author: Lora, J. A. D.

text:
    SCOTT T. CLAYTON, AN INFANT BY HIS GUARDIAN AD LITEM, CURTIS CLAYTON, AND CURTIS CLAYTON, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. FREEHOLD TOWNSHIP BOARD OF EDUCATION, WILLIAM McCROWHAN AND CLAUDIO LOPEZ, AN INFANT BY HIS GUARDIAN AD LITEM, J. R. LOPEZ, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 16, 1974—
    Decided September 27, 1974.

      Before Judges Collestbr, Loba and Handler.

      Mr. Michael D. Schottland argued the cause for appellants (Messrs. Chamlin, SchoMland and Rosen, attorneys; Mr. Thomas W. Gavanagh, Jr. on the brief).

      Mr. Bernard F. Boglioli argued the cause for respondents, Freehold Township Board of Education and William Mc-Crowhan.

      Mr. Richard A. Amdur argued the cause for respondents Lopez (Messrs. Hanlon, Amdur and Hanlon, attorneys).
   The opinion of the court was delivered by

Lora, J. A. D.

Plaintiffs sued the Freehold Township Board of Education, William McCrowhan, a gym teacher, and Claudio Lopez, a fellow student of infant plaintiff Scott T. Clayton, to recover damages for injuries sustained when a baseball bat slipped out of Lopez’ hands during a softball game and struck Clayton who was seated on a players’ bench along the third base line.

They appeal from a judgment of no cause for action, entered following a jury verdict, and a denial of a motion for a new trial.

On appeal plaintiffs contend: (1) the trial judge erred in allowing defendant Lopez to testify that the schoolboy witnesses for plaintiffs were friends of young Clayton and had teased him; that such testimony was not admissible to show bias or interest on the part of plaintiffs’ witnesses; (2) counsel’s remarks in summation were improper; (3) the trial judge erred in not granting a new trial motion as to the defendant McCrowhan; (4) the trial judge should have directed a verdict against infant defendant Lopez, and (5) there was plain error in the charge because it inadequately instructed the jury and had a tendency to confuse them as to material elements in the case, — the removal of contributory negligence, and the fundamental elements of negligence, particularly as to defendant McCrowhan.

Scott Clayton, a seventh-grader at a Freehold grammar school, testified he was in a gym class softball game being supervised by defendant McCrowhan and was seated on the players’ bench along the third base line when defendant Claudio Lopez came to bat. Lopez swung at a pitched ball and the next thing Scott knew he felt something go down his throat and his mouth was full of blood.

The plaintiff further testified that earlier in the game he saw Lopez, while batting, let go the bat which then skimmed across the ground, bounced, and struck a player, Andrew Blumetti, on the foot. He stated that after this first incident in which Blumetti was struck by the bat, the gym teacher, McCrowhan, gave no instructions to any o£ the students to move from the bench.

Andrew Blumetti testified that while standing next to the bench he observed the bat leaving Lopez’ hands as he was swinging; that it bounced off the ground and struck him in the lower calf. He estimated the bench as being 10 to 20 feet from home plate. The witness then described how when Lopez next came to bat, the bat again left his hands and struck plaintiff. He further stated that in games played earlier that month Lopez had let go of the bat when he swung — “he wouldn’t drop it, just let it fly”; that because of this the catcher “as a joke” and “for protection” would retreat behind the backstop whenever Lopez came to bat. He stated this was not done when other players came to bat.

Martin Moore, another member of the gym class, testified that Lopez when at bat usually would throw the bat; that on a prior occasion the teacher, defendant McCrowhan, showed Lopez how to hold the bat and how to finish with his swing. The witness observed the initial incident of that day in which Blumetti was hit. Moore also testified that when defendant was at bat the catcher went behind the backstop. He stated that when Clayton was injured the bat went out of Lopez’ hands as he finished off his swing, went past him and another man, and struck Clayton without hitting the ground.

Kenneth Orenstein, another player, testified that defendant had a tendency to let go of the bat when he swung and the bat would either “go back to the cage or over to the third base side, maybe not as far as the bench but pretty close.” He also testified that he caught once while defendant was at bat and went behind the cage for protection.

Defendant McCrowhan testified that Lopez swung at the ball, which he believed Lopez hit, and that as he swung he let go of the bat which went through the air and hit young Clayton. The bat in question was a regulation softball bat with tape on the handle. He did not remember Lopez throwing the bat prior to this, but he did say Lopez might have; that during the course of a game bats are sometimes thrown.

On cross-examination McCrowhan repeated that he did not remember Lopez having thrown the bat prior to the incident in question. He also stated that he would not single Lopez out as someone who threw the bat more than anyone else or as one for whom the catchers would go to the side of the screen and slightly behind it; he did not recall having cautioned Lopez about throwing the bat, though he stated he might have, “just like anyone else in the class”; he had no recollection of Blumetti being hit by a thrown bat on that day. He estimated that the bench was about 30 feet from home plate.

In response to plaintiff’s inquiry McCrowhan stated that based on his experience as a gym teacher (seven years at the time of the accident), if any boy threw the bat he would instruct him on how to hold on to it and carry it a couple of steps down the first base line before dropping it. Upon inquiry by the trial judge he stated that by “thrown” he meant that when some boys finish their swing they have a tendency to release the bat at the end of their swing; the hands slip off the bat as they finish their swing. He did remember boys going behind the cage when catching, but not necessarily when defendant was at bat; that the boys were “kind of leery,” when catching, of getting hit by a bat or ball and would stand to the side rather than directly behind the batter.

Defendant Claudio Lopez described the incident in question as follows: “I went up to bat, I swung and the bat slipped out of my hands * * * I didn’t see it. I was running toward first.” He stated that he did not throw the bat, that it slipped, that he had never thrown the bat prior to that day, and was never cautioned by the gym teacher about throwing the bat. He testified that he did not, earlier in the game, throw a bat which struck Blumetti.

Lopez further testified that boys did not go behind the batting cage when he got up to bat, but merely went to the side, and they did so when other boys got up to bat because they didn’t want to be hit with the ball. He did state that defendant McGrowhan had, prior to that day, instructed him on how to bat, telling him to “hold the bat right hand over left, and after completing the swing to stop, put down the bat and then run.”

Over timely objection Lopez testified that young Clayton and the three boys who testified in his behalf were friends, were not friends of his and that they sometimes teased him.

Plaintiffs first contend the trial judge erred in permitting defendant Lopez to seek to prove bias and interest on the part of plaintiffs’ schoolboy witnesses in that (1) a proper foundation for such evidence was not established during the cross-examination of young Clayton and said witnesses, and (2) the trial judge should have exercised his discretion under Evid. B. 4 and barred the testimony.

The text writers indicate some states require a foundation be laid when introducing evidence of bias of any sort, others do not, and still others require a foundation for statements or utterances, but not for acts or circumstances. See McCormick, Evidence (2 ed. 1972), § 40 at 80; 3A Wigmore, Evidence, § 953 at 801-802 (1970); Annotation 87 A. L. R. 2d 407 (1963).

