author: Kole, J. S. C.,

text:
    PROSECUTOR’S DETECTIVES AND INVESTIGATORS ASSOCIATION OF ESSEX COUNTY, THE CLERICAL AND STENOGRAPHIC EMPLOYEES, ESSEX COUNTY PROSECUTOR’S OFFICE, THE SUPERIOR AND COUNTY COURT CLERKS ASSOCIATION, CLERKS ASSOCIATION OF HUDSON COUNTY, PLAINTIFFS-RESPONDENTS, v. THE HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS, AND THE COUNTY OF ESSEX, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 10, 1974—
    Decided August 9, 1974.

      Before Judges Handeek, Meanoe and Kole.

      Mr. Francia Patrick McQuade argued the cause for appellant County of Essex.

      Mr. Philip J. Mylod argued the cause for respondent Prosecutor’s Detectives and Investigators Association of Essex County.

      Mr. James R. Zazzali argued the cause for respondent Clerical and Stenographic Employees, Essex County Prosecutor’s Office (Messrs. Zazzali and Zazzali, attorneys).

      Ms Erminie L. Conley, Deputy Attorney- General, argued the cause for the Civil Service Commission (Mr. William F. Hyland, Attorney General of New Jersey; Mr. Stephen Slcillman, of counsel).

      Mr. Robert Emmet Murray filed a brief for the Hudson County Board of Chosen Freeholders (Mr. I. Mark Cohen on the brief).
   The opinion of the court was delivered by

Kole, J. S. C.,

Temporarily Assigned. This appeal stems from a December 14, 1971 directive by the Chief Justice that all trial courts of this State, other than municipal courts, shall sit from 9 :00 a.m. to 13:30 p.m. and from 1:30 p.m. to 4:00 p.m., effective January 31, 1973. Pursuant thereto, on December 33, 1971 the Essex County Prosecutor ordered his personnel to work from 8:30 a.m. to 4:00 p.m., constituting a one-half hour earlier starting time and an additional one-half hour a day, effective January 31, 1973. Similarly, on January 5, 1973 the assignment judge for Hudson County directed “all employees serving the Judiciary” to report to work at 8:30 a.m. rather than the usual 9:00 a.m. Both Essex and Hudson Counties refused to compensate the affected employees for the extension of the basic work day.

Appeals were taken to the Civil Service Commission by the Prosecutor’s Detectives and Investigators Association of Essex County (hereafter “Detectives”), the clerical and stenographic employees of the Essex County Prosecutor’s office (hereafter “Clerical Employees”), and the Superior and County Clerks Association of Hudson County (hereafter “Hudson Court Clerks”). Their cases were heard and decided together by the Commission. The latter decided that the extended work day without additional compensation constituted a reduction without good cause, in violation of the Civil Service Law and, specifically, N. J. S. A. 11:22-38. Accordingly, the Commission directed the respective counties to compensate the affected employees on a prorated basis.

The counties appealed to this court and an order for consolidation was subsequently entered. We reverse.

N. J. S. A. 11:22-88 reads in part:

No officer, clerk or employee holding a position in the competitive class shall be removed, discharged, fined or reduced 4 * 4 until he has been furnished with a written statement of the reasons for such action by the appointing authority and been allowed a reasonable time to make answer thereto. A copy of the statement or reasons therefor and the answer thereto, with the action of the appointing authority, shall forthwith be furnished to the commission and entered upon its records, and shall also be entered on the records of the department or office in which the removed, discharged, fined or reduced person was or is employed. The officer, clerk or employee shall at once be notified, in writing, of the action taken on such charges and answer. The action of the appointing authority ordering or directing such removal, discharge, fine or reduction shall not take effect until approved by order of the commission 4 4 4.

The issue before us requires the resolution of two somewhat interrelated questions: (1) Did the directives of the Essex County Prosecutor and the Hudson County assignment judge, made for the purpose of implementing the Chief Justice’s order, together with the refusal on the part of the respective boards of freeholders to grant additional compensation, constitute reductions without good cause under the statute? (2) What effect does the Hew Jersey Employer-Employee Relations Act, N. J. S. A. 34-.13A-1 et seq., have on the propriety of the Commission’s determination?

It is important to note the difference in circumstances of the three groups of employees at the time the respective directives went into operation. The Detectives Association had already been certified by the Public Employment Relations Commission as the exclusive representative for all county detectives and investigators of Essex (N. J. S. A. 34:13A-1 et seq.). In 1970 it entered into a written agreement with the County of Essex covering various terms and conditions of employment and providing that whenever there should appear to be a conflict between the terms of the agreement and the Civil Service Law, the terms of the latter shall prevail. The agreement further stated that no employee shall make any claim for overtime payments. Salary ranges were agreed upon; however, hours were not mentioned. By its terms the agreement was to terminate on March 31, 1972 or when a new agreement would be executed, whichever event would last occur.

The second category of employees, the Hudson Court Clerks, is also an association. However, it was not recognized as the negotiating representative with Hudson County until August 4, 1972, approximately six months after the effective date of the directive. Prior thereto the Superior and County Court Clerks of Hudson County had apparently not formed an employee organization for the purposes of collective negotiation. The agreement entered into on September 6, 1973 between the Hudson Court Clerks Association and Hudson County in effect recognizes the work day as beginning at 8:30 a.m. in order to enable the court to convene at 9:00 a.m. and states that there should be no overtime before 4:00 p.m. As mentioned before, the somewhat substantial salary increases incorporated in that agreement were apparently intended by the parties to compensate the employees not only for the employment to occur pursuant to that agreement, but also for the extra one-half hour for the period involved in this appeal — namely, January 31, 1972 to January 1, 1973, the effective date of the contract.

The third group of employees instituted a class action on their own behalf. They are classified clerical and stenographic employees of the Essex County Prosecutor’s Office and are not represented by a recognized negotiating association.

In reaching its decision the Commission relied upon this court’s opinion in Essex Council #l, N. J. Civ. Ser. Ass’n v. Gibson, 118 N. J. Super. 583 (App. Div. 1972), rev’g 114 N. J. Super. 576 (Law Div. 1971). That ease was a class action in lieu of prerogative writs by a group of municipal employees who were members of the classified civil service. Plaintiffs were a minority among the city’s employees who for years had had a 30-liour work week while the prevailing work week for others was 35 hours. By letter the mayor directed that plaintiffs would in the future be required to work a 35-hour week. The defendant city disaffirmed any reliance upon a claim of economic emergency to justify the measure taken, and argued that the extension of the work week was proper with or without good cause. 114 N. J. Super. at 579. The Law Division, referring to the tenure provisions of the Civil Service Act and their purpose of protecting the classified civil servant from political control, personal favoritism and the threat of groundless demotions and reductions, found that the five-hour extension of the work day constituted a reduction without good cause and enjoined the enforcement of the order. On appeal that decision was reversed for the sole reason that the case should have first been brought before the Civil Service Commission. However, this court expressed an “inclination” to agree that the increase in hours was a reduction repugnant to N. J. S. A. 11:22-38. It further found that “at least in the circumstances of this case,” it did not see a conflict between the civil service statutes and the New Jersey Employer-Employee Relations Act, and that the civil service appellate remedy was available not only to single individuals, but to groups of employees similarly affected. 118 N. J. Super. at 585.

