author: Crane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. PAUL J. SHERWIN, WILLIAM C. LOUGHRAN AND MICHAEL J. MANZO, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 7, 1973—
    Decided March 13, 1974.

      Before Judges Kolovsky, Fritz and Crane.

      Messrs. Adrian M. Foley, Jr. and Peter D. Manahan argued the cause for appellant Sherwin (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys; Mr. Peter D. Manahan, on the brief).

      Mr. Frederic C. Ritger, Jr. argued the cause for appellant Loughran.

      Mr. Paul J. Feldman argued the cause for appellant Manzo (Mr. Charles Frankel, attorney).

      Messrs. Richard A. Levin and Stephen N. Dermer argued the cause for respondent (Messrs. Matthew P. Boylan, Stephen N. Dermer and Bichaurd A. Levin, Special Deputy Attorneys General of the State of New Jersey, attorneys; Messrs. Richard A. Levin, Matthew P. Boylan and Stephen N. Dermer, on the brief).
   The opinion of the court was delivered by

Crane, J. A. D.

At the time of the occurrence of the

events involved in this appeal, defendant Paul C. Sherwin was Secretary of State of New Jersey; defendant William C. Loughran was a solicitor of funds for the Republican Party, and the third defendant, Michael J. Manzo, headed a construction firm known as Manzo Contracting Co., Inc. Indictment No. SGJ9-72-11 of the statewide grand jury charged defendants with the following offenses: count I alleged that all throe defendants conspired “to pervert and obstruct the due administration of the laws, that is, Title 27 of the New Jersey Statutes and the rules, regulations, and procedures of the Department of Transportation,” in violation of N. J. S. A. 2A :98-l(h) and N. J. S. A. 2A-.98-2. Count II charged that all defendants did corruptly counsel, invite and solicit John C. Kohl, Commissioner of Transportation of the State of New Jersey, and Russell H. Mullen, Assistant Commissioner for Highways, to engage in misconduct in their offices, in violation of N. J. S. A. 2A :85-1 and N. J. S. A. 2A :85-14. Count ITI charged Sherwin and Loughran with receiving a bribe, in violation of N. J. S. A. 2A :93-6 and N. J. S. A. 2A :8o-14. Count TV charged Manzo with giving a bribe of $10,000 to Loughran to be transmitted to the Republican Einance Committee in order to procure the rejection of the lowest bid on a highway reconstruction contract and the giving of preferential treatment to the second lowest bidder, Manzo Contracting Company, Inc., in violation of N. J. S. A. 2A :93—6 and N. J. S. A. 2A :85-14.

All defendants were convicted of the conspiracy charged in the first count. Pursuant to the court’s instructions, in the circumstances of a conspiracy conviction, no verdict was returned on the second count. Sherwin and Loughran were convicted of receiving a bribe on the third count and Manzo was convicted of bribery on the fourth count. All of the defendants received State Prison sentences and fines.

The essential facts in the State’s case were as follows: In 1970 the State Department of Transportation decided to widen and resurface a portion of Route 46 in Warren County. As the result of invitations to bid and notice to contractors, three bids were submitted. D. Stamato & Co. bid $632,800. Mapzo Contracting Co., Inc. submitted a bid of $607,657.50. The lowest bid, $603,871, was submitted by Centrum Construction Company. All of the bidders had previously applied for and been granted a prequalification rating by the Department of Transportation. After the opening of the bids, Centrum was declared the apparent low bidder. It was subsequently declared the actual low bidder on September 28, 1970. A certificate of award was prepared and signed by departmental officials. Einal acceptance of Centrum’s bid awaited action of the Commissioner of Transportation, John C. Kohl.

' On October 8, 1970 Loughran, who had previously visited the Manzo Contracting Co., Inc. offices, visited Sherwin at his office in the State House at Trenton. As a result of the meeting, Sherwin sent a letter by special delivery to Commissioner Kohl’s home in which he urged that “the bids be rejected and a rebidding requested.” Upon receipt of Sherwin’s letter Commissioner Kohl telephoned Assistant Commissioner Mullen but was unable to reach him. He dictated a note for Mullen directing him to “Stop everjdhing on the award of the contracts for Route 46.” Kohl subsequently telephoned Sherwin who said it would be a distinct favor to one of the contractors, Manzo Contracting Company, if the bids were rejected because the contractor was “a friend, supporter, contributor to the party.”

On October 20 or 21 Assistant Commissioner Mullen had a conversation with Sherwin about the possibility that an •asphalt shortage might justify the rejection of bids. During the conversation Sherwin assured Mullen that' the Manzo firm could guarantee a supply of asphalt and suggested disqualifying Centrum because of the absence of a guarantee and awarding the bid to Manzo without rejecting all the bids and readvertising. On October 23, 1970 Mullen again called Sherwin and told him that all bids would be rejected and the job readvertised. Sherwin asked whether Centrum’s bid could not be rejected and the contract awarded to the Manzo firm. Mullen stated that that could not be done but that “at least Mr. Manzo would get another opportunity to bid.” On that same date Loughran called at the Manzo Company offices and picked up a check for $10,000 payable to the Republican State Finance Committee, the drawing of which had been authorized by Manzo through a telephone conversation with the office manager of the Manzo Company. Seeking to allay the concern of John A. Perucci, Sr., and John A. Perucci, Jr., who were associated with Manzo in the construction project as suppliers of asphalt, Manzo told them not to worry, that the bids wore being thrown out and that he had to pay $10,000 to the Republican Party for it. On October 29 and 30 press statements announcing the rejection of the bids were released by Commissioner Kohl’s office. Subsequently, on advice of the the Deputy Attorney General assigned to the Department of Transportation, Commissioner Kohl reversed his decision to reject the bids and on November 5 the contract was awarded to Centrum.

On appeal defendants have attacked the sufficiency of the evidence supporting the conspiracy charge. They contend that the prosecutor’s comments in summation exceeded the bounds of propriety and they all complain that the court failed to give proper instructions to the jury. They also urge that motions for separate trials should have been granted.

Sherwin contends that there was insufficient evidence to convict him of receiving a bribe. Manzo asserts that the State’s evidence was insufficient to justify his conviction for bribery; he contends also that the sentence imposed upon him was manifestly excessive. Loughran also attacks the bribery conviction on the ground of insufficiency of evidence and contends that the trial judge committed several errors in the charge to the jury.

The Bribery Conviction of Manzo

We deal first with the bribery conviction of defendant Manzo under N. J. S. A. 2A :93—6. It is contended on behalf of Manzo that there was no evidence that the $10,000 cheek to the Republican Einance Committee was given to influence any action of the Department of Transportation and that the evidence did not show that preferential treatment was sought for the Manzo company as charged in the indictment.

The statements made by Manzo to John Perucci, Sr. and John Perucci, Jr. (about which more will be said infra in connection with the conspiracy charge) clearly articulated his purpose in making the contribution. The Peruccis were principals in a family-owned corporation known as Warren Limestone Company. They were Manzo’s asphalt suppliers and they had agreed to supply asphalt for the Route 46 job. When the Peruccis found out that Manzo had submitted a bid based upon a price of $14 a ton for asphalt instead of $12 as the Peruccis had agreed, they were disturbed. Manzo told John Perucci, Jr. not to worry, the job was going to be thrown out. A few days after that he said that he had to pay $10,000 to the Republican Party to have the job thrown out. After the announcement was made by the Department of Transportation that the bids would be rejected, Manzo told John Perucci, Jr., “I told you it would be thrown out and it cost me ten big ones.”

The closeness of the principal events in point of time is also significant. Payment of the $10,000 contribution to Loughran occurred on the same date that the decision to reject all bids. was communicated to Sherwin. These facts bolstered Manzo’s statements to the Peruccis and tended to generate a belief in their trustworthiness. The requirements of State v. Lucas, 30 N. J. 37 (1959), in this regard were satisfied. The testimony concerning Sherwin’s efforts to have Centrum’s bid thrown out and the award made to Manzo Contracting Co., together with the testimony relating to the efforts to have all bids rejected, supported the allegations of the indictment relating to the giving of preferential treatment to Manzo Contracting Co. If either effort had succeeded, the net effect would have been preferential to Manzo Contracting Co. We find no merit to the attack on the sufficiency of the evidence.

Manzo contends, additionally, that the sentence imposed upon him, namely, that of one to two years on the first and fourth counts, to run concurrently, and a total fine of $2,000, was excessive. Defendant, a businessman, age 53 at the time of sentence, had never previously been convicted of a crime. His counsel points out that the crimes of which he was convicted did not involve violence and that defendant was known as a contributor to charity.

In stating his reasons for imposing custodial sentences on the defendants, the trial judge said:

* * * It is suggested that this is a novel conviction, a unique situation. That perhaps the system of political contributions is at fault and should be reviewed or that it should stand trial. I feel that the last three items mentioned, i. e., absence of personal gain, novelty, and the system, are of minimal relevance since the hard fact remains that a jury on ample evidence has found bribery and a conspiracy to subvert an important State contract involving substantial State funds. In a word, in my judgment the offenses dictate the sanctions. * * *

We are mindful of the general policy that “sentencing judges should direct the punishments they impose to the goal of reformation.” State v. Ward, 57 N. J. 75, 82 (1970). However, here the offenses were of such a character as to undermine the fundamental assumption that the affairs of government should be conducted in an atmosphere free of corrupt influences. “The social interest demands that official action should be free from improper motives of personal advantage.” State v. Begyn, 34 N. J. 35, 48 (1961). The sentencing judge was properly permitted to consider factors such as the deterrence of others and the probability that a lesser sentence of a noncustodial nature would unduly depreciate the seriousness of the offenses in the eyes of the public. See American Bar Association, Sentencing Alternatives and Procedures, § 2.5 at 81 (1967). We find no mistaken exercise of discretion. State v. Tyson, 43 N. J. 411, 417 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

The Conspiracy Conviction

All three defendants were convicted of the charges contained in the first count, namely, that they had conspired to pervert and obstruct the due administration of the laws pertaining to the Department of Transportation. Each of the defendants attacks the sufficiency of the evidence. It is contended that proof of the existence of a conspiracy was not established, that it was error to admit the testimony of Manzo’s statement to the Peruccis, and that the court’s charge erroneously defined conspiracy.

