author: Schwartz, L., J. C. C.,

text:
    BARRY GARDENS, A JOINT VENTURE, MILAN ASSOCIATES, INC., PAULISON ASSOCIATES, INC., CORPORATIONS OF THE STATE OF NEW JERSEY, THE TOWER APARTMENTS, A PARTNERSHIP, PLAINTIFFS, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION OF PASSAIC COUNTY, NEW JERSEY, AND RENT LEVELING BOARD OF THE CITY OF PASSAIC, DEFENDANTS. ANTHONY IAFELICE AND F. WILLIAM KOESTNER, A PARTNERSHIP, TRADING AS K. & I. LAUNDROMAT, PLAINTIFFS, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION IN THE COUNTY OF PASSAIC, NEW JERSEY, AND RENT LEVELING BOARD OF THE CITY OF PASSAIC, DEFENDANTS.
    Superior Court, of New Jersey Law Division
    Decided September 27, 1974.

      Mr. Martin Klughaupt for plaintiffs Barry Gardens, Milan Associates, Inc., Paulison Associates, Inc. and The Tower Apartments.

      Mr. Joseph L. Freiman for plaintiffs Anthony Iafelice and P. William Koestner.

      Messrs. Leonard M. Bitterman and Joseph F. Scancarella for defendant City of Passaic.

      Mr. Joseph A. Pojanowski, III for defendant Bent Level-ling Board of the City of Passaic.
   Schwartz, L., J. C. C.,

Temporarily Assigned. In these consolidated actions in lieu of prerogative writs brought by owners of apartment buildings in the City of Passaic, the validity of the rent levelling ordinance, as amended, is attacked.

Since the ordinance is presumed to be valid, Garden State Racing Ass’n v. Cherry Hill Tp., 42 N. J. 454, 464 (1964), plaintiffs bore the burden of establishing its invalidity. Their original thrust was to urge the exercise of the police power in the area of rent stabilization was unjustified by reason of the absence of an emergency in available public housing accommodations in the city.

Plaintiff failed to support this contention by the presentation of affirmative evidence in this respect. On the other hand, I am satisfied from the testimony of Miss Grace Harris, who eminently qualified as a planning expert and who prepared a housing analysis in 1973, that the City of Passaic, as one of the oldest urban centers of population, has not been immune from a serious shortage of housing facilities, and I find as a fact from the testimony adduced that a housing shortage of emergency proportions exists in the City of Passaic.

However, the court has concluded that this issue may no longer be considered in determining the validity of a local rent control ordinance.

According to the statistics compiled by the United States Census Bureau from the 1970 census, Hew Jersey contains a more numerous population (953.1 persons) per square mile than any other of the 50 states in the Union.

The urgent nature of housing unavailability in the State to accommodate its citizens was outlined by Governor Cahill on December 7, 1970 in a special message to the Legislature, A Blueprint for Housing in New Jersey, describing the housing crisis:

The current problems with which we are confronted are familiar to each one of us. Most young married couples are prohibited from purchasing a home because of existing housing prices. Huge segments of our work force, although earning more today than ever before, are confronted with the same problem. Tenants in many areas of our State are facing substantial increases in rent, many of whom can ill afford it, but are unable to find apartment vacancies elsewhere. Our senior citizens living on fixed incomes cannot continue to pay the spiralling property taxes on their homes, nor the high rental cost of an apartment, if any at all are available. These people, the young and the aged, the teacher and the mechanic, white and black, are thrifty and respectable citizens, yet they are foreclosed from decent and adequate housing at a reasonable cost in areas of their choice. The reason is obvious. There is a complete inadequacy of single and multi-family dwellings, and the law of supply and demand is raising the cost of the existing housing out of the reach of the average man. So the problem is present, and it is critical!

The economy and the housing situation throughout the State continued to deteriorate, and N. J. S. A. 2A :18-53 was amended in several respects by the Legislature in L. 1974, c. 49, including the following:

4. No landlord may evict or fail to renew any lease of any premises covered by section 2 of this act except for good cause as defined in section 2.

Section 2 specifies the only "causes” permitting removal of a residential tenant by the court, such causes not including the right previously held by the landlord to secure possession after termination of a lease or to terminate a month-to-month tenancy upon a mere 30-days’ notice.

The withdrawal from property owners in every municipality of the right of dispossession on the basis of a mere notice to quit or termination of leasehold, which has been a recognized incident of property ownership from the time of Henry VIII (Steffens v. Earl, 40 N. J. L. 128, 133 (Sup. Ct. 1878)), would not be constitutionally justified unless an emergent housing shortage made it almost impossible for dispossessed tenants to locate other housing accommodations. The landlord is denied the right of eviction for the purpose of self-occupancy, of selection of his tenant, and of rehabilitation of the premises.

Though unexpressed in the statute, the conclusion must be reached that the Legislature implicitly but unquestionably recognized the existence of a rental housing emergency throughout this State, and in furtherance of a public policy to relieve hardships arising from such housing unavailability it withdrew the previously acknowledged reversionary interest of landlords from the bundle of property rights held by them.

One of the "causes” fox eviction under § 2, par. (f), of the statute is:

f. The person has failed to make payment after a valid notice to quit and notice of increase of said rent, providing the increase of rent is not unconscionable and complies with any and all laws or municipal ordinances governing rent increases.

The Legislature thereby recognized the power of a municipality to adopt a rent control ordinance, furnishing the occasion for its exercise of the police power to alleviate a common peril or need (Jamouneau v. Harner, 16 N. J. 500, 514 (1954)) and based upon the Legislature’s implicit determination that a state of housing emergency exists in this State.

The standard of compliance with “municipal ordinances governing rent increases” in the 1974 amendment is a more specific recognition of municipal power to regulate residential rents than is N. J. S. A. 40:48-2 which the Supreme Court regarded as express delegation of authority to municipalities to legislate in this field, Inganamort v. Fort Lee, 62 N. J. 521 (1973), and the statute also provides a standard that the increase of rent shall not be “unconscionable.” The implication is clear that the Legislature determined the emergent state of housing was state-wide, applying to all qommunities, as the constitutionality of rent control regulation rests upon a critical shortage of housing. Inganamort at 527 and 546.

Statutory provisions may have implied effects. “As in the case of all kinds of communication, there are emanations of meaning from a statute beyond what is directly and obviously indicated to be its primary application.” Sands, Statutes and Statutory Construction (4 ed.), § 55.02 at 381. The scope of the statute’s operation may be broadened to include implied consequences.

By analogy, although covenants in a lease do not in affirmative terms express an undertaking to repair, yet the obligation to do so may arise by implication. Michaels v. Brookchester Inc., 26 N. J. 379, 390 (1958). Similarly, while the Motor Vehicle Act is a penal statute and gives no private right of action for injuries resulting from a violation, in suits based upon negligence, unobservance of the statute is regarded as negligence per se in some states (Hamblin v. Mountain States Tel. & Tel. Co., 271 F. 2d 562 (10 Cir. 1959)), and is a circumstance to be considered in determining if there is negligence in New Jersey. Varlaro v. Schultz, 82 N. J. Super. 142, 148 (App. Div. 1964).

