author: Handler, J. A. D.

text:
    JOSEPH A. GRZANKOWSKI, PLAINTIFF-APPELLANT, v. RONALD M. HEYMANN, NEW JERSEY COMMISSIONER OF LABOR AND INDUSTRY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 1, 1971
    Decided May 31, 1974.

      Before Judges Coneord, Handler and Meanor.

      Mr. Thomas F. Shebell, Jr. argued the cause for appellant.

      Mr. I. Leo Motiuk, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Handler, J. A. D.

Appellant is a judge of compensation who is appealing a five-day disciplinary suspension imposed upon him by the Commissioner of the Department of Labor and Industry. The issue presented is whether the Commissioner of the Department of Labor and Industry has the power to discipline judges of compensation in a manner not involving permanent removal from office or whether such power reposes exclusively in the Governor.

Appellant, as a judge of compensation, does not contend that he is a member of the judiciary. Bonafield v. Cahill, 125 N. J. Super. 78 (Ch. Div. 1973), aff'd 127 N. J. Super. 149 (App. Div. 1974). He does assert that as a state officer or employee it is only the Governor who may suspend him under N. J. Const (1947), Art. V, § IV, par. 5. This constitutional provision in pertinent part states:

The Governor may cause an investigation to be made oí the conduct in office oí any oflieer or employee who receives his compensation from the State of New Jersey * * ®. After notice, the service of charges and an opportunity to be heard at public hearing the Governor may remove any such officer or employee for cause.

It has been recognized that the Constitution by necessary implication has conferred upon the Governor the ancillary power to impose less drastic forms of discipline. Russo v. Governor of New Jersey, 22 N. J. 156 (1956), settled this point:

The power to remove without permitting any intermediate degrees of penalty clearly would not be consistent with the concept of adequate supervision. Nor could it have been reasonably intended that the Governor should have the power to discharge an employee for some obvious but minor infraction of his duty. The purpose of the constitutional provision in question is obviously to give the Governor power commensurate with his responsibility. To grant him the power only to remove for cause and to withhold from him the power to administer lessor penalties in appropriate instances is not only unrealistic, but it will also in most eases be ineffective to accomplish the fundamental purpose for the repose of the authority. That the right to impose all lesser degrees of punishment is inherent in the right to remove for cause is recognized by the majority of this court in Russo v. Walsh, 18 N. J. 205 (1955), supra, in dealing with the power of the Governor to suspend pending a hearing before him. The only conflict evident from the dissent in that case was that the constitutional power should not be construed so as to permit an effective removal by preliminary suspension prior to a due and proper hearing, Id., 18 N. J. at pages 213-218. In the grant of supervisory power to the Governor the underlying considerations were that he should not be made, on the one hand, the subject of control by an unfriendly Legislature, nor, on the other hand, should the public officers over whom the power was to be exercised be subject to the whims and prejudices of an ambitious executive, 5 Proceedings of the Con stitutional Convention of 191ft, 33, 98. Thus, a constitutional provision which spoke in terms of a maximum grant of power — the power to remove • — • attended with such safeguards as a public hearing and a right to judicial review which provided adequate protection to the individual officer or employee, answered all of the objections to the pre-existing inadequacy of gubernatorial power and responsibility. The Governor, therefore, under the authority vested in him by Article Y, Section IV, paragraph 5 of the Constitution, must be viewed as having the power not only to remove for cause after proper hearing but also to impose all intermediate or lesser degrees of punishment suitable to the proven misconduct. Cf. Russo v. Walsh, 18 N. J. 205 (1955). [at 166-167]

Appellant argues that the constitutional power to remove public employees is vested exclusively in the Governor, and since that power subsumes the incidental power to discipline and suspend, it follows that this lesser included authority is exercisable solely by the Governor. Support for this position is drawn from L. 1969, c. 252, § 2, which amended N. J. S. A. 34:15-49, and an opinion of the Attorney General (Sept. 29, 1971) that the Governor alone has the power to institute and conduct disciplinary proceedings, and that as a result of L. 1969, c. 252, the power to discipline judges of compensation no longer resides in the Commissioner of Labor and Industry.

The circumstances surrounding the adoption of the constitutional provision, which lodged in the Governor the power to remove state employees, do not suggest that the ancillary power to impose lesser forms of discipline upon such employees was one intended to be exerted solely by the Governor to the exclusion of any other agency or arm of government. The authority granted the Governor by the Constitution to investigate the conduct of public officials and to bring about their removal had as its avowed purpose “to give the Governor adequate supervision over public officers and employees consistent with the responsibility imposed on the Governor for the executive administration of government, on the one hand, and the doctrine of the separation of powers on the other.” Russo v. Governor of New Jersey, supra at 166. The salient reason of the drafters of the 1947 Constitution for this provision was that “the primary responsibility for the conduct of the executive and administrative branches of the government resided in the Governor, and accordingly, for the first time, conferred upon the chief executive the power to meet and discharge the recognized responsibility by investigating the conduct of state employees and granting him the right to remove for cause shown.” Russo v. Walsh, supra, 18 N. J. at 209.

It is unnecessary in advancing the constitutional thesis of a strong and responsible chief executive with the power to control state personnel to regard that power as preemptive. Comparable powers may be reposed in ranking officials within the executive branch of government without militating against the Governor’s ultimate responsibility for the performance of state officers and employees. Moreover, the exercise of such similar powers to discipline employees by department heads or other superior officers would seem reasonably necessary to relieve the Governor of what would otherwise be the vast burden of being directly responsible for all disciplinary proceedings involving state officers and employees.

Complementary disciplinary powers existing in ranking departmental officers is also evidenced from the legislative understanding contemporaneous with the adoption of the 1947 Constitution. Thus, in the very act relating to the reorganization of the executive branch of the State Government and establishing the Department of Labor and Industry, L. 1948, c. 446, passed shortly after the adoption of the 1947 Constitution for the purpose of implementing its mandate, the Commissioner, as head of the department, was given the express authority to “[a]ppoint and remove officers and other personnel employed within the department, subject to the provisions of Title II of the Eevised Statutes, Civil Service, and other applicable statutes * * L. 1948, c. 446, § 3(b); N. J. S. A. 34:1A — 3(b). Quite clearly, the statutory authority in the Commissioner of Labor and Industry to remove departmental employees, and inferentially to diseipline such employees, was not, in the milieu of the 1947 Constitution, thought to be at odds with the Governor’s identical but paramount constitutional authority.

Appellant argues, however, that even in the absence of a constitutional barrier, the statute giving the Commissioner the power to remove and, by implication, to suspend employees has been superseded by L. 1969, c. 252, § 2, amending N. J. S. A. 34:15-49. This statute, enacted on January 7, 1970, provides:

The Division of Workmen’s Compensation shall have the exclusive original jurisdiction of all claims for workmen’s compensation benefits under this chapter. The judges of the Division of Workmen’s Compensation shall hereinafter be appointed on a bipartisan basis by the Governor, with the advice and consent of the Senate and shall serve during good behavior. The salaries of the director of the division and the judges of compensation shall be $27,000.00. Judges of compensation shall not engage in the practice of law and shall devote full time to their judicial duties.

The essential purpose of this statute was to elevate the quality of the judges of compensation by requiring their appointment in the same manner as judges serving in the judicial branch of government. Obviously, the 1969 amendment cannot be squared with the statutory power to appoint judges of compensation which had theretofore existed in the Commissioner since 1948 under N. J. S. A. 34:1A-3(b). As a consequence, the appointment of judges of compensation can no longer be made by the Commissioner.

Implied repealers, however, are a disfavored legislative technique. It is not to be assumed that the Legislature intended by a subsequent enactment to repeal existing legislation unless there is no way the statutes can co-exist. Dept. of Labor and Industry v. Cruz, 45 N. J. 372 (1965). Evidence of statutory incompatibility reflecting a legislative intention to supplant a prior law must be clear and compelling. Loboda v. Clark Tp., 40 N. J. 424 (1963).

Here the later amendment of N. J. S. A. 34:15-49 deals expressly with the appointive function. It does not purport to treat the subject of the removal of judges of compensation. It cannot, therefore, be stated categorically that the Legislature intended to repeal that provision of the earlier act, N. J. S. A. 34:1A-3(b), which granted removal powers to the Commissioner. But since we are not presently concerned with an act of removal by the Commissioner, that precise issue need not be decided. We conclude that the Commissioner does have the power under N. J. S. A. 34:1A-3(b) to discipline departmental employees through a short-term suspension. This power to regulate and control the conduct and performance of employees was not intended by implication to be curtailed or abrogated by the amendment of N. J. S. A. 34:15 — 49.

Moreover, the power to assure proper performance by employees may reasonably be implied from the express authority in the Commissioner to “[fjormulate and adopt rules and regulations for the efficient conduct of the work and general administration of the department, its officers and employees * * *.” N. J. S. A. 34:1A-3(f). Less directly, the power to discipline employees may also be extracted from the general authority of the Commissioner to £i[a]dminister the work of the department” and to “[p]erform, exercise and discharge the functions, powers and duties of the department through such divisions * * *.” N. J. S. A. 34:1A-3(a), (c). The power to take disciplinary action may also be supplemented by the right of the Commissioner, as the head of the department, to initiate legal proceedings necessary for the proper enforcement or effectuation of his powers and duties. N. J. 8. A. 34:lA-3(g).

We would affirm but for the fact that the Commissioner suspended appellant without the issuance of formal charges or a public hearing. It is now conceded that these procedural safeguards should not have been dispensed with. Hence, while we uphold the power of the Commissioner to discipline judges of compensation by suspension in appropriate eases, the action taken in this instance is reversed and the matter remanded for further proceedings which shall include formal notice and a hearing on the charges.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JAMES A. QUAREMBA, JAMES W. RALPH AND TRIFONIO RIZZO, PLAINTIFFS-APPELLANTS, v. ALEXANDER ALLAN, COUNTY CLERK OF BERGEN COUNTY, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 30, 1974
    Decided May 28, 1974.

