author: Handler, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. PHILLIP A. SIDOTI, NICOLA AURIEMMA, RITA AURIEMMA, JOHN A. GUANCIONE, AND RAYMOND DE FILLIPIS, DEFENDANTS.
    Essex County Court Law Division (Criminal)
    Decided July 29, 1971.

      Mr. John A. Matthews, III, Assistant Prosecutor, for plaintiff {Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. Donald 8. Goldman for defendant Sidoti {Messrs. Goldman, Goldman & Caprio, attorneys).

      Mr. Paul Alongi for defendants Auriemma {Messrs. Alongi & Bregg, attorneys).

      Mr. G. Robert 8arcone for defendant Guancione.

      Mr. John P. Russell for defendant De Eillipis {Messrs. Russell & McAlevy, attorneys).
   Handler, J. S. C.

Defendants Phillip A. Sidoti, Nicola Auriemma, Bita Auriemma, John A. Guancione and Baymond De Eillipis were indicted by the Essex County grand jury for conspiracy to violate the gambling laws. Several of them were also charged with so-called substantive offenses, such as the possession of lottery slips, maintaining a gambling resort, working for a lottery and bookmaking. Another defendant, Dominic Spataro, was indicted separately for related gambling offenses by the Hudson County grand jury.

On May 28, 1970 a sworn application was submitted by the Essex County Prosecutor pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, L. 1968, c. 409; N. J. 8. A. 2A:156A-1 et seq., for judicial authorization to intercept wire communications over certain public telephone facilities. An order authorizing such electronic surveillance was issued on the same date. A second application was made on September 14, 1970 to intercept wire communications over a nonpublie telephone facility. An order authorizing this interception was issued the next day. After intercepting numerous telephonic communications pursuant to this second order, a sworn application for search warrants was made on October 2, 1970 covering one Phillip Sidoti, his motor vehicle and approximately ten different premises. The search warrants issued and were duly executed, with the resultant seizures of evidence and arrests.

The original application of May 28, 1970 was submitted by a lieutenant of detectives in the prosecutor’s office. It concerned the suspected illegal gambling activities of one Nicholas Mitarotonda and other “unknown persons,” and their use of two public telephones to relay gambling information. It stated that “[i]n order to identify such individuals working for and associated in this illegal gambling operation, it will be necessary to intercept telephonic conversations over public telephone facilities number (201) 748-9849 and (201) 748-9896, located at the corner of North 15th Street and Chester Avenue, Bloomfield, New Jersey.” It further stated that “any sustained surveillance is impossible, because a strange vehicle-parked in the neighborhood or a strange individual on foot would be noticed and the security of the investigation'would be jeopardized.” Also, that “individuals at this level generally will conduct their business by telephone to avoid contact with other bettors or operators working in the gambling operation which can be detected by surveillances.” Because of these facts and the interception of telephone conversations would disclose the substance of discussions between the persons in the wagering enterprise, it was claimed “a special need exists to intercept conversations over public telephone facility numbers (201) 748-9849 and (201) 748-9896.”

. This application incorporated an affidavit made by an investigator in the prosecutor’s office. The affidavit recited information which had been received from an informant concerning this gambling activity. According to the affidavit, the investigator met with his informant on May 6, 1970, who pointed out the suspect Mitarotonda and “other white males.” These persons were observed utilizing an “Armstrong sheet” and engaging in conversation pertaining to the business of horse racing; the suspect was seen to enter the phone booth, place a call and engage in a conversation for about a minute; he accepted cash from these individuals sometimes before and sometimes after placing the call. This occurred six or seven times between 11:30 a.m. and 12:30 p.m. It was further stated that “phone activity was conducted among the aforesaid white males until surveillance ceased at 3:00 p.m.” Similar activity was observed on the following day, May 7, when the suspect arrived at approximately 11:30 a.m. In addition, the investigator, by entering one of the two phone booths, personally overheard the suspect call from the other phone booth a “type of bet that can only be placed with a bookmaker.” On May 8 the suspect arrived at approximately 11:40 a.m., the same type of activity was observed and the investigator also was able to overhear “conversations * * * all relating to horse * * * and lottery bets.” On May 9, the last day of the surveillance, this pattern of activity was observed between the hours of 11 :30 í\.m. and 3:00 p.m., during which the suspect Mitarotonda and others would make “frequent phone calls of- short duration and have conversations pertaining to placing of horse and lottery bets” and exchange cash. The investigator expressed the opinion that “the individuals described are either bettors and/or bookmaker’s runners, who are placing bets via the use of public telephone [s] * * * to bookmakers whose locations are unknown at this time.”

On this showing the court determined there was a “special need” and authorized the Essex County Prosecutor’s Office “to intercept the wire communications of unknown males engaging in a bookmaking and lottery operation relating to the offenses of Bookmaking (Y. J. S. 2A:112-3), Lottery (IV. J. S. 2A:121-3 and 4), Conspiracy (N. J. 8. 2A:98-1 and 2) from public telephone facility (201) 748-9849 and (201) 748-9896 listed to the public telephone booths located at the intersection of North 15th Street and Chester Avenue. Bloomfield, New Jersey.” It further provided that the “interception will begin and end as soon as practicable and be conducted in such a way as to minimize or eliminate the interception of communications other than the type described hereinabove; said interception shall terminate no later than thirty days from the beginning of interception.”

Defendants have brought motions to suppress all evidence, including most particularly the communications intercepted as a result of both wiretap orders. The motions have now been pared to the singular contention that the initial sworn application and affidavit did not demonstrate a basis upon which the court could determine the existence of “special need” for wiretap on the public telephones, and therefore the order was contrary to IV. J. 8. A. 2A :156A-11. Merged in this contention is the argument that the showing of probable cause was insufficient to justify an electronic surveillance over the two public telephones in the broad and unrestricted manner permitted by the order of May 28, 1970, and therefore violated the Fourth Amendment of the Federal Constitution prohibiting unreasonable searches.

The pertinent statutory provision is N. J. S. A. 2A:156A-11, viz:

If the facilities from which a wire communication is to be intercepted are public, no order shall be issued unless the court, in addition to the matters provided in section 10 above, determines that there is a special need to intercept wire communications over such facilities.

This language clearly indicates that the standard of “special need” was intended to supplement those encompassed in section 10 of the act. Section 10 fashions the general requirements for any proposed interception of oral or wire communications. The facility must be designated and there must be a judicial determination based upon adequate facts of its use in connection with the particular offense or its leasing, listing or common use by the suspect; the recent or “continuing criminal activity” of the “person whose communication is to be intercepted”; the likelihood that the interceptions will reveal conversations concerning the offense; and the inutility of conventional investigative techniques. What was intended in section 11 to be embraced by “special need” as an addendum to these standards imposed by section 10 is not self-relevatory. Under such circumstances an examination of “the pertinent constitutional and legislative history for aid in ascertaining the true sense and meaning of the language used” is invited. Lloyd v. Vermeulen, 22 N. J. 200, 206 (1956).

The act, which was passed as L. 1968, c. 409, had been introduced as Senate Bill No. 943. This bill superseded earlier Senate Bill No-. 897 which had been the subject of a report by the Senate Committee on Law, Public Safety and Defense, Report on Senate No. 897 Electronic Surveillance (October 29, 1968). The replacement of S. 897 was felt by the Committee to be required by the passage on June 19, 1968 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. G. § 2510 et seq. Ibid. at 3. In the Statement annexed to 8. 943 it was said: “This bill is designed to meet the Eederal requirements and to conform to the Eederal Act in terminology, type and format which will have obvious advantages in its future application and construction.” The Omnibus Act imposed minimum standards upon states with respect to the use of electronic surveillance. 18 U. 8. O. §§ 2515; 2516(2); 2518. It was explained by the Senate Judiciary Committee that under the federal law “states would be free to adopt more restrictive legislation, or no legislation at all, hut not less restrictivo legislation.” 8. Rep. No. 1097, 90th Cong. 2nd Sess. 98 (1968), U. S. Code Cong. & Admin. News, p. 2187. It is to be noted that the federal enactment did not treat specially the area of public facilities or require the demonstration of auv added showing comparable to that posited in N. J. 8. A. 2A :156A-11. In this context the New Jersey act can be viewed as stricter than its federal parent with respect to the interception of communications over a public facility.

The Statement annexed to 8. 943 further recites that “The hill also incorporates, to a major extent, provisions of a draft of a model state statute prepared, subsequent to enactment of the federal law, by Professor G. Robert Blakey * * T}nS model state statute, as set forth In Blakey and Hancock, “A Proposed Electronic Surveillance Control Act,” 43 Notre Dame Lawyer 657, 674 (1968) provided:

If the facil.ty from which a wire communication is to be or was intercepted are or were public, no order of authorization or approval shall be issued unless the court, in addition to the matter provided in subsection (c) of this section, determines that there is or was a special need to intercept wire eommunieat.ons over such facilities.

A comparative examination of the statutes of other states which have adopted legislation authorizing electronic surveillance pursuant to the federal Omnibus Act indicates that none impose special added requirements for the electronic surveillance of public facilities. It would appear that other jurisdictions have thus far eschewed the more stringent standards proposed in the model state statute and adopted by New Jersey.