The court finds no perceivable reason to differentiate between the emergent basis for and legislative consequence of .rstraints against tenant removal and corresponding restraints against rent increase. We cannot presume the Legislature intended to treat these subjects mentioned in the statute in an inconsistent manner.

This statute was enacted after Inganamort, supra, when state law did “not deal with the evil at hand — a housing shortage and concomitant overreaching of tenants,” and subsequent to Albigese v. Jersey City, 127 N. J. Super. 101 (Law Div. 1974). It was not an issue presented to the Appellate Division which substantially affirmed the latter decision on August 7, 1974.

The statute is presumed to be valid, there being no decision contra. I am satisfied that the subject of the housing emergency has been dealt with and determined at state level and the existence or nonexistence of a local housing emergency cannot be made a fact issue in a challenge to the constitutionality of a municipal rent levelling ordinance.

The legislative history indicates that this was the intent of the Legislature in amending N. J. S. A. 2A:18-53. In the Statement appended to the statute at the time of its introduction as Assembly Bill No. 1586, the remedy sought was based upon “a critical shortage of rental housing space in New Jersey.”

One may distinguish this recitation from the preamble to the State Eent Control Act of 1953, c. 216, N. J. S. 2A :42-14 (now expired), in which the Legislature laid the groundwork for local option by stating “a serious public emergency exists in certain areas in this State * * *”

The determination by a Legislature concerning public conditions (critical housing shortage) that by necessity and duty it must know, is entitled at least to great respect. Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865 (1921).

In this instance the New Jersey Legislature is deemed to have proclaimed a critical predicament and we must assume the emergency did exist state-wide, to the embarrassment of government and risk to the public health.

Plaintiffs urge that the ordinance was adopted without the presentation of evidence before the governing body to warrant the exercise of police power in this direction.

At the legislative end of the spectrum of local couneilmanic power, a judicial type of hearing is not required and fact-finding is inappropriate to legislative procedures. Yellow Cab Corp. v. Passaic City Council, 124 N. J. Super. 570 (Law Div. 1973).

Plaintiffs urge an arbitrary discrimination arises from the provisions of the ordinance in that all rented premises are not similarly treated in the levelling regulations since those tenants occupying premises as month-to-month tenants are not similarly affected by the regulations as those occupying under written leases, and owners of smaller rental dwellings are not under rent control.

The reasoning of Judge Larner in Albigese, supra, 127 N. J. Super. at 114 to 116, is fully applicable here, concluding with:

It does not represent an invidious discrimination and is based upon rational grounds. Although the legislation could have been made applicable to all rentals, and although other suggestions might be made for a different point of demarcation, the court has no right to interfere with the legislative discretion so long as the result comports with rationality.

The Legislature has a wide discretion in classifying objects of the law. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things. Jamouneau v. Harner, 16 N. J. supra at 519.

While most municipalities which have adopted rent stabilizing ordinances have related authorized rent increases to the consumer price index for this metropolitan region, the City of Passaic posited rental increases upon a "cost of operations” standard, meaning "operational costs to landlord based on taxes, labor, fuel, utilities, contractor services, administrative expenses, insurance, parts and services and replacement costs.”

Admittedly, this may provide for a smaller rental increase than under the generally accepted consumer price index which has soared on the wings of uncontrolled inflation. Yet it is a more logical barometer for an increase in real estate operational costs than the general cost of living elements comprising the consumer price index, many of which are unrelated to real estate maintenance costs.

As the court said in ATbigese, supra:

The mere fact that there may be other methods, even more preferable, to achieve the same end does not dictate that the method selected by this governing body is invalid. If it is not arbitrary and reasonably achieves the intended purpose with due regard to the property rights of the landlord as well as the needs of the tenants, it passes judicial muster. The court cannot supplant the local legislature’s discretion with its own opinion of alternative methods of dealing with the subject matter. The municipal action is beyond judicial intrusion. [127 N. J. Super. at 118]

It must be borne in mind that this is not a price-fixing ordinance. The provisions for rent increases are superimposed upon the amount of rent initially determined by the landlord himself. A number of provisions for rental increases are made available by this ordinance which meet the charge of confiscation levelled by the challengers of the ordinance. Tn addition to the base rent (in effect on January 11, 1973), an increase not in excess of 7% of such rent to accommodate the cost of operations is automatically permitted.

Under the supervision of a rent levelling board, provision is also made for a tax surcharge “because of an increase of the tax levy on the real property”; for a hardship increase to “provide a return based on the true value of the real estate as determined by the municipal assessment”; for additional rental for any major capital improvement or any substantial increase in the services rendered to the tenants, not to exceed 15% of the tenant’s rent then in effect, and the landlord may include therein the interest expense required to finance the improvements; initial rent decontrol is provided where 40% of the assessed value of the property is expended for major renovation.

These considerations and administrative standards for rental increases satisfy constitutional requirements. Under these provisions both the public interest and the landlords’ rights of property may be accommodated and fair and equitable rent return afforded. If the rent levelling board abuses its discretion, relief may be had in the courts.

In this instance plaintiffs did not exhaust the remedies provided by the ordinance. Therefore the court will not determine if the current rents or the rents they are seeking to establish are within the ambit of the ordinance.

The ordinance has been amended three times since its original adoption and plaintiffs allege conflicts have arisen in the respective provisions.

It is a well settled rule of construction where there are two possible interpretations of an ordinance, by one of which it would be valid and by the other it would be invalid, the court should adopt the construction which would uphold the validity of the regulations. Adams Newark Theatre Co. v. Newark, 22 N. J. 472, 478 (1956). The interpretive canon is that all provisions of a statute or ordinance are to be related and effect given to each, if that is reasonably possible. Jamouneau v. Harner, supra, 16 N. J. at 513.

The provisions in the ordinance enumerating grounds for eviction or dispossession are invalid because, by the District Court Act (N. J. S. A. 2A:18-53 et seq.) and the Landlord and Tenact Act (N. J. S. A. 2A:42-1 et seq.), the subject has been preempted by the State.

The provision for the extension of the ordinance for additional periods by the adoption of a resolution is invalid because a renewal of the regulations may only be legislated by ordinance. Albigese v. Jersey City, 129 N. J. Super. 567 (App. Div. 1974).

However, the validity of the balance of the ordinance is not affected by the invalidity of these provisions because they are severable, leaving the remainder of the regulations functionally self-sufficient to contain the essentials of a complete enactment. Swimming River Golf and Country Club v. New Shrewsbury, 30 N. J. 132, 137 (1959). This is particularly so where, as in this instance, the governing body included a severability clause in the ordinance.

