text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DENNIS L. TABISZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 23, 1974
    Decided May 2, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Messrs. Convery and Convery, attorneys for appellant (Mr. Clark W. Convery, on the brief).

      Mr. William, F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mr. Robert H. Klausner, Deputy Attorney General of counsel and on the brief).
   Per Curiam.

Defendant was convicted in municipal court of operating a motor vehicle while under the influence of intoxicating liquor. N. J. S. A. 39:4-50(a). On appeal to the County Court, he was again convicted after a trial de novo on the record. This appeal followed.

The record discloses that on February 3, 1972, at about 10:45 P.M., while operating his motor vehicle, defendant struck another vehicle in the rear. The incident occurred in a well-illuminated area of the Garden State Parkway near a toll plaza. The investigating trooper testified to the odor of alcohol on defendant’s breath, to his bloodshot eyes, to his slow and staggering movements, and stated that in his opinion defendant was under the influence of alcohol. He further testified that when defendant was taken to the barracks and asked to take a breathalyzer test, he refused to do so. Also, defendant was unable to complete the finger-to-nose test and was generally uncooperative in performing other requested routine movements to test his coordination. While defendant admitted he had four drinks before dinner, he explained that his bloodshot eyes, unsteady gait and inability to perform the various coordination tests were the result of injuries sustained in the accident and a preexisting physical condition characterized as club feet.

Defendant contends the finding of guilty was against the weight of the evidence and that the County Court judge failed to make independent findings of fact.

Our examination of the record satisfies us that these contentions are without merit.

Defendant next contends it was reversible error to admit evidence of his refusal to take the breathalyzer test, contending the trial judge relied upon it in reaching his conclusion. In support of his position defendant cites the cases of State v. Homer, 86 N. J. Super. 351 (App. Div. 1965); State v. Immerman, 73 N. J. Super. 421 (App. Div. 1962), and State v. Ingram, 67 N. J. Super. 21 (Cty. Ct. 1961). It was the rationale of the court in Ingram that since the Legislature had conferred upon one accused under the statute the absolute right to refuse to take the breathalyzer test, the exercise of this right should not be the basis of an inference of guilt. Accordingly, such evidence was inadmissible. This holding was restated in Homer and in Immerman, supra, without further elaboration.

After the decision in Homer the Legislature in 1966 amended the statute and significantly revised the law to eliminate the necessity for the express consent of one accused to take the test, and in its place incorporated the theory of implied consent as a basis for obtaining a sample of one’s breath. The statute now reads, in part, as follows:

N. J. S. A. 39:A-50.2(a) :

Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood * * *.

The validity of this statute was upheld in State v. Macuk, 57 N. J. 1 (1970), when Justice Hall, speaking for the court, said:

There is a clear legal right to require a motor vehicle operator, arrested on probable cause for driving “under the influence” or “while impaired”, to submit to a chemical test of bodily substances to determine the amount of alcohol in his blood, or, for that matter, to a physical coordination test *’ * *.

State v. Kenderski, 99 N. J. Super. 224 (App. Div. 1968).

It follows that since the necessity for express consent to submit to the test has been eliminated and there is no longer a right to refuse to take the test, the failure of one accused to submit to the test is properly admitted into evidence. That is the clear import of the holding in State v. Cary, 49 N. J. 343 (1967). In that case defendant appealed from two pretrial orders compelling him to submit to blood grouping tests and a recording of his voice. The case was remanded to the trial court to take testimony to determine whether the voice print technique and equipment were sufficiently accurate to produce results admissible as evidence. The court then proceeded to consider the effect of a refusal of defendant to cooperate and furnish a sample of his voice should that occur. It held (at 343) that a defendant’s refusal to cooperate and furnish a sample of his voice “could properly be the subject of comment by the prosecutor and the trial judge as showing consciousness of guilt and inconsistency with a claim of innocence.” The court cited with approval People v. Sudduth, 55 Cal. Rptr. 393, 421 P. 2d 401 (Sup. Ct. 1966), where it was held that a refusal to take a breathalyzer test could be the subject of comment by the prosecutor and judge on the theory that defendant had no privilege to refuse to take the test.

It, therefore, being clear that defendant in this case had no right to refuse to submit to the test, his refusal to do so was admissible in evidence and could be the basis of an inference of guilt.

Affirmed.


source: Caselaw Access Project

author: Collester, P. J. A. D. Lynch, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. YVONNE WILLIAMS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 9, 1974
    Decided June 11, 1974.

      Before Judges Collester, Lynch and Michels.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. David A. Faloni, Designated Counsel, on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Robert A. Rubenfeld, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Collester, P. J. A. D.

Defendant was tried to a jury and found guilty on a six-count indictment which charged that on three different days she unlawfully distributed heroin and unlawfully possessed the heroin with intent to distribute it. She was sentenced to six concurrent indeterminate terms with a maximum of ten years at the New Jersey Correctional Institution for Women at Clinton.

On appeal defendant first contends that she should not have been convicted of both the possession of heroin with intent to sell and the sale of the heroin which were part of one criminal transaction. We agree. The State’s proofs showed that on each of the three days an undercover narcotics agent went to defendant’s apartment and purchased one bag of heroin for $5. There was no evidence that defendant had possession of any heroin other than that which she sold to the agent. Therefore, under the facts of this case possession of the heroin with intent to distribute, while a crime in itself, was also an essential element of the unlawful distribution of which defendant was convicted and must be considered an included offense. She cannot be convicted of both. State v. Wilkinson, 126 N. J. Super. 553 (App. Div. 1973), certif. denied 63 N. J. 562 (1973). But see, State v. Ruiz, 127 N. J. Super. 350 (App. Div. 1974).

Defendant next urges that the offenses of which she was convicted constituted one continuing transaction and therefore she should have been convicted on only one charge. We find no merit to this contention. There was no overall offense here, but three separate offenses on three different dates, and the State could prosecute defendant on each. See State v. Juliano, 52 N. J. 232, 235 (1968) and State v. Brunetti, 114 N. J. Super. 57, 62 (App. Div. 1971).

Lastly, defendant argues that the sentences imposed were excessive. The trial judge is vested with broad discretion in the imposition of a sentence so long as it is within statutory bounds. Before we may interfere there must be a clear showing of an abuse of that discretion. State v. Tyson, 43 N. J. 411 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965). In light of the circumstances of defendant’s repeated sales of heroin we conclude that the sentences imposed for such, offenses were not manifestly excessive or unduly punitive and there was no abuse of judicial discretion.

The convictions for possession of heroin with intent to distribute it are vacated. The convictions and sentences for unlawful distribution of heroin are affirmed.

Lynch, J. A. D.

(concurring in part and dissenting in part) : I respectfully dissent from that phase of the court’s opinion which holds, without using the label, that the offense of possession with intent to distribute the heroin “merges” with distribution of the drug. Thus I join in the result reached by the majority in State v. Ruiz, 127 N. J. Super. 350 (App. Div. 1974). However, the facts here are somewhat different from those in Ruiz and, since I think the issue is of sufficient importance, I add my own reasons for the position I take.

The reasons for my dissent are both factual and legal. Factually, defendant’s possession of the heroin was not “fleeting and shadowy in its nature,” cf. State v. Booker, 86 N. J. Super. 175, 178 (App. Div. 1965), i. e. instanced only at the time of the three sales on May 2, May 3 and May 8, 1972. Rather, the inference is inescapable that defendant took the three bags of heroin from a “stock in trade.” Cf. State v. Vallejos, 89 Ariz. 76, 358 P. 2d 178 (Sup. Ct. 1960); Laughter v. State, 241 So. 2d 641 (Miss. Sup. Ct. 1970). Therefore the possession with intent to distribute was separate and distinct from the sales, and constituted separate crimes. State v. Booker, supra, 86 N. J. Super. at 178, and other cases to be cited below.

