author: Seidman, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALBERT P. WILKINSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 18, 1973
    Decided July 3, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Robert J. Konzelman, Assistant Deputy Public Defender, argued the cause for defendant-appellant (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Edward Roy Rosen, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. George F. Kugler, Jr., Attorney Genreal of New Jersey, attorney; Mr. Jared L. McDavit, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Seidman, J. A. D.

Defendant was charged in a two-count indictment with the unlawful possession of marijuana, contrary to N. J. S. A. 24:21-20(a) (1), and with the unlawful possession of marijuana with intent to distribute or dispense the same, contrary to N. J. S. A. 24:21-19 (a) (1). He was tried to a jury and found guilty on both counts. Concurrent sentences to the Youth Reception and Correction Center were suspended and he was placed on probation for three years.

He appeals, contending that (1) the trial judge erroneously-failed to instruct the jury to determine whether defendant was in possession of more than 25 grams of marijuana, and (2) the trial judge erroneously permitted testimony of two vials of LSD found in defendant’s bedroom during the search for marijuana by police officers.

From the proofs it appears that defendant lived at the home of a friend, one John Adams, with whom he shared a bedroom. In their search of the bedroom pursuant to a warrant the police found in or upon a dresser which defendant admitted using a plastic bag containing 24.18 grams of marijuana, a box of baggies, cash, a “roach” holder, packs of cigarette paper, a postal scale, two vials of LSD, and other items. They also found in an open closet a high school gym bag belonging to Adams in which there was a plastic bag containing 441.15 grams of marijuana.

Defendant admitted that he smoked marijuana and that he had used some from the smaller quantity found in the dresser drawer. He claimed it belonged to Adams and he denied knowing the purpose of the postal scale and the baggies. He also said he never used the gym bag and had no knowledge of its contents.

The State offered testimony that one involved in dispensing marijuana would place the substance in a plastic baggie, such as those found in the search. The postal scale would be used to prepare one-ounce packages of the substance, from each of which 20 to 25 cigarettes could be made.

There was sufficient evidence to support the jury’s finding that defendant unlawfully possessed marijuana and that he possessed it with the intent to distribute or dispense it.

fl] Defendant argues that the trial judge erred in permitting testimony of the two vials of LSD. We think that the presence of the vials, along with all the other items uncovered by the search, was relevant to the issue of whether defendant’s possession of marijuana was with the intent to distribute or dispense it. But even if the vials had no probative value we do not believe that the testimony was of such a prejudicial nature as to warrant a reversal.

The next argument advanced is that the trial judge should have charged the jury on the first count that the amount of marijuana possessed would have to exceed 25 grams to warrant a conviction. The point is well taken, since on the proofs presented, the jury could have found that defendant was not in possession of the large package of marijuana, in which case possession of the smaller amount, less than 25 grams, would constitute disorderly conduct and not a high misdemeanor. N. J. 8. A. 24:21-20(a) (3). However, this problem does not require further consideration because the conviction on the first count must be set aside for a reason not raised by either counsel.

We have already concluded that the State’s proofs were sufficient to sustain the second count of the indictment, which charged possession of marijuana with intent to distribute or dispense' it, an offense in which the amount of the drug is not a factor. Possession of the marijuana charged in the first count, while a crime in itself if the quantity exceeded 25 grams, was also an assential element of the crime alleged in the second count, and must therefore be considered an included offense. Defendant may not be convicted of both. State v. Thomas, 118 N. J. Super. 377, 380 (App. Div. 1972), certif. den. 60 N. J. 513 (1972); State v. Hill, 44 N. J. Super. 110, 112 (App. Div. 1957).

Accordingly, the conviction on the first count of the indictment and the sentence thereon are hereby vacated. The remainder of the judgment of conviction is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GRACE HILL, PLAINTIFF-RESPONDENT, v. MICHAEL NEWMAN, INDIVIDUALLY AND DOING BUSINESS AS NUWOOD FURNITURE SERVICE, ETC., DEFENDANT AND THIRD PARTY PLAINTIFF-RESPONDENT, AND GRANT FURNITURE OF NEW JERSEY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 10, 1973
    Decided November 19, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Messrs. Morgan, Melhuish, Monaghan, McQoid & Spielvogel, attorneys for appellant (Mr. Richard E. Arvidson, of counsel and on the brief).

      Messrs. Porzio, Bromberg & Newman, attorneys for respondent Grace Hill.
   Per Curiam.

Defendant Grant Furniture of New Jersey (Grant) appeals from a Law Division, “Judgment, Decision and Ruling” in favor of plaintiff in an action to recover for severe burns suffered as a result of the negligence of defendants Newman and Grant.

Plaintiff had purchased certain furniture from Grant’s which, she testified, showed nicks, scratches and gouges on delivery. She reported this to Grant’s and was assured that someone would be sent to fix it. She then received a call from a man who said he was from Grant’s, and an appointment was made. When defendant Newman arrived at her home he identified himself as the man from Grant’s Furniture Store who had come- to fix the furniture. She admitted him and he proceeded to repair the defects. Plaintiff said that Newman sprayed the furniture with some “bad smelling stuff” — a lacquer. Upon completion of the work, plaintiff followed Newman out the door and remained ón the porch talking to her friend, Dolores Thorpe. A few minutes latex she re-entered her apartment to answer the telephone and as she picked np the receiver there was an explosion. Plaintiff’s clothes caught on fire, with resultant serious burns to her body.

Plaintiff sued Newman, individually and doing business as Nuwood Furniture Service; Grant Furniture; General Electric Credit Corporation and II. Behlen & Bros., Inc. The latter two were let out of the case when their motions for summary judgment were granted. We are not concerned with Newman’s third-party complaint against an insurance company and its agency.

At the conclusion of plaintiff’s case Grant moved for an invo’untary dismissal and for judgment in its favor. The trial judge reserved decision, and the motions were renewed at the close of the entire case. They were denied. The jury returned a verdict of $125,000 against Newman and Grant. Plaintiff then moved to amend the resultant judgment so as to include interest under B. 4:42-11, and after argument the trial judge so ordered. Grant then moved for judgment n. o. v. and a new trial, and these motions were denied. Only Grant appeals.

Grant first argues that Newman was an independent contractor and it was not vicariously liable for his negligence. It urges that the sole basis for the verdict and the judge’s denial of all its motions was the court’s view that the applicable law imputing liability to Grant was that expressed in the Restatement, Torts 2d, § 429 (1964). The judge charged that section at the request of plaintiff’s attorney.

New Jersey has recognized the general rule that one who engages a contractor to do work not in itself a nuisance, is not liable for his negligent acts in the performance of the contract. Certain exceptions have been recognized: (1) where the work is in itself a nuisance or inherently dangerous, or (2) where the landowner in fact retains or exercises control over the manner and means of the work, or (3) where he engages an incompetent contractor. Majestic Beatty Associates, Inc. v. Toti Contracting Co., 30 N. J. 425, 431-440 (1959). The cases cited in defendant’s argument support no more than these principles. The “inherently dangerous” exception was ruled out of the case.

Neither the general rule nor the exceptions relate to a situation in which the independent contractor is allowed to become the apparent agent of the employer. There is nothing in the record to show that Grant retained or exercised control of Newman in the work that he did, or that Newman was an incompetent contractor.

There was enough here to establish an apparent agency: Grant’s assurance that they would send somebody to repair the furniture when plaintiff phoned to complain of its condition, the phone call for an appointment that she received from Newman who said he was from Grant’s, and his identifying 'himself when he arrived at her apartment that he was the man from Grant’s who had come to fix the furniture. We find no error in the court’s charge of section 429 of Restatement, Torts 2d, which reads:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

There is no question under the facts that plaintiff relied upon the manifestaion of authority in Newman, thereby constituting an invitation to deal with him and enter into relations with him such as were consistent with the apparent authority. The Restatement concept focuses on the acceptance of services based on a reasonable belief in the apparent nature of the agency. Cf. Elger v. Lindsay, 71 N. J. Super. 82, 87 (Cty. Ct. 1961); Zevon v. Tennebaum, 73 Ariz. 281, 240 P. 2d 548 (Sup. Ct. 1952); Gizzi v. Texaco, Inc., 437 F. 2d 308 (3 Cir. 1971).

Grant next claims that the trial judge’s misleading charge on contributory negligence necessitated a new trial. The fact is that the court at once proceeded to recharge the jury correctly. Not only did the recharge carefully retract the initial charge, but a supplemental charge again outlined the law on contributory negligence in correct fashion.

Defendant also contends that the judge’s failure to admit a newspaper article concerning the fire, and his denial of its motion for a mistrial based on comments concerning the article made by plaintiff’s attorney during summation, require a new trial. We find no abuse of discretion in light of Evidence Rule 4. Neither plaintiff’s estranged husband to whom the article referred as its source, nor the reporter who wrote the article testified. The article therefore represented hearsay on hearsay and was correctly barred from admission into evidence.

Grant urges that the article should have been admitted pursuant to Evidence Rule 6, with Evidence Rule 20 as a supporting basis. However, as the comments by the State Rules of Court Review Commission to Evidence Rule 6 note, a trial judge can still exclude evidence which may have limited admissibility value if he feels that a cautionary or limiting instruction will not neutralize the prejudice engendered by such evidence. Moreover, an appellate court will not reverse an Evidence Rule 4 decision by a trial judge unless it appears that he abused the wide discretion that he may exercise. See Wimberly v. Paterson, 75 N. J. Super. 584, 608-609 (App. Div. 1962), certif. den. 38 N. J. 340 (1962). We cannot conclude that defendant was manifestly prejudiced by the exclusion of the newspaper article.