Professor Blakey also was responsible in a substantial way for the' authorship of the American Bar Association (ABA) Project on Minimum, Standards for Criminal Justice, “Standards Relating to Electronic Surveillance” (June 1968). This provided:

No order should be permitted authorizing or approving the overhearing or recording of communications over public facilities unless an add tional showing is made establishing probable cause for belief that—
(i) the overhearing or recording will be or was made in such a manner so as to eliminate or minimize insofar as practicable the overhearing or recording of other communications whose overhearing or recording are not or would not be authorized, and
(ii) there is or was a special need for the overhearing or recording of communications over the facilities., [at 9]

The New Jersey act and the model state statute in format do not follow literally the ABA’s proposal that for the electronic surveillance of a public facility there be both a showing of “special need” and a finding that the interception can be undertaken so as “to eliminate or minimize insofar as practicable” the collection of nonsubject communications. The New Jersey act, however, clearly contemplates these twin requirements for the electronic surveillance over a public facility. Thus, N. J. S. A. 2A:156A-12(f) provides that “Every order entered under this section shall require that such interception * * * be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act.” (Emphasis added).

In partial explanation of the provision in the model state statute for the special treatment of a public facility it was stated that “Surveillance of a public telephone booth is potentially one of the most sensitive uses of electronic surveillance techniques. Therefore, it ought not to be undertaken without some special showing in addition to that otherwise required.” Blakey and Hancock, op. tit., at 674, fn. 37. The commentary upon the similar ABA proposal explicated this view.

This standard reflects the judgment that the wiretapping of public phones should be distinguished from the wiretapping of private phones. Potentially, the number of innocent and unrelated calls wh.eh could be intercepted in the tap of a public phone over any length of time raises serious questions about the balance between privacy and justice. On the other hand, if public phones could not be tapped a loophole would be created which would undercut the effectiveness of the standards themselves. It should be possible, therefore, to obtain such an order under certain conditions. The standard thus requires two additional showings to be made before an order to tap a public phone can be obtained. First, it must be demonstrated that the interceptions will be so conducted that the possibility of the interception of innocent calls will be eliminated or minimized. Second, a special need to tap the phone must be shown. For example, where a professional gambler is conducting h.s business not over his private phone but over a particular public phone, there exists a special need to make interceptions over that phone. It would not be necessary, however, to authorize a continuous tap of the phone. With the use of physical surveillance, the time during which he was using the phone could be pinpointed. The tap could be turned on only during that time. See Katz v. United States, 389 U. S. 347 [88 S. Ct. 507, 19 L. Ed. 2d 576] (1967) (bug on phone booth only operative when subject used phone). Indeed, the time 1 mitations of Berger v. New York, 388 U. S. 41, 56-60 [87 S. Ct. 1873, 18 L. Ed. 2d 1040] (1967) would seem to require this sort of limitation. When these procedures are followed, the balance between privacy and justice is such that the authorization of the tap of a public phone is not unreasonable. [ABA Project, etc. “Standards Relating to Electronic Surveillance,” supra, at 151-152]

Intrusions upon privacy have long been decried as “subversive of all the comforts of society.” Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (1765). The New Jersey Legislature evinced a sensitivity to the unique threat to individual privacy posed by electronic invasions. The Senate Committee initiated its report with the observation about “the increasing effectiveness of electronic devices to invade personal privacy.” Report on Senate 897, etc., supra, at 1. It recommended a broad definition of what would constitute a private conversation subject to statutory protection (ultimately adopted in N. J. S. A. 2A:156A-2(b)). Ibid, at 6; 2 Bearings Before The Senate Committee On Law, Public Safety And Defense on Senate Bills No. 897, 802 and 803,' at 60A-61A (September 17, 1968). The Committee was cognizant of the significant decisions of the United States Supreme Court in Berger v. New York, 388 U. S. 41, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967), and the later ease of Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (which involved an electronic surveillance of a public telephone in an open phone booth). It concluded that “only a tightly controlled system [of electronic surveillance] that gives detailed attention to procedure can pass muster.” Report on Senate 897, etc., supra, at 2. Among its “Findings” were that “all forms of electronic surveillance invading individual privacy” be prohibited except as authorized by the proposed bill; and in its view the proposed bill “contains the essential reconciliation between individual privacy and public justice [and it] is simultaneously strictly limited to prevent abuses but broad enough to allow official action under tight court supervision and control.” Ibid, at 4-5.

From this history there would seem little reason to doubt that the New Jersey Legislature, by the adoption of section 11 of the New Jersey Wiretapping and Electronic Surveillance Control Act, contemplated specifically the type of public facility and situation which were involved in Katz v. United States, supra. And by implication it thereby intended to incorporate as standards appropriate for an electronic surveillance of such a public facility those which were enunciated by the United States Supreme Court in that case.

Analysis of the Katz case thus becomes imperative. There federal agents had installed a listening device covering a public telephone. Because there was no prior judicial warrant to authorize this surveillance the Supreme Court suppressed the resultant evidence. It nevertheless had this to say:

The question remaining for decision, then, is whether the search and seizure conducted in this ease complied with constitutional standards. In that regard, the Government’s position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner’s activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner’s unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, and thy took great care to overhear only the conversations of the petitioner himself.
Accepting- this account of the Government’s actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such invertigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. * * * [389 U. S. at 354, 88 S. Ct. at 512-513, 19 L. Ed. 2d at 583-584]

The congeries of circumstances in Katz highlight an acute concern of the United States Supreme Court reflected in its earlier decision of Berger v. New York, supra. In that case, pursuant to court order, an electronic surveillance was accomplished through the installation of a listening device in the office of an attorney for a 60-day period. As a result of leads derived from this eavesdrop a similar concealed microphone was later placed in the office of another suspect. In declaring the underlying New York state statute to be unconstitutional the court remarked that “During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard with their connection to the crime under investigation.” 388 U. S. at 59, 87 S. Ct. at 1883-1884, 18 L. Ed. 2d at 1052.

The necessity for screening out the calls of innocent persons has been elsewhere recognized. In United States v. Escander, 319 F. Supp. 295 (D. C. S. D. Fla. 1970), the court upheld an electronic surveillance involving a public telephone located in the lobby of the apartment building in which the suspect lived. The wiretap order provided that interception be undertaken only when the suspect was in the building and only when it was determined by “voice recognition” that he was actually using the telephone. 319 F. Supp. at 297. State v. Christy, 112 N. J. Super. 48 (Law Div. 1970), is also instructive. It was noted that the telephone facility “though public, was installed within the confines of a private business establishment, apparently controlled by the criminal suspects Rotunda and Cerino and not readily available to the general public.” 112 N. J. Super. at 65. Additionally, the target of the investigation Rotunda was characterized as the coordinator or controller of a gambling enterprize. Thus there was a firm basis for believing that most of the calls from the particular telephone would be made by the prime suspect himself and would be fraught with criminal content.

The factors critical in assessing the reasonableness of a particular electronic surveillance of a public telephone can in some measure be gleaned from a synthesis of the foregoing decisions. These would be the identity of the person or persons who are suspected of criminal activity and who are the focus of the investigation; the criminal or incriminating quality of the conversations which are anticipated in view of the criminal roles ascribed to such persons; also the pattern and regularity of the use of the public telephone by the suspects or the degree to which the facility is controlled, monopolized or dominated by them. The filtering or screening of the calls of innocent persons from the electronic surveillance of a public telephone seems quintessential. The electronic surveillance of a public facility should be targeted to the prime suspects and away from innocent and unwitting persons. Consideration should be given to the availability or actual use of the public telephone by members of the public or persons in no way connected with the criminal activities. The risk of netting the conversations of such persons should be reduced, if feasible, through such techniques as contemporaneous physical observations of the actual use of the public facility or perhaps by voice identification or by a sharp constriction of the daily periods of time during which the interception may be undertaken.

The electronic surveillance authorized herein must be rated aganist this constellation of considerations. “The standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion.” Berger v. New York, supra, 388 U. S. at 69, 87 S. Ct. at 1888, 18 L. Ed. 2d at 1058 (Stewart, J., concurring). Patently the intrusion permitted herein was extensive. The order did not limit the surveillance of the two public telephones to the prime suspect Mitarotonda; it extended the permissible surveillance to persons vaguely described as “unknown white males.” The application and affidavit strongly suggested that in some more concrete fashion the persons associated with the prime suspect Mitarotonda could have been identified or described. No prophylactic measures were included in the order to prevent the conversations of innocent persons from becoming ensnared by the electronic surveillance. There was no finding in the application that the suspect and his “unknown white male” cohorts actually monopolized or dominated these telephones to the exclusion of the general public. No restriction was imposed that the interception be conducted only when the prime suspect or any of his “unknown white male” cohorts would actually or probably be using the public telephones. There was no directive that if feasible the telephones be subject to any parallel visual surveillance while being monitored. While a sustained physical surveillance might have jeopardized the investigation, as suggested in the application, it would appear that during the interceptions there could have been at the very least some contemporaneous selective physical observations of the use of the telephones. Facts were disclosed as to particular times when gambling activity over the telephones would likely occur each day. But there was no compression of the surveillance to those hours of prime gambling time.

