S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972). Cohen, decided in 1967, prior to the enactment of Section 3504, involved a criminal prosecution in which defendant moved pursuant to Fed. R. Crim. P. 41(e) to suppress evidence which was allegedly the fruit of asserted illegal monitoring of his telephone calls. The Ninth Circuit, citing Nardone v. United States, 308 U. S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939), to support the proposition that evidentiary hearings relating solely to the existence of allegedly tainted evidence are not required, absent solid allegations which raise a bona fide issue concerning the fact of surveillance, devised minimum standards which were required to be met to warrant an evi-dentiary hearing:

The question is whether the allegations in the moving papers, including affidavits if any are filed, are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented * *. [Cohen, supra at 761. emphasis supplied]

The federal courts have had no difficulty analogizing the re- - calcitrant grand jury witness to a defendant charged with crimes, at least insofar as the issue of proof required to “trigger” the disclosure of the occurrence of electronic surveillance is concerned. See In re Evans, supra at 1268, and People v. Cruz, 34 N. Y. 2d 362, 357 N. Y. S. 2d 709, 314 N. E. 2d 39 (Ct. App. 1974).

The briefs and moving papers submitted by defendants and the assistant prosecutor reveal no reported decision by a court of this State dealing with the threshold issues, nor has the court found any. The rights conferred by the Fourth Amendment require some means of implementation. However, the proposition that all a defendant need do to shift the burden to the government to affirm or deny the existence of electronic surveillance is to offer a “mere assertion”, In re Evans, supra,' that he is an “aggrieved person” by virtue of his subjection to unlawful electronic surveillance, is untenable. This court prefers Judge Wilkey’s dissenting opinion in Evans, supra, at 1252-12-74, wherein he presents cogent arguments against the “mere assertion” rule adopted by the majority.

Regardless of the title ascribed to this motion by defendants, the main point, in terms of the first three types of relief sought, is a motion to suppress. Due to the peculiar nature of electronic surveillance as opposed to tangible evidence, a motion to suppress intercepted communications is necessarily a fragmented procedure. This is especially true where the very existence of the surveillance is merely “asserted”. However, the parts of that procedure comprise the whole procedure, which is a motion to suppress. Procedure with regard to suppression of evidence in this State is governed by B. 3 :5-7. The rule provides in pertinent part:

(a) * * * a person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding, may apply * * * to suppress the evidence obtained. [Emphasis supplied]

The language of the rule is unambiguous. The right to move to suppress evidence is conditioned upon (1) a claim by the person that he is aggrieved by an unlawful search and seizure, and (2) a showing of reasonable grounds to believe that the evidence will be used against him in some penal proceeding. These two requirements are conditions precedent to invocation of the right to move for suppression. Cf. State v. Casale, 106 N. J. Super. 157 (App. Div. 1969). Ordinarily, where seizure of tangible and otherwise ordinary evidence, such as contraband, is involved, the person from whom or in whose presence it was seized has immediate knowledge of the seizure, and is aggrieved, if he has standing to object to the use of the item seized as evidence. Where the seizure involves contraband the aggrieved party will invariably have reasonable grounds to believe that the contraband will be used to prove either the fact of possession or some other crime related to possession of contraband. Therefore, in the typical situation the issues of standing and “reasonable grounds to believe” do not present material questions, and consequently, the only issue upon which proofs are taken is whether or not the search and seizure was lawful.

On the other hand, where the existence of tainted evidence can only be suggested, as is the situation here, material questions of fact concerning the standing of a claimant and the reasonableness of his grounds to believe that the evidence derived from the alleged surveillance will be used against him necessarily arise. These preliminary issues must be resolved before the hearing can shift to other issues.

Initially, therefore, each of the defendants' should have and does have the burden of coming forward with the facts which reasonably lead him to believe that he has been subjected to unlawful electronic surveillance. R. 3:5-7; United States v. Alter, supra at 1026; People v. Cruz, supra, 357 N. Y. S. 2d at 713, 314 N. E. 2d at 42. Additionally, in claiming that he is an aggrieved party each defendant must allege a proprietary, possessory or participating interest in. the place or places where the conversations were supposed to have been seized. Cf. State v. Allen, 113 N. J. Super. 245 (App. Div. 1970), and In re Search of C. Co. Premises, 115 N. J. Super. 262 (App. Div. 1971). In determining the reasonableness of each defendant’s belief that he has been subjected to unlawful electronic surveillance, the court shall be guided by the standards set forth in Cohen v. United States, United States v. Alter and People v. Cruz, all supra. From the principles set forth in these cases, the standards shall be as follows:

(1) Defendant’s allegation should be reasonably precise;

(2) The allegation should be set forth, insofar as practicable (a) the dates of suspected surveillance, (b) the identity of the persons and their telephone numbers, and (c) the facts relied upon which allegedly link the suspected surveillance to the trial proceedings.

Defendants do not have to plead and prove their entire case to establish standing and to trigger further inquiry. The court insists, however, that defendants present a prima facie showing of reasonable belief that they were subjected to illegal electronic surveillance and that the conversations thus obtained or the unattenuated fruits thereof will be used as evidence against them in this prosecution. See United States v. Alter, supra at 1026.

Without expressing an opinion concerning the conclusion reached by the court on the facts presented in Commonwealth v. Borghmann, 55 D. & C. 2d 247 (Pa. C. P. 1971) cited in the Chaitkin brief, we point out that the same initial burden was placed on defendants in that case. Although couched in terms of avoiding a "fishing expedition” the court in Borghmann without reference to reported decisions or rule of court, required defendants "(at '248) to prove the reasonableness of their belief that, they had been subjected to unlawful electronic surveillance.

Until all of the requisite proofs have been submitted to the court on the narrow issues of "standing” and "reasonableness” and a ruling made thereon, no further proceedings shall be conducted by the court, nor shall the requested process issue.


source: Caselaw Access Project

author: Meredith, J. S. C.

license: Public Domain

text:
    IN RE: INVESTIGATION OF A MULTI-VEHICLE ACCIDENT
    Superior Court of New Jersey Law Division
    June 24, 1975.

      Mr. Henry E. Rzemieniewski for W. (Messrs. Chase, Rzemieniewski and Gorney, attorneys).

      Mr. Leonard N. Arnold, First Assistant Prosecutor, for the State of New Jersey (Mr. Stephen R. Champi, Somerset County Prosecutor, attorney).
   Meredith, J. S. C.

This matter comes before the court by way of a motion by the State to detain W. for a period.not to exceed three hours for the purpose of taking his photograph to be used in a photographic lineup. In addition, the State requests authority to take paint samples from and photographs of a 1973 Ford half-ton pickup truck.

• In support of its application, the State has submitted an affidavit from a Hillsborough Township police officer which relates the following facts.

On April 5, 1975 a motor vehicle accident occurred involving two cars and one pickup truck. A witness to the accident has told the affiant that a green pickup truck was involved in the accident and that its driver was an approximately 38 to 40-year-old white male, having short black hair with white streaks in it. After conducting an investigation the affiant has found a truck belonging to W. which matches the description of the truck involved in the accident. Furthermore, the affiant has seen the W. truck and it has sustained recent damage to its right side which, according to witnesses, corresponds to the damage sustained by the truck in the accident. Also, W. matches the description of the driver of the green truck involved in the accident. The paint sample that is requested is to be compared with paint left on a car as a result of the collision, and the photograph of W. is to be used in a photographic lineup for the witness who indicates that he could probably identify the driver of the hit-and-run truck.

In the court’s view the requests made here by the State are functionally the equivalent of an application for a search warrant. Procedurally, this motion differs from a search warrant in that the adversary argument as to validity is taking place prior to, rather than after, the contemplated action. Nevertheless, the court feels that the touchstone of the inquiry in regard to the State’s requests, must be the Fourth Amendment.

The court believes that it is appropriate to deal with the State’s requests as to W.’s person and as to his truck separately because of the differing considerations involved. Attention will first focus upon the request for detention in order to take a photograph.

The court finds that the State’s detention request involves one intrusion within the meaning of the Fourth Amendment. The seizure of the person of W. which would be necessary in order to effectuate the three-hour detention in clearly a seizure in the constitutional sense. Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Cupp v. Murphy, 412 U. S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973). Plowever, the taking of his photograph is not. k person’s facial features are constantly exposed to the public, and what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U. S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967).