In the course of his summation plaintiff’s attorney said that Newman’s account about his conversation with plaintiff concerning paint remover in the apartment was concocted from Newman’s awareness of the newspaper article. He also suggested that the testimony of the owner of a hardware store about plaintiff’s purchase of paint remover on the day of the fire and her son’s later purchase of a gallon of the material, was subject to the same inference. Defendant moved for a mistrial, which was denied. The motion was addressed to the sound discretion of the court. On the basis of the record, we find no abuse of discretion.

Defendant also argues that the attorney’s comment on summation concerning photocopies of the delivery slips for the furniture was prejudicial and required a mistrial. The photocopies were in evidence, and while the attorney did suggest during summation that they might not be genuine in all respects, his comment was not so prejudicial as to require a new trial. Plaintiff had testified that she was not home when the furniture was delivered and the delivery receipts allegedly signed. Accordingly, the suggestion that the photocopies were perhaps altered was not implausible.

Nor do we find an abuse of discretion in the judge’s refusal to charge that an unfavorable inference could be drawn from plaintiff’s failure to produce Dolores Thorpe, who had been identified during plaintiff’s testimony as present at the time Newman arrived and when he left. The trial judge emphasized her availability to all parties in denying defendant’s request for such an instruction: Dolores Thorpe could have served to support or to contradict plaintiff’s story. See Wild v. Roman, 91 N. J. Super. 410 (App. Div. 1966).

Error is claimed when the trial judge stated to potential jurors on voir dire that the fire occurred shortly after Newman left plaintiff’s apartment. Although we have no record of what happened on voir dire, we know from the record that the judge immediately gave a cautionary instruction, so that any error was cured. We see nothing that was clearly capable of producing an unjust result.

Finally, defendant attacks the allowance of interest under R. 4:42-11, claiming that the rule must be given prospective application to judgments entered after the effective date of that rule (January 31, 1972; judgment entered June 21, 1972). Busik v. Levine, 63 N. J. 351, 360—361 (1973), authorized retrospective application of interest in toft actions instituted before the effective date of the authorizing statute.

The judgment is affirmed.


author: Meanor, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH DISSICINI, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 10, 1973
    Decided February 14, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. Edward J. Dimon, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. William Welaj, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Meanor, J. A. D.

Defendant Joseph Dissicini, Jr. appeals from a conviction of murder in the second degree arising out of the assassination of Glen Allen Renna, age 23, on J anuary 7 or 8, 1971. The indictment charged defendant, Neil (Dutch) Hunterson, Theodore Pohlig, Howard Jay Stiles and David A. Bevilacqua with the murder and kidnapping of Renna. Defendant’s case was severed and he was tried alone. He was acquitted of kidnapping.

The homicide did not come to light until August 17, 1971, when the body of Renna was exhumed from a grave near an abandoned house in a rural area of Berlin Township.

Defendant was a member of a motorcycle gang called the Henchmen. Their leader was Hunterson. Stiles and Pohlig were also members. The Plenchmen used the old home near which Renna was buried as a clubhouse. Adjacent to the site of the clubhouse was property owned and occupied by Emanuel and Marie Magalotti. The Magalottis and members of the Henchmen became friendly and it was not unusual for members of the gang to congregate at their home.

During the evening of January 7 defendant and Pohlig ran across decedent at a bar. Renna expressed a desire to meet Hunterson. Renna was a member of a motorcycle gang called the Mongols, but was interested in joining the Henchmen. Renna followed defendant and Pohlig to the Magalotti home.

Shortly after the three entered, Pohlig called Magalotti aside and, referring to Renna, said that they were “going to put a hurt on this guy.” Pohlig then called Hunterson, who arrived shortly with Stiles. The group sat and talked, except for Stiles, who may have been asleep, and several weapons, including a knife of Hunterson’s and a gun possessed by Renna, were passed around or exhibited.

At about 10 :30 p.m. Renna got up to leave and Hunter-son then plunged his knife into Renna’s abdomen. From this point forward all concerned obeyed Hunterson’s orders. Renna, still alive, was bound and gagged. His pockets were emptied. Defendant participated in cleaning out Renna’s car and wiping it of fingerprints. He aided Pohlig in carrying Renna to Pohlig’s ear and placing Renna in the trunk. Hunterson called a Lenny Shrubs, president of another motorcycle gang named the Warlocks, and told Shrubs that he was bringing him a present. Hunterson and Pohlig left with Renna. With’ Mrs. Magalotti driving Renna’s car, defendant accompanied her to Bristol, Pennsylvania where it was abandoned. They had followed Magalotti and Stiles, who occupied Magalotti’s car. Upon return to the Magalotti home, defendant and Stiles fell asleep.

Hunterson and Pohlig arrived at the clubhouse with Renna, still alive, and Bevilacqua. At Pohlig’s request the Magalottis went there to administer to Renna, who was in agony. There was talk about “putting him out of his misery.” Mrs. Magalotti sutured the wound and attempted to ease his pain with an injection of xylocaine. Magalotti roused defendant and Stiles and had them return to the clubhouse. Defendant participated in completing a grave which had been started. He helped carry Renna to this site. Defendant testified that he was sure that Renna was dead at this point. The medical examiner could form no opinion on the topic. Renna (or his body) was dumped into the grave. Hunterson, with a gun in his hand, ordered the completion of his plan that everyone present would put a bullet into Renna, stating that all were in it together and if one were to hang all would. No doubt Hunterson was operating on the theory that such activity by his companions would be an interdiction against revelation of the evening’s events.

By this time the Magalottis had returned to their home. A gun, apparently the weapon Renna had exhibited earlier, was passed from hand to hand. All fired into the grave. Defendant was the fourth of the five to shoot. He claimed that he deliberately fired into the side of the grave but not into Renna. According to defendant, Hunterson, Stiles, Pohlig and defendant each fired once and Bevilacqua twice. Three bullets were found in the body upon autopsy.

The Magalottis received several threatening notes over the next few months. Finally, on August 3, 1971 they went to the authorities. Pursuant to a grant of immunity that they requested, their story was revealed and the exhumatioD of the body, arrests and the indictment soon followed. The Magalottis were the State’s principal witnesses below. That they were testifying with immunity was made known to the jury-

Defendant claimed that he acted under duress. His thesis was that his fear of Hunterson was such, because he knew Hunterson would not hesitate to kill him for a breach of orders, that he obeyed his every instruction. Defendant excused his failure to exercise one of his many opportunities to escape and report to the authorities on account of this fear knowing that “Dutch” would find him. He points out, too, that Hunterson was continually armed and, during the final moments of the episode when turns were taken at firing into the grave, Hunterson’s gun was visible in his hand.

The jury was charged on felony and non-felony murder, the felony being kidnapping. The jury was also instructed on duress, that defense being limited to the kidnapping, the court holding that duress as a defense is unavailable when the crime is murder.

Vie have been referred to no New Jersey case which permits the defense of duress to any crime, although State v. Palmieri, 93 N. J. L. 195 (E. & A. 1919), and State v. Churchill, 105 N. J. L. 123 (E. & A. 1928), note the issue. Generally, the defense is said to be available (with perhaps some isolated exceptions) to defense of all crimes except murder. 21 Am. Jur. 2d, Criminal Law, § 100 at 180 (1965); Annotation, “Coercion, compulsion, or duress as defense to criminal prosecution,” 40 A. L. R. 2d 908 (1955) ; 1 Wharton’s Criminal Law and Procedure, § 123 at 261 (1957). At common law there is virtual unanimity in the view that duress is not available as a defense to a charge of that crime. In addition to the above authorities see, e. g., Arp v. State, 97 Ala. 5, 12 So. 301 (Sup. Ct. 1893); R. v. Brown (1968) S. A. S. R. 467 (S. Australia Sup. Ct.); State v. St. Clair, 262 S. W. 2d 25 (Mo. Sup. Ct 1953); Taylor v. State, 158 Miss. 505, 130 So. 502 (Sup. Ct. 1930). See also, People v. Petro, 13 Cal. App. 2d 245, 56 P. 2d 984 (D. Ct. App. 1936), and State v. Moretti, 66 Wash. 537, 120 P. 102 (Sup. Ct. 1912), where there are discussions of statutes making the defense available except in cases of murder or where the crime carries the death penalty.

Defendant does not dispute the general rule, but argues that it is applicable only to a defendant who is the actual perpetrator of the killing, and that the defense should be available to one such as he who did not directly kill but only aided and abetted. Authoritative discussion of the point is sparse (but see B. v. Brown, supra, dissenting opinion; State v. Moretti and People v. Petro, both supra) and this is undoubtedly so because the argument has little merit.

Under the circumstances here defendant could not be convicted of second degree murder as an aider and abettor unless he participated with an intent that the victim be killed or be subjected to the infliction of grievous bodily harm. This was made quite clear to the jury by the charge of the trial court. State v. Fair, 45 N. J. 77, 94-95 (1965); State v. Madden, 61 N. J. 377, 396-397 (1972). Although our statute, N. J. S. A. 2A:85-14, requires punishment of each participant as a principal, this does not mean that all participants in a homicide are necessarily guilty in the same degree. As was said in State v. Fair, supra.

If both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind. [45 N. J. at 95]

Thus it is that participants in the same homicide may be variously found guilty of murder in the first degree, murder in the second degree or manslaughter. State v. Fair, supra, 45 N. J. at 94—96.