The provision in the order that the interception terminate “as soon as practicable and be conducted in such a way as to minimize or eliminate” the interception of nonsubject communications, in the absence of any concrete restrictions as to persons, times or duration, constituted at best a loose hobble upon the discretion of the executing officers. The intrusion which was herein authorized by the court was not by this precatory inhibition or in any other meaningful way “limited, both in scope and in duration.” Katz v. United States, supra, 389 U. S. at 354, 88 S. Ct. at 512, 19 L. Ed. 2d at 583. Rather, it suffered the interceptions of virtually all conversations that might be uttered by any person over two public telephones during any time of the day or night for as long as 30 days. Such an interception is “[t]he traditional wiretap or electronic eavesdropping device [which] constitutes a dragnet, sweeping in all conversations within its scope — without regard to the participants or the nature of the conversations.” Berger v. New York, supra, 388 U. S. at 65, 87 S. Ct. at 1886, 18 L. Ed. 2d at 1056 (Douglas, J., concurring). In terms of what had in fact been disclosed in the sworn application and supporting affidavit of May 28, 1970 there was not demonstrated a “special need” for the interception of communications from these two public telephones of the breadth, duration and undifferentiated scope authorized by the court here. It follows that the communications were unlawfully intercepted. N. J. S. A. 2A:156A-21(a).

The electronic surveillance authorized by the court on May 28, 1970 eventually disgorged a conversation on June 10, 1970, by an unknown caller identifying himself as “Herb for Erank,” from one of the public telephones to a person referred to as “Phil.” The telephone number involved in this call was decoded and it was ascertained to be a telephone number listed to Erank A. Sidoti. The contents of the June 10 call furnished the factual basis for the conclusion that “Phil” was a controller who would be dealing with many criminal participants at all levels of the gambling enterprise. Although telephone calls were made later in September to the Sidoti telephone to ascertain whether it was in current use by “Phil,” the call of June 10 was relied upon directly to obtain the subsequent wiretap order of September 15, 1970 covering the Sidoti telephone (see footnote 4 supra). This subsequent interception spawned a plethora of incriminating communications which involved directly or indirectly defendants herein and eventxxally charted the path to the searches and seizures of evidence and the arrests of defendants.

Since the communications were unlawfully intercepted, the suppression of evidence at trial is the end result. The evidence derived from the surveillance of September 15, 1970 is inextricably related to the unlawfxxl surveillance of May 28 and the June 10 telephone call; it cannot be regarded as stemming “from an independent source.” Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392, 40 S. Ct. 182, 183, 64 L. Ed. 319, 321 (1920). As phrased in Wong Sun v. United States, 371 U. S. 471, 487, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1962), the question is whether the evidence sought to be suppressed “has been come at by exploitation of * * * illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Suppression of evidence of guilt is radical surgery. Compare Mapp v. Ohio, 367 U. S. 643, 81 8. Ct. 1684, 6 L. Ed. 2d 1081 (1961), with State v. Bisaccia, 58 N. J. 586 (1971). Nevertheless, in a case such as this, involving evidence derived from an unlawful electronic surveillance, it is the legal cure mandated by the Legislature. N. J. S. A. 2A:156A-21, viz:

If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall not be received in evidence in the trial, hearing or proceeding.

Eor the foregoing reasons, the motions are granted.

      Arix. Rev. Stat. § 13-1051 (1968); Colo. Rev. Stat. 1063, 40-4 -30 (1969); Fla. Stat. Ann., c. 934.01 (1968); Ga. Code Ann. § 26-3004 (1967); Mass. Ann. Law, c. 272 § 99 (1968); Minn. Stat. Ann. § 626A.01 (1969); N. H. Rev. Stat., c. 570-A:1 (1969); N. Y. Crim. Proved.. Law § 700.05 (effective Sept. 1971)

      This section was amended in the final draft of the ABA’s “Standards Relating to Electronic Surveillance” (1971) to make explicit that these requirements for the surveillance of a public facility shall be “in add.tion to” those applicable to a nonpublic facility. This was not considered to be a substantive charge.

      Tliis conclusion is further buttressed by a consideration of a subsequent legislative development. An amendment of section 11 of the New Jersey Wiretapping and Electronic Surveillance Control Act was introduced on March 10, 1969 as Assembly Bill No. 597. This was reintroduced on February 9, 1970 as Assembly Bill No. 611 (which has presently passed the New Jersey Assembly but has not yet passed the Senate). This proposed amendment of section 11 with respect to a public telephone would provide:
      If the [facilities] facility from which a wire or oral communication is to be intercepted [are public] is a public coin-operated telephone instrument, no order shall be issued unless the court, in addition to the matters provided in section 10 above, determines that there is a special need to intercept wire or oral communications over such facilities. (Brackets and italics in original)
      A. 611, regarded as a proposed clarification of section 11, underscores the view that the requirement for “special need” was intended to include the electronic surveillance of a public coin-operated telephone such as that involved in the Katz case.

      In the present c-ase, by way of contrast, Mitarotonda was suspected of being a bettor or bookmaker’s runner and using the public telephones to call in gambling bets to a bookmaker. In the second wiretap application of September 14, 1970, based upon the content of a call intercept ed on June 10, 1970, a person called “Phil” was thought to be performing tile role of “controller” similar to that of Rotunda in Christy, viz:
      On the basis of my experience in the field of gambling, the aforementioned telephone conversation [*. e., June 10, 1970] indicates to me that the person known as “Phil” could best be described as a “controller” in this bookmaking and/or lottery operation. Based on my experience, I have found it to be a fact that the function of a controller in such an operation is as follows: He must keep and maintain records of his writers, runners, pickup men, and keep track of all money coming in and all money owed out. He is responsible for the outlay of money for winning numbers (hits), winning numbers which have been missed in the record-keeping (over-looks), and for disputes over whether or not bet-takers are owed bonuses for bringing in extra work. He is also responsible for the return ribbons, which are the tabulations of daily lottery play turned in by individuals known as writers. He also takes care of any other such problems which must be settled at a high level of this operation. He is in control of all records pertaining to the illegal lottery and/or bookmaking business and would have said records on his person, or in his premises.


source: Caselaw Access Project

author: Kolovsky, J. A. D. Conford, P. J. A. D.

license: Public Domain

text:
    BRYAN CONSTRUCTION CO., INC., PLAINTIFF-APPELLANT, v. EMPLOYERS’ SURPLUS LINES INSURANCE COMPANY, THE AETNA CASUALTY AND SURETY COMPANY, EMPLOYERS MUTUAL OF WAUSAU, ARTHUR J. O’CONNOR, JAMES J. O’CONNOR AND THOMAS A. LAFFEY, INDIVIDUALLY AND t/a O’CONNOR-LAFFEY & CO., WOHLREICH AND ANDERSON, LTD., COUNTY OF UNION, A BODY POLITIC OF THE STATE OF NEW JERSEY, JOSEPH ALLAN, INGVALD MOE, AND RELIANCE INSURANCE COMPANY (FORMERLY STANDARD ACCIDENT INSURANCE COMPANY), DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 30, 1970
    Decided August 26, 1971.

      Before Judges Contobd, Kolovsky and Cartoh.

      Mr. Joseph J. MacDonald argued the cause for appellant (Messrs. Harrison, Hartman <& MacDonald, attorneys).

      Mr. William J. Cleary, Jr. argued the cause for respondent Aetna Casualty & Surety Company (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).

      Mr. Gerald W. Conway argued the cause for respondent Employers Mutuals of Wausau (Messrs. Schreiber and Lancaster, attorneys).

      Mr. Brian C. Harris argued the cause for respondent Employers’ Surplus Lines Insurance Company (Messrs. Braff, Litvak, Ertag & Wortmann, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Plaintiff Bryan Construction Co., Inc. (Bryan) appeals from final judgments entered in favor of defendants Employers’ Surplus Lines Insurance Company (Employers’), Aetna Casualty and Insurance Company (Aetna) and Employers Mutual Liability Insurance Company of Wisconsin (impleaded as “Employers Mutuals of Wausau”) (Wausau), dismissing the first, third and fourth claims for relief pleaded in the complaint.

As the trial court’s opinion notes, 110 N. J. Super. 181, the motions for summary judgment resulting in the judgments appealed from involved only “the issue as to the interpretation of the three policies” issued to plaintiff Bryan by the insurance companies. “Other issues projected in the complaint [were] not involved.”

The trial court concluded that the respective policies did not require the insurance companies either to provide Bryan with a defense to the action instituted against it by the County of Union or to indemnify Bryan if the county should recover a judgment against it.

The county’s action against Bryan was bottomed on a written agreement dated June 7, 1963 by which Bryan agreed to erect and construct a court house annex, parking garage and juvenile detention center for the sum of $2,612,500. To insure its performance Bryan furnished a bond in that amount with Standard Accident Insurance Company (now Reliance Insurance Company) as surety.

The buildings were erected and the contract price fully paid to Bryan by the end of October 1965, However, in June 1967 the county filed a 13-count complaint in which it charged that the automobile parking garage and juvenile detention center were defectively and improperly constructed. The complaint sought damages from those allegedly responsible for the defects, viz., the county’s architect, Joseph Allan, the engineer he hired, Ingvald Moe, the county’s general contractor Bryan (the plaintiff herein), as well as from Standard Accident Insurance Company, the surety on Bryan’s performance bond.