In Roth-Schlenger, Inc. v. Schlenger, 121 N. J. Eq. 536 (Ch. 1937), the court, though by dictum, did clearly indicate that there was no need for a foundation for evidence of circumstances showing bias, stating:

If the indications of bias are acts or circumstances — such as an assault or employment — no foundation need be laid for the proof, but if bias appears from statements of the witness, then according to the rule in most jurisdictions, the witness must first be asked if he made such statements before independent proof thereof is admissible, [at 537; citation omitted]

Evid. R. 20, “Evidence Generally Affecting Credibility,” does not posit the laying of a foundation as a precondition to the receipt of extrinsic evidence affecting credibility. This is to be contrasted to impeachment through the demonstration of a conflict between a testimonial statement of a witness and a prior statement made by him.

In such situations Evid. R. 22 (a) provides that if the trial judge deems it feasible, a certain amount of identification regarding a prior written statement may have to be given to the witness before he may be examined about it, and Evid. R. 22(b), which by its terms applies to both oral and written prior inconsistent statements, provides that extrinsic evidence of prior contradictory statements by a witness may, in the trial judge’s discretion, be excluded unless the witness, while testifying, was given an opportunity to identify, explain or deny them. Commentary on the New Jersey Rules of Evidence, at 95 (1972 ed.).

Evid. R. 22 is, then, a departure from the holdings of our previous cases which required a foundation before such evidence was admissible. See e. g. Schneider v. Preis, 79 N. J. Super. 400 (App. Div. 1963). The rule gives the trial judge discretion to exclude the evidence if a foundation is not laid. State v. Conyers, 58 N. J. 123, 132 (1971).

Since Evid. R. 22(b) has, in the court’s discretion, removed the requirement of a foundation when offering extrinsic evidence oí prior inconsistent statements, we are of the opinion that a foundation through prior cross-examination is not required where impeachment does not consist of the contrasting of contradictory statements but rather of acts or circumstances showing bias.

We see no abuse of the trial judge’s discretion in admitting the testimony complained of without a foundation nor do we agree with plaintiffs’ contention the testimony should have been excluded on the basis of Evid. R. 4.

Plaintiffs next contend that certain comments made by defense counsel in summation indicated the infant defendant stood alone and Avas uninsured and that such remarks AA-ere error justifying a new trial. The comment complained of was as follows:

As I started to say, I represent a thirteen year old boy. His father has nothing to do with this law suit other than the fact that he’s named as the guardian, just as Mr. Clayton is guardian of -—.

A reading of the remarks in context discloses no such insinuation nor do we believe the jury could strain to such extent as to extract an inference therefrom that infant defendant was not insured. Counsel was merely pointing-up to the jury that Lopez’ conduct was to be weighed in the, light of the standard of care applicable to a 13-year-old boy in like circumstances. Moreover, the trial judge properly instructed the jury as to the status of infant defendant and his father in the suit. Cf. Wild v. Roman, 91 N. J. Super. 410, 419 (App. Div. 1966).

We have reviewed the record in its entirety and find no error in the trial judge’s denial of plaintiffs’ motion for a new trial against defendant McCrowhan and in his not directing a verdict against defendants Lopez. The case clearly presented questions of fact for determination by the jury and the jury’s verdict in favor of all defendants reflects, not the misapplication of the correct principles of law, but rather its assessment of the weight of the evidence and credibility of the witnesses.

In ruling out contributory negligence as a defense, the trial judge advised the jury of his decision and told them “Anything you heard from any other judge about contributory negligence does not apply to this case and therefore I have not charged it to you because I have ruled outside your presence that contributory negligence of the infant plaintiff is not a defense available to the defendants in this case.”

Plaintiffs now argue the trial judge should have clearly' defined contributory negligence as it pertained to this case. Under the evidence and circumstances of the trial, we are satisfied the jury could not have been misled and error, if any, did not have a clear capacity to bring about an unjust result. April v. Collings Lakes Ambulance Ass’n, 109 N. J. Super. 392 (App. Div. 1970), is distinguished.

It is also asserted by plaintiffs that the trial judge did not adequately charge the fundamental elements of negligence, particularly as to defendant MeCrowhan; that he did not adequately define nor structure the duty to exercise reasonable supervisory care for the safety of students imposed on a teacher such as McCrowhan, illustrated by Titus v. Lindberg, 49 N. J. 66, 73 (1967); Jackson v. Hankinson, 51 N. J. 230, 235-236 (1960), and Caltavuturo v. Passaic, 124 N. J. Super. 361, 366 (App. Div. 1973).

Reading the charge as a whole, we find that the applicable law was correctly and adequately imparted to the jury and that “no prejudice resulted from any lack of artistry or speciScity in the language used by the trial court.” Titus v. Lindberg, supra, 49 N. J. at p. 77.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RUTH WEIMAN, INDIVIDUALLY, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT WEIMAN, AND AS GUARDIAN FOR THOMAS ALAN WEIMAN AND RICHARD DAVID WEIMAN, MINORS, PLAINTIFF-RESPONDENT, v. GLORIA WEIMAN IPPOLITO, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT WEIMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 13, 1974—
    Decided August 16, 1974—
    Supplemental Opinion September 3, 1974.

      Before Judges Coneord, Handler and Meanor.

      Mr. M. Marvin Soperstein argued the cause for Appellant.

      Mr. Michael B. Griffinger argued the cause for Respondent (Messrs. Crummy, O’Neill, Del Deo & Dolan, attorneys).
   Per Curiam.

Plaintiff, by a petition for rehearing, to which defendant upon the court’s instructions filed an answer in opposition, urges that the allowable credit against the total recovery should be in the amount of $4,00(1 instead of $8,000 as determined by this court. We had ruled that defendant was entitled to a credit of $8,000 since this was the sum paid by her insurance companies in settlement of the negligence claims in the action. Although not initially raised on the appeal, it was stressed in oral argument and in the petition for rehearing, and noted in our opinion, that $4,000 of the settlement was allocable to plaintiff individually and as administratrix ad prosequendum. Quite clearly, this payment intended to benefit plaintiff individually. The balance of $4,000 was payable to plaintiff as the guardian of her two sons as a wrongful death action recovery. The order reflecting the settlement clearly effectuates this disposition.

We are impelled to conclude on this record, despite plaintiff’s failure to crystalize the issue earlier, that the $4,000 allocable to plaintiff, other than in her capacity as guardian for the sons, cannot appropriately be attributed to the wrongful death action award. Plaintiff individually had no viable claim against defendant under the Wrongful Death Act and the ultimate award recovered by plaintiff after trial was solely on behalf of her two sons, decedent’s next of kin. It is only the portion of the previous settlement based upon the wrongful death action claim of the sons which should be credited aginst the wrongful death action award — this on the thesis that there should be but a single recovery for compensatory damages in a wrongful death action, regardless of the circumstances of the decedent’s demise. Consequently, that part of the settlement in favor of plaintiff individually should not be deducted from the recovery under the Wrongful Death Act. Accordingly, our opinion is amended to reflect that the credit allowable against the wrongful death action damages be $4,000.