In contrast to Essex Council #1, N. J. Civ. Serv. Ass’n, supra, the extension of hours in the cases before us was not motivated by an arbitrary decision by the appointing authorities but was required to further the interests of judicial efficiency as reflected by the Chief Justice’s directive issued pursuant to his constitutional responsibility. Moreover, • at least with regard to the Detectives and Hudson Court Clerks, associations to represent the employees in collective negotiations had already been organized and recognized as the exclusive representative at the time the Civil Service Commission rendered its decision. This raises the question of whether the exercise of jurisdiction by the Cbmmission as to the employees represented by the associations may in some fashion conflict with the legislative policy reflected in the Employer-Employee Relations Act.

We do not agree with Essex County that the extensions here involved should be viewed as overtime and, as such, noncompensable under the terms of the Detectives’ written agreement. Although “overtime” is not a word of art and can have various meanings, it is reasonable to assume that the parties to the contract intended that term to refer to services rendered beyond regularly fixed working hours. See Bay Ridge Operating Co. v. Aaron, 334 U. S. 446, 68 S. Ct. 1186, 1197, 92 L. Ed. 1502 (1948); Goodman v. Moss, 43 N. Y. S. 2d 381, 385 (Sup. Ct. 1943), mod., 269 App. Div. 839, 56 N. Y. S. 2d 534 (App. Div. 1945). The one-half hour daily increases altered the regular work day and thus should not be deemed “overtime” under that agreement.

The Commission viewed the Essex Council #1 case as having overruled Tanis v. Passaic Cty., 126 N. J. L. 303 (E. & A. 1941), to the extent that the latter seemed to indicate that groups of employees, rather than an individual employee, may not seek relief before the Commission under N. J. S. A. 11:22-38. But there is no conflict between the two cases. Tanis does not preclude a group of classified employees who are “removed, discharged, fined or reduced” from using that statute. All that it held was that they must in fact be reduced in compensation without good cause or otherwise discriminated against before the Commission may-act.

We hold, as to all of the .employees involved in this consolidated appeal, that the Commission erroneously concluded that the extension of the work day without additional compensation constituted reductions without good cause under N. J. S. A. 11:22-38. Accordingly, it should not have ordered that additional compensation be paid therefor.

The motivating force behind the civil service legislation was to secure broad tenure protection during good behavior for employees within its scope, and “to give protection against dismissal and other types of discrimination to those holding positions which the Legislature placed in the classified service.” Scancarella v. Dept. of Civil Service, 24 N. J. Super. 65, 70 (App. Div. 1952). It also provides relief against arbitrary action by the public employer that deprives the employee of his rights under the Constitution and the Employer-Employee Relations Act. Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N. J. 579, 584-585 (1970). Generally its purposes “were to put positions in the classified service beyond political control, partisanship and personal favoritism in order to secure to the county the best public service.” Scancarella, supra; Campbell v. Dept. of Civil Service, 39 N. J. 556, 583 (1963). The Civil Service Act should be construed liberally towards the attainment of this goal. Mastrobattista v. Essex Cty. Park Comm’n, 46 N. J. 138, 147 (1965).

Pursuant to the underlying rationale of tenure protection, implicit in the provisions of N. J. S. A. 11:22-38 is the requirement that there be just cause for a protected civil servant to be reduced, removed, discharged or fined. The Civil Service Commission is charged with the duty of insuring that the reasons given by the appointing authority for such action are not arbitrary, frivolous or ‘fiikely to subvert the basic aims of the civil service program.” Kennedy v. Newark, 29 N. J. 178, 189-190 (1959); Handlon v. Belleville, 4 N. J. 99, 106 (1950).

Thus, the primary focus of N. J. S. A. 11:22-38 (and N. J. S. A. 11:15—1 et seq. as to state employees) is most often on charges of misconduct brought against individual employees, with the power of review in the Commission to determine whether the allegations of the appointing authority are supported by the facts, or the employee is the victim of arbitrary discrimination in contravention of the underlying principles of civil service protection. In this regard note the reference in N. J. S. A. 11:22-38 to “charges” that have been made against the employee. See, e. g., N. J. S. A. 11:4-3.6; 11:5—1 (d); 11:15-1 et seq.; 11:22-11; DeMarco v. Bergen Cty. Bd. of Chosen Freeholders, 21 N. J. 136, 147 (1956); Weaver v. N. J. Dept. of Civil Service, 6 N. J. 553 (1951); Greco v. Smith, 40 N. J. Super. 182 (App. Div. 1956); West New York v. Bock, 38 N. J. 500, 514-519 (1962).

But civil service tenure protection does not impede

* * * the right of a governing body to discontinue old methods, create new offices, and otherwise make changes in the public interest, provided such changes are not mere pretexts for removal from office * * *. [Newark v. Civil Service Commission, 112 N. J. L. 571, 575 (Sup. St. 1934), aff’d 114 N. J. L. 185 (E. & A. 1934) ; emphasis supplied]

See also, Camden v. Civil Service Common, 118 N. J. L. 501, 504-505 (Sup. Ct. 1937); Reck v. North Bergen Bd. Comm’rs, 110 N. J. L. 173 (E. & A. 1932).

Thus, for example, it is well settled that a classified civil servant may be discharged or his position abolished where the desire is a good faith effort to achieve governmental economy or efficiency and the action is taken in the public interest. In such circumstances there is no threat of circumvention of the policy against political or other prohibited considerations. See, e. g., Barringer v. Miele, 6 N. J. 139, 145 (1951); Byrnes v. Hudson County Boulevard Comm’rs, 121 N. J. L. 497, 500 (E. & A. 1938); Padavano v. North Bergen Tp., 13 N. J. Super. 6 (App. Div. 1951); N. J. S. A. 11:15-9, 11:22-10.1, 11:22-37. Moreover, there is a presumption that the action of the employer was taken in good faith and the burden is on the employee to show the contrary. Sieper v. Dept. of Civil Service, 21 N. J. Super. 583, 586 (App. Div. 1952); Schnipper v. North Bergen Tp., 13 N. J. Super. 11, 15 (App. Div. 1951).

Although there are exceptions, in general it may be assumed that the discrimination or other unfair conduct that N. J. S. A. 11:22-38 is designed to prevent most often surfaces in the form of action taken against an individual employee, rather than large groups of similarly situated personnel. At least in instances of across-the-board changes in the terms and conditions of employment, as in the situations before us, the foregoing alien considerations to be guarded against will most often not be present. Cf. N. J. S. A. 11: 4-3.6. In any event, the Civil Service Commission may not take action under N. J. S. A. 11:22-38, either with respect to a group of classified employees or a single employee, to override salary adjustments required for reasons of economy where the public employer acts in good faith and where no actual discrimination is involved. Tanis v. Passaic Cty., supra; Henninger v. Bergen Cty., 130 N. J. L. 191, 192 (Sup. Ct. 1943). See also, Santucci v. Paterson, 113 N. J. L. 192, 193 (Sup. Ct. 1934).

