author: Allcorn, J. A. D.

text:
    MICHAEL SABIA, JR. AND JOSEPH M. CORRIGAN, APPELLANTS, v. CITY OF ELIZABETH AND CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1974
    Decided December 30, 1974.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. Ira D. Dorian argued the cause for appellants (Mr. Matthew Grayson, attorney).

      Mr. Raymond S. Londa argued the cause for respondent City of Elizabeth (Mr. Frank P. Trocmo, City Attorney, attorney) .

      Mrs. Erminie L. Conley, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Allcorn, J. A. D.

The present appeal has been brought by appellants, police officers of the City of Elizabeth, to review the determination of the Civil Service Commission which found both appellants to have been guilty of breaches of departmental regulations and imposed a penalty of suspension from duty for a period of six months. The motion of appellants pending appeal to enlarge the record by filing the supplemental affidavit annexed to the moving papers is granted.

At the outset, we take occasion to observe that the proofs before the Civil Service Commission were more than sufficient to establish that, while partners on radio car patrol duty during the early morning hours of June 27, 1970, appellants broke into the office shack at the premises used by the City to store abandoned automobiles, and stole therefrom a gallon container of paint and two radios. So compelling was the evidence that, in addition to imposing the maximum penalty available to it, the Civil Service Commission further provided in its order “that the matter be referred to the Division of Criminal Justice in the Office of the Attorney General for their consideration.”

We concur with the findings and conclusions of the Civil Service Commission, and find the penalty imposed to be well-warranted. The contention that the evidence against appellants was insufficient to support the findings of the Commission and that the findings should be set aside as arbitrary and capricious, is manifestly frivolous. Equally without substance is the contention that the Commission determination is invalid by reason of its failure to set forth thereon the identity of the members of the Commission “who judged the matter.”

Likewise, we perceive no merit in the challenge to the validity of the determination by reason of (1) the asserted omission to place into evidence the rules and regulations charged to have been violated by appellants, and (2) the failure to prove that such rules and regulations “had been enacted by ordinance.” The record indicates that the rules and regulations in question were, specifically set forth in full in the charges, and that neither appellant previously raised any question as to their content or the propriety of the manner of their adoption. N. J. S. A. 40:47-1; N. J. S. A. 40A:14-118. In any event, when dealing with misconduct of the nature of that here involved, a finding of guilt “need not be predicated upon the violation of any particular regulation or rule.” City of Asbury Park v. Dept. of Civil Service, 17 N. J. 419, 429 (1955). Employed to enforce the law and sworn to uphold the law, a police officer who breaks into a locked shack and steals personal property therefrom is guilty of blatant misconduct in his office and plainly violates his oath. Upon proof thereof at a hearing on notice setting forth the essentials of the misconduct charged, he merits the most stringent discipline. Id.

Appellants next argue that, because the departmental hearing at the municipal lével resulted in a dismissal of the charge that appellants had violated the criminal law, this “could only mean that defendants did not commit the acts under the remaining charges,” and thus the hearer “could not find that defendants did commit the [same] acts under the remaining charges” — and by reason thereof the de novo hearing by the Commission was “barred by prohibition against double jeopardy, res judicata and collateral estoppel.” Quite aside from the circumstance that the point is raised for the first time on this appeal, it is specious. In our view, a final judgment of conviction of crime by a court of competent jurisdiction is an essential to a finding of guilt upon a departmental disciplinary charge of having violated the criminal law. Where the conduct of a public employee which forms the basis of disciplinary proceedings may also constitute a violation of the criminal law, however, the absence of a conviction, whether by reason of nonprosecution or even acquittal, bars neither prosecution nor finding of guilt for misconduct in office in the disciplinary proceedings. In re Pennica, 36 N. J. 401 (1963); In re Darcy, 114 N. J. Super. 454 (App. Div. 1971). Compare, Atkinson v. Parsekian, 37 N. J. 143 (1963); Dept. of Law and Public Safety v. Miller, 115 N. J. Super. 133 (App. Div. 1971).

Improper though it may have been, the non-disclosure by the City of the identity of the eyewitness (Fehring) until the de novo hearing before the Commission, caused appellants no real prejudice. Specifically, the appellants assert that nondisclosure was prejudicial in that it deprived them of “an adequate opportunity to prepare for trial” — “to interview * * * [the witness] in preparation for trial,” “to test his powers of observation, to attack his credibility.” In spite of their asserted concern, in the seven or more months that intervened between the decision at the municipal level (October 36, 1973) and the de novo Commission hearing (June 13, 1973), appellants took no action whatever to compel the City to make disclosure so that they might interrogate or interview the witness, or otherwise prepare themselves to meet his testimony; nor, once his identity was disclosed at the de novo hearing, did appellants seek any delay for such purposes.

Moreover, the substance and details of the testimony of this witness at the de novo hearing could have come as no surprise to appellants. It had been related testimonially by Captain Truzack, as well as set forth in the written report of Lieutenant Gogelman, received in evidence at the departmental hearing. The record of the de novo hearing reveals a complete and thorough cross-examination of the witness by counsel for appellants. In short, the non-disclosure in no way deprived appellants of a fair hearing at the Commission level. Kelly v. Sterr, 62 N. J. 105, 107 (1973), cert den. 414 U. S. 822, 94 S. Ct. 122, 38 L. Ed. 2d 55 (1973).

Next, the appellants challenge the delay in preferring charges against them for 22 months following the occurrence, as a deprivation of due process. It is undisputed that the entry and theft took place on June 27, 1970. The police department conducted an immediate investigation which was all but completed in late August or early September, 1970, including comparison analyses by Edel Laboratories of the markings on the broken bolt and lock with those on the emergency crowbar and ax carried in the patrol car used by the appellants that night. The matter appears to have been thereupon referred for action by the City police officials to the Prosecutor of Union County, pending which departmental disciplinary proceedings quite properly were deferred. There the matter rested without any action by the Prosecutor for approximately fourteen months, until December 7, 1971, when the Prosecutor wrote the police chief, as follows :

Apparently the original incident report and appendices which you sent us in September were mislaid.
Thank you for bringing this matter to our attention by your letter of November 29, 1971.
In view of the fact situation I concur with your recommendation for departmental disciplinary proceedings in this matter. Criminal complaints do not seem in order unless a stronger case could be demonstrated but the situation is upsetting and should be permanently rectified insofar as these officers may be concerned, assuming the facts to be as indicated.

The departmental charges were filed on May 3, 1972.

Contrary to the concept advanced by appellants, a departmental disciplinary proceeding is in no way a criminal or qnasi-criminal proceeding and, consequently, respondents in such a proceeding do not come within the shield of the various constitutional guarantees accorded persons accused of a crime. Departmental disciplinary proceedings are civil in nature; requirements of due process are satisfied so long as proceedings are conducted with fundamental fairness, including adequate procedural safeguards. Kelly v. Sterr, supra.

The mere delay in the filing of charges, without more, is not sufficient to justify the conclusion that there has been an intrusion of the due process rights of the employee. It must be shown that the delay did in fact prejudice the employee in meeting and defending against the charges. Long v. Daly, 6 N. J. Misc. 495 (Sup. Ct. 1928), aff’d 105 N. J. L. 492 (E. & A. 1929); Monroe v. Civil Service Com’n of City of Waukegan, 55 Ill. App. 2d 354, 204 N. E. 2d 486 (Ct. App. 1965). Compare, United States v. Marion, 404 U. S. 307, 313, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).

No such prejudice is present here. Although appellants protest that, after twenty-two months, they were unable to recall the events of their tour of duty on June 26-27, 1970 and suggest that they were unaware that they were suspected of wrongdoing, the record is clear that they both were questioned about the matter in August, 1970, at which time appellant Corrigan admits having been told “I had a right to an attorney and to remain silent, and if I want to take a lie detector test.” At all events, the passage of time could not have dimmed the recollection of either appellant as to whether he had or had not committed the acts with which he was charged. Compare, State v. Roundtree, 118 N. J. Super. 22, 29 (App. Div. 1971). Nor was there any prejudice arising as a result of the death of Lieutenant Gogelman, one of the investigating officers. His detailed report was available to appellants at both hearings and, indeed, was marked in evidence at the departmental hearing. So far as concerns the destruction of the slip bearing the notation of the registration number of the patrol car, that same information was related to Captain Truzack on the date of the incident and by him incorporated into a written report, which was available to the appellants and admitted into evidence at both the hearings.

Appellants next argue that the Commission was without the power and authority to increase the penalty that had been imposed at the municipal level. Upon the basis of his findings, the City Police Director imposed a penalty against each of appellants aggregating 30 days suspension from duty, without pay. Conceiving such penalty to be inadequate in light of the serious nature of the dereliction of duty, the Commission on the de novo hearing increased the penalty to the maximum available to it, namely, six months suspension from duty without pay for each appellant.

The duty and authority of the Civil Service Commission on an appeal to it from a disciplinary proceeding at the municipal level are spelled out in N. J. S. A. 11 :15-6:

The commission shall, within fifteen days after the completion of the investigation, inquiry or hearing, and sooner if practicable, render a decision to be forthwith certified to the appointing authority who shall forthwith enforce the same.
The decision shall state whether the removal of the employee is approved, or whether he is to be restored to his position without loss of pay, transferred to another position in the same class, fined, demoted, suspended without pay or with reduced pay, for a period not exceeding six months, or to be reprimanded or otherwise dealt with.
The commission may, when in its judgment the facts warrant it, modify or amend the penalty imposed by the appointing authority or substitute another penalty for that imposed, except that removal from the service shall not be substituted for a lesser penalty.