The rationale of the common law rule denying the defense of duress when the charge is murder is that one cannot submit to coercion to take the life of an innocent person but should risk or sacrifice his own instead. Arp v. State, supra. The rule encompasses denial of the defense to all forms of murder, including homicides resulting from an intent to do grievous bodily harm as well as an actual intent to kill, and seems to include all other offenses where an intent to kill is an essential element. Watson v. State, 212 Miss. 788, 55 So. 2d 441 (Sup. Ct. 1951). Since the second degree verdict was necessarily predicated upon a finding that the defendant participated with either an intent to kill or an intent that grievous bodily harm be done to Henna, the trial court was correct in precluding the defense of duress to the charge of murder.

Defendant’s contention that Pohlig’s statement to Magalotti that they were “going to put a, hurt” on Henna was inadmissible is refuted by reference to State v. Louf, 64 N. J. 172 (decided December 19, 1973) ; State v. Carbone, 10 N. J. 329, 338 (1952), and State v. Rios, 17 N. J. 572, 596 (1955). We also find without merit the contention that admission of (1) a photograph of Henna’s body in the grave; (2) a bandage removed from the body after exhumation which had been placed over the wound by Mrs Magalotti, and (3) a photograph of skin removed from Henna’s arm during autopsy which bore the tattoo of a serpent, were inflammatory and prejudicial. The jury was properly instructed on this subject and there was no error. See State v. Thompson, 59 N. J. 396, 421 (1971).

Affirmed.

      The verdict obviously exonerated defendant from tbe charge of participating in a felony murder. Had this been found, the verdict would have had to be one of guilt of murder in the first degree. Hence, the potentialities of the defense of duress to a felony murder charge is not now before us. Discussion of this precise issue is rare, but see State v. Moretti, People v. Petro and R. v. Brown, all supra, and People v. Pantano, 239 N. Y. 416, 146 N. E. 646 (Ct. App, 1925). Whether the defense is legally available to one who, under duress, aids and abets in the commission of a felony that results in a homicide, without an intention to kill or do grievous bodily harm and without knowledge of such an intent on the part of another participant, is a question we leave to another day.


author: Mehler, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MICHAEL MILLER AND WILLIAM LORBER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 21, 1974
    Decided February 14, 1974.

      Before Judges Lynch, Mehler and Michels.

      Mr. R. Peter Connell, Assistant Prosecutor, argued the cause for appellant (Mr. John S. Kuhlthau, Middlesex County Prosecutor, attorney; Mr. Lawrence Silver, Assistant Prosecutor, on the brief).

      Mr. Michael Suffness, Assistant Deputy Public Defender, argued the cause for respondents (Mr. Stanley C. Van Ness, Public Defender, attorney).
   The opinion of the court was delivered by

Mehler, J. A. D.

By leave of court the State appeals a portion of an order suppressing evidence. Following an anonymous telephone call that a party was in progress in a certain apartment and that a large quantity of marijuana was present, police officers went to the apartment. When one knocked on the door, Officer Haskins asked that it be opened. Defendant Lorber complied with the request. When the door was opened more than a quarter of the way, Officer Keff was able to look into the apartment. There he saw a large copper tray and six hand-rolled cigarettes which, based on his experience and training, appeared to him to be marijuana cigarettes. Keff thereupon entered the apartment and arrested Lorber and one Vincere. Keff testified that before Lorber and Vineere were taken out of the apartment by the police “a lot of creaking overhead” was heard. When a detective asked if anybody was upstairs Lorber was said to have replied, “Why don’t you go up and see?” Reff thereupon went upstairs to the attic and as he got to the top step he saw in the attic seven large plastic bags which contained marijuana. The bags were seized.

Lorber and Vincere denied there was any creaking noise from the attic or any discussion about it. A female, Ebert, who was found in the apartment, testified that Lorber and Yincere were removed from it before Reff went to the attic.

The trial judge denied the motion to suppress the seizure of the six cigarettes found in the apartment and their use as evidence on the ground that they were in plain view and hence could be seized without a warrant. See State v. Griffin, 84 N. J. Super. 508, 519 (App. Div. 1964); State v. McKnight, 52 N. J. 35, 56-57 (1968); cf. State v. Smith, 37 N. J. 481, 496 (1962); State v. Jordan, 115 N. J. Super. 73 (App. Div. 1971). Defendants do not appeal from the portion of the order denying this part of the motion.

The judge granted the motion to suppress the seven bags of marijuana as evidence. Citing State v. Rice, 115 N. J. Super. 128, 131 (App. Div. 1971), he held that Lorber could not legally consent to a search of the attic because he was not the tenant (Miller appears to have been but was not then in the apartment). See also Bumper v. North Carolina, 391 U. S. 543, 548-549, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). We refrain from passing on this holding because the State does not take issue with it and does not endeavor to justify the seizure on the basis of consent. But see, State v. Hagan, 99 N. J. Super. 249 (App. Div. 1968).

The judge reasoned that having arrested two'offenders, the police had no right to search any area other than the one within the immediate control of the two persons arrested, and said that a search warrant could have been applied for and obtained. It is clear that a search incidental to a lawful arrest may generally not extend beyond the person and the area within his immediate control from within which he might obtain a weapon or destroy evidence. Chimel v. Cali fornia, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). The State, however, argued in the court below, as it does here, that the seizure of the seven bags of marijuana in the attic was proper because they were in plain view of the officer who was investigating the noises which could lead an officer to believe that other persons were present in the apartment. The State contends that because policemen have become targets of criminals, Officer Keif had the right to investigate the creaking noises to protect the safety of the officers in the apartment and thus had a right to go to the source of the noises.

Thus far the Supreme Court of the United States and the courts of our State have held that there are only a few specifically established and well delineated situations in which a dwelling house may be searched without a warrant. They are summarized in State v. Allen, 113 N. J. Super. 245 (App. Div. 1970):

These exceptions will exist if there is consent, or if the police involved were responding to an emergency, or if they were in hot pursuit of a fleeing felon, or if the goods were in the process of destruction, or if they were about to be removed from the jurisdiction, [citing- eases] And, of course, when an individual is arrested, only his person and the area within his immediate control may be searched — i. e., that area from which he might gain possession of a weapon or destroy evidence, [at 2D1]

See also, Vale v. Louisiana, 399 U. S. 30, 33, 90 S. Ct. 1969, 1971, 26 L. Ed. 2d 409, 413 (1969).

Neither the United States Supreme Court nor the Supreme Court of New Jersey has, so far as we know, dealt specifically with the problem before us, namely, to what extent law enforcement officers lawfully in a home without a warrant may search or investigate an area beyond the immediate area of the place of arrest to learn whether there are other persons in the home who may prove to be a source of danger to the arresting officers. Our own Supreme Court has spoken of protection, but in a limited way. In State v. Gray, 59 N. J. 563 (1971), the court said (at 569), “It is well settled that pursuant to a valid arrest a police officer may search a defendant and the area within his reach to protect himself from attack, * * United States v. Briddle, 436 F. 2d 4 (8 Cir. 1970), cert. den. 401 U. S. 921, 91 S. Ct. 910, 27 L. Ed. 2d 24, cited by the State, is of no assistance. There, police arrested defendant in his home and fanned out to make a quick search of the apartment to determine whether other persons were present who might prevent defendant’s arrest or detention or present a danger to the officers. In doing so the police found a shotgun, for which defendant was prosecuted and convicted. The court held that the shotgun was validly seized as an incident of Briddle’s arrest. The case does not stand as an authority for the State inasmuch as Briddle did not question the right of the officers to make his arrest and in connection with it and as a security measure to conduct a cursory search of the apartment for other persons. In short, the court did not have to meet the question.

We hold that the police did have the right under the circumstances related by Officer Ref£ to investigate noises in an area distant from the point of arrest and to seize contraband which came into his plain view during the course of that investigation. The court below did not deal with this subject either factually or legally. It did speak of an exploratory search but did not specifically deal with the argument advanced by the State.

We reverse and remand the case to the court below to determine, on the evidence already presented and on such other evidence as may be offered by the parties, whether Officer RefE was, for security reasons, investigating noises when he came upon the seven bags of marijuana. If that was his purpose, and the marijuana came into his plain view, then the motion to suppress the seven bags of marijuana as evidence should be denied.

We retain jurisdiction in the event the motion to suppress is granted.


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

text:
    AMERICAN TRIAL LAWYERS ASSOCIATION, NEW JERSEY BRANCH, TRIAL ATTORNEYS OF NEW JERSEY, AND TRIAL LAWYERS ASSOCIATION OF MIDDLESEX COUNTY, INDIVIDUALLY AND AS CLASS REPRESENTATIVES OF MEMBERS OF THE PLAINTIFF ORGANIZATIONS, WHICH CLASSES ARE ALSO PLAINTTFFS-RESPONDENTS, v. NEW JERSEY SUPREME COURT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1973
    Decided February 14, 1974.

      Before Judges Kolovsky, Fritz and Crane.

      Mr. Stephen STcillman, First Assistant Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General, attorney).

      Mr. Alexander M. Biclcel of the Massachusetts Bar, admitted pro hac vice, and Mr. Morris M. Schnitzer argued the cause for respondents (Messrs. Schnitzer and Schnitzer, and Mr. William O. Barnes, Jr., attorneys).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

On December 21, 1971 the New Jersey Supreme Court adopted a rule, to be effective January 31, 1972, regulating “contingent fee arrangements” in tort litigation. B. 1:21-7. Plaintiffs first instituted an action in the United States District Court for the District of New Jersey attacking the validity of the rule. That action pends in that court awaiting the conclusion of these proceedings, which plaintiffs thereafter instituted, challenging the validity of the rule on state constitutional grounds. American Trial Law. Ass’n N. J. Branch v. New Jersey S. Ct., 409 U. S. 467, 93 S. Ct. 627, 34 L. Ed. 651 (1973).