The “legal” reason for this dissent is that, in my view, the doctrine of “merger,” especially in a case involving statutory offenses, such as separate steps in the drug traffic, deserves reexamination so as to carry out the Legislature’s efforts to punish each step in that process. “Merger” has been a mechanism employed to avoid double jeopardy. Since the former emphasis on “technisms” in prohibiting double jeopardy has been replaced by considerations of “underlying policies,” “fairness” and “fulfillment of reasonable expectations” (State v. Currie, 41 N. J. 531, 539 (1964); State v. Mills, 51 N. J. 277, 289, cert. den. 393 U. S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968); State v. Redinger, 64 N. J. 41 (1974)). I conceive we are free to reexamine the problem. Apptying those standards, I suggest that the statutory offenses herein, as separate steps in the traffic of drugs, are separate offenses, and prosecution for each does not violate the prohibition against double jeopardy.

I

Factually, the evidence indicates that on May 2, 1972, a6 :20 p.m., one Ross took ah undercover narcotic investigator, George C. McLemore, to defendant’s apartment, introduced him to defendant and told her that McLemore wanted to buy some drugs. McLemore gave a $5 bill to Ross who, in turn, gave it to defendant. Defendant gave Ross a white glassine bag which ultimately proved to contain heroin. On the next day, May 3, 1972, at 8:50 p.m., McLemore went to defendant’s apartment by himself. He told defendant that he “came to cop” and put a $5 bill in her hand. She gave him a glassine bag which also later proved to contain heroin. Five days later, on May 8, 1972, at 12:15 p.m., McLemore again went to defendant’s apartment and procured another bag of heroin for $5 from defendant. In each instance defendant had the narcotics on her person when she delivered them to McLemore.

In State v. Booker, supra, it was held that where, in three separate episodes, defendant had narcotics on his person when he offered them for sale, the possession antedated the sale, was separate and distinct from the sale, and was a separate crime. 86 N. J. Super. at 178. So here, a clear inference could be drawn that before, and after, the first and second sales, before the third, and between the three separate episodes, defendant had possession of the heroin entirely apart from the time and incident of each specific sale. Therefore such possession was separate and apart from the sales and the offenses of (a) possession with intent to distribute, and (b) distribution, were separate offenses.

I am mindful of several California cases which hold possession and sale of the same drug to be “the same offense” and therefore conviction as separate offenses is impermissible, e. g. People v. Castiel, 153 Cal. App. 2d 653, 315 P. 2d 79 (D. Ct. App. 1957); People v. Roberts, 40 Cal. 2d 483, 254 P. 2d 501 (Sup. Ct. 1953), and People v. Branch, 119 Cal. App. 2d 490, 260 P. 2d 27 (D. Ct. App. 1953). But California has a statute which we do not have, Cal. Penal Code, § 654 at 1872, which provides in part:

An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.

Arizona has a similar statute, and in State v. Vallejos, supra, where defendant was convicted of possession and sale of the same marijuana, the Supreme Court of that state determined to follow the California cases insofar as it considered their reasoning was sound. It said:

We first consider the sentencing for possession in addition to sale. The California cases are numerous and admit of some dispute. What does seem clear is that where the possession was obtained for the purpose of the particular sale, it will be considered one transaction permitting but one conviction and sentence. People v. Branch, 119 Cal. App. 2d 490, 260 P. 2d 27, 31. In that case the court said:
“By this section, it is indispensable in order to impose separate punishments that there be evidence of separate and divisible acts that are not incidental to each other. In determining this question the courts have refused to dissect the evidence minutely in an attempt to find separate offenses, but, on the contrary, have held that a broad transactional approach should be made.”
We consider this view sound but find its application far from simple. In each case the facts must be examined to determine whether the transactional test has been met. Thus where it appears that the defendant simply acquired the marijuana for the purpose of the sale and the acts of acquisition were for the furtherance of the sale (as opposed to the case where it is hept as if general stoclc in trade) it is but one transaction. The possession then is incidental only to the sale in much the same way as possession is related to transportation when a defendant is arrested in the act of transporting. People v. Roberts, 40 Cal. 2d 483, 254 P. 2d 501.
However, when it is shown that the defendant has possessed marijuana either before or after the sale in such a way that it is not a part of the transaction of sale he does not come within the protection of the one transaction principle. People v. Holliday, 120 Cal. App. 2d 562, 261 P. 2d 301, 302. In the Holliday case, the court said:
“Here appellant’s conviction of possession can be sustained upon the basis of his possession of marijuana both 5efore and after the transportation and apart from such transportation. It will be recalled that when appellant offered to make a sale to Ruskin he first went back some distance behind a building and returned with his contraband merchandise. This justifies an inference that the marijuana was hidden there and was not brought in the coupe Kelly was driving. The crime of possession was then established and complete, and no transportation of the commodity had taken place.” [Emphasis added].

In Vallejos it was held that defendant’s possession was separate and apart from the sale and sentences for both possession and sale were upheld. It is true that the evidence was clear in Vallejos that defendant had possession of the marijuana for his own use, whereas there is no such proof here. Nevertheless, I feel here that the inference is inescapable that defendant obtained the drugs which she sold from her own “stock in trade” and that therefore the possession was complete before each sale and after the first and second. See also Laughter v. State, supra, where defendant was convicted of both possession and transportation of the same marijuana drug. In that case the court held that a sale of marijuana to an agent constituted one transaction in which the possession was only incident to the sale and was a lesser included offense, so that conviction for possession precluded subsequent trial of a charge of sale arising out of the same transaction. But the court added:

However, we hasten to point out that the one transaction principle does not apply when it is shown that a defendant had in hia possession marijuana or other prohibitive drugs either before or after the sale. In other words, if the appellant had gone to a place where he had marijuana concealed, procured it and sold it to the undercover agent he could have been properly charged, convicted and punished for the possession and sale of marijuana. [241 So. 2d at 644],

Here it is clear, as I have said, that defendant possessed the heroin before and after the first and second sales, and also between each separate sale. Therefore, in my judgment, possession with intent to distribute and distribution were factually distinct and separate offenses.

II

The “legal” reason for this dissent is a disposition to reject the mechanism of “merger,” having its genesis in common law crimes and, as to the statutory offenses here involved, to favor recognition of the legislative treatment of the separate steps in the traffic of drugs. Since the reason for the mechanism of merger has been only to avoid double jeopardy, I would sustain prosecution for those steps unless to do so is violative of the standards laid down in State v. Currie, supra, for determining whether “double jeopardy” exists. In Currie it was said by Justice Jacobs, speaking for a unanimous court:

Neither the same transaction test nor the same evidence test is absolute or inflexible * * * [41 N. J. at 538]
In applying the prohibition against double jeopardy, the emphasis should be on underlying policies rather than technisms. The primary considerations should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals. [41 N. J. at 539; emphasis added],

I submit that, by those standards, double jeopardy is not imposed by defendant’s conviction of engaging in the separate steps in this drug operation, of (a) possession with intent to distribute and (b) distribution.

What we are trying to determine, in essence, is whether those offenses constitute the “same offense.” There is much confusion in this area. Indeed it has been said that the courts are “in hopeless conflict” as to the problem of identity of offenses. 22 C. J. S. Criminal Law § 278(1). There is where the difficulty lies. Currie, 41 N. J. at 536.

Clearly, however, Currie, Mills and Redinger, in rejecting the former “technisms” used in fashioning “merger,” leave us free to reexamine the concept, at least in this context of statutory crimes.