At the outset it should be noted that during oral argument the State conceded that no probable cause in the traditional sense exists for the search or the arrest of W. The court agrees with the evaluation and so holds.

Instead of relying on traditional probable cause, the State grounds its request on what it terms a developing body of ease law subsequent to Davis v. Mississippi, 394 U. S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), in regard to the obtaining of body exemplars. In Davis the Supreme Court reversed a state rape conviction of a 14-year-old boy because his incriminating fingerprints, admitted in evidence, were taken by police in the course of an illegal detention of the boy.

In order to understand the thrust of the State’s position it is necessary to specifically discuss some of the more pertinent cases that are raised.

Wise v. Murphy, 275 A. 2d 205 (D. C. Ct. App. 1971), is a case in which the District of Columbia Court of Appeals affirmed a lower court order requiring a suspect in a rape case to be detained for a lineup. The basic facts are that the victim of the rape had stated that one photograph among pictures of possible suspects revealed features similar to those of the man that had assaulted her. The court concluded that even though the facts did not rise to the level of probable cause, the procedure employed did meet the Eourth Amendment requirement of reasonableness.

The present case involves the offense of leaving the scene of an accident. This is substantially less serious than a rape investigation. Without either embracing or rejecting the holding in Wise v. Murphy, the court feels that Wise distinguishes itself from the present matter by the following language:

Under proper circumstances, and against a backdrop of required specificity, suck a device as court-ordered lineups can .prove to be reasonably related to governmental and private rights, and thus a constitutional balance regarding both. Grave reservations exist, however, as to whether this type of court-ordered lineup, not connected with a formal arrest, may be used constitutionally in other than serious 'felonies involving grave personal injuries or threats of the same. The governmental interest, though serious, is not of the same magnitude in commercial crimes involving property or money such as forgery or false pretenses or other less serious offenses. While the “sounder course” is to view all intrusions “in light of all exigencies of the case”, Terry v. Ohio, 892 U. S. 1, 17 n. 15, 88 S. Ct. 1868, 1878, [20 L. Ed. 2d 889] (1968), it would seem that some offenses, not involving serious personal injury or danger, weigh less as a part in the “central element in the analysis of reasonableness.” Id. In such cases it is highly likely that the governmental interests in law enforcement cannot outweigh the right of liberty, or freedom from being ordered into even the most antiseptic lineup, under circumstances short of traditional probable cause for formal arrest. Of course, each case must be considered on its own facts, [at 216]

In re Fingerprinting of M. B., 125 N. J. Super. 115 (App. Div. 1973), involved the propriety of an order requiring the fingerprinting of a group of students. The basis for the order was that a school class ring had been found 44 feet away from the body of a murder victim. In affirming the order, the Appellate Division relied upon the following language from Davis v. Mississippi, supra:

* * * It is arguable, however, that because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v. Municipal Court, 387 U. S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Detention for fingerprinting may constitute a much less serious intrusion upon pers’onal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.” Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time. [394 U. S. at 727, 89 S. Ct. at 1397-1398]

Thus, it seems that the court’s decision is grounded upon the unique nature of the fingerprinting process. The present application is for a detention in order to take a photograph. This does not involve the “unique nature” of fingerprinting with its “inherently more reliable and effective crime-solving” value. Therefore, the court finds that In re Fingerprinting of M. B., supra, is distinguishable upon its facts.

The State also makes reference to the Supreme Court decisions in United States v. Dionisio, 410 U. S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973), and United States v. Mara, 410 U. S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973). These eases held that federal grand jury subpoenas requiring witnesses to produce voice exemplars and handwriting samples did not violate Fourth Amendment rights. The basis of these decisions was that a grand jury subpoena was not a seizure within the Fourth Amendment (410 U. S. at 9, 93 S. Ct. at 769) and that the production of a person’s voice and handwriting did not violate an expectation of privacy protected by the Fourth Amendment (410 U. S. at 14, 93 S. Ct. at 771-772 and 410 U. S. at 21-22, 93 S. Ct. at 776). Thus, these cases did not involve any intrusion in the Fourth Amendment sense and therefore, no Fourth Amendment showing of reasonableness was necessary. The present application, on the other hand, does contemplate a seizure which must be justified by Fourth Amendment standards.

The court need not survey the other specific cases raised by the State. It is, however, significant to point out that eases that have allowed pre-arrest detentions in order to obtain body exemplars have generally involved murder, sexual abuse or other serious crimes. See Cupp v. Murphy, supra; Early v. People, 178 Colo. 167, 496 P. 2d 1021 (Sup. Ct. 1972), and Merola v. Fico, 81 Misc. 2d 206, 365 N. Y. S. 2d 743 (Sup. Ct. 1975).

Since the requested order in regard to W. envisions a Fourth Amendment intrusion, the court must judge it in light of the underlying standard of the Fourth Amendment that is, the standard of unreasonableness. State v. Miller, 47 N. J. 273, 278 (1966); State v. Davis, 50 N. J. 16, 22 (1967); State v. McKnight, 52 N. J. 35, 58 (1968) ; El- kins v. United States, 364 U. S. 206, 222, 80 S. Ct. 1437, 1446, 4 L. Ed. 2d 1669 (1960); Terry v. Ohio, supra, 392 U. S. at 9, 88 S. Ct. at 1873; Wyman v. James, 400 U. S. 309, 318, 91 S. Ct. 381, 386, 27 L. Ed. 2d 408 (1971). Traditionally, probable cause has been the minimum requirement for a reasonable search permitted by the Constitution. State v. Waltz, 61 N. J. 83, 87 (1972); Chambers v. Maroney, 399 U. S. 42, 51, 90 S. Ct. 1975, 1981, 26 L. Ed. 2d 419 (1970). However, there is no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails. Camara v. Municipal Court, supra, 387 U. S. at 536-537, 87 S. Ct. at 1735.

In the present matter the need to search grows out of a police investigation of a hit-and-Tun motor vehicle accident. The Fourth Amendment intrusion that is entailed in the State’s request is the seizure of an individual and his three-hour detention at a police station. In balancing these two interests, the court concludes that the State’s detention request must be denied. The reasons for this conclusion are that first, there is no probable cause sufficient for the issuance of a warrant and secondly, the requested action is unreasonable in view of the limited investigative facts submitted by the State, the seriousness of the intrusion involved in the station-house detention, and the gravamen of the offense under investigation.

The State’s requests in reference to the W. truck are to take paint samples from its exterior and to take photographs of it.

Motor vehicles have occupied a special place in search and seizure law in that an exception to the warrant requirement has been established in regard to stopping and searching a vehicle. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Chambers v. Maroney, supra. This warrant exception has developed because of the mobility inherent in a motor vehicle. It has not, however, stripped motor vehicles of Fourth Amendment protections. Motor vehicle or no motor vehicle, there must be probable cause for its search. Almeida-Sanchez v. United States; 413 U. S. 266, 269, 93- S. Ct. 2535, 2537-2538, 37 L. Ed. 2d 596 (1973).

• These principles have recently been reaffirmed by the Supreme Court in Cardwell v. Lewis, 417 U. S. 583, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974). In Gardwell the police had probable cause to arrest the defendant for murder and they also had probable cause to believe that the defendant’s car was used in the commission of the crime. Subsequent to his arrest the police towed the defendant’s car from a commercial parking lot to their impoundment lot. There they conducted, a warrantless examination of the car which revealed that a tire matched the cast of a tire impression made at the crime scene and that paint samples taken from the defendant’s vehicle were not different from foreign paint on the fender of the victim’s car. In upholding the warrantless actions of the police, the court said:

With the “search” limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed * *. * Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments. [417 U. S. at 591, 94 S. Ct. at 2470]

The State’s application in the present matter to take paint scrapings from the W. truck is a seizure of part of the physical exterior of the vehicle in the Fourth Amendment sense. In the court’s view, this action entails an invasion into a constitutionally protected area. Although this search is far less intrusive than the search and seizure of a person, it is nevertheless still a search and it must be so justified. As discussed earlier, all parties agree that there is no probable cause sufficient to link W. to the incident under investigation. The only other relevant facts are that the accident involved a green pickup truck and that the W. vehicle is green and has damage to its right side. Without a firm nexus between W., the owner of the vehicle, and the traffic accident, the facts about his truck are too tenuous to give rise to probable cause sufficient to authorize a search of it. This is the primary distinction between the present application and the action in Cardwell v. Lewis, supra, in which there was probable cause for the defendant’s arrest and for a belief that his car was used in the commission of the crime. Therefore, without the necessary element of probable cause, the State’s request to take the paint scrapings must be denied.