Plaintiff also has raised the question in her petition that prejudgment interest under R. 4:42~ll(b) be assessed on the entire amount awarded including survival action damages and funeral expenses. This result was intended by our previous opinion.

As amended and clarified herein, the judgment below is modified.


author: Crane, J. A. D.

text:
    THOMAS LAWRENCE ET AL., PLAINTIFFS-RESPONDENTS, v. ERNEST BUTCHER ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 24, 1974—
    Decided October 8, 1974.

      Before Judges Carton, Crane and Kole.

      Mr. David J. Haber argued the cause for appellants (Mr. Herbert B. Bierman, attorney).

      Mr. M. Fred Gernand argued the cause for respondents (Mr. Joseph E. Shamy, attorney).
   The opinion of the court was delivered by

Crane, J. A. D.

Plaintiffs brought an action in lieu of prerogative writs seeking an order in the nature of mandamus to compel defendant township clerk to file a petition of voters and to place a referendum on the ballot in the general election in November. The petition protested the passage and approval of an ordinance raising the salaries of township officers and employees and sought a referendum of the voters with regard to the ordinance. The petition contained 481 signatures of validly registered voters, out of a total number of 6,512. The township clerk found the number to be insufficient to initiate a referendum, citing N. J. S. A. 40:69A-185 which requires signatures of 25% of the registered voters.

The trial court found that the controlling statute was N. J. S. A. 40A:9~165, which requires the signatures of only 5% of the registered voters and entered judgment in favor of plaintiffs. Defendants have appealed.

The government of Monroe Township is organized under the provisions of Article 8 of the Optional' Municipal Charter Law (commonly called the Faulkner Act), N. J. 8. A. 40:69A-74 et seq. With regard to referenda in general, the Optional Municipal Charter Law provides in N. J. 8. A. 40 ¡69A-185 that the voters shall have power to demand a referendum as to whether certain ordinances passed by the municipal council shall become effective by filing a petition in municipalities having fewer than 70,000 registered voters, signed by 25% of the registered voters.

It is also provided in N. J. S. A. 40 69A-26 et seq. that municipalities organized under the Optional Municipal Charter Law shall be governed by “all applicable provisions of general law” as well as “provisions of this act common to optional plans.” N. J. S. A. 40A:9-165 is such an applicable provision of general law. By its terms it applies specifically to the enactment of salary ordinances in all municipalities and empowers the voters to demand a referendum of the question of whether an ordinance raising salaries shall become effective by the filing of a petition signed by 5 % of the registered voters.

Where statutes in some apparent conflict relate to the same subject matter, it is the duty of the court to construe them together as a unitary and harmonious whole insofar as that may be possible in order that each may be fully effective. Clifton v. Passaic Cty. Bd. of Taxa., 28 N. J. 411, 421 (1958). The more specific applicability of N. J. S. A. 40A:9-165 to the subject matter of the ordinance brings int.o play the well recognized principle of statutory construction that the provisions of a specific statute will prevail over a general statute. Kingsley v. Wes Outdoor Advertising Co., 55 N. J. 336, 339 (1970); Goff v. Hunt, 6 N. J. 600 (1951); 2A Sutherland, Statutory Construction, § 51.05 at 315 (1973).

The statutes may thus be construed in harmony by regarding N. J. S. A. 40:69A-185 as dealing with ordinances in general, with the exception of salary ordinances which are governed by the provisions of N. J. S. A. 40A:9-165. The case of Indyk v. Klink, 121 N. J. Super. 314 (App. Div. 1972), cited by defendants dealt with the question of whether the township attorney and the township engineer should be appointed by the council or by the mayor. We do not regard that case as apposite. The statutes involved in that case could not be construed in a harmonious manner and the court found a legislative intent to prefer the provisions of the Optional Municipal Charter Law. In the instant matter there is a sufficient basis, apparent from the language of the several provisions, for the conclusion that the Legislature intended to deal with the subject matter of the enactment of salary ordinances in a uniform way in all municipalities and that it did not intend to require the signatures of a greater number of registered voters to initiate a referendum for the review of salary ordinances in municipalities governed by the Optional Municipal Charter Law.

Accordingly, we conclude that the trial court was correct in its conclusion that the provisions of N. J. S. A. 40A:9-165 require the township clerk to file the petition and arrange for placing the referendum on the ballot at the next general election.

The judgment is affirmed.


author: Yaccarino, J. S. C.

text:
    M., PLAINTIFF, v. FAMILY AND CHILDREN'S SERVICE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided September 30, 1974.

      Mr. Charles L. Morgan argued the cause for defendant (Morgan & Falvo, attorneys).

      Mr. Rocco Ravaschiere argued the cause for plaintiff (Parsons, Canzona, Blair S Warren, attorneys).
   Yaccarino, J. S. C.

This matter came before the court on a verified complaint for an order to show cause why defendant agency should not be enjoined from interfering with plaintiff in her care of the infant child sought to be adopted. Defendant consented without prejudice to an order permitting the child to remain in plaintiffs custody until the return date of the show cause order/’ which was fixed for August 16, 1974. Prior to the return date defendant agency moved to dismiss the complaint and order to show cause, alleging that the court lacked jurisdiction. The order to show cause and the motion to dismiss for lack of jurisdiction were consolidated and argument thereon was heard by the court on August 29, 1974. On that date the court denied defendant’s motion, continued the status quo and fixed a date for a plenary hearing for the reasons hereinafter stated.

The facts are as follows. Sometime in August 1971 plaintiff and her husband made application with defendant agency for the placement of a child in their home for the purpose of adoption. On January 7, 1974 defendant agency placed a female child in plaintiff’s home and the parties executed an “Adoption Placement Agreement.” One of the provisions of the agreement required plaintiff and her husband to notify the defendant agency of any “marital problems.”

In May 1974 plaintiff discovered that her husband had been seeing another woman and that he was desirous of securing a divorce. Plaintiff made known this information to defendant through one of its caseworkers. On August 2, 1974 defendant advised plaintiff that the placement agreement was being terminated and that the child would be removed from plaintiff’s home. Hence this action.

Our present law governing adoption was enacted in 1953 (L. 1953, G. 264) and is embraced in N. J. S. A. 9:3-17 et seq. These statutes provide for two distinct methods of adoption. They provide for separate time periods that the child must be in the home of the adoptive parents prior to instituting suit for adoption (N. J. S. A. 9:3-21), who is qualified to adopt (N. J. S. A. 9:3-22), and the manner in which the adoption shall be secured (N. J. S. A. 9 :3-23 and 24).