Most authorities are agreed that “merger” as such, whereby at common law a misdemeanor might have merged in a felony, no longer has a reasonable basis on which to rest. The reasons for its application at common law, lying in the difference in earlier days between the incidents of a trial for a felony and a trial for a misdemeanor, no longer exist since the distinctions between felony and misdemeanor have been abolished. 1 Wharton, Criminal Law and Procedure (1957) § 33 at 70-72; 1 Burdick, Law of Crime (1946), § 85 at 83-84; 22 C. J. S. Criminal Law § 10 at 42. See also, 1 Bishop, Criminal Law (4 ed. 1923, § 787 at 560-61). “Merger” has been applied in the earlier New Jersey cases on the assumption that “double jeopardy” depended on the “same transaction” test, or the “same evidence” test, or the concepts of “lesser included offense” or “integral part” of another offense. But those are the “technisms” properly repudiated, I think, by Currie and its sequelae.

In determining whether merger is to he applied here we must consider it in the context of the Legislature’s effort in “grappling with a powerful, subtle and elusive enemy” — the drug traffic. Gore v. United States, 357 U. S. 386, 390, 78 S. Ct. 1280, 1283, 2 L. Ed. 2d 1405 (1958). In Gore, by a single sale of narcotics, defendant was convicted of three separate statutory offenses, as against a claim of double jeopardy. Justice Frankfurter, for the majority, said:

The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic. [at 389, 78 S. Ct. at 1283]

See also, Harris v. United States, 359 U. S. 19, 79 S. Ct. 560, 3 L. Ed. 2d 597 (1959). True, the separate offenses of possession of narcotics in Gore and Harris were under separate statutes, whereas here both “possession with intent” to distribute and “distribution” are contained in the same statute, N. J. S. A. 24:21-19, subd. a (1). In my judgment that difference would not of itself justify divergent results, i. e., a holding of double jeopardy in this case while there was none in Gore. Whether imposed by three statutes or by one, double jeopardy is unconstitutional.

In Albrecht v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505 (1926), defendant was charged with possession of intoxicating liquors, its sale, and the maintenance of a common nuisance — all based on the same liquor — and all in violation of the National Prohibition Act. As against a claim of “double jeopardy,” the Supreme Court, speaking through Mr. Justice Brandéis, said:

There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information four charged illegal possession of liquor, four illegal sale, and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution tohich prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction, [at 11, 47 S. Ct. at 253; emphasis added].

Nor is there anything in New Jersey’s Constitution which would prohibit the Legislature from punishing each step leading to the consummation of the vicious act of sale of drugs.

In People v. Stewart, 46 Mich. App. 282, 207 N. W. 2d 907 (Ct. App. 1973), it was said:

While possession and sale of narcotics may have common elements in some cases, they are nonetheless separate crimes. See Albrecht v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505 (1927). * * * AVhen both charges are joined in one criminal prosecution, as in the case at bar, no double jeopardy problems arise. * * *. [207 N. W. 2d at 909]

In State v. Cameron, 283 N. C. 191, 195 S. E. 2d 481 (Sup. Ct. 1973), defendant was charged with (a) possession and (b) sale of the same drug. There, too, “double jeopardy” was claimed. In rejecting the contention the court cited several decisions involving analogous situations with respect to possession and sale of nontax-paid liquor; State v. Moschoures, 214 N. C. 321, 199 S. E. 92 (Sup. Ct. 1938); State v. Chavis, 232 N. C. 83, 59 S. E. 2d 348 (Sup. Ct. 1950); State v. Stonestreet, 243 N. C. 28, 89 S. E. 2d 734 (Sup. Ct. 1955). In all three cases the courts held that double jeopardy was not projected in prosecutions for possession and also for sale of the same liquor. The court, after citing Albrecht v. United States, supra, said in Cameron:

The same rule was articulated in a recent Federal case concerning the violation of narcotic drug laws. Defendant had been convicted of illegally transporting narcotic drugs and of illegally possessing narcotic drugs. He received separate sentences for each conviction. In Vincent v. Mosely, 327 F. Supp. 975 (E. D. Mo. 1971), affirmed 453 F. 2d 1218 (8th Cir. 1972), he instituted a collateral attack on the separate sentences on the ground that there was one act of allegedly transporting a quantity of narcotic drugs from one state to another. He contended if the government proved transporting the drug, it would necessitate proving possession, and this would be one act, one offense, and should permit only one sentence. The court refused to disturb the sentence for possession stating:
“This argument is without tenable basis under the decision in Gore v. United States, 357 U. S. 386, 389, 78 S. Ct. 1280, 1283, 2 L. Ed. 2d 1405 (1958), which stated that ‘The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic.’ * *
In 72 C. J. S. Poisons § 8, p. 181, the rule is stated: “Illegal sale and illegal possession constitute two different crimes under statutes prohibiting sale and possession of poisons or drugs.” Cf. Kelley v. United States, 107 U. S. App. D. C. 122, 275 F. 2d 10 (1960); Torres Martinez v. United States, 220 F. 2d 740 (1st Cir. 1955).
Both New Jersey and Georgia have adopted a similar rule. In State v. Booker, 86 N. J. Super. 175, 206 A. 2d 365 (1965), the defendant had the narcotics on his person when he approached the buyer and made the sale. The Court held that these facts constituted two punishable offenses: possession and sale of narcotic drugs. [195 S. E. 2d at 487],

In my opinion the court in Cameron soundly analyzed the issue when it said:

The unlawful sale of a narcotic drug is a specific act and a given sale occurs only at one specific time. Unlawful possession, however, is a continuing violation of the law. It begins as soon as an individual first unlawfully obtains possession of the drug, whatever the purpose of that possession might be, and does not end until he divests himself of it. In this ease defendant was violating the law in that he was possessing the heroin not only when he was in his house on the evening of the sale but from the time that he originally [sic] came into possession of it. This could have been one hour, one day, one week, or one month prior to the sale. The length of time makes no difference. He had been violating the law from the time he first took possession and control of the heroin. This was a continuing offense and was not a single act which occurred at the time of the sale. State v. Roberts, 276 N. C. 98, 171 S. E. 2d 440 (1969).
The North Carolina General Assembly has determined that the unlawful possession of heroin is illegal. The General Assembly has also determined that the unlawful sale of heroin is illegal. While possession may be a part of the sale, the possession may be legal and the sale illegal; therefore they are separate and distinct oifenses. Neither in fact nor law are they the same. We hold, then, that in the instant case two separate, distinct, and punishable crimes were established, and that the court did not err in imposing consecutive sentences. [195 S. E. 2d at 488-489],

So here, the New Jersey Legislature has determined that possession of narcotics with intent to distribute is illegal. It has also determined that distribution is illegal. As was said in State v. Reed, 34 N. J. 554, 564 (1961), in a different context bnt nevertheless in an analysis of the Drug Act, N. J. S. A. 24:18-1 et seq: “Every step in the scheme of illegal distribution was made a violation of section 4.” I would follow the reasoning last stated in Cameron, i. e., obeisance to the Legislature’s treatment of each step in the drug traffic as a separate offense. See also Gee v. State, 225 Ga. 669, 171 S. E. 2d 291 (Sup. Ct. 1969), and 22 C. J. S. Criminal Law § 9(1) at 22-23, where, citing several cases, it was said that “each separate step in a transaction may be made a distinct crime or offense for which separate punishments may be imposed.”