      Before Judges Carton, Lora and Seidman.

      Mr. James A. Quaremba argued the cause pro se.

      Mr. Donald Horowitz argued the cause for appellants James W. Ralph and Trifonio Rizzo (Messrs. Cummins, Cummins, Dunn, Horowitz & Pashman, attorneys).

      Mr. Michael J. Ferrara, County Counsel, argued the cause for respondent.

      Mrs. Joyce M. Usiskin, Deputy Attorney General, argued the cause for the State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mr. Stephen Skillman, First Assistant Attorney General, on the brief).

      Mr. William S. Singer filed a brief on behalf of amicus curiae Common Cause. (Mr. Richard A. Zimmer of the New York bar, of counsel and on the brief).
   Per Curiam.

In the June 1971 primary election plaintiffs James A. Quaremba and James W. Ralph unsuccessfully sought nomination as the Republican candidates for the office of state senator for the Thirteenth Senatorial District, and plaintiff Trifonio Rizzo was an unsuccessful candidate for nomination by the Republican party for the office of freeholder in Bergen County.

They thereafter filed a complaint for a declaratory judgment that N. J. S. A. 19 :23-24 requires “the listing of all candidates for nomination or election to any given office in the primary election of a political party in a single column or row determined by drawing,” and that the county clerk should be directed to set up the form of the June 1972 primary ballot accordingly. On March 30, 1972, the return day of an order to show cause which they obtained, final judgment was entered in favor of defendant, the Bergen County Clerk. Plaintiffs appealed. The Appellate Division affirmed in an unreported opinion. The Supreme Court vacated the judgment and remanded the cause to the Law Division as an action for declaratory judgment.

The trial was held and judgment was again entered in favor of defendant, whereupon this appeal was filed.

Plaintiffs challenge the constitutionality of N. J. 8. A. 19:49-2. They contend that their names should have been placed in the same column or line with other candidates for the same office, their respective positions to be determined by lot, but were assigned, instead, a separate column or line alongside the others. It is noted that the assignment or columns was by lot.

The principal thrust of their argument is that N. J. S. A. 19:49-2 arbitrarily favors primary candidates who file a joint petition with the county clerk, and those affiliated with them, and denies all others the drawing and placement rights prescribed by N. J. S. A. 19 :23-24. Their complaint is that they are disadvantaged by not being in the same line or column as the “organization” candidates or “party regulars.” They assert that there is no rational basis or compelling state interest for what they conceive to be discrimination against unaffiliated candidates which violates the equal protection clause of the United States Constitution.

We are of the view that plaintiffs’ contention that they have been unconstitutionally deprived of the equal protection of the laws is unfounded.

Procedures for arranging the positions of candidates on primary ballots are contained in N. J. S. A. 19 :23-24 and N. J. S. A. 19 :49-2. Under the former, the position of candidates for a given office is determined by a drawing of -names by the county clerk or municipal clerk, or his deputy, depending upon where the nominating petition is filed, provided that several candidates for an office (where more than one person is to be elected to that office) may request the bracketing of their names (N. J. S. A. 19:23-18), in which case the bracketed names are treated as one. Thus, under this procedure, all candidates for an office would be in the same column, with their respective positions established by a random drawing.

However, in counties where voting machines are used, N. J. S. A. 19:49-2 is applicable. It permits all candidates whose nominating petitions are required to be filed with the county clerk and who choose the same designation or slogan to file a joint petition. In such case they are entitled to have their names placed on the same line of the voting machine and, where a drawing is required, to be drawn for position on the ballot as a unit. In addition, candidates whose petitions are required to be filed with the municipal clerk or with the Secretary of State may request the county clerk, with the written consent of the campaign manager of those filing the joint petition, to place their names on the same line.

By its terms, N. J. S. A. 19 :49-2, and not N. J. S. A. 19:23-24, applies to primary elections in counties which, like Bergen, have voting machines. Harrison v. Jones, 44 N. J. Super. 456, 462 (App. Div. 1957). In the present case the arrangement of plaintiffs’ names on the ballot was in accordance with N. J. S. A. 19 :49-2. While candidates not affiliated with county candidates may be entitled to a drawing for position as among themselves, they are not entitled under that statute to have their names appear in the same column with jointly listed county candidates and those affiliated with them. See Farringon v. Falcey, 96 N. J. Super. 409, 412 (App. Div. 1967); Moskowitz v. Grogan, 101 N. J. Super. 111, 116 (App. Div. 1968), certif. den. 51 N. J. 575 (1968).

There can be no doubt that the Legislature has authority to adopt reasonable regulations for the conduct of primary and general elections, including the manner of preparation of the ballot, so long as they do not prevent a qualified elector from exercising his constitutional right to vote for any person he chooses. Sadloch v. Allan, 25 N. J. 118, 122

(3 957). See also, Jenness v. Fortson, 403 U. S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); New York State Democratic Party v. Lomenzo, 460 F. 2d 250, 251 (2 Cir. 1972). The wisdom of any constitutionally permissible regulation is not our concern. See Brown v. Heymann, 62 N. J. 1, 10— 11 (1972).

We do not believe that N. J. S. A. 19:49-2 denies plaintiffs equal protection of the laws by establishing what they say is a preferred class of affiliated candidates within the county.

Since plaintiffs claim an equal protection violation, the burden is upon them to demonstrate a discrimination against them of some substance. American Party of Texas v. White, - U. S. -, p. -, 94 S. Ct. 1296, 39 L. Ed. 2d 744 (1974). The applicable principles are found in Schilb v. Kuebel, 404 U. S. 357, 92 S. Ct. 479, 30 L. Ed. 2d 502

* ^ * “The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.” Williamson v. Lee Optical Co., 348 U. S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563 (1955). “Legislatures are presumed to have acted constitutionally * * * and their statutory classifications will be set aside only if no grounds can be concerned to justify them * * The measure of equal protection has been described variously as whether “the distinctions drawn have some basis in practical experience,” * * or whether the legislature’s actions falls short of “the invidious discrimination,” * * * or whether “any state of facts reasonably may be conceived to justify” the statutory discrimination, * * * or whether the classification is “on the basis of criteria wholly unrelated to the objective of the statute” * 3’ * [at 364-365, 92 S. Ct. at 484]

See also, McDonald v. Board of Election Comm’rs of Chicago, 394 U. S. 802, 809, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969).

There is nothing inherently wrong or invidious in permitting candidates with like views to be grouped together on the ballot. As the court said in Richardson v. Caputo, 46 N. J. 3, 9 (1965), “we can find no reason, and no one suggests a reason, to deny [candidates] the benefit of their joint candidacy or to deny a voter who wants to advance the party or the principles of the candidates an easy opportunity to find all of them.” The polestar, added the court, is “a ballot •which -will permit all the voters to express their will fully and as easily as circumstances will reasonably permit.” See also, Farrington v. Falcey, supra, 96 N. J. Super, at 414. Cf. Voltaggio v. Caputo, 210 F. Supp. 337, 339 (D. N. J. 1962), app. dism. 371 U. S. 232, 83 S. Ct. 325, 9 L. Ed. 2d 494 (1963).

It cannot be argued successfully, therefore, that “no grounds can be conceived to justify” the procedures contained in N. J. S. A. 19 :49-2, even though certain claimed advantages relevant to ballot position may be withheld from some candidates. So long as there is a rational basis for the statute we may not provide otherwise, for, as we said in Perry v. Guiliano, 46 N. J. Super. 550, 557 (App. Div. 1957) “to do so under the guise of judicial interpretation of the statute would be an inadmissible encroachment upon the legislative process, and is hence beyond the power of the court.”

Plaintiffs advance the further argument that the laws pertaining to the ballot operate unequally to persons similarly situated because an unaffiliated candidate has a better chance of being nominated in a county where paper ballots are used than in one where voting machines are' used. We need not address ourselves to the merits, if any, of that argument. The issue does not arise in this case, since none of the candidates here involved sought nomination to a State or Federal office and so would not have been entitled to a place on the ballot in every county, including the few that still use paper ballots.

It is also contended that N. J. S. A. 19 :49-2 is unfairly administered by the Bergen County Clerk in that he allegedly intentionally discriminates against nonorganization candidates in arranging the primary ballot, and in his creation of additional ballot columns when not required. We have thoroughly examined the record and find no basis for the charges made. The county clerk followed the requirements of the statute in the case of candidates filing joint petitions and those affiliated with them.

We agree with the finding of the trial judge that the machine ballots in evidence bore out defendant’s contention “that his exercise of discretion in positioning candidates as permitted by the statute will enable voters at primary elections to easily find affiliated candidates or candidates endorsed by any group or organization.” The trial judge also found, and there is substantial evidence in the record to support the finding, that defendant did not unreasonably exercise his discretion so as to discriminate against plaintiffs, or to deprive them of or interfere with their constitutional rights. Cf. Giuliano v. Reichenstein, 110 N. J. Super. 589, 504 (Law Div. 1970) ; Edelstein v. Farrell, 120 N. J. Super. 583, 594 (Law Div. 1972).

The judgment is affirmed.

      Arguments similar to those presented in this appeal were considered and rejected hy the United States District Court for the District of New Jersey in an unreported opinion in the case of Sandman v. Allan (Civil Action No. 396-73).


author: Joelson, A. J. S. C.

text:
    THOMAS C. ROONEY, JR., INDIVIDUALLY AND AS MAYOR OF THE CITY OF PATERSON, PLAINTIFF, v. SYLVIA L. McEACHERN, CLERK OF THE CITY OF PATERSON, ELIZABETH VAN D. SMITH, SUPERINTENDENT OF ELECTIONS OF PASSAIC COUNTY, CITY OF PATERSON, A MUNICIPAL CORPORATION, LAWRENCE F. KRAMER, CYRIL YANNARELLI, MARION M. RAUSCHENBACH, SAMUEL HUGHES, RAMON CARRION, TERESA BJORNDAL, RICHARD FONTANELLA, RALPH DiMARCANTONIO, ORABELL NICKELSON, NICHOLAS DeLUCCIA, MICHAEL DeLUCCIA, DOMINICK DeMARCO, ANTHONY ZIRROLLI, WILLIAM MASON, MARTIN I. BARNES, RAY CASSETTA, MANNY E. MORALES, AND FRANK X. GRAVES, JR., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 31, 1974.