The action in the state court came on for disposition before a judge of the Law Division. Plaintiffs offered no evidence in support of their multi-pronged attack on the rule, advising the court that

After due deliberation, it is our submission that we are entitled to prevail upon the record in its present posture and would, therefore, decline to offer evidence at a trial before Hour Honor.

The Law Division judge ruled • — • contrary to what plaintiffs contended — that (1) the adoption of a rule regulating contingent fee arrangements is within the power granted to the Supreme Court by Article VI, section II, paragraph 3 of the Constitution of 1947, and (2) the exercise by the Supreme Court of its rule-making power “is analogous to legislation, an exercise of constitutional authority by a separate branch of government,” thus rendering inapplicable to judicial review of the rule “the body of administrative law with its constitutional postulate of findings of facts grounded in a record [citations omitted] [which] has developed out of legislative delegation to agencies. within the executive branch of government.”

Further, the judge held that a rule adopted by the Supreme Court “is reviewable, as legislation is, to determine the test of substantive due process of law, that is, whether it is in reasonable furtherance of the public health, safety or welfare. A presumption of validity should favor it.”

The trial judge acknowledged that the problem of contingent fees in tort litigation had been of concern to the Supreme Court for some 15 years before the rule was adopted. Further, the judge recognized that in the summer of 1971 the court had published a proposed rule and had solicited comments thereon from members of the Bar; that it had held a public hearing on the proposed rule on November 6, 1971, at which objections to the proposed rule were presented by representatives of the New Jersey State Bar Association, the several county bar associations, and the Trial Lawyers Association of New Jersey; and that, after considering the objections, both oral and -written, offered by-members of the Bar, it had amended the rule as originally proposed and had adopted it in its present form on December 21, 1971.

nevertheless, and despite the trial judge’s purported recognition that there is a presumption that the rule is valid and reasonable, he apparently deemed of no significance plaintiffs’ refusal to offer any evidence, and concluded:

Rule 1:21-7(c) establishes a 331/3% contingent fee on recoveries above $50,000 as unconscionable and unethical, except in special cases warranting relief under subsection (f). Contrary to such a priori determination was the prevalence of the 33 1/3% contingent fee in this State and elsewhere before its effective date. The challenged rule’s interference with freedom of contract and its restriction on attorneys’ incomes is without support in the record or in matters subject to judicial notice. Xo information as to widespread abuse or complaints is before this court, no data from which an inference may be drawn that 331/3% contingent fees on recoveries above $50,000 are so out of proportion to the value of attorneys’ services as to be unreasonable.
Judgment is rendered holding Rule 1:21-7(c) invalid on State constitutional grounds.

This appeal is from that judgment. We reverse because we are satisfied not only that there is no merit to plaintiffs’ arguments — iterated on appeal although rejected in the trial court — that the Supreme Court lacked power to adopt any regulation of contingent fee arrangements and that the procedures used by it in adopting the rule were improper, but also that, in the absence of any evidence that the schedule of maximum contingent fees embodied in the rule was unreasonable, the trial judge had no warrant for concluding that the rule violated the constitutional right of attorneys to freedom of contract.

The contingent fee rule, B. 1:21-7, as clarified by a directive issued by the Supreme Court on April 13, 1972, applies to all matters, whether the case is to be litigated in the state or federal courts in New Jersey, in which the client’s claim for damages is based upon the alleged tortious conduct of another, including products liability claims. It does not apply when the client is a subrogee. Nor does it “apply to ‘business torts’ such as fraud or conspiracy to interfere with contractual relationships.” It does include “all typical negligence cases, such as auto accidents, product liability and ‘slip and fall.’ ”

“Contingent fee arrangement” as used in the rule means an agreement for an attorney’s legal services “under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be in an amount which either is. fixed or is to be determined under a formula.”

Paragraph (b) of the rule provides:

An attorney shall not enter into a contingent fee arrangement without first having advised the client of the right and afforded the client an opportunity to retain him under an arrangement whereby he would be compensated on the basis of the reasonable value of his services.

Paragraph (c) provides that in cases to which the rule is applicable

* * * an attorney shall not contract for, charge, or collect a contingent fee in excess of the following- limits:
■ (1) 50% on the first $1000 recovered;
(2) 40% on the next $2000 recovered;
(3) 33-1/3% on the next $47,000 recovered;
(4) 20% on the next $50,000 recovered;
(5) 10% on any amount recovered over $100,000; and
(6) where the amount recovered is for the benefit of an infant or incompetent and the matter is settled without trial the foregoing limits shall apply, except that the fee on any amount recovered up to $50,000 shall not exceed 25%.

(Paragraph (e) makes it clear that attorneys are not precluded from entering into contingent fee arrangements providing for lower percentages.)

Paragraph (d) of the rule provides for computation of the contingent fee on the net sum recovered “after deducting [specified] disbursements in connection with the institution and prosecution of the claim * * No deduction need be made for hospital and medical liens or similar items. The paragraph concludes:

The permissible fee shall include legal services rendered on any appeal or review proceeding or on any retrial, but this shall not be deemed to require an attorney to take an appeal.

Paragraph (f) deals with the situation where the attorney deems the fee permitted by paragraph (c) to be inadequate and provides:

If at the conclusion of a matter an attorney considers the fee permitted by paragraph (e) to be inadequate, an application on written notice to the client may be made to the Assignment Judge for the hearing and determining of a reasonable fee in light of all the circumstances. * * ® This rule shall not preclude the exercise of a client’s existing right to a court review of the reasonableness of an attorney's fee.

Paragraph (g) requires that the contingent fee agreement be in writing and that a signed duplicate thereof be delivered to the client. Pursuant to an administrative directive, any provision reserving the right to the attorney to proceed for a greater fee under R. 1:21-7 (f) must be included in the writing. Upon successful conclusion of the litigation, a signed closing statement, in the form prescribed by the Administrative Director of the Courts, must be delivered to the client.

The rule thus defines the outer limits of permissible contingent fees in tort litigation, at the same time providing, by paragraph (f), a procedure by which attorneys who deem the circumstances of a particular case to reasonably warrant a fee greater than that authorized by the rule, to apply for court approval of the larger fee.

Plaintiffs contend that the Supreme Court lacks constitutional power to adopt any rule regulating contingent fees; indeed, “that the New Jersey Constitution does not grant rule making power [to the Supreme Court] in the matter of admission to practice and discipline of the Bar.”

The New Jersey Constitution of 1947 divides “the powers of the government * * * among three distinct branches, the legislative, executive, and judicial.” Art. Ill, par. 1. It vests the “judicial power * * * in a Supreme Court, a.Superior Court, County Courts and inferior courts of limited jurisdiction,” the last of which “may from time to time be established, altered' or abolished by law.” Art. YI, § I, par. 1.

The Constitution further provides that the Supreme Court, consisting of a Chief Justice and six Associate Justices (Art. YI, § II, par. 1) “shall exercise appellate jurisdiction in the last resort in all causes provided in this Constitution” (Art. YI, § II, par. 2) and that

The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted. [Art. YI, § II, par. 3]

Plaintiffs argue that since there is no reference to rule-making in the second sentence of the quoted paragraph 3, the Supreme Court may not exercise the jurisdiction granted thereby “over the admission to the practice of law and the discipline of persons admitted” legislatively, i. e., by adopting rules of general application thereto. Instead, plaintiffs argue, that jurisdiction, particularly insofar as it applies to the regulation of the conduct of a member of the Bar and his relationship to his clients, may be exercised only in adjudicatory proceedings, in litigation instituted to discipline an attorney or to review 'the reasonableness of a fee charged by the attorney in a specific case.

To accept plaintiffs’ argument would be to invalidate all rules of general application adopted by the Supreme Court regulating the professional conduct of attorneys and their relationships to their clients and to the courts. Included among those rules, in addition to the- contingency fee rule, are rules: regulating bar examinations and the licensing of attorneys (B. 1:23 to 27); specifying who may practice law and appear in court (B. 1:21-1 to 4); authorizing attorneys to form “professional corporations” to engage in the practice of the law (R. 1:21-1A); creating a committee on the unauthorized practice of the law (B. 1:22); setting forth limitations on the practice of law by attorneys holding various public offices and positions (R. 1:15); adopting a canon of professional ethics (B. 1:14); creating an advisory committee on professional ethics (R. 1:19); regulating ethics committees and disciplinary proceedings (B. 1:20); requiring attorneys to maintain separate trustee and business bank accounts and specified bookkeeping records (B. 1:21-6), and providing for the crea i ion and maintenance of a “client’s security fund” to which each member of the bar must annually contribute the sum of $15 (B. 1:28).

We do not accept plaintiffs’ argument because we are convinced it is frivolous.

“That the States have broad power to regulate the practice of law is, of course, beyond question.” United Mine W. of A. Dist. 12 v. Illinois St. Bar Ass’n, 389 U. S. 217, 222, 88 S. Ct. 353, 356, 19 L. Ed. 2d 426 (1967). United Mine also recognizes that the “broad power” may be exercised by the adoption of “broad rules framed to protect the public and to preserve respect for the administration of justice.”

By Art. VI, § II, par. 3, the Constitution makes the Supreme Court the exclusive repository of the State’s power to regulate the practice of the law, investing it “with exclusive responsibility in this area.” State v. Rush, 46 N. J. 399, 411 (1966).

Nothing in the language of the constitutional provision or in the'proceedings leading to its adoption furnishes even a scintilla of support for an assumption that the framers of the Constitution, when they granted the Supreme Court the exclusive responsibility of regulating the practice of the law, at the same time intended to and did deprive it of the long-recognized inherent power of courts to do so by adopting reasonable rules of general application governing the professional conduct of attorneys, both in and out of court.