The foregoing provisions were made expressly applicable to appeals in all cases where the penalties imposed at the appointing authority level were less than removal; at the same time, the Commission was specifically granted “the same power of revoking or modifying the action of such [appointing] authority, as * * * provided in section 11 :15-2 to 11:15-6.” N. J. S. A. 11:2A-1.

Looking to the pertinent language of N. J. S. A. 11:15-6, the power therein granted to the Commission to modify, amend or • substitute for the penalty originally imposed, another penalty which it deems more appropriate in the circumstances, is'not restricted explicitly or implicitly to a penalty less stringent than that imposed by the appointing authority. If, in the face of this plain and unambiguous intent, any doubt should remain, it is at once dispelled by the concluding phrase of the cited section —• that, in substituting “another penalty for that imposed, * * * removal from the service shall not be substituted for a lesser penalty. Id. Inasmuch as removal from service is the most stringent penalty assessable, manifestly implicit in the last quoted language is the authority to substitute a greater penalty in place of a- lesser penalty. The cited phrase is meaningless otherwise. See, West New York v. Bock, 38 N. J. 500, 519-520 (1962).

In reaching this conclusion, we are not unmindful of the decision of our Supreme Court in State v. De Bonis, 58 N. J. 182, 188 (1971) that, “as a matter of policy and apart from constitutional compulsion, a defendant who appeals from a municipal court [conviction] should not risk a greater sentence [if he is again found guilty upon the de novo trial in the county court].” We note parenthetically that the constitutional question was disposed of favorably to the State in Colten v. Kentucky, 407 U. S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972), subsequent to the decision in De Bonis. Unlike the situation in De Bonis, we are here dealing with a policy already plainly declared by the Legislature of this State in N. J. S. A. 11:15-6 which, absent some constitutional or other invalidating infirmity, we are bound to follow. Newark v. Fischer, 8 N. J. 191, 196—197 (1951). See, West New York v. Bock, supra, 38 N. J. at 520 (1962).

Lastly, appellants attack the increase in the penalty imposed as arbitrary and capricious and thus unlawful, in light of the disciplinary charges of which they were found guilty. As indicated earlier, the activities of which these appellants were found guilty merited a penalty of nothing less than dismissal from the service — and we have difficulty in comprehending the reasons for the indulgence displayed by the Police Director in imposing a penalty aggregating a mere thirty days suspension from duty. Be this as it may, the six month suspension imposed by the Commission was entirely warranted and reasonable, inasmuch as the Commission was without the authority to impose a penalty of any greater magnitude. N. J. S. A. 11:15-6; West New York v. Bock, supra, at 525.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY (VILLAGE OF SOUTH ORANGE), PLAINTIFF-APPELLANT, v. WILLIAM HOLLAND, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted September 19, 1974
    Decided January 15, 1975.

      Before Judges Halpeen, Crailay and Ackerman.

      Messrs. Fox, Schackner, Neagle, Mastrangelo & Oassert, attorneys for appellant (Mr. Harlan B. Schackner on the brief).
    No appearance on behalf of respondent.
   Per Curiam.

The defendant was found guilty after trial in the Municipal Court of South Orange of the charge that, in violation of Article 4, Section 15-25 (b) of the Revised Ordinances of South Orange, between May 1 and June 1973 he permitted noise of such character, intensity and duration at 300 Valley Street, South Orange, as to disturb the comfort and repose of neighboring individuals. lie was fined $100 plus $10 costs. He filed an appeal to the County Court, and upon the decision of that court that the ordinance was invalid, this appeal was filed by the Village.

Article 4 of the Revised Ordinance is entitled “NOISE”. Section 15-25 provides as follows:

15-25. Creation of loud or unnecessary noise prohibited.
(a) The making, creation or permitting of any unreasonably loud, disturbing or unnecessary noise in the Village is hereby prohibited.
(b) The making, creating or permitting of any noise of such character, intensity or duration as to be detrimental to the life, health or welfare of any individual or which either steadily or intermittently annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual is hereby prohibited.

The count}' court judge held that Section 15-25 (b) was unconstitutional, apparently on the theory that it was so broad that it violated the due process clauses of the State and Federal Constitutions. Relying upon the fact that Section 15-25 (a) of the ordinance contains the word “unnecessary” in referring to the noises prohibited while Section 15-25(b) does not, he concluded:

I feel that Section [15-25 (b)] is not constitutional, in that it bans noises of certain characters without any weighing of the necessity of them.

He further stated:

In the case before me I don’t have the word ‘unnecessary’ used in Section [15-25 (b)]. I don’t think that I can in propriety borrow a word from Section [15-25(a)] to lend it to Section [15-25(b)] to make an ordinance valid.

We are of the opinion that he erred and reverse.

It has long been established that municipalties in this State have the authority to adopt ordinances regulating or preventing loud, disturbing and unnecessary noises which are detrimental to the public health and welfare. N. J. S. A. 40:48-1, N. J. S. A. 40:48-2; Del Vecchio v. South Hackensack Township, 49 N. J. Super. 44 (App. Div. 1958); Weil v. Ricord, 24 N. J. Eq. 169 (Ch. 1873) and cases cited infra. Of course, such ordinances must comply with certain standards. An ordinance such as this one, providing penalties for violations, is essentially criminal in nature and is invalid if it is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. The test is whether the ordinance adequately informs persons of the thing they are forbidden to do. See State v. New York Central R. Co., 37 N. J. Super. 42, 46-47 (App. Div. 1955). However, there are certain well settled rules of interpretation and construction to aid in this determination which the court below failed to properly apply and follow.

111 the first place, the ordinance is presumed to be valid and the burden is on the party challenging it to establish to the contrary. It is further presumed that the legislating authorities promulgating the ordinance acted with existing constitutional law in mind and intended the ordinance to function in a constitutional manner. The further presumption is that an ordinance will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or provision. Even though it may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of a reviewing court to so construe the ordinance as to render it constitutional if it is reasonably susceptible to such construction. State v. Profaci, 56 N. J. 346 (1970) ; see State v. Zilo, 54 N. J. 206, 218 (1969) ; Camarco v. City of Orange, 61 N. J. 463 (1972) ; State v. Rosenfeld, 62 N. J. 594 (1973); Del Vecchio v. South Hackensack Township, supra.

In legislating with respect to disturbances of the peace and, specifically with respect to noise, it is recognized that the very subject matter renders specific and precise definitions of prohibited conduct difficult to formulate. Whether a given noise disturbs the public peace depends upon the circumstances of the particular case, and it is impractical to spell out rigid legislative criteria. It is therefore well established that in this regard, where the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to its use. The fact that there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not a sufficient reason to hold the language too ambiguous to define a penal offense. State v. New York Central R. Co., supra, 37 N. J. Super, at 47-48; State v. Smith, 46 N. J. 510 (1966) cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966). In the latter case, where the Supremo Court sustained a statute which provided that “Any person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly ... is a disorderly person”, Chief Justice Weintraub said:

“. . . defendant says the statute is void for vagueness because it does not spell out the degree of noise or the details of a disorder which will offend. Of course, the statute does not do so in specific terms, and it may be doubted that the ingenuity of man could meet that demand if the Constitution made it. But the Constitution does not insist upon the impossible. It asks only what the subject will reasonably permit, and hence if there is a public interest in need of protection, due process does not stand in the way merely because the subject defies minute prescription”, [at 518].

In applying these principles, a reviewing judge should not give undue emphasis to the presence or absence of a single word. The import of the ordinance should be examined in the context of the entirety of its language. The title of the ordinance may be referred to in aid of its construction, and it has long been settled that the disjunctive "ox” in an ordinance or statute may be construed as the conjunctive "and” if to do so is consistent with the legislative intent. See Baum v. Cooper, 131 N. J. L. 574, 575 (Sup. Ct. 1944); Murphy v. Zink, 136 N. J. L. 235, 239 (Sup. Ct. 1947) aff'd. 136 N. J. L. 635 (E. & A. 1948). Moreover, as pointed out in State v. New York Central R. Co., supra, 37 N. J. Super, at 48-49, the language in an ordinance prohibiting an activity tantamount to a common law nuisance may be defended for adequacy of definition of the offense on the basis of the common law construction and application of the language in the definition of such a nuisance. Indeed, when one examines the precedents, it is perfectly clear that the draftsman of this ordinance was not simply improvising on his own. He drew upon common law definitions and upon the text of other ordinances which have passed constitutional muster.

In confining his decision in the manner in which he did to a consideration of the narrow question of the effect as a matter of grammar of the presence of the single word "unnecessary” in Section 15-25 (a) and its absence in Section 15-25(b), the judge below lost sight of the above rules and ignored the pertinent precedents. There is not the slightest doubt that the governing authorities of South Orange in adopting these sections of this ordinance intended to prohibit noises which would disturb the peace and would constitute common law nuisances. Section 15-25(b), which defendant was found to have violated, contains two alternative provisions. It prohibits the making of any noise “of such character, intensity or duration as to be detrimental to the life, health or welfare of any individual” or which “annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual”. The words used in the first alternative appear, among other places, in a municipal ordinance relating to noise which was held valid in Stoffel Seals Corporation v. Village of Tuckahoe, 206 Misc. 597, 134 N. Y. S. 2d 114 (Sup. Ct. 1954). The language of the second alternative is that of a classic definition of a nuisance which appears in the opinions in many decided cases and in many statutes throughout the countrjq see Hummel v. State, 69 Okl. Cr. 38, 99 P. 2d 913, 919 (Cr. Ct. App. 1940); State v. Paggelt, 8 Wash. 579, 36 P. 487, 488 (Sup. Ct. 1894); Colton v. South Dakota Central Land Co., 25 S. D. 309, 126 N. W. 507 (Sup. Ct. 1910); 2A Matthews, Municipal Ordinances, par. 40.55, § 39 (1973), and appeared in the ordinance which was involved in Baum v. Cooper, supra.