      Mr. Sheldon A. Weiss for plaintiff (Messrs. Glauberman and Weiss, attorneys).

      Mr. William Miller for defendant Sylvia L. McEachern.

      Mr. Joseph L. Conn for defendant Lawrence E. Kramer (Messrs. Conn and Kluger, attorneys).

      Mr. Leo Gallene for defendant Cyril Yannarelli (Messrs. Merrey and Merrey, attorneys).

      Mr. Peter T. Bongiorno for defendants Samuel Hughes, Ralph DiMarcantonio, Dominick DeMarco, Raymond Cassetta, and Frank X. Graves, Jr.

      Mr. Harry Rapkin for defendant Ramon Carrion (Messrs. Iannacone, Rapkin, Chessin and Carrion, attorneys).

      Mr. Alfred Fontanella for defendant Richard Fontanella (Messrs. Fontanella, Shashaty, Leonard, Cozine & Harris, attorneys).

      Mr. Arthur J. Lesemamn for defendant Orabell Nickelson (Messrs. Mazer and Lesemann, attorneys).

      Mr. George Sokalski for defendant Nicholas De Luccia.

      Mr. Dennis Cummins for defendant William Mason.

      Mr. William J. Brogan for intervenors.
   Joelson, A. J. S. C.

Plaintiff is the present mayor of the City of Paterson under a unique form of government which has been declared by our courts to be invalid. In an election held May 14, 1974 he was a candidate for mayor under a changed form of government scheduled to commence on July 1, 1974. In that election plaintiff Thomas Rooney received 12,699 votes and defendant Lawrence Kramer received 12,860. The other three candidates for mayor received 2,779 votes altogether. A recount obtained by plaintiff confirmed these results. He now brings this action in lieu of prerogative writs to require a run-off election due to the fact that neither he nor Kramer received a majority of the total votes cast.

The form of government under which plaintiff has been serving as mayor was declared unconstitutional and invalid on July 6, 1972 in the case of Mason v. Paterson, 120 N. J. Super. 184. (Law Div. 1972), aff’d 62 N. J. 471 (1973). However, it was extended from time to time in order to allow the choice of a new form of government and the election of new municipal officers under the changed form o£ government. The last extension is scheduled to expire on July 1, 1974, at which time the duly elected officers under the new form of government are scheduled to take the oath of office.

At the general election of November 1972 the electorate approved the selection of a charter study commission under the Faulkner Act (N. J. S. A. 40:69A-1 et seq.) and elected five charter commissioners. At the following general election of November 1973 the electorate, by a vote of 9710 to 3841, approved the plan recommended by the charter study commission, namely Mayor-Council Plan I), a nonpartisan type of government.

For reasons which will be developed hereinafter, the complaint urges in the alternative that if the court does not order a run-off election, it should require a new referendum on the form of government to be established in the City of Paterson, and allow the invalidated form of government with plaintiff as mayor to continue until a new referendum can be accomplished and new municipal officials elected. The only other candidate who has instituted an affirmative action to require a run-off election is Kamon Carrion, who finished in fourth place for one of the three councilman-at-large positions. His case was orally argued with this one.

With regard to the run-off problem, N. J. S. A. 40:69A-161, which was originally enacted in 1950 provides for runoffs generally in nonpartisan municipal elections when a candidate does not receive a majority of the votes cast. The only nonpartisan plans originally excepted from the runoff requirement were certain municipalities operating under Small Municipal Plans A and B. These exceptions are to be found in N. J. S. A. 40:69A — 118 and N. J. S. A. 40: 69A-136 which were also enacted in 1950.

Subsequently, however, in 1956 the Legislature enacted N. J. S. A. 40:69A-161.1, which eliminated the necessity for a run-off in any municipality under Mayor-Council Plan A or D by providing that “the candidates receiving the greatest number of votes cast shall be elected to the respective offices.”

If N. J. S. A. 40:69A-161.1 is a valid enactment, no runoff election should be required in Paterson which will operate under Plan D. The New Jersey Supreme Court has already dealt with the question of the constitutionality of N. J. S. A. 40:69A-161.1 in Batistich v. Brennan, 45 N. J. 533 (1965). This court is of the opinion that the decision in that case clearly upholds the constitutionality of the statute as far as its prospective effect is concerned, although it does hold that it would be unconstitutional to apply it retroactively to any municipality, the form of government of which was adopted prior to 1956 when N. J. S. A. 40:69A-161.1 was passed. It held that retroactive application would create the vice of special legislation as it would at the time have applied to only two municipalities, but it also held that prospective legislation would be unobjectionable as it would be general in nature.

Although the decision in Batistich is clear enough, the headnote in the report is misleading. In subheading 3 it is stated flatly that “the act is unconstitutional as special legislation,” and it then compounds the error by referring to Justice Haneman’s persuasive concurring opinion as a dissent. In New Jersey Statutes Annotated, the annotation to N. J. S. A. 40:69A-161.1 repeats the misleading language of the headnote.

This points up the danger to a lawyer in relying on a headnote. A careful reading of the opinion in Batistich sustains the constitutionality of the statute when applied prospectively, and finds it invalid only “insofar as xetroaetive application goes.” (at 535). Since the Paterson voters adopted Plan D in 1973, many years after the enactment of N. J. S. A. 40 :69A — 161.1, the statute cannot be regarded as special legislation on the basis of retroactivity. On the contrary, as far as Paterson is concerned it is prospective legislation of a general nature.

Councilmanic candidate Carrion disputes that Batistich held that N. J. S. A. 40 :69A — 161.1 is valid even in its prospective application. Yet the opinion in that case specifically stated:

If the statute operated prospectively only, the power of the Legislature to offer that further choice by a statute adopted as a general law could not be denied. Indeed the statute here in question must be accorded that future operative effect, [at 535]

In view of this clear expression from onr Supreme Court, this court believes that if there is to be any change, it must come from the Supreme Court. However, the court will add that it sees no special legislation involved when the statute is applied prospectively, because no municipality whose voters decide against Plan D as amended by N. J. S. A. 40:69A-161.1 is obliged to adopt Plan D. It can turn to another of the various forms of government not affected by N. J. S. A. 40 :69A — 161.1.

Counsel for Carrion also relied in his brief on the contention that when N. J. S. A. 40:69A-160 was amended in 1970, the Legislature repealed N. J. S. A. 40:69A-161.1 fiby implication.” He withdrew this contention at oral argument. As a matter of fact, the amendment of N. J. S. A. 40:69A-160 is important since it establishes that in 1970 the Legislature was mindful of the continuing existence of N. J. S. A. 40:69A-161.1 and was bent on maintaining it. It should not he overlooked that the Legislature exempted municipalities operating under Plans A and D from coverage under the 1970 amendment of N. J. S. A. 40:69A-160 when it intentionally excluded Articles 3 and 6 from the amendment. Thus, the Legislature apparently was intent on preserving the exclusion of Plans A and D (Articles 3 and 6 of the Faulkner Act) from the run-off requirement.

The court is, therefore, of the opinion that N. J. 8. A. 40 :69A-161.1 is still in existence and operative in this case. However, plaintiff stresses an additional point arising out of the report of the charter study commission and its actions subsequent to that report. The report, dated July 31, 1973, states on page IY-9: “Equally significant is the required runoff election if no candidate for a particular office obtains a majority vote.*” This asterisk is explained on page IY-14 with the following footnote which indicates that in this case we are dealing with faulty headnotes and erroneous footnotes:

An effort was made to eliminate the run-off provision from Mayor-Council Plan D (as well as Mayor-Council Plan A) by laws of 1956, Chapter 24. That statute was held unconstitutional in Batistich v. Brennan, 88 N. J. Super. 84 (App. Div. 1965) affirmed per curiam 45 N. J. 533 (1965), and on the basis of this decision the Commission has referred to the run-off as still part of the nonpartisan election system of Mayor-Council Plan D. Unfortunately, some of the language of the Court’s opinion as distinguished from the judgment, may be used to argue that the 1956 statute is still effective to eliminate the run-off in municipalities which adopt Mayor-Council Plan D after 1956. In order to avoid a shadow of a doubt, the Commission recommends that specific legislation be sought at the next session of the Legislature to repeal the laws of 1956, Chapter 24.

After filing their report of 56 pages plus exhibits, the charter commission then embarked on a direct mailing of a so-called “official Summary of Report on New Government for Paterson.” According to the verified complaint, in late October and early November 1973, 50,982 copies of this pamphlet were mailed, addressed to “Postal Customer.” This brochure which is attached to the complaint consists of eight pages and definitely states that a run-off would be required if a candidate failed to achieve a majority of the total votes cast. It asserts: “To win election a candidate must receive 50% of the vote plus one vote or there is a run-off between the two receiving the greatest number of votes.” Most of the publication, however, is devoted to an explanation of the recommended form of government under the caption “Mayor-Council Plan D. Why Plan D?” It also appears that on one or more occasions, the charter study commission circulated the same re-run misinformation in a newspaper advertisement.

The referendum question at the general election of November 1973 was in the precise form mandated by statute, N. J. 8. A. 40:69A-14. It was headed “New Paterson City Charter Question,” and read as follows:

Shall Mayor-Council Plan D of the Municipal Charter Law, providing for a division of the City into 6 wards, with 9 Councilmen, one to be elected from each ward and three to be elected at large, be adopted by the City of Paterson.

