author: Sheehan, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. VICTOR LABATO, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, v. HERBERT JOHNSON, DEFENDANT.
    Camden County Court Law Division
    Decided August 11, 1950.
    • Judgment Affirmed May 14, 1951.
    See 80 A. 2d 617.

      Mr. Robert Burk Johnson, Assistant Prosecutor, for the State.

      Mr. Joseph Tomaselli, for the defendants (Messrs. Malandra & Tomaselli, attorneys).
   Sheehan, J. C. C.

The matter of State v. Victor Labato comes before the court on a plea of autrefois convict, entered on behalf of the defendant to an indictment from the grand jury of this county charging him with unlawfully and knowingly having in his possession certain paper slips, documents and memorandum pertaining to the business of lottery policy so-called and otherwise called under the name and style, “numbers.” In addition to the entry' of the common law plea the defendant has also moved to dismiss the indictment, which motion was accompanied by supporting affidavits, the tenor of which was that he had previously been tried in the Camden City Police Court for a violation of the Disorderly Persons Act upon complaint filed in that court. The facts and circumstances alleged in that complaint were identical with those which are the basis for the indictment under consideration.

The State, acknowledging that the facts upon which the indictment is based are the same as those upon which the disorderly conduct charge was made, made no rejoinder to the plea of autrefois convict but submitted an affidavit of the prosecutor of the pleas in which it was stated that he, the prosecutor, upon receiving information that the defendant was to be tried summarily in the Camden City Police Court, made a personal request of the acting judge that the defendant be not thus tried and that the court .entertain a complaint charging a violation of the Crimes Act and that he be held.for disposition thereof by the grand jury of the county. That this is so is conceded by the defendant and hence there is presented for determination on an agreed set of facts the issue of whether or not the defendant is now in double-jeopardy, contrary to the prohibition of the Constitution of 1941.

This provision of the Constitution, Article I, paragraph 11, declares in its pertinent part that “no person shall,, after acquittal, be tried for the same offense,” and is a verbatim repetition of Article I, paragraph 10, of the Constitution of 1844. This identity of language is no mere coincidence, the Legislature having expressly provided, in its submission to the electorate of the call of a constitutional convention, that no charter could be adopted without including the Bill of Bights, which provides the guarantee of those natural and unalienable rights belonging to free and independent men. Therefore, while no interpretation has been put upon this clause since the effective date of the-Constitution of 1947, what has been judicially stated by our appellate courts in interpretation of the clause as it stood in. the Constitution of 1844 remains, if not as controlling authority, at least as a reliable guide for courts of first instance. Thus resort may profitably be made to the case of State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833), a century-old landmark, followed without deviation in this State and cited and acknowledged in virtually every jurisdiction for its lucid exposition of the principle of double jeopardy. While the-constitutional language then took the form, of the Federal Constitution, the substance and meaning has been in no-sense altered or weakened, as witness this observation by the opinion writer, Justice Drake: “(though) the Constitution of New Jersey adopts and declares this important principle * * * * Our courts of justice would have recognized it, and acted upon it, as one of the most valuable principles of the common law, without any constitutional provision. But the framers of our Constitution have thought it worthy of especial notice. And all who are conversant with courts of justice, and the proceedings in them, must be satisfied that this great principle forms one of the strong bulwarks of liberty; and that if it be prostrated, every citizen would become liable, if guilty of an offense, to the unnecessary costs and vexations of repeated prosecutions, and if innocent, not only to those, but to the danger of an erroneous conviction from repeated trials.” There follows an illuminating review of the authoritative English texts and cases up to then treating with this subject and in conclusion the following determination : “I have so far considered the case of a plea of former acquittal; because it depends upon the same principle of that of autrefois convict, and the writers are more full in their notice of it, than of the latter; and it is a general rule that in ■cases where an acquittal upon the first indictment would bar a second', a conviction on the first would have the same effect.”

At this point emphasis must be put upon the fact that the authority upon which the Camden City Police Court .■acted and upon which the present indictment rests emanates from the same source, the Legislature of the State, thus ren■dering inapplicable that line of cases of which United States v. Lanza, 260 U. S. 377 (1922) and Howe v. Treasurer of Plainfield, 37 N. J. L. 145 (Sup. Ct. 1874) are examples in the federal and state jurisdictions respectively, because in each of the instances there considered the subsequent prosecution and punishment was at the hands of an authority or sovereignty separate and distinct in its field from that which had acted antecedently. In the former case it was held that conviction in a state court for violation of a state prohibition law did not justif3r a defense of double jeopardy in a proceeding by the United States against the same defendant for violation of the federal prohibition law. In the latter ease it was held that a summary proceeding for violation of an ordinance of the city of Plainfield forbidding the sale of liquor without a license was not barred because it was also punishable as a misdemeanor. The original support for this doctrine appears in the case of Moore v. People of the State of Illinois, 14 Howard 13 (1852), in which the United States Supreme Court, through Justice Grier, said: "Every citizen of the United States is also a citizen of a State or terriiory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may bo an offense or transgression of the laws of both.”

Tn the Lanzo case, after citing and reaffirming the principle as laid down in Moore v. People of the State of Illinois, Chief Justice Taft discourses upon a practical consideration that demanded recognition because of the ever present necessity for preventing unseemly conflicts between federal and state sovereignties in the following terms: “If Congress sees fit to bar prosecution by the Federal courts for any net when punishment for violation of State prohibition has been imposed it can of course do so by proper legislative provision bur it lias not done so. U a state were to punish the manufacture. transportation and sale of intoxicating liquor by small or nominal fines, the race of offenders to the courts of that state to jilead guilty and secure immunity from Federal prosecution for such acts would not make for respect for the Federal statute or for its defer rent effect. But it is not for us to discuss the wisdom of legislation; * *

Advertence to these cases is made to illustrate that no consideration of mere policy was invoked to justify the seeming harshness of double punishment for a single act or that the principle of double jeopardy was more lightly regarded in offenses that are generally classified as mála prohibila but that it yields only before an equally weighty and supervening principle. So while the argument advanced by the prosecutor that such summary disposition as is contemplated by the Disorderly Persons Act does not admit of the use of the more effective handling of such matters available under the Crimes Act, such as more severe punishment, supervision on parole or probation, makes out a more impressive case on policy, it does not assume the dignity of a principle nor can it be made the basis upon which a constitutional right of the individual citizen may be denied. Proceeding from these necessarily general preliminaries to those cases in which a situation more closely linked in fact to that under review were treated by the courts, it is observed that in 1933 the Legislature first attempted to encompass within the limits of the Disorderly Persons Act such an offense as that with which the defendant is charged. In the Pamphlet Laws of that year, at page 216, a supplement to the act provides as follows: “Any person who shall possess * * * any ticket, tickets, slip, paper or other memoranda or any share or interest in any ticket, tickets, slip or memoranda in any number game * * * shall be deemed and adjudged to be a disorderly person.” Shortly after this enactment the Supreme Court, in the case of Dombrowski v. State, 111 N. J. L. 546 (Sup. Ct. 1933), set aside a conviction in a city police court, holding that the supplement was unconstitutional because it sought to reduce the penalty for participating in a game of chance, as such penalty was prescribed in 1897, at the time of the adoption of the amendment to Art. IV, § VII, par. 2 of the Constitution of 1844, providing that, “nor shall any gambling device, practice or game of chance * * * now prohibited by law * * * * be legalized, or the remedy, penalty or punishment now provided therefor be in any way diminished.” It was there held that “The constitutional requirements respecting offenses against the lottery law may not be relaxed. Arrest and indictment afford just as speedy and effective a method for the suppression of crime, if vigorously pursued, as proceedings under the Disorderly Persons Act. But even if they do not, the remedy is by change in the organic law.” Notwithstanding the fact that this decision was not further reviewed or in anywise distinguished the Legislature again, in 1934, enacted a law amending the Disorderly Persons Act providing as follows: “Any person who shall -have in his possession or custody any lottery slips, books or records pertaining to a lottery or any person who shall have in his possession or have in an automobile in his custody any ticket or tickets, slip or slips, paper, document or memoranda in any way pertaining to the business of a number game, shall be adjudged to be a disorderly person.” Again, upon conviction under this act, it was reviewed in the case of Murzda v. Duch, 178A. 629 (Sup. Ct. 1935). The Supreme Court once more held that such a conviction was null and void and the statute unconstitutional. The court said: “It was settled in Dombrowski v. State, 111 N. J. L. 546, that the 1933 amendment to the Disorderly Persons Act, insofar as it provided that any one who should possess a number game slip should be deemed a disorderly person, was unconstitutional, because a number slip was after all a slip in a lottery game and the legislature was precluded from making that which was a high misdemeanor a mere disorderly act * * *. Since the Constitution precludes the legislature from making any change which will in any way diminish the punishment provided by law, for the suppression of gambling, existing at the time the constitutional amendment was adopted, the prosecuting authorities will be obliged to proceed under the statute and laws which existed in 1897, and may not avail themselves of the provisions of the Disorderly Persons Act as amended in 1933 or 1934.”

At the instance of the State a review was sought in the Court of Errors and Appeals and the holding of the Supreme Court was reversed. The court of last resort, referring to the Crimes Act, said: “Thus the sale and purchase of lottery tickets, as distinguished from the lottery itself, is made the subject of a specific inhibition, while the bare possession of such tickets is not. This is conclusive of an intention and purpose not to incorporate in the fundamental law the statutory provision relating to possession. It makes evident a design not 1o oust the Legislature of authority to deal with the mere possession of slips, papers, and documents pertaining to that form of gaming. * * * And it is to be borne in mind that neither purchase of the ticket, nor the possessor’s intent to sell it, or to participate in a lottery, is an ingredient of the possession made punishable by the statute under consideration, nor its predecessor act of 1895, supra. The possession of such tickets or slips may not be characterized by an intent to put them to an unlawful use. Yet it tends to create both opportunity and temptation to infringe the law against lotteries; and the object of the statute is plainly to strike at the evil in its inception by a measure that is primarily preventive in character. • * * * The amendment was not intended to limit this, legislative function. The statute is therefore constitutional.”