Although the extensions in hours here may be distinguishable in some respects from discharges and reductions for economic reasons, for the purposes of these appeals they may be placed in the same category. The point need not be labored that the extension of the court day and the corresponding increases in respondents hours were done in good faith and in furtherance of the public interest. See N. J. Const. (1947), Art. VI, § II, par. 3; Art. VI, § VII, par. 1; In re Brennan, 126 N. J. Super. 368 (App. Div. 1974).

Specifically, the directives of the Chief Justice, county prosecutor and assignment judge were not the subject of the employees appeal to the Commission. Rather, they contest the failure of the freeholders to give them a commensurate pay increase in the face of the directives over which the freeholders had no control.

Respondents have made not the slightest suggestion that the failure of the counties to grant salary increases was politically or personally motivated or would run afoul of the safeguards that tenure provides. Indeed, it would appear difficult to do so. There is no proof of bad faith on the part of the counties in refusing the additional pay. The increase in hours is a hazard to which all personnel involved in administering the judicial system are subject. The record is barren of evidence that the counties are unable financially to effect such a pay increment, and arguably fairness should have prompted it. But in view of what we have said, the Commission erroneously compelled that action.

Thus, we think it plain that the classified civil servant’s tenure protections do not establish an absolute bar to what may be deemed a reduction in salary or status. It is only when such action tends to frustrate the beneficent purposes of the Civil Service Act in the manner indicated that the Commission should act to resolve any deprivation of rights thereunder. The cases before us are not in that category.

The view that the present cases were not properly in the civil service arena is buttressed when consideration is given to the provisions of the New Jersey Employer-Employee Relations Act, supra. Under that act the terms and conditions of employment, such as compensation, are mandatorily negotiable. The act reflects a state policy to promote voluntary resolutions of public employer-employee disputes over terms and conditions of employment. If the employees form an organization recognized under the act for the purpose of collectively negotiating these terms with the public employer, their remedy in a case such as this is to negotiate the matter of payment for longer hours with the respective Boards of freeholders. In the event the latter fail to negotiate in good faith, the organization may seek the aid of the courts to require them to do so. If an impasse is reached, either party may seek the aid of the Public Employment Relations Commission to assist in effecting a voluntary resolution. This procedure would apply plainly to the Detectives and the Hudson Court Clerks, both of which were organized when the Commission exercised jurisdiction. Burlington Cty. Evergreen Pk. Mental Hospital v. Cooper, supra; Englewood Bd. of Ed. v. Englewood Teachers, 64 N. J. 1, 6-7 (1973); Dunellen Bd. of Ed. v. Dunellen Bd. Ass’n, 64 N. J. 17 (1973); In re Newark Teachers Union, 118 N. J. Super. 215, 221 (App. Div. 1972), certif. den. 60 N. J. 466 (1972).

The Clerical Employees, although unorganized, may present their grievances with respect to an increase in pay to the county, either personally or through an appropriate representative or an organization of which they are members. N. J. S. A. 34:13A-5.3. However, under the facts of the cases before us, the Civil Service Commission should not have exercised jurisdiction to direct that additional pay for the extra hours be made by the counties. If the court-related employees here involved deem that they are not being treated properly by the county, there may be other avenues of relief open to them. See In re Application of Bigley, 55 N. J. 53 (1969); In re Application of Schragger, 58 N. J. 274, 279-280 (1971).

The Commission did not purport to exercise jurisdiction to rectify an unfair labor practice by the counties because of their failure to pay the additional compensation here. It acted solely under N. J. S. A. 11:22-38. In any event, we do. not read Burlington Cty. Evergreen Pic. Mental Hosp. v. Cooper, supra, as authorizing the Commission to consider whether the public employer has negotiated in good faith as to such compensation, to direct that the employer so negotiate, or to require the employer to make such additional payments under the circumstances here involved. See Gross, "Collective Bargaining and Civil Service in New Jersey,” 97 N. J. L. J. 521 (July 14, 1974).

What we hold does not mean that in its proper sphere the Civil Service Commission may not exercise appropriate jurisdiction over classified employees’ rights. Our duty is to read the Civil Service Act and the Employer-Employee Relations Act, as applied to the situations before us, so that both are harmonized and each is given its appropriate role. Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, supra, 64 N. J. at 24-25. The later act did not envision that the exercise by public employees of their right to act collectively would constitute an instant eradicator of their vested tenure rights under the Civil Service Act which we have discussed. N. J. S. A. 34:13A-5.3; 34:13A-8.1; Dunellen, supra, 64 N. J. at 25, 28-29; Lullo v. Internat’l Ass’n of Fire Fighters, 55 N. J. 409, 440 (1970). See Essex Council #1, N. J. Civil Service Ass’n v. Gibson, supra, 118 N. J. Super. at 585. See also, N. J. Turnpike Emp. Union v. N. J. Turnpike, 64 N. J. 579, 581 (1970). Thus, even where public employees have organized, negotiated and executed a collective agreement with their employer, if one or more of the employees in the group have been the victim of political discrimination, personal favoritism, arbitrary infringement of rights or any of the abuses that civil service legislation was intended to rectify, he or they may seek relief before the Civil Service Commission to enforce or protect tenure rights.

Both the Detectives and Clerical Employees argue that the prosecutor’s rules and regulations provided that the normal work day was from 9:00 a.m. to 4:00 p.m., and that all personnel were hired on that basis. However, the County of Essex Personnel Handbook states that the hours of work are to be determined by the respective department heads. Moreover, even if the 9 :00 a.m. starting time is viewed as an implied term of employment, the extension of the work day without an increase in compensation is not a matter, under the circumstances here, with respect to which the Civil Service Commission should have acted.

Two additional contentions are made to which normally we need not address ourselves in view of our disposition of these cases.

The counties argue that the Commission was without jurisdiction because the directives extending the work days were not issued by the freeholders — the appointing authorities. This contention is based on the erroneous assumption that the employees have contested the directives extending their work days. Not so. They dispute the inaction of the respective freeholders who, according to all of the parties, are the appointing authorities.

Einally, the counties contend that the Commission ivas without power to order an increase in pay because its authority is limited to either approving or disapproving the action of the appointing authority. However, the power in the Commission to modify an action taken is well settled. See N. J. S. A. 11:2A:1, 11:15-6; West New York v. Bock, 38 N. J. 500, 514-519 (1962). Where the Commission determines that an employee has been improperly discharged it has the power to order back pay upon reinstatement. Mason v. Civil Service Comm’n, 51 N. J. 115 (1968). If it were to find a case of an unjustified reduction in salary within its jurisdiction, there is no reason that its authority should be any less.

The determination and order of the Civil Service Commission are reversed and vacated.

       On September 6, 1973 the Hudson Comity Clerks and the Hudson County Freeholders signed a collective negotiating agreement providing for substantial salary increases. We assume that these increases were intended to compensate the Hudson Court Clerks for the increase in hours from the effective date of the assignment judge’s order. On April 4, 1974 a stipulation of dismissal of the Hudson Coart Clerks’ action was entered on the condition, among other things, that (a) the dismissal did not moot the issues pending before the parties in the Appellate Division, and (b) the Hudson County Board of Chosen Freeholders agreed to be bound by this court’s decision as to personnel (other than the court clerks) associated with the courts who are required to work the additional one-half hour.