N. J. S. A. 9 :3-23, entitled “Action on Complaint,” provides that unless it appears in the action

(1) that the child sought to be adopted has been received into the home of the plaintiff from or with the approval of an approved agency;
(2) that such approved agency has, by written document signed and acknowledged by its authorized officer or representative, consented to the adoption;
(3) that at least one year prior to the institution of the action the custody of the child had been surrendered to such approved agency by each parent or other person having custody of the child, and that by the terms of such surrender the approved agency had been authorized to place the child for adoption; or that an order or judgment had been entered by a court of competent jurisdiction terminating parental rights and transferring custody of the child to such approved agency or granting guardianship of the child to such approved agency; and
(4) that such child has been living continuously in the home of the plaintiff for not less than six months prior to the institution of the action; * * ’;

the court must declare the child to be a ward of the court, appoint an agency to investigate, study and direct plaintiff, assist in the report and fix a date for a preliminary hearing.

N. J. S. A. 9 :3-24, “Preliminary Hearing,” governs the procedure and scope of the hearing. Subsections A and B of that section read as follows:

A. A preliminary hearing, when required by subsection A of section seven, shall be in camera, and shall have for its purpose the determination of: (1) the circumstances under which the child was received into the home of the plaintiff; (2) the status of the parents of the child with respect to further rights as to custody of the child; (3) the potential fitness of the child for adoption; and (4) the potential fitness of the plaintiff to adopt the child and to provide a home suitable for his rearing.
B. If in the course of the preliminary hearing the court shall determine that there is lack of jurisdiction, or that there is lack of qualification on the part of a plaintiff, or that the child is in the custody of an approved agency and s-ach agency has not consented to the adoption, the action shall he dismissed fortlncith. [Emphasis supplied]

Defendant argues that since the ultimate approval of the adoption rests with its consent, notwithstanding that plaintiff: may in all other respects qualify, this court is without jurisdiction to review defendant’s decision to terminate the placement agreement. The question presented appears to be one of first impression. This court rejects defendant’s contention and holds that it has inherent jurisdiction to set aside A decision by the agency to withhold its consent if it should appear that such discretion was exercised in an arbitrary, capricious or unreasonable manner, or where the withholding of consent is not in the best interest of the child. Support for this conclusion can be found in several sources. The most persuasive reasons are the legislative and judicial mandates that matters of adoption be decided in the best interest of the child. N. J. S. A. 9:3-27 provides in paragraph C as follows:

If, from the report and the evidence presented, the court shall be satisfied that the test interests of the child would he promoted hy the adoption, the court shall enter a judgment of adoption. [Emphasis supplied]

This policy was stated by the court in In re P and Wife, 114 N. J. Super. 584 (App. Div. 1971), wherein the court said:

Since the policy which absolutely controls an adoption proceeding is what is in the best interests of the child, a judge should lend every effort to make certain he has all pertinent evidence relating to the parties involved * *■ *. [at 590]

See also N. J. S. A. 9 :23-27 (c); In re Adoption of D, 61 N. J. 89 (1972); In re L’s Adoption, 56 N. J. Super. 46 (Cty.Ct. 1959).

Authority for the court’s position may also be found in 2 C. J. S. Adoption of Persons § 55 at 473, wherein it states:

Despite the statutory authorization granted to public agencies, boards or officials to give or withhold consent, the courts are usually vested with discretion to allow an adoption without the consent of the agency where the court deems that the welfare of the child will be promoted by the adoption, or where the objection or refusal to consent to adoption by the particular board, agency or official is arbitrary or unreasonable. Similarly, the court in adoption proceedings may have power to ¡dispense with the consent ordinarily required of a private custodial or placement agency having control of the child, where it deems such action warranted by the best interests of the child.

Further authority for the court’s position may be found in 2 Am. Jur. 2d § 39 at 891, wherein it is stated:

While it has been held that a court does not have jurisdiction to grant a decree of adoption without the consent of the institution to whose guardianship the child was committed, a petition for adoption may be granted notwithstanding refusal of consent by the state board having control of the child where such consent is unreasonably withheld. In other words, when an approved agency, as the custodial guardian, refuses to file its written consent in an adoption proceeding, the court, after a hearing on the reasonableness of its action, may, in the proper exercise of judicial discretion, enter an order dispensing with the necessity of consent.

In the case of In re Haun, 31 Ohio App. 2d 63, 286 N. E. 2d 478 (1972), the court was called upon to review the issue of agency consent in an adoption case. Ohio’s adoption act, like that of New Jersey, provided that, absent agency consent :

... no final decree or interlocutory order of adoption shall be entered by the Probate Court.

In that ease the foster parents sought to adopt one of the many children that they had taken into their home. Contending that the prospective parents (husband age 68 and wife age 55) were too old, the agency withheld its consent. The agency argued that its consent was a jurisdictional prerequisite and that absent such consent the court had no jurisdiction in the matter. The court rejected the agency’s contention and held:

Pursuing that obligation we conclude that the requirement of agency consent was not intended by the legislature to give an unnatural parent an arbitrary, unreasonable or capricious power to defeat judicial review and, coincidentally, impeded, in a specific case as in this instance, the objectives of securing qualified adoptive parents and promoting the best interests of a child available for adoption. Moreover, we find that refusal of consent even when it is not arbitrary, unreasonable or capricious does not deprive the Probate Division, Common Pleas Court, of jurisdiction. To the degree that it is reasonable, it does add an element for consideration in the probate court’s determination of the qualifications of the adoptive parents and the best interests of the child.

In the case of In re McKenzie, 197 Minn. 234, 266 N. W. 746, 104 A. L. R. 1460 (Snp. Ct. 1936), the court held that the 'withholding of agency approval from persons otherwise qualified, because of difference of religion between plaintiffs and the child, was an abuse of discretion. The court said:

[T]he board, though no doubt endeavoring to act in utmost good faith, is nevertheless doing so in such complete contradiction to the welfare of the child as to make its denial arbitrary and capricious in the eyes of the law as applied in this instance. It may not withhold its consent in that manner, and the trial court is wholly justified in proceeding as if the consent which ought to have been given had been given.

Having disposed of the jurisdictional issue, the court now directs its attention to the question of the agency’s decision to terminate the placement agreement.

The placement agreement executed by these parties provides in part that the adoptive parents have a right to return the child and the agency may remove the child “if it seems in his best interest anytime before the Court Hearing.”

The New Jersey Administrative Code, subchapier 6, § 10:104—6.2, dealing with post-placement supervision, provides in paragraph (e) that:

The removal of the child shall be the decision of the agency and/or the family. The child may be removed only if his security and well being are impaired or his needs are no longer served by adoption placement.

Both the express agreement between the parties and the language of the Code governing the agency adopt “the best interest of the child” as the standard to be employed in determining to remove the child. The court therefore concludes that the agency’s decision to remove the child is subject to the same judicial review as is the agency’s decision to withhold consent to an adoption. The overriding consideration in reviewing the proprietj^ of that decision is the child’s welfare. This criterion must be employed, for it may appear that while the agency acted reasonably, such act may not serve the best interest of the child. See In re Haun, supra.