Except fox these two areas, the challenges to the validity of the ordinance have not been sustained and, except as to them, judgment shall be entered in favor of defendants.


source: Caselaw Access Project

author: Dwyer, J. S. C.

license: Public Domain

text:
    THERESA GIAMBUTTISTA, AND THOMAS GIAMBUTTISTA, HER HUSBAND, PLAINTIFFS, v. BRADLEES INCORPORATED, AND CHRISTINA BRYANT, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 3, 1974.

      Mr. Robert J. Sussman for plaintiffs.

      Mr. Arnold E. Brown for defendants.
   Dwyer, J. S. C.

On February 9, 1973 Theresa Giambuttista (plaintiff) filed a Complaint against Bradlees Incorporated (“shopkeeper”) and Christina Bryant (“employee”), an employee of shopkeeper charging employee and shopkeeper, through employee, with assault and battery, and in a separate count charging employee with maliciously and intentionally committing an assault and battery. The alleged date of commission was April 19, 1972. Answers on behalf of shopkeeper and employee were filed by an attorney, obtained by shopkeeper, on April 30, 1973 and May 18, 1973. The answer contained a denial and then set forth separate defenses of self-defense and provocation, among others.

On July 28, 1974 a separate attorney for employee filed a notice of motion for permission to file a counterclaim on behalf of employee against plaintiff to recover for injuries employee allegedly suffered. Said notice was addressed to all the attorneys of record, including the defense attorney. Id an affidavit attached to the notice of motion the employee states:

I desire to press a claim against the Plaintiff * * * for damages resulting from injuries sustained from the assault and battery committed upon me by the Plaintiff * * *■ * I believed that such a claim was being handled by [attorney of employer who filed answer for employee] but I have now been advised to secure my own personal attorney.

Plaintiff opposes the motion on the ground that the claim is barred by the two-year statute of limitations for personal injury, N. J. S. A. 2A:14-2; i. e., the statute barred the claim on April 19, 1974, three months before the motion was filed. Failure of plaintiff to oppose might be construed as a waiver. See Consolidated Motor Lines v. M & M Transport Co., 128 Conn. 107, 20 A. 2d 621 (Sup. Ct. Err. 1941).

Employee contends that the motion should be granted on the ground that where a counterclaim would not have been barred on the date the complaint was filed, a counterclaim is not considered untimely, even though it is filed in the action at a time when, if it were filed in an independent action, it would be barred by the statute of limitations, citing Atlantic City Hospital v. Finkle, 110 N. J. Super. 435, 440 (Cty. Ct. 1970).

Defense attorney filed nothing in opposition and made no appearance.

If the claim had been set forth and filed with the answer, it would have been proper under B. 4:7-1.

Even if the statute of limitations had run on the employee’s claim between the filing of the complaint and the filing of the answer, such as may occur when a plaintiff files on the last day, or a few days before the end of the period of limitations, some decisions indicate that justice requires such a counterclaim not be barred by the statute of limitations. A contrary holding would encourage many plaintiffs with weak claims to file on the last day to avoid counterclaims. See Azada v. Carson, 252 F. Supp. 988 (D. Hawaii 1966).

This matter does not present such a situation. The counterclaim is being asserted by a supplemental pleading after timely answer and subsequent running of period of limitations.

In 51 Am. Jur. 2d, LAmitation of Actions, § 200 at 767, it is stated:

* * * According to the weight of authority, unless the limitation statute otherwise provides, a counterclaim or setoff which is not barred at the commencement of an action in which it is pleaded does not become barred afterward during the pendency of the action; in other words, if a right of action relied upon as a setoff or counterclaim is alive at the time of commencement of this suit against the owner of such right, the statute of limitations does not bar his right to assert it in that action, even though the full statutory period expires during the pendency of the action and before the claim is or can be pleaded. There is, however, considerable authority for the view that the statute continues to run against the counterclaim or setoff until it is actually pleaded in the action, *■ * * [Emphasis supplied]

Further, if a counterclaim is not asserted in the answer when filed but by way of supplemental pleading, and the statute of limitations has run at the time of asserting the counterclaim, even though it had not run at the commencement of the action, then it is barre00. Id. at 768. See also, 34 Am. Jur., Limitations of Actions, § 65.

Counsel has not referred the court to any New Jersey case deciding the question. The court has found none. Atlantic City Hospital v. Finkle, supra, and Gibbins v. Kosuga, 121 N. J. Super. 252 (Law Div. 1972) are distinguishable.

In Gibbins plaintiffs, purchasers of land, sued defendants for breach of warranty more than six years after closing. Defendants answered and filed a counterclaim based on notes that were barred by the six-year statute of limitations, which notes were given as part of the purchase price. In summary, the court held that plaintiffs’ cause of action did not accrue until the breach was discovered but defendants’ counterclaim was barred. However, the court concluded that defendant had the right to plead and use the notes as recoupment against the amount due plaintiff:

* * * The fact that recoupment seeks the reduction of a claim because of an offsetting claim arising out of exactly the same transaction would seem in logic and in equity to justify treating it differently than a set-off which seeks a reduction because of an offsetting claim arising out of a totally unrelated transaction. To hold differently would be to permit the inequity of one party to a transaction demanding full performance from the other while refusing to perform fully itself, [at 258'J

In Atlantic City Hospital v. Finkle, supra, plaintiff hospital sued to collect its bill for defendant’s hospitalization in August, September and October 1966. Suit was commenced in February 1968. With consent an answer and counterclaim in three counts was filed in October 1969. The first count of the counterclaim alleged a breach of warranty by the hospital in rendering the services for which it sought payment with resultant personal injuries. The court held that the first count of the counterclaim could be used as a basis for recoupment. 110 N. J. Super. at 440.

The second count was negligence resulting in personal injuries. Defendant voluntarily abandoned this.

In the cases just referred to, the courts dealt with the problem as one of recoupment. In this action, the problem is whether there can he affirmative relief.

The reasoning underlying the general rule, stated above — that if, when the plaintiff commences the action, defendant has a counterclaim not then barred by the statute of limitations, then the statute will not bar the counterclaim during the pendency of the action — is intended to protect the defendant in two situations.

First, if plaintiff commences the action late, so that the statute of limitations will run before defendant can assert his or her claim out of the same transaction, then defendant should have a chance to assert the claim. This explains the language in some cases, that plaintiff has agreed, or is deemed to have agreed, to a waiver of the statute of limitations. See Azada v. Carson, supra.

The second is that if a defendant has asserted his claim, either before the statute has run or under the circumstances discussed in the preceding paragraph, the claim is asserted just as much as if defendant had a complaint as a plaintiff and, therefore, the expiration of the period of limitations thereafter is immaterial. The action required to meet the purpose of the statute of limitations has been taken.

However, neither reason for justification is present where a party files an answer and lets the period of limitation expire before giving notice to the other side of an intent to assert a claim.

In recoupment, which is applied in many contract cases, equity is done by allowing a defendant to show plaintiffs lack of performance and limiting plaintiffs recovery to such amount in excess of such damages as is found. Each party should have knowledge of the facts surrounding the events.