The cases uniformly support the statement in 7 C. J. S., Attorney and Client, § 58 at 843 that:

The power of the court to make reasonable rules and regulations regarding the conduct of attorneys is not open to question.

See In re Rothman, 12 N. J. 528, 535 (1953); Collins v. Godfrey, 324 Mass. 574, 87 N. E. 2d 838 (Sup. Jud. Ct. 1949); In re Member of Bar, 257 A. 2d 382 (Del. Sup. Ct. 1969), app. dism., In re Reed, 396 U. S. 274, 90 S. Ct. 562, 24 L. Ed. 2d 461 (1970); Barton v. State Bar of California, 209 Cal. 677, 289 P. 818, 819 (Sup. Ct. 1930); Gair v. Peck, 6 N. Y. 2d 97, 188 N. Y. S. 2d 491, 160 N. E. 2d 43 (Ct. App. 1959), cert. den. 361 U. S. 374, 80 S. Ct. 401, 4 L. Ed. 2d 380 (1960); Schlesinger v. Teitelbaum, 475 F. 2d 137 (3 Cir. 1973); see also, 7 Am. Jur. 2d, Attorneys at Law, § 2 at 44.

As the Supreme Judicial Court of Massachusetts said in Collins v. Godfrey, supra, in sustaining the validity of one of its rules restricting the practice of law by judicial personnel:

Only the court can determine whether any member of the bar has been guilty of improper conduct, and only the court can decide what consequences shall be visited upon him. Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565. It would be strange indeed if the judicial department, having such powers of investigation and discipline to the extent of professional death over its own officers, when it becomes aware of a custom or practice among some of them which tends to undermine public confidence in the administration of justice, should be reduced to the mere expedient of imposing consequences upon individuals for past conduct, a recourse which, as in the instance before us, might be so grossly unfair that it could not be considered. The judicial department is not helpless in the face of such a situation. Neither is it obliged to call the legislative department to its assistance. In its own proper field it is able to stand alone. Without going farther than is necessary to decide the case before us, we believe that whenever it appears that, in the practice of the law, methods, customs, or habits have grown up among members of the bar which are undermining the confidence of the public in the courts and so are hampering the judicial department in the performance of its con stitutional duties, that department has the power to proceed in a sensible way to eradicate the evil by laying down a rule for future guidance without prosecuting any individual. [87 N. E. 2d 811; emphasis added]

We are convinced that the power so vested in the Supreme Court to regulate the practice of the law includes the power to adopt a reasonable rule establishing the outer limits of permissible contingent fees in tort litigation. Gair v. Peck, supra; Schlesinger v. Teitelbaum, supra.

In Gair v. Peck, supra, the New York Court of Appeals upheld the power of the Appellate Division, First Department, in the exercise of “their long standing ‘power and control over attorneys and counsellors at law and all persons practicing or assuming to practice law,’ ” to adopt a rule embodying a schedule of reasonable fees relating to “Contingent Fees in Claims and Actions for Personal Injury and Wrongful Deaih.” In doing so, the court said;

The rule-making power is not limited to prescribing only the specific case after the event. The idea that imposition by lawyers on their clients, opx>ressive and unconscionable fee agreements or similar conduct is beyond the rule-making power of the court has no shadow of foundation. The idea is frivolous that disciplinary power over attorneys is unrelated to the exaction of excessive fees. Nor are the Appellate Divisions so helpless as to be denied the power of censure or of taking more incisive disciplinary action to curb the practice of excessive exactions against clients merely for the reason that the client himself has not elected to contest payment of the fee. The duty and function of the Appellate Divisions to keep the house of the law in order does not hinge upon whether clients, worn down by injuries, delay, financial need and counsel holding the purse strings of settlement, knowing little about law or lawyers, have had the stamina to resist in court by hiring other lawyers to be paid out of the other half of the recovery for defending aganist the first lawyer. [188 N. Y. S. 2d at 501, 160 A. E. 2d at 51]

As Chief Justice Vanderbilt said in Steiner v. Stein, 2 N. J. 367 (1949) ;

By reason, however, of 1 he confidential relation of client and attorney and because an al lorney’s position of trust as an officer of the courts obligates him to the highest standard of fair dealing, equity has long exercised jurisdiction to supervise at the behest of the client an attorney’s conduct toward his client. In so doing the Court of Chancery has invoked a variety of remedies ranging from the investigation of the fairness of any agreement between attorney and client to restraining actions at law, threatened or existing, and from revising or cancelling contracts for services to determining the just and reasonable sum due the attorney from his client, [at 372]

While contingent fees are permitted in New Jersey (Hassell v. Van Houten, 39 N. J. Eq. 105 (Ch. 1884)), they always have been subject to strict supervision by the courts. Colgan v. Jones, 44 N. J. Eq. 274 (E. & A. 1888); Soper v. Bilder, 87 N. J. Eq. 564 (Ch. 1917); Hughes v. Eisner, 8 N. J. Super. 351 (Ch. Div. 1950), rev’d 14 N. J. Super. 58 (App. Div. 1951), app. dism. 8 N. J. 228 (1951).

Leaving for later consideration the question of the reasonableness of the percentages set out' in B. 1:21-7, we are satisfied that the rule is a permissible method of exercising the court’s power over fee arrangements between attorneys and their clients by a rule of general application which provides advance notice to the Bar of the maximum fee the court deems to be' fair under ordinary circumstances and at the same time provides protection to the client from overreaching more expeditiously than through case by case review of individual fees.

Plaintiffs next contend that even if the Supreme Court has the power to adopt a rule regulating contingent fee arrangements, an evidentiary hearing is a prerequisite to a valid promulgation thereof. The essence of plaintiffs’ argument appears in the following quotation from their brief:

If otherwise constitutional, which we do not believe it would be, R- l:21-7(e) could, to be sure, have been enacted by the legislature without any prior evidentiary hearing. But it was not. It was enacted by an agency — in this instance a court ■ — • exercising an administrative function. * * * Rate-setting is a legislative function and may ,be exercised by the legislature, but when exercised administratively it generally requires an evidentiary hearing.

The argument is without substance. No justification exists for plaintiffs’ reliance in support thereof on cases involving administrative agencies to which the Legislature has delegated power, based on findings of fact, to adopt rules in particular areas. Even an administrative agency acting in accordance with delegated legislative authority may act legislatively without first conducting a hearing unless required to do so by statute. Pacific States Box & Basket Co. v. White, 296 U. S. 176, 56 S. Ct. 159, 80 L. Ed. 138 (1935).

'Moreover, the Supreme Court, in adopting B. 1:27, was not acting as an administrative agency exercising powers delegated to it by the Legislature. Eather, it was exercising powers which the Constitution vested in it as one of the three branches of the government. Its action in adopting the rule, although action of the judicial branch, was “legislative in nature,” Lathrop v. Donohue, 367 U. S. 820, 825, 81 S. Ct. 1826, 1828, 6 L. Ed. 2d 1191 (1961), just as was the act of the Wisconsin Supreme Court in entering an order integrating the Wisconsin Bar, ail order whose validity was sustained by the United States Supreme Court in Lathrop.

No evidentiary hearing and findings of fact based thereon — or indeed even a legislative type hearing such as the Supreme Court did hold on November 6, 1971 — was required, any more than, as plaintiffs concede, it would have been required had the subject matter thereof been within the jurisdiction of the Legislature and the substance thereof embodied in a statute enacted by the Legislature. McDonald v. Board of Election Com’rs of Chicago, 394 U. S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739 (1969).

As is the ease with respect to all legislative action, the rule thus adopted by the Supreme Court in the exercise of its jurisdiction is presumed to be constitutional. “The presumption of reasonableness is with the State.” Salsburg v. Maryland, 346 U. S. 545, 553, 74 S. Ct. 280, 284, 98 L. Ed. 281 (1954).

As the court said in Pacific States Box & Basket Co., supra:

When * * * legislative action “is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must cau-y the burden of showing by a resort to common knowledge, or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.” L5Ü S. Ot. at 163]

See also, Ind. Elec., etc., Ass’n v. N. J. Bd. of Ex’rs., Elec. Contr’rs, 48 N. J. 413, 423-424 (1967); N. J. Chap., Am. I. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 599—600, app. dism. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967); McDonald v. Board of Election Com’rs of Chicago, supra.

The presumption is applicable in cases of constitutional challenge to legislative measures placing limitations on fees and charges (see e.g. O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251, 257, 51 S. Ct. 130, 132, 75 L. Ed. 324 (1931)), including limitations on the fees which attorneys may charge their clients with respect to various types of claims. Haberberger v. Myer, 4 N. J. 116, 125-126 (1950); Yeiser v. Dysart, 267 U. S. 540, 45 S. Ct. 399, 69 L. Ed. 775 (1925); Margolin v. United States, 269 U. S. 93, 46 S. Ct. 64, 70 L. Ed. 176 (1925); Randolph v. United States, 274 F. Supp. 200 (M.D. N.C. 1967), aff’d 389 U. S. 570, 88 S. Ct. 695, 19 L. Ed. 2d 785 (1968) ; Gair v. Peck, supra; Schlesinger v. Teitelbaum, supra.

So here, a presumption of validity attached to the rule adopted by the Supreme Court. Even if the trial court gave no weight either (a) to the statements made by the members of the Supreme Court at the public hearing of November .6, 1971 as to the information they had that led them to the conclusion that the rule was necessary and reasonable, or (b) to the failure of the objectors at that public hearing to accede to the Supreme Court’s suggestions that they submit financial and other data to show that the limitations of the rule were unfair, still the trial court was required to assume, in the absence of a contrary showing — and there was none — the existence of a state of facts which justified the adoption of the rule and that the limitations of the rule are reasonable. The trial court’s ruling in effect placed the burden of proof on defendant.