The practical result therefore is that there are two methods by which offenses of this nature may be prosecuted, the first essentially preventive in character, the second essentially punitive, and the election by the State to prosecute under the one excludes a subsequent prosecution under the other. To hold otherwise would be to ascribe to the Legislature a purpose to impose a double penalty for a single offense contrary to the constitutional guarantee which operates no less to prevent invasion by the legislative process than it does to require effective enforcement by the judicial.

The provision of the Crimes Act is contained in R. S. 2:147-3, par. b and reads that: “Any person * * * who shall knowingly have in his possession any paper, document, slip or memorandum that shall pertain in any way to the business of lottery or lottery policy, so-called * * * shall be [deemed] guilty of a high misdemeanor.” It will be noted that the element of knowledge is contained in this offense as distinguished from the Disorderly Persons Act under which possession alone is denounced and thus there is required, in order to justify the plea, a showing that the same facts as would support the finding that the defendant-was guilty of mere possession-would be sufficient also to support a finding that he was guilty of possession with knowledge. On this point the case of State v. Collins, 43 A. 896 (E. & A. 1899) is dispositive. There the Court of Errors and Appeals was called upon to determine that precise point in interpreting the source law of the statute under which the defendant is here indicted. This statute, contained in “A supplement to an * * * Act for the Punishment of Crimes,” L. 1895, p. 593, varied only from the present law in that it denominated the offense a misdemeanor and in every other essential part is identical. In that case the defendant was arrested and, upon being searched, it was discovered that he had in his pocket an envelope containing policy slips. At the trial, after this showing and no more by the State, the defendant testified that he had been given the envelope by one Dick Jones, who asked him if he would take it by ferry to the Glen Island Hotel, for which lie was assured that there would be some money for him. He denied any knowledge of the contents of the envelope and expressed surprise at being arrested. The trial court denied a motion for acquittal on the ground that there was no proof from which the jury could legally infer knowledge on the part of the defendant of the character of the papers found in his possession and, alter conviction by the jury, the defendant appealed on this single allegation of error. The appellate court sustained the conviction, saying that, “The jury had the right to conclude, from all the facts proved in the case that ho knew just what he had in his possession * * *. That the defendant did not know this would be to charge him with entire unconsciousness of his surroundings, and from this evidence it is a necessary conclusion that his defense of the want of knowledge of the character of the papers in his possession was a pretense, or rather an experiment, upon the credulity of the jury.”

In this matter, all that would be required of the State to establish a prima facie case under the Crimes Act would be to show the identical act of the defendant that was the basis for the complaint, conviction and punishment in the police court. To deny the validity of the plea here made would be to sanction the imposition of double punishment upon a defendant who has already been brought before and punished by a court of competent jurisdiction for an offense prescribed by the same authority as that under which this indictment was found, and here, as in the case of State v. Cooper, supra) there is revealed “a ease where the State has thought proper to prosecute the offense in its mildest form, and it is better that the residue of the offense go unpunished, than by sustaining a second indictment to sanction a practice which might be rendered an instrument of oppression to the citizen.”

The indictment is dismissed.

The decision here controls in the case of State v. Herbert Johnson.


source: Caselaw Access Project

author: Lance, J. 0. C.

license: Public Domain

text:
    IN THE MATTER OF THE APPLICATION OF JOHN F. GLADSTONE AND DOUGLAS E. GLADSTONE, TO CORRECT ILLEGAL SENTENCES.
    Morris County Court Law Division
    Decided March 26, 1951.

      fifí'. John I). Collins, Morris County prosecutor, attorney for the Slate.
    flf?-. Bertram M. Berla, attorney for the petitioners.
   Lance, J. 0. C.

John F. Gladstone and Douglas E. Gladstone, herein called the petitioners, are now confined in the New Jersey State Prison at Trenton in Mercer County. They have filed separate applications alleging among other things that their sentences imposed by the Morris County Court were illegal, and requesting the court to correct them. Counsel was subsequently assigned to represent them as indigents. Bolh eases have been argued together as common questions of law appear.

I.

Ttie Fokm oe the Petition

John F. Gladstone has designated his moving papers as an application for a writ of habeas corpus. This petitioner sought a writ of habeas corpus out of the Morris County Court some months ago. His application was dismissed on the ground that the Morris County Court had no jurisdiction to grant a writ of habeas corpus where the prisoner is confined in Mercer County. In re Gladstone, 9 N. J. Super. 508; 75 A. 2d 641 (Cty. Ct. 1950).

A mere reading of labels would compel this court to dismiss the present application for want of jurisdiction. However, one of the matters raised by the petitioner involves the imposition of a sentence alleged to be illegal.

It is not unusual for those incarcerated in penal institutions to file applications which combine in a single petition at least the following three types of matters: complaints as to trial errors, matters determinable by habeas corpus, and requests for the correction of illegal sentence. Our courts have developed different procedures for the granting of relief in these situations. The differences are, however, more than procedural. For example, the passage of time will bar relief for trial errors; not so in habeas corpus proceedings and applications to correct illegal sentences.

Different remedies must frequently be sought in different forums. The Morris County Court cannot act in habeas corpus proceedings where the prisoner was originally sentenced from Morris County but now detained in Mercer County. Nor can the Mercer County Court correct an illegal sentence of the Morris County Court even though the prisoner is now confined in Mercer County.

As confusing as these differences must seem at times to the prisoner, sound reasons exist for the distinctions. However, it is incumbent upon a court in this class of case (where the prisoner himself frequently prepares his application without benefit of counsel) to grant relief if the court has jurisdiction and the allegations of the moving papers are properly supported by proof, even though the application may bear an improper designation.

II.

As to John F. Gladstone

John F. Gladstone was born in 1925. He was committed to the New Jersey Reformatory at Annandale on April 23, 1942, after the entry of a plea of guilty to a charge for carnal abuse. Subsequent to his parole from this institution, he was charged with carrying concealed weapons and was committed for a second time by the Morris County Court to the Mew Jersey Reformatory at Annandale on December 20, 1946, after entry of a guilty pica. It is to be noted that the prisoner1 was sent to Annandale by a direct commitment, rather than being returned to this institution for a violation of parole. On February 21, 1947, lie was transferred from Annandale to the reformatory at Rahway, and on October 28, 1948, he was transferred to the Mew Jersey State Prison at Trenton, where he is now detained.

Petitioner argues that no person can he twice committed to the reformatory at Annandale, and that since his second sentence there was illegal, the transfers to Rahway and the State Prison by the Commissioner of Institutions and Agencies of the State of Mew Jersey were likewise illegal.

Rule 2 :7 — 13 provides that “The court may correct an illegal sentence at any time.” R. S. 30:4-151 provides in part:

“* * * but no person who has been previously convicted of n crime punishable by imprisonment in the state prison, and sentenced to a prison, reformatory or penitentiary may be sentenced to the reformatory at Annandale.”

The crime of carnal abuse was punishable by imprisonment in the State Prison. R. 8. 2 :163 — 1. Petitioner is correct in his claim that his second sentence to Annandale was improper.

In a loose sense, a commitment arising out of trial error is illegal, as is a sentence where the petitioner is successful in habeas corpus proceedings. However, for the purpose of Rule 2 :7 — 13, an illegal sentence bears a limited meaning. In McIntosh v. Pescor, 175 Fed. 2d 95 (6th Cir. 1949) it was said “the illegality referred to is apparently one disclosed by the record, such as a sentence in excess of the statutory provision, or in some other way contrary to the applicable statute.” One type of illegal sentence cognizable by Rule 2:7-13, appeared in State v. Weeks, 5 N. J. Super 505 (1949), where the Somerset County Court declared illegal a sentence on the ground it was of longer duration than the statute permitted. Its action was affirmed in 6 N. J. Super. 395 (App. Div. 1950).

A sentence to a type of institution not permitted by-statute, under the circumstances of the instant case, appears to be a second type of sentence subject to correction under Rule 2:7-13.

The court will entertain an order vacating the second sentence to the reformatory at Annandale. The transfers to Rahway and the State Prison can have no higher standing than the second sentence to Annandale from which they were derived. A new sentence will be imposed, at which time credit will be allowed for such period as petitioner has served on - the second Annandale sentence, including time spent thereafter at Rahway and the State Prison.

III.

As to Douglas E. Gladstone

Douglas E. Gladstone was born in 1934. He was committed to the New Jersey Reformatory at Rahway on April 15, 1943, after the entry of a plea of guilty to a charge of atrocious assault and battery. Subsequent to his release from this institution he was charged with carrying concealed weapons and was committed by the Morris County Court for a second time to the New Jersey Reformatory at Rahway on December 20, 1946, after entry of a non vult plea. On October 28, 1948, he was transferred from Rahway to the New Jersey State Prison where he is now detained.

Petitioner now argues two points. He claims no person can be twice committed to the reformatory at Rahway under the statute, and he attacks the legality of his transfer to the New Jersey State Prison.

In reference to sentences to the New Jersey Reformatory at Rahway, sec. 316 of L. 1918, c. 147 (R. S. 30 :A-147) states:

“Any male person between the ages of sixteen and thirty years, who lias been convicted of a crime punishable by imprisonment in the slate prison, who lias not been previously sentenced to a state prison or a penitentiary in this or any other state, may be committed to the reformatory.”

Petitioner concedes that nothing therein precludes a second commitment to the Eahway institution.

However, the petitioner relies upon the provisions of B. S. 30:4-151:

“Any male between the ages of sixteen and twenty-six years, who has been convicted of a crime punishable by imprisonment in the state prison, who has not previously been sentenced to a state prison, reformatory or a penitentiary in this or any other state, may be committed to the reformatory at Annandale or to the reformatory at Rahway, but no person who has been previously convicted of a crime punishable by imprisonment in the state prison, and sentenced to a prison, reformatory or penitentiary may be sentenced to the reformatory at Annandale.”