       We are not persuaded by the Commissioner’s reliance upon Gowdy v. State Board of Education, 84 N. J. L. 231 (Sup. Ct. 1913), aff’d o. b. 85 N. J. L. 726 (E. & A. 1914). In that Case a local school board in effect reduced tenured teachers’ salaries -without good cause in derogation of the applicable statute. Here, the failure of the freeholders to grant a commensurate pay increase does not run counter to civil service tenure provisions. They did not affect the increase in hours.

       N. J. S. A. 11:22—38 speaks in terms of actions taken by tbe “appointing authority.”

       We note, in passing, that pursuant to N. J. S. A. 2A:157-2 and 2A :157-10 the prosecutor has the power to appoint detectives and investigators. Thus, there may be some question as to who, strictly speaking, is the “appointing authority.” However, the unique division of the traditional employer attributes among two or more persons or bodies (see In re Brennan, 126 N. J. Super. 368 (App. Div. 1974)) should not be used as means to frustrate the employees’ legitimate tenure rights. Rather, our decision rests on the foregoing discussion of the meaning of such tenure protection and the applicability of N. J. S. A. 34:13A-1 et seq.


source: Caselaw Access Project

author: Per Curiam. Meanor, J. A. D.

license: Public Domain

text:
    LILLIAN H. YEOMANS, PLAINTIFF-RESPONDENT, v. ALLSTATE INSURANCE COMPANY, A FOREIGN CORPORATION DULY AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 5, 1973—
    Decided August 20, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. Victor C. Hansen argued the cause for appellant (Messrs. Gleeson, Hansen & Vantages, attorneys).

      Mr. Newton H. Porter, Jr. argued the cause for respondent.
   Per Curiam.

This is an appeal from a judgment holding defendant liable for the difference between its policy limit and the amount of an excess judgment against its insured. The trial court’s opinion is reported. Yeomans v. All State Ins. Co., 121 N. J. Super. 96 (Cty. Ct. 1972). We withheld our decision to await the guidance of Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N. J. 474 (1974). We affirm subject to the following.

The thesis of the trial court’s opinion was that Allstate breached its fiduciary duty to keep its insured, Mrs. Yeomans, informed of the seriousness of the injuries and the virtual certainty of a judgment against her in excess of the policy limit. Allstate also never informed Mrs. Yeomans, until trial was imminent, of its decision to commit its policy limit toward settlement, and of the impossibility of a contribution from the eodefendant who was also insured by Allstate and with respect to whom the quite valid decision had been made that there was no liability.

The net result of this was that the insured was deprived of any realistic opportunity to prepare to participate in a settlement above policy limits since it was not until the eve of trial that the nature of her position was made known to her.

We agree with the finding of the trial court that the claim against her could not have been settled within Mrs. Yeomans’ policy limit. Under Rova Farms, supra, an insurer has an affirmative duty to negotiate in an attempt to bring the demand within policy limits or within an amount that can be realized by a combination of the policy limit and what the insured is willing and able to contribute. Rova Farms, supra at pp. 493-496. Here Allstate did no more than offer its limit; it did not negotiate for a reduction in demand. In fact, negotiation would have been fruitless because a contribution from the insured was essential to settlement, and the previous breach of duty by Allstate had frustrated whatever contribution the insured could have made.

Allstate assails the trial court’s finding that its breach of duty was a proximate cause of the insured’s loss of the difference between the policy limit of $25,000 and the judgment of $77,000. In response to this argument, we quote from Bova Farms-.

We, too, hold that an insurer, having contractually restricted the independent negotiating power of its insured, has a positive fiduciary duty to take the initiative and attempt to negotiate a settlement within the policy coverage. Any doubt as to the existence of an opportunity to settle within the face amount of the coverage or as to the ability and willingness of the insured to pay any excess required for settlement must be resolved in favor of the insured unless the insurer, by some affirmative evidence, demonstrates there was not only no realistic possibility of settlement within policy limits, but also that the insured would not have contributed to whatever settlement figure above that sum might have been available, [at 496]

Por these propositions the Supreme Court cited Young v. American Gas. Co., 416 F. 2d 906 (2 Cir. 1969), cert. dism. 396 U. S. 997, 90 S. Ct. 580, 24 L. Ed. 2d 490 (1970). Young was quoted extensively and relied upon by the trial court. 121 N. J. Super. at 102-103. We interpret the above passage from Bova Farms in light of the citation of Young to mean that where an insured establishes bad faith on the part of the insurer, a prima facie case of damages for the difference between the policy limit and the excess verdict has also been shown. It is then up to the insurer to demonstrate that settlement could not have been achieved within the policy limit or for the policy limit plus any amount the insured would have been able and willing to contribute. This is the rationale of Young and the passage from Young expressing it is quoted in the trial court opinion. 121 N. J. Super. at 103.

There was proof that during the trial of the negligence case the trial judge in that matter directed an inquiry to Mr. and Mrs. Yeomans seeking to determine if they were willing to contribute $10,000 toward settlement. Their response was negative. There was also testimony adduced below from Mr. Jaeovino, trial counsel selected by Allstate for the Yeomans, that when he broached with them the subject of a settlement contribution their response was to the effect that they had no appreciable assets. Prom the fact that there were no assets from which to realize a settlement contribution at the time of Mr. Jacovino’s inquiry just prior to trial, it by no means follows that the insured could not have made a significant contribution had she had the advance notice of her precarious legal position to which she was entitled.

We read the trial court’s opinion, in light of its reliance on Young, supra,, as holding that the insurer brought forth no proofs sufficient to overcome the prima facie case of proximate cause and damages made out by the establishment of Allstate’s bad faith. Under State v. Johnson, 42 N. J. 146, 162 (1964), we are powerless to disturb these factual conclusions. See also Rova Farms, supra at pp. 483-484 of 65 N. J.

We must, however, disassociate ourselves from that portion of the trial court’s opinion holding that under the circumstances Allstate should not have selected defense counsel, but should have permitted the Yeomans to do so, subject to Allstate’s approval and at its expense. Two of the cases cited in support of this theory, Burd v. Sussex Mutual Ins. Co., 56 N. J. 383 (1970), and Prashker v. United States Guarantee Co., 1 N. Y. 2d 584, 154 N. Y. S. 2d 910, 136 N. E. 2d 871 (Ct. App. 1956), are not pertinent. They involved the issue of the company’s right to control the defense of pending tort litigation where the company disputed its obligation to pay any adverse judgment that might be rendered.

Here, although Allstate also insured the Yeomans’ codefendant, no criticism has been made of the decision that the codefendant was not liable and that no settlement contribution would be offered on his behalf. No issue has been raised concerning Mr. Jacovino’s presentation of the case. It has not been averred that he did not provide the Yeomans with a competent defense, or that he shirked in his duty to attempt to hold in the codefendant. In short, under the circumstances here, we believe that Allstate fulfilled its duty in the matter of representation for its insureds by selecting independent outside counsel for each of them. See N. J. Mfrs. Ins. Co. v. Haran, 128 N. J. Super. 265, 270 (App. Div. 1974), and Oda v. Highway Ins. Co., 44 Ill. App. 2d 235, 194 N. E. 2d 489 (App. Ct. 1963). In the ordinary case, where the same company covers codefendants whose interests are antagonistic, retention of separate and independent counsel for each will ordinarily suffice to fulfill the carrier’s duty. Any breach of duty thereafter will be remediable by an action against the carrier for negligence or bad faith, or by a professional liability action against the attorney. If' there is a case where the company’s duty toward antagonistic codefendants cannot be met by the retention of separate and independent outside counsel, it may be necessary to follow the suggestion of the court below. This, however, is not such a case.