That ruling was erroneous. Under settled law, to overcome the presumption of validity which attached to the rale, plaintiffs had the “burden of showing by a resort to common knowledge, or other matters which may be judicially noticed, or to other legitimate proof,” Pacific States Box & Basket Co. v. White, supra, that the rule and the limitations set forth therein are in fact arbitrary and unreasonable. Since neither “common knowledge” nor other matters which may properly he judicially noticed shed any light on the factual issues here presented, it was plaintiffs’ burden to offer proofs — and they expressly declined to do so — to rebut the presumption and to support the allegations in their initial pleading that:

1(. 1:21-7 (c) is in fact unreasonable, and therefore an arbitrary and unconstitutional, rate schedule for legal services, in that it is not fairly related to the contingent character of legal sendees performed for the plaintiffs in most tort cases, in which the recovery is over $50,000 or to the quantity, quality or value of such services in most tort cases and does not provide or allow fair and reasonable compensation for such services.

We conclude that there is no support in the record for the trial court’s determinations that B. 1:21-7 (c) is unreasonable and violates a right of freedom of contract protected by the New Jersey Constitution. Attorneys have never had the right to enforce contractual provisions for more than a fair and reasonable fee. They are not businessmen entitled to charge what the traffic will bear. “Membership in the bar is a privilege burdened with conditions.” Matter of Rouss, 221 N. Y. 81, 84,116 N. E. 782, 783 (Ct. App. 1917). “The court’s control over a lawyer’s professional life derives from his relation to the responsibilities of a court.” Theard v. United States, 354 U. S. 278, 281, 77 S. Ct. 1274, 1276, 1 L. Ed. 2d 1342 (1957).

Plaintiffs next contend that the rule “denies the equal protection of the laws to lawyers and their clients” in violation of the New Jersey and United States Constitutions. They argue that the rule is unconstitutionally discriminatory because (1) “it singles out contingent fees from among the varieties of fee arrangements,” (2) “it singles out contingent fees in negligence cases,” and (3) it excludes subrogation claims from the control of the rule.

Altogether apart from the fact that there is no evidence to overcome the presumption that the classification is reasonable, Pacific States Box & Basket Co. v. White, supra, plaintiffs’ argument ignores the settled rule that:

The constitutional mandate for equal protection does not mean that the regulation must reach every class to which it might be applied— that the Legislature must regulate all or none. The Legislature has wide discretion in the creation of or recognition of classes for different treatment. Equal protection does not require that all persons be dealt with identically. If there is some reasonable basis for the recognition of separate classes, and the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the State’s objective; the separate treatment must admit of but one conclusion beyond a rational doubt, i. e., that the basis therefor is arbitrary and unreasonable, and without relevance to the legislative goal. [N. J. Chap., Am. I. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 001-602 (1967), app. dism. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967)]

As the cases have recognized, contingent fee arrangements involve unique problems in the attorney-client relationship, including those arising from the establishment by contract of a method for compensation which bears no direct relationship either to the effort expended by the attorney or the actual value of the services. The separate treatment thereof is clearly justified; the classification is not arbitrary; it does not deny the equal protection of the law.

Nor is the classification improper because the rule applies only to negligence claims, the area in which contingent fee arrangements are most commonly used.

The exclusion of subrogation claims from the operation of the rule is an obvious recognition of the fact that the client in the subrogation case is an insurance company whose bargaining strength, unlike that of individual clients, is sufficiently strong to eliminate the possibility of the imposition of excessive fees.

The added suggestion by plaintiffs in their argument that the rule somehow discriminates against the poor is frivolous and unsupported by the record.

Finally, we find no merit to plaintiffs’ contention that the rule impairs the obligation of contingent fee contracts made and partly performed prior to January 31, 1972. Apart from the fact that, as noted above, it has long been recognized that attorneys’ fee arrangements are subject to judicial scrutiny, “every contract is made subject to the implied condition that its fulfillment may be frustrated by a proper exercise of the police power.” Veix v. Seneca B. & L. Ass’n, 126 N. J. L. 314, 320 (E. & A. 1940) ; see also Marcus Brown Holding Co. v. Feldman, 256 U. S. 170, 198, 4] S. Ct. 465, 466, 65 L. Ed. 877 (1921). The stated rule is fully applicable to fee contracts between an attorney and his client. Calhoun v. Massie, 253 U. S. 170, 40 S. Ct. 474, 476, 64 L. Ed. 843 (1920).

Moreover, the lack of substance in the contention that the retroactive application of B. 1:21-7 impairs the obligation of contract is underscored by the fact that any attorney who believes that the rule operates unfairly as to him may proceed, under B. l:21-7(f), to seek court approval of a fee in an amount greater than that permitted by B. 1:21 — 7(c).

We are satisfied that, on the record here, it is clear that the challenged rule is valid and constitutional. The judgment of the Law Division is reversed.

      The trial court’s characterization of the determination implicit in R. 1:21-7(c) as an “a priori determination” is unwarranted.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHRISTOPHER WALL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted February 13, 1974
    Decided February 22, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Stanley G. Van Ness, Public Defender of New Jersey, attorney for-appellant (Mr. Edward P. Hannigan, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. George F. Eugler, Jr., former Attorney General of New Jersey, and Mr. Mart Vaarsi, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

In a case of first impression under B. 3:21-2, we are presented with the problem of whether a sentencing judge must obtain an updated presentence report before sentencing a defendant found guilty of violating his probation. We hold such acquisition to be discretionary with the judge, and under the circumstances existing here there was no abuse of discretion in not obtaining it.

Defendant was convicted, after a jury trial, of maliciously tampering with railway property. (N. J. 8. A. 2A:137-1). He was given a suspended indeterminate sentence to Yard-ville, fined $100 and placed on probation for one year.

On three separate occasions subsequent to his conviction, he was returned to the same judge for violations of his probation. Following a hearing on the final charge of violation of probation, he was found guilty and sentenced, without an updated presentence report, to serve 364 days in the Monmouth County Correctional Institution.

Defendant makes the bare assertion that the sentence was improperly imposed because it was made without the benefit of an updated presentence report. He alleges no facts which differed from the original report, or any changed circumstances which would require an updated report. Nor does he deny that he violated his probation. The record is clear that the same judge 'handled defendant’s case from the date of the original trial to the final imposition of the sentence for violation of probation, and that he was thoroughly familiar with all the relevant facts. Under the circumstances, no updated presentence report was required.

Defendant having been found guilty of violating his probation, the trial judge was empowered to impose a new sentence within the limits that originally could have been imposed. State v. Pallitto, 107 N. J. Super. 96, 100 (App. Div. 1969), cert. den. 55 N. J. 309 (1970); N. J. S. A. 2A :168-4.

Affirmed.


text:
    THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. JUDITH SCHELLE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted February 13, 1974
    Decided February 26, 1974.

      Before Judges Kolovsky, Fritz and Crane.

      Mr. Joseph G. Woodcock, Jr., Bergen County Prosecutor, attorney for appellant (Mr. Alfred L. Genton, Acting Bergen County. Prosecutor, and Mr. Oraig Katz, Assistant Prosecutor, on the brief).

      Messrs. Picinich and Bigolosi, attorneys for respondent (Mr. Michael J. Powers, on the brief).
   Per Curiam.

The State appeals, upon leave granted, from orders suppressing evidence found on May 8 and May 24, 1973, when, under authority of search warrants issued on those respective dates, police searched defendant’s apartment and found narcotics and narcotic paraphernalia therein.

The incidents here involved began with a report received by police of an armed robbery which had taken place on May 6, 1973 at the premises of Tak Merchandise Company on Route 46 in South Hackensack. The police concluded from the investigation made by them and from a photographic identification made by the victim of the robbery that one of the two culprits, the one who had pointed a gun at the victim, was Paul J. Cosgrove. Upon the filing of a complaint, a warrant issued for Cosgrove’s arrest.

An investigation to ascertain Cosgrove’s whereabouts was undertaken. On May 7, 1973 the local police learned from the State Police that a surveillance they had conducted of the residence of Judith Schelle at 292C Grove Street, Lodi, disclosed that Cosgrove had “frequented this place of residence.” In addition, the police received information from a confidential informant that Cosgrove could probably be found at that address and that he was armed.

On May 8 a lieutenant of the South Hackensack Police Department, accompanied by two State Police detectives and Lodi police officers, proceeded to the Schelle residence. A knock on the door brought no response, but the lieutenant, looking through the glass windows in the front door, saw the shadows of two persons inside at the top of the stairs. Continued knocking finally brought Mrs. Schelle to the door.

The South Hackensack police lieutenant told her that he was a police officer, that he had a warrant for the arrest of Cosgrove and asked to be admitted. Whether defendant Schelle permitted the officers to enter or whether the police entered without more is disputed in the proofs.

As the police entered the living room of the apartment they heard noises emanating from a closet and found Cos-grove hiding therein. Cosgrove was arrested. A search of the immediate area failed to disclose the weapon which Cos-grove reputedly was carrying.

After Mrs. Schelle was arrested for harboring a fugitive, one of the Lodi detectives was directed to, and did, apply for a search warrant authorizing a search of the Schelle apartment for the revolver which was believed to be there. The warrant was issued by the judge of the Lodi Municipal Court on the basis of an affidavit by the detective detailing the events which had occurred earlier that day.

No revolver was found when the entire apartment was searched pursuant to the search warrant. However, narcotics were found and Mrs. Schelle was arrested for possession thereof.