It might be possible through a literal reading of the above section, without an investigation as to its sources, to accept prisoner’s position that a second Eahway sentence was illegal. However, the State argues that B. 8. 30 :4-151 was intended to pertain to sentences to Annandale and not to limit the class of persons committed to Eahway. The State’s contention is correct.

B. S. 30:4-151 is classified and arranged under Subdivision C (entitled “Annandale Reformatory”) of Article 12, Chapter 4, Title 30. B. 8. 30 :4 — 141 is, on the other hand, classified under Subdivision B, entitled “New Jersey Reformatory.” However, these classifications cannot he the basis for the conclusion that B. 8. 30 :A-151 does not limit the class of males, in view of B. 8. 1:1 — 5:

“The classification and arrangement of the several sections of the Revised Statutes have been made for the purpose of convenience, reference and orderly arrangement, and therefore no implication or presumption of a legislative construction is to he drawn therefrom.”

Nonetheless, other reasons exist for this conclusion, as an examination of the sources of the section discloses.

The New Jersey Reformatory at Annan dale was established pursuant to legislation enacted in 1929. Sec. 2 of L. ■ 1929, c.TOl, reads:

“Any male person between the ages of sixteen and thirty years, who has been convicted of a crime punishable by imprisonment in the State Prison, who has not previously been sentenced to a State . prison or a penitentiary in this or any other State, may be committed to the said reformatory.”

This provision was amended by sec. 2 of L. 1933, c. 187 by reducing the maximum age to 26 years. The legislation remained in this posture at the time of the adoption of sec. 30:4-151 of the 1937 Revision.

The Revision of 1937 is a wholly independent enactment superseding all preexisting general laws. However, there is a presumption against a legislative intent to effect a change in substance by a revision of the general laws. Murphy v. Zink, 136 N. J. L. 235 (Sup. Ct. 1947), affirmed 136 N. J. L. 635 (E. & A. 1947). It is clear that there was no intention by the Legislature to change the law concerning commitments to Rahway through the adoption of R. S. 30:4-151.

The second sentence to Rahway was not invalid under the first contention advanced by the prisoner. Turning to the second point, was the transfer from Rahway to the State Prison illegal ?

R. S. 30 :4-85 was amended by L. 1948, c. 203 so as to permit inmates of certain correctional institutions for males (including Rahway) to be transferred to the State Prison by order of the Commissioner of the Department of Institutions and Agencies. At the time petitioner was sentenced to Rahwajr, no legislation was yet in existence providing for transfers therefrom to the State Prison. Is the transfer act constitutional ? Did the Legislature intend this statute to be retrospective P Assuming the 'act to be both constitutional in force and retrospective in effect, can the action of the Commissioner be here reviewed ?

This court should not pass upon these questions. Whether these matters fall within the purview of a writ of habeas corpus, proceedings in lieu of prerogative writ or some other proceeding, need not now be determined. These issues have already received consideration in our reported cases. Stagway v. Riker, 84 N. J. L. 201 (Sup. Ct. 1913); In re White, 10 N. J. Super. 600 (Cty. Ct. 1950).

Although the second sentence to Rahway was imposed by the Morris County Court, the petitioner is not presently incarcerated within Morris County and the office of the Commissioner of Institutions and Agencies is situated in Mercer County. The Morris County Court under these circumstances has jurisdiction merely to correct an illegal sentence as defined in JR,ule 2:7-13. WTe find its sentence valid and the petitioner is denied relief.


author: Nattgiitbigiit, J. C. C.

text:
    FRED ITZIKSON, PLAINTIFF, v. WILLIAM SHACKLEFORD, DEFENDANT.
    Essex County Court Law Division
    Decided March 26, 1951.

      Mr. Hyman Halpern {Mr. Henry II. Rubenson, appearing), attorney for plaintiff.

      Mr. Daniel 8. Bell, attorney for defendant.
   Nattgiitbigiit, J. C. C.

This is a motion for summary judgment in an action seeking the possession of land, namely, four rooms in the basement of an apartment house at 333 Eighteenth Avenue, Newark, New Jersey.

The complaint alleges a written agreement entered into between the plaintiff and defendant August 25, 1950, wherein defendant was to be employed at a monthly compensation of $10. The complaint further alleges that as part of the compensation for such employment the defendant was permitted to use the four-room basement apartment (which is the subject matter of this action) at a monthly rate of $65 to be paid by the defendant to the plaintiff.

By the terms of the agreements plaintiff had the right to terminate the employment by giving 15 days’ notice in writing, and by reason of any such termination of employment, defendant’s right to occupy the four-room apartment would cease. Plaintiff gave 15 days’ notice of such termination and upon defendant’s failure to surrender possession of said apartment this action was brought.

The answer admits the execution of the agreement, the termination of the employment, and the service of the notice but alleges the agreement was both a lease and employment agreement and is severable and that while plaintiff had a right to terminate the employment agreement, any attempt to terminate the rental agreement was invalid and in conflict with the rent regulations promulgated under the Housing Act of 1947, as amended. There is no reply filed to the answer.

Unless the agreement is purely one of employment and the occupancy of the apartment was part or all of the compensation for services rendered under such agreement, this action cannot be maintained in this court.

In Long Branch Banking Co. v. Howland, 133 N. J. Eq. 315 (Ch. 1943) it was held that where laws of this State and the practice of this court conflict with the Emergency Price Control Act or with the regulations of the Price Administrator issued pursuant thereto, the former must give way to the latter. Consequently we must look to the provisions of the Housing and Rent Act and the Regulations issued thereunder to determine whether the complaint is property brought.

The regulations of the Office of Housing Expediter (Federal Register of September 17, 1949) defines a “housing accommodation” as “any building, structure or part thereof * * * rented or offered for rent for living or dwelling purposes” * * * and “rent” is defined as “the consideration, including any bonus, benefit, or gratuity demanded or received for or in connection with the use or occupancy of housing accommodations.” (Section 825.1)

The plaintiff was receiving from the defendant for the use or occupancy of the four-room apartment the sum of $65 per month. Negardless of what it was termed in the agreement, the housing regulation is clear that it was rent. Therefore, the apartment was subject to control under the housing regulation since under the regulation “controlled housing accommodations” means “any housing accommodation in any defense-rental area which is not specifically exempted from control or decontrolled under Sections 825.1 to 825.12.”

Accommodations occupied by service employees are exempt from control under certain conditions, namely, “dwelling space occupied by domestic servants, caretakers, managers or other employees to whom the space is provided as part or all of their compensation and who are employed for the purpose of rendering services in connection with the premises of which the dwelling space is a part.” Section 825.1 (b) (ii).

In the case at bar not only was the defendant not receiving the apartment as part or all of his compensation, as required by the regulation, but he was paying $65 a month therefor. Clearly he was not exempt from the protection of the regulation.

This portion of Section 1 (b) (ii) which provides for exemption only if the dwelling space occupied by the employee-tenant is provided “as part or all of his compensation” has been interpreted to mean that “it does not apply where he pays rent and in addition performs services which are paid for merely by a rent reduction.” The dwelling space is not provided as part of the compensation. On the contrary it consists merely of an allowance on the rent. (Office of Price Administration Bent Regulation for Sousing with Official Interpretations, Revised July 1, 1945).

Accordingly the plaintiff’s motion will be denied and the complaint is dismissed.


author: Per Curiam.

text:
    SIDNEY L. BRODY, PLAINTIFF-APPELLANT, v. CITY OF MILLVILLE AND AIRWORK SERVICE DIVISION OF PACIFIC AIRMOTIVE, INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 28, 3972
    Reargued May 1, 1972
    Decided June 29, 1972.

      Before Judges Cootoed, Matthews and Fritz.

      Mr. Anthony D: Buonadonna argued the cause for appellant ( Messrs. Tuso and Grúccio, attorneys).

      Mr. Edward S. Miller argued the cause for respondent (Messrs. Gant & Miller, attorhfeys).
   Per Curiam.

The salient facts, principally derived from a stipulation between the parties, and the rationale underlying the entry of summary judgment for the defendants are to be found in the opinion of the Law Division at 114 N. J. Super. 94 (Law Div. 1971).

It may be seen therefrom that the City of Millville proposes to construct facilities upon lands owned by it and comprising a portion of its municipal airport by means of municipal bond financing. It then proposes to lease this building to a commercial enterprise.

Appellant’s principal contention is that such construction and bond issue (as contrasted with simply leasing the land) is illegal unless the building thus to be erected is for an airport purpose, or perhaps, some other public purpose. We agree. N. J. S. A. 40:8-1; N. J. Const., Art. 8, § 3, par. 2 and 3. We do not disagree with the trial judge that N. J. S. A. 40:60-42 expressly permits a municipality to lease any land or building not presently needed for public use. But to the extent that he believed this statute alone or coupled with the lack of a prohibition in N. J. S. A. 40:8-1 authorized the appropriation of money or pledge of the municipal credit for the erection of a building to be leased to and strictly for the benefit of a private enterprise, we think he erred. It is our view that N. J. S. A. 40 :60-42, when read in pari materia with the constitutional provisions cited, contemplates, with respect to buildings, only existing buildings.

But we also believe that the lessee, in its corporate business which includes in substantial part the repair of aircraft engines, was sufficiently engaged in “airport purposes” that it can easily be said the erection of the building by the municipality and the lease to this corporation comes within the grant of authority of N. J. S. A. 40:8-1. The stipulations expressly detail or obviously suggest that the business of repairing aircraft engines is dependent enough upon the availability of an airport to constitute that business an airport purpose. In the instant matter, one of the businesses serviced by the lessee bases its aircraft at this particular airport. Additionally, the airport facility thus provides, among its other services to the public, a facility for receiving aircraft with emergent problems. More significantly, perhaps, users of the airport have an at-hand repair facility available. This latter capability suggests that such a repair facility is no less an airport purpose than are facilities for fueling and maintaining transient aircraft. While the demand for the latter may be more frequent, the purpose is not more airport associated. Airport purposes are not circumscribed by the embarkation and disembarkation of passengers and freight. They must include as well consideration for facilities requisite to the industry.