Along with the question itself was an “Interpretive Statement” which read as follows:

A vote of Yes is a vote in favor of a new City Charter providing for non-partisan elections of a Mayor and a Council of nine members as above.
A vote No is a vote to revert to the 1871 Charter since the present or 1907 Charter has been held unconstitutional by the New Jersey Supreme Court.

It should be noted that the referendum question, which was in the only language permitted by N. J. S. A. 40:69A-14, did not call upon the voters to pass upon a form of government providing for Plan D with a run-oiL Neither did the interpretive statement on the ballot refer to a run-oif. The voters were merely asked whether or not they approved Mayor-Council Plan D providing for a division of the city into six wards with nine councilmen, one to be elected from each ward and three to be elected at large. To this question, they answered in the affirmative by an overwhelming margin in a vote of 9710 to 3841.

The fact remains, moreover, that there is no authority for a combination of plans. The voters cannot be presented with a choice of one feature from one acceptable plan and one from another. Hodges v. Van Fleet, 55 N. J. 528 (19.0). The Legislature has made available as separate entities those forms of government which it has approved, and Plan D with a run-off is not included among them. When the voters approved Plan D, they must be deemed to have approved it as authorized by the Legislature, namely Mayor-Council Plan D without a run-off.

It is, of course, regrettable that the charter commissioners issued and caused to be dispatched publicity containing a misstatement as to the need for a run-off. The misstatement is all the more.unfortunate in view of the fact that the footnote in their report indicated that there was at least “a shadow of a doubt” in their minds. If there were no such doubt, they would not have recommended repeal of the legislation specifically precluding a run-off, N. J. S. A. 40:69A-161.1. Incidentally, there appears to be no authority for the charter commissioners sending out the publicity at all. Under N. J. S. A. 40 :69A-10 they are directed only to file the original report with the municipal clerk, and "deliver to the municipal clerk sufficient copies of any such report to permit distribution to any interested citizen.” They are not directed to summarize or propagandize after their report has finally been made.

In any event, the principal and overriding consideration for the voters was the form of government, not the election procedure. The type of government itself was the big issue, and the election procedure merely peripheral. Surely, the form of government was the only issue upon which the people actually voted, and in view of the huge margin by which Plan D was adopted it is most unlikely that it would have been rejected if the voters had been specifically informed that no run-off would ensue if no candidate received a majority of the total votes cast.

As far as plaintiff is concerned, the fact that the necessity of a run-off is at least questionable should come as no surprise. The city clerk of Paterson, through Paterson’s Legal department filed complaint for declaratory judgment on January 4, 1974 on the question of the run-oil requirement, making the Attorney General of New Jersey defendant. After the court refused to rule on the matter because no justiciable issue bad been presented, the city counsel, Adolph Eomei, by a letter dated January 8, 1974, advised the city clerk that “you are not to provide for or conduct run-off elections in Paterson and the candidates receiving the greatest number of votes for the offices sought will be the candidates elected to those offices.”

At that time in January 1974 plaintiff did not make any move whatever to cancel or postpone the election to be held on May 14, 1974, nor to set aside the referendum of November 1973 as being the result of misinformation and to seek a new referendum as he now does. Only after his narrow defeat being confirmed by a recount obtained by him does he come to court to urge that the will of the voters will be thwarted if there should be no run-off, and only after such defeat does he now ask for a new referendum if the court should deny a run-off, and that meanwhile ho should remain in office.

The people of Paterson have been subject to uncertainty about their form of government since the present form of government was declared invalid in July 1972. If the court were now to declare the referendum of November 1973 to be void, it would mean that the people of Paterson would not only be required to endure further uncertainty, but would also have to continue under the present invalid form of government, about which the opinion in Mason v. Paterson, supra, said: “No logical reason can be perceived as to why all local legislative functions in Paterson must be performed by officials appointed by the Mayor while they are performed by elected representatives in all other municipalities of the State.”

Furthermore, it might not be sufficient merely to call for a new referendum on Plan D. If there is any merit at all to plaintiff’s contention, a new report and recommendation would be needed. Perhaps even a new election of charter study commissioners would be required. The chairman of the old commission has become a judge and resigned on August 28, 1973. His successor was thereafter appointed pursuant to N. J. S. A. 40:69A-6 after the final report had been adopted. Of the other four commissioners, three of them were councilmanic candidates in the election of May 14, 1974, one of them being successful. All these are defendants in this action. Moreover, it is likely that the voters would feel more secure with a charter study commission whose mistake did not cause this controversy. At any rate, there is no question but that the alternative relief sought by plaintiff would produce further delay of major proportions.

In conclusion, as regrettable as it is that the charter commission circulated publicity with incorrect information concerning the tangential matter of a run-ofE requirement, the countervailing public policy issues here must be weighed in the balance. The public policy question concerning the brochure pales into insignificance against the public policy question of allowing a candidate who finished second in an election for mayor to continue indefinitely to be mayor, and under a discredited and invalid form of government.

In view of all the foregoing, the relief sought in the complaint will be denied. An order should be submitted accordingly.


author: Petrella, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. HOWARD R. HUDES, DEFENDANT.
    Bergen County Court Criminal Division
    May 16, 1974.

      Ms. Alice Meyer, Assistant Prosecutor for the State (Joseph C. Woodcock, Prosecutor of Bergen County, attorney).

      Mr. Leopold A. Monaco for defendant {Messrs. Monaco & Oratio, attorneys).
   Petrella, J. C. C.

Defendant appeals de novo, on the record below, to the Bergen County Court from a January 23, 1974 judgment of the Hillsdale Municipal Court finding him guilty of operating a motor vehicle while his ability was impaired, in violation of N. J. S. A. 39:4-50 (b), and imposing a $50 fine, $10 costs, and a six-month revocation of license, which were stayed ponding this appeal.

The record supports the findings that at approximately 1:25 a.m. on November 23, 1973 a Hillsdale police officer had his attention drawn to a car backfiring, followed it for approximately one-half mile before stopping it, and during that distance observed it weave or swerve across the highway center line on six separate occasions. Defendant, after exiting his vehicle, was unsteady on his feet, he “swayed”, “staggered” and “seemed unsure of himself,” and had difficulty producing his operator’s license and vehicle registration. The arresting officer and a backup officer testified to “a strong odor of alcoholic beverage” on defendant’s breath. The defendant admitted he had consumed several beers. He was placed under arrest at the scene and taken to headquarters where certain coordination tests and a breathalyzer test were performed.

Defendant was advised of his right under N. J. S. A. 39:4-50.2 (c) to have independent tests made by a person of his own selection. He consented to the breathalyzer test, but also demanded a blood test. He was told he could go to a qualified doctor or hospital and have a specimen taken, but was allowed no opportunity to do so before the two breathalyzer tests were administered between 2:15 and 2:30 a.m. Because of defendant’s initial reluctance to post a $100 bond he did not leave the police station until about 4:25 a.m., which was after his mother arrived. There is no indication in the record below of whether defendant did or did not go for any independent blood test upon release.

The physical coordination tests given at police headquarters included a finger-to-nose test (which defendant missed four out of five times); leaning over forward and then backward (defendant performed well on the leaning forward part, but.lost balance leaning backward), and a straight-line walking test (which required “much effort”) as well as some other tests, including speech.

The municipal judge received into evidence, over objection as hearsay, two inspection certificates for the municipality’s one breathalyzer machine, which indicated that on dates prior to and after it was used to test defendant, i. e. October 18, 1973 and December 21, 1973, respectively, the machine was inspected by a State Police “coordinator” and found to be in proper working order. This coordinator covers a wide area of the State, performing inspections of breathalyzer machines used by law enforcement agencies. By virtue of special training he may often testify as an expert on certain machine functions and its operation, as well as concerning the ampoules used. The municipal judge admitted the two inspection certificates into evidence under Evid B. 63(13), entitled “Business Entries,” as an exception to the hearsay rule. The results of the two breathalyzer tests of defendant both showed 0.11% of alcohol in his blood. There was no objection to the operator’s qualifications nor to the manner, described in detail, in which he prepared, tested and operated the breathalyzer.

The officer conducting the physical tests and the breathalyzer tests used certain standardized forms, including an alcohol influence report, to record the test results and other information, including a description of physical condition. The forms for recording the machine-scale readings were introduced into evidence with the testimony of the operator that they were those prepared by the breathalyzer manufacturer. The alcohol influence report was a local form, common to that in use in the county and throughout the State and appears modelled after the New Jersey State Police Alcohol Influence Report Eorm, labelled “S.P. Ill (Rev. 9/69).” Defendant objected that there was no proof that the local form used was authorized by the Attorney General’s office pursuant to N. J. S. A. 39:4 — 50.3, although a comparison makes it obvious that the forms are substantially identical.

This appeal is on various grounds: first, that the certificates indicating the breathalyzer inspection should not have been admitted without the testimony of the trooper coordinator; second, if the certificates were inadmissible, the breathatyzer test results should not have been admitted; third, that the alcohol report forms should have been those authorized by the Attorney General, and fourth, that defendant was not allowed to have independent blood tests made by a person of his own selection and defendant urges this should render the breathalyzer results inadmissible.

I

The Certificate of Operability of the Breathalyzer Was Properly Admitted Into Evidence.

Defendant asserts the trial court mistakenly admitted into evidence the certificates of operability of the breathalyzer, without allowing him an opportunity on the State’s case to cross-examine the qualifications and findings of the trooper coordinator. The qualifications of the machine operator were not questioned based on his operator certification by the Attorney General.

A

Defendant relied in the trial court, as in this appeal, on so much of State v. Conners, 125 N. J. Super. 500 (Cty. Ct. 1973), which indicates that while the lay evidence there sustained the conviction, such certificates should be inadmissible under the business records exception to the hearsay rule, Evict. B. 63(13). Of course, this court is not bound by the decision of a trial court of equal jurisdiction. Ferraro v. Ferro Trucking, 72 N. J. Super. 519, 523 (Law Div. 1962); and see, Lackovic v. New England Paper Tube Co., Inc., 127 N. J. Super. 394, 398 (Law Div. 1974).