The three counts seeking damages from Bryan charged that:

(1) Bryan had breached its contract by reason of its failure “to erect and construct said building in accordance with [the] plans and specifications" (10th count) ;
(2) Bryan “in the construction and erection of said structures, was careless and negligent in that it did not provide sufficient quantity and quality of materials for said structure; that it failed to follow the plans and specifications; that it did not follow accepted standard building practices,” and that as a result the building was in an unsafe, uninhabitable and dangerous condition with the walls cracking and the roof falling, requiring the county to expend “great * * * sums of money to correct said faulty workmanship” (11th count), and
(3) the couniy had relied on Bryan’s representation that it was qualified and skilled in the erection of buildings of the nature here involved and “was severely damaged by reason of [Bryan’s] willfully erecting a structure which was unsuitable for its intended purpose, and [Bryan] was grossly negligent in erecting and constructing said structure, knowing full well that said structure would not be functional and would create a dangerous and hazardous condition [and that as] a result of [Bryan’s] willful and deliberate acts, the plaintiff was caused to expend large sums of money for engineering and architectural surveys to construct and reconstruct the building and to expend other funds in order to protect said building” (12th count).

Except for the punitive damages sought by the 13th count based on the charge that Bryan had committed an intentional and willful tort, each count seeks recovery by the county of the amount required to remedy deficiencies in the buildings allegedly resulting from Bryan’s failure to carry out its obligations under the contract for the construction of those buildings.

Plaintiff does not claim that the policies furnish coverage for the pleaded intentional tort. It does not dispute that property damage caused intentionally by or at the direction of the insured is expressly excluded from coverage.

Plaintiff does claim, however, that the policies require the insurance companies to indemnify it for the cost, which the county seeks to recover, of curing the defects in the buildings which it had constructed, even though those defects allegedly are attributable to its own poor workmanship or other fault.

The trial court’s ruling to the contrary was based on its determinations that “Exclusion” clauses of the respective policies excluded coverage for the claims asserted against plaintiff by the County of Union — recovery of the amount required to correct the deficiencies in the parking garage and juvenile detention center. We agree with those determinations. Insofar as the Aetna and Wausau policies are concerned, we do so for the reasons set forth in the trial court’s opinion reported at 110 N. J. Super. 181.

However, the ruling with respect to the Employers’ policy requires additional comment. Under that policy, sometimes referred to as an “umbrella” policy, Employers’ Surplus Lines Insurance Company agreed, “subject to the limits of liability, exclusions, conditions and all other terms of [the] policy,”

to indemnify [Bryan] for all sums which [it] shall be obligated to pay by reason of the liability imposed upon [it] by law or liability assumed by [it] under contract or agreement for damages, and expenses, all as included in the definition of “ultimate net loss,” because of:
(a) personal injuries, as hereinafter defined;
(b) property damage, as hereinafter defined;
(c) advertising liability, as hereinafter defined.

Terms used in the insuring agreement were defined in the policy:

3. Property Damage.
The term “property damage” shall mean (a) physical injury to, or physical destruction of, tangible property, including the loss of use thereof, but excluding all other consequential damages, or
(b) injury to or destruction of property, including the loss of use thereof, caused by accident.
5. Ultimate Net Loss.
The term “ultimate net loss” shall mean the total sum which the insured, or any company as his insurer, or both, becomes legally obligated to pay as damages because of personal injury, property damage, or advertising liability claims, either through adjudication or compromise, and shall also include [certain specified expenses].
The company shall not be liable for any expenses as aforesaid when payment of such expenses is included in other valid and collectible insurance.

The “limits of liability, exclusions and conditions” to which Employers’ insuring agreement was made subject includes a requirement (Condition 15) that the insured maintain in effect the four policies of “Underlying Insurance” set forth in Item 3 of the Declarations of Employers’ policy.

The significance of the requirement for maintenance of the policies of “Underlying Insurance” stems from provisions (1) limiting Employers’ liability under its policy and (2) excluding particular claims from the coverage which might otherwise be afforded by the insuring agreement.

Under policy Condition 4, Employers’ is liable only for “ultimate net loss” in excess of either “the applicable limits of liability of the policies of underlying insurance set forth in Item 3 of the Declarations,” or if the occurrence is one not covered by such underlying insurance or is one “covered by such underlying insurance but in recoverable amounts less than the Underlying Limits set forth in Item 4 of the Declarations [$25,000.00], the amount of ultimate net loss set forth in the Declarations as ‘Underlying Limits.’ ” “Occurrence,” as used in the policy, means

(a) an accident, or (b) an event, or continuous or repeated exposure to conditions, which unexpectedly results in personal injury, property damage, or advertising liability (either alone or in any combination) during the policy period * * *.

Subsequent provisions of Condition 4 provide for additional coverage if the policies of underlying insurance have been reduced or exhausted by reason of losses paid thereunder, and limit Employers’ liability in any event to $1,000,000.

We are satisfied, as was the trial court, that the exclusionary clauses of Employers’ policy excludes coverage of the claims asserted by the county against Bryan. Hence we need not deal with the question whether, were it not for the exclusions, those claims would he embraced within the insuring agreement.

Insofar as pertinent, the Exclusions of Employers’ policy reads as follows:

This policy does not apply:
(a) * * *
(b) * * * to * * * property damage, caused intentionally by or at the direction of the insured.
This policy does not apply, except insofar as coverage is available to the insured under the underlying policies of insurance set forth in the declarations
(c) * * »
(d) * * *
(e) to claims made against the insured:
(i) for repairing or replacing any defective product or products manufactured, sold, handled or distributed by the insured or any defective part or parts thereof nor for the cost of such repair or replacement;
(ii) for the loss of use of any such defective product or products or part or parts thereof;
(iii) for improper or inadequate performance, design or specification, but nothing herein contained shall be construed to exclude claims made against the insured for personal injuries or property damage (other than property damage to a product of the insured) resulting from improper or inadequate performance, design or specification.

We need not decide whether Exclusions (e) (i) and (e) (ii) relating to claims for repairing or replacing defective products “manufactured, sold, handled, or distributed by the insured” applies to a building defectively constructed by the insured. Divergent answers have been given in the reported cases to the question whether buildings are to be deemed “products manufactured, sold, handled or distributed,” within the meaning of similar exclusionary clauses. Compare Johnson v. National U. F. Ins. Co. of Pittsburgh, Pa., 56 Misc. 2d 983, 289 N. Y. S. 2d 852 (Sup. Ct. 1968), with Volf v. Ocean Accident & Guarantee Corp., 50 Cal. 2d 373, 325 P. 2d 987 (1958); Nome Indemnity Co. v. Miller, 399 F. 2d 78 (8 Cir. 1968), and Vobill Homes, Inc. v. Hartford Accident & Indemn. Co., 179 So. 2d 496 (La. Ct. App. 1965).

We are satisfied that, in any event, the claim asserted by the county against Bryan is excluded from coverage by Exclusion (e)(iii). Cf. Vobill Homes, Inc. v. Hartford Accident & Indemn. Co., supra. It is clear from the language of that paragraph that the policy does not apply to claims made against the insured Bryan “for improper or inadequate performance, design or specification” resulting in damage to Bryan’s work product, the building it constructed. The plain language of the Exclusion is not rendered ambiguous by the additional language inserted to make it clear that if such improper or inadequate performance, design or specification results in personal injuries or in damage to property other than the insured’s own product, then coverage is afforded the insured against the claims for such personal injuries or property damage.

Still to be considered however, is the effect, if any, on Exclusion (e) (iii) of the paragraph preceding Exclusion (c). That paragraph, applicable to Exclusions (c) to (j), inclusive, reads:

This policy does not apply, except insofar as coverage is available to the insured under the underlying policies of insurance set forth in the declarations.

By virtue of the quoted paragraph, Exclusions (c) to (j) are not effective to bar coverage under the Employers’ policy in situations where such coverage is afforded to the insured by the underlying policies of insurances set forth in Item 3 of the Declarations in Employers’ policy.

We turn, then, to an examination of the policies of underlying insurance to see whether, as plaintiff contends, one or more of them in fact furnish coverage against the county’s claim, thus nullifying Exclusion (e) of Employers’ policy.

Ttem 3 of the Declarations of Employers’ policy reads as follows:

Item S. Underlying Insurance
Coverage
[ 1 ] Comprehensive General Liability including Products L. ability, Contractual Liability, Broad Form P. D. and deletion of Explosion Collapse and Underground Damage Coverage
[ 2 ] Automobile Liability
[ 3 ] Employers Liability
[ 4- added by endorsement ]—All Risk Builders Risk
Limits of Liability Personal Injury
$100,000.00 Each Person 300.000. 00 Each Occurrence 300.000. 00 Aggregate
Property Damage
$100,000.00 Each Occurrence 300.000. 00 Aggregate
Bodily Injury
$100,000.00 Each Person 300.000. 00 Aggregate
Property Damage
$100,000.00 Each Accident $100,000.00 Each Accident Full Insurance to Value.

It is undisputed that the required policies of underlying insurance were maintained in effect during the period the buildings were being constructed. The “Automobile Liability” and “Employers Liability” policies are not relevant to the issue before us; plaintiff does not contend that they furnish coverage against the county’s claim.