From the beginning our cases dealing with nuisances based upon noise have held that the matter is a relative one, requiring the weighing of the competing interests and rights of the parties in each case, and that to constitute a nuisance and a disturbance of the peace a noise must be an unreasonable one in the circumstances or cause material annoyance. The leading case, and the one most often cited, is Benton v. Kernan, 130 N. J. Eq. 193 (E. & A. 1941) which laid down the test that “A noise may constitute an actionable nuisance . . . but it must be a noise which affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent”, and it “ . . . becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the maker to the needs of the listener” [at 198], See Reilly v. Curley, 75 N. J. Eq. 57 (Ch. 1908); Kroecker v. Camden Coke Co., 82 N. J. Eq. 373 (Ch. 1913) ; Peragallo v. Luner, 99 N. J. Eq. 726 (Ch. 1926); Ross v. Denan, 101 N. J. Eq. 281 (E. & A. 1927); Damadio v. Levinsohn, 111 N. J. Eq. 84 (Ch. 1932); Kosich v. Poultrymen’s Service Corp., 136 N. J. Eq. 571 (Ch. 1945); Oechsle v. Ruhl, 140 N. J. Eq. 355 (Ch. 1947) ; Lou Menges Organization v. North Jersey Quarry Co., 3 N. J. Super. 494 (Ch. Div. 1949); State v. Mundet Cork Corp., 8 N. J. 359 (1952) cert den. 344 U. S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952); Hrycenko v. Bd. of Adjustment, Elizabeth, 27 N. J. Super. 376 (App. Div. 1953); Sans v. Ramsey Golf & Country Club, Inc., 29 N. J. 438 (1959); aff'g 50 N. J. Super. 127 (App. Div. 1958); Protokowicz v. Lesofski, 69 N. J. Super. 436, 444-445 (Ch. Div. 1961); Weber v. Pieretti, 72 N. J. Super. 184 (Ch. Div. 1962) aff’d 77 N. J. Super. 423 (App. Div. 1962) certif. den. 39 N. J. 236 (1963); cf. Cranberry Lake Quarry Co. v. Johnson, 95 N. J. Super. 495 (App. Div. 1967) certif. den. 50 N. J. 300 (1967).

The judge below should have taken guidance from the above authorities, and should have held, as urged by appellant, that Section 15-25(b) prohibits unreasonable or unnecessary noises. He should have read such qualification into the text of the ordinance by using any one or all of the following methods in aid of statutory interpretation. He could have applied the principles of noscitur a sociis, drawing upon the text of the ordinance in its entirety including Section 15-25(a), which contains both the words “unreasonable” and “unnecessary”. He could have looked to the title of Section 15-25, “Creation of loud or unnecessary noise prohibited”, and, following Baum v. Cooper and Murphy v. Zink, supra, held that the word “or” should be read as “and” with the consequence that Section 15-25 (b) be construed to prohibit “loud and unnecessary” noises, i. e. unreasonable noises. Or, drawing upon the benefit oí illumination by 'judicial use and interpretation of the language actually employed in Section 15-25(b), he could have simply held, following the principle of Benton v. Kernan and many other cases, that a noise which “annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual” is one which is unreasonable or unnecessary in the circumstances. We mention those alternative rationales, all acceptable for arriving at the proper construction of the ordinance, simply to point up the fact that the language of the ordinance is reasonably susceptible to such interpretation, applying ordinary, established rules of construction.

Judge Conford’s decision in Slate v. New York Central R. Co., supra, provides a persuasive precedent for this interpretation of the ordinance. Baum v. Cooper, supra, relied on by the court below, does not require or justify a contrary result. There a municipal ordinance, entitled “An ordinance to suppress and regulate loud and unnecessary noises and to prevent nuisances . . .”, provided that it was unlawful to “make . . . any loud, unnecessary, improper or offensive noises . . . which either annoys, injures or endangers the comfort, repose, health or safety of other persons”. The defendant, who was convicted in the municipal court of violating the ordinance, had operated a machine shop for 25 years, starting when the neighborhood was sparsely inhabited, if at all, and he had taken on additional work causing an increase in noise because of the war. This apparently prompted the passage of the ordinance. In reversing the conviction, the court said:

The language descriptive of the noise may be taken either conjunctively, reading the word “or” as equivalent to “and” (Standard Underground Cable Co. v. Attorney-General, 46 N. J. Eq. 270 (at pages 272, 277)) or disjunctively. The former seems indicated by the phrase “loud and unnecessary noises” in the title. On that theory, the evidence does not support the conviction. The noises of a machine shop are doubtless loud; but it cannot be said they are intrinsically unnecessary, improper, or offensive, and the proof fails to indicate any of these characteristics. On the other hand, if the language be construed disjunctively, a “loud” noise without more, would fall under the ban, though it were the whistle of a train, the noise of an automobile horn, or the gong of a trolley car: and it is worthy of note that these every-day noises are specifically mentioned in the ordinance. So construed, it is plainly unreasonable and ineffective.
In either aspect, therefore, the conviction was illegal, and accordingly will be set aside, with costs. [131 N. J. L. at 575-576].

The court in the Baum case did not hold that the ordinance before it was unconstitutionally indefinite, and its remarks must be taken in the light of the specific case before it. See State v. New York Central R. Co., supra, 37 N. J. Super. at 49.

We therefore conclude that the proper construction of Section 15-25 (b) is that it prohibits “loud and unnecessary” noises, i. e. those which are unreasonable in the circumstances, and that as so construed, it fairly apprises the public and the defendant of what it proscribes. It is not unconstitutional for vagueness.

One additional point requires mention. We have considered the merits of this appeal on the assumption that the court below and the parties were proceeding in accordance with the specific terms of R. 3:23-8(d) and R. 3:10-3. Those rules provide that the defense of unconstitutionality of a statute or ordinance may be raised only by motion before trial or within ten days after a guilty verdict and that such defense should not be considered during trial. The rules were adopted to avoid problems of double jeopardy and to preserve the right of appeal by the State or a subdivision thereof from an adverse determination with respect to the constitutionality of a statute or ordinance. See N. J. Consl. (1947), Art. I, par. 11; City of Newark v. Pulverman. 12 N. J. 105 (1953); State v. Fiore, 69 N. J. Super. 122 (App. Div. 1961) certif. den. 36 N. J. 142 (1961) ; Paramus v. Marlin Paint, 128 N. J. Super. 138 (App. Div. 1974). They complement B. 2:3-1(b) which specifically limits the right oí the State to an appeal from “a judgment of the trial court entered before or after trial dismissing an indictment, accusation or complaint”. [Emphasis supplied].

The question is one of appealability under the rules. State v. Sims, 65 N. J. 359 (1974); State v. Kluber, 130 N. J. Super. 336 (App. Div. 1974). The court below was, of course, free to schedule the “trial” of the matter before it to comply with the rules and to revise or change such scheduling if necessary. Normally, since the trial of an appeal of this type by the County Court pursuant to R. 3 :23-8 is simply a hearing de novo on the record below, no oral testimony is taken and no “trial” in the traditional sense scheduled or required. The court below did not consider or pass upon whether the testimony before the municipal court was sufficient to sustain the conviction. Only the constitutional question was considered. Since nothing appears in the record to the contrary, we assume, in view of the content of the argument before it and the nature of its inquiry and determination, that the court below was proceeding on motion “‘before trial” which was impliedly, if not expressly, postponed to a later date in order to comply with the rules.

We also note that the judgment entered by the county court was one that the defendant was “not guilty”. The proper judgment to be entered, in view of the basis for the court’s ruling, was one of dismissal of the complaint. R. 3 :10—5. The entry of the incorrect form of judgment in the circumstances did not deprive the State of the right to appeal. State v. Emmett, 108 N. J. Super. 322 (App. Div. 1970); State v. Kluber, supra.

Keversed and remanded to the County Court for further proceedings in accordance with this opinion.

      An “unnecessary” noise in this context is the same as the “unreasonable” noise. As stated in State v. New York Central R. Co., supra, “As to what may be regarded as ‘unnecessary’ noise, the cases again afford judicial expressions in aid of interpretation. In Benton v. Kernan, 130 N. J. Eq. 193, 198 (E. & A. 3941), there was approved the asseveration by another state court that noise is an actionable nuisance ‘only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the maker to the needs of the listener’ . . .” [37 N. J. Super, at 49],


author: Seidman, J. A. D.

text:
    NATIONAL LEAD COMPANY, PETITIONER-RESPONDENT, v. BOROUGH OF SAYREVILLE, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided January 15, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. Leo Rosenblum argued the cause for appellant Borough of Sayreville (Rosenblum and Rosenblum, attorneys).

      Mr. John W. Noonan argued the cause for respondent National Lead Company. (Messrs. Noonan and Flynn, attorneys) .
   The opinion of the court was delivered by

Seidman, J. A. D.

The issue involved in this appeal is whether and to what extent a municipality may assess and tax as real property under N. J. S. A. 54:4-1 et seq. machinery and equipment which are attached to land or buildings but used in manufacturing process. The Division of Tax Appeals made a preliminary determination in this case that they were not so taxable regardless of the manner of attachment and we granted the aggrieved municipality leave to appeal.