The argument can be summarized by two quotations, the latter limits the scope of the former. It was stated in State v. Miller, 64 N. J. Super. 262 (App. Div. 1960), while discussing the predecessor to the more modern breathalyzer:

The Drunkometer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of the blood to admit testimony of the reading obtained upon a properly conducted test, without any need for antecedent expert testimony by a scientist that such reading is a trustworthy index of blood alcohol, or why. [at 268]

The requirements for use of such tests were spelled out in State v. Johnson, 42 N. J. 146 (1964) :

It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given correctly (as well as the fact that the defendant consented orally or in writing), [at 171]

In this case the breathalyzer was certified as in proper operating condition on dates prior to and after defendant was tested, and there was testimony of the operator who checked the machine that he found it functioning properly before he used it. This is certainly prima facie proof that the machine was in proper order. The coordinator would not add significantly to this under the circumstances. In fact, the evidence, whether by the inspection certificates, coordinator, or both, is, and perforce must be, largely circumstantial — unless it is to be a requirement that the coordinator must be present during the actual administration of each test. The acceptance of the breathalyzer as a scientifically reliable and accurate device makes additional testimony unnecessary in the usual case unless there is some special circumstance requiring a full scientific hearing on the accuracy of a particular machine. Cf. State v. Salup, 128 N. J. Super. 209 (App. Div. 1974); State v. Finkle, 128 N. J. Super. 199 (App. Div. 1974) (taking judicial notice of scientific accuracy of VikSCAR).

But such a determination is not always required. For instance, in State v. DeVito, 125 N. J. Super. 478 (App. Div. 1973), the Appellate Division held the use of a random test sample of the ampoule used in the administration of a breathalyzer test was sufficient prima facie proof that the chemicals in any one ampoule were of the proper kind and mixed to the proper proportion. Although the DeVito case indicates that the State had proved the breathalyzer was in proper working order, it is not clear from the opinion whether the state trooper coordinator testified.

That these machines are not often inaccurate or prone to failure was discussed in State v. Lanahan, 110 N. J. Super. 578 (Cty. Ct. 1970), which approved the Attorney General’s administrative order changing the periodic testing of breathatyzer instruments from monthly to bimonthly. The court there made reference to the experience of accuracy and reliability of the instrument and the lack of malfunctioning as warranting the change in the time period. Such testimony was given in Lanahan by the state testing coordinator for breathalyzers and drunkometers. The conviction was upheld although the machine had been tested and was found in operating condition eight days before the defendant was tested, but the next test had not been conducted before the time of the trial. 110 N. J. Super, at 581-583. Thus, the only relevant certificates of operability available were those prior to the examination of the defendant, which did not permit any cross-examination by defense counsel as to whether the machine could be inferred to be in proper order at the time of defendant’s examination. Lanahan dealt with circumstantial evidence and with a presumption of proper working condition of the machine, if working properly prior to the examination of a driver, unless the defense could by suggestion, evidence, proof or circumstance establish the inaccuracy or malfunction of the instrument.

Defendant contends in the instant case that satisfactory operability can only be established by cross-examination of the individual conducting the inspections of the machine, rather than by proof of inspection and whatever checks are made by the operator. However, cross-examination, and indeed examination, is sometimes limited in several areas where circumstances warrant, e. g., the business records exception, and reports by public officials. In the latter examples, documents may be offered in evidence for the truth of their contents.

B

The business records exception was originally meant for records trusted and relied upon by businessmen in commercial circumstances. See Mahoney v. Minsky, 39 N. J. 208 (1963). Primary use of the exception was in civil cases, but this was before the days when government, and law enforcement in particular, had to cope with modern record-keeping requirements and employed modern equipment, resulting in more complex problems of proofs.

Such evidence rules and acts as the former Business Eecords as Evidence Act, N. J. S. A. 2A :82-34, et seq. (compare 9A Uniform Laws Annotated 504), broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness. Laughlin, “Business Entries and the Like,” 46 Iowa L. Rev. 276, 305 (1961) ; Norville, “The Uniform Business Eecords as Evidence Act,” 27 Ore. L. Rev. 188 (1948); 30 Am. Jur. 2d, Evidence, § 927; 5 Wigmore, Evidence (3d ed. 1940), § 1528; McCormick, Evidence, (2d ed. 1972), §§ 304-314.

Evid. R. 63(13), “Business Entries” provides:

A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.

The purposes of this type oí rule are: broaden the unavailability concept, and take into account modern advances in business conditions and the inherent reliability of business methods and systems as well as the practical necessity for convenient proofs. See Polasky and Poison, “Business Entries,” 4 Utah L. Rev. 327-334 (1955).

The early rule, much narrower in scope, was based on a rather ancient exception to the hearsay rule, “the common law shopbook law,” and consistently proscribed such matters as proof of amounts owed or payments to the bookkeeper by entries in his own books. See Johnson v. Hoffman, 7 N. J. 123 (1951). When Johnson was decided the Uniform Act was in effect in New Jersey, but the case apparently arose in the trial court before the effective date. In any event, N. J. S. A. 2A:82-34, the statute then in effect, was not referred to in that decision. The rule was liberalized by the New Jersey equivalent of the Uniform Act and the subsequent Buies of Evidence. See, e. g., Mahoney v. Minsky, supra.

Generally speaking, regularly kept records are properly allowed in evidence, subject to the discretionary authority of the trial judge under Evid. B. 4. The common law exception had four elements: (1) the entries must have been original entries made in the routine of business, (2) must have been made upon personal knowledge of the recorder or of someone reporting to him, (3) must have been made at or near the time of the transaction recorded, and (4) the recorder and his informant had to be shown to be unavailable. See Chaffee v. United States, 18 Wall. (U. S.) 516, 21 L. Ed. 908 (1873); Nicholls v. Webb, 8 Wheat. (U. S.) 326, 5 L. Ed. 628 (1823).

The modern approach requires that the “writing offered as a memorandum or record of acts, conditions or events” be made (1) in the regular course of a “business”, (2) at or near the time of the act, condition or event recorded, and (3) if the sources of information and method and circumstances of preparation justify its admission. Evid. B. 63(13). The requirement of unavailability of the recorder has been eliminated.

As noted, government in general, and a law enforcement department in particular, were not thought of as businesses. However, it has become obvious in more modern times, that the complex operations of an efficient government require efficient techniques, management and procedures. Law enforcement is no exception and the court considers reports and records kept in connection with such enforcement as “business records” within the meaning of Evid. R. 63(13). Brown v. Mortimer, 100 N. J. Super. 395 (App. Div. 1968) ; Fagan v. Newark, 78 N. J. Super. 294 (App. Div. 1963). See Evid. R. 62(5).

Should the rule be any different in a yMasi-criminal proceeding under the Motor Vehicle Act? Police accident reports are regularly admitted in civil cases under the regularly kept records exception, as well as similar reports of investigation. See Schneiderman v. Strelecki, 107 N. J. Super. 113, 119 (App. Div. 1969), certif. den., 55 N. J. 163 (1969); Rogalsky v. Plymouth Homes, Inc., 100 N. J. Super. 501 (App. Div. 1968), certif. den., 52 N. J. 167 (1968); Official Comments to Evid. R. 63(13); McCormick, Evidence, supra, § 316, at 727; Annotation, 69 A. L. R. 2d 1148; 30 Am. Jur. 2d, Evidence, §§ 937, 939; and 32 C. J. S. Evidence § 685(1).

Perhaps the area where the personal knowledge requirement has the most impact concerns police reports and similar reports of investigations. In such cases there is little doubt that the report of the investigating officer was made in the regular course of a business * * *. [McCormick, supra at 727; (footnotes omitted)]

The certificate of operability complies with the requirements oí Evid. R. 63(13) for admission into evidence. It is a written document, made in the regular course of business by a trooper whose duty it is to inspect these machines, authenticated as the original, and made at the time of the testing of the breathalyzer.

The state trooper coordinator’s testimony in cases brought under N. J. S. A. 39:A-50(a) and (b), et seq., involving the breathalyzer appears unnecessary in this case, absent special circumstances, in view of the prevalence of this machine in police departments throughout the State. In view of the number of such inspections, it can be expected that the coordinator would in most cases have to use the certificates or his records to refresh his recollection as the basis for his testimony.

This situation is different from Rogalsky v. Plymouth Homes, Inc., supra, holding that the statement of a witness to an accident does not become admissible because it was included in a policeman’s report. The material must be obtained from a trustworthy and reliable source. The certificate of operability contains direct evidence of one qualified to judge the working condition of a breathalyzer. The trooper coordinator tests the machine in accordance with guidelines prepared by the manufacturer, whose standards the machine must meet in order to be certified. There is little individual judgment left to the trooper coordinator other than to comply with the procedures and check the performance of the breathalyzer against the specifications. In the court’s view, such certificates should be admissible under Evid. R. 63(13) in a proceeding under the Motor Vehicle Act.

C

The certificates of operability would also be admissible under Evid. R. 63(15), “Reports and Findings of Public Officials

Subject to Rule 64, a statement is admissible if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public oficial if it was within the scope of bis duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

The certificate is basically a written statement of a public official with a duty to record the results of his firsthand observations. There is a presumption, absent contrary testimony, that those responsible for services to the public will carry out their duties in a proper, careful and prudent manner. See State v. Kuznitz, 105 N. J. Super. 33 (Cty. Ct. 1969); State v. Forer, 104 N. J. Super. 481 (Law Div. 1969).

The trooper coordinator was authorized by his commanding officer to examine the breathalyzer involved in this case and he was under a duty to follow this command and to properly record the factual results as a “public official.” See Evid. R. 62(3). The court can take notice of the fact that the State Police come under the direct supervision and control of the State Attorney General, who is the head of the State Department of Law and Public Safety. The trooper comes within the scope of those designated as a public official within the contemplation of the evidence rule. The same public policy decision underlies this exception to the hearsay rule as that involving business records, that the official written report is more reliable than the memory of the official.