Nor does it derogate from our view that not all engines for repair are flown in, or that the lessee is not totally engaged in this endeavor. It is sufficient if some substantial part of its business is dedicated to the statutorily required airport purposes. In this respect it is to be observed in the last fiscal year prior to the stipulation forming a part of this record, 57% of the work of the lessee was derived from aircraft flying into its hanger facility.

With respect to appellant’s contention that the lease should be declared void by reason of inadequate consideration, under the circumstances of this case, we are in accord with the trial judge’s rejection of this argument.

Affirmed.
      Questions of fact and law are sufficiently common to this action and Millville v. Cumberland County Board of Taxation; Vineland v. Millville, Docket No. A—178—71, that final arguments were consolidated, and the parties stipulated that the records in both were to be considered in each.


text:
    ALMA M. BOGDANOVE, AND OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, v. MAYOR AND COUNCIL OF THE BOROUGH OF WALDWICK; ANTHONY SCAFURO; ROBERT RAKERS; WILLIAM: BRANATH; CHARLES M. YOUNG AND FRANCIS X. HERBERT, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 19, 1972
    Decided July 5, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Joel M. Bilis argued the cause for appellants (Messrs. Gross, Demetrakis & Donohue, attorneys).

      Mr. Robert B. Hamer argued the cause for respondent Mayor and Council of the Borough of Waldwick.
   Per Curiam.

Nathaniel Bogdanove, the Republican nominee for mayor in the Borough of Waldwick, died seven days before the general election held on November 2, 1971. At that election his name remained on the ballot and he received 1977 votes while the Democratic candidate received 1758 votes. No other name appeared on the ballot as a candidate for the office of mayor.

The term of office of defendant Anthony Seafuro, who had been elected mayor in 1969, expired on December 31, 1971. He continued to hold over as mayor on the basis that no successor has qualified. Ever since he has exercised the prerogatives of that office.

On December 9, 1971 plaintiff, widow of the deceased nominee, on her own behalf and on behalf of others who cast their votes for him, filed a complaint and secured an order to show cause seeking to enjoin defendant mayor from exercising the office and requiring the council to fill the vacancy in that office pursuant to N. J. S. A. 40:87-11.

Upon the return of the order to show cause, the trial court, with the agreement and .stipulation of all counsel, proceeded as if the matter was before it on cross-motion for summary judgment. Eollowing hearing, a judgment was entered, adjudicating that defendant Seafuro continued to hold office as mayor until his successor shall have qualified, and further, that no vacancy exists in the office of mayor pursuant to N. J. S. A. 40:87—11. Plaintiffs appeal.

It cannot he disputed that the death of Nathaniel Bogdanove, just seven days before the November 1971 general election and his receipt of the high vote at that election, created a vacancy in the office of mayor. Kilmurray v. Gilfert, 10 N. J. 435, 439 (1952); Petition of Keogh-Dwyer, 106 N. J. Super. 567 (Law Div. 1969), aff’d (substantially for the reasons given by the trial court) 54 N. J. 523 (1969). However, the pertinent question to be resolved is whether that vacancy is to be filled by the borough council in accordance with N. J. S. A. 40:87—11 or whether it should be filled at the November 1972 general election as provided in N. J. S. A. 19:3-29. We find no specific statutory assistance in the resolution of this issue.

The trial court found N. J. S. A. 40:87—11 inapplicable, holding that this statute “only applies to Mayors and Councilmen who have qualified and hold office.” We agree, particularly since the first section thereof solely treats with a vacancy created by the resignation of the mayor, and the pertinent next section commences with the words “A vacancy occurring in the office of mayor, whether by resignation or otherwise * * *."

Although N. J. S. A. 19:3-25, which was enacted as a part of N. J. S. A. 19:3-29 (L. 1930, c. 187), does not specifically deal with the death of a nominee, it does in its definition of “what constitutes a vacancy” include situations where, for the reasons stated therein, the office involved is never actually occupied by the individual involved. Therefore, we hold that the instant vacancy should he filled at the November 1972 general election pursuant to N. J. S. A. 19:3-29.

In the interim, as also determined by the trial court, defendant Scafuro, by virtue of N. J. S. A. 40:87-9, shall continue to hold the office of mayor until his successor is elected as above stated and qualifies.

Although the issue of when the person so elected mayor may qualify and take office was mentioned by counsel, it was not fully pursued. Consequently, the trial court made no determination thereof. However, this issue was presented at oral argument and we were informed that candidates have been nominated by the two major political parties to run for the office of mayor in the November 1972 elections. Since we felt that the resolution of this issue is necessary for a prompt complete determination of the problem herein involved, we directed counsel to file letter memorandums thereon.

Generally, a borough officer, elected at the general election, does not take office until the following January. See N. J. S. A. 40 :87-8. Thus, the term of his predecessor ordinarily would not expire until that time. However, as noted above, that is not the existing situation. Eurther, the term of the mayor-elect will be shortened by the holding over by defendant Scafuro. Gillson v. Hefferman, 40 N. J. 367, 376 (1963). Under these circumstances, we conclude that the person so elected mayor at the November 1972 general election, shall qualify and take office on the Monday following the election.

Affirmed as modified.


text:
    TRAP ROCK INDUSTRIES, INC.; STA-SEAL; M. J. STAVOLA MANUFACTURING; M. J. STAVOLA INDUSTRIES, INC., APPELLANTS, v. JOHN C. KOHL, NEW JERSEY COMMISSIONER OF TRANSPORTATION, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 1, 1972
    Decided July 5, 1972.

      Before Judges Coheobd, Matthews and Ebitz.

      Mr. Justin P. Walder argued the cause for appellants (Messrs. 8chapira, Steiner & Walder, attorneys; Mr. Jeffrey Barton (John, on the brief).

      Mr. Alfred L. NardelU, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., attorney General, attorney; Mr. Stephen Skillman, Deputy Attorney General, of counsel.)

      Messrs. Hughes, McElroy, .Connell, Foley & Geiser submitted amicus curiae brief for New Jersey Heavy, Highway and Construction Industry Advancement Fund (Mr. Theodore W. Geiser, of counsel and on the brief).
   Per Curiam.

Appellants appeal from a final determination and order .entered by the Commissioner of Transportation on March 16, 1973. The order debarred appellants from performing any work for the Department of Transportation for a period of five years and from various activity with respect to certain county and municipal projects.

The relevant factual and legal background for this appeal is found in the opinion, Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471 (1971), cert. den. 405 U. S. 1065, 93 S. Ct. 1500, 31 L. Ed. 2d 796 (April 17, 1972), holding that the Commissioner of Transportation could bar a corporation owned and controlled by one indicted for bribery from contracting with the State.

On November 22, 1971 Michael J. Stavola (Stavola) the subject of the Trap Bock case, above, was found guilty of bribery and' obstructing justice after a jury trial, and on January 21, 1972 he was sentenced to a prison term of not less than one nor more than two years.

Following sentencing the Commissioner of Transportation '(Commissioner) conducted a hearing "to gather information regarding the State’s ongoing business relations with Michael J. Stavola and any business entity with which he is associated.” The hearing was held on February 15, 1972.

Testimony adduced at the hearing confirmed the fact of Stavóla’s conviction and sentencing. It further established that Stavola was the sole owner of .Sta-Seal, M. J. Stavola Manufacturing, and M. J. Stavola Industries, Inc. It was also disclosed that Stavola owns 80% of the capital stock of Trap Rock Industries, Inc., and that he is that corporation’s president and chief executive officer. Testimony adduced on behalf of Stavola tended to establish that he had very little if anything to do with the day-to-day operation of the corporations mentioned.

After the hearing the Commissioner made certain findings and reached certain conclusions which led to the debarment order. Among the findings made was that Stavola is without the requisite moral integrity to be a responsible bidder on state contracts; that since Stavola was the principal owner of all of the corporations, and since a corporation has no moral character of its own, the corporations axe also regarded to be without the requisite moral integrity to deal with the State. Finally, the Commissioner concluded that there is no logical difference between a situation where one is a direct contractor and one where he is a material supplier to the State.

On March 16, 1972 the Commissioner entered an order debarring Michael J. Stavola and the named appellants “from bidding on any contract with the Department of Transportation or any contract with county or municipal bodies which utilize or propose to utilize State funds, subcontracting on such contracts, or providing materials for such contracts, for a period of five years to run from May 7, 1971, * * *."

Appellants have raised several arguments on this appeal which they contend require us to reverse and vacate the Commissioner’s determination and order, with respect to debarment from Department of Transportation contracts. In our view, it is unnecessary for us to review the arguments advanced since we believe that all of them have been answered directly or by clear implication adversely to appellant, by the opinion of the Supreme Court in Trap Rock Industries, Inc. v. Kohl, above. In addition, we find ample support for that portion of the debarment order which bars Stavola or the appellants from supplying materials to contractors performing state contracts under the provisions of Title 27 of the Revised Statutes and the regulations promulgated by the Commissioner pursuant thereto. In short, the Commissioner unquestionably has the power to approve the source of materials that are to be used by a contractor in the performance of state work. The withholding of approval of a source of supply by the Commissioner because of the lack of moral integrity on the part of the proposed supplier is within the rationale of the Supreme Court opinion in Trap Rock Industries, Inc. v. Kohl, above.

We fail, however, to find a source of power in the Commissioner to prevent Stavola or the appellants from participating in municipal or county work, whether by contracting, subcontracting or supplying materials. There is no such authority to be found within the provisions of Title 27 or the regulations promulgated by the Commissioner pursuant to that title. The scope of the opinion in Trap Rock Industries, Inc. v. Kohl, above, does not extend to this question.

The determination and order of the Commissioner of Transportation is reversed insofar as it debars appellants from participating in municipal and county work. Except to that extent the determination and order of the Commissioner is affirmed.


author: Feitz, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BOBBY LEE GRIFFIN, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. NATHANIEL GRIFFIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 30, 1972
    Decided July 5, 1972.

      Before Judges Cojsteokd, Matthews, and Feitz.