National Lead Company operates a large industrial complex in the Borough of Sayreville for the production of titanium oxide. The borough tax assessor computed and determined the taxable value of the company’s real property for 1969, 1970 and 1971 to be, with slight yearly variations, about $315,000 for the land and $8,271,000 for the improvements. The taxpayer appealed to the Middlesex County Board of Taxation, which reduced the assessments on the improvements by approximately 10% for each year. The land assessments were not changed. Both sides appealed to the Division of Tax Appeals, the company seeking a further reduction and the municipality the restoration of the original amounts.

At a pretrial hearing in the Division, a dispute arose between the parties over what portions of the property should be deemed realty and what personalty. The company contended that its machinery and equipment were an integral part of the manufacturing process and were thus taxable as personalty and not as realty regardless of how they were affixed or anchored. The borough claimed on the other hand that most of the facilities constituted real estate and should be taxable as such. The parties agreed that the question of valuation should be deferred pending the outcome of a hearing for the limited purpose of resolving this issue. Such hearing was conducted in the Division with a result adverse to the borough.

I

In his written opinion, the tax appeal judge described the machinery and equipment in question:

The main manufacturing complex is * * 3’ just a shell around the process equipment; that the heating and lighting is for the equipment and for the people who operate it. The many large doors, the corridors and hoists on various levels are installed specifically for easy removal and replacement of equipment. The items in dispute are all large, heavy and expensive. They require the construction and erection of specialized concrete foundations. The equipment is affixed to these foundations by the tightening of nuts located on the end of anchor bolts imbedded in the concrete. These nuts can be removed and the equipment can be moved by the use of various hoists. These items consist of ore and ball mills, rotary filters and calciners, settling tanks, elevators and conveyors, large chemical tanks, Shriver presses, settling tanks [sic] pumps and piping, Moore-type filters, dryers, pebble mills, treatment tanks and an acid plant. As an example of their size the No. 6 are [sic] mill is the largest individual mill weighing 20 tons. This mill together with the ball charge and ore charge weighs 80 tons. All of these with the No. 4 mill have been removed from their foundation, taken out of the buildings, put on a truck, sent to the manufacturer in York, Pennsylvania, have been repaired and returned. Petitioner’s cranes which move the items used in the operation weigh 35 tons and are purchased so that they can be dismantled for maintenance purposes. A calciner is often removed in one piece, through the roof or the side walls. The caleiner is, 150 feet long, is purchased in sections, through a catalog from St. Louis plant. I find as a fact that although this equipment is large in size, it can be removed, without extensive damage to the foundation and property, any damage that is done is minimal considering its size and expense.

The judge below held as follows:

X find as a fact, that all equipment in structures, no matter how large, that are movable in any respect and are directly related to the manufacturing process are to be deemed personal property. This determination would include all incidental piping, wiring, cat-walks, minor pumps, gauges, structural foundations that apply or pertain thereto. Machinery and equipment even though it is not movable and if it is permanently affixed to the realty, if it is an integral part of the worh process, shall be deemed to be personal property. Machinery and equipment that is essentially attributable to the maintenance of real estate and not in (sic) integral part of the manufacturing process, is deemed to be real property. All immovable machinery and equipment that is affixed to the realty, which is used for some purpose other than the actual manufacturing process * * * is deemed to be real property, [Emphasis supplied.]

The Division's findings of fact are essentially not in controversy; therefore, we are not required to determine whether they were reasonably reached on sufficient credible evidence present in the record. Close v. Kordulak Bros., 44 N. J. 589, 599 (1965). The problem before us arises from the Division’s concept of the applicable principles of law. Its conclusions, insofar as they apply to permanently affixed and immovable machinery and equipment, are challenged by the borough as contrary to both our decisional law on fixtures and the legislative intent expressed in the Business Personal Property Tax Act, L. 1966, c. 136, § 1 et seq.; N. J. S. A. 54:11A-1 et seq. We think that the borough’s contentions have considerable merit. In our view, the principles enunciated above relating to machinery and equipment used in manufacturing processes are overly broad. We are, of course, in no way bound by the Division’s interpretation of a statute or its determination of a strictly legal issue. Mayflower Securities v. Bureau of Securities, 64 N. J. 85, 93 (1973).

II

N. J. S. A. 54:4-1 et seq. provides generally for the taxation by local tax districts of all property real and personal within their boundaries not otherwise exempted or expressly excluded from the operation of the chapter. Provisions for the assessment of real property are contained in N. J. S. A. 54:4-23 et seq. Prior to 1966 all tangible personal property other than household property and personal effects was also assessed and taxed by the local unit. N. J. S. A. 54 and 91. Since all taxable property, real or personal, was then taxed at the general rate of the district, the category in which machinery and equipment should be placed did not matter.

In 1966 the State preempted the taxation of business personal property by the enactment of N. J. S. A. 54.-11A-1. As a result, the assessor in each taxing district now has to determine in appropriate cases what is includible as taxable real property, particularly in the case of fixtures which, in certain circumstances, might by annexation be assimilated into the realty. 1 Thompson, Real Property (1964), § 55, at 170 et seq.

The judge below was of the view, which we do not fully share, that assessors throughout the State would be unable to perform that task in a uniform and workable manner and that “[i]t is not the function of the Legislature, the Court, nor this Division to make their tasks so insurmountable as to necessitate in each instance the employment of auditors, accountants, lawyers, mechanical engineers, chemical, electrical and civil engineers to produce a day to day work product.”

. In holding as he did, the judge below relied heavily upon two earlier opinions in the Division, Colorado Fuel and Iron Corporation v. Township of Florence (decided December 11, 1967) and Cellomer Corporation v. City of Newark (decided June 11, 1968). The Division chose in both to adopt the rule set forth in the Pennsylvania case of In re Aliquippa, 405 Pa. 421, 175 A. 2d 856, 861 (Sup. Ct. 1961); namely, that “improvements, whether fast or loose, which are used directly in manufacturing the products that the establishment is intended to produce and are necessary and integral parts of the manufacturing process and are used solely for effectuating that purpose, are excluded from real estate assessment and taxation.” That case is distinguishable, however, because it was based upon an explicit amendment to the tax law providing that in determining the value of mills and manufactories for local real estate taxation, machinery, tools, appliances and other equipment contained therein were not to be included. 72 P.S. § 5453.201 (Supp.).

The opinion below seems to impfy that a legislative intent leading to the same conclusion is apparent in our tax statutes. We find this not to be so in the case of our local real property tax law or our business personal property tax law, neither of which has the type of exclusion or exemption contained in the Pennsylvania statute. It is clear from our examination of taxation statutes in this State that when the legislature intended such exclusion or exemption it made explicit provision therefor. For example, in providing for the exemption of improvements to water supply or sewerage disposal systems from general property taxation, the pertinent statute defines “improvement to real estate” or “improvement” to mean any structure, machinery, equipment, device or facility necessary to the installation or maintenance of such systems. N. J. S. A. 54:4-3.60. And in the case of taxation of public utilities, the statute carefully excludes from the definition of real estate “machinery, apparatus and equipment, notwithstanding any attachment thereof to lands or buildings.” N. J. S. A. 54:30A-50(b). As we said in N. J. Power & Light Co. v. Denville Tp., 80 N. J. Super. 435, 440 (App. Div. 1963) :

It seems clear that the legislative intent in defining “real estate” subject to local taxation [in N. J. S. A. 54:30A-50(b)] was to include land and buildings, as those words are commonly understood, but to eliminate items of personal property such as machinery, apparatus and equipment which "by reason of their attachment to the lands or "buildings might otherwise be regarded as real property under the common law doctrine of “fixtures.” [Emphasis supplied].

Although the general tax law, N. J. S. A. 54:4-23, contains no definition of real property, that term, as used in the statute, generally connotes a unit of land together with its concomitant improvements, if any. City of Newark v. West Milford Tp., Passaic County, 9 N. J. 295, 304 (1952); Crewe Corp. v. Feiler, 49 N. J. Super. 532, 539 (App. Div. 1958), rev’d on other grounds 28 N. J. 316 (1958). Business personal property is defined in N. J. S. A. 54:11A-2(b) to mean tangible goods and chattels used or held for use in any business, transaction, activity or occupation conducted for profit. Certain goods and chattels are expressly excluded from that definition. The ones pertinent here are “goods and chattels so affixed to real property as to become part thereof and not to be severable or removable without material injury thereto.” Since these statutes form part of a comprehensive plan of taxation of real and personal property, they are in pari materia and must be read together. Cf. Dvorkin v. Dover Tp., 29 N. J. 303, 316 (1959); Nordell v. Mantua Twp., 45 N. J. Super. 253, 257 (Ch. Div. 1957).

If the conclusions of the tax appeals judge in this case are sound, machinery and equipment used in a manufacturing process would be taxable as business personal property despite the manner of their affixation to real property. This concept, however, disregards the clear exclusionary language of the business personal property tax law and could result in an anomalous situation whereby such items might not be taxable at all, a result which the legislature could hardly have intended. It is reasonable to- infer, therefore, that by excluding from that statute goods and chattels affixed to real property in the manner set forth therein, the legislature intended that such items should be considered part of the realty and taxable as such under the local real property tax law.

Ill

It is established that words and phrases in a statute having a well-defined meaning in the common law are to be interpreted in the same sense under the statute when used in connection with the same or similar subject matter with which they were associated at common law. 2A Sutherland, Statutory Construction (4th Ed. 1973) § 50.03, p. 277; Magierowski v. Buckley, 39 N. J. Super. 534, 553 (App. Div. 1956). N. J. S. A. 54:11A-2(b) (2) speaks of goods and chattels “so affixed to real property as to become part thereof and not to be severable or removable without material injury thereto.” This language is in accord with the common law doctrine of fixtures. See 1 Thompson, op. cit. supra, § 55 at 171 and 175.