Affirmed.

Meanor, J. A. D.

(concurring). I join the opinion of the court only because of the compulsion of Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N. J. 474 (1974).

I agree that we may not disturb the trial court’s finding of a breach of duty on the part of Allstate in not informing its insured until immediately prior to trial of the near certainty of a verdict in excess of policy limits against Mrs. Yeomans alone. If this breach of duty deprived Mrs. Yeomans of a reasonable opportunity to prepare to contribute, then I agree that Allstate should be liable if adherence to its duty would have permitted settlement for the policy limit plus an amount that Mrs. Yeomans would have been able and willing to pay.

I would think, however, that if the point were raised, in a case where settlement could have taken place only with a contribution by the insured, a company found in bad faith would be required to pay not the difference between policy limit and verdict, but only the difference between the probable settlement figure and the verdict. In this case there is no doubt that the claim against Mrs. Yeomans could not have been settled within her policy limit. The plaintiff against her was a passenger suing two drivers and had injuries that made a verdict in excess of $25,000 as certain as is anything in the law. It is clear that Allstate had made a valid good faith determination not to pay on behalf of the codefendant and thus the case had to be tried as to him. Since a settlement with Mrs. Yeomans would have meant a 50% reduction of any judgment against her codefendant, Theobald v. Angelos, 44 N. J. 228, 241 (1965), it is obvious that substantial obstacles stood in the way of setlement. It is also true that the personal assets of Mrs. Yeomans would be available upon execution after a verdict against her alone. Thus, the only realistic settlement of the claim against Mrs. Yeomans would be with the excess over the policy limit being made up in significant part by assets that would not be reachable on execution such as borrowed money, a pledge of jointly owned property by both Mr. and Mrs. Yeomans, or the like.

The burden of producing evidence is often placed on that party which has greater access to the facts relevant to the issue at hand. On this principle I have no great quarrel with the proposition that once the insured proves bad faith or some similar dereliction upon the part of the insurer, the insurer should be required to produce evidence showing a probability that the case could not, in any event, have been settled within policy limits. Normally, the insurer will have greater access to the necessary facts since its agents and attorneys most likely will have been the ones to conduct the settlement negotiations. But once the insurer satisfies this burden, it seems to me that the insured should be required to demonstrate a probability that he was able and willing to make sufficient contribution in excess of policy limits to achieve settlement. To have the insurer prove that the insured did not have sufficient assets to consummate such a settlement or that the insured would have spurned such an opportunity, puts the insurer in the unhappy position of having to prove a subjective negative on facts exclusively, or nearly so, in possession of the adversary. To me, this is an unfair allocation of the burden of producing evidence.

On this analysis, I would remand this matter for a determination of whether the case against Mrs. Yeomans probably could have been settled by a contribution which she would have been able and willing to make toward settlement had she been properly forewarned by Allstate of the expected outcome of the ease against her. In the event that Mrs. Yeomans was able to show that the case probably could have been settled at a figure that could have been attained by her payment in excess of policy limits, then her damages would be the difference between that probable settlement figure and the verdict.

However, I read Rova Farms, supra, as placing on the insurer not only the burden of establishing the improbability of accomplishing settlement within policy limits, but also the burden of demonstrating that no settlement outside policy limits could have been made when taking into account the contribution, if any, the insured was able and willing to make. This understanding of Rova Farms compels me to join the court’s opinion since I agree that the trial judge applied the Rova Farms principle and found the insurer’s proofs wanting.


author: Meanor, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. SANTOS RODRIQUEZ, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued August 6, 1974—
    Decided August 23, 1974.

      Before Judges Handler, Meanob and Crane.

      Mr. Edward O. MegiTl argued the cause for appellant (Mr. Edwin E. Stern, Special Deputy Attorney General, Acting Prosecutor of Hudson County and Mr. John J. Geronimo, Hudson County Counsel, attorneys).

      Mr. Gerald D. Miller argued the cause for respondent (Messrs. Miller, Hochman, Meyerson & Miller, attorneys).
   The opinion of the court was delivered by

Meanor, J. A. D.

On June 23, 1971 $11,036.92 was seized from defendant during a raid on his store and adjacent living quarters. An indictment on various gambling charges followed. Then, because the warrant pursuant to which the search and seizure were made covered only defendant’s store and did not include his place of residence, evidential use of the money taken from his home was suppressed. Approximately $1,000 of the money had been taken from the store and the balance from defendant’s home.

The case dragged on for considerable time and finally was dismissed on the application of the prosecutor because of the unavailability of a crucial state witness. There never has been a disposition on the merits. Following the dismissal defendant moved for return of the money seized. In support of his motion he filed a cryptic affidavit reciting the seizure and the dismissal, and asserting that “(T)his was my money and had no connection with any gambling operation nor was it the proceeds of any gambling.” No contrary proofs were submitted and return was ordered. This appeal followed.

The return of money seized in connection with a prosecution for violation of our gambling laws is governed by N. J. S. A. 2A :152-7 et seq. The parties agree that Kodriquez’ application is within N. J. S. A. 2A:152-10 which deals with claims for return of seized items following acquittal “or other final termination” in favor of the defendant. Theoretically, defendant may still be subject to reindictment and prosecution until the statute of limitations runs, N. J. S. A. 2A:159-4, but that prospect is so remote that we have no hesitancy in accepting N. J. S. A. 2A :152-10 as the controlling statute' here.

In State v. LaBella, 88 N. J. Super. 330, 341 (Cty. Ct. 1965), it was held that an acquittal of the accused “bars a relitigation of the question of the existence of a gambling operation.” An attempt is made to analogize the dismissal here to an acquittal. We need not decide whether the analogy is apt, for the statement quoted from LaBella is inaccurate. One Lot Stones v. United States, 409 U. S. 232, 93 S. Ct. 489, 34 L. Ed. 2d 438 (1972). The court there pointed out that an acquittal may well rest on an issue foreign to a forfeiture proceeding. Furthermore, it was said that since the forfeiture action involved was a civil proceeding with a different standard of proof, application of the doctrine of collateral estoppel was inappropriate. 409 U. S. at 235, 93 S. Ct. 489. Of course, the government may not relitigate in a forfeiture proceeding an issue necessarily or specifically resolved against it in the criminal action. Id. at 234, 93 S. Ct. 489. See, generally, Annotation, “Conviction or acquittal in criminal prosecution as bar to action for seizure, condemnation, or forfeiture of property,” 27 A. L. R. 2d 1137 (1953).