The “Comprehensive General Liabilty” coverage was furnished in successive years by the Aetna and Wausau policies. We have already ruled, contrary to plaintiff’s contention, that they did not afford coverage against the county’s claim.

This leaves for consideration only the “All Risk Builders Risk” policy. It was issued by The American Insurance Company (American) in the “Provisional Amount” of $5,000,000; the actual amount of insurance in effect on any date during the course of construction was “that proportion of the provisional amount that the actual value of the described property on that date bears to the value at the date of completion but shall not in any ease esceed the provisional amount.”

Named as the insured in the American policy was the “Board of Chosen Ereeholders, County of Union, New Jersey, Trustee,” the policy, however, providing that “Loss, if any, to be adjusted only with the Insured * * * and payable to the Insured and Bryan Construction Co., Inc. * * * [and five other named contractors] as their respective interests may appear, subject nevertheless, to all the provisions and stipulations of the policy.”

The policy furnished coverage, subject to various exceptions and exclusions, against direct loss by fire, lightning, windstorm, hail, explosion, riot, riot attending a strike, cviil commotion, aircraft, vehicles and smoke, as well as against “all other risks of direct physical loss.”

“Builder’s risk” insurance is ordinarily issued to a contractor or a property owner in order to insure him against loss occurring during the construction, repair or alteration of a building.

A builder’s risk policy may be issued to cover loss resulting from any cause if the parties so agree, and hence the question whether loss resulting from a certain kind of cause, for example, faulty construction work is covered under a particular policy, depends upon the contract of insurance. Annotation, “Insurance—Builder’s Risk,”

94 A. L. R. 2d 221, 228 (1964) ;

See also, Annotation, “All Risks Insurance-Coverage,” 88 A. L. R. 2d 1122 (1963); Associated Engineers, Inc v. American Nat. Fire Ins. Co., 175 F. Supp. 352 (D. Cal. 1959); Teeples v. Tolson, 207 F. Supp. 212 (D. Or. 1962). Plaintiff has chosen not to take a position on the question whether American’s policy furnishes coverage for the damage encompassed in the county’s claim against plaintiff Bryan. In its reply brief, which incorporates a copy of American’s policy, it tells us that American “and the insurance advisor for the County, apparently with the County’s concurrence, have taken the position that the damage in question is not covered by the Bisk policy [and that] plaintiff reserves judgment on the point.”

We must therefore assume, for the purpose of the instant ease, that American’s policy does not furnish such coverage.

If it does not, then the exception contained in the above mentioned paragraph preceding Exclusion (c) is of no import. Realistically it would make little difference in the impact on Employers if American’s policy did furnish such coverage. While Exclusion (e) would not then benefit Employers, its liability under its policy would be only for that amount, if any, by which the claimed damage exceeds the limits of American’s policy, limits which appear to exceed by far the amount of damage claimed by the county.

The judgments in favor of Aetna, Wausau and Employers are affirmed.

Conford, P. J. A. D.

(concurring in part and dissenting in part). I am in agreement with the affirmances as to defendants Aetna and Wausau but not as to Employers’ (the “umbrella” policy). I agree with the court that the exclusionary clauses in the Aetna and Wausau policies clearly and unambiguously exclude the coverage claimed by plaintiff and that no other argument of plaintiff can legally prevent judgment in favor of those companies. However, the exclusionary clause in the Employers’ policy is significantly different. I find it not only not to exclude the present claim but to impliedly reaffirm its coverage. At the very least the clause may raise an ambiguity, which, under well settled principles, must be resolved against the insurer.

Peculiarly apt in relation to the constructional problem presented by the Employers’ exclusionary clause is the concise summary of guides to construction of insurance policies set forth in Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1, 7-8 (1961), restated as authoritative in Ohio Cas. Ins. Co. v. Flanagin, 44 N. J. 504, 513-514 (1965), as follows:

“Solution of a problem of construction of an insurance policy must be approached with a well settled doctrine in mind. If the controlling language will support two meanings, one favorable to the insurer, and the other favorable to the insured, the interpretation sustaining coverage must be applied. Courts are bound to protect the insured to the full extent that any fair interpretation will allow. Kievit v. Loyal Protective Life Ins. Co., etc., 34 N. J. 475 (1961). Moreover, in evaluating the insurer’s claim as to the meaning of the language under study, courts necessarily consider whether alternative or more precise language, if used, would have put the matter beyond reasonable question; also whether judicial decisions appear in the reports attributing a more comprehensive significance to it than that contended for by the insurer. Mahon v. American Cas. Co. of Reading, Pennsylvania, 65 N. J. Super. 148 (App. Div. 1961). Insurance contracts are unipartite in character. They are prepared by the company’s experts, men learned in the law of insurance who serve its interest in exercising their draftmanship art. The result of their effort is given to the insured in printed form upon the payment of his premium. The circumstances long ago fathered the principle that doubts as to 1he existence of coverage must be resolved in favor of the insured. Barker v. Iowa Mut. Ins. Co., 241 N. C. 397, 85 S. E. 2d 305 (Sup. Ct. 1955).
These general rules of construction have spawned a number of subsidiary ones of equally universal recognition. For example, where the policy provision under examination relates to the inclusion of persons other than the named insured within the protection afforded, a broad and liberal view is taken of the coverage extended. But, if the clause in question is one of exclusion or exception, designed to limit the protection, a strict interpretation is applied. Cal.-Farm Ins. Co. v. Boiseranc [Boisseranc], 151 Cal. App. 2d 775, 312 P. 2d 401, 405 (D. C. App. 1957).”

Defendant Employers’ does not argue that, aside from the effect of the exclusionary clause, it would not be liable under the broad affirmative declarations of coverage in the policy. Nor does the determination of the trial court in its favor appear to have rested on any other basis than that clause. The only issue before us, therefore, is whether the exclusionary clause clearly and unambiguously eliminates coverage of the present claim. I firmly disagree with the conclusion of the majority that it does. Exclusion (e), upon which the defendant relies, reads:

(e) to claims made against the insured:
(i) for repairing or replacing any defective product or products manufactured, sold, handled or distributed by the insured or any defective part or parts thereof nor for the cost of such repair or replacement;
(ii) for the loss of use of any such defective product or products or part or parts thereof;
(iii) for improper or inadequate performance, design or specification, but nothing herein contained shall be construed to exclude claims made against the insured for personal injuries or propei'ty damage (other than property damage to a product of the insured) resulting from improper or inadequate performance, design or specification.

Employers’ first argues the claim falls within (e) (i) on the basis that the building plaintiff erected for Union County is asserted to be a “defective product * * * manufactured * * * by the insured,” and that the county is demanding that plaintiff repair or replace it. A response to this should be coordinated with the examination of the exclusionary argument based on (e) (iii) since the focus of that examination must be the meaning of the word “product” contained within the parenthetical clause thereof. Simple principles of contract construction, founded on common sense, make it evident that the “product” mentioned in (e) (iii) is intended to be of the same nature as the “product or products” mentioned in (e)(i).

It will be useful to summarize my construction of (e) (iii) before discussion of the available case authority relevant thereto.

The generic category, “product or products manufactured, sold, handled or distributed,” plainly denominates, in common parlance, tangible portable objects that are commonly transported in the course of commerce from manufacturer to ultimate consumer. The phrase would not connote, in the mind of the ordinary purchaser of a liability insurance policy, a building erected on a fixed site for an owner by the insured as contractor. I think this proposition is beyond fair debate and that only a strained and unnatural construction of the policy language would lead to the contrary conclusion. If accepted, that conclusion eliminates (e) (i) as a basis for exclusion of the instant claim. I pass to (e) (iii).

It can readily be admitted that “improper or inadequate performance, design or specification,” if taken alone, aptly encompasses the nature of the default in the claim asserted by the county against the plaintiff. However, the immediately succeeding qualification in (e)(iii), iCbut nothing herein contained shall be construed to exclude” etc., eonstitutes an implied affirmative declaration of coverage of claims against the insured for property damage resulting from improper or inadequate performance, design or specification, except only for property damage to a product of the insured. If the property damage from improper or inadequate performance, etc., is not to a product of the insured, within the proper meaning of the word in its context, coverage persists and exclusion is negated. Since the meaning of “product” in (e) (iii) is, for the reasons already stated, the same as that of the “product or products” mentioned in (e) (i), and does not include a building erected on a fixed site, (e) (iii) does not exclude coverage for the instant claim.

There appears to be no ease in point on the precise problem in terms of both the nature of coverage asserted and substantial similarity of exclusionary policy language. However, several cases strongly support the thesis that policy language similar to that referring to “products” in the Employers’ policy does not refer to service-type operations like building construction or repair as contrasted with manufacture of transportable articles. Hoffman & Klemperer Co. v. Ocean Accident & Guar. Corp., 292 F. 2d 324, 328 (7 Cir. 1961); New Amsterdam Casualty Co. v. Addison, 169 So. 2d 877, 881 (Fla. D. Ct. App. 1964); Johnson v. National U. F. Ins. Co. of Pittsburg, Pa., 56 Misc. 2d 983, 289 N. Y. S. 2d 852, 858-859 (Sup. Ct. 1968), aff’d o.b. 33 A. D. 2d 924, 309 N. Y. S. 2d 110 (App. Div. 1970); Kissel v. Aetna Casually & Surety Company, 380 S. W. 2d 497 (Mo. Ct. App. 1964); Poynter v. Fidelity and Casualty Company of New York, 140 So. 2d 42, 45 (Ct. App. La. 1962); cf. McAllister v. Century Indemnity Co. of Hartford, Conn., 24 N. J. Super. 289, 294 (App. Div. 1953), aff’d o.b. 12 N. J. 395 (1953).