The case of Fahmie v. Nyman, 70 N. J. Super. 313, 316-317 (App. Div. 1961) states the “classic determinants” by which a movable chattel loses its character as personalty and becomes a part of the realty. They are when it is: (1) actually affixed to the realty or something appurtenant thereto, (2) appropriated to the use or purpose of that part of the realty with which it is annexed, and (3) intended by the party mating the annexation to be a permanent accession to the freehold.

As for the matter of severability or removability without “material injury” to the realty, it should be noted that a similar term, appearing in the Uniform Conditional Sales Law, N. J. S. A. 46:32-14 (since repealed and superseded by the Uniform Commercial Code, N. J. S. A. 12A:9-101 et seq.), has been defined to mean the severance of a chattel affixed to and forming part of the realty which “will prevent the structure from being used for the purpose for which it was erected or for which it has been adapted.” Smyth Sales Corp. v. Norfolk B. & L. Assn., 116 N. J. L. 293, 298 (E. & A. 1935); Uttinger v. Koopman, 46 N. J. Super. 443, 447 (App. Div. 1957); Fahmie v. Nyman, 70 N. J. Super, supra at 318. This is the so-called institutional doctrine of fixtures:

Basically, the applicability of the rule depends upon the presence of proof in the individual case which impels the conclusion that the chattels in question are permanently essential to the completeness of the structure or the use to which the structure is put. This established, mode of annexation fades in significance, adaptability inheres in the proofs, and the intention of permanent accession to the freehold is inferred. [Fahmie v. Nyman, supra, at 318-319.].

We perceive no sound reason for fashioning different principles to be applied to machinery and equipment used in a manufacturing process. The foregoing principles are as pertinent to such goods and chattels as they are to any others. Where such articles, though useful and even essential for the business carried on, are not permanently affixed to the ground or building or need no adaptation thereto, and can easily be removed and used elsewhere without material injury to the building or the articles themselves, they retain their character as personal property. Blancke v. Rogers, 26 N. J. Eq. 563, 568 (E. & A. 1875) ; Keeler v. Keeler, 31 N. J. Eq. 181, 191-192 (Ch. 1879); Penn Insurance Co. v. Semple, 38 N. J. Eq. 575, 585 (E. & A. 1884); General Electric Co. v. Transit Equipment Co., 57 N. J. Eq. 460, 471 (Ch. 1898); Campbell v. John W. Taylor Mfg. Co., 62 N. J. Eq. 307, 314 (Ch. 1901); Knickerbocker Trust Co. v. Penn Cordage Co., 62 N. J. Eq. 624, 641 (Ch. 1901); Fahmie v. Nyman, supra, 70 N. J. Super, at 317 (App. Div. 1961). On the other hand, whenever machinery and equipment have been placed in or annexed to a structure to carry out the purposes for which the structure was erected or designed or to which it has been adapted, with the intention to remain there permanently, and the removal thereof will result in material injury as defined hereinabove, such machinery and equipment become part of the realty. The test here is the essentiality of the chattels to the use for which the building was designed or used. Fahmie v. Nyman, supra, at 319. See Roddy v. Brick, 42 N. J. Eq. 218, 225 (Ch. 1886); Feder v. Van Winkle, 53 N. J. Eq. 370, 376 (E. & A. 1895); Lee v. Hubschmidt Building and Wood-Working Co., 55 N. J. Eq. 623, 626 (Ch. 1897); Ashby v. Ashby, 59 N. J. Eq. 536, 545 (Ch. 1900); Knickerbocker Trust Co. v. Penn Cordage Co., supra, 62 N. J. Eq. at 641-642.

As we noted earlier herein, the judge below was fearful that tax assessors throughout the State would be unable to cope with the problem of determining whether specific items of machinery and equipment used in the manufacturing process were so affixed as to become part of the realty and thus taxable as such. However, we do not believe that tax assessors will encounter insurmountable obstacles by applying in the field of real estate taxation long-established doctrines relating to fixtures. An examination of the Handbook for New Jersey Assessors and the Real Property Appraisal Manual for New Jersey Assessors (2d Ed), both issued by the Local Property Tax Bureau of the Division of Taxation, reveals that tax assessors are frequently required-to solve problems of considerable complexity.

IV

It is evident from what we said above that the conclusions of the tax appeals' judge were not based upon estahlished legal standards. The matter therefore must be remanded for reconsideration and the making of new findings and conclusions. To the extent necessary, both sides should be afforded the opportunity to present additional proofs, expert or otherwise, on the issues involved.

We would expect the judge below, in setting forth the requisite findings and conclusions, to describe fully the machinery and equipment in controversy, with particular reference to the manner of attachment to the realty. It is particularly important that he discuss the interrelationship between such machinery and equipment and the buildings in which they are housed, and make a determination of whether the machinery and equipment are so affixed as to become part of the realty and whether they are severable or removable without material injury thereto. In this regard we note his previous findings that the buildings are designed primarily to house specific equipment, and that machinery and equipment, once installed, are intended to remain in place indefinitely.

Eeversed and remanded for further proceedings consistent with the foregoing. We do not retain jurisdiction. No costs.


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    TOWNSHIP OF WAYNE ET AL., PLAINTIFFS-RESPONDENTS, v. THE COUNTY OF PASSAIC ET AL., DEFENDANTS-APPELLANTS. JOHN MAZZACCA, JR., ET AL., PLAINTIFFS-RESPONDENTS, v. PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided December 27, 1974.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. Herman Osofsky, Assistant County Counsel, argued the cause for appellant County of Passaic (Mr. Martin Verp, County Counsel, attorney).

      Mr. Robert S. Moraff argued the cause for respondents.
   Per Curiam.

In these consolidated appeals, we affirm that portion of the summary judgment entered in the trial court which declared invalid the policy of defendant county which required that, as a condition precedent to any county improvement of a section of a county highway located within the boundaries of a municipality, the municipality must acquire at its own expense and convey to the county at no cost to the latter, all necessary easements or other interest in lands. We affirm essentially for the reasons stated by the trial judge in his written opinion reported at 125 N. J. Super. 546 (Law Div. 1973).

On the cross-appeal of the Township of Wayne, we reverse that portion of the summary judgment which dismissed its claim lor reimbursement for easements previously acquired by it and conveyed to the county pursuant to the above-described policy. The record before us is very sparse. Before oral argument, at our request, counsel stipulated in writing that the township had in fact so conveyed property to the county without “monetary payment” to it. The record does not indicate the number of properties involved. At oral argument it was indicated that there were 80 “plus.” Likewise, we find no proof as to whether the municipality acquired these properties by purchase, condemnation or gift, and if by either of the first two methods, the compensation paid therefor. Additionally, the county now asserts that the township is entitled to reimbursement from the State of New Jersey for 50% of the cost of the acquisition of such lands. Whether the munieipalitj'- has sought or received such reimbursement is another pertinent fact not presently disclosed. In sum, by reason of all of the above, we conclude that the issue of the township’s claim for reimbursement was not ripe for summary judgment and thus we reverse and remand for a plenary hearing.

The portion of the judgment involved in the county’s main appeal is affirmed. The portion thereof involved in the township’s cross-appeal is reversed and remanded for a plenary hearing. No costs to any party.


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    IN THE MATTER OF THE PROMULGATION OF RULES OF PRACTICE AND REGULATIONS FOR THE OFFICE OF CABLE TELEVISION NEW JERSEY CABLE TELEVISION ASSOCIATION, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided December 26, 1974.

      Before Judges Leonard, Seidman and Bischoee.

      Mr. Francis B. Perkins argued the cause for appellant, (Messrs. Holzapfel & Perkins, attorneys; Mr. John J. Janasie, Messrs. Holzapfel & Perkins, on the brief).

      Mr. Bertram P. Goltz, Deputy Attorney General, argued the cause for respondent Director, Office of Cable Television, Board of Public Utility Commissioners (Mr. William P. Hyland, Attorney General of Few Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel; and Mr. William Gural, Deputy Attorney General, on the brief).
   Per Curiam.

An Office of Cable Television was established within the Department of the Public Utility Commission (PUC) by statute effective December 15, 1972. N. J. S. A. 48:5A-1 et seq. The Acting Director of the Office of Cable Television (hereafter Director), through the Board of Public Utility Commissioners (Board), issued an order promulgating rules and regulations for the Office of Cable Television within the Department of Public Utilities. Prior to promulgation, the proposed rules had been published, comments thereon received and a hearing held. The New Jersey Cable Television Association had filed written comments on the proposed regulations along with suggestions for changes and was represented at the hearings. After the rules and regulations were approved, it filed a motion for reconsideration, rehearing and reargument. The motion was denied. This appeal followed.

The association argues on this appeal that certain of the regulations adopted are invalid. The regulations thus attacked provide:

(1) “deposits to insure credit” must be maintained in separate accounts and used only for the maintenance of subscriber accounts (Reg. 14:507-1);

(2) simple interest at the rate of at least 6% per annum must be paid on deposits held more than 6 months (Reg. 14:507-1);

(3) “at least 15 days time for each payment shall be allowed after sending a bill” (Reg. 14:507-5E);

(4) at least 15 days written notice of intention to discontinue service must be given if the service is to be discontinued for non-payment of bills (Reg. 14:507-5E).