      Mr. Arthur Penn, First Assistant Deputy Public Defender, argued the cause for appellants (Ms. Rita L. Bender, Assistant Deputy Public Defender, of counsel and on the brief j Mr. Stanley G. Van Ness; Public Defender, attorney).

      Mr. John J. Hughes, Assistant Prosecutor, argued the cause for respondent (Mr. Geofrey Gaullcin, Hudson County Prosecutor, attorney).
   The opinion of the court was delivered by

Feitz, J. A. D.

Defendants, convicted by a jury of murder in the second degree, are brothers. The death involved resulted from a fight which had its genesis earlier in the day and culminated in a shooting spree in front of a tavern in the evening. Defendant Bobby Lee Griffin does not deny having shot the decedent. He asserts that his action was in his defense and in defense of defendant Nathaniel Griffin. Nor is the State’s theory of Nathaniel’s guilt predicated upon Nathaniel having fired the fatal shot. Rather he is charged with acting in concert with his brother, with having aided and abetted him. The trial judge instructed the jury as to the possibility of verdicts of murder in the first or second degree or not guilty as to both. Additionally he defined manslaughter and instructed the jury of the availability of this verdict for Bobby Lee but not for Nathaniel.

• Bobby Lee took the stand' in his own behalf and testified that he had acted in self-defense and' in defense of his brother. Over his timely objection, the State was permitted to ask him, “Now, did you ever tell the police that your shooting of [the victim] was either in -self-defense or in defense of your brother ?” The response was in the negative. At least twice (in summation the prosecutor commented- upon the adverse inferences which, he suggested, should be drawn with respect to the unlikelihood of the veracity of such a defense under these circumstances.

The only evidence in the case with respect to events contemporaneous with and immediately subsequent to Bobby Lee’s arrest was adduced from his testimony—uncontroverted in this respect—and the police statement prepared at the time. Prom this evidence it appears clearly that meaningful communication between Bobby Lee and the police, beyond his being informed he was under arrest when he was apprehended, commenced when the police sought a statement from Bobby Lee. This effort began with the police telling him he had been arrested for murder, and without pause thereafter advising him of his right to remain silent, presumably in conformity with the mandate of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

It is here urged by both defendants that reference at trial to an accused’s silence subsequent to Miranda warnings while in police custody effectively demolishes the protection assured by the Pifth Amendment to the United States Constitution. We agree. To sanction such procedure would be to convert the Miranda warnings from an instrument of individual protection to a device enabling the State to compel the accused to stand mute for all time. It seems anomalous that we should offer the individual his constitutional right, knowing that if he heeds the warnings, he is forever burdened with his silence. Cf. Johnson v. United States, 318 U. S. 189, 63 S. Ct. 549, 87 L. Ed. 704 (1943), reh. den. 318 U. 8. 801, 63 S. Ct. 826, 87 L. Ed. 1164 (1943).

We hold that the silence of an accused subsequent to advice that he has a constitutional right to remain silent may not be the subject of inquiry if he later chooses to testify and offer an exculpatory defense.

This was the precise holding of United States v. Nolan, 416 F. 2d 588 (10 Cir. 1969), cert. den. Nolan v. United States District Court, 396 U. S. 913, 90 S. Ct. 227, 24 L. Ed. 2d 187 (1969), and we have found no contrary holding on the facts here presented. While the federal circuits are not in agreement among themselves as to the permissibility of evidence of prior silence to attack the credibility of exculpatory trial testimony, it is to be observed that in none which permitted the trial inquiry did it appear that the defendant’s silence was preceded by Miranda warnings. Agreement with the principles we here recognize and implement may be found in United States v. Brinson, 411 F. 2d 1057 (6 Cir. 1969); Fowle v. United States, 410 F. 2d 48 (9 Cir. 1969); United States v. Semensohn, 421 F. 2d 1206 (2 Cir. 1970); Fagundes v. United States, 340 F. 2d 673 (1 Cir. 1965). Contra: United States v. White, 377 F. 2d 908 (4 Cir. 1967), cert. den. 389 U. S. 884, 88 S. Ct. 143, 19 L. Ed. 2d 180 (1967) (based in part on “invited error”); United States v. Ramirez, 441 F. 2d 950 (5 Cir. 1971), cert. den. 404 U. S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971), reh. den. 404 U. S. 987, 93 S. Ct. 445, 30 L. Ed. 2d 371 (1971) (relying on Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); see infra); Sharp v. United States, 410 F. 2d 969 (5 Cir. 1969) (relying on Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926); see infra. A vigorous dissent accords with our reasoning here.).

We believe that substantial and important factual differences serve to distinguish Raffel, supra, and Grunewald v. United States, 353 U. S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957) from the instant matter. In neither of those cases were the defendants invited to remain silent by Miranda-type warnings, although it may not be without significance that Raffel (whose conviction was affirmed) asserted that his silence (in an earlier trial) was produced by the strategic decision that the prosecution had not adduced enough proof to convict him, and in Grünewald (where there was a reversal of the conviction) the prior silence (before a grand jury) was in reliance on Eifth Amendment rights. We observe as well that each of these cases preceded both Miranda and Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), reh. den. 381 U. S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965).

Our determination is soundly predicated additionally on fair play considerations, and accordingly has due process overtones. It is notable that our Supreme Court has held even when an accused is well warned on custodial interrogation of the possibility that his silence may work to his detriment, should he still expressly refuse to answer, “* * * no inference can he drawn against him under the doctrine of acquiescence by silence or any other concept.” State v. Ripa, 45 N. J. 199, 204 (1965).

Such a conclusion also seems mandated by Miranda where it is said:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. [384 U. S. 468, fn. 37, 86 S. Ct. 1825; citations omitted]

Abridgement of constitutional rights by the imposition of a penalty for their exercise was condemned in Griffin v. California, supra. The observation there (at 614, 85 S. Ct. at 1233) that such a penalty “cuts down on the privilege by making its assertion costly,” is appropriate here.

The State argues that the determination we project is contrary to State v. Burt, 107 N. J. Super. 390 (App. Div. 1969), aff'd o. b. 59 N. J. 156 (1971), cert. den. 404 U. S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972). We believe Burt to be distinguishable if for no other reason than that defendant there was at no time advised of his right to remain silent. As Justice Hall observes in his opinion concurring in part and dissenting in part:

It is to be noted that nowhere in the case was any evidence introduced that defendant had been interrogated by the police at any time about Shorty’s death or that he had made any inculpatory or exculpatory statements, had stood mute or claimed his privilege against self-incrimination. [59 N. J. 157, at 163]

That Burt might reasonably be distinguished in the appropriate case seems emphatically suggested in that opinion which characterizes and details the “bizarre aspects” of the proofs in that case. The instant ease may well demonstrate a circumstance foreseen by Justice Hall which caused him to opine that the conclusion of the Appellate Division in Burt “may be too broadly expressed.”

Here the prosecutor offered the question as designed not to produce substantive evidence of guilt, but to impeach defendant’s credibility. The State adopts that position in its brief on this appeal, and in fact, argues:

Although silence upon invocation of the privilege [against self-incrimination] may not be utilized to infer guilt, it may be utilized upon cross-examination to impeach testimony of a witness where it will in faot so impeach. [Emphasis in brief]

Later the State expressly urges:

The true pivot upon which the propriety of the impeachment must turn is not whether such would be barred by a privilege to remain silent but rather whether that prior conduct was inconsistent.

While we are not so quick as the State to discard or disregard a disqualification predicated upon a constitutional right, we agree that inconsistency is the criterion to be satisfied for the admission of such impeaching evidence, providing there is no constitutional impediment to its admission. See and contrast Raffel and Grunewald, supra.

We believe that silence alone, after Miranda warnings, cannot be said to be inconsistent with a trial assertion of self-defense. To justify the admission of evidence of silence as inconsistent conduct after defendant had been expressly told this was his privilege would be totally illogical. As was said in State v. Ripa, supra, “In that setting [custody], the right of a suspect to remain silent is a conspicuous and liltely explanation of his silence.” (45 N. J. at 203.) There thus appearing no inconsistency the question should not have been permitted, irrespective of constitutional considerations. Grunewald v. United States, supra; State v. Boscia, 93 N. J. Super. 586, 600-601 (App. Div. 1967); cf. State v. Ripa, supra.

This thesis also distinguishes the present case from Burt. There the Appellate Division said:

* * * Defendant’s failure to tell anybody at the time that the shooting of Owens was accidental was relevant to the issue of the credibility of his courtroom testimony * * *. [107 N. J. Super. at 393]

We do not think it can be said that an accused’s silence, after being advised that he may remain silent without concern (which is the Fifth Amendment right) has any tendency in reason to prove that when he does later speak to assert self-defense, he is lying.

Nor does Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), or State v. Kimbrough, 109 N. J. Super. 57 (App. Div. 1970), suggest to the contrary. These cases concerned prior statements unquestionably inconsistent, in part at least, with that which the defendants later related. Here, as noted above, neither inconsistent prior statements nor inconsistent prior conduct is involved.

The challenged inquiry offended constitutional principles and was irrelevant under the circumstances. We cannot say that beyond a reasonable doubt it did not have the potential for substantial and unwarranted prejudice. Its allowance over objection requires reversal of the conviction not only of Bobby Lee but of Nathaniel as well, since his culpability was so inescapably involved, factually and legalty, with the innocence or guilt of his brother.

Since the actions must be retried, we also observe that in the somewhat extraordinary factual complex of the circumstances here, a jury verdict of guilty of manslaughter by both defendants could not have been held to be improper (without regard to the propriety of respective verdicts in different degrees). This being so, Nathaniel is entitled to a manslaughter charge.

In view of the reversals we need not decide whether other alleged errors, asserted on the basis of objection below or plain error as the case may be, were of a nature and quality to require reversal. We express our views for whatever assistance may thus be given court and counsel on the retrial.

The necessity for expert testimony to enhance the knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the usual lay sphere, and the qualification of the proffered expert, ordinarily are matters resting within the sound discretion of the trial judge.