Although each of the cited eases involved claims for coverage for liability asserted against the insured for personal injuries or for property damage to property other than that constructed by the insured, they are nevertheless pertinent insofar as construction of “products”-type language in an exclusionary clause is concerned.

The rationale in Justice Meyer’s opinion in the Johnson case, supra, is particularly elucidative. The insured there was a residential builder. The reference to “products” in the exclusionary clause was: “goods or products manu-

factured, sold, handled or distributed by the named insured” (note the close similarity of the “products” verbiage in exclusion (e) of the instant policy.) The court said:

Though houses built constitute part of the gross national “product” and in the broad sense of the word are the “product” of the labor of the various trades engaged in their construction, they are not “products” in common parlance. Rather they are real estate transfers or building construction, while in common parlance the word “products” means manufactured goods, chattels. Pertinent is the following portion of the opinion in Kissel v. Aetna Casualty & Surety Company, supra, 380 S. W. 2d 497, at 503:
“It [defendant insurer] says that the idea that a contractor has no ‘product’ is wholly illogical, erroneous and fallacious and the building of the athletic field and the school are the ‘products’ of their builders and that what a contractor leaves behind when his work is finished—his ‘completed operation’—is his ‘product’. We do not agree with the defendant’s position in attaching such a broad meaning to the term products as used in the insurance policy in question. We do not think it was the intended policy meaning when using the term products and this appears more convincingly so when the policy itself states the nature of the insured’s business as ‘contracting.’ ”
See also, Peerless Insurance Company v. Clough, supra, 105 N. H. 76, at 81, 193 A. 2d 444, at 448; Kendrick v. Mason, supra, 234 La. 271, 294-295, 99 So. 2d 108, at p. 116; Nielsen v. Travelers Indemnity Company, supra, 174 F. Supp. 648, at pp. 653-654. Relevant also is the fact that the Restatement covering products liability, is entitled “Liability of Persons Supplying Chattels for the Use of Others.” The point is not that a builder-vendor of homes cannot incur a “products hazard” or “products liability,” but that the ordinary businessman would not interpret a “products hazard” exclusion as related to such a business. [289 N. Y. S. 2d, at 858-859]

In the Hoffman & Klemperer Co. case, supra, where the insured had repaired a building from which a person fell, and the question was whether the hazard was excluded from a contractor’s liability policy because comprehended only by a “Produets-Completed Operations” coverage, which the insured had not purchased, the court, in holding for the insured, said (292 F. 2d, at 328) : “Hoffman, as indicated, is a contractor and sells no product.”

In a situation parallel to that in Hoffman & Klemperer Co., supra, but involving an insured electrical contractor, the court in New Amsterdam Casualty Co. v. Addison, supra, said:

Pondering these contentions we reflect that the instrument before us is a manufacturers’ and contractors’ liability policy; appellee is an electrical contractor dispensing services and not a manufacturer of products. The action against him did not involve a claim for negligence in connection with products manufactured or sold by him, but it involved a claim for negligence in performance of services rendered by appellee as an electrical contractor. We are therefore not concerned with one making and selling products but with one who sells services. [169 So. 2d, at 881]

It is true that Employers' cites decisions containing language which, superficially considered, might be thought to support the notion that an erected building may be a “product55 of the builder, within similar “products” exclusionary language. But all of the exclusionary clauses involved in the cases relied on excluded not only claims for damage to “products,” etc. of the insured, but also to “work completed by or for the named insured,” or similar language. The latter clause alone would justly vindicate the exclusion as against an insured contractor or serviceman. See Vobill Homes, Inc. v. Hartford Accident & Indem. Co., 179 So. 2d 496, 497 (La. Ct. App. 1965); Home Indemnity Co. v. Miller, 399 F. 2d 78, 82 (8 Cir. 1968); Volf v. Ocean Accident and Guarantee Corporation, 50 Cal. 2d 373, 325 P. 2d 987, 988 (Sup. Ct. 1958) (this policy also had an effective exclusion as to property in the care, custody and control of the insured). Indeed, both of the policies of the other defendants in the present case, Aetna and Wausau, contain exclusionary language encompassing damage to “work completed by * * * the insured,55 and this factor is one of the reasons I am voting to affirm the judgments in favor of those defendants. I cannot concur in the majority’s use of the term “work-product” in reference to plaintiff’s operation as a basis for holding for Employers’. This policy does not mention “work-product.” That term was coined in the eases last cited to fit the exclusionary clauses there involved which encompassed, as noted, both “products” and “work” of the insured. This policy does not.

The availability of such plain and unambiguous exclusionary language, commonly used by the insurance industry in contractor’s liability policies, which would have accomplished the objective here contended for, is of course another reason why Employers’, who did not take advantage thereof or use other clear language for the purpose, should be held strictly to the formulation which it chose to employ in the instant policy. Elote the excerpt quoted above from Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, supra; see also Kook v. American Sur. Co. of N. Y., 88 N. J. Super. 43, 51 (App. Div. 1965).

Employers’ brief sets forth, although not clearly, what may be a contention that the instant claim cannot escape exclusion because it does not involve property damage to a “third person” rather than to the county. I see no basis whatever for the distinction thus drawn. Certainly a claim for property damage by such a “third person” would be covered; but there is nothing in the declarations of the policy or the exclusionary clause which would confine coverage for liability for property damage, to damage to property of persons other than the owner, in the instance where the insured contractor has constructed a building but is alleged to have done so negligently to the damage of the owner. If the insurer intended such a limitation, there is nothing in the policy even remotely suggestive thereof; certainly nothing which would “clearly and unequivocally” communicate such an. intent to the purchaser of the policy. The policy prima facie encompasses coverage for liability for property damage sustained by anyone who makes a claim therefor against the insured.

I would reverse the summary judgment entered in favor of Employers’ and direct entry of summary judgment as to liability for coverage in favor of plaintiff as to that defendant.


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

text:
    STATE OF NEW JERSEY, v. MATTHEW J. HALE, JR., DEFENDANT-PETITIONER.
    Superior Court of New Jersey Law Division—Criminal
    Decided August 23, 1971.

      Mr. Dominiclc J. Ferrelli, Prosecutor for Burlington County, for State.

      Mr. George TI. Barbour for defendant-petitioner.
   Martino, A. J. S. C.

Petitioner Matthew James Hale, Jr. was charged and tried for the murder of his wife on or about midnight, May 28, 1961. On June 29, 1962 a jury returned a verdict of guilty in the first degree with a recommendation of life imprisonment. Petitioner was thereupon committed to the New Jersey State Prison and has since been transferred to Leesburg Prison where he is now confined.

A direct appeal to the Supreme Court of New Jersey resulted in an affirmance of the conviction, State v. Hale, 45 N. J. 255 (1965). A petition for rehearing filed October 29, 1965 was denied on November 16, 1965. The Supreme Court of the United States denied certiorari on June 20, 1966. Hale v. New Jersey, 384 U. S. 884, 86 S. Ct. 1981, 16 L. Ed. 2d 1001. There have been no post-eonviction proceedings in this State other than the appeals relating to the conviction from which relief is sought under the instant petition.

An in forma pauperis application for a writ of habeas corpus was filed with the United States District Court for the District of New Jersey, and on June 5, 1969 a memorandum and order by Chief Judge Augelli, was entered dismissing the petition, without prejudice, for failure to exhaust available remedies on the issue of petitioner’s competency to stand trial. The instant petition ensued.

Pacts pertinent to the disposition of petitioner’s application are as follows:

On or about March 7, 1966, approximately eight months after defendant’s conviction had been affirmed, the United States Supreme Court decided Pate v. Robinson, 383 U. S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815. The court there held that the failure to hold a hearing on a defendant’s competency to stand trial, where the evidence raises a “bona fide doubt” as to such competency, is a denial of due process of law. While petitioner could not have argued that he was entitled to a trial competency hearing under Pate on his direct appeal, it is evident that the decision was available to defendant well within the five-year period of limitation for seeking post-conviction relief pursuant to R. 3 :22—12.

Since the New Jersey Supreme Court affirmance of his conviction and up to the filing of the present application, petitioner has not been represented by counsel.

The petition herein was filed beyond the five-year period of limitation provided for under R. 3:22-12. In his application petitioner asserts as his primary ground for relief that “despite compelling evidence that petitioner might not be competent to stand trial, the trial court did not order a statutory hearing to determine that fact,” contrary to the due process clause of the 14th Amendment to the Federal Constitution.