Our examination of the record indicates that, entirely apart from the testimony of the Peruccis, sufficient evidence was presented from which the jury could find the existence of a conspiracy. Sherwin, who knew Loughran as a fund-raiser for the Republican Party, met with Loughran several times in his State House office to discuss the Route 46 job and the status of Manzo Contracting Co. as a bidder. Sherwin communicated with officials of the Department of Transportation, including the Commissioner, in an effort to favor the Manzo company by having the low bid of Centrum thrown out or, alternatively, by having all the bids thrown out so the Manzo company could bid again. The only connection between Sherwin and Manzo was Loughran. Sherwin had never met Manzo, according to Sherwin’s testimony, but it is not necessary that all members of a conspiracy know each other. State v. Carbone, 10 N. J. 329, 338 (1952).

Significantly, Sherwin was able to tell the Department of Transportation officials that Manzo was a friend and contributor; that he would be able to supply the needed materials, could furnish any guarantee required and would rebid at a lower price. Since Loughran had been in touch with both Manzo and Sherwin, an inference is permissible that the information about Manzo was transmitted by Loughran to Sherwin. The fact that the information was transmitted, when taken together with the fact of Loughran’s enlistment of Sherwin’s help on behalf of Manzo and Loughran’s receipt of the $10,000 cheek, clearly spells out his participation in the conspiracy.

Manzo’s participation was adequately demonstrated by his meetings with Loughran, his relaying of information concerning his ability to supply asphalt, his intention to rebid at a lower price and his payment of the $10,000 contribution. The delivery of the $10,0(30 check from Manzo to Loughran on the very same day Sherwin was informed of the rejection of the bids is a circumstance which the jury was entitled to consider along with Sherwin’s assertion to Commissioner Kohl that Manzo was “a friend, supporter, contributor to the party.”

Taken together, all of the circumstances permitted the conclusion that a conspiracy existed. State v. General Restoration Co., Inc., 4.2 N. J. 366, 375 (1964). Proof of the existence of a conspiracy may rest on either direct or circumstantial evidence. State v. Carbone, supra, 10 N. J. at 341. The transfer of money at or about the same time as the happening of an event essential to the purpose of the parties permits the drawing of a reasonable inference that the facts are not coincidental and innocent but are related in the minds of the parties concerned and the product of an illegal agreement. State v. Seaman, 114 N. J. Super. 19, 30 (App. Div. 1971), cert. den. 58 N. J. 594 (1971), cert. den. 404 U. S. 1015, 92 S. Ct. 674, 30 L. Ed. 2d 662 (1972).

The statements made by defendant Manzo to the Peruecis to the effect that he had paid $10,000 to the Eepublican Party to have the bids thrown out were much more than idle gossip or boasts made to strangers, as is argued by Sherwin. John Perucci, Sr. and John Perueci, Jr. were business associates of Manzo upon whom he was dependent for a supply of asphalt for the Route 46 project. The Peruceis were upset that Manzo’s bid had been calculated at $14 a ton for asphalt rather than the' price of $12 a ton they had agreed upon. The conversations with the Peruecis furthered the objectives of the conspiracy by placating them in order to assure that Manzo would be able to submit a rebid on the project. This conduct on Manzo’s part was directly related to the perversion and obstruction of the bidding laws and related to the objectives of procuring preferential treatment for Manzo Contracting Company, Inc., as was alleged in the indictment.

The conspiracy did not end with the payment of the $10,000 contribution, as has been suggested. It may well be that if the Deputy Attorney 'General assigned to the Department of Transportation had not advised Commissioner Kohl of the illegality and impropriety of rejecting the bids, Manzo Contracting Co., Inc. might have submitted a new lower bid and been declared the low bidder. Sherwin had reassured Commissioner Kohl that Manzo would be able to supply the materials, that he would be able to supply any guarantee needed and that a better price would be submitted on a rebid. The statements made were in furtherance of that plan and were thus admissible. Evidence Rule 63(9) (b). That the objectives of the conspiracy were frustrated does not bar prosecution; it is the illegal agreement which constitutes the gravamen of the offense. State v. LaFera, 35 N. J. 75, 86 (1961).

In State v. Boiardo, 111 N. J. Super. 219, 231 (App. Div. 1970), cert. den. 57 N. J. 130 (1970), cert. den. 401 U. S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971), statements made by a coconspirator to the effect that there was a “chain of command,” that the organization “pays off hits right away, and this is what the chief wants and demands,” that “the chief had the power to get all the books together on odds and cut numbers/’ that independent numbers operators “can’t operate without the chief’s approval/’ and that the defendant Boiardo “controls all of New Jersey, part of New York” were admitted on behalf of the State. It was argued that the statements were mere gossip and did not serve to further the objectives of the conspiracy. This court rejected those arguments holding that it was not error to admit the statements, We said:

The life blood of a lottery operation is the regular small bettor, and Germano became such a bettor. We think it was inferable by a jury that the statements were made to Germano to instill in him confidence in the lottery operation and its businesslike efficiency so that he would continue to place his bets with the organization, [at 231]

It was likewise inferable in this case that the statements of Manzo to the Peruccis bore an important relationship to the success of the illicit plan. The relationship of the declarant to the persons to whom the statements were made and the circumstances surrounding their utterance distinguish them from the category of idle comment to third persons, as was dealt with in State v. Yedwab, 43 N. J. Super. 367, 373 (App. Div. 1957), cert. den. 23 N. J. 550 (1957).

Sherwin argues that the statements should not have been admitted because there was an insufficient showing that a conspiracy existed. We have already concluded that ample proof of the existence of a conspiracy was presented, even without the Perucci testimony. The requirement of a showing of the likelihood of an illicit association has clearly been met. State v. Seaman, supra, 114 N. J. Super, at 28. And contrary to defendants’ argument, Fifth and Sixth Amendment rights were not violated by the introduction of the Peruccis’ testimony. State v. Boiardo, supra, 111 N. J. Super. at 233. The Manzo statements were not a confession, as was the situation in Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

Nor do we find error in the denial of defendants’ motion for a judgment of acquittal at the end of the State’s case and at the end of the entire case, under the standards set forth in State v. Reyes, 50 N. J. 454, 458 (1969).

The Conviction of Sherwin and Loughran for Receiving a Bribe

The third count of the indictment charged, in essence, that Sherwin and Loughran aided and abetted each other in receiving the sum of $10,000 to be transmitted to the Republican Finance Committee as a bribe to procure acts connected with the Department of Transportation, namely, the rejection of the lowest bid of Centrum on the Route 46 project and the giving of preferential treatment to the second lowest bidder, Manzo Contracting Co., in violation of N. J. S. A. 2A :93—6 and N. J. S. A. 2A :85-14.

Loughran contends that the crime of receiving a bribe was not proved by the State. Sherwin contends that he was unaware of the $10,000 contribution by Manzo and that there was consequently no showing of criminal intent so far as he was concerned. Thus, he argues, he could not be convicted of receiving a bribe.

Sherwin testified in his own behalf to the effect that although he knew Loughran and had been in contact with him in connection with Republican Party fund-raising activities, and had discussed the Route 46 project with Loughran at his State House office, Loughran did not tell him he was soliciting a $10,000 campaign contribution from Manzo. The jury was not required to accept defendant’s latter assertion, however. The evidence indicates that Sherwin had told Commissioner Kohl that it would be a distinct favor if the bids were rejected because Manzo was “a friend, supporter, contributor to the party.”

Additionally, as we have pointed out above, the contribution of $10,000 was made substantially contemporaneously with Sherwin’s being informed by the Department of Transportation that the bids were to be thrown out. Sherwin, who testified he had never met Manzo, told Kohl that Manzo had been a good friend of theirs, that he would be able to supply the necessary materials and that he could supply any guarantee. It was permissible for the jury to conclude that Sherwin was not acting out of motives in the best interest of the State, as he had testified, but with a purpose to favor one who could be expected to contribute and who did contribute to the Republican Party.

The necessary corrupt intent is supplied simply by showing that the opportunity was used to perform a public duty as a means of acquiring an unlawful benefit. State v. Begyn, 34 N. J. 35, 48 (1961). Whether the benefit was received personally by defendant is immaterial, see State v. Smagula, 39 N. J. Super. 187 (App. Div. 1956), and it matters not whether Loughran or Sherwin had power themselves to bring about a rejection of the lowest bid. The statute, N. J. S. A. 2A :93—6, does not require that the person receiving the bribe do so “under color of his office,” as does the section proscribing statutory extortion. N. J. S. A. 2A :105-1. The offense of receiving a bribe under N. J. S. A. 2A :93-6 is complete upon a showing that defendant received a thing of value as a bribe to procure any act appertaining to any office or department of the government.

We find that the trial judge correctly charged the jury on the law pertaining to aiding and abetting and acting in concert and that the record contains sufficient evidence to justify the verdict of the jury on the third count with regard to both Sherwin and Loughran.

The Severance Issue

Prior to trial defendant Sherwin moved for a severance. He contends that the denial of his motion was error; the other defendants join in the argument. The facts tended to show that the transactions involved were part of a common scheme or plan and that the three defendants participated in the series of transactions constituting the offenses. Defendants and the offenses were properly joined in a single indictment under R. 3 :7—6 and R. 3 :7—7. We find no mistaken exercise of discretion in declining to sever. State v. Manney, 26 N. J. 362, 368 (1958).

The Wharton Buie

Defendant Longhran contends that the conspiracy of which defendants were charged involved a crime which by its nature must necessarily have been committed by two or more persons. Such a charge, he argues, cannot be maintained under the so-called Wharton Rule. 1 Wharton, Criminal Law and Procedure, § 89 (1957). The argument is misconceived; it is based on the contention that the conspiracy count was “cornered on the offense of bribery.” The indictment, in fact, did not allege a conspiracy to commit the offense of bribery; it charged a conspiracy to “pervert and obstruct the due administration of the laws,” an offense which is capable of commission by a single individual. Such a charge is not subject to the application of the rule. State v. Seaman, supra, 114 N. J. Super, at 30.