The trial judge’s determination that the narcotics evidence so seized should be suppressed was bottomed on his apparent conclusion that, absent a search warrant, the police had no right to enter the Schelle apartment in the first instance. That conclusion is erroneous.

The proofs fully establish that the police had reasonable cause to believe that Cosgrove, for whom they held an arrest warrant, was in the Schelle apartment. That being so, they had the right to enter the apartment to effectuate the arrest after demanding admittance and explaining their purpose. (Since here the police complied with those antecedent conditions, we need not determine whether, under the circumstances, noncompliance therewith would have been excused. See State v. Fair, 45 N. J. 77, 86 (1965)). It was not necessary that they also obtain a search warrant. 5 Am. Jur. 2d, Arrest, § 90 at 776; State v. Fair, supra.

The New Jersey law (see State v. Fair, at 86) is in accord with the rule stated in 5 Am. Jur. 2d, Arrest, § 90 at 776:

In most jurisdictions the rule is that whenever an officer has reasonable cause to believe the person named in a warrant [for arrest] in his possession, * *■ * is in the dwelling house of a stranger, he has a right, after demand for 'admittance and notice of his purpose, to break open the doors in order to search the house and arrest the offender.

The search which the police made as an incident to Cos-grove’s arrest was within a permissible area, Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), and, in any event, no evidence was found and seized as a result of that search.

The evidence which the court suppressed was found in the course of the search of the apartment made later under the authority of the search warrant of May 8, 1973. That warrant issued on the basis of an affidavit which, we conclude, fully established the existence of probable cause for a belief that the revolver which Cosgrove used in the robbery was in the apartment. The trial court’s contrary conclusion was in error. State v. Kasabucki, 52 N. J. 110 (1968).

Nor was the trial court warranted in concluding that the affidavit on the basis of which the May 24, 1973 search warrant issued was insufficient to establish probable cause. That affidavit, made by a detective of the Ilo-Ho-Kus police department, set forth that an armed robbery had taken place at a tavern on April 13, 1973; that on May 11, 1973 two victims of the robbery had identified Cosgrove and one Anthony Campanile as the robbers and had stated that Campanile had “the gun.” The affidavit continued with a recitation of the facts which led the police to believe that Campanile and a “hand gun, Huger type” would be found in the Schelle apartment. Included therein was information received from Cosgrove, who was then in the Bergen County jail, that “Campanile was hiding in his house at 39 Van Riper Ave., Elmwood Park or at his girl friend’s home 282 Grove St., Lodi,” and information received from the State Police that Campanile “is known to hide at 292 Grove Street, Lodi.” Also set forth was a description of the arrests made in the Schelle apartment on May 8, 1973.

We are satisfied that the affidavit was sufficient to establish probable cause for the issuance of the search warrant. State v. Kasabucki, supra; State v. Gillman. 113 N. J. Super. 302, 305 (App. Div. 1971).

The order granting defendant’s motions to suppress evidence is reversed.


author: Fritz, J. A. D. Kolovsky, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANGELO GONZALEZ MORALES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 25, 3973—
    Decided February 20, 1974.

      Before Judges Kolovsky, Fritz, and Crane.

      Mr. Robert J. Konzelmann, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Willard F. Byer, Jr., Deputy Attorney General, argued the cause for respondent (Mr. Richard W. Berg, Deputy Attorney General, on the brief; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Fritz, J. A. D.

Appellant, with another, was convicted by a jury of assault with an offensive weapon (N. J. S. A. 2A: 90-3) and possession of a firearm without a permit (N. J. S. A. 2A:151-41, subd. a). He was sentenced to a two to four-year term on the former charge, and to a consecutive one to three-year term on the latter.

Here he urges as grounds for reversal that (1) the sentence was manifestly excessive, (2) the two charges are fraction alizations of one offense, and (3) “the trial court committed reversible error by allowing the prosecutor to show the defendant failed to make an exculpatory statement to the police.”

We find the first two assertions to be without merit. While the sentence is substantial, it is within statutory limits, and we cannot say we are persuaded that there was a mistaken exercise of discretion by the sentencing judge. State v. Tyson, 43 N. J. 411, cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965). Nor do we agree that the offenses charged constitute a fraetionalization within the doctrine enunciated in State v. Jones, 94 N. J. Super. 137 (App. Div. 1967), as defendant contends. In Jones defendant was charged with Tobbery while armed with a knife, and with unlawful possession of the knife. Conviction of the latter charge required the State to prove unlawful use or an intent to use the knife unlawfully against another (N. J. S. A. 2A:151-56). The court there held that since proof of the robbery was necessary to prove both the robbery and the necessary ingredient of unlawful use or attempt so to use in the possession statute, there was a merger of offenses and only one crime could be charged. 94 N. J. Super, at 140. In the matter before us the prohibition of the possession statute is violated by mere possession without a permit (subject to certain exceptions not here applicable). Conviction on the possession charge could be had without proof of the assault, and proof of the illegality of possession was not necessary for the assault charge. See State v. Leibowitz, 22 N. J. 102 (1956).

The third ground set forth above is meritorious and warrants reversal.

Defendant, who had no prior criminal record, elected to testify on his own behalf. His testimony was elicited through an interpreter. On direct examination he admitted that on the night of the crime he had a gun with him which, he claimed, he had just bought from someone whose name he did not know, but who was going to Puerto Rico and needed to dispose of the gun. Defendant said, “He cried in necessity to me.” Defendant testified that he intended to take the gun home and keep it. But he and the codefendant stopped at “the Prank Club” where, defendant testified, there was a man who had “his head down at the counter * * * two or three minutes later he said somebody robbed me.” Defendant and his friend went outside, “maybe to call the police,” but were detained on the sidewalk and arrested. It is significant that nowhere in his direct testimony did defendant testify, either directly or indirectly, that he had told the police anything with respect to the events in question. Nor was any such information volunteered on cross-examination prior to the question and unsuccessful defense objection which is here challenged.

We observe at this point that while nothing of significance was developed in the State’s case in chief with regard to any statement (or absence thereof) of Morales at police headquarters after his apprehension, credible evidence in the record in testimony from a police officer demonstrates that Morales had been advised of his right to remain silent pursuant to Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

On cross-examination by the assistant prosecutor defendant was asked if, when he went to the police station, Ee talked to “Spanish Detective Villabobos.” An affirmative response elicited the further question: “Did you tell him that you had bought that gun from a man who was in necessity and wanted to go to Puerto Eico to see his sick mother ?” An immediate and timely objection followed, and was overruled. We think this was error.

The right of an accused to remain silent after Miranda warnings cannot be diminished by a concern that such silence may be used against him, or, put otherwise, may be utilized to compel his forever remaining silent. State v. Griffin, 120 N. J. Super. 13 (App. Div. 1912), certif. den. 62 N. J. 73 (1912). We held this was so with respect to later exculpatory statements. We see no reason why the rule should not be the same a fortiori where the subsequent statement is, as here, inculpatory. The considerations of Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), and State v. Kimbrough, 109 N. J. Super. 57 (App. Div. 1970), were distinguished in State v. Griffin, supra, and the distinction applies here as well. Additionally, it does not appear that Miranda warnings were given in either Harris or Kimbrough. Cf. State v. Burt, 101 N. J. Super. 390 (App. Div. 1969), aff’d o.b. 59 N. J. 156 (1971), cert. den. 404 U. S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972). The essential inconsistency, said in Harris, supra, to justify the admission of “traditional truth-testing devices” in a challenge to credibility on the basis “of confrontation with prior inconsistent utterances,” is absent when silence can be reasonably explained as consequent to Miranda -warnings. Without the inconsistency, even relevance disappears.

The dissent, relying particularly on Harris v. New York, supra, disclaims error on the basis that, “Once defendant had testified that he had told the police his story about the purchase of the gun, the State had the right to attack defendant’s credibility * * We subscribe to this proposition as a general statement, and have no doubt that had defendant so testified prior to the impugned inquiry on cross-examination, such a determination would be eminently sound. But under the circumstances here present, the conclusion begs the issue: it was the compulsion secured by the erroneous overruling of the objection which produced defendant’s only testimony as to what he had told the police.

We are satisfied that the obligation imposed upon a testifying defendant by Harris “to speak truthfully and accurately” (401 U. S. at 226, 91 S. Ct. 643) was not intended to create an obligation to speak where none exists and in defeasance of Miranda. State v. Griffin, supra.

The dissent further justifies the result — and distinguishes Gh-iffin — by noting that defendant did not testify, in answer to the objectionable question, that he remained silent. The dissent notes, correctly, that defendant’s testimony was that he had told his story to the police. This rationalization makes the availability of the constitutional protection depend on the answer given, rather than the propriety of the inquiry. In this context at least, such an approach completely emasculates the Fifth Amendment protection, for if the testimony of an accused as to prior silence or speech differs from evidence which the State produces, there is no error under the dissent’s rationale, and if he testifies conformably the error is harmless. It is axiomatic that the time to test a question for its propriety (as contrasted with the harmlessness vel non of the answer) is when the question is asked, and not after the answer is given.

Satisfied that the court below was mistaken in its ruling, we turn to the question of whether the error was sufficiently prejudicial to warrant a reversal, for defendant, in his compelled response, testified that he had in fact told the police' substantially that to which he testified on direct examination, except for some few facts about which he replied that he was not asked. Had this been the end of it, the error might well have been harmless.