State v. Chavis, 232 N. C. 83, 59 S. E. 2d 348 (Sup. Ct. 1950), expresses my philosophy in this context:

Two things will help us in our thinking: we are not dealing with common law crimes but with statutory offenses; and not with a single act with two criminal labels but with component transactions violative of distinct statutory provisions denouncing them as crimes. Neither in fact nor law are they the same, State v. Midgett, 214 N. C. 107, 198 S. E. 613. They are not related as different degrees of major and minor parts of the same crime and the doctrine of merger does not apply. The incidental fact that possession goes with the transportation is not significant in law as defeating the legislative right to ban both or either. When the distinction between the offenses is considered in the light of their purpose,. vastly different social implications are involved and the impact of the crime of greater magnitude on the attempted suppression of the liquor traffic is sufficient to preserve the legislative distribution and intent in denouncing each as a separate punishable offense.
No doubt many authorities can be arrayed on either side of the question under consideration — many of them, however, wanting in persausive authority because of the difference in local laws. However, the decided weight of authority supports the view that in cases of factual similarity with the one under review the power of the Legislature, when it so intends, to malee punishable as a distinct violation of statute laio each offense denounced by the statute, although occurring in the same transaction, must be given effect. [Citations omitted.]
* * *■ sh * * sr *
In Massey v. United States, 8 Cir., 281 F. 293, 296, the defendant transported liquor in his ear and had carried it into his house when arrested. On appeal from a conviction of illegal transportation and illegal possession, the Court said: “The National Prohibition Act penalizes the illegal possession [of liquor], as well as the illegal transportation, of such liquor. Transportation involves elements of carriage or removal * * that are not involved in mere possession. Separate acts, though parts of a continuous transaction may he made separate crimes hy the legislative power.”
In Bell v. United States, 5 Cir., 285 F. 145, 147, certiorari denied 262 U. S. 744, 43 S. Ct. 521, 67 L. Ed. 1211, the defendant drove up in his car and Federal agents searched and found liquor in the car. In holding invalid the defendant’s contention that he could not be convicted for illegal transportation and possession in that the transportation included possession, the Court held: A person may be in unlawful possession of liquor and never transport it. If he also transports it, that is a separate offense and each is a violation of the National Prohibition Act, and the court could properly impose punishment on each count.
In Earl v. United States, 9 Cir., 4 F. 2d 532, upon the same facts a similar decision was rendered in which the Bell and Massy eases were cited. In Loomis v. United States, 9 Cir., 61 F. 2d 653, and Aldridge v. United States, 10 Cir., 67 F. 2d 956, it was held that transportation and possession are separate and distinct offenses even though they grow out of the same transaction, and sentence could be imposed on both counts. [Citing cases]. [59 S. E. 2d at 349-350; emphasis added].

I do not for a moment suggest that there is unanimity on this issue. See dissent in State v. Ruiz, supra, 127 N. J. Super. at 360, and cases cited in footnote (1). I would point out, however, that State v. Price, 106 Ariz. 433, 477 P. 2d 523 (Sup. Ct. 1970), cited in the footnote in the dissent, was decided under the Arizona statute which expressly provides that when an act is made punishable in different ways by different sections of the laws it may be prosecuted only under one. And in Thompson v. State, 290 N. E. 2d 724 (Ind. Sup. Ct. 1972), cert. den. 412 U. S. 943, 93 S. Ct. 2788, 37 L. Ed. 2d 404 (1973), also cited in the footnote in Ruiz, the definition of “sale” in the statute included “holding, storing or any other possession.” Therefore there was only one statutory offense.

More fundamentally, however, my difference with the dissent in Ruiz rests on my view that there is nothing “unfair” or repugnant to “fulfillment of reasonable expectations” in punishing a defendant for “possession with intent to distribute” and also for “distribution.” The offender has it within his choice to stop after the first offense and refrain from talcing the next— the more damaging offense against society — when he sells the heroin. The victims of drugs are said to multiply geometrically after distribution. As said in State v. Reed: “ ‘Experts assert that one addict infects four and those four infect sixteen, a progression of grave concern to any community.’ Report, New Jersey Legislative Commission to Study Narcotics, p. 26 (March 22, 1952).” 34 N. J. at 566. If one possessing drugs with intent to distribute went no further than that status, there would be no further infection of others. It is only when he goes further, and distributes, that the contagion is launched. And the commission of the second and more harmful offense in that act should not, in “fairness” to society constitute a grant of absolution for the first. If “merger” is effected, that is its effect and under the statute (N. J. S. A. 24:21-19) the offender would be subject to no greater punishment than if he had stopped at mere “possession with intent” for the penalties for both offenses are the same. To put it colloquially, he has “nothing to lose” by taking the next step of “distribution,” subject of course to what discretion a sentencing judge might exercise.

Uor do I believe that to permit conviction for the separate offenses is frustrative of “reasonable expectations” of what a drug trafficker might have anticipated. A defendant who possesses drugs with intent to distribute should not reason-ally expect to be absolved of that offense when he takes the next step and distributes.

The dissent in Ruiz also quotes N. J. S. A. 24:21-19 and finds no reason therefrom to find .separate offenses. Again I respectfully disagree. Casting all nuances aside, the act of possession with intent to distribute and the further “step” of distributing, are simply not the same;'but distinct. They are no more the spme than “manufacture” and “possession” are the same. And' when statutes define two distinct offenses the State may proceed under either or both of them. Cf. State v. Reed, 34 N. J. 554, 572-573; State v. Morse, 109 N. J. Super. 160, 164 (App. Div. 1970).

Lastly, I respectfully disagree with the dissent in Ruiz wherein it asserts that: “Fundamental^, in the resolution of this issue, we deal with the constitutional proscriptions against double jeopardy.” 127 N. J. Super. at 360. At the risk of undue repetition, I rejoin with the words of Mr. Justice Brandeis in Albrecht v. United States, supra 273 U. S. at 11, 47 S. Ct. at 254: “There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.”

Applying the Gurrie standards of protection against double jeopardy, I would hold there is no merger of the offenses here involved and would affirm conviction of both.


author: Meanor, J. A. D.

text:
    LOUISE SILAS, PLAINTIFF-APPELLANT, v. ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted May 6, 1974
    Decided June 14, 1974.

      Before Judges Conford, Handler and Meanor.

      Messrs. Goldstein & Toto, attorneys for appellant (Mr. Domenic D. Toto, of counsel and on the brief).

      Messrs. Gurry & Gonlan, attorneys for respondent (Mr. Thomas R. O’Brien, on the brief).
   The opinion of the court was delivered by

Meanor, J. A. D.

On November 19, 1970 plaintiff was a passenger in an automobile insured by defendant under a policy which provided uninsured motorists (UM) coverage. N. J. S. A. 17:28—1.1. The policy also provided medical payments insurance. Plaintiff, injured by the negligence of an uninsured motorist, went to arbitration pursuant to the terms of the policy and received an award of $1,750. Medical expenses of $611 were proven in arbitration and were included within the award.

Following the award plaintiff brought this action seeking to recover $611 under the medical payments coverage. Defendant was successful below in contending that the policy precludes double recovery of medical benefits.

The UM coverage portion of the policy provides in pertinent part:

The company shall not be obligated to pay under this insurance that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured highway vehicle which represents expenses for medical services paid or payable under the medical payments or medical expense coverage of the policy * * >f'.

We are asked to hold the clause void as contrary to this State’s public policy. Cases pro and con are collected and discussed in Annotation, “Uninsured Motorist Insurance: Reduction Of Coverage By Amounts Payable Under Medical Expense Insurance,” 24 A. L. R. 3d 1353 (1969).