The substance of the psychiatric testimony at petitioner’s trial was concerned with his mental condition as of May 28, 1961, the date of the homicide. Without the benefit of the complete transcript of the trial below, reliance is placed upon the New Jersey Supreme Court’s account of the proofs adduced at that trial which were aimed at establishing Hale’s alleged insanity at the time of the crime. Hale’s background reveals that he had been in trouble at an early age as a result of breaking into a school and a church. He began drinking alcohol in his teens. Hale never finished high school, enlisting in the Marines following his third year. Although he served with some distinction in Korea, he was twice absent without leave when not on combat duty. Although he was able to hold a job on his return from the service, he continued his excessive drinking, habit. He talked of ending his life, on one occasion slashed his wrist, while on another threatened to shoot himself. Besides threatening to do harm to himself, he threatened his brother Pressley, a paraplegic, and discussed robbing two business establishments.

On several occasions defendant received psychiatric treatment, spending six weeks in a private hospital in Pennsylvania but failing to follow out-patient treatments. Several psychiatrists testified for defendant, and one for the prosecution. All agreed that defendant was psychologically disturbed and emotionally unstable. One of defendant’s doctors testified that at the time of the murder defendant had lost contact with reality. All felt that he was in need of psychiatric care, and in its absence his condition was deteriorating.

Two of the experts were of the opinion that defendant knew the nature and quality of his acts and the difference between right and wrong. One felt that while defendant probably knew what he was doing, he was unable to distinguish between right and wrong at the time of the crime. The fourth expert stated that he was unable to express an opinion. State v. Hale, supra, 45 N. J. at 261-262.

It should be noted that notwithstanding the apparent abundance of testimony with respect to petitioner’s sanity at the time of the commission of the crime, at no time during the proceedings was defendant’s competence to stand trial brought into question, either from observation or at the suggestion of counsel. Petitioner seems to have conducted himself in an entirely normal fashion, and his counsel never urged any present insanity or any inability of defendant to cooperate with him during the trial.

Petitioner raises two points in support of a contention that his failure to file a timely application for post-conviction relief is due to “excusable neglect.” The first of these points fails to speak to the immediate issue at bar. While admittedly petitioner could not have advanced the Pate argument on his direct appeal, it is clear that said decision was available to defendant well within the five-year period of limitation for post-conviction relief and could have been urged therein upon timely application.

Petitioner’s second point, that he was not aware of the time limitation of B. 3:22-12 and that a defendant acting pro se should not be bound by time limits in the court rules to the same extent as a member of the bar, has some merit.

At the outset it should be noted that the construction of the words “excusable neglect,” as used in B. 3:22-12, is a novel question in this jurisdiction. With due respect to the policy reasoning behind finality of judgments, State v. Blanchard, 98 N. J. Super. 22 (Law Div. 1967), it is clear that New Jersey’s attitude with respect to compliance with procedural rules is consistent with federal decisions holding that post-conviction rules will not be so construed as to make them inadequate. Brown v. New Jersey, 395 F. 2d 917 (3 Cir. 1968).

The only New Jersey authority dealing with the question at hand axe those eases involving timeliness of direct appeals from judgments of conviction. See B. 2 :é~1 et seq. As a general rule, attempts to appeal within time by convicted defendants, particularly when incarcerated and not haying advice or assistance of counsel, will be liberally appraised so as to have the right of review where reasonably possible as against objections of untimeliness. State v. Mason, 90 N. J. Super. 464, 478 (App. Div. 1966). In State v. Allen, 99 N. J. Super. 314, 323 (App. Div. 1968), defendant sought post-conviction relief on grounds that his not being advised of his right to appeal and of his right to counsel to prosecute an appeal deprived him of his right to effective assistance of counsel as guaranteed by the 5th and 14th Amendments to the Federal Constitution. In ordering that defendant be allowed to appeal out of time, the court stated:

The mandate that a rule shall not be relaxed must not be superseded lightly. But in this regard courts express a liberal attitude toward imperfect appeals by a convicted defendant, particularly when incarcerated and not having the advice or assistance of counsel, [at 322-828.]

Reasoning by analogy to the foregoing authority, it is evident that the policy reasons behind this State’s liberal attitude toward imperfect direct appeals by convicted uncounselled defendants are also applicable to imperfect applications for post-conviction relief by defendants suffering the same state of circumstances. While the facts in Mason and Allen are distinguishable from the present case, similar stakes of “fundamental justice” are involved herein.

It is therefore concluded that the petition of this .uncounselled defendant be considered on the ground that its untimeliness was due to petitioner’s “excusable neglect,” not withstanding the fact that defendant made no prior attempt to file a timely application. Cf. State v. Mason, supra.

Defendant further argues that Pate v. Robinson, supra, is applicable and should be given retroactive effect.

The application of Pate to the facts in this case or in any other has never been decided by the New Jersey courts. Similarly, the issue as to whether the principle of Pate should be applied retroactively has never been decided in this jurisdiction.

In the- federal courts the Pate decision has been applied retroactively though none of the cases speak directly to the issue of retroactivity itself. See Kibert v. Peyton, 383 F. 2d 566 (4 Cir. 1967), involving a petition for the writ of habeas corpus by a defendant convicted of murder in 1959 and Lee v. Alabama, 386 F. 2d 97 (5 Cir. 1967), cert. den. 395 U. S. 927, 89 S. Ct. 1787, 23 L. Ed. 2d 246 (1968), where petitioner sought habeas corpus relief from a 1942 conviction of murder.

In the absence of specific authority in this State, an examination of the policy reasons behind retroactive application of changes in judge-made law proves helpful. In State v. Blanchard, supra, defendant sought correction of alleged trial errors through use of post-conviction relief procedures. As a basis for relief, he relied upon two New Jersey Supreme Court decisions wherein the convictions of his co-defendants were reversed on direct appeal. Both reversals stemmed from a finding by the Supreme Court of prejudicial trial error by virtue of the admission of the statements of five codefendants at the joint trial which contained references to each of the appealing defendants. In denying petitioner’s application for post-conviction relief, the court discussed the underlying philosophy of retroactivity.

The problem has arisen in the main in recent years because of the many changes in judge-made law in the field of criminal jurisprudence and the determination of whether those changes shall be applied retroactively to those convicted under rules and law in existence during their trials. Even in cases involving issues of constitutional dimension, there can be no automatic application of the principle of retroactivity which would .warrant a new trial for every convicted defendant because the current view of law demonstrates that he had been deprived of a constitutional guarantee. The Constitution neither prohibits nor requires retrospective effect of new judge-made law. Linkletter v. Walker, 381 U. S. 618, 629; 85 S. Ct. 1731, 1737, 14 L. Ed. 2d 601 (1965). As observed by Justice Proctor in State v. Johnson, 43 N. J. 572, 584 (1965), aff’d. 384 U. S. 719, 86 S. Ct. 1772; 16 L. Ed. 2d 882 (1966) :

“Society reasonably expects that when a man is convicted of a crime by a method not considered unfair according to the rules of law then in effect, that conviction will stand. Therefore unless some countervailing considerations of ‘the deepest sentiments of justice’ compel otherwise, a new rule of criminal law should not be applied retroactively. * * *
* * :js» * i}t * *
"Where the reliability of the guilt-determining process is seriously impugned, there is good reason for applying the new rule to a case already decided. It would offend our sense of justice to continue to incarcerate a convicted man where subsequent considerations cast grave doubts upon the reliability of the determination of his guilt. But where the conviction was obtained as a result of a procedure not considered fundamentally unfair at that time, and subsequent judicial decisions cast no substantial doubts upon the reliability of the determination already made, no compelling reason exists for disturbing a decision no longer subject to direct appeal.” [98 N. J. Super. at 31 and 32]

Applying the foregoing principles to the instant case, it seems plain that Pate should be given retroactive effect. The issue of whether a defendant is competent to stand trial appears to have a direct bearing upon the reliability of the guilt-determining process. One who is insane at the time of trial is unable to comprehend his position — to consult intelligently with counsel and thus aid in the planning of his defense. The issue of competence to stand trial is of such import to the determination of guilt that in New Jersey, where the condition of a defendant’s mind is brought into question at the time of trial, either from observation or by suggestion of counsel, the question should be immediately settled. State v. Peacock, 50 N. J. L. 34, 36 (Sup. Ct. 1887).

It is, therefore, concluded, based upon the trend in the federal courts and the policy reasons behind the doctrine of retroactivity, that Pate be given retroactive application in the present case.