The Prosecutor’s Comments on Summation

Defendant Sherwin contends that the comments of the prosecutor during his summation to the jury went beyond the bounds of propriety, thus depriving him of a fair trial. The prosecutor stated several times during his summation that defendant Sherwin lied. He also used the word “downtown” in referring to the attempts by Sherwin to convince officials of the Department of Transportation to reject the bids. The prosecutor also stated that if John Kohl had rejected the bids, he, too, would have been a defendant.

In making the assertion that Sherwin lied and using the word “downtown” the prosecutor was making permissible comment based on the facts in the record. State v. Mayberry, 52 N. J. 413, 437 (1968), cert. den. 393 U. S. 1043 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). There was no substantial prejudice. State v. Bucanis, 26 N. J. 45 (1958), cert. den. 357 U. S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). His expression of opinion as to the possible consequences of a rejection of the bids by Commissioner Kohl did not interfere with the fair evaluation of the merits of the defense. State v. Hipplewiih, 33 N. J. 300, 311 (1960). Moreover, at the very beginning of the charge the trial judge instructed the jury that there was “nothing in the record before you to support this contention; therefore, you may not consider that argument as valid in your determinations.” None of the comments complained of had the capacity of misleading the jury and bringing about an unjust result. State v. DiPaglia, 64 N. J. 288 (1974).

The Charge to the Jury

With respect to the court’s charge, defendant Sherwin alleges several errors. He contends that the conspiracy alleged in the indictment was not sufficiently defined, was not relaled to the facts, and that the court erred in defining the elements of receiving a bribe as charged in the third count.

The court instructed the jury on the subject of conspiracy in well recognized terms as being “a combination or an agreement by two or more persons to accomplish a criminal or unlawful act or to do a lawful act by unlawful means.” He explained various relevant facets of the law of conspiracy and the State’s burden of proof on each of the elements of the crime. The factual contentions of the State with relation to the conspiracy charge were stated to be “that between September 24, 1970 and November 5, 1970, the three defendants, Sherwin, Loughran and Manzo conspired with one another illegally and corruptly to a criminal end. The criminal end being to pervert the statutes and procedures on public bidding with the idea to reject all bids and give preferential treatment to Mr. Manzo.” Later in the charge the judge elaborated and added that the reasons alleged for procuring preferential treatment were “for reasons of personal favoritism and as compensation for political contribution.” He also referred to the eight overt acts alleged in the indictment. In a supplemental charge after hearing defense counsel’s objections, the judge clarified the term “political contribution” as follows:

When I spoke of political contribution, of course, I was referring to the $10,000 check given to the Republican Finance Committee. I didn’t spell it out, but I think you knew what I was talking about.

The judge also summarized the testimony of each witness during the course of his charge. The matter was not left in a state where the jury would have to speculate as to the applicability of the law to the facts. Cf. State v. Hobbs, 90 N. J. Super. 146 (App. Div. 1966). Nor was the jury left without appropriate instructions as to the nature of the crime charged, as was the case in State v. Green, 62 N. J. 547, 561 (1973).

. Defendant Sherwin submitted numerous requests to charge. He complains now that refusal of the judge to charge certain of. them was error. Defendant requested an instruction that ;

* * * the fact that the Secretary of State communicated with the Commissioner of Transportation and the Assistant Commissioner of Transportation, standing on its own, raises no inference of improper activity. In fact, under the facts, you may find that he had a duty to disclose such information.

; The requested charge would not have properly framed the issues presented by the indictment and the proofs. The indictment charged and the proofs tended to show that defendants “acted for reasons of personal favoritism and as compensation for political contributions.” Nowhere in the charge was it implied that mere communication constituted improper or unlawful conduct.

Defendant Sherwin also requested an instruction that

If a person has no knowledge of a conspiracy, hut happens to act in a way which furthers some object or purpose of the conspiracy, he does not thereby become a conspirator.

The judge refused to give the instruction in the language presented. But the use of words such as mutual understanding, knowingly, willfully, corruptly and intentionally sufficiently indicated to the jury that the State was required to prove that each of the defendants knew of the conspiracy.

Defendant Sherwin contends further that the trial court erred in failing to charge that he was entitled to separate consideration on the part of the jury. The argument is without merit. The judge did instruct the jury in clear and definite terms that each of the charges “must be considered separately and distinctly,” that “the burden is on the State to prove each of the essential elements of the offenses charged, beyond a reasonable doubt before any defendant would be guilty of any offense.” The judge further charged the jury that if they found:

^ * a reasonable doubt as to the defendants’ guilt on any of the particular charges, it is your duty to acquit, to find him innocent. If on any of the particular charges as outlined you are satisfied beyond a reasonable doubt as to the guilt of the defendants or any one or Uoo defendants, then it is your obligation to convict the defendant or those defendants, to find him guilty.

The jury was told that if they had a reasonable doubt “even though that doubt may arise merely from his good reputation, he is entitled to an acquittal,” but that if they “believe the defendant or defendants guilty beyond a reasonable doubt, he or they should be convicted.” (Emphasis supplied throughout)

Finally, to eliminate any question that the jury might be tempted to decide the guilt of the defendants collectively, the trial judge prepared and used a verdict sheet in which the offenses charged were listed separately as were the defendants. The jnry was then instructed to record its findings as to each defendant and each charge separately on the verdict sheet.

Defendant Sherwin requested the judge to charge, “If you can reconcile the evidence on any reasonable hypothesis consistent with a defendant’s innocence, then you must acquit.” The request was not in accord with the existing law of this State. It has long been held that a jury need not find that the evidence excludes every reasonable hypothesis of innocence. See: State v. Bittingsley, 46 N. J. 219, 237 (1966), and the cases cited therein; State v. Mayberry, supra.

The next contention urged by defendant Sherwin is that the judge refused to charge in terms of “an abiding conviction * * * to a moral certainty” when instructing the jury on reasonable doubt. The requested language has not been in general use for several years; its omission is not error. State v. Lane, 52 N. J. 123, 126 (1968). As in Lane, the trial judge correctly defined reasonable doubt as “an honest and reasonable uncertainty.” A rather extensive explanation of the term was given in the following language:

A reasonable doubt is a doubt based on reason, which arises out of the evidence or lack of evidence in this case. It is not a doubt based on guess work or speculation. It is not a mere possible or imaginary doubt, because, as you may very well know, everything relating to human affairs or depending upon oral evidence is open to some possible or imaginary doubt. The law does not require absolute certainty. A reasonable doubt is an honest and reasonable uncertainty as to the guilt of the defendants existing in your minds after you have given full and impartial consideration to all of the credible testimony or evidence. Because there is more to evidence than just testimony. It may arise from the evidence itself or from a lack of evidence, but it may not arise solely from sympathy or speculation. It, reasonable doubt, is a doubt which a reasonable person has after carefully weighing all of the testimony or evidence. Once again, the State has the burden of proving the defendants’ guilt of the crime charged and each of their various elements, beyond a reasonable doubt.

An objection was made to the statement, “the law does not require absolute certainty.” We find no error in the use of the language quoted. Donnelly v. State, 26 N. J. L. 601, 614 (E. & A. 1857); State v. Shapiro, 122 N. J. Super. 409, 426 (Law Div. 1973).

The judgments of conviction are affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IRAL FORD, PLAINTIFF-RESPONDENT, v. JOHN W. GARVIN, JR. AND SAMUEL STERN, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1974—
    Decided March 29, 1974.
    Before Judges Halpern, Matthews and Bischoff.

      Mr. David Lustbader argued the cause for appellant Samuel Stern (Messrs. Lustbader and Lustbader, attorneys).

      Mr. John Appezzato argued the cause for appellant John W. Garvin, Jr. (Mr. Joseph D. Darcy, attorney).

      Mr. George F. Hendricks, Jr. argued the cause for respondent (Messrs. Pincus, Sheehan & Hendricks, attorneys; Mr. Gerald Gordon, on the brief).
   Per Curiam.

Plaintiff was injured while a passenger in a car owned by defendant Samuel Stern which was involved in an accident with a ear owned by John W. Garvin, Jr. She sued both defendants and, after a trial on liability, the jury found defendants jointly and severally liable. Prior to the trial on damages defendants made an offer to settle for $5,000 at a settlement conference held by the assignment judge. The offer was refused because plaintiff wanted $14,000, despite her attorney’s advice to accept the offer. Ultimately, the jury awarded her damages of $6,281. The trial judge, in accordance with R. 4.-42-11 (b), awarded prejudgment interest of $659.50.

Appellants concede the constitutionality of R. 4:42-ll(b), but contend that the trial judge erred in refusing to exercise his discretion in disallowing interest.

The trial judge determined the rule was mandatory and he had no discretion in the matter. We agree.

R. 4 :42—11(b) provides:

(b) Tort Actions. Except where provided by statute with respect to a public entity or employee, the court shall, in tort actions, including products liability actions, include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later. The contingent fee of an attorney shall not be computed on the interest so included in the judgment. [Emphasis supplied]

The .language in the. rule is .crystal-clear that the trial judge had no discretion in the matter but was required to include the prejudgment interest in the final judgment. Busik v. Levine, 63 N. J. 351 (1973), app. dism., 414 U. S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973). That Busik so holds is evident from the dissent by Judge Conford (temporarily assigned to the Supreme Court) wherein he expressed the view (63 N. J. at 376) that if he could he would oppose the adoption of B. 4:42-ll(b) because * * I believe any such rule should be permissive and discretionary with the trial court.”

We think it appropriate to indicate that trial counsel who wait until they reach the courthouse steps before making a bona fide settlement offer have no cause to complain about the mandatory application of prejudgment interest in B. 4:42-ll(b). The offer of judgment rules, B. 4:58-1 et seq., which were promulgated with B. 4:42-ll(b) in mind, give trial counsel ample opportunity to submit offers of judgment and avoid paying prejudgment interest, and in fact give them other monetary advantages. Unfortunately, for reasons we find difficult to understand, the offer of judgment rules are utilized too infrequently.