Here the County of Hudson would be the beneficiary of a forfeiture of the funds in question. However, the county as a subdivision of the State would be subject to the same application of collateral estoppel. State v. LaBella, supra, 88 N. J. Super. at 341; McAlpine v. Garfield, 137 N. J. L. 197 (E. & A. 1948). We add, too, that we need not tarry over the effect of an illegal seizure of part of the fund claimed. The impact of an illegal seizure upon a forfeiture proceeding has been capably discussed in two recent opinions by former Chief Justice Weintraub. State v. Sherry, 46 N. J. 172, 177 (1965); Farley v. $168,400.97, 55 N. J. 31, 48 (1969).

An action for the return of seized items may be by independent complaint, or by a motion filed in the criminal cause. State v. Sherry, supra. In either event, the action is civil, not criminal, and discovery is a right. See dissenting opinion of Judge (now Justice) Sullivan in State v. Sherry, 86 N. J. Super. 296, 307 (App. Div. 1965), rev’d 46 N. J. 172 (1965). The burden of proof to be carried by all parties is by a preponderance of the evidence and not the criminal standard of reasonable doubt. Krug v. Hudson Cty. Bd. of Chosen Freeholders, 3 N. J. Super. 22, 27 (App. Div. 1949); State v. Fossett, 50 Del. 460, 134 A. 2d 272, 276 (Sup. Ct. 1957); State v. Ragland, 171 Kan. 530, 233 P. 2d 740, 744 (Sup. Ct. 1951). Cf. Spagnuolo v. Bonnet, 16 N. J. 546, 554-555 (1954).

It is up to the claimant in his complaint or motion to allege a prima facie case and to prove such a case at trial. Krug, supra, where the court said:

The plaintiff, in his complaint, charged that the money belonged to him and it was unlawfully seized by the authorities at the time of the raid. Sufficient competent proof of such ownership and seizure under the circumstances, it seems to us, would establish a prima facie case by the plaintiff'. [3 N. J. Super. at 27]

In meeting his initial burden of proof the claimant may be aided by the presumption that the possessor of personal property is the owner of it. Spagnuolo v. Bonnet, supra, 16 N. J. at 554. Once the claimant’s burden to establish a prima facie case has been met the burden passes to the State or county to show that the fund was used in or resulted from a criminal transaction. State v. Sherry, supra, 46 N. J. at 178; Krug, supra, 3 N. J. Super. at 25-27; Ben Ali v. Towe, 30 N. J. Super. 19, 22 (App. Div. 1954).

We emphasize the admonition of Sherry, 46 N J. at 175, that claims for return of seized items should not he tried by affidavit, and this is true despite the fact that the action is a summary one. N. J. S. A. 2A:152-10; B. 4:67-1 et seq. This is especially so in a case such as this where the available facts are peculiarly within the claimant’s knowledge and the only support of his claim consists of his own factually sparse and conclusionary affidavit. In this context, the entry of summary judgment was improvident.

Accordingly, we reverse and remand Rodriquez’ claim for an evidentiary hearing. There has been no conviction, and, hence, the county is not entitled to the favorable presumption that would flow from that event in a proceeding under N. J. S. A. 2A:152-9. Under Krug, supra, all the claimant will have to make out is a prima facie ease of a right to possession of the fund superior to that of the county. We believe that if a judgment of forfeiture is sought-by the county, it is essential that such relief be claimed affirmatively by cross-motion or other appropriate pleading.

In view of the strong policy against return of the fruits or implements of criminal activity, we order that on remand the parties be given a reasonable time for reciprocal discovery, including a right in the county to depose Rodriquez as well as other witnesses, and that the county be given leave to seek an affirmative judgment of forfeiture.

Reversed and remanded. No costs.


author: Salvatore, J. S. C.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. RONALD RICHARDSON, DEFENDANT.
    Superior- Court of New Jersey Law Division — (Criminal)
    June 10, 1974.

      Mr. Stanley C. Van Ness, Public Defender, for defendant (Mr. Michael L. Berlin, Deputy Public Defender, of counsel and on the brief).

      Mr. Wilbur h. Mathesius, Special Deputy Attorney General in charge of Mercer County Prosecutor’s Office, for plaintiff (Mr. Paul T. Koenig, Special Deputy Attorney General, of counsel and on the brief).
   Salvatore, J. S. C.

Defendant was convicted of robbery, N. J. S. A. 2A:141-1, and was sentenced by this court on April 14, 1972 to New Jersey State Prison for a maximum term of eight years and a minimum term of five years. On May 31, 1972 defendant filed an appeal to the Appellate Division of the Superior Court. His conviction was affirmed on November 16, 1973. Defendant then filed a motion for reconsideration of sentence pursuant to R. 3:21-10 (a) on January 3, 1974.

At the hearing on the motion defendant testified that he had been attending religious services and meetings within the prison conducted by Jehovah’s Witnesses since April 1972. In June 1972 he was converted to the Jehovah’s Witnesses sect and since then has become a devout member of that religion. The membership in this religious organization has grown from three inmates when defendant first began attending the meetings, to a present active membership of 24. The defendant’s, religious fervor became instrumental in the conversion of several members of the prison community to the teachings of Witnesses, by "making calls on them” and bringing them "the message” of his religion. Defendant testified one of the basic tenets of his faith is that all Witnesses "must preadh the good news to all the world; all four corners of the earth.”

By this motion for a reconsideration of sentence defendant does not seek the usual relief available under R. 3:21-10(a). He testified that he "wasn’t seeking relief to that extent, not for a reduction of sentence.” He requested that the court “let the sentence stay.” He believed that had he requested the normal reduction of sentence, he “would be looking out for myself.” Thus, it is defendant’s desire to help the "total (religious) organization” which has prompted him to request an unusual type of relief.

Instead of a reduction of sentence defendant requests that this court grant him a release from the State Prison one weekend a month “to participate most actively with the rest of the Jehovah’s Witnesses out there.” His activities in the community would include attendance at religious services at the Kingdom Hall, going from door to door, bringing the good news and “(e)vervthing the Witnesses do in the field.” Most important to defendant is that he be given the opportunity to attend ministry schools and services in the community so that he “could become more enlightened” and “could enlighten the brothers that have been converted here in the prison as to the organization out there.” Defendant testified he would restrict his activities to the Trenton, Hopewell or Princeton communities and abide by any restrictions which the court seeks to place on his mobility. He would plan to live with his parents during the weekend releases.

Defendant testified that other inmates who belong to other religious sects have been released for religious purposes. Tie testified that inmate Edward McDowney, a Seventh Day Adventist, has been released every Saturday, unescorted, to attend church services in Trenton.

Miss Lilian J. Lucier, Coordinator of the Community lie-lease Program at State Prison, testified that through the program prisoners who are classified as “minimum custody” are permitted to attend religious functions outside the institution, and approximately ten prisoners each month are permitted to leave to attend church services or other religious programs. While the same inmate might he released more than once, no inmate is released on a “regular basis.” An inmate is released “never more than once a month” and “usually never even once every third month or something.” Miss Lucier refuted Eichardson’s testimony concerning inmate McDowney. She testified that McDowney had applied for and been granted a Telease to attend church services on December 22, 1973. However, McDowney is not granted a release every week, as defendant indicated. During the two years that Miss Lucier has been assigned to the State Prison, only one inmate had been released on more than three occasions, for reasons involving family problems and religious functions. Inmates whose applications are approved are never granted a release for more than ten hours and are always escorted during that period.