The cases that have invalidated such clauses have done so on the ground of conflict between the clause and statutory requirements for UM coverage. This was the rationale of, for example, Tuggle v. Government Employees Ins. Company, 207 So. 2d 674, 24 A. L. R. 3d 1343 (Fla. Sup. Ct. 1968), criticized in Note, “Uninsured Motorist Coverage — Setoff Of Amounts Payable Under Medical Payments Coverage,” 23 U. of Miami L. Rev. 249 (1968) and Phillips v. State Farm Mut. Automobile Ins. Co., 437 F. 2d 365, 370 (5 Cir. 1971) (Under Georgia law). Phillips involved a clause different in form from the one present here, while Tuggle concerned one essentially identical. The various clauses attempting to exclude medical payments under medical payments coverage from awards under UM coverage are discussed along with many of the pertinent cases in Note, ‘Tin-insured Motorist Coverage — Validity Of Medical Setoff Clause,” 38 Mo. L. Rev. 346 (1973). It appears that the clause here is the “standard” clause. Id. at 351. See also Risjord & Austin, Automobile Liability Insurance Cases, Standard Provisions and Appendix, at 289 (Supp. 1970), where the standard provisions for UM coverage are printed in full.

We cannot hold that the medical payments exclusion is contrary to statute on the ground advanced in some cases — that there is a statutory requirement that UM coverage provide tort damages in full up to policy limits. This rationale is unavailable because our statute, N. J. S. A. 17:28-1.1, permits the Commissioner of Insurance to approve UM coverage provisions which provide “for payment of all or part of the sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of. an uninsured automobile.” (Emphasis supplied).

The other major reason for rejection of the clause lies in the conclusion that it requires the UM award to be reduced by the amount of medical payments and, thus, may lead to a violation of statutorily mandated minimum coverage. As was said in Tuggle, supra;

The clause on its face is one to decrease uninsured motorist coverage beneath the statutory minimum, and one which means that under certain conditions (medical benefits in excess of $10,000) there will be no uninsured motorist coverage whatever. [207 So. 2d at 675J

We cannot concur in this construction of the standard clause. Its sole intent, in our opinion, is to prevent double payment under the same policy of the same medical expenses — once under medical payments insurance and again under UM coverage. Conceptually the UM coverage may be thought of as excess to the medical payments insurance. Thus, no award may be made under UM coverage which includes any expenses paid or payable under the same policy’s medical payments insurance. We reject the thought that paid or payable medical expenses are to be deducted from the UM award. It is simply that they may not be included therein. Thus, if a claimant’s case, evaluated apart from paid or payable medical expenses, is worth the UM limit of liability, that limit must be paid. Hence, in an appropriate case a claimant may collect the limits of both the medical payments and UM coverages. The only interdiction is that there may be no double payment of the same expenses.

The following cases appear to be in accord with our construction of the clause in question: Miller v. Cosmopolitan Mut. Ins. Co., 33 A. D. 2d 917, 307 N. Y. S. 2d 592 (App. Div. 1970); Hutchison v. Hartford Acc. & Indem. Co., 34 A. D. 2d 1010, 312 N. Y. S. 2d 789 (App. Div. 1970); Cole v. Inland National Ins. Co., 133 Ill. App. 2d 745, 273 N. E. 2d 65 (App. Ct. 1971); Melson v. Illinois National Ins. Co., 1 Ill. App. 3rd 1025, 274 N. E. 2d 664 (App. Ct. 1971); Connelley v. Southern Farm Bureau Cas. Co., 219 So. 2d 206 (La. Ct. App. 1969); Taylor v. State Farm Mut. Automobile Ins. Co., 237 So. 2d 690 (La. Ct. App. 1970); Wittig v. United Services Automobile Ass’n, 300 F. Supp. 679 (N. D. Ind. 1969).

The foregoing discussion renders nugatory plaintiff’s argument that an affirmance puts her in the position of having paid a double premium for a single benefit. Presumably the prohibition against double payment of medical expenses had an impact upon the premium charges. Furthermore, under appropriate circumstances a claimant may recover both medical payment and UM coverage limits.

Since plaintiff was paid her medical expenses under the arbitration award, we affirm the judgment below in order to effectuate the policy’s intent to preclude double recovery. We point out, however, that plaintiff’s medical expenses were paid from an erroneous source • — they should have been paid under the medical payments portion of the policy and not under the UM coverage. It will hereafter be up to the insurer to call to the attention of the arbitrator any policy provisions which prevent an award that includes medical expenses paid or payable under another coverage feature of the same policy. Failure of an insurer to make known to the arbitrator that, under policy provisions, paid or payable medical expenses may not be included in an UM award might well lead to double exposure to medical expenses. See Fisher v. State Farm Mut. Automobile Ins. Co., 243 Cal. App. 2d 749, 52 Cal. Rptr. 721 (D. Ct. App. 1966). No issue has been raised by plaintiff concerning the failure of defendant to raise the nonrecoverability of medical expenses in the arbitration proceeding. Furthermore, since the issue is novel in this jurisdiction and has been the subject of divergent views elsewhere, we can justly overlook the failure to raise the exclusion in the arbitration here.

Affirmed. No costs.


author: Per Curiam.

text:
    GEORGE E. LOGAN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. TOWNSHIP OF NORTH BRUNSWICK, DEFENDANT-APPELLANT, AND LESLIE B. STRADER AND DIANE C. STRADER, DEFENDANTS-RESPONDENTS AND CROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 4, 1974
    Remanded February 21, 1974
    Decided June 18, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. Douglas T. Hague argued the cause for plaintiff-respondent and cross-appellant George E. Logan (Messrs. Wilentz, Goldman & Spitzer, attorneys).

      Mr. William V. Kennedy argued the cause for defendant-appellant Township of North Brunswick (Messrs. Colquhoun, Kennedy & Brogan, attorneys).

      Mr. Henry H. Rubenson argued the cause for defendants-respondents and cross-respondents Leslie B. Strader and Diane C. Strader.
   Per Curiam.

Plaintiff was employed as a tow truck operator. On December 24, 1970, a day of particularly hazardous driving conditions, he was called to remove a pickup truck from atop a wall dividing the north and southbound lanes of a bridge on U. S. Eoute 1, North Brunswick, New Jersey. He towed the pickup to the shoulder of the northbound lanes near the crown of the bridge, with both vehicles facing north and the tow truck ahead of the pickup. Traffic in both directions had been halted by North Brunswick police at the scene. The bridge surface was especially slippery. The local police had requested the New Jersey State Highway Department, which had jurisdiction over the maintenance of the road, to supply a sand truck.

Because of the accident involving the pickup the police, with the use of flares, had channeled northbound traffic into the outside of the three northbound lanes of travel. The first vehicle in line near the foot of the bridge awaiting the resumption of northbound travel was a dump truck owned by defendant Continental and driven by defendant Grasso. Behind the dump truck was a Buick driven by defendant Leslie Strader in which his wife Diane was a passenger.

After stopping his tow truck and the pickup on the northbound shoulder of the bridge, plaintiff unhooked the tow chain and was standing between the rear of the tow truck and the front of the pickup attempting to place the chain in the body of the tow truck. While he was thus engaged, the police permitted northbound traffic to resume. As plaintiff was standing on the shoulder opposite the left rear of his tow truck, Grasso’s dump truck proceeding north skidded, with the result that the right rear of the dump truck grazed the left side of the tow truck. Very shortly thereafter, Strader’s Buick, which had also been waved on by the police, skidded on the icy pavement, resulting in a collision between the right front of the Buick and the left rear of the plaintiff’s truck. It was in this latter accident that plaintiff was injured. The evidence is clear that he was standing on the shoulder of the road throughout these events.

At the close of. the proofs Grasso and Continental obtained judgment in their favor, and no complaint is now made of that ruling. Motions for judgment by defendants Strader and Township of North Brunswick were denied, as was plaintiff’s motion to strike the defense of contributory negligence, the trial court reasoning that tile jury could find plaintiff negligent for stopping at a hazardous location.