Affirmed.


author: Lester, J. S. C.

text:
    KAROL LACKOVIC AND LEOPOLDINA LACKOVIC, HIS WIFE, PLAINTIFFS, v. NEW ENGLAND PAPER TUBE CO., INC. AND D. F. DUBOIS, DEFENDANTS. KAROL LACKOVIC AND LEOPOLDINA LACKOVIC, HIS WIFE, PLAINTIFFS, v. PETER VOGEL, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 19, 1974.

      Mr. Charles Rodgers argued the cause for the plaintiffs (Breslin & Breslin, attorneys).

      Mr. Glenn T. Leonard argued the cause for the defendant, New England Paper Tube Co., Inc., (Mr. Samuel M. Lyon, Jr., attorney).

      Mr. Richard J. Sauerwein argued the cause for the defendant, Peter Vogel.
   Lester, J. S. C.

This is a motion by the defendant New England Paper Tube Co., Inc., for summary judgment based upon the expiration of the two-year statute of limitations, N. J. S. A. 2A :14-2.

On February 17, 1969 plaintiff Karol Lackovic was the operator of a motor vehicle involved in an accident in West New York, New Jersey, with a vehicle owned hy defendant New England Paper Tube Co., Inc., and operated by defendant D. F. Dubois. On March 6, 1973, plaintiff Karol Lackovic brought an action for recovery of damages for personal injuries, and his wife Leopoldina brought an action per quod. Suit was recently instituted against their first attorney for malpractice and that suit has heretofore been consolidated with the action on the merits.

Plaintiffs are residents of New Jersey. New England Paper. Tube Co., Inc., is a Rhode Island corporation not licensed to do business in- New Jersey, and Dubois is a resident of North Smithfield, Rhode Island.

New England Paper Tube Co., Inc., contends that the two-year period in N. J. S. A. 2A :14-2 has expired and that the tolling provisions of N. J. S. A. 2A :14-2 are inapplicable. The questioned tolling statute, as amended, states:

If any person against whom there is any of the causes of action specified in sections 2A :34-1. to 2A :14-5 and 2A :14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this state when such cause of action accrues, or removes from this state after the accrual -thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this state or such corporation or corporate surety is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be commenced by. the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation.

New England Paper Tube Co., Inc.’s motion relies upon the case of Ferraro v. Ferro Trucking Co., 72 N. J. Super, 519 (Law Div. 1962). Ferraro held that where N. J. S. A. 39 :7-2 designates the Director of Motor Vehicles as agent for the reception of process, a foreign corporation is represented within this State by a person upon whom summons or original process may be served. Therefore, the tolling provisions of N. J. S. A. 2A :14-22 should be inapplicable.

To the contrary is Whalen v. Young, 28 N. J. Super. 543 (Law Div. 1953), which held that a foreign corporation is not “represented” within the meaning of the statute merely because if is amenable to service through the Director of Motor Vehicles.

In Lemke v. Bailey, 41 N. J. 295 (1963), after discussing the legislative and judicial history, the Supreme Court stated that they would “express no opinion on the contradictory results of Whalen and FerraroSignificantly, however, the court noted that “on at least two occasions the courts of this State have held directly, and once by way of dictum, that the tolling of the statute of limitations, as provided in N. J. S. A. 2A :14-22, is not affected by the fact that an individual nonresident defendant can be served under N. J. S. A. 39 :7-2.” 41 N. J. 295 at 298. In addition to Whalen, the court referred to Gotheiner v. Lenihan, 20 N. J. Misc. 119, 25 A. 2d 430 (Sup. Ct. 1942), which similarly held that the two-year statute was tolled.

In Ferraro the court distinguished the holdings in Whalen and Qotheiner upon the basis that the latter opinions concerned an individual nonresident motorist, while Ferraro dealt with a nonresident corporate defendant. This is a distinction without a difference and is illogical. The reasoning of the court in Ferraro, if it were applicable, should and would be equally applicable to individual defendants as it would be to corporate defendants. Individuals are as amenable to service under N. J. S. A. 39 :7-2 as are corporations. Plaintiff did, in fact, attempt to make service (after four years) upon defendant Dubois through the Director of Motor Veil ides. Pursuant to the statute, the Director sent a certified letter (No. 116208) to Dubois, which was returned by the Post Office Department on April 24, 1973, with the notation “unclaimed”. The unserved papers were returned to- plaintiff’s attorney.

New England and Dubois would ordinarily be represented by the same insurance company. No claim could be made on behalf of Dubois that plaintiff’s action is barred by the statute of limitations. The wording of N. J. S. A. 2A :14-22 would not permit it. Even if such a claim had been made, precedent is to the contrary. In Marsh v. Davis, 99 N. J. Super. 130 (Law Div. 1968), Lemlce was interpreted as stating that * * * the susceptibility to service through the Director does not make a nonresident defendant a resident within the meaning of N. J. S. A. 2A :14-22.” In Lemlce the Court exhaustively examined the legislative history of N. J. S. A. 2A :14-22. It notes significantly that in 1950 the Legislature refused to make the tolling statute inapplicable to nonresident motorists amenable to service through the Director of Motor Vehicles. 41 N. J. at 298. The construction of a statute by the courts, supported by long acquiescence on the part of the Legislature, or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent. Barringer v. Miele, 6 N. J. 139, 144 (1951); Asbury Park Press v. Asbury Park, 19 N. J. 183, 190 (1955); Egan v. Erie R. Co., 29 N. J. 243, 250 (19-59).

Statutory history and logical interpretation supports the view that plaintiff’s cause of action should not be barred by N. J. S. A. 2A :14-2 and that N. J. S. A. 2A :14-22 is operative against the corporate defendant. “Trial court precedent is not to be considered lightly, but in the absence of an appellate authority in New Jersey, the court is not obliged to follow it.” Ferraro v. Ferro Trucking, supra, 72 N. J. Super, at 523.

There is no logical reason to treat corporate and individual defendants in a different manner. Standards applicable to one are applicable to the other. Any departure from the weight of precedent is for the Legislature. Defendant New England’s motion for summary judgment is denied.


author: Botter, J. S. C., Conford, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EDDIE McBRIDE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted February 19, 1974—
    Decided March 27, 1974.

      Before Judges Conford, Meanor and Botter.

      Mr. Stanley O. VanNess, Public Defender, attorney for appellant (Mr. William E. Norris, Assistant Deputy Public Defender, on the brief).

      Mr. George F. Kugler, Jr., Attorney General, attorney for respondent (Mr. John DiCicco, Deputy Attorney General, on the brief).
   Botter, J. S. C.,

Temporarily Assigned. Appellant McBride pleaded guilty to three separate armed robberies committed on the night of November 12, 1972, and was sentenced to three concurrent terms of 15 to 22 years. A fourth indictment charging possession on the same date of a revolver, without a permit, was dismissed. This dismissal, as well as the concurrent running of the terms, accorded with the recommendation promised by the prosecutor when the guilty pleas were entered. On this appeal McBride asserts that the sentence is excessive.

When the crimes were committed McBride was 18)4 years of age. On the evening in question he met two of his cousins, Willie Spinks, age 18, and James Brown, age 17, and a friend named Anthony Thomas, age 18, and the three agreed to “pull a job” with McBride. Around 7:30 p.m. they drove to Neptune and robbed a gas station attendant of $30 at gun point, McBride holding his loaded .22 revolver and Spinks an automatic handgun. Thereafter they drove to Bradley Beach where McBride, Spinks and Thomas entered a Cumberland Farms store. There McBride and Thomas each pulled out the handguns and the register was emptied of $70. Later, around 10:15 p.m. in Bed Bank they robbed another Cumberland Farms store of $25, with McBride holding the gun and Spinks waiting in the car. From there they drove to a diner where their car was identified and all were apprehended.

Of the four only McBride cooperated with the police, waived his rights and signed detailed confessions as to each robbery. Thereafter, McBride, Spinks and Brown pleaded guilty. Spinks also pleaded guilty to a robbery of a liquor store in Neptune, committed six days earlier, on November 6. Spinks was sentenced to four concurrent sentences of 15 to 25 years in State Prison. An indictment charging unlawful possession of a firearm was also dismissed, all in accordance with recommendations agreed to be made by the prosecutor.

Spinks appealed from his sentence and the Appellate Division ordered a reduction to a minimum of 10 and a maximum of 15 years in State Prison. A review of that sentence on certification by the Supreme Court is now pending. In reducing the sentence this court noted that Spinks was 18 when the crimes were committed, that he had no prior criminal record, that no one was injured during the robberies, and that prison authorities had transferred him to the Youth Reception and Correction Center at Yardville.

On this appeal McBride argues that these were his first nonjuvenile convictions, that for his three robberies he should not be sentenced to a longer term than Spinks for his four, that he cooperated with authorities, that his intelligence, achievement ability and employment prognosis were poor, and that the trial judge said that the purpose of the sentence was “punitive,” ignoring rehabilitative purposes.

We agree that the three concurrent terms of 15 to -33 years in State Prison for this one night’s spree of three armed robberies is excessive, serious as the crimes were. Defendant’s age and immaturity, including'his cooperation with the police, and his pleas of guilty, deserve consideration. Against him is the fact that he held a gun in each robbery, as well as his juvenile record. This consists of two breaking, entry and larceny convictions and one shoplifting conviction at age 13, one breaking and entering conviction at age 14, and a charge of threatening to shoot a dog at age 16 while on parole. He has been on probation, spent time in the State Home for Boys, from which he was paroled on August 15, 1969, and left school in May 1970 while in the 9th grade. Since then he has worked for six months in 1971 at a Howard Johnson’s Restaurant and one month in the summer of 1973 at a plastics company. He states he has used marijuana but no other drugs.