In considering the effect of Pate on this case, it is helpful to examine the state of law in our jurisdiction prior to that decision. In addition to N. J. S. 2A :163—2, specifieally authorizing the trial judge to conduct a hearing in advance of trial to determine the sanity of the accused at that time upon application by counsel, it has long been recognized in New Jersey that such inquiry may be made during the course of the trial, on motion of either the court or counsel. State v. Lucas, 30 N. J. 37, 72 (1959). In State v. Peacock, supra, Mr. Justice Reed held:

It is undoubtedly the law that a person who by reason of insanity is unable to comprehend his position, and to make his defense, cannot be placed upon trial for a crime. If the court either before or during the progress of such a trial, either from observation or upon the suggestion of counsel, have facts brought to its attention which raises a doubt of the condition of defendant’s mind in this respect, the question should be settled before another step is taken. The method of settling this preliminary question, where it is not the subject of statutory regulation, is within the discretion of the trial court. The court can itself enter upon the inquiry, or submit the question to another jury empaneled for that purpose. [50 N. J. L., at 36; emphasis added]

In State v. Lucas, supra, defendant, who allegedly set fire to a church rectory resulting in several deaths, was convicted of felony murder. At the trial substantial psychiatric testimony was proffered on the issue of insanity at the time of the commission of the crime and at the time defendant confessed. At no time during the trial was the present mental condition of defendant brought into question. On appeal from his conviction defendant contended that the trial court erred in failing, on its own motion, to embark upon a collateral inquiry into his mental capacity to stand trial. The Supreme Court affirmed the judgment, and with respect to the issue of defendant’s ability to stand trial declared:

* * * While the court has the power to order an inquiry in the defendant’s mental qualifications to stand trial, failure to exercise the powers will not be reviewed on appeal, unless it clearly and convincingly appears that the defendant was incapable of standing trial. It is to be ordinarily expected that defense counsel, who is in a far better position than the trial judge to assay the salient facts concerning the defendant’s ability to stand trial and assist in his own dei'ense, would originate the request that such an inquiry be conducted.
From these proofs we cannot conclude that the trial court was under any duty to conduct a collateral inquiry into the defendant’s ability to stand trial. [30 N. J. at 73 and 74]

Similarly, in State v. Auld, 2 N. J. 426 (1949), defendant was convicted of murder in the first degree. When arraigned he pleaded “insanity,” hut the court refused to enter such a plea and caused one of “not guilty” to be entered. On appeal it was contended that such action was reversible error and that the court was under a duty, by virtue of the plea, to conduct an inquiry or investigation of defendant’s present sanity. The judgment of conviction was affirmed and the Supreme Court held:

Outside of the fact of the plea itself there was nothing to warrant any inyest.gation into the sanity of the defendant. The fact he entered his plea himself while represented by counsel, and thereafter actively participated in the trial itself, conducting himself in what appears to have been an entirely normal fashion, that Ms counsel never suggested any jn-esent insanity or any inabil.ty of the defendant to properly co-operate with him and that defendant’s own psychiatric experts testified his mental condition was one of sanity lends no support whatever to this argument. We hold it without substance. Tat 435]

The significance of the foregoing authority is to show that New Jersey has been well aware of the constitutional rights of an incompetent to stand trial, long before Pate was decided. Prior to Pale, where there were facts brought to the attention of the court raising “doubt” as to the condition of the accused’s mind, it was incumbent upon this State’s trial court to conduct an independent inquiry of defendant’s present sanity. State v. Peacock, supra, 50 N. J. L. at 36. What the decision in Pate did was to make clear that the failure of a state court to conduct such a hearing would be tantamount to a denial of due process of law as guaranteed by the 14th Amendment to the United States Constitution.

Perhaps the major contribution of Pate is its assertion of the “bona fide doubt test” which is to be used in ascertaining whether a sanity hearing is warranted in a particular case. Rather than holding petitioner to the stringent burden of showing by clear and convincing proof that he was incapable of standing trial, State v. Lucas, supra, Pate simply holds that “where the evidence raises a (mere) 'bona fide doubt’ as to a defendant’s competence to stand trial, the judge on his own motion must impanel a jury and conduct a sanity hearing.” 383 U. S. at 385, 86 S. Ct. at 842, 15 L. Ed. 2d 815.

Before turning to the immediate facts, it is pertinent to consider the quality of incompetence which the record below is supposed to indicate. A claim that a defendant is incapable of standing trial does not present the same considerations as a claim that he was legally irresponsible for his criminal behavior, though both claims may be based upon mental aberration. In the common law tradition controversies about criminal responsibility have been resolved by inquiry into the capacity to understand the nature and character of conduct and to distinguish right from wrong. In contrast, a claim of trial incapacity brings into question the ability of the accused to consult effectively with his lawyer and to supply him with information relevant to the matter charged and his involvement, if any, in it. Dusky v. United States, 362 U. S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). While an accused may have a mental disorder, Re may nevertheless understand his position and be able to .assist fully in his defense. State v. Coleman, 46 N. J. 16 (1966).

[A defendant] may have a mental disease, and the mental disease may have been the cause of his criminal act and he may be suffering from the same disease at the time of his trial; but it is a scientific fact that he nevertheless may be competent to stand trial under this definition of competency. * * * “To assist in his defense” of course does not refer to legal questions involved but to such phases of a defense as a defendant usually assists in, such as' accounts of the facts, names of witnesses, etc. * * [Aponte v. State, 30 N. J. 141 at 452-453, citing from the opinion in Lyles v. United States, 103 U. S. App. D. C. 22, 254 F. 2d 725 at 729 (D. C. Cir. 1957), cert. den. 356 U. S. 961, 78 S. Ct. 997, 2 L. Ed. 2d 1067 (1958)]

In Aponte v. State, 30 N. J. 441 (1959), involving an appeal from a conviction of murder wherein defendant urged his incapacity to stand trial, our Supreme Court set down the appropriate test to be used in determining insanity for purposes of standing trial.

As a test of ability to stand trial on a criminal charge, insanity means a mental illness or condition which prevents the accused from comprehending his position and from consulting intelligently with counsel in the preparation of his defense, [at 450; citations omitted]

In the present ease, as stated heretofore, Hale’s background discloses a history of somewhat disturbed behavior due primarily to excessive drinking. While all the psychiatrists at the trial testified that he was psychologically disturbed and in need of psychiatric care, none stated unequivocally that he was insane. The warden of the jail in which Hale was confined pending his prosecution testified that throughout Hale’s stay he mingled well and got along with all the prisoners. On several occasions the warden had personal conversations with defendant concerning subjects such as culinary art and music.

Even though there was abundant testimony with respect to petitioner’s sanity at the time of the crime, at no time during the proceedings was his competence to stand trial brought into question. In fact, on several occasions defense counsel took quite the opposite position. Objecting to the testimony of Warden O’Connor on the grounds of irrelevance and improper rebuttal evidence, defense counsel urged that the proceeding below involved no issue of defendant’s sanity at the time of trial.

[Defense counsel) : If you recall, Your Honor, even in cross-examining Dr. Yaskin, I asked could the defendant as now seated here have full contact with reality, and he said, yes. * * *

Similarly, in his summation defense counsel stated concerning defendant’s mental condition:

* * * I have unbending- belief, members of the Jury, that Matthew Hale *' * * could be sitting right here now knowing the difference between right and wrong, he could sit right there and talk to you as intelligently as he talked to that warden, and these psychiatrists know it, they told you that he was cooperative, he talked to them, and other different things they considered, but at the time of the killing, members of the Jury, these psychiatrists have convinced me, and from what I have been informed about psychiatry, that this man should be found not guilty.

During the trial petitioner conducted himself in a normal fashion. He testified that he had no recollection of the actual shooting, but gave an accurate account of the events leading up to the incident. Hale’s answers to the questions were responsive and coherent. He cooperated fully throughout the trial and in no way acted in a manner that would draw into question his present sanity.

Prom the foregoing facts it is clear that petitioner had the capacity to comprehend his position and consult intelligently with his counsel in the preparation of his defense. Cf. State v. Lucas and State v. Auld, supra. That Hale could not recollect all the events surrounding the shooting is not fatal to his competence to stand trial. See State v. Pacheco, 106 N. J. Super. 173 (App. Div. 1969), aff’d 54 N. J. 579 (1969), cert. den. 400 U. S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 65 (1970).

While petitioner relies heavily upon Pate, nothing in the record gives rise to a "bona fide doubt” of defendant’s sanity at the time of trial. The indicia of incapacity were not so impressive and those of capacity so slight that fundamental fairness dictated that the trial judge, acting “sua sponte should have interrupted the trial and instituted formal inquiry into this matter. United States ex rel. Roberts v. Yeager, 402 F. 2d 918, 919 to 920 (3 Cir. 1968). See also United States ex rel. Rizzi v. Follette, 367 F. 2d 559 (2 Cir. 1966); Schoeller v. Dunbar, 423 F. 2d 1183 (9 Cir. 1970), cert. den. 400 U. S. 834, 91 S. Ct. 69, 27 L. Ed. 2d 66 (1970); Hawks v. Peyton, 370 F. 2d 123 (4 Cir. 1966), cert. den. 387 U. S. 925, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1964). (1964).

A marked distinction exists between the facts showing incompetency to stand trial in Pate and in the instant case. In Pate the defendant was convicted of murdering his common law wife. He had a long history of disturbed behavior. Several years before the crime charged, he had been committed for eight months to a mental hospital. He had experienced delusions, periods of withdrawal and loss of memory. He had committed a prior homicide, killing his infant son. He had repeatedly committed or threatened acts of violence upon other persons. There was other evidence of bizarre and irrational behavior. Most significantly, four defense witnesses testified that Eobinson was insane. Additional evidence concerning his mental condition had been proffered but excluded. His attorney had stated repeatedly during the trial that his client was incapable of standing trial, though ho had not demanded a formal hearing on the issue. The trial court completely rejected Eobinson’s claim of insanity.

It is, therefore, my opinion, even assuming the retroactive effect of Pate, that the failure of the trial court herein to hold a sanity hearing, sua sponte, on defendant’s competence to stand trial, was not a violation of his right to due process where the evidence did not raise a "bona fide doubt” as to the condition of his mind at the time of trial.

Eor the reasons herein stated, it is concluded that, based upon the trial record below, petitioner’s application for post-conviction relief is without merit and, therefore, denied.