The court finds no substance in defendant’s contention that he was denied his rights under the free exercise clause of the Eirst Amendment, grounded in the argument that any denial of the opportunity to attend religious functions outside the prison on a monthly basis prohibits him from practicing the most important tenet of his faith. In its resolution of this issue the court is governed by the principle that a prisoner retains the constitutionally protected rights of an ordinary citizen except to the extent that their withdrawal or limitation may be justified by the considerations underlying our penal system. Price v. Johnston, 334 U. S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948); Jackson v. Godwin, 400 F. 2d 529, 532 (5 Cir. 1968); Smith v. Robbins, 328 F. Supp. 162 (S. D. Me. 1971); Sostre v. McGinnis, 442 F. 2d 178, 188 (2 Cir. 1971). The confinement of defendant in this instance resulted in a justifiable restraint imposed by the State on his freedom to exercise his belief in the necessity to “preach the good news” to the community outside the prison walls and is a. permissible infringement upon defendant’s Eirst Amendment rights. In Cantwell v. State of Conn., 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1939), the Supreme Court distinguished between the freedom to believe and the freedom to exercise one’s belief embodied in the free exercise clause of the Eirst Amendment:

* * * the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.

In the instant matter defendant’s conviction and sentence and resulting interests of society in his lawful incarceration may be held paramount to his right to exercise his chosen form of religion.

Defendant’s assertion that the equal protection clause of the Fourteenth Amendment demands that he be afforded weekend release's is without merit. After a review of the testimony this court finds that no prisoners incarcerated at State Prison have ever been granted relief to the extent requested by defendant. The testimony reveals only a few specific instances in which prisoners classified as “minimum” security have been released to attend religious functions outside the prison. The distinction between defendant and those who have been granted release to attend religious functions outside does not bear upon defendant’s “fundamental” interest under the free exercise clause of the First Amendment. It is a distinction based upon a prisoner’s classification as either a “maximum” or “minimum” security inmate and not upon the inmate’s religious affiliation.

Defendant further claims “there is not a shred of substantive evidence” that his classification as “maximum” security is justified. However, consideration of this argument is not within the province of this court through a motion for post-conviction relief. A determination as to which inmates shall be classified as “minimum” security and thus become eligible for various privileges is a matter within the discretion of the prison officials. State v. Rydzewski, 112 N. J. Super. 517, 521 (App. Div. 1970).

A person challenging the actions or decisions of a state administrative agency or officer should seek judicial review as a matter of right before the Appellate Division pursuant to R. 2:2-3(a). State v. Rydzewski, supra at 520.

After a thorough review of the record in this matter this court finds no basis for granting defendant’s unusual request for weekend releases to attend religious functions outside the prison. Such relief is a matter for the administrators of the Community Release Program, and is more properly left to that agency.

According to defendant’s testimony, Jehovah’s Witnesses have had great difficulty in locating a suitable meeting place or Kingdom Hall within the State Prison. He testified he has written to various prison officials in an attempt to direct their attention to the problems of the Witnesses who were “being tossed from room to room” over the past two years in an effort to locate a place to pray and conduct religious meetings. Defendant stated that one official, Albert Gray, Superintendent of the State Prison, indicated to him that he was not even aware there was any such sect as Jehovah’s Witnesses in the prison. Defendant attributes the difficulties his religion has experienced in the prison partly to “militant” and “political” organizations within the prison which are allowed “to dictate whether or not we are to have our prayers, our Kingdom Hall.” He alleged that the prison officers had no control over these organizations. Defendant testified that Muslims in the prison, with a membership of approximately 35, have extensive facilities for meeting and study:

* * * they have, surprising enough, everything. They have five rooms for Islam, the University of Islam. They have an auditorium. They have 5 rooms in the school. They have the office in the school. They have an auditorium, the big auditorium. We can’t have anything.

The State did not adduce any testimony to the contrary. The court recognizes that prison officials must be accorded latitude in the administration of prison rules and regulations. However, this court directs the prison officials'to be mindful of their responsibility to protect defendant’s rights, within the prison setting, guaranteed under tihe First and Fourteenth Amendments. “When the state seeks to jusify the granting or withholding of benefits and privileges based on religious classifications, the Equal Protection Clause of the Fourteenth Amendment demands that the state present a compelling interest which is served by the discrimination.” Remmers v. Brewer, 361 F. Supp. 537, 542 (S. D. Iowa 1973). This principle must also be applied to the prison community. Walker v. Blackwell, 411 F. 2d 23 (5 Cir. 1969).

The State has not presented any compelling state interest in denying the same privileges oí access to devotional facilities which are enjoyed by the Muslims or other religious organizations within the prison community. The disparity in the extent of the facilities afforded the Jehovah’s Witnesses sect, which has 24 active members, and the Muslims with a membership of approximately 35, is based purely upon a religious classification.

The officials at the State Prison must recognize the Jehovah’s Witnesses sect as a religion within the ambit of the First Amendment. In Remmers v. Brewer, supra, the court set down limitations on the discretion of the prison officials in determining which religions will be recognized for the purposes of affording the rights of assembly and worship in prison:

Moreover, the state’s argument suggests that prison administrators have the power to decide which religions are “recognized” and legitimate and which are not. Such a notion strikes directly at the freedom from governmental approval of secular religion which is at the core of the First Amendment’s Establishment Clause. [361 F. Supp. at 541]

xiecordingly, defendant must be afforded a reasonable opportunity of pursuing his faith substantially comparable to the opportunity afforded the members of the Muslim religion or other religions. Cruz v. Beto, 405 U. S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972). The United States District Court’s holding in Remmers v. Brewer, supra, is particularly instructive as to the guidelines which the prison officials must follow:

Plaintiffs must be allowed the same rights of assembly, discussion, correspondence, ministerial visits, devotional facilities, etc. which are enjoyed by Protestant and Catholic inmates *■**'. Of course the privileges allowed Church of the New Song devotees need only be substantially, not literally, equivalent. Prison authorities may properly take into account distinguishing factors such as the size of the group in providing facilities. Church of the New Song members are also subject to the same lawful orders and regulations concerning the internal affairs of the prison as other inmates. What is demanded is that Eclatarians be allowed a fair and meaningful opportunity to freely exercise their religion in the same degree as other inmates, Protestant and Catholic. [361 F. Supp. at 542; emphasis supplied]

By the implementation of these basic guidelines defendant and members of his sect may be assured that the practice of their religion within the prison need not be subject to the whim of the prison officials, nor to the dictates of the more conventional religious groups. The opportunity for defendant to conduct religious meetings will not be limited to the prison hallways.


author: Michels, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EARLY DICKENS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued July 9, 1974 —
    Decided July 25, 1974.

      Before Judges Fritz, Lykch and Michels.

      Mr. Christopher D. Armstrong argued the cause for appellant (Messrs. Armstrong & Little, attorneys).

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

Michels, J. A. D.