The association contends, first, that the Director lacks legislative authority to promulgate rules and regulations concerning consumer deposits. This argument proceeds as follows. The statute provides:

* * * [N]othing in this act shall be construed as declaring or defining cable television to be a public utility or subjecting it to the application of any of the provisions of Title 48 [Public Utilities] of the Revised Statutes, except as otherwise specifically provided in this act. N. J. S. A. 48:5A-4.

Deference is then made to N. J. S. A. 48:2-29.5 which deals with consumer deposits and grants authority to the PUC to adopt rules and regulations with respect to them. The argument continues with the conclusion that if there was no authority to regulate consumer deposits contained within the broad grant of power delegated to the PUC, it does not exist in the grant of authority issued to the Office of Cable Television absent a specific provision similar to that contained in N. J. S. A. 48:2-29.5. It is conceded such a provision is here missing. Therefore, the association contends the regulation on consumer deposits is ultra vires and invalid.

We do not think the power delegated can be so narrowly construed. The broad public policy to be fostered by the statute is set forth in N. J. S. A. 48:5A-2 and the means by which this public policy is to be implemented is detailed in N. J. S. A. 48 :5A-10. The authority of the Director and the .Board under the Act expressly includes the power to “supervise and regulate” the “contracts” entered into by every CATV company. N. J. S. A. 48:5A-9(b). In order to discharge its responsibilities under the Act, the Director with the approval of the Board is given authority to adopt rules and regulations governing, inter alia:

* * * The prohibition and prevention of the imposition of any unjust or unreasonable, unjustly discriminatory or unduly preferential individual or joint rate, charge or schedule for any service supplied or rendered by a CATV company within this State, or the adoption or imposition of any unjust or unreasonable classification in the making or as the basis of any individual or joint rate, charge or schedule for any service rendered by a CATV company within this State. N. J. S. A. 48:5A-10(b).

In short, the Cable Television Act confers comprehensive jurisdiction upon the Director and the Board to regulate cable television, comparable in scope in most respects to the PUC’s jurisdiction over public utilities.

It is now well established that such a grant of authority is to be liberally construed so as to enable an agency to discharge its statutory responsibilities. N. J. Builders, Owners and Managers Association v. Blair, 60 N. J. 330 (1972); Township of Deptford v. Woodbury Ter. Sewerage Corp., 54 N. J. 418 (1969).

We conclude that the regulations regarding consumer deposits, billing and discontinuance of service are well within the authority of the PUO to adopt.

It is to be noted that the Act in question provides that one of the objectives sought to be obtained in the regulation of CATV companies is to promote and encourage harmony between the companies and their subscribers and customers. N. J. S. A. 48:5A-2(c) (4). These declarations of public policy are broad enough to authorize the promulgation of rules and regulations pertaining to such matters as consumer deposit accounts, procedures for collection of accounts and discontinuance of service of delinquent customers.

The association next contends the hearings required by N. J. S. A. 48:5A-10 were not properly held prior to promulgation and that the rules and regulations are consequently invalid. More precisely, the association complains that the Director and the Board failed to offer testimony or produce evidence in support of their proposed regulations. While it concedes the proposed regulations were published in advance of enactment and an opportunity to submit comments and objections was afforded to interested persons, it contends the Director and the Board are required to go further and set forth the facts upon which the Director relied in the promulgation of the proposed rules and regulations so that interested parties may offer evidence in opposition thereto.

The function of the Director and the Board is essentially legislative in nature in this situation. Eacts sufficient to justify rules and regulations thus promulgated are assumed and the burden is on the one who asserts the contrary. Consolidation Coal Co., et al v. Kandle, et al, 105 N. J. Super. 104, 114 (App. Div.), aff'd 54 N. J. 11 (1969). The association does not contend that the hearing requirement of the Administrative Procedure Act, N. J. S. A. 52: 14B-4, was not followed but contends that the reasons for the rules which were promulgated were not established on the record. Appellant cites Safeway Trails, Inc. v. Bd. of Pub. Util. Com’rs., 42 N. J. 525 (1964), as support for its contention that a statement of legislative facts upon which regulations are based is required. Such reliance is misplaced. The regulations there involved were technical in nature, involving engineering specifications, and dealt with hazardous situations. The hearing there involved was conducted under a special statute, N. J. S. A. 48:2—23, as it had been construed in the case of Pennsylvania Railroad Co. v. Dept. of Public Utilities, 14 N. J. 411 (1954). In this case the regulations deal with customer relations, do not involve technical expertise and the hearing was held under the general provisions of the Administrative Procedure Act. Moreover, the Court held in Safeway Trails, supra, 42 N. J. at 539:

We might in a proper case excuse the failure of the Board to put in evidence the specific materials on which it relies in promulgating its rules, where a reasonable basis for the adoption of the regulations appears in the record and it otherwise indicates that the interested parties were in fact aware of the underlying reasons or were not prejudiced. * * [T]he procedural requirements [of this case] are not to be applied to particular administrative proceedings when good sense and justice dictate otherwise.

Finally, appellant argues the regulations are arbitrary and unreasonable. We find this argument to be without merit. Appellant does not point to any evidence sufficient to overcome the presumption of validity.

Affirmed.


author: Handler, J. A. D.

text:
    NATHAN BRAITMAN AND OLGA BRAITMAN, PLAINTIFFS-RESPONDENTS, v. OVERLOOK TERRACE CORP., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 21, 1974
    Decided December 27, 1974.

      Before Judges Collester, Lora and Handler.

      Mr. Jeffrey E. Allen, attorney for appellant.

      Mr. Sydney I. Turtz, attorney for respondents.
   The opinion of the court was delivered by

Handler, J. A. D.

Plaintiffs were new tenants in defendant’s high rise apartment house in West New York and moved in on March 16, 1971. On the same day they reported to the office that there was a leak and the "deadlock” or bolt lock on the door did not work. Thereafter, the leak was repaired but the bolt lock was not, although the broken lock was reported on at least two other occasions. On March 24, someone entered the apartment and stole personal property valued at $6,100.

According to the evidence, when the theft occurred, in addition to the non-functioning bolt lock, there was a slip lock on the door which was in working condition. This slip lock works through buttons on the door and provides a double lock. With respect to plaintiffs’ apartment, however, since the bolt lock was inoperative, the door could not be double locked. The slip lock itself, while operable, could be manipulated in such a way that it would be possible to open the door without a key.

The trial court, as the trier of fact, determined that the landlord in this case had a duty to provide reasonable security against theft by providing locks on plaintiffs’ apartment door. It was also found that up to and including the day of the theft, the landlord had not furnished adequate locks since the only operable lock on the door, the slip lock, could be easily released through the use of something flexible, like a piece of celluloid. The landlord had knowledge of the defect and sufficient time to repair or replace the bolt lock. Further, it was found that, since there had occurred recently a number of break-ins in high-rise apartments in the area, there was a foreseeable risk of theft because of apartment doors being inadequate^ or insufficiently secured. The court concluded that not only was it foreseeable that a theft might occur by “slipping the lock” but that access to the apartment by the robbers was gained in this way and that the negligence of defendant in not repairing the lock — or permitting plaintiffs to put on their own lock — was the proximate cause of the robbery. It also rejected the defense of contributory negligence.

Defendant contends that it acted in a reasonable manner under the circumstances and its conduct regarding the repair and replacement of the bolt lock on plaintiffs’ apartment did not constitute negligence. It emphasizes that, in addition to installing temporary and permanent locks on apartment doors, there was at least one operable lock on the door and that further security for the tenants of the apartment was provided by an automatic lock on the service door, an intercommunications system and the posting of a guard. It also asserts that plaintiffs’ loss through robbery was not proximately caused by any dereliction of defendant but rather by an intervening act of a third person which was neither reasonably foreseeable nor subject to defendant’s control. The additional finding of the court that defendant refused to allow plaintiffs to install their own lock through a private locksmith is also challenged. The determination that this constituted added negligence on the part of the landlord, we do not uphold since the evidence did not support the court’s primary finding that permission to repair the lock was actually sought by plaintiffs and specifically denied by the landlord. Our rejection of this finding, however, is not dispositive of the appeal.

It has been recognized that the mere relationship of landlord and tenant does not impose upon the landlord a duty to protect the tenant against the criminal activities of third persons. See generally, Annotation, “Landlord’s Duty to Protect Against Crime,” 43 A. L. R. 3d 331 (1972). Keeovery against a landlord fox a loss occasioned by theft may, however, be predicated on a showing of negligence constituting a proximate cause of the loss. Such proximate cause can be established by demonstrating that according to the common experience of mankind the resulting injury was a reasonably foreseeable consequence of the negligent act. McCappin v. Park Capitol Corp., 42 N. J. Super. 169, 172 (App. Div. 1956). As stated in Genovay v. Fox, 50 N. J. Super. 538, 550-551 (App. Div. 1958), rev’d on other grounds 29 N. J. 436 (1959) :

The fact that the risk of harm to the plaintiff was attributable to voluntary activity of others not under the control of the defendant does not of itself preclude liability if the harm by human intervention was foreseeable and a reasonable man so situated would take precautions to prevent it. (citations omitted) * * *' The criminality of the activity is but one circumstance in the foreseeability of the harm.

Thus, while a duty may not be posited solely upon the relationship of landlord and tenant, a landlord does owe a duty to take reasonable steps to protect a tenant from foreseeable criminal acts committed by third persons. Kline v. 1500 Mass. Ave. Apt. Corp., 141 U. S. App. D. C. 370, 439 F. 2d 477 (D. C. Cir. 1970); cf. Goldberg v. Housing Authority of Newark, 38 N. J. 578 (1962) and Mayer v. Housing Authority of Jersey City, 84 N. J. Super. 411 (App. 1964), aff’d o. b. 44 N. J. 567 (1965).