In personal injury tort actions there is an important difference in respect to the element of damages. Damages are largely awarded upon changes that have occurred to the person’s body. A lapse of time without the chance for medical investigation of the claimant may adversely prejudice the other party.

In Atlantic City Hospital v. Finkle, supra, defendant’s claim for recoupment against the bill for services would pose problems of medical investigation. But plaintiff certainly had available medical information on defendant which the average party would not.

Although this motion is not made by the attorney who filed the answer, the court has considered B. 4:7-4 and inquired of counsel making the motion as to the background. It was represented to the court that employee had counsel of her own choice in connection with a municipal court hearing shortly after the events in question. So far as such counsel knew, no claim was asserted in workmen’s compensation. Employee did not consult counsel about any claim against the present plaintiffs.

At the time this motion was made, the case had already been listed for a weekly trial call.

To the extent that the defenses of self-defense and provocation have been pleaded, employee will be able to use the facts to dispute liability on both counts.

To the extent, if any, of the existence of any problem of employee’s understanding about either representation or personal exposure for liability, that problem should be resolved elsewhere.

This court holds that the counterclaim sought to be asserted is barred by N. J. S. A. 2A:14-2. Under R. 4:7-4 the court should consider the fact that the period of limitations has run, as well as the absence of persuasive evidence to establish "oversight, inadvertence, or excusable neglect.” The affidavit quoted above does not establish when employee learned her claim should be handled by another attorney.

The nature of the claim sought to be, asserted is not accurately known, for no copy of the proposed counterclaim has been filed. If it involves physical injury, plaintiff will have to conduct the medical investigation of employee after the period of limitations has expired, which period was established to set a limit for such purposes.

Employee’s motion to assert a counterclaim is denied.

       The counterclaim was stricken on motion on the ground that it was barred by the statute of limitations. 121 N. J. Super. at 255.


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

text:
    STATE IN THE INTEREST OF A. S., A JUVENILE.
    Juvenile and Domestic Relations Court—Bergen County
    September 30, 1974.

      Mr. Kenneth C. Dolecki, attorney for movant.

      Mr. Joseph A. Clark, attorney for juvenile.
   Troast, J. J. D. R. C.

Application has been made for release of a partial transcript of a hearing in this court on October 24, 1973, involving certain complaints against A. S., a juvenile. That hearing resulted in an order continuing the matter for a nine-month period of. adjustment, and at the expiration of that period the complaints against A. S. were dismissed. However, the juvenile had caused a complaint to be filed in a municipal court against Thomas Corcoran, who was one of the complainants in the Juvenile and Domestic Relations Court action involving A. S. After a hearing in the municipal court Thomas Corcoran was convicted of assault and battery and he now seeks a transcript of part of the testimony of A. S. in this court.

In the municipal court A.S. testified as follows:

Q Did you on that date, October 24, 1973, make a statement that on September 26, 1973, in the alleyway where the alleged incident occurred it was too dark for you to see who hit you?
A No, I did not.

The transcript of the testimony of Á.S. in this court on October 24, 1973 reveals that he was asked the following question about the identity of the person who struck him: “You don’t know which one it was?” and that he answered “No, really I don’t know cause it was dark out in the back alley.”

The municipal court has granted Thomas Corcoran a rehearing on the assault and battery charge in order to afford him an opportunity to produce the partial transcript in question, and Corcoran is asking only for a transcript covering the alleged conflicting testimony referred to above.

R. 5:10-6(b) states in part:

No public use shall be made of the stenographic or sound record, or a transcript thereof, of any hearing or trial by any person, including a party, except in the course of an appeal or, if no juvenile is involved in the proceeding, in other legal proceedings, or as authorized by the court.

See also, N. J. S. A. 2A:4-65.

R. 5:10-7 (a) also deals with the availability of court records of the Juvenile and Domestic Eelations Court and provides that transcripts of proceedings are considered procedural records. R. 5:10-7(c) states in part:

AH procedural and social records in juvenile matters and all social records in adult matters shall be strictly safeguarded from indiscriminate public inspection'. The court may, if its discretion, in the best interest of a juvenile or adult or for other good cause, permit inspection of any procedural or social record. * * *

Thus there is a policy expressed by both rules that juvenile proceedings should be kept confidential. Frequently, the juvenile who appears in court during his early years adjusts his behavior and never returns to the courts as a criminal defendant, and it would be harmful to stigmatize such a juvenile. However, the confidentiality of a transcript in the Juvenile and Domestic Relations Court is not absolute. The rules provide for the release of juvenile court transcripts “as authorized by the court.” The court, in its discretion, has the power to authorize such a release “in the best interest of a juvenile * * * or for other good cause ❖ # ❖ »

Thomas Corcoran’s right of confrontation under the Sixth Amendment of the United States Constitution requires a release of the requested transcript of the juvenile’s testimony. In Davis v. Alaska, 415 U. S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), a juvenile was a crucial prosecution witness against defendant Davis. At the time of the trial the juvenile, Green, was on probation by order of a juvenile court after having been adjudicated a delinquent for burglarizing two cabins. A protective order was sought in the Davis case by the prosecutor in order to prevent any reference to Green’s juvenile record by the defense in the course of cross-examination of Green. Such a protective order was granted in reliance upon an Alaska Rule of Children’s Procedure which did not permit release of information about a juvenile case. However, after conviction Davis appealed to the United States Supreme Court which stated, “In this setting, we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.” The court pointed out that since the trial at which the juvenile testified also had to do with a theft, it was possible that the juvenile cooperated with the police and identified the defendants so that he himself would not be suspected of the theft. The court noted the unfairness of the juvenile’s answer of “No” when asked whether he had ever been questioned before by law enforcement officers.

In Davis the Supreme Court noted that a main purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The court said:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness.

Certainly, prior inconsistent testimony at a juvenile court hearing is extremely important in discrediting a witness. In. the present case, as in Davis, the accuracy and truthfulness of the juvenile’s statement was a key element in prosecution of the juvenile’s complaint against Thomas Corcoran.

In Davis the Supreme Court recognized the interest of the State in protecting the anonymity of the juvenile offender but found that under the facts the right of confrontation outweighed that interest, saying:

We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. * * * Here, however, petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.

Similarly, in the present ease the right of confrontation outweighs the state policy of confidentiality in juvenile cases. There should be an opportunity to cross-examine the juvenile about his prior inconsistent testimony, and considerations of fair play and justice dictate that a transcript of the prior testimony he made available. In this case, where the juvenile caused the complaint to be filed in the municipal court, the State’s interest in confidentiality in juvenile proceedings must yield to the constitutional right to effective cross-examination. In any event, the policy of confidentiality should not be a vehicle for the juvenile to shield prior inconsistent testimony from a court.

The transcript of the testimony of A.S. in this court concerning his ability to identify the individual who allegedly struck him will be released for in camera inspection of the municipal judge rehearing the charge against Thomas Corcoran. In the event such an inspection satisfies the judge that there is reasonable doubt of Thomas Corcoran’s guilt, it will not be necessary for the partial transcript to be made public. If he determines that a further hearing on the charges is necessary, he may make the transcript available to the parties.