Lastly, the State seeks authority to take photographs of the W. truck. In determining this request the court is aware that a motor vehicle, by its nature, is constantly exposed to the public. Therefore, the court sees no invasion into any expectation of privacy by authorizing the police to view and photograph the W. truck. This decision is reached in deference to the principle that “insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.” Cardwell v. Lewis, supra, 417 U. S. at 591, 94 S. Ct. at 2470. Thus, since no Fourth Amendment interest is being violated, the court grants this part of the State’s application. In executing this order the court cautions the State not to infringe upon or interfere with the normal workings of the W. household.

In reaching its conclusions, the court is not endeavoring to frustrate legitimate law enforcement interests. Bather, its goal is to insure effective administration of constitutional rights. This is the ultimate concern in balancing the rights of the individual and the rights of the society in general.

The State’s motion is denied in part and granted in part in accordance with this opinion.


author: Per Curiam.

text:
    JOHN BORLAND, JR., ET AL., APPELLANTS, v. Richard McDonough, etc., et al., respondents.
    Superior Court of New Jersey Appellate Division
    Argued June 3, 1975
    Decided July 3, 1975.

      Before Judges Matthews, Eritz and Botter.

      Mr. Harold Krieger argued the cause for appellants (Messrs. Krieger & Chodash, attorneys; Mr. David Fein-silver, on the brief).

      Mr. Omer F. Brown, II, Deputy Attorney General, argued the cause for respondents (Mr. William F. Hyland, Attorney General, attorney; Mr. Stephen STcillman, Assistant Attorney General, of counsel).
   Per Curiam.

This case is a companion to Borland v. Bayonne Hospital, 133 N. J. Super. 387 (Ch. Div. 1973), which we affirmed this date.

After the Chancery Division judge granted summary judgment in favor of defendant hospitals in the companion ease, the action remained pending against defendant Commissioners. The Commissioners then moved before the Chancery Division to transfer that action to this court since it then consisted of an appeal from an administrative decision of a state agency. See R. 3:3-3 (a) (3). The motion was granted. Thereafter we remanded the pending action to the Commissioners for expansion of the record. The- record, as expanded, has been returned and we proceed to a disposition of the merits.

Basically, plaintiffs complain that the differential in the rates paid by the Hospital Service Plan of New Jersey (Blue Cross) to hospitals as per diem reimbursement are discriminatory against them because that rate is lower than the rate charged by the hospitals to non-Blue Cross subscribers. The same constitutional arguments advanced in Borland v. Bayonne Hospital, above, are advanced here. The arguments of discrimination involving the Equal Protection Clause were rejected in the companion case by the Chancéry Division judge, and we affirmed that rejection. We see no reason to change our decision because of the arguments advanced here. We are satisfied that there is a failure on .the part of plaintiffs to prove that the differential in rates charged by the hospitals because of the action of the commissioners constitutes either a deprivation of due process or equal protection.

Plaintiffs also contend that the statute relevant to the duties of the Commissioners in approving reimbursement rates mandates that the hospitals be reimbursed so that they recoup their total costs. The statute in question, N. J. S. A. 26:2H-18, reads in pertinent part:

b. Payment by government agencies for health care services provided by a health care facility shall be at rates established by the commissioner, based on elements of costs approved by him. * * * d. * * * In establishing such rates, the commissioners shall take into consideration the total costs of the health care facility.

We do not read the statute as requiring that the rates fixed reimburse the hospitals so that they recoup their total cost outlay; rather, the statute clearly requires only that the Commissioners consider the total costs in determining the percentage of costs to be reimbursed. To hold otherwise would divest the Commissioners completely of discretion and actually render unnecessary the approval proceedings required by the Legislature under the statute, thus reducing the Commissioners’ duties to nothing more' than a rubber stamp.

Plaintiffs next argue that the guidelines under which the Commissioners are to determine the approved reimbursement rates are unduly vague. As noted, the statutes require that the Commissioners approve reimbursement rates after considering the hospitals’ total costs. The legislative scheme established obviously relies upon the Commissioners’ expertise and the proper use of discretion in a very complex area. Delineation of specific statutory guidelines would serve only to restrict the Commissioners’ exercise of discretion. -The exercise of discretion by the Commissioners, and the establishment of guidelines by them in carrying out the legislative mandate, are subject to judicial review. See N. J. 8. A. 36 :2H-17.

Finally, plaintiffs argue the Commissioners must hold hearings before setting reimbursement rates. We have so held recently in an unrelated case.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES MC PHERSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted June 24, 1975
    Decided July 3, 1975.

      Before Judges Collester, Kolovsky and Halpere.

      Mr. Stanley G. Van Ness, Public Defender of New Jersey, attorney for appellant (Mr. Michael R. Klehman, Assistant Deputy Public Defender, of counsel and on the brief).

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

Defendant appeals from a judgment of conviction, entered on a jury verdict, finding him guilty of rape, in violation of N. J. S. A. 2A:138-1. He seeks a reversal of his conviction contending the trial judge erred in (a) denying his motion for a judgment of acquittal at the end of the State’s ease and (b) in failing to charge fornication as a lesser included offense to rape. We find no merit in either contention and affirm.

The jury could find from the uncontradicted proofs offered by the State (defendant did not testify) that during the early morning hours of June 3, 1973, defendant forced the victim, an 18-year-old female, to have sexual relations with him against her will. Briefly stated, the victim testified she cried and pleaded with defendant to take her home and hot to have sexual relations with her — she did her best to talk him out of it, but when this failed she submitted out of fear of what he might do to her if she resisted. She had been taught in school to refrain from resisting, when further resistance appeared futile, in view of the possible danger of serious bodily harm. Her immediate complaints of the rape to her close friends and the police were corroborated by other state witnesses. Her schoolteacher corroborated her testimony of their class discussions concerning what action to take when confronted with a rapist. She underwent a physical examination shortly after the attack and the medical proof indicated there was trauma to her hymenal ring, a reddish colored area in her vagina and spermatozoa in her vaginal canal.

Viewing the State’s evidence in its entirety, and giving the State the benefit of all its favorable testimony as well as all the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find defendant guilty of rape beyond a reasonable doubt. State v. Reyes, 50 N. J. 454, 458-459 (1967); State v. Fiorello, 36 N. J. 80 (1961), cert. den. 368 U. S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962). Defendant’s argument that force and lack of consent had not been established lacks substance. The victim was not duly bound to resist “to the uttermost” — the law requires that she resist as much as possible under the circumstances. State v. Terry, 89 N. J. Super. 445, 448-449 (App. Div. 1965). The jury could properly find that under the existing circumstances she acted wisely in not resisting “to the uttermost,” but nonetheless the essential elements to convict for rape had been proven. Terry, supra.

Nor did the trial judge err in failing to charge on fornication. Contrary to defendant’s contention: “[T]here need not be a jury charge with respect to an included offense unless there is a rational basis in the evidence for a finding that the defendant was not guilty of the higher offense charged but guilty of the lesser included offense.” State v. Saulnier, 63 N. J. 199, 206-207 (1973). We find no rational basis in this case warranting a fornication charge. The uncontradicted proofs pointed to a charge of rape, and not to fornication.

Affirmed.


author: Michels, J. A. D.

text:
    LOUIS PANZINO, PETITIONER-RESPONDENT, v. CONTINENTAL CAN COMPANY, INC., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted June 9, 1975
    Decided July 3, 1975.

      Before Judges Michels, Moboan and Milmed.

      Mr. John W. Taylor, attorney for appellant.

      Messrs. Goldberger, Siegel & Finn, attorneys for respondent (Mr. Jerry M. Finn, of counsel).
   The opinion of the court was delivered by

Michels, J. A. D.

Respondent employer appeals from a judgment in the Division of Workmen’s Compensation awarding petitioner-employee workmen’s compensation benefits for loss of hearing due to occupational exposure to noise.