But in rebuttal the State produced the detective to whom defendant said he had told of the acquisition of the gun. This witness contradicted defendant’s testimony and said, “He refused [sic] to say anything at all.” Thus the State had an opportunity to which it was not rightfully entitled, to confront defendant head-on, on an issue not relevant to guilt or innocence, in a credibility battle. This opportunity would not have occurred except for the trial error. That the effort was intentional is demonstrated by the State’s concession at argument that the prosecutor knew of the availability of the detective’s testimony that defendant had said nothing. The soundness of this concession is illustrated by the representation of the State, at the outset of the trial, on inquiry from the court, that there were no statements or concessions, exculpatory or inculpatory, involved.

Then, in summation, the assistant prosecutor, in pointing up the importance of credibility, commented vigorously on the divergent testimony relating to whether defendant said anything to the detective. He asked the jury if defendant’s story concerning the gun acquisition was true, “Don’t you think he would tell the police that?”

Whether the inquiry as to the effect of the error is measured in terms of plain error in view of the imprecision of the objection, or in terms of harmless error upon the assumption that the objection should have served to alert the judge sufficiently, we cannot say that in the circumstances here present defendant had a fair trial, at least with regard to the assault count. Some inconsistencies in the testimony of the State’s witnesses were apparent. Some discrepancies existed. In these circumstances we are satisfied that there was a distinct potential for improper prejudice and a real possibility of a miscarriage of justice The interests of justice require a new trial on the assault count.

On the other hand, defendant’s guilt on the possession count is inescapably clear from his own volunteered testimony on direct examination. The verdict of guilty returned as to this count was uninfluenced, beyond any doubt, by any trial error.

The conviction on the first count for assault is reversed and the count is remanded for a new trial. The conviction for unlawful possession of a firearm is affirmed.

Kolovsky, P. J. A. D.

(dissenting). I find no prejudicial error and would affirm defendant’s convictions on both counts of the indictment.

To place the issues presented in proper perspective, a brief resume' of the trial proceedings will be helpful.

The State’s opening statement outlined briefly the testimony it expected to elicit from the victim Rivera and from the two police officers who, in the course of a routine patrol, witnessed the alleged armed assault. After an opening statement by counsel for a codefendant, Jiminez, defendant Morales’ attorney also opened to the jury. He emphasized that it would be the jury’s function to decide who to believe — "whose version will [the jurors] accept or what witnesses will [the jurors] choose to believe.” He urged them to observe the demeanor of the witnesses, adding:

Are you persuaded by what [the witness] says? Think in terms of whether or not the witness rings true, if it is probable, if it is logical, if it is consistent with what he may have said on previous occasions, perhaps immediately upon his first conversation with the police or perhaps what he said before the Grand Jury and/or in the form of a statement; and whether or not what a witness tells you is consistent with the testimony of the other witnesses in the case.

Finally, he told the jury that his client, Morales, would testify and that his testimony would be different from that which the jury would hear from some of the State’s witnesses, asking that the jurors withhold judgment and give defendant "the same opportunity to be believed as you would any other witness in the case.”

The proofs established, without contradiction, that defendant was carrying a pistol without a permit in violation of N. J. S. A. 2A:151-41(a). Defendant does not dispute that when he was arrested at the scene of the alleged assault, he was carrying a fully loaded automatic pistol and seven additional rounds of ammunition, the latter found in a package of cigarettes when he was searched at police headquarters. The only asserted defense to that charge appears in defendant’s testimony on direct examination that he had purchased the weapon and ammunition for $35, shortly before his arrest, from a man he had never seen before and who accosted him on a street in Paterson and told him that he needed the money for a trip to Puerto Eico to see his sick mother.

The asserted defense was patently insufficient. The trial court gave defendant more than he was entitled to when it charged the provisions of N. J. S. A. 2A:151-42 which make N. J. S. A. 2A:151-41 inapplicable to persons carrying a pistol “from any place of purchase to his dwelling house or place of business.” By the express provisions of the section. the stated exemption is applicable only if, during the course of travel,

* * * the firearm is unloaded and contained in a closed and fastened case, gunbox, securely tied package, or locked in the trunk of the automobile in which the person is transporting the firearm.

Defendant denied that he had taken the automatic pistol from his person and had pointed it at Eivera. However, the jury choose to believe, as it had the right to do, the testimony of the arresting officers, eye witnesses to the incident, and that of the victim Eivera that the assault had taken place, that defendant Morales had drawn an automatic revolver from his pants, and after cocking the weapon had pressed it into Bivera’s stomach.

The circumstances which lead the majority to conclude that a reversal is mandated by State v. Griffin, 120 N. J. Super. 13 (App. Div. 1972), certif. den. 62 N. J. 73 (1973), start with a series of questions asked by the prosecution on cross-examination of defendant relating to the story he told on direct examination with respect to his purchase of the weapon. Defendant was thereafter asked whether he had talked to “Spanish” Detective Villabobos when he went to the police station. After receiving an affirmative reply, the prosecutor asked:

Q. Did you tell him that you had bought the gun from a man who was in necessity and wanted to go to Puerto Rico to see his mother?

Defendant’s counsel objected:

Objection. No foundation for the question in any part of the direct examination or has there been any testimony or evidence in the case that he was ever asked any of those questions.

The objection was overruled and defendant then testified and reiterated that he had told Detective Villabobos that he had purchased the gun from a man about to return to Puerto Eico and had paid $35 for the gun. He insisted that his testimony that he 'had told the story to the detective was “the truth.” He had not told the detective about the cigarette box with the bullets in it because the detective “didn’t ask [him] about that,” nor did he tell the detective “where he got the bullets from.”

On the State’s rebuttal Detective Villabobos testified that defendant had never told him the story about the circumstances of his alleged purchase of the gun — “he refused to say anything at all.” Cross-examination of the detective revealed that the refusal followed the detective’s advising defendant of his “constitutional rights” by giving him the Miranda warnings.

In my view there was no error. Once defendant had testified that he had told the police his story about the purchase of the gun, the State had the right to attack defendant’s credibility by showing that his trial testimony as to what he had said to the detective was false, that in fact he had not told that story to the police.

Apposite is what the court said in Harris v. New York, 401 U. S. 222, 225-226, 91 S. Ct. 643, 645-646, 28 L. Ed. 2d 1 (1971) :

Every- criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. * * * Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately * * ®.
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.

See also, State v. Burt, 107 N. J. Super. 390, 393 (App. Div. 1969), aff’d o.b. 59 N. J. 156 (1971), cert. den. 404 U. S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1971); U. S. ex rel. Burt v. New Jersey, 475 F. 2d 234 (3 Cir. 1973), cert. den. 414 U. S. 938, 94 S. Ct. 243, 38 L. Ed. 2d 165 (1973); State v. Kimbrough, 109 N. J. Super. 57 (App. Div. 1970); United States v. Ramirez, 441 F. 2d 950, 954 (5 Cir. 1971); State v. Jackson, 201 Kan. 795, 443 P. 2d 279 (Sup. Ct. 1968), cert. den. 394 U. S. 908, 89 S. Ct. 1019, 22 L. Ed. 2d 219 (1969).

In State v. Jackson, supra, it appeared that:

The [defendant] took the stand in his own defense and stated that he never left the automobile in which his codefendants were riding and knew nothing about what took place at. the victims’ automobile. On cross-examination he was asked if he had made such a statement before the trial and he replied that he had not had an opportunity to do so. A deputy sheriff was then called who testified that the appellant had been advised of his rights and requested to give a statement but refused to do so. [443 P. 2d at 281; emphasis added]

The court rejected defendant's contention that his cross-examination and the rebuttal testimony were improper and a violation of his rights under Miranda.

State v. Griffin, 120 N. J. Super. 13 (App. Div. 1972), certif. den. 62 N. J. 73 (1973), is clearly distinguishable. There it was held error to elicit from a defendant Lee, who testified that he had acted in self-defense and in defense of his brother, that he had not told that story to the police. The court distinguished Burt and Kimbrough because Lee’s silence — evideuce of which would otherwise be admissible under the latter two cases to show i£his prior inconsistent act of remaining silent at the time of his arrest,” United States v. Ramirez, supra — was induced by the Miranda warnings he had received.

Here, however, the State did not elicit testimony from defendant Morales that he had remained silent. On the contrary, his testimony was that he had told his story to the police. The evidence of his silence offered on rebuttal was admissible to prove the falsity of that testimony. In this aspect we are not concerned with what motivated the silence testified to by the police. We are concerned only with whether defendant was testifying truthfully when he said that he had told his story to the police.

Nor is it of any moment that defendant’s testimony that he had told the story to the police was given after the objection to the prosecutor’s question was overruled. If the constitutional ground now urged had been the basis of the objection interposed by defense counsel — it was not —■ and if defendant had then answered that he had not said anything to the police, the overruling of the objection would, under Griffin, constitute prejudicial error. But in view of defendant’s answer that he had not remained silent, that in fact he had told his story to the police, he is in no position to claim that he was deprived of his constitutional right to remain silent.

Defendant may not base a claim of error on the assertion that had the objection been sustained, as the majority says it should have been, he would not have had the occasion to testify that he had told his story to the police and would not then have been subjected to the contradiction of that testimony on he State’s rebuttal. Irrespective of whether the court ruled properly in overruling the objection, it was the obligation of defendant, as it would be that of any other witness, “to speak truthfully and accurately.” Harris v. New York, supra. “It is no defense to perjury that the witness’ false testimony was inadmissible and was improperly admitted into evidence.” 3 Wharton’s Criminal Law and Procedure (Anderson ed. 1957), § 1314 at 681; see also, State v. Falco, 60 N. J. 570, 585 (1972).

I would affirm as to both convictions.

      Because of our determination on the merits, we need not consider here whether we should reverse without regard to the presence or absence of prejudice, to protect the integrity of the Fifth Amendment by the deterrence of unlawful prosecutorial conduct. See United States v. Calandra, - U. S. -, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974).