       In Davis v. Alaska, 415 U. S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), tlie United States Supreme Court articulated the policy reasons favoring confidentiality as follows: “The State argues that exposure of a juvenile’s record of delinquency would likely cause impairment of rehabilitative goals of the juvenile correctional procedures. This exposure, if is argued, might encourage the juvenile offender to commit further acts of delinquency, or cause the juvenile offender to lose employment opportunities or otherwise suffer unnecessarily for his youthful transgression.”


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

text:
    IN RE APPLICATION OF JERSEY CENTRAL POWER AND LIGHT CO., TO LOCATE A SUB STATION IN THE BOROUGH OF MONMOUTH BEACH. IN RE APPLICATION TO INTERVENE BY LAWRENCE WESTON KRIEGER AND SALLY M. KRIEGER, INTERVENORS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 1, 1974—
    Decided October 9, 1974.

      Before Judges Halpern, Orahay and Ackerman.

      Mr. Robert M. Wood argued the cause for appellants (Messrs. Moth, Wood, Neff & Cooper, attorneys,).

      Mr. Edward J. McNeil argued the cause for respondent Jersey Central Power & Light Company.

      Mr. William G. Bassler argued the cause for respondent Borough of Monmouth Beach (Messrs. Labrecque, Parsons & Bassler, attorneys).

      Mr. William F. Hyland, Attorney General of New Jersey, filed a statement in lieu of brief on behalf of the Board of Public Utility Commissioners (Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Bertram P. Goltz, Jr., Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

The Kriegers appeal from orders of the Board of Public Utility Commissioners (Board) which (1) granted permission to Jersey Central Power & Light Company (Jersey) to erect an electrical substation in the Borough of Monmouth Beach, across the street from the summer residence of the Kriegers, and (2) denied the Kriegers’ 'application to intervene or to rehear and reconsider Jersey’s application. The primary issue presented is whether the Kriegers’ constitutional right to due process was denied when the Board failed to give them notice of Jersey’s application to erect the substation and to be heard in connection therewith.

A brief summary of the facts revealed in the record will aid in understanding the issues involved. Jersey owned land on an abandoned railroad right-of-way in Monmouth Beach upon which it sought to erect an electrical substation to service the public in that area. The contemplated use was a permitted one under the borough’s zoning ordinance, but required Jersey to apply to the board of adjustment for a special exception use permit. Jersey applied for the special use permit and gaye the Kriegers, among others, the notice of its application as required under the ordinance. After a full hearing, at which the Kriegers appeared and voiced their objections, Jersey’s application was denied.

Thereafter, pursuant to N. J. S. A. 40 :50—50, Jersey applied to respondent Board for permission to erect the substation at the same location. As required by the statute, Jersey gave notice of its application and the date of hearing to the borough and to the borough’s planning board and board of adjustment. In addition, a copy of the notice was published prior to the hearing in the Asbury Park Press, a newspaper which has substantial circulation in the borough, notifying the public of the application and the date of hearing.

The Board held a hearing on the application at which the borough was represented by counsel. Eollowing the hearing, and after six months of negotiations, Jersey’s engineers and the borough’s representatives resolved the latter’s objections to the installation. Immediately thereafter, the borough withdrew its appearance. On April 4, 1974 the Board granted Jersey’s application to erect the substation. Prior to the borough’s withdrawal from the proceedings, and before the approval was granted by the Board, the Kriegers made written application to intervene in order to present their objections. The Board denied the Kriegers’ request when they refused to present any new evidence which would warrant any further hearings or findings. The Kriegers’ response to the Board’s invitation was that their principal concern was the lack of notice to them.

We turn to the issue of notice. The Legislature has delegated to all municipalities the power to enact zoning ordinances for the prime purpose of enabling them to regulate the physical development and growth of their communities in accordance with a comprehensive plan, by confining particular uses to defined areas. N. J. S. A. 40:55-30 et seq. The Legislature gave local boards of adjustment the power to permit, within the terms of their zoning ordinances, special exception uses where such could be granted without substantial detriment to the public good, and would not substantially impair the intent and purpose of their zone plans and ordinances. N. J. S. A. 40:55-39(b). The statutory scheme requires an applicant seeking a special exception use to give notice of his application to all owners of property within 200 feet of the property to be affected. N. J. S. A. 40:55-44

However, it is crystal clear that the provisions of the enabling zoning statutes and of any municipal zoning ordinance shall not apply to the property or structure of a public utility. When a public utility finds it necessary to use its property or structures in order to furnish service t!o the public, it may bypass the municipal zoning authorities and petition the Board of Public Utilities for relief upon giving notice of its intention to the municipality affected. In re Monmouth Consolidated Water Co., 47 N. J. 251, 257-258 (1966); N. J. S. A. 40:55-50. The burden is then placed squarely on the Board of Public Utilities to hold a hearing and determine whether the granting of relief “is reasonably necessary for the service, convenience or welfare of the public.” In short, the Legislature deemed the regulation of public utilities, and the enforcement of their obligation to render proper public service, as a matter that transcended local concern. In re Application of Hackensack Water Co., 41 N. J. Super. 408, 422 (1956). In defining the statutory duty imposed upon the Board in considering applications of this type, the court in In re Monmouth Consolidated Water Co., supra, said:

The hearing before the board on the utility’s petition to establish a discordant use in a prohibited zone was not intended by the Legislature to be simply a pro forma approval of management’s decision. In re Application of Hackensack Water Co., supra, 41 N. J. Super., at p. 419. Otherwise the requirement in the statute for notice to the affected municipality (which was given in this case) would have no particular point. Further consideration of the matter should not be limited to tlie ordinary factors which govern a decision as to whether the public convenience and necessity will be served by a course of operation or conduct proposed by a utility. The issue is broader: (a) Is the projected deviation from the zoning ordinance sufficiently necessary for the convenience and welfare of the public in connection with the service provided by the utility to warrant its authorization; and (b) : If so, can the impact of the discordancy on the locality be lessened by imposition of reasonable conditions designed to preserve aesthetic and other relevant zoning considerations?

in passing upon the application the board has ample authority as well as the duty to study the suitability of tlie locus chosen for the utility structure, tlie physical character of the uses in the neighborhood, the proximity of the site to residential development, the effect on abutting owners, its relative advantages and disadvantages from the standpoint of public convenience and welfare, whether other and equally serviceable sites are reasonably available by purchase or condemnation which would have less impact on the local zoning scheme, and last, but by no means least, whether any resulting injury to abutting or neighboring owners can be minimized by reasonable requirements relating to the physical appearance of the structure, adequate lot size, front and rear set back lines as well as appropriate side lines regulating tlie positioning of the structure on the lot, and by proper screening of the facility by trees, evergreens, or other suitable means. The board should weigh all of these factors and while no controlling weight should be given to purely local considerations, they should not be ignored. Compare Washington Twp. v. Ridgewood Village, 26 N. J. 578, 584-585 (1958) ; Kozesnik v. Montgomery Twp., 24 N. J. 154, 176 (1857). And in our judgment there is no doubt as to its power to tailor the grant of approval of the site selected by the utility by attaching appropriate conditions and safeguards relating to the matters specified above, [at 259-280]

The requirement of giving notice only to the municipality affected serves to give the municipality an opportunity to be heard to safeguard its interests in preserving the viability of its zoning ordinance and plan, as well as the interests of its residents.