Petitioner worked for respondent for 39 years, retiring on March 31, 1966. During the course of his employment he was exposed to loud noises which resulted in a 54% permanent binaural hearing loss. Although petitioner noticed his hearing difficulty immediately after he retired in March 1966, he testified that he first became aware that it was due to noise exposure when, sometime around Labor Day 1972, former fellow employees informed him that they were applying for compensation benefits for hearing losses sustained while employed by respondent. On September 14, 1972 petitioner filed a claim petition seeking compensation for the hearing loss. A hearing on the petition was held in the Division on September 14, 1974. In the interim, on July 3, 1974, the periods of limitation for claiming compensation for occupational disease set forth in N. J. S. A. 34:15-34 were amended by our Legislature {L. 1974, c. 65, § 1). Prior to the 1974 amendment the statute provided in pertinent part:

All claims for compensation for compensable occupational disease shall be barred unless a petition is filed * ^ * within two years after the date on which the employee ceased to be exposed in the course of employment with the employer to such occupational disease as here-inabove defined, or within one year after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration. * * *
Notwithstanding any provision of this section hereinabove set forth, all claims for compensation for compensable occupational disease hereunder shall be forever barred unless a petition is filed * * * within five years after the date on which the employee ceased to be exposed in the course of employment with the employer to such occupational disease; * *

The 1974 amendment, which became effective on July 3, 1974, in pertinent part now provides:

Notwithstanding time limitation for the filing of claims for compensation as set forth in sections 34:15-41 and 34:15-51, or as set forth in any other section of this Title, there shall be no time limitation upon the filing of claims for compensation for compensable occupational disease, as hereinabove defined; provided, however, that where a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for compensable occupational disease shall be barred unless a petition is filed,* * * within 2 years after the date on which the claimant first haxl such knowledge; * * *.

The judge of compensation held that the 1974 amendment conferred upon the Division jurisdiction over the petitioner’s claim notwithstanding the fact that the claim was barred by the statute of limitation in effect at the time the petition was filed.

As a general rule the terms of a statute are not given retroactive operation '' 'unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intent of the legislature cannot otherwise be satisfied.’” LaParre v. Y. M. C. A. of the Oranges, 30 N. J. 225, 229 (1959). However, where a statute relates solely to procedure it is applicable to pending proceedings unless such application would disturb fixed rights or impair contract obligations. Neel v. Ball, 6 N. J. 546, 551 (1951); In re Tenure Hearing of Grossman, 127 N. J. Super. 13, 35 (App. Div. 1974), certif. den. 65 N. J. 292 (1974); 3 Sutherland, Statutory Construction (4 ed. 1973), §§ 41.05 — 41.09.

We are satisfied that the compensation judge erred by giving retroactive effect to the 1974 amendment of N. J. S. A. 34:15-34 in order to confer upon the Division jurisdiction over petitioner’s claim. Such application impaired defendant’s vested right to impose the bar of the former statute of limitations which had extinguished petitioner’s claim by March 1971. See State v. Standard Oil Co., 5 N. J. 281 (1950), aff’d 341 U. S. 438, 71 S. Ct. 833, 95 L. Ed. 1078 (1950), wherein our Supreme Court stated:

* * * The principle is embedded in our jurisprudence that where a right of action has become barred under existing law, the statutory defense constitutes a vested right whieh is proof against legislative impairment. The protection is the same whether the debtor has satisfied the demand or has become released from the obligation by the operation of the statute of limitations, [at 293-294]
* * *
Under our law, the right to interpose the bar of the statute of limitations to actions in contract of this class is a vested property right which the law-making body may not abrogate or impair. It is fundamental that the denial of the remedy affects the substance of the right in the constitutional sense. Henderson v. Weber, 131 N. J. L. 299 (E. & A. 1944), appeal dismissed 322 U. S. 713, 64 S. Ct. 1270, 88 L. Ed. 1555 (1944). When the remedy is taken away, the right ceases to exist, [at 296]

Petitioner’s claim for compensation was barred by the former statute of limitations, and the Division therefore had no jurisdiction to entertain it. See De Asio v. Bayonne, 63 N. J. Super. 333, 335-336 (App. Div. 1960), certif. den. 33 N. J. 386 (1960); Davis v. State, 44 N. J. Super. 435, 441-443 (App. Div. 1957); Riccioni v. American Cynamid Co., 36 N. J. Super. 1, 5 (App. Div. 1953), certif. den. 13 N. J. 289 (1953).

Eor the foregoing reasons, the judgment of the Division of Workmen’s Compensation is reversed, and petitioner’s claim for compensation is dismissed.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD BOWMAN, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 9, 1975
    Decided July 8, 1975.
    Before Judges Collester, Lora and Handler.

      Mr. Gregory S. Baxter argued the cause for appellant (Messrs. Saling, Moore, O’Mara & Coogan, attorneys).

      Mr. Daniel J. Fitzpatrick, Jr., Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Pee Curiam.

This is an appeal from a judgment of the Monmouth County Court, following a trial de novo, which upheld the 90-day county jail sentence of defendant by the Belmar Municipal Court upon his conviction as a second offender for violation of the Compulsory Motor Vehicle Insurance Law (N. J. S. A. 39:6B-2). Defendant had previously pleaded guilty as a first offender in the Brielle Municipal Court where he had been fined.

We affirm substantially for the reasons expressed in the opinion of Judge McCann reported at 131 N. J. Super. 209 (Cty. Ct. 1914). Supplementing the opinion, we find no basis for the claim raised for the first time in the County Court and again urged on this appeal, that defendant’s conviction as a second offender is void because the State failed to prove he knowingly waived his right to counsel when he pleaded guilty in the Brielle Municipal Court. The certification by the judge of that court, submitted following an order enlarging the appellate record, clearly shows that defendant was advised of his right to counsel and knowingly-waived it before he pleaded guilty.

Affirmed.


author: Allcorn, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MICHAEL BATTAGLIA, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued .Tune 3, 1975
    Decided June 17, 1975.

      Before Judges Kolovsky, Lynch and Allcoen.

      Michael R. Rubino, Jr., Assistant Prosecutor argued the cause for the appellant (Joseph C. Woodcock, Jr., Prosecutor of Bergen County, attorney).

      John J. Baldino argued the cause for the respondent (Ca-lissi, Klinger, Cuccio & Baldino, attorneys).
   The opinion of the court was delivered by

Allcorn, J. A. D.

By the adoption of N. J. S. A. 24:21-27 the Legislature authorized the establishment of the suspension procedure for qualifying individuals charged with certain offenses under the Controlled Dangerous Substances Act, N. J. S. A. 24:21 — 1 et seq. That same section delineated the limits within which the suspension procedure might be used.

In language that is clear and unambiguous, eligibility for the suspension procedure is restricted to those persons "charged with or convicted of any offense under subsections 20a. (1), (2) and (3), and b.” N. J. S. A. 24:21-27. The cited subsections, N. J. S. A. 24:21-20(a). (1), (2), (3) and (b), proscribe only simple possession, use or being under the influence of the controlled dangerous substances therein specified. Plainly, therefore, the suspension procedure is not available except in the case of first offenders charged with one or more of the three enumerated offenses — and a trial judge is completely without the authority to enlarge the suspension procedure to embrace other offenses such as possession with intent to distribute controlled dangerous substances, prohibited by N. J. S. A. 24:21-19, or conspiracy to possess and distribute controlled dangerous substances under N. J. S. A. 2A :98 — 1.

Consequently where, as here, a defendant has been charged in three counts of a single indictment with (1) conspiracy to possess and distribute marijuana, (2) possession of marijuana and (3) possession with intent to distribute marijuana (the quantity of marijuana reportedly approximating 12 pounds), the trial court may not entertain or grant an application for the suspension of proceedings under N. J. 8. A. 24:21-27 as to any one or more of the charges, including the charge of simple possession, before the disposition of all of the charges. If, after disposition of all the charges, the defendant stands convicted only of the charge of simple possession, he would be eligible at that time to make an application for a suspension of proceedings as permitted by the cited section. By this means both the letter and the intent of the suspension procedure are met and observed.