Defendant was found asleep in his automobile on the shoulder of Interstate Highway 287 in Piscataway Township, New Jersey, in the early hours of March 25, 1973 by a State Trooper. Defendant was alone in the automobile. The headlights wore on, and the engine was running. After the state trooper was finally able to awaken defendant, he was arrested for operating a motor vehicle under the influence of intoxicating liquor, contrary to the provisions of N. J. S. A. 39:4-50(a). Defendant was found guilty of the charge in the Piscataway Municipal Court. His driver’s license was suspended for two years, and he was fined $200. He appealed to the Middlesex County Court where, after a trial de novo on the record below, he was again found guilty, and the same sentence was imposed. He appeals to this court, contending in substance that (1) he was wrongly convicted because the State failed to adduce evidence to show that the offense was committed in the presence of.the arresting officer, as required by N. J. S. A. 39:5-25, and that the State failed to prove beyond a reasonable doubt that he was operating his vehicle in violation of the provisions of N. J. S. A. 39:4—50(a), and (2) the trial court erred in admitting the results of the Breathalyzer test into evidence because the test ampoules used in the test were not made available to him for inspection.

I

Defendant contends that since no violation of N. J. S. A. 30:4-50(a) occurred in the arresting officer’s presence, there was no valid arrest, and the State therefore should have been precluded from relying on any evidence derived from the illegal arrest, including, we assume, the results of the Breathalyzer test. This argument is completely without merit.

N. J. S. A. 53 :2-l empowers members of the State Police “to make arrests without warrant for violations of the law committed in their presence.” The Motor Yehicle Act similarly requires that violations thereof occur in the “presence” of the arresting officer to justify or substantiate a warrantless arrest. N. J. S. A. 39 :5-25. The word “presence” used in these acts “sums up the requirement that the officer know of the event by the use of his senses.” State v. Smith, 37 N. J. 481, 495 (1962), cert. den. 374 U. S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). To satisfy the “presence” requirement, an arresting officer need not be a witness to the offense. An arrest may be made on the admission of the offender to the arresting officer, even though without the admission the officer would not have any knowledge of the offense. See State v. Morse, 54 N. J. 32 (1969), wherein our Supreme Court expressly pointed out the purpose of the "presence” requirement involving an arrest for an offense of the type here involved, as follows:

* * *Xet the clanger of a mistaken arrest is equally obviated when the officer, although not a witness to the offense, learns from the lips of the offender that he committed it. The officer then knows everything his senses could have gathered. So it has been held that an arrest may be made on the person’s admission to the arresting officer even though without the admission the officer could not know of the offense. [Citations omitted]
* * * We added that it should not matter if the offense revealed by the offender is a past event. The reason for the requirement of “presence” being to avoid mistaken arrests, the admission of the offender should be enough whether the offense is in progress or has been concluded. [Citations omitted]
We see nothing unreasonable in an arrest made upon the basis of the individual’s own statement. Indeed it may be absurd to let the offender go when the chances of finding him thereafter are remote, [at 36]

In State v. Macuk, 57 N. J. 1 (1970), the Supreme Court upheld a warrantless arrest of the defendant for drunken driving, where defendant admitted to the arresting officer that he had been driving the car and identified himself and admitted that he had been drinking. Defendant in the ease before us admitted to the state trooper that he had been drinking in a bar in Eahway and that thereafter he drove his car to take someone home to Piscataway. He told the state trooper that he did not feel too well and therefore stopped. The evidence compels the conclusion that the offense with which defendant was charged and for which he was arrested was committed in the state trooper’s presence within the meaning of N. J. S. A. 39 :5-25, and that the arrest was valid. The evidence adduced as a result thereof, including the results of the Breathalyzer test, was properly admissible.

Furthermore, defendant is precluded from raising the issue that the evidence adduced by the arrest is inadmissible on appeal for the first time, since he failed to move in advance of trial to suppress such evidence in accordance with the rules of court and offered no justification for his failure to do so. See R. 3 :5-7; State v. DiRienzo, 53 N. J. 360, 384 (1969); State v. Swiderski, 94 N. J. Super. 14 (App. Div. 1967).

Defendant’s further argument that the State failed to prove that he intended to operate his automobile, as required by State v. Daly, 64 N. J. 122 (1973), is equally lacking in merit. At the outset, defendant’s reliance on State v. Daly, supra, is completely misplaced since the facts there involved are readily distinguishable from the facts of this appeal. Defendant was not found in a car in a tavern parking lot shortly after the closing of the tavern where he had been drinking, as was the case in State v. Daly, supra. Cf. State v. Sweeney, 40 N. J. 359 (1963). Defendant was found in his automobile on the shoulder of a superhighway, which could have only been reached by operation of the automobile to the point where it was found. Defendant admitted that he had been drinking in a bar in Rahway, and admitted that he was driving his car to take someone home to Piscataway when he did not feel well and stopped by the side of the road. Defendant was not in a place which was normal for parking. Purthermore, when defendant was finally aroused from his “deep sleep,” according to the state trooper he asked, “what did he hit?” The inference is inescapable that defendant was in fact operating his motor vehicle while under the influence of intoxicating liquor. See State v. Chapman, 43 N. J. 300, 301 (1964); State v. Baumgartner, 21 N. J. Super. 348, 349-350 (App. Div. 1.952); State v. Damoorgian, 53 N. J. Super. 108, 114 (Cty. Ct. 1958). There was, therefore, sufficient credible evidence in the record to support the trial judge’s finding that defendant had operated a motor vehicle in violation of N. J. S. A. 39:4-50(a). See State v. Johnson, 42 N. J. 146, 161—162 (1964).

II

Defendant’s contention that the trial court erred in admitting the results of the Breathalyzer tests into evidence because the test ampoules were not made available to him for inspection is equally without merit. In the first place, there was more than enough evidence in the record to find defendant guilty of driving while under the influence of intoxicating liquor in violation of the provisions of N. J. S. A, 39:4-50 (a) without considering the Breathalyzer readings. Secondly, the record indicates that defendant failed to make a timely objection to the admissibility of the Breathalyzer results, raising the objection only after the conclusion of the trial de novo on the record in the County Court. Accordingly, the alleged error in this regard will not be considered since it does not qualify as plain error. R. 2:10-2; State v. Macon, 57 N. J. 325, 333 (1971). Defendant contends that he was relieved from the necessity of making an objection because the state trooper testified that the ampoules used in the test were destroyed and consequently any objection would have been futile. This argument is totally unavailing. The operator of the Breathalyzer instrument is required to dispose of each test ampoule at the conclusion of the examination, pursuant to N. J. A. C. 13:51-3.5, and the law is well settled that the spot checking of a random ampoule is sufficient prima facie proof that the chemicals in the test ampoule were of the proper kind and mixed to proper proportion. See State v. DeVito, 125 N. J. Super. 478 (App. Div. 1973); State v. Baker, 56 Wash. 2d 846, 855, 355 P. 2d 806, 811 (Sup. Ct. 1960). Thus, any alleged error would have been solely with respect to the failure of the State to establish the spot checking of the lot of ampoules and not with respect to the checking of the particular test ampoule. Had this objection been timely made, the State would have had an opportunity to cure any such alleged defect and to present evidence that the chemicals in the test ampoule were of the proper kind and mixed to proper proportion. We therefore conclude that no error, much less plain error, was committed by the trial judge in admitting the evidence of the Breathalyzer readings.

Accordingly, the judgment of conviction below is affirmed.