The Board’s decision in granting the permit to Jersey is amply supported by the record. We see no violation of due process because personal' notice was not given the Kriegers. The Legislature’s determination a’s to who shall receive notice was a reasonable exercise of its legislative discretion. We note in passing, that N. J. S. A. 40:55-50 has been in effect since 1928, and its notice provisions have never been attacked on due process grounds.

By the same reasoning, the Kriegers were not necessary parties to Jersey’s application to the Board. Even if they had been given personal notice of Jersey’s application, such would not make them parties to the proceedings, it would merely give them the opportunity to voice their objections. See Peoples Trust Co. v. Hasbrouck Heights, 60 N. J. Super. 569, 575 (App. Div. 1959), where residents within 200 feet of property being considered for a variance were held not to be necessary or indispensable parties to an appeal from the decision of the board of adjustment.

Finally, we find no abuse of discretion in the Board’s action in refusing to permit the Kriegers to intervene, or to reopen the hearing. The Kriegers were asked to submit the proofs they would present if their request were granted so that the Board could determine what course of action to follow, but they saw fit not to do so. They should not now be heard to complain.

Affirmed.

       “This article or any ordinance or regulation made under authority thereof, shall not apply to existing property or to buildings or structures used or to be used by public utilities in furnishing service, if upon a petition of the public utility, the board of public utility commissioners shall after a hearing, of which the municipality affected shall have notice, decide that the present or proposed situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public.”


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MARTIN J. WOOD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1973—
    Decided October 15, 1973.

      Before Judges Collestbr, Leonard and Halpern.

      Mr. Peter P. Cascone, Jr., Designated Counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Jared L. McDavit, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Collester, P. J. A. D.

Defendant was indicted and tried for the murder of Sally Gulden. He was found guilty by a jury of murder in the second degree and sentenced to a prison term of 15-18 years. This appeal followed.

On September 25, 1970, at approximately 6:35 p.m:., members of the Trenton Pire Department responded to a fire at 218 Whittlesey Road, a one family house located in a row of adjoining houses. After gaining entrance by breaking the locks on the front door they found the dead body of Sally Gulden on the floor near a sofa in her living room. They •also found defendant unconscious on the kitchen floor near a wall telephone, the receiver of which had been removed. He was taken to a hospital where he remained unconscious for eight to twelve hours due to smoke inhalation which aggravated a condition of chronic emphysema from which he ■suffered.

■ ■ After the living room sofa, the point of origin of the fire, ■was removed and the premises were ventilated an automatic pistol and two spent shell casings were discovered on the floor near where Mrs. Gulden’s body was found. An autopsy was performed which revealed that she had been shot five times and had died from gunshot wounds and not from the effects of the fire.

The fire was discovered by Hi cholas Urbano. He testified -he had a date to take Mrs. Gulden to the movies on the evening of September 25 and attempted to reach her by telephone after he finished work at 6:20 1>.M. He said that no one responded when he repeatedly said “hello” but he could hear loud music playing in the background. Pie dialed again and received a busy signal. Urbano testified he drove to the Gulden house where he observed that a front picture window was blackened and smoke was coming from a second story window. He unlocked the front door with a key Mrs. Gulden had given him but could not gain entrance because a chain lock was latched inside. Urbano called to Mrs. Rebecca, a next door neighbor, and told her to call the fire department. He then went to the rear of the house where he met Dominick Rebecca. He opened the rear door with a key but neither he nor Rebecca could enter the kitchen because of the dense smoke. At this point the firemen arrived. After the fire was extinguished police found that a record was on the stereo turntable and the volume control had been turned up.

Polio wing an investigation by the police defendant was charged with the murder. The theory of the State’s case was that defendant shot and killed Mrs. Gulden because she had rejected him as a suitor and resumed her previous relationship with Urbano, a former boy friend. The ease was based on circumstantial evidence and inculpatory admissions allegedly made to the police.

The State produced evidence to show that blood found on defendant’s clothes matched the blood type of the victim; that defendant owned an automatic pistol; that he arrived at the Gulden house before the fire occurred; that Mrs. Gulden had told her daughter and sister she intended to break off her relationship with defendant and marry Urbano, and (contrary to defendant’s subsequent testimony that he had a key to the house) that Urbano had changed the door locks on the house one or two days before the fire.

After the State’s direct case, was completed the defendant produced testimony by several witnesses and testified on his own behalf. His story was that he and Sally Gulden had planned to drive to Maryland to get married after he finished work as a part-time bartender on the evening of September 2o. At about 5:45 p.m. he received a telephone call from Mrs. Gulden asking him to come over and take her with him to work because Urbano had threatened to stop the marriage and she was afraid to be alone in the house. He arrived at the Gulden house at 6:25 or 6 :30 p.m. and let himself in with a key to the back door. He said that when he entered he was confronted with dense smoke. He managed to reach the living room where he tripped over Mrs. Gulden’s body. He tried but was unable to lift her. He then groped his way to the telephone to call for help when he was overcome by the smoke.

Wood testified he first learned of Mrs. Gulden’s death on September 28 when detectives came to the hospital and served him with a complaint charging him with murder. He denied that he ever owned or possessed a gun. He denied giving any statements to the police before or after his release from the hospital. He said he recalled only that a detective mentioned something about a gun while he was in the hospital and he told the detective he would not discuss it and that he wanted a lawyer. He also said that Mrs. Gulden had given him a house key a week or two before the fire when she had the door locks changed.

During the State’s rebuttal Dominick Rebecca, said that he saw Urbano, in Mrs. Gulden’s presence, change the door locks the day before the fire. Detective Sergeant McGann also testified as a rebuttal witness for the State. He said he interviewed Wood twice in the hospital on September 28. On the first occasion Wood told McGann he arrived at the Gulden house a.t about 5 :20 p.m. and had a drink. On the second visit McGann served defendant with a complaint charging him with murder. He asked Wood if he knew anything about a weapon and defendant answered that he owned a small black automatic. Wood was released from the hospital on October 1 and taken to the Detective Bureau where McGann again questioned him. The detective testified that the defendant told him he had arrived at the Gulden house about 5:15 p.m. and he and Sally Gulden had a few drinks. Ho said the last thing he remembered, about 5 :45 p.M., was sitting on a sofa with his arm around Mrs. Gulden.