Accordingly, the order of the Law Division of December 4, 1974 suspending “all further proceedings [on all counts of] Indictment S-54L-74,” is reversed and set aside in its entirety, and the cause is remanded to the Law Division for further proceedings not inconsistent herewith


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

text:
    BARBETTA AGENCY, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. THE EVENING NEWS PUBLISHING CO., INC., A NEW JERSEY CORPORATION, AND FRANK G. MEGARO, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 9, 1975
    Decided June 27, 1975.

      Before Judges Leonard, Seidman and Bischoee.

      Messrs. Kaufman & Kaufman, attorneys for appellant (Mr. Meyer L. Rosenthal on the brief).

      Messrs. Margolis & Bergstein, attorneys for respondent Erank G. Megaro (Mr. Melvyn H. Bergstein, on the brief).

      Messrs. Yauch, Peterpaul & Ciarle, attorneys for respondent The Evening Hews Publishing Co., Inc. (Mr. John H. Yauch, Jr., on the brief).
   The opinion of the court was delivered by

Leonard, P. J. A. D.

Plaintiff, a licensed real estate broker, appeals from summary judgment entered in favor of defendants Evening Hews Publishing Co. (Hews) and Erank G. Megaro, a Hewark councilman and state assemblyman.

Suit was instituted by plaintiff charging defendants with defamation arising from the publication of an article in the News in which plaintiff along with four other brokerage agencies were accused of “block-busting.” The article in question charged plaintiff with “using fear and panic techniques in urging homeowners to sell their property” and with violating certain municipal ordinances designed to discourage block-busting by regulating the size and format of “For Sale” signs.

The affidavits submitted in support of defendants’ motions for summary judgment revealed that prior to the publication of the article the News had received a press release from Megaro citing widespread abuses of Newark’s sign ordinances and calling for more effective enforcement of the municipality’s existing safeguards against the destructive practice of real estate block-busting. Believing that the subject matter of the press release was newsworthy, the city editor of the News assigned a reporter to investigate and prepare a report. As part of the investigation, Megaro, as well as a number of other community leaders, realtors and residents were interviewed. The ordinances were examined and several of plaintiff’s signs were photographed.

Megaro stated that he had issued the press release as the result of several anonymous telephone calls he had received from his constituents. The callers had voiced complaints to him concerning phone calls they had received from plaintiff urging them to sell their houses and about the nature of plaintiff’s signs. When Megaro was interviewed by the newspaper in connection with his press release he related to the reporter that he had received several more complaints from his constituents concerning “both the signs and panic-arousing phone calls from realtors * * * including, particularly, the Barbetta Agency.” Megaro further stated that he had personally observed several of plaintiff’s signs which he believed were in violation of the ordinances.

Plaintiff did not submit any affidavits in opposition to defendants’ motions for summary judgment. However, in depositions plaintiff’s president unequivocally admitted that certain of the agency’s signs were in fact in violation of the ordinances.

Preliminarily, we note when alleged defamatory words are unambiguous and open only to a single interpretation, it is the function of the trial court to determine as a matter of law whether such words are actionable. If the words are found to possess a defamatory meaning, it becomes defendant’s burden to establish the existence of a privilege that will justify the publication of the words. The existence of privilege is basically a question of law for the court, subject to the exercise of the jury’s traditional function where the facts are in dispute. Once the existence of privilege is established, the burden is on plaintiff to prove that such privilege was abused. Sokolay v. Edelin, 65 N. J. Super. 112, 122-128 (App. Div. 1961).

In the instant case, there was no dispute that the statements contained in the article were defamatory or actionable. Likewise, plaintiff did not seriously contest that the communication was subject to a qualified privilege. Rather, it sought to show an abuse of privilege or at least that a genuine issue of fact existed with respect thereto.

In his letter opinion the trial judge, relying on New York Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and, particularly, Rosenbloom v. Metromedia, 403 U. S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971), ruled as a matter.of law that the News was constitutionally privileged to publish the article in question because block-busting was a matter of public concern. As to defendant Megaro, he likewise found the existence of a qualified privilege, citing Solcolay, supra. It was thus incumbent upon plaintiff to demonstrate facts that would defeat or destroy the privilege. The trial judge concluded that no such showing had been made. Accordingly, summary judgment was entered in favor of defendants.

The sole question presented for our consideration is whether a genuine issue of material fact existed upon the defense of privilege asserted by each defendant.

In New York Times, supra, 376 U. S. at 279 — 80, 84 S. Ct. at 726, the Supreme Court held that a “public official” could not recover damages for defamation unless he clearly and convincingly proved that “the statement was made with ’actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Since the decision in New York Times, what constitutes “reckless disregard” has undergone judicial refinement. It has been defined to require “a high degree of awareness of probable falsity,” Garrison v. Louisiana, 379 U. S. 64, 74, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125 (1964), or “evidence * * * that the defendant in fact entertained serious doubts as to the truih of his publication,” St. Amant v. Thompson, 390 U. S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262 (1968).

The rule granting a constitutional privilege against liability for injury caused by the publication of an allegedly defamatory falsehood was extended to encompass “public figures” by Curtis Publishing Co. v. Butts; Associated Press v. Walker, 388 U. S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). This constitutional protection was again extended by a sharply divided court in Rosenbloom, supra 403 U. S. at 44-45, 91 S. Ct. at 1820, to include “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” (Emphasis supplied).

This was the status of the law at the time of the hearing on the motions for summary judgment. Thereat, plaintiff additionally conceded that the newspaper article involved matters of public concern. Thus the single issue facing the trial judge was whether the article in question was published with “actual malice,” as this term had been defined by New York Times and its progeny, so as to vitiate the privilege.

However, as to Megaro, the trial judge reached his conclusion upon state law. We have long recognized the existence of a qualified privilege that confers immunity upon a public official for defamation uttered in relation to matters committed by law to his control or supervision. Coleman v. Newark Morning Ledger Co., 29 N. J. 357, 380 (1959). Moreover, it has been held in Coleman (at 375-376) and Sokolay, supra 65 N. J. Super, at 123 that:

A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege would be slanderous and actionable; the fundamental test is the bona fides of the communication, and it is not privileged when the person making it has full knowledge of its untruthfulness.

It was this privilege that the trial judge held to protect Megaro and which he found plaintiff had failed to overcome.

Subsequent to the decision of the trial judge, but prior to the filing of plaintiff’s appellate brief, the United States Supreme Court decided Gertz v. Robert Welch, Inc., 418 U. S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). Therein the court retreated from the plurality position in Rosenbloom. The issue was whether a newspaper or broadcaster that published defamatory falsehoods about an individual who was neither a public official nor a public figure could claim a constitutional privilege against liability for the injury inflicted by these statements. The court held that the extension of the New York Times test proposed by the Rosenbloom plurality would abridge the legitimate state interest in compensating injury to private individuals to an unacceptable degree. Id. 418 U. S. at 345-46, 94 S. Ct. 2997. Accordingly, the Gertz court announced the following rule:

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. * * * At least this conclusion obtains where, as here, the substance of the defamatory statement “makes substantial danger to reputation apparent.” [at 347-48, 94 S. Ct. at 3010]

The court further held, however, that when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth (“actual malice” as formulated in New York Times), the states may not permit defamation plaintiffs to recover presumed or punitive damages, but only compensation for actual injury.

The instant case falls squarely within the intended application of Gertz. It is clear that the substance of the defamatory statement made “substantial damage to [plaintiff’s] reputation apparent.” In such situations, however, Gertz does not compel the courts of our state to depart from the Bosenbloom standard of liability, applied by the trial judge, when dealing with private defamation plaintiffs and matters of public concern. Eather Gertz affords us the option to fashion some lesser standard for liability, short of strict liability, in such cases. The contemplated standard is that of negligence. Id. 418 U. S. at 353-54, 94 S. Ct. 2997 (concurring opinion), 355 (dissenting opinion), 366-367 (dissenting opinion). However, if we desire to allow defamation plaintiffs to recover presumed damages, we must require them to prove that defendant acted with actual malice and not merely negligently. It is to be noted that several state courts have recently rejected Gertz’ invitation to require some lesser standard of liability and have instead decided to adhere to the more rigorous requirements of the Bosenbloom standard. See Aafco Heating & Air Con. Co. v. Northwest Pub., Inc., 321 N. E. 2d 580 (Ind. Ct. App. 1974); Safarets, Inc. v. Gannet Co., 80 Misc. 2d 109, 361 N. Y. S. 2d 276 (Sup. Ct. 1974).