Based on the foregoing, it is the judgment of this court that plaintiff herein is entitled to a plenary hearing, and the guidelines for the hearing shall be in accordance with the court’s opinion.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH DI LUZIO, DEFENDANT.
    Superior Court of New Jersey Law Division
    August 22, 1974.
    Supplemental Opinion Oct. 7, 1974.

      Messrs. Ralph E. Faasse and John J. Woods, Asst. Prosecutors, for the State (Mr. Joseph D. J. Gourley, Prosecutor of Passaic County, attorney).

      Mr. Stephen B. Glatt, Assistant Deputy Public Defender, for defendant (Mr. S. Richard Schifman, Deputy Public Defender, attorney).
   Martin, R., J. D. C.,

Temporarily Assigned. Defendant Joseph Di Luzio moves to suspend proceedings and to be placed under supervisory treatment pursuant to N. J. S. A. 24:21-27(a) (1). He is charged in Indictment 576-74 with unlawful possession of heroin, contrary to N. J. S. A. 24:21-20. In addition, defendant was charged in the Paterson Municipal Court with unlawful possession of marijuana under 25 grams and with unlawful possession of narcotics implements. All of these alleged violations occurred on January 12, 1974, and arose from the same transaction.

The State presents three arguments in • opposition to the motion to suspend proceedings. It should be noted that since Chapter 21 of Title 24 was enacted in October 1970, N. J. S. A. 24:21-27 has remained largely unconstrued, so the points raised by the State in opposition to the motion to suspend are of initial consideration to the court.

In construing the suspension statute, the court is compelled to give primary regard to the essential purposes for which the particular legislation was enacted. N. J. Builders, Owners & Managers Ass’n v. Blair, 60 N. J. 330, 338 (1972); State v. Madden, 61 N. J. 377 (1972); Seatrain Lines, Inc. v. Medina, 39 N. J. 222 (1963). The words contained in the statute must be given their ordinary and primary meaning in the absence of statutory definition of those words. Fahey v. Jersey City, 52 N. J. 103, 107 (1968); Watt v. Mayor, etc., Franklin, 21 N. J. 274 (1956). An inflexible, mechanical and literal construction would be inappropriate. Construction “must not be unduly narrow or artificial or disregard manifest legislative intention.” State v. Rucker, 46 N. J. Super. 162, 167 (App. Div. 1957), certif. den. 25 N. J. 102 (1957). Eather, the statute must be construed according to the ordinary meaning of its terms in conjunction with the policy and spirit of the law as it is reflected in the events leading to its enactment and the substantive form in which it was enacted.

Initially, the State contends that defendant cannot avail himself of the benefits of the suspension statute since he has a prior narcotics disposition in June 1967 when he received a three-month suspended sentence for the use of narcotics in violation of N. J. S. A. 2A:1.70-8. It is argued that as a result of this prior disposition he cannot be considered a first offender within the meaning of N. J. S. A. 24:21-27. This objection is raised even though the Controlled Dangerous Substance Eegistry reports no prior record of controlled dangerous substance offenses.

N. J. S. A. 24:21-27(a) defines a first offender in the alternative as “any person who has not previously been convicted of any offense under the provisions of this act” or who has not been previously convicted “subsequent to the effective date of this act under any law of the United States, this State, or any other State relating to narcotic drugs * * *.”

While not explicitly so stated in the statute, it is apparent from a reading of N. J. S. A. 24:21-27(a) that the phrase “[conviction] under any law of * * * this State * * * relating to narcotic drugs,” would encompass a prior drug-related disorderly persons conviction and bar an application of the suspension statute.

However, the plain meaning of the language in subsection (a) mandates that first offender status is in part determined by searching out such convictions occurring “subsequent to the effective date of this act,” January 19, 1971. Eor the purpose of evaluating first offender, status, this would exclude from consideration drug-related disorderly persons convictions occurring prior to the effective date of Title 24.

This construction of N. J. S. A. 24:21—27 is buttressed by the statutory treatment of criminal convictions bearing on.the question of first offender status. The consideration of such convictions is limited to adjudications “under this act.” Thus, criminal convictions occurring prior to the enactment of Title 24 cannot be considered in determining first offender status.

Consequently, each alternative portion of the statutory definition of first offender, read individually, and in con-_ junction with each other, reflects an intent on the part of the Legislature to establish the effective date of Title 24 as the chronological determinant in evaluating first offender status.

In establishing this chronological determinant the Legislature is implementing its reassessment of the approach to the addiction and narcotics abuse problem which is embodied in Title 24. The purposes behind granting a suspension of proceedings for certain first offenders charged with the use or possession of narcotics is to insure “that youthful offenders are not saddled with a lifetime arrest record” and to channel such offenders into appropriate treatment and supervisory programs.

While treatment is not the single, absolute answer in curbing drug abuse, an intensive treatment program may be the best hope of combatting the drug problem. The wisdom of a treatment approach was recognized as early as 1964 when the Legislature enacted N. J. S. A. 30:6C-1 et seq., which permits addicts to voluntarily commit themselves for hospital treatment in lieu of incarceration in appropriate cases.

In light of this legislative reassessment and the statutory construction of the language of subsection (a) treated above, defendant’s prior drug-related disorderly persons adjudication cannot be raised by the State since it clearly did not occur “subsequent to the effective date” of Title 24. Therefore, Joseph Di Luzio must be deemed to be a first offender within the meaning of the suspension statute and, in fact, that is his status in the eyes of the Drug Eegistry.

The second objection to suspension raised by the State concerns the charge against defendant of possession of narcotic implements. The State contends that possession of narcotics implements is not a charge encompassed under N. J. S. A. 24:21—20(a) (1), (2) and (3) and (b), and therefore defendant does not properly fall within the offense requirement of the suspension statute.

While it is acknowledged that the narcotics implements charge is not a violation of N. J. S. A. 24:21-20 and that defendant is thus charged with an act not within the specific language of N. J. S. A. 24:21-27, the argument raised by the State on the point cannot prevail, given the intent behind permitting a suspension of proceedings.

Suspension is granted for certain first offenses, that is, for the use or possession of certain controlled dangerous substances. In this case the possession of narcotic implements is a natural consequence of the use of heroin. To permit suspension for the use of heroin by a first offender but to prohibit suspension because defendant is charged with possession of implements to inject that heroin, is an illogical and inconsistent position, given the legislative purpose not to saddle a first offender with a criminal record where obvious rehabilitation potential exists.

The reason that offenses under N. J. S. A. 24:21-20 are specified at all in the statute is to restrict the scope of suspension to cases of use and possession and to differentiate them from charges under N. J. S. A. 24:21-19 which entail the sale and distribution of controlled dangerous substances. The specifications of offenses under N. J. S. A. 24:21-20 cannot be said to be directed against suspension where possession of implements is also charged. Rather, the specification is designed to prohibit suspension where sale or distribution is charged.