In the context of the evidence, the critical issue affirmatively resolved by the trial court was whether it was reasonably foreseeable that a theft might occur because of defendant’s failure to rectify the inadequate locks on plaintiffs’ apartment door. In an analogous situation, it has been expressed that “the key to duty, negligence and proximate cause * * * is the foreseeability vel non to a reasonable man of an unreasonably enhanced hazard" created by defendant’s negligence. Zinck v. Whelan, 120 N. J. Super. 432, 445 (App. Div. 1972). Also, Rappapori v. Nichols, 31 N. J. 188 (1959); Ney v. Yellow Cab Co., 2 Ill. 2d 74, 117 N. E. 2d 74 (Sup. Ct. 1954).

The findings of the court, based upon the evidence, indicate that the apartment door was inadequately secured through defendant’s neglect, that this unreasonably enhanced the risk or hazard of a break-in and robbery and that such an occurrence was reasonably foreseeable. The evidence was also sufficient to support the findings that defendant had ample notice that the door was not adequately secured and sufficient opportunity to correct this condition. Compare, Tirado v. Lubarsky, 49 Misc. 2d 543, 268 N. Y. S. 2d 54 (N. Y. Civ. Ct.), aff’d o. b. 52 Misc. 2d 527, 276 N. Y. S. 2d 128 (App. Div. 1966). The evidence showed as well that entry in all probability was effected by slipping the lock of the apartment. In contrast to Panglorne v. Weiss, 86 N. J. L. 286 (E. & A. 1914), as well as Mc Cappin v. Park Capitol Corp., supra, cited by defendant, the causal nexus in this case between the landlord’s negligence and the tenant’s loss was sufficiently shown. Proof of such causality need not be established to a certainty. The test as to whether defendants’ act caused damage or loss is one of probability or likelihood. Mc Cappin v. Park Capitol Corp., supra, 42 N. J. Super, at 173; Zinck v. Whelan, supra, 120 N. J. Super. at 444-445; Restatement, Torts 2d § 448 (1964). Thus, the court’s ultimate conclusion that the theft of plaintiffs’ property was proximately caused by defendants’ negligent conduct in permitting the door to remain inadequately secured was firmly based upon the evidence.

Affirmed.


author: Michels, J. A. D.

text:
    MARGATE CIVIC ASSOCIATION, PLAINTIFF-APPELLANT, v. BOARD OF COMMISSIONERS OF THE CITY OF MARGATE, GEORGE NAAME AND MANAAM, INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 7, 1974
    Decided January 16, 1975.

      Before Judges Michels, Morgan and Kentz.

      Mr. Stephen Hankin argued the cause for appellant.

      Mr. David R. Fitzsimons, Jr., argued the cause for respondent Board of Commissioners of the City of Margate.

      Mr. Robert H. Davisson argued the cause for respondents George Naame and Manaam, Inc. (Mr. Elias G. Naame, attorney).

      Mr. William F. Hyland, Attorney General of New Jersey, submitted a statement in lieu of brief on behalf of respondent Division o£ Alcoholic Beverage Control (Mr. David S. Pilizer, Deputy Attorney General, of counsel).
   The opinion of the Court was delivered by

Michels, J. A. D.

This is an appeal from a determination and order of the Director of the Division of Alcoholic Beverage Control of the State of New Jersey (Director) in which he dismissed an appeal by Margate Civic Association (Association) from the action of the Board of Commissioners of the City of Margate (Board) approving the application by George Naame and Manaam, Inc. (Manaam) for a place-to-place transfer of a plenary retail consumption license to include as part of its licensed premises the building immediately adjacent thereto.

Manaam is the holder of a plenary retail consumption license (C-16) for premises known as Maloney’s Tavern located at 23 South Washington Avenue, Margate, New Jersey. Manaam operates the tavern on the ground floor of the licensed premises serving alcoholic beverages and at times a limited sandwich menu. These premises are owned by Manaam. In fall 1972 Manaam purchased the adjacent premises known as and located at 27 South Washington Avenue. These premises consist of a building substantially similar to the 23 South Washington Avenue building, and its ground floor has been used as a restaurant for many years. The two buildings are separated by a common alleyway three to four feet wide, the street end of which is closed off by a fence to prevent public passage. Both premises are zoned for commercial use.

In May 1973 Manaam applied to the Board for a place-to-place transfer of its plenary retail consumption license to include, in addition to the premises at 23 South Washington Avenue where it operated Maloney’s Tavern, the adjacent premises at 27 South Washington Avenue where it intended to operate as “Maloney’s Beef and Brew.” The Board conducted a hearing and approved the application. Manaam thereupon repaired and remodeled the 27 South Washington Avenue building to accommodate a bar and tables and began operations as Maloney’s Beef and Brew serving a limited food menu. While Maloney’s Tavern and Maloney’s Beef and Brew each had a separate entrance, Manaam operated them as a single business entity.

The Association appealed from the approval of the application by the Board to the Director who designated a hearing officer for the appeal. At the conclusion of the hearing the hearing officer submitted his report in which he recommended that the action of the Board be reversed. The hearing officer found that the two buildings were not structurally joined and that Manaam operated them as “two distinct enterprises independent of each other save ownership.” He concluded that under the circumstances a plaeeto-place transfer of the existing license would result in splitting the license and violating the provisions of N. J. S. A. 33 :1—26 and Margate Ordinance No. 730. Director Bower disagreed and in a well-reasoned opinion affirmed the Board’s approval of the place-to-place transfer and dismissed the Association’s appeal, stating:

I find, under the facts herein, that although the buildings do not physically adjoin one another, the operations of these establishments are operated as a single unit, and hence can be considered as one single place of business within the meaning of the statute. Re Beisch, Bulletin 81, Item 10; Re Gallagher’s, supra. [A. B. C. Bull. No. 1945, Item 1.]
Thus, I find that the said transfer was not violative of N. J. S. A. 33 :1-26 or of the subject local ordinance.
In sum, I conclude that the respondent Board acted in the circumspect and reasonable exercise of its discretionary authority on granting the said transfer. Therefore, the recommendation of the Hearer to reverse the action of the Board is disapproved. s’ * *

The Association contends on this appeal that N. J. S. A. 33 :1-26 and Margate Ordinance No. 730 prohibit the granting oí a place-to-place transfer of the plenary retail consumption license to include both premises, and that the Director abused his discretion by approving Manaam’s application for such transfer. We disagree.

The responsibility for the administration and enforcement of the alcoholic beverage laws relating to the transfer of a liquor license from place-to-place or to cover enlarged premises is primarily committed to municipal authorities. N. J. S. A. 33:1-19, 24; Lyons Farms Tavern v. Mun. Bd. Alc. Bev., Newark, 55 N. J. 292, 302 (1970). Local boards considering applications for such transfers are invested by our Legislature with wide discretion, and their principal guide in making a determination is the public interest. Id., 303; Lubliner v. Bd. of Alcoholic Bev. Con., Paterson, 33 N. J. 428, 446 (1960). See Tp. Committee of Lakewood Tp. v. Brandt, 38 N. J. Super. 462, 466 (App. Div. 1955).

Once the local board has made its determination, the municipality’s action is broadly subject to appeal to the Director of the Division of Alcoholic Beverage Control who conducts a de novo hearing of the appeal, making the necessary factual and legal determinations on the record before him. Fanwood v. Rocco, 33 N. J. 404, 414 (1960). However, the rule is well established that the Director will not substitute his judgment for that of the local board or reverse the ruling if reasonable support for it can be found in the record. On judicial review the court will generally accept the Director’s factual findings as well as his ultimate determination unless unreasonable or illegally grounded. Lyons Farms Tavern v. Mun. Bd. Alc. Bev., Newark, supra, 55 N. J. 303; Fanwood v. Rocco, supra, 33 N. J. 414-415.

N. J. S. A. 33:1-26 in pertinent part provides:

* * s" Licenses are not transferable except as hereinafter provided. A separate license is required for each specific place of business and the operation and effect of every license is confined to the licensed premises. * * tr

While the Alcoholic Beverage Law does not explicitly define “specific place of business”, the obvious purpose of this statutory requirement is “to prevent the splitting of licenses and indirect avoidance of the maximum license limitations.” Essex Co., etc., Stores Ass’n v. Newark, etc., Bev. Cont., 64 N. J. Super. 314, at 321 (App. Div. 1960). Thus, in the Essex case, supra, we held that this requirement was satisfied where each of the several liquor departments in Bamberger’s Newark store was operated “as a single entitjr under its complete domination.” Here, too, “Maloney’s Tavern” and “Maloney’s Beef and Brew” are operated by Manaam “as a single entity under its complete domination.” They are not operated separately and distinct from each other. In fact, the receipts from each are commingled ; one bank account is maintained for the entire business operation, and all employees are hired, fired and paid by a single employer — Manaam. While the two South Washington Avenue buildings are not physically joined or attached and each has a separate entrance off South Washington Avenue, they are immediately adjacent to one another, separated only by a narrow alleyway, the street end of which is fenced off, prohibiting public passage. These buildings and the premises upon which they stand, including the alleyway, are all owned by Manaam. Thus, the physical arrangement of the buildings and manner in which the “Tavern” and the “Beef and Brew” are operated compel the conclusion that they constitute a single “specific place of business” within the intendment of N. J. S. A. 33 :1—26.