For the reasons expressed infra, we conclude that in the context of the instant case it is unnecessary for us to decide whether to continue to apply the Bosenbloom doctrine or to espouse the negligence standard permitted by Gertz since under either theory plaintiff has failed to make the requisite showing to defeat defendants’ qualified privilege.

First, assuming without deciding that Gertz applies with equal force to private as well as media defendants, we note plaintiff’s utter failure up until the present time to demonstrate any facts which, if true, would indicate that either defendant acted negligently, let alone maliciously. Admittedly at the time the summary judgment motion was heard Gertz had not yet been decided and therefore plaintiff was not aware of the possibility that a showing by it of negligence on the part of defendants could suffice to defeat their asserted privilege. Nevertheless, as noted previously, plaintiff filed its appellate brief post Gertz. Therein plaintiff makes no mention of this decision. Moreover, plaintiff made no reply to defendant News’ answering brief which fully treats the Gertz decision and emphasizes the total lack of any proof of negligence offered by plaintiff. Nor did plaintiff, at any time during the pendency of this appeal, seek permission from us to make an allegation of negligence or to present any facts in support thereof by affidavit or otherwise.

Furthermore, there is not a scintilla of evidence in plaintiff’s pleadings, the affidavits presented by defendants to the trial court in support of their motions for summary judgment, or in the depositions that form part of the record on appeal from which we can conclude that a genuine issue of material fact exists as to whether defendants abused their privilege. On the contrary, it is uncontroverted that Megaro had personally observed plaintiff’s signs and had received, not one or two, but several telephone calls from his constituents complaining of plaintiff’s panic-arousing tactics. Moreover, it appears that the News conducted a thorough investigation of both the allegations contained in the press release and those expressed orally to its reporter and found them to be accurate in all respects.

We are not unmindful that ordinarily negligence is a question of fact for the jury to determine. Nevertheless, in the instant case, despite ample opportunity to do so, plaintiff has not even asserted negligence let alone presented any facts to support such an assertion. We therefore hold that summary judgment was properly granted since no genuine issue of material fact existed upon defendants’ claim of privilege, and this is true whether the negligence standard permitted by Gerlz or the “actual malice” standard of New York Times/Rosenbloom is applied.

Finally, assuming without deciding that neither Gerlz nor Rosenbloom applies to Megaro, we nevertheless conclude that plaintiff has similarly failed to demonstrate such facts as would destroy the heretofore discussed qualified privilege granted him under state law. In order to overcome this privilege, it was plaintiff’s burden to establish “malice in fact.” Tt must show that “the statements complained of were made from an indirect or improper motive, and not for a reason which would otherwise render them privileged.” Coleman, supra 29 N. J. at 373. Although summary judgment ordinarily is not granted where issues of subjective intent are involved, herein, plaintiff offered no relevant proof of any such intent and, to the contrary, the pleadings, depositions, affidavits and oral argument clearly indicate that Megaro’s statements and press release were made without malice. Sokolay, supra, 65 N. J. Super, at 126-28. Thus, we find no genuine issue of fact established to defeat Megaro’s defense of qualified privilege.

Accordingly, the summary judgment as to defendants News and Megaro is affirmed.

      This question has not been conclusively decided. See Davis v. Schuchat, 510 F. 2d 731, 734 n. 3 (D. C. Cir. 1975) ; but see, Grove v. Dun & Bradstreet, Inc., 438 F. 2d 433 (3 Cir. 1971), cert. den. 404 U. S. 898, 92 S. Ct. 204, 30 L. Ed. 2d 175 (1971).


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

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LEONEL CANOLA, A/K/A LEON VASQUEZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Submitted September 23, 1974
    Decided June 13, 1975.

      Before Judges Collesteb, Loba and Handles.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Harvey I. Marcus, Designated Attorney, of counsel and on the brief).

      Mr. Joseph G. Woodcock, Jr., Bergen County Prosecutor, attorney. for respondent (Mr. Adam Lawrence, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Collester, P. J. A. D.

Defendant Leonel Canola, also known as Leonel Vasquez, was found guilty by a jury of the felony murders of Michael Bahtiarian and Harold Lloredo. He was sentenced to concurrent terms of imprisonment for life. This appeal followed.

The State’s proofs showed that at approximately 9:50 a.m. on November 16, 1971 two armed men entered a jewelry store in Englewood and held up Michael Bahtiarian, the owner, and Aram Bagdasarian, an employee. Bahtiarian and Bagdasarian were forced into the back room where they were relieved of their personal jewelry and money. Two other men then entered the store carrying canvas bags and began to collect jewelry in the display cases. Bahtiarian was compelled to open one of the safes. While the robbery was in progress a delivery man and a salesman entered the store and were forced at gunpoint to the rear of the store. After three of the robbers left the store Bahtiarian grappled with the fourth man and Bagdasarian went to the aid of his employer. When the robber called for assistance one of his accomplices reentered the store and shot Bahtiarian. Bahtiarian, who had a pistol concealed on his person, then drew the weapon and shot his assailant, who ran from the store and collapsed and died on the sidewalk. Bahtiarian, who was mortally wounded, fell to the floor. The three other robbers escaped with jewelry valued at $65,000.

The deceased gunman was identified as Harold Lloredo who had resided in Elizabeth. On the day following the crime Detective Cúbelo questioned Caesar Echevarria, Lloredo’s former roommate. Echevarria told the detective he had been in defendant’s New York apartment the night before the holdup with four men who were planning the robbery and identified them as Harold Lloredo, Eernando Geraldo, a man known as “Toston,” and defendant. He also told Cnbelo that Lloredo said he would be leaving for Spain with $35,000 or $40,000 after the robbery. Echevarria said he had been in Canola’s apartment when defendant returned after the robbery carrying a bag filled with jewelry and that Canola said he believed that Lloredo had been killed. Thereafter, Cúbelo and other police officers, accompanied by Echevarria, went to defendant’s apartment in Queens, New York. Ottoniel Trujillo, Canola’s roommate, informed them that defendant had given him a watch and had gone to his brother’s apartment in the Bronx, taking with him a bag of jewelry. The police then went to Jamie Canola’s apartment where during a search for defendant they found a bag containing the stolen jewelry. When shortly thereafter Canola entered the apartment he was placed under arrest.

According to the testimony of the State’s witnesses Canola confessed to his participation in the crimes charged. The first confession was made orally to Detective Cúbelo at the New York police precinct immediately following defendant’s arrest. The second confession was made the following day after defendant was returned to New Jersey when Canola was questioned by Assistant Prosecutor Buckley. His statement was recorded and transcribed by a court reporter.

In his confessions defendant admitted the robbery had been planned with Lloredo, Geraldo and Toston in his New York apartment. On the following day they drove to Engle-wood using two cars. Canola said Lloredo and Geraldo entered the jewelry store first and held up the persons inside. He and Toston then entered and collected jewelry in bags. When he, Toston and Lloredo left the store, Geraldo remained behind. He heard Geraldo call out to Lloredo, who reentered the store. Shots were then fired. Toston and Geraldo fled in one of the cars. Canola walked away with a bag of jewelry and took a bus to Now York.

Defendant, testifying in his own behalf, denied that he participated in the crimes. He said that he accompanied Lloredo to Englewood because Lloredo told him he had some business there. They were joined by Geraldo and Toston, who were in another car. Canola said when they arrived in Engle-wood Lloredo left, telling him to remain in the car. A short time later Geraldo and Toston came to the car with three blue bags. They told him Lloredo would return later and then drove him to his New York apartment where Geraldo gave him one of the bags to hold for Lloredo. Canola said he did not realize a robbery had taken place until he opened the bag and found that it contained jewelry.

Several of the points urged by defendant on this appeal as grounds for a reversal can be disposed of summarily, namely; (1) error in granting the State’s motion to sever counts charging armed robbery from trial of the indictment; (2) error in the questioning of witnesses by the trial judge; (3) error in the admission into evidence of a knife, gun and bullets found at the scene of the crime, and (4) error in the admission into evidence of photographs of the deceased victims. We have carefully considered the arguments advanced by defendant in support of each point and find them to be totally lacking in merit.