This, of course, does not preclude a defendant in a proper ease, if he so elects, from challenging the accuracy of the readings on the machine by expert scientific witnesses, or preclude subpoenaing of the trooper coordinator. See State v. Johnson, supra, and State v. Finkle, supra. Discovery procedures would also allow a defendant to ascertain if the latter would be helpful or harmful to his case. Nor is the State precluded from seeking the testimony of the trooper coordinator if necessary or useful in a particular case.

Tn summary, the certificates were properly admissible as business records under Evid. R. 63(13) or as official records under Evid. R. 63(15).

II

The Requirement of Sequentially Numbered Reporting Forms.

The Attorney General is required by N. J. S. A. 39 :4-50.3 to prescribe a uniform form for reports of “chemical analysis of breath” on forms which “shall be sequentially numbered.” The form referred to by this statute is the one used to report the “chemical analysis” and includes the local “Alcohol Influence Report” 'which appears on its face substantially identical to the State Police counterpart form.

It is conceded that the form used to record the results of the defendant’s performance on the breathalyzer were not sequentially numbered, as would appear to be required by the use of the word “shall” in N. J. S. A. 39 :4-50.3. The omission of the forms being sequentially numbered does not appear to deny defendant a fair and impartial test nor deny him access to any materials, and further, no allegation has been made that a failure to sequentially number the forms rendered the results inaccurate, caused the machine to malfunction, or affected the recording of the breathalyzer reading by the operating officer. The same reasoning also applies to the forms used. There has been no showing of prejudice and there is no statutory right conferred which would warrant suppression of test results in all such examinations.

No constitutional rights are denied by the lack of sequentially numbered forms. The failure to give Miranda warnings prior to the administration of the breathalyzer test has been held not to invalidate the admission of test results. State v. Macuk, 57 N. J. 1 (1970); State v. Kenderski, 99 N. J. Super. 224 (App. Div. 1968). Additionally, the period when consent to the breathalyzer examination is requested by the police has been held not to be a “critical stage” of criminal proceedings requiring that the defendant be permitted to have the advice of counsel. State v. Pandoli, 109 N. J. Super. 1 (App. Div. 1970). Further, the imposition of any method of chemical analysis of the blood, breath or urine of a suspected inebriated driver does not violate the Fifth Amendment privilege against self-incrimination since it is a search oí the person for noncommunicative evidence. Schmerber v. California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Kenderski, supra; State v. Swiderski, 94 N. J. Super. 14 (App. Div. 1967). Nor is there presently any constitutional right to a speedy trial in drunk driving cases. In re Emberton, 109 N. J. Super. 211 (App. Div. 1970).

Moreover, defendant did not even have the legal right to refuse to submit to the breathalyzer test since his very driving upon the highway acted as his consent to the taking of samples of his breath, so he cannot object to the manner of recording of the evidence so long as it was undertaken in a reliable and trustworthy manner. The implied consent statute was conceived and enacted for laudable public purposes and to serve valid state interests, including the avoidance of the use of force in obtaining samples, to assist in obtaining the most reliable evidence of driving while intoxicated, and to reduce the number of death-dealing drunken drivers on highways by administrative sanctions, including the suspension of drivers’ license privileges.

Ill

The Bight of Defendant to Have an Independent

Test Made Pursuant to N. J. 8. A. 39:1-50.2(c).

Defendant was informed of his statutory rights by the police officer before the breathalyzer test was administered, including his right to a blood test as required by N. J. S. A. 39:4-50.2(d). It is clear that such right arises after submission to the breathalyzer, otherwise the defendant might delay the test so that the results would be substantially affected. Indeed, State v. Pandoli, supra, 109 N. J. Super. at 3, held that the police need not wait for defendant to have the advice of an attorney before determining whether he would accede to the test, as far as the sanction of revocation for refusal is concerned. Prompt action by the State was warranted as an emergency measure to minimize loss of evidence. See State v. McMaster, 118 N. J. Super. 476, 479 (App. Div. 1971); State v. Pandoli, supra, 109 N. J. Super. at 4; State v. Gillespie, 100 N. J. Super. 71, 85 (App. Div. 1968), certif. den., 51 N. J. 274 (1968); and State v. Tolbert, 100 N. J. Super. 350, 356 (Cty. Ct. 1968).

Defendant could have made arrangements for his own independent test after the breathalyzer test or after release from custody. His own actions in this case delayed his release. Defendant did not testify and there is no indication in the record that he asked to use the telephone following the test to set up a prompt appointment at a doctor’s office or hospital for any additional test. There is also no suggestion that the police department should assume the responsibility or must assist a defendant in his arrangements for the test or transport him to his doctor or to an independent laboratory for a blood test.

In State v. Magai, 96 N. J. Super. 109 (Cty. Ct. 1967), it was noted that:

N. J. S. A. 39:4-50.2 is silent as to any given procedure to be employed in securing an independent analysis of a defendant’s blood. Tbe police could, as was done in this case, extend the use of the telephone to a defendant. On the other hand, a defendant could indicate his choice of a physician to the police who, in turn, would make the necessary arrangements. Those and other reasonable means could be employed in the absence of any precisely defined procedure in the statute. Where a statute confers certain rights upon a defendant, the police are not thereby denied the authority to establish reasonable regulations in implementation of these rights; they are, perforce, charged with the duty of promulgating reasonable procedures to vouchsafe such rights to a defendant, [at 113]

The basic rights normally accorded one accused of a criminal offense must be accorded a defendant in a prosecution for drunken driving. State v. Ingram, 67 N. J. Super. 21 (Cty. Ct. 1961). The burden of proving voluntary consent to the breathalyzer is on the State. State v. Swiderslci, supra.

There is no doubt that being informed of the statutory right to have an independent examination by a physician or facility of defendant’s choice is a right afforded by statute, and that non-compliance could vitiate a conviction for driving while under the influence or while impaired, if based solely on the chemical analysis. See State v. Blair, 45 N. J. 43 (1965) and State v. Tolbert, supra, 100 N. J. Super, at 356.

Blair arose before the amendments to the Motor Vehicle Act by L. 1966, cc. 141 and 142, involving implied consent to a blood test in cases under N. J. S. A. 39 :4^50. In Blair the court construed N. J. S. A. 39 :4-50.1 in the form enacted by L. 1951, c. 23, and applied an express requirement in that statute which read as follows: “No chemical analysis, as provided in this section, or specimen necessary thereto, may be made or taken unless expressly consented to, or requested by, the defendant.” The court reversed on the ground that the State must prove express consent. The quoted language was deleted in 1966.

However, the facts of this case as appear in the record do not establish that this is such a ease. Here, as distinguished from Blair, supra, the record is consistent with the finding that defendant was undisputedly advised of his rights under the statute and was told he could have the tests done after the breathalyzer test, if he elected to submit to that test.

IV

Independent Evidence Establishes the Impaired Ability of the Driver.

Even in the absence of any breathalyzer results, there is sufficient evidence in the record to indicate beyond a reasonable doubt that defendant was intoxicated to a prohibited degree which impaired his ability to operate his vehicle and thus sustain the conviction. The cumulative effect of the driving observed by the arresting officer, the inability of the defendant to promptly produce his operator’s license and vehicle registration, his confused mental state, his performanee on the several physical coordination tests, the strong odor of alcohol on defendant’s breath, his admitted consumption of alcoholic beverages and the observations of several other experienced police officers, leads to the conclusion beyond a reasonable doubt that the defendant’s ability to operate was impaired.

Intoxication may be proved by nonexpert testimony based on observation. State v. Johnson, 42 N. J. 146, 166 (1964); State v. Guerrido, 60 N. J. Super. 505 (App. Div. 1960); State v. Conners, 125 N. J. Super. 500, 511-513 (Cty. Ct. 1973), and see Castner v. Sliker, 33 N. J. L. 95 (Sup. Ct. 1868). In the present case not only was defendant’s ability to drive impaired as a result of intoxicating liquors proved by the scientific evidence, but the record supports the independent finding by the court, based on nonexpert testimony, that the defendant is guilty beyond a reasonable doubt of a violation of N. J. S. A. 39:4-50(b).

In light of State v. Nash, 64 N. J. 464 (1974), sentence will be imposed, with appropriate judgment pursuant to R. 3:23-8(e), of a $50 fine and revocation of driving privileges for a period of six months, the mandatory penalty under the statute, plus costs of $10, unless defendant wishes to be heard on sentence, in which case defendant is to present himself to the court for imposition of sentence forthwith.

      N. J. S. A. 2A:82-35 had provided, before it was superseded in accordance with N. J. S. A. 2A :84A-40:
      A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

      See N. J. S. A. 52 :17B-2 and 6.

      It is conceded that there is as yet no State regulation promulgated adopting such form. The Attorney General’s office advises that a proposed rule or regulation on this subject is expected to be published in the near future in the New Jersey Register.


author: Dreier, J. D. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ALAN DAVIES, DEFENDANT.
    Union County Court
    May 16, 1974.

      Mr. Michael C. Willner for defendant.

      Mr. Lawrence Posner, Assistant Prosecutor, for the State (Mr. Karl Asch, Union County Prosecutor, attorney).
   Dreier, J. D. C.,

Temporarily Assigned. Defendant has appealed from a denial by the Municipal Court of his application pursuant to N. J. S. A. 2A:85-15 to expunge the record of an arrest. Since this court is of the opinion that the municipal court judge misinterpreted the provisions of the statute, and it appears that there has been no interpretation of the statute recorded since its enactment, this opinion has been reduced to writing.

Defendant was arrested on November 13, 1973 for violating N. J. S. A. 24:21-20(a) (3), possession of a controlled dangerous substance. Defendant successfully moved before the Union County Court to suppress certain evidence, and the complaint against him was dismissed. Thereafter, he moved before the municipal court to expunge the record of the arrest, but his motion was denied. The municipal court judge determined that, since the State had been deprived of its evidence on the basis of defendant’s motion to suppress, defendant gave up the opportunity to have his arrest record expunged. The judge further made clear upon the record his view that defendant’s counsel had an obligation not to move to suppress any evidence necessary for the State’s case if defendant might later wish to have his arrest record expunged.