With respect to the charge on flight, we agree with the State that the purported omission which is here questioned was implicit in the charge. Needless to say, its explicit inclusion would have been better.

We are certain defendant Bobby Lee Griffin will not neglect at the retrial to request an instruction limiting the purpose of the testimony of defendant’s prior conviction, and we are equally certain that on request such a charge will be given. We need not further consider whether its omission constituted plain error here.

Conviction in each ease is reversed. The matters are remanded for a new trial.

      A prior trial had resulted in a mistrial after failure of the jury to agree. Bobby Lee also testified at the first trial, and while it is not precisely so stated here, it is adequately apparent that .he there offered the same defense. It does not aj>pear that the substantial question raised here was there raised or considered. '

      On May 8, 1972, Judge Kitchen of the United States District Court for the District of New Jersey granted Burt’s application for a writ of habeas corpus on the ground that “the prosecutor’s use of petitioner’s silence violated his Fifth Amendment rights.”


text:
    STATE OF NEW JERSEY, BY GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. ELIZABETH T. SCHAEDEL, ADMINISTRATRIX OF THE ESTATE OF STEPHEN BIHARY, DECEASED, DEFENDANT, AND MOZESH BIGARI, ET AL., DEFENDANTS-APPELLANTS AND CROSS-CLAIMANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1972
    Decided July 7, 1972.

      Before Judges Collestek, Mintz and Lynch.

      Mr. Jesse Moshowitz argued the cause for appellants and cross-claimants (Mr. Louis 8erterides on the brief).

      Mr. Robert W. Dempsey, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of the State of New Jersey, attorney).
   Per Curiam.

This is an appeal by the next of kin of Stephen Bihary, deceased, from a judgment of the Chancery Division which held that $2,176.48, comprising the sole assets of the estate of Stephen Bihary, has escheated to the State. The next of kin are Mozesh Bigari and Ferentz Bigari, brothers of the decedent, Rozalia Varga, sister of the decedent, Elisaveta Bigari, the widow of Andrash Bigari, a brother who predeceased the decedent, and Berta Bigari and Olga Varga, daughters of Andrash Bigari. They reside in the Ukrainian Soviet Socialist Republic and were represented in the action by their attorney-in-fact.

Stephen Bihary came to the United States from the Ukraine in 1907. He died intestate without issue, a resident of Essex County on March 1, 1958, and an administrator, and later a substituted administratrix, was appointed for his estate. Decedent’s estate was claimed by the above named next of kin and their claims were opposed by the Escheat Division of the State of New Jersey. The County Court, Probate Division, refused to order distribution of the fund because of lack of proof that the claimants were the sole surviving next of kin, and ordered that the funds be deposited in court pursuant to N. J. S. A. 3A:25-10.

The action, which is the subject of this appeal, was brought by a complaint filed by the State of New Jersey through the Attorney General, pursuant to N. J. S. A. 2A:37—11 et seq., demanding judgment that the assets escheat to the State. The next of kin filed an answer and cross-claim asserting they were entitled to the assets and that the complaint should be dismissed.

On July 31, 1970 an order was entered directing that letters rogatory issue to the appropriate judicial authority in the U. S. S. R. to examine the next of kin on written interrogatories propounded by their attorney and cross-interrogatories by the attorney general, i?,. R. 4:18-3, now R. 4:12-3. The letters rogatory issued on September 14, 1970. The case came on for a hearing on January 6, 1971 at which time claimants’ attorney requested an adjournment because the letters rogatory had not yet been returned. The trial judge, citing numerous delays in the prosecution of the action and the State’s opposition, denied the request.

At the hearing claimants introduced in evidence exemplified copies of the birth certificates and other relevant documents establishing that they were the next of kin of the decedent. Claimants also offered in evidence a Russian document entitled “Act of Witnesses’ Testimony,” dated July 12, 1965, wherein Janosh Sabov and Pavel Bigari, residents of the village of Blazhievo, Beregovskiy District, who were not related to the decedent’s family and had no interest in the estate, deposed that they knew the decedent’s family for many years and set forth facts establishing that claimants were decedent’s sole next of kin. The trial judge ruled the document was inadmissible as hearsay because there was no proof that the deponents were so intimately associated with the decedent’s family as to be likely to have accurate information concerning the matter, citing Evidence Buie 63(24).

At the conclusion of the hearing the trial judge found as a fact that the claimants were the next of kin of the decedent. However, he held that because of their failure to establish that they were all of the next of kin they were not entitled to distribution of the estate. He ruled that the estate assets escheated to the State.

On appeal claimants contend: (1) the court erred in ordering the escheat of the fund in view of its finding that claimants are decedent’s next of kin; (2) the “Act of Witnesses’ Testimony” was admissible to prove their family relationship with decedent, and (3) the court abused its discretion in failing to grant their application for adjournment pending receipt of answers to the letters rogatory.

We conclude that the court erred in ruling that the fund escheated to the State because there was insufficient proof that the claimants were all of the decedent’s next of kin. The statute, N. J. S. A. 2A:37-12, provides that if a person who owns personal property within this State dies intestate, without heirs or known kindred capable of inheriting the same, the personal property shall escheat to the State. It is to be noted that the statute does not require that the next of kin be all of the next of kin of decedent.

[2—5] We are concerned here with the right of the State to take the fund by escheat. There is no escheat unless there are no next of kin. In re Kelly’s Estate, 190 Misc. 250, 72 N. Y. S. 2d 897, 900 (Surr. Ct. 1947). The escheat statute works a forfeiture and therefore must be strictly construed. It is a well settled principle that escheat and forfeiture are not favored by the law, and any doubt as to whether property is subject to escheat is resolved against the State. State v. U. S. Steel Corp., 12 N. J. 38, 47 (1953); Kutner Buick, Inc. v. Strelecki, 111 N. J. Super. 89, 96 (Ch. Div. 1970). A distinction exists between distribution and escheat; an escheat is not technically a part of distribution and indeed has no application to property until distribution becomes impossible.

It is clear that claimants are next of kin of the decedent and are capable of inheriting the property. If there is a question of their rights to distribution because there may be other next of kin who are unknown, that could be resolved by barring the claims of such unknowns pursuant to N. J. S. A. 3A:25-6 and 7.

We need not pass upon the question of admissibility of the document, “Act of Witnesses’ Testimony.” Since the appeal was taken the letters rogatory ordered by the court have been returned, containing answers given by Eerentz Bigari (Eerents Bihari) and Mozesh Bigari (Bihari) before the Ministry of Justice, D. S. S. R. The answers indicate that the claimants are the sole next of kin of the decedent.

While we understand the frustration of the trial judge because of the delay in prosecution of this action which he described as “both advertent and inadvertent,” we conclude that the fair administration of justice requires a consideration of the answers in the letters rogatory by the trial judge. Claimants should not be denied their just rights to the fund because of procedural delays through diplomatic channels over which they had no control.

Accordingly, the judgment is reversed and the case remanded to the trial court to reconsider the action taken in light of the evidence contained in the letters rogatory. We do not retain jurisdiction.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANGELO MALASPINA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 30, 1972
    Decided July 7, 1972.

      Before Judges Conford, Matthews and Fritz.

      Mr. Sanford Schneider argued the cause for appellant (Messrs. Be Rose, Serratelli & Schneider, attorneys; Mr. Ralph O. Be Rose, of counsel).

      Mr. Bavid Noah Bubrow, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

Defendant was indicted by an Essex County grand jury under several indictments for violations of the gambling laws. Under Indictment 2213-69 he was charged with possession of lottery memoranda (N. J. S. A. 2A:121-3), and with working for a lottery (N. J. S. A. 2A:121-3, subd. a). Under Indictment 2212-69 he was charged with bookmaking (N. J. S. A. 2A:112-3). Under Indictment 2205-69 he was charged with conspiracy to violate the lottery laws (N. J. S. A. 2A:98-1). He was found guilty of all charges after a jury trial and was sentenced to concurrent 2 to 2j54-year terms in State Prison, Trenton, and fined $5,000.

The principal argument raised on appeal is that the trial judge’s instructions to the jury with respect to the charge of conspiracy were erroneous because the trial judge told the jury that it could find a conspiracy if the jurors found that the State had proven an overt act which was not specified in the indictment. The question presented is raised as plain error since no objection was taken below. The specific language objected to is as follows:

Stated in another way, once an agreement among alleged conspirators is proven then any declaration, statement or act specified in the indictment as an overt act, or any other overt act established by the evidence, done in the execution of the conspiracy by one or more of the conspirators is considered under the law to be the act or declaration of all of the conspirators. [Emphasis added]

At common law no overt act had to be shown to establish the crime of conspiracy. The common law still obtains in this State as to the common law felonies but not as to other crimes. N. J. S. A. 2A:98-2. As to crimes other than the common law felonies, the statute mentioned requires that “no person shall be convicted and punished for conspiracy unless some act be done to effect the object thereof by 1 or more of the parties thereto.”

There are two views as to whether the overt act required to be proven under statutes similar to N. J. S. A. 2A:98-2 represents a substantive element of the crime or is merely an evidential requirement. The two sides to this question are clearly set forth in Hyde v. United States, 225 U. S. 347, 32 S. Ct. 193, 56 L. Ed. 1114 (1912). In Hyde the majority determined that the overt act required was a part of the conspiracy. The dissenters, in an opinion by Mr. Justice Holmes, urged that the overt act was merely a matter of evidence needed for conviction.

In our State the holding of our former Court of Errors and Appeals in State v. Gregory, 93 N. J. L. 205, 208 (1919), indicates that this jurisdiction adopts or at least leans toward the substantive view. In Gregory defendants eonspired to extort $25,000 from an individual to insulate him from prosecution for adultery. The conspirator who collected the money informed his co-conspirators that the amount extorted from the individual was $20,000, and the money was divided on that basis. Some time later, the co-conspirators found out that the true amount extorted was $25,000 and demanded their share of the additional $5,000. The division was subsequently accomplished. The Court held that the statute of limitations with respect to the crime involved was to be computed from the date of the last of the successful overt acts of which there is appropriate allegation and proof, “and this although some of the earlier acts may have occurred more than three years before the indictment was found.” See also State v. Taylor, 92 N. J. L. 135 (Sup. Ct. 1918), reversed on other grounds, 93 N. J. L. 159 (E. & A. 1919).