Consequently, the second argument of the State opposing suspension must, of necessity, fail.

The final objection to suspension raised by the State is that in an affidavit in support of a search warrant by which the evidence for the instant charges was obtained, a statement was made indicating that a buy was made from defendant by an undercover agent. The State argues that the court should in its discretion deny suspension because under N. J. S. A. 24:21-27(c) (1) this information would render defendant’s continued presence in the community a danger to that community.

Concrete proof of selling or distributing controlled substances in violation of N. J. S. A. 24:21-19 would definitely bar an application of the suspension statute. Even if defendant was not officially charged with a violation of N. J. S. A. 24:21-19, reliable evidence indicating that defendant was a seller of drugs could be considered by the court in the application of its discretionary powers to deny suspension under N. J. S. A. 24:21-27(c). It should be noted that applications for suspension are not to be automatically, mechanically or arbitrarily granted. The Legislature has provided through subsection (c) for the application of judicial discretion which can call into play additional pertinent information concerning the applicant, considerations upon which a grant or denial of the motion can be predicated even if the subsection (a) requirements have been satisfied.

In the matter at hand defendant was never charged with the sale or distribution of narcotic drugs, pursuant to the information in the affidavit. In addition, the affidavit was never produced for the court’s perusal and no proof was adduced by the State at the hearing on this motion of the substantive truth of the contents of the affidavit.

The court cannot deny suspension merely on an unfounded speculative reference to a sale of narcotics. If reliable evidence had been presented indicating that defendant engaged in the sale of narcotics, even though no formal charge was levied, this would have been a proper consideration in determining whether and to what extent defendant would pose a danger to the surrounding community. Since no such evidence was provided this court must deny the State’s objection on this point.

Based upon the above determinations, the court will grant a suspension of proceedings pursuant to N. J. S. A. 24:21-27 and will order defendant to be placed in an appropriate supervisory treatment program. The granting of this suspension is based upon the legal determinations previously made but also on the court’s evaluation of defendant and the likelihood that such a grant would benefit him and not create a danger to the safety and welfare of the community.

Notice of this grant of suspension shall be given to the Controlled Dangerous Substance Registry.

After the issuance of an opinion permitting defendant to enter an order of suspension pursuant to N. J. S. A. 24:21-27(a) (1), the State petitioned the court to reconsider point three of the opinion dealing with the danger raised, by permitting defendant to remain in the community. The petition was granted and the State given an opportunity to present additional evidence. In addition to oral argument the State at that time presented two documents. The first was a copy of an affidavit dated January 12, 1974 by a Detective Michael Pasquale of the Paterson police force which he utilized in petitioning for a search warrant of defendant’s residence. The second is a complaint signed by two Paterson detectives in which they charge that defendant is guilty of “conspiracy to purchase a narcotic” on July 8, 1974.

The first affidavit inidcates and/or charges that there was a heroin sale or sales by defendant from his apartment on January 12, 1974. The troublesome aspect of this proffer of evidential information is that the specific date alleged, January 12, 1974, is the same date alleged in grand jury Indictment No. 576-74, which is the subject matter of defendant’s application for suspension. In that indictment the grand jury does not charge defendant with sale, but rather with possession. The court can validly assume that the grand jury (since the dates of the affidavit and the indictment are similar, i. e., January 12, 1974) did not find requisite proof to indict defendant on a sale. He was indicted only for possession. It is further to be noted that since January 12, 1974, and to and through September 27, 1974, the date that the State re-argued point three of the original opinion, there have been no indictments handed down against defendant concerning sale. If, in fact, the State desires to rely upon the affidavit which was utilized in securing a search warrant for the apartment to show a valid sale of drugs, is it not also valid to have the State indicate why, for nine months, there has been no indictment issued or pending against defendant for “sale”. This large hiatus in point of time takes the edge off the probative effect of the affidavit.

The second document submitted by the State, a complaint made by two Paterson detectives arising out of an incident on July 8, 1974, relates that one Narcie Jones was apprehended with several tinfoil packets of alleged heroin in hand on the street near defendant’s automobile or an automobile operated by defendant. On being apprehended Jones stated “they’re not for me, I was buying the drugs for them,” indicating defendant and his wife. Throughout the argument the court was not made aware of the status of this complaint of July 8, 1974, and only after the hearing on September 27, 1974 did the Court ascertain that the grand jury heard the matter on September 30, 1974 and found “no bill,” thereby refusing to indict defendant. As a result of the grand jury’s action the complaint of July 8, 1974 is without probative value. Failure to indict by the grand jury, in this instance, removes any persuasive effect the complaint may have for a suspension hearing.

At the hearing the State produced no oral testimony, but defendant did place on the stand his social worker, Mr. Higgins, from the Department of Health, Division of Narcotics and Drug Abuse Control. Higgins outlined a program which defendant is presently involved in regarding drugs. He indicated that defendant applied for supervision on December 14, 1973, and was accepted January 28, 1974. The delay in approval was administrative and not due to defendant’s acts. Higgins further testified that since defendant’s acceptance into the program he has had three positive urine samples, indicating the use of drugs or drug-related products. Defendant’s program consists of counseling and methodone maintenance. Significantly, Higgins indicated his belief that defendant can cope with his drug problem; that he is not a drug abuser at the present time; that he is capable of continued employment and is, in fact, employed by a trucking company; and that, in his opinion, defendant is not a danger to the community.

By express statutory language, N. J. S. A. 34:21-27 (c) (1) eliminates from the rolls of prospective applicants for suspension proceedings any defendant whose presence in the community would pose a danger to that community. A defendant, in order to fall within this prohibited category, would have to be shown to possess a demonstrated recidivism and insatiable need for drugs that would lead to society again falling prey to his established criminal pattern. 28 C. J. S. Supp. Drugs & Narcotics § 231.

The court is cognizant of a number of legislative goals in providing a drug offender with a viable alternative to rehabilitation other than incarceration. Among these goals is the protection of the offender, the prevention of contamination of others, and the protection of the public. People v. Jennings, 71 Misc. 2d 798, 336 N. Y. S. 2d 863 (Sup. Ct. 1972).

Considering the additional evidence submitted by the State as outlined in this supplemental opinion, the court finds that defendant is still a candidate for the suspension proceeding outlined in N. J. S. A. 24:21-27 (a) (1).

         N. J. S. A. 24:21-1 footnote as to effective date.

       “Drug Abuse — Problem of the Decade,” Special Message to the Legislature, Governor William Cahill, April 27, 1970.

       N. J. State Law Enforcement Program Assistance Agency, Staff Report: a Desk Book on Drug Abuse, 15 (1969).

       N. J. Legislature, Narcotic Drug Study Commission, Final Report 1967, 7 (1969).

       Approved for publication September 23, 1974.