N. J. S. A. 2A:85-15 reads as follows:

Any person who has been arrested for a violation of the disorderly persons law, a misdemeanor or a high misdemeanor under the laws of New Jersey and against whom proceedings were dismissed, or who was discharged without .a conviction, or who was acquitted, may at any time following the dismissal of proceedings, or the discharge without a conviction, or the acquittal, present a duly verified petition to the court in which the judgment of acquittal, discharge or dismissal was entered, or, if there were no court proceedings, to the court in whose jurisdiction the arrest occurred, setting forth all the facts in the matter and praying for the relief provided by this act.

N. J. S. A. 2A:85-16 specifies the fixing of a time for hearing and service of notice upon the local police officials, the prosecutor and the Attorney General, who may object to the expungement of the record in question.

N. J. S. A. 2A:85—17(a) provides:

At the time appointed for the hearing, if there is no objection from those law enforcement agencies notified of the hearing, and no reason appears to the contrary, the court may grant an order directing the clerk of the court and the parties upon whom notice was served to expunge from their records all evidence of said arrest including evidence of detention related thereto, and specifying those records to be expunged. [Emphasis supplied]

N. J. S. A. 2A:85-17(b) provides for the procedure for the physical removal, storage and control of the expunged records.

There then appears N. J. S. A. 2A:85-18, 19 and 20, setting forth the further procedure in the event an objection is received from one of the law enforcement agencies. It is under those sections that the municipal court judge found that he had no power to expunge the arrest record, since there wore “grounds for denial” as defined in N. J. S. A. 2A:85-20, namely, when the dismissal of the charge resulted “after exclusion of highly probative evidence upon invocation of an exclusionary rule not directed to the truth of the evidence excluded.” On appeal, we note, however, that the issue of “grounds fox denial” never arises unless an objection is made by one of the law enforcement agencies to which notice has been given. In this case, not only was there an absence of such an objection, but there was specific communications from the law enforcement agencies stating that they had no objection to expungement in this case. Prom the statute it appears there are two separate issues that can come before a court in an expungement case, and different language is used describing the court’s function as to each. The issue turns upon whether there is an objection from a law enforcement agency. If there is no objection, “and no reason appears to the contrary, the court may grant an order directing the clerk * * * to expunge * * * all evidence of said arrest” (N. J. S. A. 2A:85-17 (a)). This is the first decision a court may be called upon to make. On the other hand, if there is an objection, “the court shall determine whether there are grounds for denial” (N. J. S. A. 2A:85-18(a)). If so, “the court shall not grant an order to expunge” (N. J. S. A. 2A:85-19). In this latter ease, “grounds for denial” are specifically defined in N. J. S. A. 2A:85-20. It might be possible to read these latter standards as a required basis for the court’s adverse determination even if there is no objection from a law enforcement agency (under N. J. S. A. 2A:85-17(a)), but the legislative history of the act in question shows otherwise. The original Assembly bill was introduced in 1969, passed both houses of the Legislature, but was vetoed withput a veto message. It was reintroduced, but died in committee in 1970, 1971 and 1972. It finally became chapter 191 of the Laws of 1973 after being amended several times during the enactment process. Governor Cahill conditionally vetoed the bill on March 9, 1973, and his veto message dated March 9, 1973 included the new suggested texts of N. J. S. A. 2A:85-17 (a) through 22, inclusive, adding the procedure in the event an objection was made and the determination of “grounds for denial.” The veto message said, in part:

There may be situations where the police have no reason to retain an arrest record as when the arrest was an admitted mistake. In such a situation it may be appropriate to expunge the arrest record. However, if the police legitimately helieve that the record is necessary for law enforcement purposes, expungement would be inappropriate.
In some situations where an arrest does not result in a conviction, neither expungement nor sealing should be permitted. For example, if a plea bargaining agreement results in the dismissal of unrelated offenses involving separate arrests, those arrest records are, and will continue to be, extremely meaningful and useful to the police despite the dismissal of the offense. There is no justifiable reason why such information should not continue to be used as it is presently being used. [Emphasis supplied]

The separate genesis of the “grounds for denial” sections, and the separate purposes which they serve as set forth in the Governor’s veto message, lead this court to the conclusion that N. J. S. A. 2A:85-18(a), emplojdng different language from N. J. S. A. 2A:85-17(a), should be differently interpreted.

Although the second issue should not even have been reached, defendant offered to prove in the municipal court, by testimony from the investigating officer that the evidence excluded by the County Court would not have been highly probative and in fact would have been exculpatory. Counsel explained that since the excluded evidence was the only evidnce the State was to have presented, and without it the charge of necessity would be required to have been dismissed, ho felt duty bound to make the suppression motion.

The municipal court judge refused to permit proof that the evidence would not have been highly probative, even in view of the language of N. J. S. A. 2A:85-18(a) stating, “'The court shall determine whether there are grounds for denial. * * *” Thus, defendant was also denied his right to present evidence to show that the excluded evidence was not highly probative under N. J. S. A. 2A:85-20(b). At oral argument of this motion the representative of the prosecutor’s office acknowledged that such evidence would not have been highly probative against defendant.

Applying the standards of N. J. S. A. 2A:85-17(a), and seeing no reason to remand the matter for a fresh determination of whether the arrest record should be expunged, this court will exercise the discretion granted under this section and enter the expungement order.


text:
    ANDREW STRZELECKI, PETITIONER-APPELLEE, v. JOHNSMANVILLE PRODUCTS CORPORATION, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 14, 1974
    Decided January 31, 1974.

      Before Judges Leonard, Alloorn and Crahay.

      Mr. Richard H. Thiele, Jr. argued the cause for appellant (Messrs. Wharton, Stewart & Davis, attorneys).

      Mr. Herbert Koransky argued the cause for appellee (Mr. Arthur D. Fialk, on. the brief).
   Per Curiam.

In this workmen’s compensation case, respondent employer appeals from a judgment entered in the Division awarding petitioner dependency benefits as the widow of one of its deceased employees.

The deceased, while he was employed by respondent as an associate financial analyst, was enrolled in a Business Finance course at Rutgers University, Newark, which commenced on June 7, 1971 and terminated on August 30, 1971. He was pursuing a Master’s degree in Business Administration. Respondent agreed to pay the tuition ($95) upon successful completion of the course. His department noted on the tuition request form that the “course should be helpful to this employee’s career at J.M.”. He attended classes on Monday, Wednesday and Friday evenings.

On those nights on which he was not required to attend class he habitually would go to study at the library located at either the Newark or New Brunswick campus, leaving home about 6 p.m. and returning about 8 or 8:30 p.m.

On Thursday, June 30, 1971, while driving from his home in Manville, New Jersey, to the New Brunswick library he was involved in a fatal accident.

The judge of the Division found that death arose out of an accident which occurred in the course of employment. He reasoned that the situation fell within the concept of the “mutual benefit” doctrine.

Assuming, without deciding, that had deceased been killed on his way to attend a class at Rutgers, Newark or on route therefrom to his home, petitioner might have been entitled to dependency payments under the “mutual benefit” doctrine, cf. Cuna v. Bd. of Fire Com’rs, Avenel, 42 N. J. 292, 305-306 (1964); Saintsing v. Steinbach Company, 1 N. J. Super. 259, 264 (App. Div. 1949), aff’d 2 N. J. 304 (1949); Barbarise v. Overlook Hospital Assn., 88 N. J. Super. 253, 258 (Co. Ct. 1965), we nevertheless are of the opinion that this doctrine cannot be extended to establish compensability in the instant situation. Here, the situs of his studies was his personal choice. See Anderson v. Chatham Electronics, 70 N. J. Super. 202, 207-208 (App. Div. 1961); Thering v. Reinkemeyer, 117 N. J. Super. 176, 182 (Law Div. 1971); 1 Larson, Workmen’s Compensation, § 27.31(a), p. 5-238 (1972).

Love v. N. Y. S. Craig School, 42 A. D. 2d 796, 345 N. Y. S. 2d 710 (App. Div. 3 Dept.), upon which petitioner relied at oral argument, is factually inapposite.

Accordingly, the judgment entered in the Division allowing dependency benefits is reversed. Consistent with our determination herein, the counsel fees allowed to petitioner’s attorney in the Division are set aside and reversed. See N. J. S. A. 34:15-64.

Reversed and remanded to the Division of Workmen’s Compensation for the entry of a judgment in accordance herewith.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JULIUS BLUE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 14, 1974
    Decided June 4, 1974.

      Before Judges Halpehh, Matthews and Bischoee.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Robert D. Robinson, Designated Counsel, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General, attorney for respondent (Mr. Solomon Rosengarten, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant was convicted by a jury of armed robbery in violation of N. J. S. A. 2A:141—1 and N. J. S. A. 2A:151-1. On appeal he urges that (1) admission of a comment he made was error; (2) it was error to permit the State to question him concerning a prior conviction then on appeal; (3) the identification procedures were unduly suggestive.

The issue of guilt was sharply contested. The victim of the offense was robbed at gunpoint by two men, one short and one tall, at approximately 10 a.m. as he drove his catering truck from a construction site where he had just served three men. The attack was witnessed by the construction workers, but they were unable to identify the perpetrators. After an unsuccessful attempt to identify the robbers from a mug shot book, the victim identified defendant from a group of five or six photographs as the taller of the two men. He also subsequently identified defendant through a television screening and a lineup.

Defendant personally and through his several witnesses presented an alibi defense. His employer testified that he personally saw defendant at his place of business during the time the robbery was said to have occurred. Other witnesses recalled seeing defendant around the time of the robbery as he performed duties on behalf of his employer.