We conclude that our law presently requires that the State must prove at least one of the overt acts alleged in the indictment and that a conviction for conspiracy cannot be had on proof of an overt act not so alleged. Accordingly, the portion of the trial judge’s charge complained of was erroneous. We are satisfied beyond a reasonable doubt, however, that the error was not sufficiently prejudicial to defendant to warrant invoking the plain error rule. One of the overt acts set forth in the conspiracy indictment alleged that defendant had in his possession certain slips and memoranda pertaining to the business of lottery on or about February 17, 1970. Defendant was also charged under the first count of Indictment 2213-69 with the possession of these same memoranda. Unquestionably the State proved this overt act to the satisfaction of the jurors beyond a reasonable doubt since, as noted, defendant was convicted of possession of lottery memoranda. It is apparent that defendant’s conviction under the conspiracy indictment was based at least in part on a proven overt act set forth in the indictment.

Defendant also argues that the trial judge erred in permitting the prosecutor to present evidence related to another pending case which involved another criminal charge against defendant. The testimony in question came into the case during the course of the State’s attempt to prove that one of the voices on a tape recorded telephone call was that of defendant. Defendant denied that the voice was his. The State was able to show from the content of the conversation that the person speaking was defendant. Defendant’s complaint centers on the fact that the contents of the recorded tape included an incidental reference to the pending case mentioned above. We see no error or mistaken exercise of discretion on the part of the trial judge in admitting the evidence. The alternative method of proving defendant’s voice was unsatisfactory from the State’s standpoint since it would rest purely on the ability of the detective to recognize defendant’s tape recorded voice from memory. On the whole case the harm claimed by defendant does not appear so serious to us as to warrant reversal on an otherwise strongly supported prosecution.

Finally, we find frivolous defendant’s argument that the admission of detective’s identification of the voice of Anthony Eotonda based upon his overhearing Eotonda speak in police headquarters was erroneous as a matter of due process.

The judgments of conviction are affirmed.


author: Per Curiam:

text:
    ELEANOR STUERZE, PLAINTIFF-RESPONDENT, v. STATE OF NEW JERSEY, DIVISION OF PENSIONS, DEFENDANT, AND ALMA BALLEW, A/K/A ALMA BALLEW STUERZE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 15, 3972
    Decided July 13, 1972.

      Before Judges Coneoed, Matthews and Fritz.

      Messrs. Meredith, Meredith é Chase, attorneys for appellant {Mr. Edward B. Meredith, on the brief).

      Mr. Edward M. Callahan, Jr., attorney for respondent.
   Per Curiam:

This is a contest between the first and the alleged second wife of decedent, Charles L. Stuerze, a former police officer, who died March 33, 1968, as to which is entitled to benefits as widow under the Police and Firemen’s Retirement System of New Jersey. N. J. S. A. 43 :16A 1 et seq.

Plaintiff, the first wife, married decedent in September 1931 and cohabited with him in and about Newark until 1955 when they separated. Decedent went to Elorida. In June 1958 he filed a petition for divorce in Tennessee stating he had resided there for more than a year. Whether this is a fact is in some doubt. The second wife (Elizabeth) did not testify in the instant matter, having been too ill to attend the trial (she has since died, leaving brothers and sisters as next of kin). Plaintiff was served in the divorce action only by publication in Tennessee, the divorce petition asserting that her residence and address were unknown to the petitioner and that her last known residence was Newark, New Jersey. Plaintiff testified below she never received any divorce papers from decedent. A final decree of divorce pro confesso was entered in Tennessee on August 20, 1958.

On September 28, 1958 decedent married Elizabeth in Hamilton County, Tennessee (Chattanooga). He wrote to his adult son, who was living with plaintiff, that he intended remarriage, and subsequently that the marriage had taken place. He also wrote plaintiff about a year after the divorce that he had obtained it. The record does not verify how long decedent lived with Elizabeth after their marriage although her answer states that they lived together as husband and wife after their marriage and until his death in 1968 in Chattanooga. A post-argument affidavit by a sister of Elizabeth filed at our request verifies these facts, but we do not rely on it for the present decision.

The Chancery Division judge held the Tennessee divorce void because Tennessee did not “have jurisdiction by residence within that state.” He also found that the decedent had “lied” in Tennessee in many respects, one of which prevented notice to defendant.

We concur in the invalidity of the Tennessee divorce without expressing an opinion as to whether the evidence below was sufficient to overcome the presumption of decedent’s domicile in that state and the finding by its court that the defendant therein “had been regularly brought before the court and made a party to the petitioner’s bill * * We hold that since the Tennessee defendant had not appeared there, the absence of any effort by decedent to cause process to be mailed at least to her last known address or addresses was a denial of due process essential to validity in actions affecting status notwithstanding the ordinarily applicable requirements of full faith and credit. Restatement, Conflict of Laws 2d, § 69, as applied to § 71, Comment e; and see United States v. Smith, 398 F. 2d 173, 177—178 (3d Cir. 1968); cf. Kram v. Kram, 52 N. J. 545 (1968), affirming the Appellate Division, 98 N. J. Super. 274, 276 (1967), where it was noted that the absent defendant in the Florida divorce proceedings accorded full faith and credit, had been served by publication and mailing. The test of due process in such a situation is whether the method used by the divorcing state is one reasonably calculated to give actual notice to the defendant (whether the objective is actually achieved or not). United States v. Smith, supra, (398 F. 2d, at 177-178). Here, that standard was not met. On the evidence here, it is indisputable that decedent had knowledge of an address or addresses of his wife in New Jersey at which mail might be expected to have reached her.

The foregoing conclusions do not, however, lead to an affirmance, but to a remand. Sight was lost in the trial court of the heavy presumption of validity of the later of two ceremonial marriages involving a common participant and the burdens which must be satisfied by the opponent of the application thereof in a particular case. Booker v. James Spence Iron Foundry, 80 N. J. Super. 68 (App. Div. 1963); Dawson v. Hatfield Wire & Cable Co., 59 N. J. 190 (1971) (recognizing the rule but refusing to allow the opponent of the presumption to prevail even on adequate rebuttal proofs, in a workmen’s compensation context, where the contest was not between two claimant “widows” but between one claimant and the respondent employer. A good faith de facto relationship as man and wife with many years of cohabitation following a ceremonial marriage until the employee’s death was held to warrant recovery by a dependent consort). Thus, here, plaintiffs disestablishment of the validity of the Tennessee divorce does not of itself discharge her burden to disprove the validity of Elizabeth’s later ceremonial marriage. She must also affirmatively prove by clear and convincing evidence (1) that neither she nor decedent were disqualified to marry when the 1931 marriage took place; and (2) that her marriage was not dissolved (aside from the Tennessee divorce discussed above) in any jurisdiction where either she or decedent might have resided from the date of their marriage to the date of the second marriage, Booker, supra, (80 N. J. Super., at 73); Dawson, supra (concurring and dissenting opinion of Justice Francis, 59 N. J., at 205-208). The dimensions of plaintiffs proofburden in the foregoing respects are canvassed in both of the opinions just cited, and need not be restated here.

We have considered appellant’s contentions as to laches and find no merit therein.

Reversed and remanded for further proceedings in the Chancery Division consistent with this opinion.


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

text:
    ESTELL M. WEINER, PLAINTIFF, v. HOWARD M. WEINER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 22, 1972.

      Mr. Edward D. McKirdy for plaintiff (Messrs. McKirdy & Rislcin, attorneys).

      Mr. Morris M. Schmtzer for defendant (Messrs. Schmtzer <& Schmtzer, attorneys).
   Polow, J. J. D. R. C.

(temporarily assigned). The parties, as New Jersey residents, executed a separation agreement dated May 4, 1965, which was subsequently incorporated in a Nevada divorce decree entered for plaintiff on October 21, 1965. There is no question but that the terms of the agreement would require support for the plaintiff ex-wife in the sum of $85 per week if it is specifically enforceable unless a modification is legally and factually supportable.

Some time after the Nevada divorce, in or about July 1966, the parties were reunited in California and subsequently lived together in Morris Plains, New Jersey, without the benefit of marriage, until April 1969 when they separated for good and plaintiff moved into her own apartment. The basic legal question to be decided at this time is whether such a resumption of cohabitation after a valid divorce decree terminates the future obligations contained in the separation agreement.

At a prior hearing in November 1971 defendant was held legally obligated to provide support for plaintiff without regard to the effect or enforceability of the separation agreement. An oral determination was made that the then existing circumstances justified a weekly alimony order in the amount of $50, which was in effect a reduction of $35 per week from the obligation contained in the agreement. It was at that time determined to be unnecessary to resolve the legal issue concerning whether the resumption of cohabitation abrogated the terms of the separation agreement since there was admittedly an obligation to provide some support, the divorce having been based on marital fault cognizable in New Jersey. Circumstances had changed in that defendant had remarried and plaintiff enjoyed increased income. If the same test for change of circumstances applies for modification of a written agreement as is required to modify a judgment for alimony, the agreement even though valid and enforceable would have been modifiable to the amount of the new determination based upon the then existing circumstances, and it was so resolved at that time. Shortly after that determination, however, the Appellate Division ruled that “[a] far greater showing of changed circumstances must be made before the court can modify a separation agreement than need be shown to warrant the court amending an order for alimony * * *." Schiff v. Schiff, 116 N. J. Super. 546, 561 (App. Div. 1971), cert. den. 60 N. J. 139 (1972).

Before the oral determination had been incorporated in a form of judgment, defendant sought and obtained an order for a new trial, despite the warning that the outcome might be less favorable to him in the light of the Schiff decision which had been reported in the interim. He was advised, on the record, that the changes of circumstances, although sufficient to modify an order for alimony, might well fall short of the “far greater showing” required to modify a fairly and properly executed separation agreement. He nevertheless persisted and the matter was re-heard in March, 1972.