We consider juvenile offenses for purposes of sentence, without equating them to adult crimes. Similarly, McBride’s poor work record is to be evaluated in the light of his limited employment opportunity, due to his level of education and lack of skills. But we note, also, charges of misconduct resulting in disciplinary action even in his school record.

Evaluating McBride for sentencing, independent of the sentence imposed on Spinks, we consider appropriate a concurrent sentence of not less than 7 years nor more than 12 in the New Jersey State Prison for each armed robbery conviction, with a recommendation for evaluation of appellant for transfer to a youth correctional institution. (This sentence is composed of 4 to 7 years for each robbery, plus 3 to 5 years while armed, consecutively, or a total of 7 to 12.) Credit for time served on these charges before and after conviction shall be allowed. The consideration normally due to the sentence imposed by the trial judge is diminished by his sole statement as to the purpose of the sentence, namely, that it is “punitive.” The principal purposes should be rehabilitation as well as deterrence, especially when dealing with a youthful offender.

Por purposes of rehabilitation it is preferred that an 18-year-old offender be sentenced to the Youth Reception and Correction Center, Yardville. State v. Horton, 45 N. J. Super. 44 (App. Div. 1957). Here the choice is between State Prison, where the court is assured of a minimum period of incarceration, which may be less than one-third of the maximum sentence, after credits for time served and commutation time for good behavior and work performed, N. J. S. A. 30 :4-123.10, 30 :4-140 and 30 :4-92, and a sentence to Yardville with a possible increase in the maximum imposed, N. J. S. A. 30 :4-148. A “Yardville” sentence remains, nevertheless, an indeterminate sentence with prison authorities alone determining the release date. N. J. S. A. 30 :4— 148, 30 :4—106, 30:4-1.1(n); State v. Hopson, 60 N. J. 1, 3 (1971), (Francis, J. dissenting); In re Nicholson, 69 N. J. Super. 230, 233 (App. Div. 1961). The conflict is between assuring the most appropriate place of incarceration, considering the rehabilitative needs of the offender, and assuring a minimum period of incarceration for deterrent purposes. In taking the latter course we have in mind the power of the authorities to transfer appellant to a youth correctional institution, if appropriate. N. J. S. A. 30 :4-85, N. J. S. A. 30 :4-91.1 et seq. Thus, we defer to the discretion of the prison authorities to make the most desirable assignment of appellant, while imposing a sentence that assures a period of incarceration which we deem best suited to the protection of society.

While we are most sympathetic with the rehabilitative aspirations which motivate Judge Conford’s dissenting opinion, the differences in the majority and minority views highlight a serious shortcoming in the. sentencing process. This is the lack of coordination and communication between sentencing judges and the administrators of penal institutions. This gap forces judges, as a practical matter, to hope that a prisoner will be sent to the right place and held for an appropriate period of time. But experience, which comes more from rumor than data, suggests that some youthful offenders who commit armed robberies are released from an indetertenninate sentence in shockingly short periods of time, possibly because of space problems and not because prison authorities are certain that the purposes of rehabilitation and protection of the public have been served. Hence the choice here is made to assure the minimum time which we think is necessary to accomplish these ends, with the hope that prison officials will transfer this defendant to the most appropriate institution while he serves that time.

The sentences imposed below are vacated and the matter is remanded to the trial court for imposition of sentences in accordance with this opinion.

Conford, P. J. A. D.

(dissenting). While I agree with the majority that the sentence was manifestly excessive and the “punitive” purpose pronounced by the sentencing judge too restrictive an approach to this particular offender, I am of the view that a proper assessment of the crime, the offender and the purposes of sentencing should lead to an indeterminate sentence of this defendant to the Youth Correctional Institution Complex, N. J. S. A. 30 :4-147. T would recommend the Yardville Center for this purpose and fix a maximum term of ten years. N. J. S. A. 30 :4-148.

This was an 18-year-old first-time adult-offender with a relatively insignificant juvenile record — a product of a typically disadvantaged milieu in our society. He gave a full statement to the police immediately upon apprehension and pleaded guilty. Without in any way disparaging the serious nature of the one-night criminal spree here involved, this defendant is in peculiar and particular need of application of our long-since settled public policy in favor of the rehabilitative goal in the correction and punishment of youthful offenders. See State v. Ward, 57 N. J. 75, 82 (1970); State v. Hopson, 114 N. J. Super. 146, 151 (App. Div. 1971) (dissenting opinion), rev’d on the dissent in 60 N. J. 1 (1971).

The statutory policy for the selective treatment of youthful offenders by indeterminate terms of confinement, with the potential of early release in appropriate cases, and in facilities conducive toward reform and rehabilitation, has been in effect in this State for over three-quarters of a century. See State v. Hopson, supra, 114 N. J. Super, at 151; State v. Horton, 45 N. J. Super. 44, 47-48 (App. Div. 1957). While not all authorities agree with the indeterminate confinement aspect of the approach, the desirability of physical surroundings and rehabilitative programs conducive toward the reclamation for society of the young offender is a matter of universal accord. See A. B. A. “Standards Relating To Sentencing Alternatives and Procedures,” § 2.6 at 110 et seq. (1968); Rubin, The Law of Criminal Correction 272 (1963); cf. Mc-Corkle, Elias and Bixby, The Highfields Story (1958), passim; Beck, Five States. A Study of the Youth Authority Program as Promulgated by the American Law Institute, pp. 1-4 (1951).

Yardville is an institution which offers this State’s best present hope for correction of an offender like McBride. At the time of sentencing on March 2, 1973 he was at the potential turning point of the road toward social reclamation rather than that of hardening into likely recidivism. Hopefully, the year of .confinement in State Prison to date has not yet cast the balance irremediably in the latter direction. Like it or not, protracted confinement in State Prison has ominous portent for the rehabilitative prospects of a malleable 18-year-old initiate to that institution. See State v. Horton, supra, 45 N. J. Super, at 47. The retrogressive nature of this facility has been a matter of repeated public notice in the recent past.

The issue between the majority and myself seems to devolve upon their view that it is essential “to the protection of society” to absolutely assure several years of incarceration of this defendant. But the recommendation they voice that he be transferred to a youth correctional institution does not assure that he will be. He has been in State Prison since sentencing, and if he remains there for the potential statutory minimum under the imposed 12-year maximum before .he can be paroled he may well be lost insofar as the chance for rehabilitation is concerned. Since the latter is mypreferred objective in this case, I -would be willing to take the chance that the institutional authorities would not release defendant from the Center until the passage of such a period of time as would appear to comport both with the protection of society and defendant’s prospects for salvation.

I appreciate that this dissent differs from the judgment I voted for in the appeal of Spinks, a codefendant. Reflection since that time satisfies me that we erred in not remanding Spinks for an indeterminate sentence to Yardville—his essential situation paralleling that of McBride in most material aspects, particularly those of offense, age and first-offender status. Fortunately, however, he was transferred there by administrative order.

      Teelmieally, in sentencing a youthful offender to a “reformatory,” the sentence should be to the Youth Correctional Institution Complex, for an indeterminate term, with instructions that defendant be delivered directly to the Youth Reception and Correction Center at Yardville. See N. J. S. A. 30 :4-148. The Complex is composed of the Youth Correctional Centers at Yardville, Bordentown and Annandale, as well as other facilities, N. J. S. A. 30 :4-146. The sentencing judge may recommend; if he wishes, that the defendant be held at Yardville, although the disposition is at the discretion of the penal authorities.

      See Frankel, Criminal Sentences at 86 et seq. (1973) ; Coburn, “Disparity in Sentences and Appellate Review of Sentencing,” 25 Rutgers L. Rev. 207, 211, fn. 19 (1971).


author: Michels, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SILLMOND S. HALE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted March 18, 1974—
    Decided March 27, 1974.

      Before Judges Collester, Lynch and Michels.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Martin F. Siegal, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Michels, J. S. C.,

Temporarily Assigned. Defendant appeals his conviction on an indictment charging him with robbery in violation of N. J. S. A. 3A :141—1 and possession of a firearm while committing robbery in violation of N. J. S. A. 2A :151—5. Defendant’s sole ground of appeal is that the trial court erred in admitting into evidence a confession which the court had previously ruled to be inadmissible at the first trial.

At the first trial the court, after conducting a Miranda hearing, excluded the confession because the State had failed to satisfy the court beyond a reasonable doubt that the statement was given voluntarily. The first trial ended in a mistrial by virtue of the inability of the jury to agree upon a Verdict,' thus necessitating a second trial. At the second trial the court again conducted a Miranda hearing over objection of defendant, who argued that the question had already been determined at the first trial adversely to the State. The court overruled the. objection and after hearing testimony from the State, which was more extensive than that presented at the first trial, found that the statement was voluntary and admitted the confession into evidence. Defendant contends that the court’s ruling at the first trial that his statement was inadmissible became the “law of the case” and could not be relitigated at the second trial. We disagree.

It has been generally stated that the “law of the case” doctrine “applies to the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit.” Wilson v. Ohio River Company, 236 F. Supp. 96, 98 (S. D. W. Va. 1964), aff’d 375 F. 2d 775 (4 Cir. 1967). This rule is based upon the sound policy that when an issue is once litigated and decided during the course of a particular case, that decision should be the end of the matter. United States v. U. S. Smelting Refin. & M. Co., 339 U. S. 186, 198, 70 S. Ct. 537, 94 L. Ed. 750 (1950). “Law of the case” most commonly applies to the binding nature of appellate decisions upon a trial court if the matter is remanded for further proceedings, or upon a different appellate panel which may be asked to reconsider the same issue in a subsequent appeal. 5 Am. Jur. 2d, Appeal and Error, § 744 at 188-189 (1962); Scamahorne v. Commonwealth, 376 S. W. 2d 686 (Ky. Ct. App. 1964). A final judgment is required in order to sustain an application of the rule, just as it is for the kindred rule of res judicata. United States v. U. S. Smelting Refin. & M. Co., supra, 339 U. S. at 199, 70 S. Ct. at 544.