When the police came for the purpose of having defendant appear in a lineup, defendant was overheard to say to an unidentified man standing next to him, “Call my lawyer. They’re here after me.” That statement was admitted in evidence over protests that it was irrelevant. While the second part of the statement may have been relevant to show consciousness of guilt (State v. Mills, 51 N. J. 277, 286 (1968), cert. den. 393 U. S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968)), defendant now argues that admission of the entire statement violated his Sixth Amendment right to counsel.

Admission oí a statement similar to this was considered in State v. Macon, 57 N. J. 325 (1971). Under the facts existing there, it was found that no right to counsel existed at the time at which defendant uttered the comment and that error, if any, in admitting the statement was harmless because the utterance only indicated “awareness of involvement in a legal predicament.” 57 N. J., at 331-333.

During the trial counsel for defendant made no objection on Sixth Amendment grounds and indicated that he felt the statement was not of particular significance in the context of the whole trial. He argued to the jury that it was a natural reaction to defendant’s overhearing the request, apparently made to his employer, that defendant come to the police station. The State argued that the statement showed consciousness of guilt. No objection was made to the portion of the State’s summation which included reference to the utterance.

We are unable to apply the Macon rule here since we find the factual circumstances existing in this case unsupportive of a harmless error conclusion. As mentioned, the issue of guilt was sharply contested, and the outcome clearly rested on the credibility of the victim and defendant. We believe that it would be improper to permit the State under such circumstances to use defendant’s constitutional right to request counsel as evidence of guilt. Justice requires otherwise.

Defendant urges as his second point that the trial judge erred in allowing him to be questioned concerning a conviction which was then on appeal. We are now advised that the conviction was subsequently reversed. Until State v. Leonard, 126 N. J. Super. 308 (Law. Div. 1974), no case in our State dealt with this problem. Leonard decided that a conviction on appeal could be used for impeachment purposes, basing the result on the court’s interpretation of N. J. S. A. 2A:81-12 and State v. Hawthorne, 49

N. J. 130 (1967), by analogy. The majority of the jurisdictions which have considered this issue have found such a conviction may be used since it represents a final judgment. See generally, Annotation, “Permissibility of Impeaching Credibility of Witness by Showing Former Conviction, As Affected by Pendency of Appeal from Conviction or Motion for New Trial,” 16 A. L. B. 3d 726 (1967). On the other hand, the jurisdictions which hold a conviction on appeal not to be admissible have legislation or case law indicating that a conviction is not final until it has been affirmed on appeal. See Fenwick v. United States, 102 U. S. App. D. C. 212, 252 F. 2d 124 (D. C. Cir. 1958), citing Campbell v. United States, 85 U. S. App. D. C. 133, 176 F. 2d 45, 47 (D. C. Cir. 1949); State v. Blevins, 425 S. W. 2d 155 (Mo. Sup. Ct. 1968); Adkins v. Commonwealth, 309 S. W. 2d 165 (Ky. App. 1958); Ringer v. State, 137 Tex. Cr. R. 242, 129 S. IF. 2d 654, 656 (Cr. App. 1938).

In this State a criminal judgment becomes final when sentence has been imposed. State v. Hintenberger, 41 N. J. Super. 597, 601 (App. Div. 1956), certif. den. 23 N. J. 57 (1956); State v. Spagnola, 48 N. J. 326, 329 (1966). Judgment is not suspended pending appeal. N. J. S. A. 2A:81-12, which allows prior convictions to be used for impeachment purposes, appears to be unqualified. See State v. Hawthorne, 49 N. J. 130 (1967). However, we find it to be fundamentally unfair to permpkthe use of a prior conviction to impeach credibility while the very credibility of this conviction itself is under attack through the appellate process. Ths is borne out under the facts of this case which involved a close question of guilt depending largely on the jurors’ resolution of who was telling the truth. We believe that the prior conviction should have been excluded because it was on appeal. Campbell v. United States, 85 U. S. App. D. C. 133, 176 F. 2d 45, 47 (1949).

Lastly defendant contends that the identification procedure used here was impermissibly suggestive because the victim made two photographic and two personal identifications. There is no indication that the victim needed reinforcement to identify defendant, as was the case in Foster v. California, 394 U. S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). To the contrary, the record discloses that the victim was careful, intelligent and consistent in his identifications. The issue created was clearly one for resolution by the jury. We find no violation of due process. Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).

Keversed and remanded for a new trial.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RONALD HUNTLEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 29, 1974
    Decided June 10, 1974.

      Before Judges Halpekn, Matthews and Bischoff.

      Mr. Stanley C. Van Ness, Public Defender of Dew Jersey, attorney for appellant (Mr. Steven Zamrin, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. David S. Baime, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

This appeal poses the problem of whether the trial judge abused his discretion in not permitting defendant, prior to imposition of sentence, to withdraw his guilty pleas which were made pursuant to a plea bargain.

Defendant had been indicted for robbery (N. J. S. A. 2A:141-1) and was confined to the Camden County Jail awaiting trial. While in jail he was indicted for committing sodomy (N. J. S. A. 2A:143-1) with a fellow inmate. On May 8, 1973 he Tetraeted his not guilty pleas to the robbery and sodomy charges and, pursuant to a plea bargain submitted for approval to the trial judge, pled guilty to both charges. At the same time he also pled guilty to an accusation charging him with malicious destruction of property during a disturbance at the jail.

On June 19, 1973 defendant moved to withdraw the guilty pleas asserting that (a) he had mistakenly pled guilty, (b) he was innocent of the crimes charged, (c) he pled guilty because he was tired of being confined to jail, (d) he was improperly coerced by the leniency of the plea bargain to enter the guilty pleas, and (e) no factual basis was established for the guilty plea to the property damage accusation. The trial court placed no credence in these assertions and denied the motion.

The motion to withdraw the guilty pleas was renewed on the date of sentencing. An additional ground was then asserted that the alleged victim of the sodomy had certified in writing that defendant had not committed sodomy with him. This certification was in direct conflict with a previous version of the incident given by the victim. The trial judge found the certification to be unworthy of belief and denied the motion. He sentenced defendant on the robbery and sodomy charges, in accordance with the plea bargain, to concurrent 4 — 6 year terms in State Prison. Defendant’s motion to withdraw the guilty plea to the property damage accusation was granted, and the accusation was dismissed. This appeal followed.

We are committed to the principle that a guilty plea voluntarily entered may not be withdrawn except pursuant to leave granted in the exercise of the trial judge’s discretion.

* !l" * However, where before sentence the defendant asserts his innocence and seeks to withdraw his plea and proceed to trial, the courts in our State, in practice, generally exercise their discretion liberally to enable withdrawal of the plea and a trial on the merits; * * *. [State v. Deutsch, 34 N. J. 190, 198 (1961)]

We should note that in Deutseh a plea bargain was not involved, and the matter was remanded to the trial judge to supplement the inadequate record which prevented the Supreme Court from determining whether the trial judge abused his discretion in denying the motion to withdraw the guilty plea. Thus, it is clear that the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion. Any other approach would automatically require a trial judge to grant such motions, and strip him of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion.

The record is abundantly clear that when defendant’s guilty pleas were entered the trial judge carefully and fully complied with the mandates of R. 3:9—2. After defense counsel had assured the trial judge that defendant’s guilty pleas were made voluntarily and knowingly after full consultation with him, the trial judge personally inquired of defendant as to the voluntariness of his execution of Eorm 13A. When questioned by the trial judge, defendant related in full and vivid terms how and why the robbery in question had been committed. Defendant readily admitted his act of sodomy as described to him by the trial judge. The trial judge advised defendant of his right to a jury trial; his right to the benefit of the presumption of innocence; his right to counsel; and informed him that the robbery charge authorized a maximum penalty of 15 years, and the sodomy charge a 20 year maximum. The trial judge then explained the proposed plea bargain between defense counsel and the prosecutor. lie made it clear to defendant that concurrent 4-6-year terms in State Prison were being recommended for the charges of robbery and sodomy. After the trial judge was satisfied that the pleas were voluntarily and knowingly made, he permitted them to be entered.

We have canvassed the entire record and agree with the trial judge that the guilty pleas were voluntarily and knowingly entered, and that the trial judge did not abuse his discretion in refusing to permit withdrawal of the pleas. State v. Pometti, 12 N. J. 446, 451-453 (1953). Defendant’s bare assertions that he mistakenly entered his guilty pleas, and that he was improperly coerced to do so are unsupported in the record. His late protestations of innocence, and the victim’s certification of defendant’s innocence on the sodomy charge were found to be unworthy of belief, and were properly rejected by the trial judge. State v. Baldwin, 47 N. J. 379, 400 (1966), cert. den. 385 U. S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966). The figure of justice is blindfolded but it is not blind to those who seek to make a mockery and playtool of justice.

We deem it important to indicate that we are in complete accord with the philosophy expressed in Deutsch with respect to the liberality to be exercised in considering applications to withdraw guilty pleas when made before imposition of sentence. However, when a voluntary and knowing plea bargain has been entered into simultaneously with the guilty plea, defendant’s burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier. The approved philosophy of “plea bargaining” is dependent upon the good faith of both sides in carrying out the bargain when it is voluntaritly and knowingly made, is fair and just and is ultimately approved by the trial judge. A whimsical change. of mind by defendant, or the prosecutor, will not be a valid reason for altering the bargain. State v. Thomas, 61 N. J. 314, 321-323 (1972); State v. Wall, 36 N. J. 216, 218 (1961). Even a belated assertion of innocence will not upset an otherwise validly entered into plea bargain. North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); United States v. De Caval cante, 449 F. 2d 139 (3 Cir. 1971), cert. den. 404 U. S. 1039, 92 S. Ct. 715, 30 L. Ed. 2d 731 (1972).

In summary, this record clearly indicates the pleas of guilty were the product of a free and rational choice made with the advice of competent counsel, and that no valid basis has been shown to warrant their retraction.

Affirmed.

      Defendant. denied participation in the destruction of prison property. As previously indicated, this accusation was subsequently dismissed.