Defendant also contends the trial court erred in denying his motion to suppress evidence obtained as a result of a warrantless search of his New York apartment. Pie claims the entry into the apartment was illegal and that all evidence which followed, including defendant’s confessions, were “fruit of the poisonous tree” and therefore inadmissible. Pie argues that no probable cause existed to search the premises because there was no proof that Echevarria was a reliable informer and there was no independent effort by the, police to corroborate the information received from the informer. We find no merit in this argument. Echevarria was not the traditional police informer whose disclosures of criminal activity require some verification of his trustworthiness in order to establish his credibility. He was a citizen-informer who occupies a different status^ See generally, State v. Lakomy, 126 N. J. Super. 430, 434-437 (App. Div. 1974). He furnished relevant information to the police and agreed to point out defendant’s New York apartment to the officers and to identify the defendant. Accordingly, there was no need to verify his credibility and reliability before action was taken by the police. Based on such information and the independent knowledge of the police concerning the details' of the crime there was sufficient probable cause to arrest the defendant. Having learned the names and addresses of two of the robbers, the police were in hot pursuit and continuously followed a trail from Elizabeth to New York. Erom the deceased gunman’s statement to Echevarria the police were justified in believing that the robbers, who were Colombian nationals, had planned to leave the country after converting the stolen jewelry into cash. Under such circumstances it is clear that the exigencies of the situation made entry into defendant’s apartment without a search warrant imperative. Maryland Penitentiary v. Hayden, 387 U. S. 294, 298-299, 87 S. Ct. 1642, 1645, 18 L. Ed. 2d 782, 787 (1967).

Defendant further asserts the trial judge erred in ruling that his two oral confessions had been made voluntarily and were admissible as evidence against him. He argues that such testimony should not have been permitted because, contrary to the trial court’s findings, (1) the language used in warning him of his constitutional right to remain silent did not comply with the mandate of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (2) there was no knowing waiver of his constitutional rights because he did not understand the felony murder doctrine; (3) the confessions were induced after he was confronted with illegally seized evidence, and (4) the confessions were made during a period of illegal delay in taking defendant before a magistrate for arraignment.

We find no merit in any of the arguments raised by the defendant. A reading of the record of the voir dire hearings supports the court’s findings that defendant was fully advised of his constitutional rights by Detective Cúbelo and that he knowingly and voluntarily waived such rights before his oral confession. While the trial judge concluded that the warnings given thereafter by the assistant prosecutor were not in the precise context of Miranda, the court properly held that the prior warnings given by Cúbelo and a New York magistrate the previous day were sufficient to make the second confession admissible. See State v. Magee, 52 N. J. 352, 374 (1968), cert. den. sub nom. Magee v. New Jersey, 393 U. S. 1097 (1969). Defendant’s claim that he did not waive his constitutional rights because he did not understand the felony murder doctrine is untenable. In State v. McKnight, 52 N. J. 35, 55 (1968), the court held that if a defendant was given the Miranda warnings, his waiver is no less voluntary, knowing and intelligent because he misconceived the inculpatory thrust of the facts he admitted. See also, State v. McRae, 276 N. C. 308, 172 S. E. 2d 37, 40-41 (Sup. Ct. 1970). Defendant’s argument that his confessions were induced after he was confronted with illegally seized evidence is not supported by the record. It is also clear that there was no unreasonable delay in bringing defendant before a magistrate. Moreover, if there was a delay it would be only an element to be considered in determining whether the confession was made voluntarily. State v. Jones, 53 N. J. 568, 570-573 (1969). We are satisfied and hold that the testimony of defendant’s oral confessions was properly admitted into evidence.

Defendant contends the trial court erred in denying his motion to dismiss the second count of the indictment charging him with the felony murder of Harold Lloredo. He argues here, as he did below, that he cannot be held for felony murder as a matter of law because Lloredo was shot and killed by Bahtiarian, one of the victims of the armed robbery. In denying the motion the trial court held the language of N. J. S. A. 2A:113-1, particularly the clause, “if the death of anyone ensues from the committing or attempting to commit any such crime or act,” (hereinafter referred to as the “ensues clause”) indicated a legislative policy which holds one (and others in concert with him) who deliberately commits an inherently violent act fully responsible for the probable consequences of the act.

The question of whether a participant in an armed robbery can he held liable for murder when his co-participant is killed by an intended victim in an attempt to abort an armed robbery has not heretofore been considered by our appellate courts. The resolution of the question depends upon the Legislature’s intent when N. J. S. A. 2A:113-1 was enacted.

The statute, in pertinent part, reads as follows:

If any person, in committting or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act; * * * then such person so killing is guilty of murder.

At both common law and today by statute all participants in any of the felonies referred to in the statute are equally guilty as principals. Roesel v. State, 62 N. J. L. 216, 222 (E. & A. 1898); N. J. S. A. 2A :85-14.

Defendant bases his argument upon the “agency theory” of liability. adopted in Commonwealth v. Redline 391 Pa. 486, 137 A. 2d 472 (Sup. Ct. 1958); in felony murder cases. In that case defendant and a co-felon, during the commission of an armed robbery, engaged in a gun battle with the police during which the co-felon was killed by police bullets. In finding defendant not guilty of a charge of murder of the co-felon the court held that in order to convict for felony murder the killing must have been done by defendant or someone acting in concert with him in furtherance of the felonious undertaking; that the death must be a consequence of the felony and not merely coincidental, and that a justifiable homicide could not be availed of to support a charge of murder.

We are satisfied that defendant’s reliance upon Commonwealth v. Bedline, supra, is misplaced because the statute upon which the court based its decision differs from our statute. The Pennsylvania statute provides that “a criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit * * * robbery (and other designated felonies).” See Pa. Stat. Ann. Tit. 18, § 2502. Numerous courts of other jurisdictions which have the same or similar statutes follow the agency theory adopted in Redline, while others recognize the concept of proximate cause as a basis for imposing criminal liability under the felony murder rule. It is noteworthy that some of the courts which have adopted the Redline agency theory formerly followed the proximate cause theory for imposing criminal liability under the felony murder rule. For a review of the felony murder doctrine involved, see Annotation, “Felony-Murder — Killing by Another,” 56 A. L. R. 3d 239 (1974).

N. J. S. A. 2A:113-1 has no counterpart among the felony murder statutes in other jurisdictions which have considered murder prosecutions predicated upon a killing of an accomplice by one resisting a felony. The distinguishing feature in our statute is the “ensues clause,” referred to above. Thus cases of other states are of no aid in deciding the question presented in the instant case.

Our statute has been interpreted in three reported opinions where defendants moved to dismiss indictments charging them with felony murder and the trial judges differed in their conclusions. In State v. Kress, 105 N. J. Super. 514 (Law Div. 1969), three bank robbers were indicted for the murder of a bank official who was shot and killed by police when one of the robbers used him as a shield while attempting to escape after committing an armed robbery. Defendants moved to dismiss the indictment, contending that since the death of the bank official was caused by a policeman’s bullet, a charge of murder against them had no basis in law. In denying the motion the trial judge held that the interpretation to be given N. J. S. A. 2A:113-1, in view of the “ensues clause,” justified a charge of murder against defendants.

The trial judge in State v. Suit, 129 N. J. Super. 336 (Law Div. 1974), reached a different result. In that case defendant, as here, was indicted for murder when his co-participant in an armed robbery was shot and killed by one of the victims in an attempt to abort the robbery. In granting a motion to dismiss the indictment the trial judge concluded the' defendant could not be held to answer a charge of felony murder since the act that resulted in his accomplice’s death could not be directly attributable to defendant in furtherance of the common plan to commit robbery, nor could defendant be said to be the “person so killing” under the language of the statute, and that the victim’s voluntary responsive actions resulted in what might be termed a justifiable homicide.

, In State v. Burton, 130 N. J. Super. 174 (Law Div. 1974), defendant was indicted for the murder of two of his accomplices who were killed by the police while they and the defendant were committing an armed robbery. In denying a motion to dismiss the indictment the trial judge stated that a reading of the statute indicated the Legislature intended to extend criminal accountability beyond that imposed upon a felon under the common law. The judge hold that the “ensues clause” evidenced a legislative intent to adhere to the proximate cause theory of felony murder and to extend the culpability of a defendant to all deaths which occurred during the commission of any of the offenses designated in the statute.