Upon the retrial testimony was taken from both parties. Defendant stated that when plaintiff moved into her own apartment in April 1969 she orally agreed to a reduction of alimony payments from the $85 per week provided by the agreement to $145 per month, the amount of her rent. Plaintiff denied any such modification. This court ruled that defendant had failed to sustain the burden of proof and found as a fact that there had been no oral modification. It was also determined at the conclusion of the hearing that there would be no retroactive support for the period during which the parties lived together following the divorce, and the question of current support was reserved pending submission of briefs.

Defendant argues that the resumption of cohabitation after the divorce was in fact a reconciliation which by law abrogates executory features of a separation agreement. The general rule with which this jurisdiction agrees is that a reconciliation or resumption of cohabitation before a divorce abrogates the executory provisions of a separation agreement. Wolff v. Wolff, 134 N. J. Eq. 8 (Ch. Div. 1943); Devine v. Devine, 89 N. J. Eq. 51 (Ch. Div. 1918) ; Restatement, Contracts, § 584(2); 35 A. L. R. 2d § 707.

The logic of this concept is compelling. Public policy favors preservation of the marriage. Terminating future obligations under a separation agreement upon reconciliation helps to restore the previous relationship of the parties, to recreate the status of the marriage before the separation.

Thus, normal cohabitation, as a matter of public policy will terminate any future obligation contained in a separation agreement. However, cohabitation after a divorce without the benefit of remarriage can neither be said to be “normal” nor does it restore the pre-existing relationship between the parties. Peer v. Peer, 17 Misc. 2d 380, 183 N. Y. S. 2d 278 (Snp. Ct. 1959). Onty a remarriage between the parties would serve the purpose of restoring the previous marital relationship in the circumstances of this case, after divorce.

Defendant’s suggestion that the concept should be enlarged to incorporate the factual situation of this case would in fact put the stamp of approval upon a meretricious relationship. I cannot agree that even our most modern views support such a conclusion. The opposite, in fact, is true. Our public policy still, even in this “enlightened” era, opposes any illicit relationship, including cohabitation without the benefit of marriage. Unquestionabty, had the parties remarried the obligation under the separation agreement would have terminated. I find that without such remarriage, cohabitation alone does not abrogate the obligations contained in the separation agreement.

Defendant argues that even if the agreement is valid and subsisting, he is entitled to a modification by reason of changed circumstances. He remarried in 1970 and assumed new obligations. The plaintiff, he points out, earns substantially more than was contemplated by the parties when they executed the agreement. Neither argument has merit under these circumstances.

An alimony provision contained in a divorce decree may be modified upon remarriage of the husband where that is found to be a change of circumstances warranting consideration. Hallberg v. Hallberg, 113 N. J. Super. 205 (App. Div. 1971); Bartok v. Bartok, 52 N. J. Super. 266 (App. Div. 1958). However, the possibility of remarriage is clearly such an eventuality as could have been anticipated by the parties in arriving at their written agreement, and the failure of that writing to provide for such an occurrence must be considered evidence of their intention to continue the alimony provision regardless of defendant’s remarriage. Schiff v. Schiff, 116 N. J. Super. 546 (App. Div. 1971), cert. den. 60 N. J. 139 (1972). The agreement does provide for the contingency of remarriage of the wife. Its silence as to the husband’s remarriage must have been intentional.

Subsequent events which should have been in contemplation of the parties as possible contingencies when they entered into the contract will not excuse performance. Sehiff, at 561.

Defendant’s voluntary assumption of financial obligations for the children of his present wife, all of whom are over 20 years of age, is not a factor worthy of consideration. He has no legal obligation on behalf of his stepchildren and has now ceased payment of the $20 per week support for his own son under the terms of the agreement.

Plaintiff is earning more money than she did when the agreement was executed. Is this a change of circumstances justifying modification of its terms? As plaintiff argues, defendant and his present wife have a considerably more substantial income together as compared to that of plaintiff, and even with her present income, the support payments of $85 a week under the terms of the agreement would not permit her to live in a financially superior manner to the pattern of living established during their marriage. She is entitled under these circumstances to an amount sufficient to maintain herself commensurate with her former status. Capodanno v. Capodanno, 58 N. J. 113 (1971). Her increased income is therefore not such a circumstance as to justify modification of the agreement. Defendant has fallen short of meeting the standard of proof established in Schiff:

‘The showing of ‘changed circumstances’ *' * * to warrant the court in modifying an agreement between husband and wife must be such as to convince the court that to enforce the agreement would be unconscionable, the same standard that is applied by courts of equity to the specific enforcement of contracts in other fields. [116 N. J. Super. at 561]

The agreement will be specifically enforced. Alimony as required thereunder in the amount of $85 per week will be charged against defendant retroactive to April 1969. Defendant will be given credit for all payments he made by way of plaintiff’s rentals, furniture purchases on behalf of plaintiff and support advances. A judgment should be submitted accordingly.


author: Hartman, J. C. C.

text:
    GENEVIEVE Mc DERMOTT, PLAINTIFF, v. WILLIAM Mc DERMOTT, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided—June 30, 1972.

      Mr. Salvatore Muscato, attorney for plaintiff.

      Mr. Edmund J. Tucker, attorney for defendant.
   Hartman, J. C. C.

(temporarily assigned). A motion to enforce litigant’s rights—in substance, a motion for contempt—raises a question whether the award of alimony, in view of the conduct of the parties thereafter, still has continuing effect.

Plaintiff is the former wife of the defendant. She was granted an absolute divorce by judgment entered in this court July 25, 1969, which judgment included a provision for periodic alimony at $15 a week, payable through the probation office.

Defendant made his payments regularly until sometime in August 1971, when he and plaintiff resumed living together, albeit without benefit of clergy. Plaintiff notified the probation office of this fact, resulting in a deactivation of that department’s further supervision of the payments. The parties remained living together for about five months, during which time defendant provided fully for their needs. On January 8, 1972 they separated. Prom then on he has paid her nothing.

Plaintiff’s motion now seeks to hold him in contempt of the alimony provision. She asks no relief for the period of time they lived together, demanding only compliance with the court order prospectively. What legal effect does her conduct have regarding her rights and the defendant’s obligations under that order? Counsel provide no precedent nor has the court found any reported opinion in this State dealing with this situation.

Except as our present statute governing alimony permits alimony to a husband, the language of N. J. S. 2A:34-23 is substantially the same as its predecessor, R. S. 2:50-37. Alimony is diseretionarily awarded to fit the circumstances of a case, and such orders “may be revised and altered by the court from time to time as circumstances may require.” Thus, it is settled law in this State that Chancery has continuing jurisdiction as regards to alimony, that the husband’s obligation is a continuing one, “not subject to the control of the parties”; its enforcement is committed to the sound discretion of the court, Parmly v. Parmly, 125 N. J. Eq. 545 (E. & A. 1939); and it is subject to continuing review, Martindell v. Martindell, 21 N. J. 341 (1956).

I think it is fair to rule that during the time parties live together following their divorce, the alimony order should be deemed as having been waived by the former wife. It was so held in Frost v. Frost, 180 Misc. 133, 71 N. Y. 2d 438 (Sup. Ct. 1947); and to the same effect, Paille v. Paille, 91 N. H. 249, 17 A. 2d 445 (Sup. Ct. 1941). Compare Hamby v. Pye, 195 Ga. 366, 24 S. E. 2d 201 (Sup. Ct. 1943), where a Georgia statute annuls and sets aside all provisions for permanent alimony where the parties subsequent to their divorce voluntarily cohabit.

The conduct of the parties clearly evinced an intention to treat the order as no longer in force. To the extent and for the period of time they were together the order, so far as the parties are concerned, will be treated as having spent itself. However, the continuing authority of Chancery to deal with that order may not be foreclosed by their actions. The continuing force of the order remains.

This determination warrants extending to both sides an opportunity to file and serve further motions as they are advised by counsel to bring to a head all matters that remain in controversy.


author: Byrne, J. S. C.

text:
    THE STATE OF NEW JERSEY v. JOSEPH W. EDWARDS, DEFENDANT.
    Superior Court of New Jersey Law Division
    Heard June 7, 1972—Decided
    June 22, 1972.

      Mr. Allen G. Marra, Assistant Prosecutor, for State (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. Joseph M. KieTl, for Defendant.
   Byrne, J. S. C.

No New Jersey court has quite defined “dangerous.” Cases have indicated that a finding oí “dangerous” may be made by a jury “based on all the facts and circumstances.” State v. Green, 116 N. J. Super. 515, 521 (App. Div. 1971) ; State v. Horton, 98 N. J. Super. 258, 261-2 (App. Div. 1967).

The proposed New Jersey Penal Code, vol. I, § 2C:39-3(i), approaches the problem in terms of intent to use to commit a crime. The comments to the Code indicate that this represents a change in New Jersey law. Vol. II, § 20:39—3(9). However, there seems little doubt that the intent of the possessor is a highly significant “fact and circumstance” under our present law.

The correct approach to the interpretation of this statute is that taken by the District of Columbia Court of Appeals in Scott v. United States, 243 A. 2d 54 (1968):

This court has previously held that all knives are not per se dangerous weapons. Degree v. United States, D. C. Mun. App., 144 A. 2d 457 (1958). A knife may he used as a tool in certain trades or hobbies or it may be carried for utilitarian reasons. Section 22-3204 does not prohibit the carrying of such instruments for a legitimate purpose. The statute, as we interpret it, outlaws the carrying of an otherwise useful object where the surrounding circumstances, such as the time and place the defendant was found in possession of such an instrument, or the alteration of the object, indicate that the possessor would use the instrument for a dangerous purpose.

See also Clarke v. United States, 256 A. 2d 782, 786 (D. C. App. 1969).

There may be circumstances where the size of a knife or its characteristics is enough to meet the definition of “dangerous.” S-l cannot be so considered.

A judgment of acquittal is hereby entered.