Ho contention is made by defense counsel on this appeal that the verdict was contrary to the weight of the evidence. He does, however, advance several points of alleged legal errors which, be contends, requires a reversal and a new trial. The first point raised by defense counsel asserts that an oral statement defendant gave Lieutenant Worob while a patient in the hospital was improperly admitted into evidence. The lieutenant’s testimony was produced by the State, at defense counsel’s insistence, during a voir dire hearing held to determine whether statements allegedly made later to McGann were admissible as evidence.

Lieutenant Worob testified that he and another detective interviewed defendant in the hospital at 5:30 a.it. on the day after the homicide. He advised defendant of his constitutional rights and asked if he would tell what had happened at the Gulden house. Wood answered that he was alone with Sally Gulden some time after 5 p.m. and they had a few drinks together. Defendant then said ho did not wish to say anymore — that he wanted an attorney. The questioning was stopped and the officers left. Lieutenant Worob testified that, during the brief interview the defendant was alert, understood what the lieutenant told him, and was able to answer clearly and intelligently.

Thereafter the State withdrew its request for a ruling as to statements made to McGann and moved to have the statement made to Worob admitted as evidence. Defense counsel objected contending that when the defendant said he wanted an attorney his entire statement was inadmissible. He said he had not anticipated the State’s motion and, although it was his fault, “J requested to have Dr. Marshall, his attending physician * * * [testify].” The court ruled that defendant’s statement made, voluntarily and was admissible as evidence. The conrt found that defendant fully understood Ms constitutional rights as explained by the, lieutenant; that he understood the question asked and gave an intelligent response, and that his lucid condition was evidenced by his request for an attorney.

Defense counsel argues that defendant was denied a full voir dire hearing. He claims he was unable to call Dr. Marshall to testify that defendant was unconscious at 5 :30 a.m. on September 26 because he had anticipated that the State was trying only to prove the admissibility of statements made to McGann, and that Lieutenant Worob’s testimony was given only to show defendant had «asked for an attorney.

We are satisfied the argument lacks merit. It is obvious that defense counsel, as a trial tactic, insisted the State produce Lieutenant Worob to show that defendant asked for an attorney. We agree with the conclusion of the trial court that if defendant had the mental acumen to stop answering questions and say that he wanted an attorney he was mentally capable of waiving his constitutional rights when immediately prior thereto he had answered the officer’s questions. Moreover, we find no abuse of discretion in the court’s disregard of defense counsel’s eleventh hour statement that he had intended to call the treating physician. The lieutenant’s testimony regarding defendant’s mental condition, which was subjected to cross-examination, fully supported the trial court’s finding that defendant’s statements were knowingly and voluntarily made.

Defense counsel next claims the court erred in permitting part of a statement to be read to the jury which Jack Gulden, the victim’s son, gave to the police five days after the homicide. The statement described two incidents which occurred while Gulden was living with bis mother prior to June 1, 1970.

Gulden testified that on one occasion, following an argument between his mother and defendant, he had ordered defendant to leave the house. However, he said he had no present recollection of the other incident described in the statement where he stated that he had forcibly ejected defendant from the house and discovered that Wood had a gun in his possession — a small 'automatic pistol. After Gulden read his statement he said it was true at the time he gave it. When he was questioned by the court out of the jury’s presence he said the incident must have occurred but he could not recall it. However, he said he did recall seeing the gun but could not remember when. The trial court, over defendant’s objection, ruled that the portion of the statement which Gulden did not remember could be read to the jury under the doctrine of “past recollection recorded,” as provided for in Evidence Rule 63(1) (b).

Defendant argues that the statement should not have been read because Gulden did not recall any part of the incident, there was no proof that the events were fresh in the witness’s mind when the statement was made, and its admission was barred under Evidence Rule 55.

Evidence Rule 63(1) provides:

A statement is admissible if previously made by a person who is a witness at a bearing, provided it would have been admissible if made by him while testifying and the statement:
•r * * - *
(b) Concerns a matter as to which the witness has insufficient, present recollection to enable him to testify fully and accurately and contained in a writing which (i) was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’s memory, (ii) was made by the witness himself or under his direction or by some other person for the purpose of recording the witness’s statement at the time it was made, and (iii) is offered after the witness has testified that the statement he made was a true statement of such fact, provided that where the witness remembers only a part of the contents of a writing, the part he does not remember may be read to the jury but shall not be introduced as a written exhibit over objection ; *

We are satisfied that the trial court properly permitted that part of the statement which Gulden could not recall to be read verbatim to the jury. Ft is clear that Gulden remembered part of the contents of the statement that he gave to the police and also recalled seeing the gun referred to in the statement. While it is not clear from the record when the incident involving the gun took place it apparently occurred sometime between the first week of April 1970 when Mrs. Gulden was discharged from a hospital and June 1, 1970 when Gulden moved out of his mother’s home. Defendant made no objection below that incident was not fresh in the witness’s mind. It seems implicit that the incident was fresh in Gulden’s memory when the statement was recorded or he would not have given a detailed account of it to the police.

We find no merit in defendant’s contention that the facts contained in the statement were inadmissible under Evidence Rule 55. They were clearly admissible to prove "some other fact in issue” in the case, namely, that defendant owned or possessed a handgun similar to that found in the Gulden house.

The next point advanced by defense counsel charges it was error to admit testimonj'- by Sally Ann Apple, the victim’s daughter, that she had been told prior to her mother’s death that defendant had struck her mother. The record indicates Mrs. Apple testified that on one occasion defendant had punched her mother in the mouth and knocked her down in a parking lot because of her attention to another man. She said her mother was brought to her apartment hysterical with bruises on her head. When it became apparent that Mrs. Apple had not witnessed the assault which she described defense counsel objected and moved that the testimony be stricken. The trial judge ruled that he would allow the testimony of the witness’s visual observation but the jury should disregard the other testimony. Defense counsel conceded that Mrs. Apple could testify to her visual observation and m'ade no further objection to the ruling. Defense counsel now argues the judge’s instractions were inadequate. While the instructions could have been more clearly expressed, we find no plain error mandating a reversal. State v. Macon, 57 N. J. 325, 333 (1971).

The final point raised bjr defense counsel is that the trial judge failed to charge, as requested, that Sergeant McGann’s rebuttal testimony of admissions made by the defendant could be used only to impeach defendant’s credibility as a, witness. While the judge did not specifically refer to McGann’s testimony he instructed the jury it should consider the oral statements allegedly made by the defendant and first determine whether they were made voluntarily after defendant had knowingly waived his constitutional rights. The judge then told the jury that evidence, showing that a witness had previously made an inconsistent statement, could bo considered solely for the purpose of judging the witness’s credibility.

Defense counsel told the judge he had no objection to the charge. The failure to object indicates that experienced trial counsel did not consider the charge to be erroneous. See State v. Hale, 45 N. J. 255, 264-265 (1965); State v. Macon, supra, 57 N. J. at p. 333. Moreover, both defense counsel and the prosecutor during their summations told the jury that MeGann’s testimony was not to be considered evidence of any fact in the case — that it was introduced only to impeach defendant’s credibility. We find no basis for plain error.