A resolution of the narrow issue here involved depends upon the intention of the Legislature when it included the “ensues clause” in the statute. The clause was incorporated in the statute when it was first enacted in 1796 and has been continued in all supplements, amendments and revisions of the statute. We think it is clear that the clause was not intended to be mere surplusage where it appears that the other provisions of the statute, standing alone, embody the concept of felony murder under the common law. Such an interpretation would violate one of the cardinal rules of statutory construction that full force and effect must be given, if possible, to every word, clause and sentence of a statute. A construction that will render any part of a statute inoperative, superfluous or meaningless, is to be avoided. Hoffman v. Hock, 8 N. J. 397, 406 (1952).

The proximate cause theory, simply stated, is that when a felon sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, the felon, and those acting in concert with him, should be held responsible for any death which by direct and almost inevitable consequences results from the initial criminal act.

We agree with the court’s interpretation of the statute in State v. Burton, supra. In our view the statute indicates an intention on the part of the Legislature to extend criminal responsibility beyond that imposed upon a felon at common law and to hold liable all participants in an armed robbery for deaths which occur during the commission of the crime. We conclude that the trial judge properly denied the motion to dismiss the indictment.

Lastly, it is urged that the trial, judge erred in imposing two concurrent life sentences. He relies upon State v. Mills, 51 N. J. 277 (1968), where multiple deaths resulted from a single act of arson. We conclude that the argument lacks substance. It is clear that two distinct homicides were committed by separate and distinct criminal acts and the trial judge properly sentenced defendant for each murder. State v. Carter, 54 N. J. 436, 451-452 (1969), cert. den. sub nom. Carter v. New Jersey, 397 U. S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970).

Affirmed.

Handler, J. A. D.

(dissenting in part and concurring in part). I would reverse the conviction of defendant upon the second count of the indictment. This charged him with the felony murder of one of his accomplices, Harold Lloredo. I would reverse substantially for the reasons set forth in the decision of Judge McGowan in State v. Suit, 129 N. J. Super. 336 (Law Div. 1974).

A majority of the jurisdictions that have considered this issue adhere to the view that in applying the felony murder doctrine a felon cannot be found guilty for the death of an accomplice occurring during the commission of the felony. E.g., Commonwealth v. Redline, 391 Pa. 486, 137 A. 2d 472 (Sup. Ct. 1958); Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A. 2d 550 (Sup. Ct. 1970); Commonwealth v. Banks, 454 Pa. 401, 311 A. 2d 576 (Sup. Ct. 1973); Sheriff, Clark County v. Hicks, 89 Nev. 78, 506 P. 2d 766 (Sup. Ct. 1973); People v. Hickman, 12 Ill. App. 3d 412, 297 N. E. 2d 582 (App. Ct. 1973); People v. Hudson, 6 Ill. App. 3d 1062, 287 N. E. 2d 41 (App. Ct. 1972); People v. Morris, 1 Ill. App. 3d 566, 274 N. E. 2d 898 (App. Ct. 1971); People v. Washington, 62 Cal. 2d 777, 44 Cal. Rptr. 442, 402 P. 2d 130 (Sup. Ct. 1965); Commonwealth v. Balliro, 349 Mass. 505, 209 N. E. 2d 308, 14 A. L. R. 3d 640 (Sup. Jud. Ct. 1965); People v. Austin, 370 Mich. 12, 120 N. W. 2d 766 (Sup. Ct. 1963); People v. Wood, 8 N. Y. 2d 48, 201 N. Y. S. 2d 328, 167 N. E. 2d 736 (Ct. App. 1960); cf. Alvarez v. District Ct. etc., Denver, 525 P. 2d 1131 (Colo. Sup. Ct. 1974); State v. Garner, 238 La. 563, 115 So. 2d 855 (Sup. Ct. 1959); State v. Majors, 237 S. W. 486 (Mo. Sup. Ct. 1922); Commonwealth v. Moore, 121 Ky. 97, 88 S. W. 1085 (Sup. Ct. 1905).

It is, I believe, unduly stressed by the majority opinion that the New Jersey statute, N. J. S. A. 2A:113-1, because of the inclusion of the “ensues clause,” differs from the law applicable in other states, which have adopted the so-called “agency theory” of felony-murder. It does not follow, however, that a different result is dictated by this statutory difference. The courts which have taken this approach have not emphasized such distinctions. Moreover, in those jurisdictions which espouse a “proximate cause” approach to felony-murder, as recommended by the majority here, the actuating factor was not a statutory provision similar to that of the “ensues clause” of the New Jersey statute. E.g., Johnson v. State, 386 P. 2d 336 (Okl. Cr. App. 1963); State v. Morran, 131 Mont. 17, 306 P. 2d 679 (Sup. Ct. 1957); Miers v. State, 157 Tex. Cr. R. 572, 251 S. W. 2d 404 (Crim. App. 1952); Wilson v. State, 188 Ark. 846, 68 S. W. 2d 100 (Sup. Ct. 1934).

In my view the “ensues clause” is not the catalyst which transmutes criminal culpability in the context of a felony-murder from agency to proximate cause. No cogent argument has been presented that, by the inclusion of the language of the “ensues clause,” the Legislature intended to affix criminal responsibility upon a felon for murder in the highest degree for the justifiable, accidental or unintended death of a eo-felon on the theory of proximate cause. Eather, the purpose of the “ensues clause” would appear to be a legislative attempt to insure a broadened scope of criminal responsibility with respect to a defendant who, as a primary actor or in concert with or through the criminal agency of another, actually or constructively, but in furtherance of the felony, causes the death of another person.

While the statute, even without the “ensues clause,” might well be so interpreted and applied, it was within the legislative province to give unmistakeable and emphatic expression of this intent. It does not follow, therefore, as thought by the majority and expressed in State v. Burton, 130 N. J. Super. 174 (Law Div. 1974), that the “ensues clause” is mere sur-plusage and acquires a sensible meaning, together with the final phrase of the statute, only upon a thesis of proximate cause. On the contrary, in my view the “ensues clause” underscores a legislative intent, in defining felony murder, to expand the class of victims whose death might occur in the course of a felony and to cover killings which might otherwise be considered too distantly connected with the felony, provided they fall within its res gestae. So understood, the entire statute makes reasonable sense when limited only to a defendant who actually participates in the killing, or does so through the agency of a partner in the crime, whether as a principal or an aider and abettor, whether directly or indirectly, by acts or conduct in furtherance of the commission of the felony.

In other respects, I concur in the majority opinion.

      Harold Lloredo was also known as Harold Vollalaros, Harold Gomez, and Harold Cecedio.

      Fernando Geraldo was also known as Jesus Borbon.

      “Toston’s” name was Inacio Cadavid, also known as Inacio Rodriguez.

       In State v. Bunk, 4 N. J. 461, 467 — 468 (1950) the Supreme Court held it was not called upon to decide the question which was raised as a collateral issue where the defendants were convicted of the murder of a victim during the course of an armed robbery.

      See Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595 (Sup. Ct. 1949), cert. den. 339 U. S. 924, 70 S. Ct. 614, 94 L. Ed. 1346 (1950) ; Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204 (Sup. Ct. 1955) ; People v. Harrison, 176 Cal. App. 2d 330, 1 Cal. Rptr. 414 (Ct. App. 1959) ; People v. Podolski, 332 Mich. 508, 52 N. W. 2d 201 (Sup. Ct. 1952), cert. den. 344 U. S. 845, 73 S. Ct. 62, 97 L. Ed. 657 (1952).


text:
    DEPENDABLE CONTAINER SERVICE, INC., PLAINTIFF-APPELLANT, v. NEW JERSEY TURNPIKE AUTHORITY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted June 17, 1975
    Decided June 24, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Messrs. Ronca & McDonald, attorneys for appellant {Mr. John J. Ronca on the brief).

      Messrs. McElroy, Connell, Foley & Geiser, attorneys for respondent (Mr. William U. Graham, of counsel and on the brief).
   Per Curiam.

The New Jersey Turnpike Authority is so plainly and clearly a public entity within the meaning of that term as defined in N. J. S. A. 59 :l-3, as to leave no room for construction. See N. J. S. A. 27:23-1 et seq. Consequently, the present action — a subrogation action in which the insurer of the plaintiff is the real party in interest — is barred by the express proscription contained in the New Jersey Tort Claims Act. N. J. S. A. 59:9-2(e).

Affirmed.