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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. SARAH WRIGHT, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 10, 1974
    Decided August 7, 1974.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. G. Judson Hamlin, First Assistant Prosecutor, argued the cause for plaintiff-appellant and cross-respondent (Mr. John S. Kulth.au, Middlesex County Prosecutor, attorney).

      Mrs. Jane G. Kleinfeld, Assistant Deputy Public Defender, argued the cause for defendant-respondent and cross-appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).
   Per Curiam.

On October 26, 1971 in the Tall Tree Apartments in Jamesburg, Middlesex County, defendant’s daughter Kimberly died. She was then approximately seven months old and an identical twin of her sister Karen.

Defendant was indicted for manslaughter contrary to N. J. S. A. 2A:113-5. Thereafter a superseding indictment added as an offense the charge of child neglect contrary to N. J. S. A. 9:6-1 and 3, and a jury trial thereof resulted in defendant’s convictions on both counts.

Defendant subsequently moved for a judgment of acquittal or a new trial. For reasons to be discussed infra, the trial court ordered a new trial on the manslaughter charge but let stand the conviction for child neglect. On leave granted, the State appeals and defendant cross-appeals from the denial of a new trial as to the neglect count.

The essential theory of the State’s ease was that defendant was wilfully and grossly negligent in the failure to feed Kimberly as a result of which she developed malnutrition and dehydration causing her death. Additionally, it was contended that defendant should have procured medical attention for Kimberly when she observed her deteriorating condition.

Before we deal with the record, which we must do at some length, we pause to note that the kernel of these appeals and our disposition of them was the prosecution’s position from the very opening of the trial that the jury should consider that Karen, the surviving twin, was, at the time of Kimberly’s death in generally the same malnourished and dehydrated state. (Defendant was never charged with any alleged wrongdoing in her treatment of Karen.) It might also serve to illuminate at this point the fact that the death certificate filed the day after Kimberly’s death reported the immediate cause of her death to be second and third degree burns over 15% of her body and that conditions which gave rise to the stated cause of death were dehydration and malnutrition. On January 28, 1972, approximately three months later, the death certificate was amended. The cause of death was then recorded as dehydration and malnutrition and it was reported that there were post-mortem burns over 15% of the body area.

And so to the record —

Kimberly was brought to the office of Dr. Eugene Pirog on the date of her death and was dead on arrival. (Prior thereto, on May 11, 1971, he had seen both Kimberly and Karen when they were brought to him by defendant primarily because Kimberly had a cold. At that time they were both normal and healthy.) He directed that Kimberly’s body be taken to a hospital for autopsy since he felt, finding blisters on her body, that she had probably been burned. He opined that blisters could only be produced in a living body but that once formed they would remain after death. As will be seen later, this opinion was disputed by other State medical witnesses.

The Chief of Police of Jamesburg, Peter Giacomozzi, testified regarding the investigation he conducted at defendant’s apartment on the evening of Kimberly’s death. He observed that the bedroom wherein Kimberly’s body was found to be intensely hot, notwithstanding that a window was partially open and he experienced difficulty in breathing because of it. He stated that the temperature in a nearby parlor was at least 85 degrees and in his opinion the bedroom temperature was greater. He testified that he had been told that the child was found partially on a radiator between the wall of the room and the bed. At the time of his investigation he estimated that there were eight to ten inches between the wall and the bed. He did not touch the radiator because the heat was “unbearable”. He was aware of complaints made by tenants in the Tall Tree apartment complex regarding heating problems although he had not personally dealt with them.

When Chief Giacomozzi arrived at the apartment two persons were present — Barry Williams and Dorothy Lawrence. Defendant was not there but rather was with a group of people in the vicinity of an ambulance which had been summoned for Kimberly.

Lieutenant Robert Reid of the Jamesburg Police testified that he arrived at defendant’s apartment after Chief Giacomozzi. He observed that the living room floor was dirty with candy and popcorn. The bedroom where Kimberly was found had clothes strewn about it and the twin’s bed contained neither bedding nor sheets. He, like Chief Giacomozzi, opined that the apartment was “very, very hot”.

Dr. Dorothy Pietrucha, coordinator of the Pediatrics Department of St. Peter’s Hospital in which Kimberly and Karen were born and to which Kimberly’s body was brought testified that the twins were born on March 16, 1911 in a normal birth. Dr. Pietrucha stated that on the date of Kimberly’s death Karen was also brought to the hospital and was diagnosed as suffering from malnutrition. Dr. Pietrucha testified that she examined Karen three days after her admission to the hospital i. e., October 29, 1971 at which time her condition was “stable”. She was however emaciated with little subcutaneous tissue. Her dehydrated state had been cured by use of large quantities of fluids. This testimony was received over defense objection but was permitted on the ground that it was so intimately related to the neglect of Kimberly that it ought not be excluded. Her clinical diagnosis of Karen’s case was — “malnutrition and child neglect”. Other tests were made on Karen which tended to rule out that she was suffering from any disease which might have generated the condition. Dr. Pietrucha stated that after her discharge for treatment for malnutrition and dehydration Karen returned to the hospital for a clinical visit. Testifying from clinical charts dated November 30, 1971, Dr. Pietrucha was asked who was the doctor in attendance at the time of Karen’s subsequent visit to which she concededly improperly responded —

On November 30 I saw Karen again and at that time my note bere is: child neglect case. Now with foster mother who is doing a very good joh.