       Referred to in the original opinion but never physically produced by the State on original argument, although the State contends an offer was made.

       Note this elate preceded the indictment date of January 12, 1974.

       Higgins testified that this is normal for persons in defendant’s program, considering they were drug users.


author: Bedford, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. CHARLES SAUNDERS, DEFENDANT.
    Essex County Court Law Division
    September 27, 1974.

      Mr. Robert A. Baime, attorney for defendant (Mr. Alan Silber, attorney, of counsel and on the brief, argued the motion).

      Mr. David L. Rhoads, Assistant Prosecutor, argued the motion for plaintiff (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Bedford, J. C. C.

Defendant, along with a companion, was indicted for rape, armed robbery and assault with intent to rape. Defendants had picked up the two complaining witnesses at an early morning hour on Springfield Ave-true, Newark, driven to the A & P parking lot on Prelinghuysen Avenue, and engaged in sexual activities. Afterward, having ejected the girls from the car, complaints were lodged with the police by the apparently willing victims. The jury verdict indicated acceptance of the defendant’s version, sketched above, and resulted in an acquittal on all counts of the indictment.

During defendant’s testimony all of the elements of fornication were freely admitted and the court, on its own initiative, charged fornication as a lesser included offense in addition to charges in the indictment. The jury returned a verdict of guilty as to both defendants. Defendant Saunder’s attorney made timely objection to the court’s charge, contending that the fornication statute was unconstitutional under recent decisions of the United States Supreme Court. N. J. S. A. 2A:110-1 reads as follows:

Any person wlio commits fornication is guilty of a misdemeanor, and shall be punished by a fine of not more than $50, or by imprisonment for not more than 6 months, or both.

Poliowing the verdict the court imposed a fine of $50 on defendant; his co-defendant, who had spent seven months in jail awaiting trial on the charges, was sentenced to “time spent.” A motion for judgment of acquittal was filed and the court agreed to a hearing to challenge the constitutionality oí N. J. S. A. 2A: 110-1. Defendant sought the opportunity to introduce testimony in order to meet the objection to a lack of record raised by the court in State v. Clark, 58 N. J. 72 (1971). In that case our Supreme Court declined to declare the fornication statute unconstitutional in the absence of a full record. Testimony was thereafter taken on behalf of defendant Saunders which is summarized in the following paragraphs.

Morton Hunt, a free-lance author who has written several articles on psychology and human sexuality, was the first to testify. PTis latest book, Sexual Behavior in the WTO’s, has recently been published by Playboy Press (Chicago, 1974).

lie testified that since the Kinsey reports (Sexual Behavior in the Human Male (1948); Sexual Behavior in the Human Female (1953) — as reflected in Hunt’s statistics and surveys — there has been a marked increase in “permissiveness with affection” throughout society, and that the attitude of the public has dramatically shifted to tolerance of sexual intercourse between unmarried, consenting adults. He further testified that the largest portion of the population is under 35 years of age, and that premarital intercourse is generally acceptable to them, particularly where there is some affection. He projects that in ten years it will not only be the majority opinion, but the overwhelming opinion. Hunt admitted that his questionnaire did not mention the illegality of fornication, but only asked for attitudes toward it.

Gary Skoloff has been a member of the New Jersey Bar since 1959, specializing in matrimonial law for the last seven years. He testified that in his divorce work he came across many instances of violation of the adultery and fornication statutes, and that these were brought to the attention of the matrimonial judge, either in testimony or in conferences in chambers. He knew of no instance where a judge has remanded a party for prosecution. He admitted that marital matters are bitterly contested and stated that police have tended to discourage filing of such complaints against the spouse.

Dr. Richard Green is a professor of psychiatry specializing in human sexuality. His qualifications in the field are impressive. He testified that sexual tensions, resulting from the proscription of sexual activity, whether moral or legal, result in personality problems traceable to those proscriptions. Guilt feelings and anxiety are created, with residual psychological and sexual problems that are sometimes manifested many years later.

In addition to the oral testimony of Hunt, Skoloff and Green, there was admitted, without objection, and affidavit of Linda R. Blumkin, a member of the bar of New York and admitted to practice in the federal courts. She was awarded the LL.M. degree by Harvard University in June 1973, based on a study involving a questionnaire survey sent to 1177 chief prosecutors, members of the National District Attorney’s Association, with 426 responses. The subject matter of the questionnaire was fornication and cohabitation prosecutions in their respective jurisdictions. The eight New Jersey responses indicated that in the period from 1968 to 1972 there were 16 prosecutions (nationwide: 3241). Her conclusion was that “The New Jersey pattern — with no enforcement by most prosecutors, and some enforcement by others — was typical of prosecutors throughout the United States. Prosecutors who enforce these laws at all tend to do so repeatedly (although with varying frequency from prosecutor to prosecutor).” She further found that enforcement activities were not directed against racial or ethnic groups in proportion to their representation in their general population. Prosecution of males exceeded that of females (New Jersey prosecuted a greater percentage of males than the national average, ten cases involving white couples with two involving black). Prosecutors favored a repeal of these statutes in a ratio of seven to one. Ms. Blumkin concluded that the majority of prosecutors apparently view fornication and cohabitation as crimes which are, in a sense, punishable by marriage. She admitted that it was impossible to secure a random sample in her survey, thus making it impossible, to tell to what extent the respondents are representative of the United States as a whole.

Defendant further submitted the results of a questionnaire addressed to municipal courts and police departments in Essex County. The 14 responding clerks of municipal courts and police departments stated there were no complaints or accusations of fornication filed in the last ten years in their respective towns, leaving eight who did not respond.

A statewide query of prosecutors brought responses from six counties, two of which indicated some complaints or accusations, but no indictments. One indicated it was against the prosecutor’s policy to bring an action against consensual adult acts. The State Division of Criminal Justice’s response stated that that office “has no experience in fornication.”

The court finds that there is still activity by prosecutors, both nationwide and in New Jersey, in pursuing the enforcement' of statutes proscribing certain consensual adult sexual behavior, although the evidence would indicate that it is limited.

While accepting that, medically or psychologically, there is a basic human drive and need for sexual expression, this does not exclude it from the area of legislative control or regulation.

The court accepts the results of Morton Hunt’s questionnaire and his testimony as a valid sampling of attitudes, and the conclusions he draws therefrom. However, the constitutionality of a statute is not to be determined by a Gallup or Harris poll, taken periodically, reflecting a majority or minority view of the legislation.

The main issues raised by defendant in attacking the constitutionality of the statute are: (1) discriminatory enforcement, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U. S. Constitution; (2) the invasion of the right to privacy under the Fourth and Ninth Amendments to the United States Constitution, and (3) violation of the Establishment Clause of the First Amendment to the Constitution.

The New Jersey Supreme Court has recently reviewed the statute in question in two cases, State v. Lutz, 57 N. J. 314 (1971), and State v. Clark, supra.