The doctrine of “law of the case” is also applied to the question of whether or. not á decision made by a trial court during one stage of the litigation is binding throughout the course of the action. 5 Am. Jur. 2d, supra at 189. The use of the doctrine in this situation avoids repetitious litigation of the same issue during the course of a single trial. With respect to this aspect of ‘law of the case” it has been generally stated that “the law of the ease’ concept is merely a non-binding decisional guide addressed to the good sense of the court in the form of ‘a cautionary admonition’ against relitigation ‘when the occasion demands it.’ ” Ross Products, Inc. v. N. Y. Merchandise Co., 242 F. Supp. 878, 879 (S. D. N. Y. 1965). The distinction between the doctrine of ‘law of the case” and res judicata is readily apparent: “one directs discretion: the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission.” Southern Ry. Co. v. Clift, 260 U. S. 316, 319, 43 S. Ct. 126, 127, 67 L. Ed. 283 (1922). “Law of the case” therefore operates as a discretionary rule of practice and not one of law. United States v. U. S. Smelting Refin. & M. Co., supra, 339 U. S. at 199, 70 S. Ct. at 544. See 5 Am. Jur. 2d, supra at 189, wherein it is stated:

The doctrine oí the law of the case has certain affinities with, but is clearly distinguishable from, the doctrines of res judicata and stare decisis, principally on the ground that the rule of the law of the case operates only in the particular case and only as a rule of policy and not as one of law.

See also West Point Island Savings Ass’n v. Dover Tp. Comm., 54 N. J. 339, 344 (1969); United States v. U. S. Smelting Refin. & M. Co., supra.

Thus, “law of the case” may be applied in a situation where one judge decides a pretrial motion to suppress, but another judge conducts the trial. In such a case, the decision rendered at the pretrial hearing may be said to be the “law of the case” during the subsequent trial. See State v. Bell, 89 N. J. Super. 437, 440 (App. Div. 1965), State v. Contursi, 44 N. J. 422, 425 (1965) ; State v. Fioravanti, 78 N. J. Super. 253, 255 (App. Div. 1963), aff’d in part and vacated in part, 46 N. J. 109 (1965).

We point out, of course, that a motion to suppress is readily distinguishable.from an objection to the admissibility of a confession under the Miranda doctrine. A motion to suppress must be made prior to trial pursuant to R. 3:5-7 (a). See State v. McKnight, 52 N. J. 35, 48 (1968). The determination of a motion to suppress remains a part of the case- and is available for review on appeal. In fact, the State may seek leave to appeal an order of the trial court entered on such motion pursuant to R. 2:3-l (b)(2). This is not true of a trial court ruling on the admissibility of a confession of a defendant following a Miranda hearing.

The effect of a jury disagreement mandating the declaration of a mistrial and a subsequent trial negates the finality of any decision or ruling reached on the first trial. A mistrial is not a judgment or order in favor of any of the parties! It lacks the finality of a judgment, and means that the trial itself was a nullity. The effect of the declaration of a mistrial is aptly explained in United States v. Mischlich, 310 F. Supp. 669, 672-673 (D. N. J. 1970), aff’d sub nom. United States v. Pappas, 445 F. 2d 1194 (3 Cir. 1971), cert. den. 404 U. S. 984, 92 S. Ct. 449, 30 L. Ed. 2d 368 (1971), as follows:

The declaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all. See 58 C. J. S. Mistrial at 833-834 (1948). The situation which exists is analogous to that which results from an appellate reversal and remand for new trial. See 5 Am. Jur. 2d Appeal and Error § 955 at 382 (1962). The parties are returned to their original positions and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial. See, e. g., United States v. Shotwell Mfg. Co., 355 U. S. 233, 243, 78 S. Ct. 245, 2 L. Ed. 2d 234 (1957) ; United States v. Romano, 241 F. Supp. 933, 936-937 (D. Me. 1965) ; 5 Am. Jur. 2d Appeal and Error § 955 (1962). Compare United States v. Lutz, 420 F. 2d 414 (3d Cir. 1970) where, although a jury trial had been waived by both parties at the first trial and later a mistrial was declared, in a second trial it was held that a jury trial would be allowed upon the insistence of one of the parties. The Court said (p. 416) :
“Once a mistrial was declared each party was free to assert- or waive his rights.”

Thus, we are of the view that the trial court’s ruling as to the admissibility of the confession made following the Miranda hearing during the first trial was not the ffiaw of the case” binding on the court when the same issue was raised at the second trial. The declaration of mistrial rendered nugatory all of the proceedings during the first trial. The State and defendant were returned to their original positions as if there had not been a trial. , Each was entitled to offer evidence and to make motions and objections without limitation to that which had been offered or made at the first trial, and without being bound by the prior rulings of the court with respect thereto. If the result were otherwise, the evidentiary problems on a retrial would be insurmountable and the administration of justice rendered completely unworkable. Consequently, the State was entitled to offer in evidence defendant’s confession at the second trial, and the court below properly conducted a Miranda hearing to determine the admissibility thereof. Accordingly, the judgment below is affirmed.


author: Lynch, J. A. D.

text:
    AUTOMATIC MERCHANDISING COUNCIL OF NEW JERSEY, PETITIONER-APPELLANT, v. SIDNEY GLASER, DIRECTOR, DIVISION OF TAXATION OF NEW JERSEY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1974—
    Decided March 27, 1974.

      Before Judges Collester, Lynch and Michels.

      Mr. David J. Connolly, Jr. argued for appellant (Messrs. Schenck, Price, Smith & King, attorneys; Mr. Michael S. Bubb, on the briefs).

      Mr. Richard M. Conley, Deputy Attorney General, argued for respondent (Mr. William P. Hyland, Attorney General, attorney; Mr. Herbert K. Glickman, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Lynch, J. A. D.

Plaintiff, representative of approximately 160 automatic vending machine operators in New Jersey, appeals from a decision of the Division of Tax Appeals which upheld the validity of Eule 4 adopted by the Acting Director, Division of Taxation, purportedly pursuant to his authority to adopt regulations “appropriate to the carrying out” of the purposes of the Sales and Use Tax Act. N. J. S. A. 54 :32B-24. Eule 4, later codified as N. J. A. C. 18 :24-16.7(b), reads as follows:

(b) There is no exemption for items subject to tax pursuant to subsection 3(c) such as carbonated beverages, hot drinks, sandwiches and other prepared foods.

The effect of the adoption of Eule 4 was to make taxable— for the first time since the enactment of the Sales Tax Act in 1966—all sales at $0.10 or less of “prepared foods” (as understood by the Director) from coin-operated vending machines.

For the period of four years prior to the adoption of Rule 4 the Director had held that such sales were exempt under N. J. S. A. 54 :32,B-8 (i) . That section grants exemption to:

(i) Tangible personal property sold through coin-operated vending machines at $0.10 or less provided the retailer is primarily engaged in making such sales and maintains records satisfactory to the director.

The reasoning projected by the Director in defense of his adoption of Rule 4 is that the exemption granted in subsection 8(i) applies only to items taxable under subsection 3(a) and that “prepared foods” (such as “carbonated beverages, hot drinks, sandwiches and other prepared foods,” mentioned in Rule 4), are taxable under subsection 3(c) and not subsection 3(a), as they had theretofore been considered to be. Subsection 3(c) makes taxable:

(c) Receipts from the sale of food and drink * * * in or by restaurants, taverns or other establishments in this State, or by caterers, including in the amount of such receipts any cover, minimum, entertainment or other charge made to patrons or customers:
(1) in all instances where the sale is for consumption on the premises where sold;
**###**#*
(3) In those instances where the sale is for consumption off the premises of the vendor, and consists of a meal, or food prepared and ready to be eaten, of a kind obtainable in restaurants as the main course of a meal, including a sandwich, except where food other than sandwiches is sold in an unheated state and is of a type commonly sold in the same form and condition in food stores other than those which are principally engaged in selling prepared foods.

Tbe Director justifies bringing vending machine sales of “prepared foods” within Section 3 by equating them to “food,” as his brief states:

* * * the category of foods “sold for immediate consumption” on the premises of a restaurant or other establishment, or the category of prepared foods, ready to be eaten, “sold for immediate consumption” off the premises. Consequently, the only sales of food items for 10(J or less made through vending machines which are deemed to be taxable are such things as coffee, hot soup in a cup and carbonated beverages in a cup, all of which are equivalent to prepared foods, ready to be eaten, sold by restaurants and other establishments for immediate consumption on or off the premises.

We reject the Director’s reasoning. It is not justified by the statute and amounts to an impermissible amendment thereof by regulation.

It is apparent that the foundation of the Director’s reasoning is that the sale .of the foods described in Rule 4 comes within the provisions of subsection 3 (c). By no proper construction of the statute can it be so held. Subsection 3 (c) makes taxable sale of food or drink in or by “restaurants, taverns or other establishments in this State, or by caterers * * etc. The Director would bring automatic vending machines within the meaning of “other establishments” therein contained. But by reason of the rule of ejusdem generis that phrase must be construed as referring to “restaurants, taverns” or “other [similar] establishments.” By no stretching of the language can an automatié vending machine be said to be an establishment similar to a restaurant or tavern. Nor, of course can such machine be deemed to refer to “caterers,” also mentioned in subsection 3(c). Likewise the rule of noscitur ct sociis would repudiate the Director’s construction, for the subsection applies to an establishment where conceivably there -might be a “cover, minimum, entertainment” charge made to patrons or customers. Hardly at an automatic vending machine!

Furthermore, even if we were to bypass the foregoing rules of construction, sales through coin-operated vending machines are not encompassed within any of the paragraphs of subsection (e). Paragraph (1) refers to sales for consumption on the premises where sold. The term “the premises where sold” must logically refer to the preceding term “the sale of food and drink * * * in or by restaurants, taverns or other establishments,” and thus to the establishment which sells the food or drink. Here this would have to refer to the vending machine itself, and not to the premises owned by others upon which the vending machine is situated. Again, such sales cannot be considered to be “for consumption on the premises.”