In answer to special questions, B. 4:39-1, the jury found Strader not negligent, the township negligent and the plaintiff contributorily negligent. Judgment for all defendants was entered. On post-trial motion; however, the trial court held that the defense of contributory negligence should have been stricken. Hence, a judgment of liability in favor of plaintiff and against township followed. After a damage trial these appeals ensued. Initially we had some question whether the trial court applied the correct standard of assessment of the proofs in entering judgment n.o.v. Upon our remand the trial court held unequivocally that there was insufficient evidence to present a factual issue on the plaintiff’s contributory negligence and this resulted in a reaffirmation of judgment n.o.v. for the plaintiff.

The first point raised by the township is that the court below had no power to enter judgment n.o.v. for plaintiff since during the liability trial plaintiff never moved for judgment in his favor. Citing Surkis v. Strelecki, 114 N. J. Super. 596 (App. Div. 1971), certif. den. 59 N. J. 266 (1971), and Poland v. Parsekian, 81 N. J. Super. 395 (App. Div. 1963), certif. den. 41 N. J. 520 (1964), it is argued that a motion for judgment at the close of the proofs is an essential prelude to judgment n.o.v. It flows from this, so the argument runs, that since plaintiff made only a motion to strike the defense of contributory negligence and did not move for judgment in his favor at the close of the proofs, he could not later obtain judgment n.o.v.

We need not tarry long over this argument. Had there been a general verdict for defendants, the later determination of error in submitting the defense to the jury would have resulted in a new liability trial as to all parties and issues. Perhaps the major rationale of the special verdict procedure, R. 4:39-1, is the avoidance of full-scale retrials by permitting isolation of error and retrial only of those issues infected with it. Nylander v. Rogers, 41 N. J. 236, 240 (1963). R. 4:40-2 permits judgment n.o.v. — that is, it allows a court to do post-trial what it should have done pursuant to motion made at the close of the proofs. The spirit of our rules concerning special verdicts and judgment n.o.v. would be frustrated if R. 4:40-2 did not encompass the liberty to correct after trial the erroneous denial of a motion to strike a defense as well as the erroneous denial of a motion for judgment. We point out, too, that the motion of plaintiff during trial, limited as it was to the defense of contributory negligence, constituted a frank recognition that fact issues existed as to the liability of Strader and the township. Were we to honor the township’s argument plaintiffs could in the future avoid the dilemma by the simple device of coupling motions to strike affirmative defenses with specious motions for judgment. Thus we hold that R. 4:40-2 permits a plaintiff to move for and obtain judgment n.o.v. where that result flows from a combination of the post-trial correction of error in refusing to strike an affirmative defense and the determinations made during trial on other issues.

We agree with the determination of the trial court that there was insufficient evidence of plaintiff’s contributory negligence to permit jury consideration of that issue. See Dolson v. Anastasia, 55 N. J. 2, 5-6 (1969). The only thesis upon which the defense was permitted involved the thought that plaintiff might be considered negligent for stopping on the shoulder of the bridge rather than some allégedly less hazardous spot further north. We do not believe that reasonable minds could find this argument acceptable. There was uncontradicted evidence that plaintiff believed the pickup to be operable under its own power; there was, of course, an element of danger in continuing the tow longer than necessary on the icy road, and traffic had ben stopped to permit plaintiff’s removal of the pickup. There was no evidence to the effect that plaintiff had advance notice that the police would permit traffic to resume before he had unhitched and was safely in his tow truck.

We reject the township’s argument that it was immune from suit because of the actions of its police officers in permitting northbound traffic to resume. Police and consequently their municipal employers may he held liable for accidents proximately resulting from negligent signalling of traffic. Czyzewski v. Schwartz, 110 N. J. Super. 255, 261 (App. Div. 1970); see also, Bergen v. Koppenal, 97 N. J. Super. 265, 269 (App. Div. 1967), mod. on other grounds 52 N. J. 478 (1968), and Gilday v. Hauchwit, 91 N. J. Super. 233, 251 (App. Div. 1966), dissenting opinion adopted 48 N. J. 557 (1967). Here there had been several accidents on the bridge, in both north and southbound lanes, due to the icy road surface. North of the scene of this plaintiff’s accident, a sports car had previously skidded off the northbound lanes, and this event was known to the police. Plaintiff at the time traffic was permitted to resume was in full view attending to the unhitching operation on the shoulder of the road. The jury reasonably could have come to the conclusion that the police were negligent in not further delaying traffic until the plaintiff had achieved a position of greater safety.

We have examined the remaining contentions and find them without merit.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHRISTOPHER V. CONSTANTINO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1974
    Decided June 20, 1974.
    Before Judges Kolovsky, Eeitz and Crane.

      Mr. Frank R. Krack, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Willard E. Byer, Jr., Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Bugler, Jr., former Attorney General of New Jersey).
   Per Curiam.

A jury found defendant, the chief of police of East Greenwich Township, guilty of 18 violations of the statute governing the issuance of permits to purchase firearms. N. J. S. A. 2A:151-32 to N. J. S. A. 2A:151-40. Defendant appeals from the judgment of conviction.

The cited sections, appearing as Article 4 of Chapter 151 of Title 2A, set out an integrated legislative scheme to govern the issuance of pistol and revolver permits and firearms purchaser identification cards and the purchase and sale of pistols and revolvers. It authorizes the chief of police of a full-time police department to issue permits to purchase a pistol or revolver or a firearm purchaser identification card (ID card) to qualified persons (N. J. S. A. 2A:151-34; 2A:151-33). It requires the chief to investigate anyone who applies to him (N. J. S. A. 2A:151-35; 2A:151-36) and to obtain and submit for comparison to the State Bureau of Investigation, and to the E.B.I., the fingerprints of any applicant (N. J. S. A. 2A:151-35). The last section in the article, N. J. S. A. 2A:151-40, provides: “Any person who violates any provision of this article is guilt3r of a misdemeanor.”

The indictment charged, and the proofs established, that defendant had not sent the fingerprints of 18 applicants for firearms ID cards to the State Bureau of Investigation as required by the statute and thereafter had knowingly and intentionally issued to those 18 applicants ID cards which contained “fictitious” identification numbers, numbers which never had been assigned to the applicant by the Superintendent of State Police.

On appeal defendant’s sole contention is that he, as the person called upon to issue the ID cards, is “not one of the class of persons to whom the penalty provision of N. J. S. A. 2A:151-40 applies.” He argues that when the Legislature directed that “any person who violates any provision of this article” be found guilty of a misdemeanor, it was not intended that a police chief be punished for failing to fulfill an3r of the affirmative duties imposed upon him. Rather, he says, the Legislature only intended prosecution of buyers and sellers of guns who violated the prohibitions of the statute.

Defendant maintains that the legislative antecedents of the present statute support his interpretation. We do not agree. The general penalty provision which now exists as a separate section was once directly annexed to that section which then set out the duties of a police chief (L. 1930, c. 218, § 9). We find nothing in the forerunners of the present act or in the legislative history to indicate that the Legislature intended to exclude from the coverage of N. J. S. A. 2A:151-40 any person, such as a police chief, or any type of violation, such as the failure to perform an affirmative duty. Indeed, the contrary interpretation is mandated to effectuate the purpose and objective of the legislation. Cf. Burton v. Sills, 53 N. J. 86, 93 (1968).

Nor do we find anything in the words of the article itself which would lead us to believe that the Legislature would have us exclude defendant from its penalty. Nothing indicates that the words “any person” and “any violation” have a special meaning. We must, therefore, give them their ordinary and primary meaning and not exclude any person or any violation from the section. See Fahey v. Jersey City, 52 N. J. 103, 107 (1968).