In Lutz the court rejected the argument based on the right to privacy under the First Amendment, but expressed concern with the problem of uneven enforcement of the statute. The court said:

We, of course, recognize that total enforcement of a criminal code is impossible, particularly with respect to lesser crimes. Nonetheless the problem may be different if a statute is consciously ignored and is invoked only in response to circumstances unrelated to the elements of the proscribed offense. There being no record upon the broader subject of erratic enforcement, we will not pursue it further. In any event, we suggest the offense, if it is to remain, might well be downgraded by statute to a disorderly persons offense [57 N. J. at 315]

While it is true that there have been limited prosecutions for fornication, the very nature of the crime makes enforcement difficult. Most violations of laws regulating sexual conduct are performed furtively, with no witnesses other than the actors, both of whom would be subject to prosecution.

Defendant contends that because of the limited prosecutions for fornication he is deprived of equal protection of the law and due process of law to which he is entitled under the Fourteenth Amendment. In order to show a violation of these constitutional rights defendant must demonstrate and prove the purposeful discriminatory enforcement. State v. Boncelet, 107 N. J. Super. 444 (App. Div. 1969). As the court said in State v. Savoie, 128 N. J. Super. 329, 337 (App. Div. 1974), there must be a showing that “selection was deliberately based on some unjustifiable standard; selectivity by itself absent a showing of invidious and arbitrary classification does not constitute a violation of constitutional equal protection rights.” Oyler v. Boles, 368 U. S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962); Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1943).

The court finds that while there has been limited prosecution for fornication in New Jersey no showing of purposeful discriminatory enforcement has been established.

The other New Jersey Supreme Court case dealing with fornication, State v. Clark, supra, involved the prosecution of a welfare client. Defendant Clark had filed for financial assistance from the Welfare Department of Paterson, and was told that before she could receive benefits she must file a bastardy complaint against Charles Barr, the other defendant, who she claimed was the parent of her children. Bastardy proceedings were instituted aud a hearing was held, at which time it came to the judge’s attention, by admission, that both parties had engaged in sexual intercourse outside the bonds of marriage. The judge directed that a complaint charging fornication be filed against them, which resulted in conviction of both. The convictions were reversed on the grounds of the Fifth Amendment protection against self-incrimination because defendants had not been warned of their rights by the Welfare Department or later by the judge. The court stated:

The approval or disapproval of sexual promiscuity is not involved here. Basically we are concerned with whether needy children should be deprived of public assistance because their mother will not seek it for fear of prosecution for fornication. This means punishment of the children for the immorality of their mother — a result inconsistent with the high purpose of the public welfare program. To inject fear of self-incrimination and to allow it to impede or render impossible accomplishment of the public purpose of caring for destitute children is unwise and socially undesirable [58 N. J. at 92]

The court, in considering the issue of the right of privacy under the United States Constitution, would not pass on that point “in the absence of a factual record.”

Defendant raises the issue of the right to privacy under the Fourth, Ninth and Fourteenth Amendments to the United States Constitution because of the recent pronouncements surrounding this concept by the United States .Supreme Court.

That there exists a constitutional right to privacy can no longer be challenged. Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and authorities cited therein. The right to privacy arises from the prenumbras of the Bill of Rights, especially the Fourth and Ninth Amendments, and has been made applicable to the states by the Fourteenth Amendment to the United States Constitution.

However, this right is not absolute and its parameters are continually being defined. See Meerwarth v. Meerwarth, 128 N. J. Super. 285, 289 (Ch. Div. 1974).

Defendant argues, in light of the recent opinions in Roe v. Wade, supra, and Eisenstadt v. Baird, 405 U. S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), which have expanded the right to privacy from the married individual to the unmarried individual, that New Jersey cases holding the fornication statute constitutional (State v. Lutz, supra, and State v. Clark, supra) should be re-examined.

Defendant argues that the right to privacy inures to every citizen, whether married or single. However this right is circumscribed by the test stated in Roe v. Wade, supra. The right to privacy does not go so far as to give one “an unlimited right to do with one’s body as one pleases” (whether married ot single), but it may be regulated by the State if such regulation is justified by “a compelling state interest.”

In State v. Barr, 130 N. J. Super. 365, 368 (App. Div. 1970), (Barr’s conviction was reversed in State v. Clark, supra, on other grounds previously discussed) the court referred to Justice Goldberg’s concurring opinion in Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), as follows:

A state may significantly encroach on a person’s liberty upon showing a subordinating state interest which is compelling or that the enacted law is necessary to the accomplishment of a permissible state policy. Id. at 497, 85 S. Ct. 1678. It was in this reference that the Justice stated, “The State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication.” [at 498, 85 S. Ct. at 1689; emphasis supplied ].

As set forth in Glark, the State has a proper and continuing interest in preventing the birth of illegitimate children, possible by-products of fornication.

Health is also a legitimate sphere for regulation by the State, which may place limitations on the right to privacy where the individual and general public’s health is involved. See Roe v. Wade, supra, and Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905). There is a rampant problem with venereal disease in our area. See Today’s VD Problem 1074 published by the Amer-i iean Social Health Association, containing nationwide statistics on the prevalence of 'such' diseases. It is also to be noted that the State regulates the right of marriage by compelling a blood’test for venereal disease, and a certificate must show “the applicant [for -a marriage license] either is not infected with syphilis or -is not in a stage of that disease which is likely to become communicable.” N. J. S. A. 37:1-20 et seq.

Defendant also contends “the only basis and purpose for the fornication statute is the establishing of prevailing notions of 'religious morality.” It is true that some of the origins of the statute may be based on religious attitudes prevalent at the time of its adoption in New Jersey (1796). But the existence of those religious motivations do not, per se, make the statute violative of the Establishment Clause. Countervailing weight must be given to current secular purposes.

In order to determine whether the statute (N. J. S. A. 2A:110-1) violates the Eirst Amendment Establishment Clause the two-pronged test as first enunciated in Abington School District v. Schempp, 374 U. S. 203, 222, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963), should be applied. In that case, the school prayers- decision, the test was set forth as follows:' “* * * to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”

Compelling secular purposes, birth of illegitimate children and venereal disease, have been- set forth above in answer to the argument for the right to privacy. The prohibition of' fornication by the State neither advances nor inhibits religion and therefore is not a violation of the Eirst Amendment to the United States Constitution.

The court holds that N. J. S. A. 2A:110-1 is constitutional under the Eirst, Eourth, Ninth and Fourteenth Amendments to the United States Constitution, and leaves it to the Legislature to determine whether the law should be altered, by downgrading as suggested in State v. Lutz, supra, or abolished as suggested by its absence in the Model Penal Code, now pending before it. "* * * [i]t is for that body, not the courts, to change the law if it chooses to subscribe to a more liberal pattern of sex behavior with young females.” State v. Moore, 105 N. J. Super. 567, 571 (App. Div. 1969).

The motion for judgment of acquittal is denied.