Paragraph (2) of subsection (c), which refers to sales where the vendor after delivery of the food or drink “for consumption off the premises” serves or assists in serving, obviously refers to catering situations.

Finally, paragraph (3) of subsection (c), upon which the Director strongly relies, refers to sales “for consumption off the premises” where the sale “consists of a meal, or food prepared and ready to be eaten, of a Tcind obtainable in restaurants as the main course of a meal, including a sandwich, except where food other than sandwiches is sold in an unheated state and is of a type commonly sold in the same form and condition in food stores other than those which are principally engaged in selling prepared foods.” (Emphasis add(id). The items in question under Eule 4, mainly coffee and soda, are not “of a kind obtainable in restaurants as the main course of a meal,” nor are they “of a type commonly sold in the same form and condition in food stores. * * *” (obviously referring to grocery stores or supermarkets).'

Therefore, the foods described in Eule 4 cannot be brought within subsection 3(c) and the foundation of the Director’s reasoning crumbles.

Thus we come hack to the plain language in the statute (subsection 8 (i)) which grants exemption from taxation to: “(i) Tangible personal property sold through coin-operated vending machines at $0.10 or less,” with the proviso that that the retailer be primarily engaged in such business and must maintain proper records.

Are, then, the foods described in Rule 4 “tangible personal property”? The Director’s counsel conceded, as he must, that they are. “'Tangible personal property” is defined in the statute as “Corporeal personal property of any nature.” (Emphasis added). N. J. S. A. 54 :32B-2(g). Clearly, the foods mentioned in Rule 4 are within that definition. It follows that the exemption in subsection 8(i), by its very terms, applies to them. An administrative interpretation which is inconsistent with the language of a statute will be disregarded. Kingsley v. Hawthorne Fabrics, Inc., 41 N. J. 521, 528-529 (1964).

In addition, there is a well accepted principle that the practical administrative construction of a statute over a period of years without interference by the Legislature is evidence of its conformity with the legislative intent and should be given great weight by the courts. Housing Auth. of Jersey City v. Dept. of Civil Service, 87 N. J. Super. 146, 149 (App. Div. 1965). Here, it has been stipulated by the parties that the exemption afforded by subsection 8, subsection (i) was interpreted from its effective date of July 1966 until July 1970 by the Director to include sales of food and drink through automatic vending machines. During such time period the section was amended without any change in the exemption granted to such sales, thus giving further support to the conclusion that the Legislature intended that the exemption in subsection 8 (i) include all sales through coin-operated vending machines at $0.10 or less.

Rule 4 is invalid. The judgment of the Division of Tax Appeals is reversed.

       Hereinafter “Sales Tax Act.'

         N. J. S. A. 54 :32B-3 (c)

      References hereinafter will be solely to the “sections” and “subsections” of N. J. S. A. 54 :32B-1 et seg.

      This proviso had been deemed satisfied if at least 50% of the taxpayer’s business was derived from coin-operated sales. N. J. A. C. 18 :24-17.2. No distinction had been made as to the type of sale.

      Apparent reference to subsection 3(c).

      Cf. Salomon v. Jersey City, 12 N. J. 379 (-1953) ; Transcontinental Gas Pipe Line Corp. v. Dept. of Conservation, etc., 43 N. J. 135 (1964).

      Cf. Ford Motor Co. v. N. J. Dept. of Labor & Industry, 5 N. J. 494, 502 (1950).


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GERALD TILLEM, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 20, 1974—
    Decided March 29, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Robert A. Coogan argued the cause for appellant (Messrs. Saling, Moore, O’Mara & Coogan, attorneys).

      Mr. Michael A. Graham, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Jr., Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Michael A. Graham, of counsel and on the brief).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Following a jury trial defendant was convicted of engaging in the business of “loan sharking,” in violation of N. J. S. A. 2A :119A-3. He was also convicted, at the same trial, on seven counts of “loan sharking” representing seven illegal loans made to four different individuals over a 2J^-year period, wherein the annual rate of interest charged was between 200 and 300%, in violation of N. J. S. A. 2A :119A-1. He was sentenced on the latter seven charges to consecutive 2-3-year State Prison terms, and on the former charge to a State Prison term of 10-15 years, to be served consecutively to the sentences imposed on the seven charges. In all, he was given State Prison sentences totalling 24^-36 years.

Before considering the issues raised on this appeal, we pause to point out that defendant neither testified nor called any witnesses in his defense, and we find the uncontradicted proofs of the State amply supported the convictions.

I

CONSTITUTIONALITY OF N. J. S. A. 2A :119A-3

Defendant argues that N. J. S. A. 2A. :119A-3 is unconstitutional because of vagueness, in that “it does not spell out the degree or details of 'engaging in the business’ of making loans.” The statute provides:

2A:119A-3. Business of making prohibited loans or forbearances; penalty
Any person who engages in the business of making loans or forbearances prohibited by section 1 of this act, or who conspires so to do, shall be guilty of a high misdemeanor and shall be punished by a fine of not more than $10,000.00, or by imprisonment for not more than 25 years, or both.

The contention is without merit. Reading, as we must, N. J. S. A. 2A :119A-1 through 2A :119A-4 as a whole statutory scheme to prevent and punish the crime of loan sharking, we are satisfied that men of common intelligence do not have to guess at the legislative meaning or differ as to the application of the term “engages in the business of making [illegal] loans.” State v. Joas, 34 N. J. 179, 185 (1961). The four sections of the loan sharking statutes must be considered as a homogeneous and consistent whole, giving effect to all their provisions. State v. Green, 62 N. J. 547, 554-555 (1973). Giving the statutory words their common, ordinary, common-sense construction, they can be defined as meaning one who carries on an enterprise, a business or a profession for profit or improvement over a period of time, as distinguished from one who commits or occasionally participates in a single act or transaction. See Webster’s Third New International Dictionary (1969), 751; Black’s Law Dictionary, (4 ed. 1951), 622; 58 C. J. S. Money Lenders § 1 at 852-853 (1948); Fleckenstein Brothers’ Co. v. Fleckenstein, 66 N. J. Eq. 252, 256-257 (Ch. 1904).

The trial judge in clear and plain language defined the term to the jury thusly:

Xow, what does the statute mean by someone who engages in the business of making loans? What do we mean by business? Well, business as used in the statute pertains in a very broad sense to all gainful activity. A business could be called occupation or work of some sort in which a person is engaged on a regular basis.
If a person engages in a certain type of transaction once and that’s all, you certainly wouldn’t consider that person to be in the business. If, however, that type of conduct is repeated to the extent that there is a certain regularity to that type of conduct, then it could be inferred properly that that person was in that business. It’s in that sense that we use the term business that I have just read to you.

We need hardly labor the point any further since we are satisfied the statute clearly informs those concerned what is proscribed and, therefore, is not void for vagueness.

II

SCIENTER AND CRIMINAL INTENT

Defendant contends the trial judge erred in refusing to charge the jury that scienter and criminal intent were essential elements of,.N. J. S. A. 2A :119A-1 and 3 which the State had to prove in order to convict him. We disagree.

Whether a statute provides criminal sanctions for proscribed conduct, without proving criminal intent, is a matter of statutory construction. There are areas where the evil or danger sought to be prevented is so great that the Legislature may, as a matter of public policy, declare an act unlawful without proof of a wrongful intent. State v. Hatch, 64 N. J. 179 (1973); Morss v. Forbes, 24 N. J. 341, 358 (1957). We believe the Legislature felt loan sharking is of that invidious caliber. We would have to be very naive to believe that one who loans money to individuals at annual interest rates in excess of the lawful rates (here it was 200-300%) does not know he is violating the law.

Ill

PROSECUTOR'S SUMMATION

Defendant argues the prosecutor’s comments in summation deprived him of a fair trial. The comments complained of consisted of a reference to defendant, by way of sarcasm, as a “giant angel”; likened defendant to Shakespeare’s Shylock in exacting a “pound of flesh”; and in referring, to a specific loan made by defendant, said the borrower had “his guts torn out.” These were strong comments, but in the light of the evidence, defense counsel’s summation, and the nature of the charges and proofs, they were justifiably made and can hardly be deemed sufficiently prejudicial to warrant a reversal. United States v. La Sorsa, 480 F. 2d 522, 526 (2 Cir. 1973), cert. den. 414 U. S. 855, 94 S. Ct. 157, 38 L. Ed. 2d 105 (1973); State v. Knight, 63 N. J. 187, 193-194 (1973); State v. Wilson, 57 N. J. 39, 50 (1970). In any event, the trial judge instructed the jury that its verdict must be based on the evidence. See United States v. Ramos, 268 F. 2d 878, 880 (2 Cir. 1959). If error existed, it was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant’s guilt. Milton v. Wainwright, 407 U. S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972); Harrington v. California, 395 U. S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), reh. den. 386 U. S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).

IV

MERGER

Defendant contends the seven individual charges for loan sharking merged in the greater offense of engaging in the business of loan sharking. We agree.

The legislative intent must be garnered from the loan sharking statutes considered in their context as a whole. This is particularly true since they were passed at the same time to effectuate a given result or to overcome a certain evil. N. J. S. A. 2A :119A-1 proscribes the making of loans in the amount of $1,000 or more, at a rate in excess of the annual or equivalent legal rate of interest but not in excess of 50% per year, and designates such offenses as misdemeanors. It then provides that any person who makes a loan at an annual or equivalent legal rate of interest in excess of 50% per year, regardless of the amount or duration of the loan, is guilty of a high misdemeanor.

N. J. S. A. 2A :119A-2 makes it a high misdemeanor, punishable by imprisonment for not more than 25 years, or a fine not greater than $10,000, or both, for any person to use or threaten to use force in connection with a loan made in violation of N. J. S. A. 2A :119A-1. Hero the Legislature obviously intended to severely punish loan sharkers, or their agents, who commit or threaten to commit violence upon borrowers of the proscribed illegal loans.