The judgment of conviction is affirmed.

Halpern, J. A. D.

(dissenting). 1 would reverse defendant’s conviction, which rests solely upon circumstantial evidence, and remand for a new trial because (1) the trial court improperly permitted Jack Gulden’s statement which referred to defendant’s having a gun and quarrelling with his mother, Sally Gulden, to be read to the jury as substantive evidence under the “past recollection recorded rule,” 'and (2) the admission of Sally Ann Apple’s hearsay testimony of a beating administered by defendant to her mother, Sally Gulden, was prejudicial.

The testimony of Jack Gulden and Sally Apple was a vital part of the State’s circumstantial case because their testimony (1) linked defendant with a gun, and (2) indicated that defendant had, on previous occasions, quarreled and assaulted Sally Gulden. While a jury verdict may properly rest upon circumstantial evidence (State v. Fiorello, 36 N. J. 80 (1961), cert. den. 368 U. S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)), nevertheless, an appellate court should scrupulously canvass the record in a capital case to determine whether trial errors were sufficiently prejudicial to deny defendant a fair trial. People v. Rosario, 9 N. Y. 2d 286, 213 N. Y. S. 2d 448, 173 N. E. 2d 881 (Ct. App. 1961), cert. den. 368 U. S. 866, 82 S. Ct. 117, 7 L. Ed. 2d 64 (1961); 5 Am. Jur. 2d, Appeal and Error § 779 (1962).

It is necessary, at this point, to supplement the majority’s recital of the facts to point up the weakness of the State’s case in that the proofs could support the thesis that one of its own witnesses was involved. Nicholas Urbano and defendant were suitors of Sally Gulden. Urbano had previously made gifts to her of fur coats, jewelry, various items of household furniture, a car and substantial amounts of money. He also gave gifts and financial support to Jack Gulden and Sally Apple. Admittedly, he had previously quarreled with Sally Gulden because of her relationship with defendant. He had 'allegedly called her three times during the day of and prior to the fire concerning a planned movie date for that night. He allegedly arrived during the height of the fire and was instrumental in having a neighbor call the fire department. Instead of staying there to ascertain whether Sally Gulden was in the burning building, he drove home, a distance of about two miles, to telephone Sally Ann Apple to tell her about the fire, change his soiled shirt and get a different handerchief. Parenthetically, the police must have suspected Urbano’s story because they examined his clothing. They found some blood on his shirt and handkerchief but insufficient to run a grouping test on identity. While Urbano originally told the police he went home to change his shirt because it was soiled by soot and smoke, at trial when shown the shirt admitted it was clean of soot.

Sally Gulden died on September 25, 1970. The police obtained a written statement from Jack Gulden on September 30, 1970, which the police requested and prepared, with reference to an alleged quarrel between defendant and Sally Gulden which took place some time between early April and June 1, 1970. In the statement Gulden also indicated, among other things, that defendant at the time of the quarrel had a small automatic pistol in his possession. When testifying at the trial, he could not recall the incident nor was his memory refreshed when shown the statement. Nevertheless, the court permitted the statement to be read to the jury as substantive proof of its contents under the “past recollection recorded rule,” Evidence Rule 63(1) (b).

Since the statement was given to the police, at their behest, either four or six months after the alleged event, it was not “made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’s memory.” Evidence Rule 63 (1) (b); 3 Wig more, Evidence § 745, (Chadbourn rev. 1970); McCormick, Evidence § 299-303, pp. 712-716 (1972); Maxwell’s Executors v. Wilkinson, 113 U. S. 656, 658, 5 S. Ct. 691, 28 L. Ed. 1037 (1885); Gigliotti v. United Illuminating Company, 151 Conn. 114, 193 A. 2d 718 (Sup. Ct. of Errors of Conn. 1963). In Gigliotti, a statement made six weeks after the event was excluded as a past recollection recorded event. The wisdom of requiring the statement to have been made when the fact recorded actually occurred, or was fresh in the declarant’s memory, is pointed up in the instant case. It is logical to infer that if a son knows a man with a gun is quarrelling with his mother, and he ejects the assailant from the house, he would not forget that incident. It is incredible that Jack Gulden remembered the gun incident on September 30, 1970, when he told the police about it, but had no recollection of it during the trial in September 1971. In my view the trial court improperly exercised its discretion in allowing the statement to be read to the jury as a “past recollection recorded.”

If anything, the factual pattern here involved with Gulden’s statement, is nothing more than a recantation by Gulden. Under such circumstances, the State’s only remedy is to neutralize his testimony under appropriate court instruction. Rules of Evidence 20; State v. Gallicchio, 44 N. J. 540, 545-546 (1965).

Sally Ann Apple testified that she had been told by a man that her mother had been beaten by defendant (on an occasion prior to September 25, 1970), and she had seen her mother later that day in an hysterical condition with bruises on her head. The hearsay testimony concerning the alleged beating violated defendant’s Sixth Amendment right to confront the witnesses against him. State v. Bankston, 63 N. J. 263 (1973). In ruling on defense counsel’s objections to this line of questioning the trial court presumably intended to let Apple’s testimony concerning her visual observations be considered by the jury, but to have the jury disregard the hearsay concerning the beating. However, all the trial court said to the jury was “[a]s to how they occurred or why they occurred and the jury is to disregard the other testimony.” Ho further cautionary instructions were given.

Such instructions were inadequate to eradicate the prejudicial effect of the hearsay testimony. It is difficult, if not impossible, to know what the trial court meant or how the jury interpreted what he said. See “The Limiting Instruction — Its Effectiveness and Effect,” 51 Minn. L. Bev. 264 (1956). Having permitted Apple’s testimony to stand as to her mother’s condition, what else could the jury do but infer that she had been assaulted by defendant? Even impeccable instructions to disregard prejudicial testimony will not always serve that purpose. See Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The burden was on the State to prove that no possible injury resulted to defendant. State v. Samurine, 47 N. J. Super. 172 (App. Div. 1957), rev’d on other grounds 27 N. J. 322 (1958). As stated by the court:

In determining whether prejudicial testimony has been eradicated by prompt trial court action or, on the other hand, is so harmful that it cannot be eliminated except by declaring a mistrial, the burden is on the State to prove no possible injury to defendant. The criterion is not whether the evidence, shorn of the wrongful testimony, is sufficient to support a conviction, but rather whether the prejudicial remarks, viewed against the entire setting of the ease, may have possibly affected the jury’s deliberations. All doubts must be resolved in favor of the defendant. 47 N. J. Super. at pp. 181-182

In my view defendant suffered substantial prejudice, and the State failed to carry the burden of showing no injury resulted to defendant.

As previously indicated, since defendant’s conviction rested on weak circumstantial evidence, the admission into evidence of the improper and prejudicial testimony of Jack Gulden and Sally Ann Apple deprived defendant of a fair trial requiring a reversal of the conviction and a remand for a new trial. This makes it unnecessary for me to pass upon the other issues raised by defendant.