The judgment is affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH F. GLEDHILL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 10, 1974
    Decided June 26, 1974.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. Ronald B. Sokalski, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Solomon Rosengarten, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey).
   Per Curiam.

Defendant was charged in one indictment (#29-71) with possessing a stolen Bank Amerieard, in violation of N. J. S. A. 2A:111-42(b). He was also charged, in 18 separate indictments, with uttering a forged credit card with intent to defraud, in violation of N. J. S. A. 2A:109-1 (uttering forged instruments generally) on 18 separate occasions during the period of June 30 to July 24, 1971.

Following a jury trial defendant was convicted on all indictments. He was sentenced to a one-year State Prison term on the possession charge. He was also sentenced on each of the 18 remaining indictments to various concurrent and consecutive terms which resulted in a total sentence on all indictments of 3 to 6 years in State Prison.

In appealing from the 19 judgments of conviction and from the trial court’s denial of his motion for a new trial, defendant first contends that the judgments of conviction entered upon the 18 indictments for uttering a forged instrument and the sentences imposed thereon were illegal because he was improperly indicted under N. J. S. A. 2A:109—1 when the criminal acts were specifically covered by N. J. S. A. 2A:111-43 and the consecutive sentences imposed were not authorized by N. J. S. A. 2A:111-49.

At the trial below, before the openings of counsel or the presentation of witnesses, defense counsel moved for a dismissal of these 18 indictments on the same ground as now urged. The court denied the motion, holding that the prosecutor had full discretion to decide whether to proceed under one statute or the other.

Defendant argues that by enacting N. J. S. A. 2A:111-43 the Legislature intended that the misuse of a credit card on any number of occasions during a given six-month period should be considered as one indictable offense which would constitute a misdemeanor or high misdemeanor, under N. J. S. A. 2A:111-49, depending upon whether the value of the money, goods or services involved was under or over $500. We agree and are of the view that one who illegally uses a forged credit card must be prosecuted exclusively under N. J. S. A. 2A:111-42 et seq. See State v. Johnson, 115 N. J. Super. 6 (App. Div. 1971). Thereunder, all separate illegal uses of such a card during any six-month period constitute one offense and they cannot be fractionalized so as to turn them into multiple offenses and punishment. State v. Tillem, 127 N. J. Super. 421, 427-430 (App. Div. 1974).

However, in so concluding, we do not concur with defendant’s present contention that the trial court erroneously failed to dismiss these 18 indictments and that we should now reverse all the convictions and vacate the sentences imposed.

The trial judge, rather than denying defendant’s motion in its entirety, should have ordered a consolidation or merger of these indictments into one indictment charging a single violation under N. J. S. A. 2A:111-43. Defendant would not have been harmed or prejudiced thereby since the evidence presented to the grand jury, the proofs at the trial and the procedure followed would all “have been the same whether the indictment was sought and prosecuted individually under one statute or jointly under the other. State v. Bott, 53 N. J. 391, 402-403 (1969). Such a course of procedure would have been beneficial to defendant in that it would have prevented the multiple prosecutions and punishments of which he presently complains.

However, at this stage of the proceedings we are of the opinion that, rather than consolidating or merging the 18 separate convictions and the indictments upon which they are founded, justice will he best served by moulding the judgment of conviction solely under indictment ^30-71 and amending that one indictment so that the record discloses a conviction and charge under N. J. S. A. 2A:111-43, subject, however, only to the penalties set forth in N. J. S. A. 2A:111-49(a). Accordingly, the judgment of conviction under said indictment, as moulded, is affirmed, hut the two to four-year State Prison sentence heretofore imposed thereon is vacated and set aside. Further, the matter is remanded to the trial court for the imposition of a new sentence consistent herewith. The 17 remaining convictions for uttering a forged instrument under N. J. S. A. 2A:109-1 are reversed and the sentences imposed thereon are set aside.

Defendant next claims that his conviction of the offense of possession of a stolen credit card with intent to use the same merges with the greater offense of uttering a forged credit card. This claim lacks merit. See State v. Booker, 86 N. J. Super. 175, 177-178 (App. Div. 1965). However, as we have previously noted, the trial court sentenced defendant to a one-year State Prison term upon his conviction of the possession charge.

N. J. S. A. 2A:111-49(a) was amended (L. 1969, c. 299, § 1, eff. January 16, 1970) to provide that a person who is subject to the penalties thereof “shall be punished by a fíne of not more than $1000.00 or imprisoned not more than 3 years or both.” A one-year State Prison sentence is illegal, State v. Janiec, 25 N. J. Super. 197 (App. Div. 1953), since all sentences to that institution must be for a maximum and minimum term. N. J. S. A. 2A:164-17. Therefore, the one-year sentence previously imposed is vacated and the matter is remanded to the trial court for the imposition of a legal sentence. Upon resentencing, the trial court, in the exercise of its discretion, may replace the illegal sentence with a legal sentence of greater severity. State v. Weeks, 6 N. J. Super. 395, 399 (App. Div. 1950). See also State v. Fisher, 115 N. J. Super. 373, 379 (App. Div. 1971).

Defendant contends that the trial court erroneously:

(1) denied liis motions for mistrial based upon (a) the failure of the State to comply with the order for discovery and (b) the statement by a State’s witness that a total of $5,404.34 had been improperly charged to the credit card;
(2) allowed a detective to testify as an expert witness;
(3) barred a State’s witness from stating his opinion as to whether more than one person was involved with the misuse of the the credit card;'
(4) denied defendant’s motion for judgment of acquittal ;
(5) allowed copies of the Bank Amerieard sales receipts into evidence ;
(6) allowed in-court identifications of the defendant;
(7) denied his motion for a new trial pursuant to R. 3:20-1.

He also asserts the trial court committed plain error in failing to properly charge the jury on the evaluation oí an expert witness. We have considered all of these contentions and find them to be without merit.

The judgments of conviction upon indictment No. 30-71, as amended, and upon indictment No. 29-71 are affirmed; the sentences imposed thereon are vacated and the matter is remanded to the trial court for the imposition of new sentences upon each of these convictions. All remaining judgments of conviction are reversed and the sentences imposed thereon are vacated. We do not retain jurisdiction.


author: Matthews, J. A. D.

text:
    HOUSING AUTHORITY OF THE CITY OF CAMDEN, A BODY POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. UNITED AJAX CORPORATION, A CORPORATION OF NEW JERSEY, STATE OF NEW JERSEY AND CITY OF CAMDEN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 18. 1974
    Decided June 28, 1974.

      Before Judges Haleern, Matthews and Bischoee.

      Mr. Martin F. McKernan, attorney for appellant.

      Messrs. Brown, Connery, Kulp, Wille, Purnell & Greene, attorneys for respondents (Mr. Steven G. Wolschina, on the brief).
   The opinion of the court was delivered by

Matthews, J. A. D.

This is a condemnation action in which plaintiff Housing Authority of the City of Camden (Authority) appeals from a judgment assessing compensation. The premises of defendant United Ajax Corporation (Ajax) are within an urban renewal area of Camden which was the subject of a declaration of blight on May 18, 1966. The Authority filed its complaint in condemnation on January 24, 1972. On July 10, 1972 Ajax appealed from the Condemnation commissioners’ June 20, 1972 award of $30,000. A trial to determine compensation was held before a Law Division judge, sitting without a jury, on June 4, 1973. He awarded Ajax $54,000.

The Authority does not challenge the amount of compensation awarded by the trial judge. It does challenge his determination that no allowance would be made for insurance proceeds received by Ajax for fire damage. The sole issue before us is whether the Authority is entitled to an abatement against the total award of $54,000 equivalent to insurance proceeds paid to Ajax for fire damage which occurred after the declaration of blight and before the initiation of condemnation proceedings.