N. J. S. A. 2A :119A-3, as previously set forth herein, seeks to reach those who engage in the business of loan sharking, as distinguished from those involved in an isolated transaction. And, here again, the Legislature considered the business of loan sharking a menace and detriment to the public welfare, and prescribed the severe penalties for violators of imprisonment for not more than 25 years, or a fine not greater than $10,000, or both.

N. J. S. A. 2A :119A-4, not applicable here, made it a misdemeanor punishable bjr a maximum of three years’ imprisonment, or a fine not greater than $25,000, or both, for any person who knowingly possesses, maintains or has control over anything used to record the proscribed loan sharking transactions.

Viewing these statutes as- indicated, we are satisfied that one is not guilty of engaging in the business of loan sharking unless it is shown that various loans are made as part of a continuing criminal impulse, namely, to engage in the business of loan sharking. Here, the proofs' were not controverted that defendant made at least seven loans proscribed by N. J. S. A. 2A :119A-1 to four different individuals over a period of 2years. This was the kind of illegal business the Legislature sought to prevent. For an incisive discussion of the evils of loan sharking, see “Syndicate Loan-Shark Activities and New York’s Usury Statute,” 66 Colum. L. Rev. 167 (1966).

The seven separate illegal loans were constituent elements of the greater offense of engaging in the business of loan sharking and therefore merged in the conviction of the greater offense. They cannot be fractionalized according to its component parts. State v. Riley, 28 N. J. 188, 195 (1958), app. dism., 359 U. S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832-(1959); State v. Mowser, 92 N. J. L. 474 (E. & A. 1919) Note, “Twice in Jeopardy,” 75 Yale L. J. 262, 318-319 (1965). See also, Final Report New Jersey Penal Code, § 2C :l-7 and Commentary.

In enacting N. J. S. A. 2A :119A-3 the Legislature intended to punish a course of conduct (engaging in the business of loan sharking) ; therefore, all violations that spring from that singleness of thought and deed are but one offense. United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 73 S. Ct. 227, 97 L. Ed. 260 (1952). See also, State v. Di Rienzo, 53 N. J. 360 (1969); State v. Mills, 51 N. J. 277, 289 (1968), cert. den. 393 U. S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968). This principle was enunciated by Otto Kirchheimer in “The Act, The Offense and Double Jeopardy,” 58 Yale L. J. 513 (1949) :

The unifying element in the cases where “consumption” or “subsidiarity” may be called into play exists in the perpetrator’s own mind and in his ultimate goal. Whatever appears to him as the principal object of his criminal endeavors becomes the main object of the laiv’s protection. All other stages or aspects of his action, be they antecedent, simultaneous, or posterior, would assume independent significance only if their perpetration would endanger a different social interest ; otherwise, they merge in the offense category protecting the interest towards which the main attention of the perpetrator is directed. [at 522; emphasis added]

If the Legislature had intended to make individual loan sharking acts separate offenses, it would have so provided. Having failed to do so, it is reasonably inferable that the individual offenses merged in the greater offense, because without proof of the individual offenses the crime of engaging in the business of loan sharking could not be proven. The “rule of lenity” which has been often applied in construing legislation should be utilized to prevent multiple convictions where none was intended. See Heflin v. United States, 358 U. S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959); Ladner v. United States, 358 U. S. 169, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958); Bell v. United States, 349 U. S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955) ; 8 Moore, Federal Practice, § 8.07(2) at 8-60 to 8-61 (1973). The philosophy behind the rule was expressed by Justice Frankfurter thusly:

It is not to be denied that argumentative skill, as was shown at the Bar, could persuasively and not unreasonably reach either of the conflicting constructions. About only one aspect of the problem can one be dogmatic. When Congress has the will it has no difficulty in expressing it — when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving .grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if 'Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes. [Bell v. United States, 349 U. S. supra, at 83-84, 75 S. Ct. at 622]

In view of the nature of the crime here involved, we find no abuse of the trial judge's, sentencing discretion on the first count.

Having decided that the seven lesser included offenses (counts 2 to 8 in the indictment)' merged in the greater offense (count 1 of the indictment), we reverse the convictions on'the seven individual counts for loan sharking, and' vacate the sentences imposed thereon. We affirm thé conviction for unlawfully engaging in the business of loan sharking.

       It was under this latter provision that the seven counts were premised since the annual or equivalent rate of interest allegedly charged exceeded 50%,


author: Pee Cueiam.

text:
    IGNACIA GOMEZ VASQUEZ, CLAIMANT-APPELLANT, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. FELICITA M. ROSAS, CLAIMANT-APPELLANT, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted February 26, 1974—
    Decided April 1, 1974.

      Before Judges Carton, Lora and Seidman.

      Cape May-Atlantic Legal Services, attorneys for appellants (Mr. Bernard-Paul Sypniewski, 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. Stephen Skillman, First Assistant Attorney General of counsel; Mr. Michael S. Bokar, Deputy Attorney General, on the brief).
   Pee Cueiam.

These are consolidated appeals by claimants Ignacia Gomez Yasquez and Felicita M. Rosas from decisions of the Board of Review, Unemployment Compensation Commission, Department of Labor and Industry, holding them ineligible for unemployment benefits.

Both claimants were employed at a restaurant in North Wildwood during the summer of 1972, and when they were laid off after the summer season because the restaurant closed for business from September to May, they returned to Puerto Rico, Yasquez going to Guayama and Rosas to Guayanilla. It was understood they would be recalled by the restaurant about the middle of May 3973, the employer paying the travel fare.

They filed claims for unemployment compensation benefits in October 1972 through the Interstate Claims Office in Puerto Rico. Hearings were held in Puerto Rico in accordance with interstate hearing procedures. ■ Each claimant was found ineligible for benefits on the ground she had reduced her prospects of finding employment by moving from an area of reasonable job opportunities to an area which had been classified as one of persistent unemployment, and therefore was unavailable for work within the meaning of the statute. The decisions of the Deputy defined areas of persistent unemployment as being areas which had had an. unemployment rate of 12% or more for three or more consecutive months. The Appeal Tribunal affirmed, as did the Board of Review.

Claimants contend that what they have denominated the “12% Rule” violates the Administrative Procedure Act, N. J. S. A. 52 :14B-1 et seq., because it was never properly promulgated as a rule; that it violates N. J. S. A. 43:21-11 (b) because it was never filed with the Secretary of State, and that the Director of the Division of Unemployment and Disability Insurance has no authority to issue such rule for claims reviewers respecting eligibility for benefits of workers who move to areas of persistently high unemployment.

On June 30, 1972, in an effort to provide some concrete guidelines in evaluating a claimant’s availability for work under the statute, a memorandum was sent to all claims reviewers in the Interstate Claims Section stating that effective July 1, 1972 a claimant who moved to a major labor area with an unemployment rate of 12% or more of the area’s work force for three or more consecutive months would, with certain exception's not applicable to these claimants, be held ineligible for benefits on the ground that he had voluntarily reduced his prospects of finding employment by restricting his availability to an extremely limited number of job opportunities.

On September 5, 1972, a second memorandum (UIM-415) was forwarded to all local and interstate claims reviewers in the Division of Unemployment and Disability Insurance, amending the June 30, 1972 memorandum by setting forth that any area (as opposed to the prior memorandum’s reference to “major labor areas”) designated by the United States Department of Labor as one of “persistent unemployment,” i. e., one in which the unemployment rate equalled or exceeded 12% for three or more consecutive months, would be within its policy scope. However, the memorandum cautioned local office personnel not to apply the criteria in a mechanical manner but as “additional factors to be considered in an overall determination of eligibility in each case.”

The unemployment rate in the Guayama area at the time of Vasquez’ arrival there and at the time she filed her claim equalled 26.7% of the area’s work force, and had been 19% or higher for many months, whereas the rate for the Wild-wood, New Jersey area at the time of her departure therefrom was 6.8%. Similarly, the unemployment rate in the Guayanilla labor area at the time Rosas returned there and when she filed her claim was 38% and had been 30% or more for many months. The rate for Ponce, the other area in which Rosas sought work, was over 19%.

N. J. S. A. 43 :21-4(c) prescribes a three-fold test for an unemployed individual’s eligibility to receive benefits. Such claimant must (1) be able to work, (2) be available for worlc, and (3) have demonstrated that he is actively seeking work. It follows, then, that if a claimant is deemed to be unavailable for work, he is without the intendment of the statute and his application for benefits must be denied.

The availability test is met if it appears that the individual is willing, able and ready to accept suitable work which he does not have good cause to refuse, that is, when he is genuinely attached to the labor market. Krauss v. A. & M. Karagheusian, 13 N. J. 447, 457-458 (1953). The deter-urination entails primarily a probe of the claimant’s good-faith intention to work.

However genuine the claimant’s desire to be attached to the labor market, the availability test is not met unless there exists a labor market to which he may be attached, that is, it most appear that there is a substantial amount of work in the area for the skills he has to offer. Valenti v. Board of Review, supra, 4 N. J. 287. This does not mean that job vacancies must exist. It means only that the type of services which an individual is offering is generally performed in the geographical area in which he is offering them. 55 Vale L. J., p. 124; Valenti v. Board of Review, supra. [Krauss, supra, 13 N. J. at 460]

Our Supreme Court in Krauss went on to explain that the primary determinant of the existence of the labor market contemplated under the test is “whether there is a market in the geographical area in which the claimant is willing to work for services which he is able to perform.” Krauss, 13 N. J. at 462-463.

Krauss speaks of the need for a substantial amount of work in the area for the skills the claimant has to offer. Obviously, if heavy unemployment exists in an area of persistent unemployment, a substantial amount of work cannot be available. Consequently, if a claimant moves from an area in which a job market exists to one in which there is a great deal of unemployment, he is not available for work within the meaning of the statute, and hence is ineligible for benefits. Here, the record establishes the claimants effectively removed themselves from the labor market and as a consequence thereof they were properly denied unemployment benefits.

Under the circumstances of this case and in view of onr disposition thereof, we find it unnecessary to pass upon claimants’ contentions regarding what they have denominated the “12% Eule” and the alleged procedural deficiencies of UIM-415.

Affirmed.