The result reached here is in accord with prior administrative construction of the statute. It is clear that the contemporaneous and practical construction of a statute over a period of years by the agency charged with its enforcement without interference by the legislature is evidence of its conformity with the legislative intent and may be given substantial weight by the court. Service Armament Co., et als. v. Hyland, 131 N. J. Super. 38 (App. Div. 1974). See also, Pringle v. Department of Civil Service, 45 N. J. 329, 332-333 (1965); Automatic Merchandising Council v. Glaser, 127 N. J. Super. 413, 420 (App. Div. 1974), and Housing Auth. of Jersey City v. Dept. of Civil Service, 87 N. J. Super. 146, 149 (App. Div. 1965). In Essex Co., etc., Stores Ass’n v. Newark, etc., Bev. Cont., supra, the court considered the administrative construction of N. J. S. A. 33: 1-26, pointing out 64 N. J. Super, at 322:

Since the particular point appears to be res nova, in our courts, administrative construction of the relevant statute is entitled to great weight, especially when such construction is substantially contemporaneous with the enactment of the statute and is followed for many years. [Citations omitted.] Since 1935 the Director has interpreted 11. S. 33 :1-26, now N. J. S. A. 33 :1-26, to require only one license under circumstances similar to those herein. For example, in A. B. C. Bull. No. 241, item 8 (1938), it was held that a single license could cover two social halls on the opposite sides of a public highway, one used in summer and the other in winter, if “so arranged and operated that they could be said to constitute a single place of business * "

The construction placed upon the statute by the Director in A. B. C. Bull. No. 241, Item 8 (1938), referred to in the Essex case, supra, has been followed in principle by the Director in more recent decisions. See Springdale Park, Inc. v. Tp. Comm. of Andover, 97 N. J. Super. 270 (App. Div. 1967), and Gallagher’s Avalon Liquor Store, el als. v. Bd. of Commissioners of the Borough of Avalon, A. B. C. Bull. No. 1945, Item 1 (1970). Accordingly, we concur in the findings of the Director that Manaam operated the “Tavern” and “Beef and Brew” as a single place of business within the meaning of the statute.

We also hold that the granting of the plaee-to-place transfer of the plenary retail consumption license to include as part of the licensed premises the building immediately adjacent thereto was not prohibited by Margate Ordinance No. 730 which in pertinent part provides:

That neither a Plenary Retail Consumption License nor a Plenary Retail Distribution License shall be transferred to any premises located within a circle having a radius of . . . (500) feet, measured from the center point at the main entrance of any existing licensed premises.

N. J. S. A. 33 :1-40 expressly confers upon municipalities in the State of New Jersey the power to limit by ordinance the number of retail licenses to sell alcoholic beverages. Pursuant to such statutory authority the governing body of Margate adopted Ordinance No. 730, requiring a minimum distance of 500 feet between licensed premises. In this connection it has been held that such ordinances do in fact “result in a limitation in the number of licenses, for the greater the intervening distance that must separate licensed premises, the fewer the number that may exist within the municipal boundaries.” Dal Both v. Div. of Alcoholic Beverage Control, 28 N. J. Super. 246, 252 (App. Div. 1953). We are satisfied that the Director’s determination that the Margate Ordinance No. 730 was inapplicable to the enlargement of an existing licensed premises by a plaee-toplace transfer was correct. The granting of the place-to-place transfer to include as part of the licensed premises the building adjacent thereto did not increase the number of licenses in the municipality.

Finally, we conclude from our review of the entire record that the Director’s findings are amply supported, and his determination and order dismissing the appeal by the Association from the action of the Board approving the application for the plaee-to-place transfer was not unreasonable or illegally grounded. Consequently, we will not interfere therewith.

The determination and order of the Director of the Division of Alcoholic Beverage Control is affirmed.

      The day after Manaam applied to the Board for approval of a plaee-to-place transfer of its license, the Association filed suit in the Superior Court, Law Division, Atlantic County, seeking to enjoin Manaam from structurally joining the 23 and 27 South Washington Avenue buildings, and to declare illegal and void the building permit issued by the Margate building inspector for such construction work. We are advised that this suit is still pending.


author: Milmed, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN J. HIGGINS. DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 9, 1974
    Decided January 17, 1975.

      Before Judges Michels, Moegah and Milmed.

      Mr. Seymour Chase, attorney for the appellant (Mr. John J. Dudas, Jr., on the brief).

      Mr. Joseph C. Woodcock, Jr., Prosecutor of Bergen Count, attorney for the respondent (Mr. Donald N. Cereftce, Assistant Prosecutor, of counsel; Mr. James Key, Jr., on the brief).
   The opinion of the court was delivered by

Milmed, J. S. C.,

Temporarily Assigned. Defendant appeals from a judgment of the County Court finding him guilty of a violation of N. J. S. A. 39:4-50(b) (operating a motor vehicle while his ability to operate was impaired). He was fined $100 and costs, and his driver’s license was revoked for a period of six months.

At about 1:20 in the morning of November 11, 1972, while operating his motor vehicle northbound on the Garden State Parkway, defendant was arrested by a State trooper and charged with a violation of N. J. S. A. 39:4-50 (a) (operating a motor vehicle while under the influence of intoxicating liquor). He was tried in the Municipal Court of the Borough of Elmwood Park, found guilty of a violation of N. J. S. A. 39:4-50(b) (operating a motor vehicle while his ability to operate was impaired), fined $100 and costs, and his driver’s license was revoked for a period of six months.

Defendant took an appeal to the Bergen County Court. Because of a malfunction of the sound recording machine used at the time of the hearing in the municipal court, the tapes could not be transcribed. Since no transcript was available, a plenary trial de novo without a jury was had in the County Court as provided by R. 3:23-8(a). The charge on which defendant was tried was the one on which he had been found guilty by the municipal court, i. e., a violation of N. J. S. A. 39:4-50(b). Only one witness testified at the trial — the State trooper who made the arrest.

On this appeal from the judgment of the County Court defendant contends, as he did in effect before the County Court, that his “constitutional right not to be placed in jeopardy twice for the same offense was violated.” lie says that “To subject him to a second plenary trial for the same offense effectively deprives the defense of a meaningful cross-examination since the State’s witnesses, already cross-examined at the first trial, can anticipate such in their direct examination.” He also contends that the State did not sustain the burden of proving him guilty beyond a reasonable doubt.

We find no merit in either of the defendant’s contentions. Here, because of a malfunction of the sound recording machine used, it was not possible to obtain a transcript of the proceedings in the municipal court. There is no claim that the malfunction occurred other than by accident. There was no verbatim record or sound recording made pursuant to R. 7 :A-5 in the court from which the appeal was taken. Accordingly, the appeal was, by R. 3 :23-8(a), required to “operate as an application for a plenary trial de novo without a jury” in the County Court.

While the rule designates the proceedings as a “trial de novo”, the de novo review is appellate. State v. Lanish, 103 N. J. Super. 441, 444 (App. Div. 1968), aff’d o. b. 54 N. J. 93 (1969), City of Passaic v. Passaic County, 54 N. J. Super. 254, 259 (App. Div. 1959); R. 3:23-1. Defendant cannot prevail on his claim of double jeopardy. He was found guilty in the municipal court. It was he who appealed to the County Court seeking the appellate review contemplated by Rule 3 :23. In the absence of a record of the trial in the municipal court, the review to which he was entitled and which he received was by trial de novo without a jury on a charge of the “’lesser offense” of which he was found guilty, i. e., operating a motor vehicle while his ability to operate was impaired. State v. Lanish, supra. Such trial de novo was for his benefit. State v. DeBonis, 58 N. J. 182, 188-189 (1971). The State did not in way attempt to “harass” or ““oppress” him ““by multiple prosecution or punishment for the same offense.” See State v. Currie, 41 N. J. 531, 536 (1964). In the circumstances, there is no force whatever to defendant’s claim of double jeopardy. See State v. Farmer, 48 N. J. 145 (1966), cert. den. 386 U. S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967); Note, “Double Jeopardy: The Reprosecution Problem,” 77 Harv. L. Rev. 1272 ,1274 (1964); 4 Blackstone, Commentaries 335-336 (Lewis ed. 1922) at 1725-1726.

The only testimony in the case was that of State Trooper Mueller. He testified that he was assigned to the Bloomfield Station on the Garden State Parkway; that at about 1:20 a.m. on November 11, 1972, he observed a motor vehicle, a ““blue, carry-all type station wagon van combination, travelling northbound in the right-hand lane”; that he proceeded to follow the vehicle for about 2 miles, i. e., from about post number 156.5 to post number 158.5; that it was travelling at about 50 to 55 miles an hour; that he observed the driver ““travelling from the right-hand lane, partially into the center lane and from the center lane right into the back-hand lane and from the right-hand lane partially onto the shoulder”; that “This took place several times”; that there were no other cars in the lanes in-involved in his driving; that he directed the driver over to the shoulder of the roadway; that when he approached the driver (defendant) and instructed him to produce his driver’s license and registration, he “detected a strong odor of alcoholic beverage on his breath”; that ““his manner of speaking was blurred and his eyes were bloodshot”; that when ““he stepped from his vehicle * * * he had to hold on to prevent from falling”; that after what he “considered a lengthy amount of time” defendant produced his driver’s license; that defendant attempted to locate his vehicle registration, bnt was unsuccessful; that he asked the defendant if he had been drinking and the defendant told him that “he had a few beers”; that he had defendant walk heel to toe along the shoulder white line and that the defendant “deviated from the line slightly”, and that at the police barracks he refused to take the breatholizer tost.

There is ample evidence in the record to support the finding of guilt beyond a reasonable doubt.

The judgment of the County Court is affirmed.