The Ajax property is a three-story concrete and brick structure, housing a pharmacy, office space and an apartment. On October 3, 1967, approximately 1 x/2 years after the structure and area were declared blighted, a fire damaged the second and third floors. The damage was variously described as severe and decorative rather than structural; it would appear that it was extensive. It is conceded that plaster was damaged, laths and joists wore exposed. No repairs were effected. Ajax subsequently received $25,000 in insurance.

In a condemnation proceeding in which the subject property has been declared to he a part of a blighted area, the controlling date for valuation purposes is that of the declaration of blight. N. J. S. A. 40:55-21.10 provides:

* * * that in any eminent domain proceeding instituted by virtue of the power hereinbefore conferred, the value of any property sought to be acquired shall be fixed and determined to be no less than the value as of the date of the declaration of blight * * *.

See also N. J. S. A. 20:3-38. The constitutionality of N. J. S. A. 40:55-21.10 and N. J. S. A. 20:1-9, the predecessor of N. J. S. A. 20:3-38, was upheld in Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374 (1971). There the court stated:

The provision of the Constitution for the payment of just compensation is primarily a restriction on the power of the Legislature for the benefit of the property owner. As we have said, it is not a specific measuring rule and there is a margin of discretion for courts and the Legislature in devising rules to insure such compensation. And it seems to be well recognized that while the lawmakers cannot adopt a measure which will detract from that compensation, they may prescribe a rule of damages more favorable to the landowner than that which would satisfy the minimum requirement of the Constitution. *■ * *
* * *' We perceive no conflict between the minimum base and the Constitutional guaranty. Under the circumstances, the Appellate Division’s view that Chapters 217 and 218, L. 1967, N. J. S. A. 20:1—9, and N. J. S. A. 40:55—21.10 are not violative of the constitutional mandate for payment of just compensation is affirmed. We agree also that the valuation rule prescribed thereby does not constitute an unconstitutional invasion of the authority of the judicial branch of the government to assess just compensation, [at 384-385]

Once the valuation date is established, whether it is the date of blight declaration or the date of taking, the prevailing rule is that changes in condition of property which occur after that date do not affect the amount of compensation to be paid. State v. Jones, 27 N. J. 257 (1958); North Hudson County R.R. Co. v. Booraem, 28 N. J. Eq. 450, 455 (E. & A. 1877); 3 Nichols, Eminent Domain, § 8.5(1) at 28-31. In an explanation of the rule, the court in State v. Jones stated:

If, after the taking and before the condemnation action, the property is reduced in value because of alterations by the Commissioner or otherwise, the condemnee would justly be entitled to the higher valuation as of the date of taking; * * L On the other hand if, after the taking and before the condemnation action, the land increases in value because of alterations by the Commissioner or otherwise, the condemnee would not justly be entitled to the higher valuation ;***■. [27 N. J. at 262; emphasis added]

However, since the ultimate goal is an assessment of fair compensation, we conclude that this broad rule is to be limited to actions by the condemnor, or factors akin to general economic conditions which diminish or enhance the value of the property.

In Jersey City Redevelopment Agency v. Kugler, 111 N. J. Super. 50 (App. Div. 1970), the agenejr argued that the statute abolished the “defense of unjust enrichment” which thus rendered the statute unconstitutional. We rejected the constitutional argument noting:

But we do not read the amendments as in any way changing the existing law as to the legal consequences of mishandling of the property by the owners or other circumstances affecting fair compensation as between the parties, and occurring between the statutory valuation dale and (he taking of possession by the condemning agency, [at 61]

See also, N. J. Highway Auth. v. Wood, 39 N. J. Super. 575, 582 (App. Div. 1956), certif. den. 21 N. J. 551 (1956).

We have not found any authority in this jurisdiction discussing the issue before us; however, one out-of-state court has ruled that a property owner who has received insurance proceeds for lire damage occurring between the valuation date and taking date is not entitled to full compensation as of the date of valuation. Jefferson Cty. v. Adwell, 267 Ala. 544, 103 So. 2d 143 (Sup. Ct. 1956).

The factual situation may be compared to one that arises when improved real property, which is the subject matter of a contract of sale, is damaged or destroyed before the date of closing. It is the settled rule in this jurisdiction that, absent provision in the contract, the risk of loss or destruction lo the property during the executory interval will be borne by the purchaser. Coolidge & Sickler, Inc. v. Regn, 7 N. J. 93, 98 (1951). In the event of loss by fire, the proceeds of insurance held by the vendor are to be held in trust for the purchaser and credited against the purchase price. Millville Aerie, F.O. of E. v. Weatherby, 82 N. J. Eq. 455 (Ch. 1913) ; 5 Couch on Insurance 2d, § 29.99. The vendor-purchaser rule serves as a useful analogy because in that situation the bargained for purchase price is presumed to represent the fair market value — a value generally accepted as just compensation. See State v. Gorga, 26 N. J. 113 (1958). In the vendor-purchaser context, receipt of the full purchase price plus insurance proceeds is considered a windfall. We believe that tbe same rationale should apply in this ease.

Section 21.10 of the statute (N. J. S. A. 40:55-21.10) guarantees the property owner the fair market value, and no more, as of the date of blight. Under the circumstances of this case, payment of the full $54,000 award would allow Ajax a sum in excess of just compensation. Accordingly, the judgment of the Law Division is modified so as to give plaintiff a credit for the $25,000 received by Ajax from insurance.

As so modified the judgment is affirmed.


text:
    JOHN CERVASE ET AL., PLAINTIFFS-APPELLANTS, v. KAWAIDA TOWERS, INC., A NEW JERSEY CORPORATION, ET AL., DEFENDANTS-RESPONDENTS, AND B. J. BUILDERS OF NEW JERSEY, INC., A NEW JERSEY CORPORATION, INTERVENOR.
    Superior Court of New Jersey Appellate Division
    Argued June 18, 1974
    Decided July 2, 1974.

      Before Judges Carton, Lora and Seidman.

      Mr. Henry J. Franzoni, Jr. argued the cause for appellants Imperiale, Palumbo and Murnick (Messrs. Franzoni & Suss-man, attorneys).

      Mr. Irving I. Vogelman argued the cause for respondent Kawaida Towers, Inc. (Messrs. Brown, Vogelman & Ashley, attorneys).

      Mr. Richard L. Kadish, Deputy Attorney General, argued the cause for respondents Commissioner, Department of Community Affairs, and Chairman, Housing Finance Agency, and State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney).

      Mr. David R. Rudd, Assistant Corporation Counsel, argued the cause for respondent City of Newark {Mr. William H. Walls, Corporation Counsel, attorney).

      Mr. Theodore W. Geiser argued the cause for intervenorrespondent and cross-appellant, B. J. Builders of New Jersey, Inc. (Messrs. McElroy, Connell, Foley & Geiser, attorneys).
   Per Curiam.

The judgment of the Law and Chancery Divisions dismissing the complaints is affirmed substantially for the reasons set forth in the opinion of Judge Kimmelman, reported at 124 N. J. Super. 547 (Law and Ch. Divs. 1973).

We perceive no need for expression of opinion on the cross-appeal of intervenor, B. J. Builders of New Jersey, Inc., requesting consideration of the propriety of rulings and orders of the trial court pertaining to various applications made for restraints against the plaintiffs and others for interference with intervenor’s construction work. Since the trial court retained jurisdiction of the matter as to such orders and any modifications thereof, intervenor may make application to that court for any relief it deems necessary during future construction work performed on the project.