The portion emphasized was in the trial court’s later view deemed “devastating” to defendant. We have labeled it “the Pietrucha answer”.

Defense counsel objected and moved for- a mistrial. The prosecutor conceded that the answer was an inadvertent mistake and probably should not have been said but urged that it was not substantially prejudicial to defendant, arguing that —

* * * the jury has already beard testimony that that ebild, from the words of Dr. Pietrucha, was dehydrated and malnourished, and if that’s not enough to let them know that the child was not properly cared for, then how can this [the challenged answer] possibly inihience them more. That’s when I say that this has to be seen in the totality of the ease.

Defense counsel declined the trial court’s offer to give the jury a cautionary instruction regarding the matter on the ground that it would only lend emphasis to the damage which he opined had been “irretrievably committed”. The motion for a mistrial was denied —• the trial court observing in part —■

* s. * ^he question is not easy to resolve, but X lean towards continuation of the trial, and will make it declared [sic, clear?] to the jury that the only issues in this case are those whieh are raised by the Indictment, and nothing else * * *

(The trial judge again solicited a request from defense counsel limiting the impact of the testimony. Even assuming admissibility, of which more later, none was forthcoming from the defense and we perceive no meaningful instruction in the Court’s final charge to the jury to that end. See Evid. R. 6.)

On cross-examination, Dr. Pietrucha testified that “child neglect” was a medical term. We observe here that Dr. Shuster, a State’s witness did not feel that it was. (No authority is cited supporting Dr. Pietrucha’s view on this point. We find none and are satisfied that the words constituted an ultimate fact in issue in the indictment. See Biro v. Prudential Ins. Co. of America, 110 N. J. Super. 391 (App. Div. 1970); rev’d 57 N. J. 204 (1970)).

The Chief Medical Examiner for Middlesex County, Dr. Marvin Shuster, performed an autopsy on Kimberly’s body on October 27, 1971 and on the basis of having completed the gross portion of it listed second and third degree burns as the primary cause of death with dehydration and malnutrition as secondary causes. The burns, thermal in nature, covered 15% of Kimberly’s body and were found on the right side of her face, neck, right arm, and the right side of her body and hips. He noted blisters and opined that blisters could occur post-mortem provided the body contained sufficient fluids when burned. He concluded after examining sections of the tissues and skin microscopically that the burns here were in fact post-mortem. He amended the death certificate as we noted earlier. Dr. Shuster stated that there was a difference of opinion in the medical profession as to whether blisters might be formed on a body when burns occur post-mortem. During the autopsy be found a stool in the body which appeared to him to be a milk stool indicating that that she had ingested milk at some time. He concluded from his examination that Kimberly had not had food for at least four hours prior to death and stated that the malnutrition he observed in her was moderate to marked as opposed to severe. (The State contended that the child was dead before contact with the heater. Dr. Shuster testified that if Kimberly were dead it would obviously have been impossible for her to have rolled onto the radiator. It was during the examination of Dr. Shuster that the Prosecutor stated that he felt he could “* * * analogize this situation with the standard charge on escape * * *” It was implicit both here and during his summation that he was suggesting that defendant — or perhaps someone on her behalf — placed the child’s body on the radiator so as to obscure the cause of death.)

Dr. Edwyn Albano, the Chief Medical Examiner of Hew Jersey, examined a small sample of skin removed from a burned area on Kimberly’s body and concluded that the burns were post-mortem, and that it was possible for a blister to form after death. He added that it was possible for some burns on one part of a body to be post-mortem while on another part to be ante-mortem.

Dr. Lewis Krafchik, an admittedly well-qualified pediatrician, testified that an infant could survive on milk and indeed thrive on it up to about eight or nine months of age and that anyone could tell that a child who weighed in excess of eight pounds at two months of age and under eight pounds at seven months of age was malnourished. Dr. Krafchik opined that Karen also was suffering from malnutrition and deprivation. He stated that identical twins have virtually identical body functions. He further testified that a child can die of dehydration without being malnourished and that extreme temperatures in a room can contribute to dehydration in an infant. Based upon reports he had read and viewing pictures of Kimberly’s body Dr. Krafehik opined positively that the cause of death was malnutrition and he did not think that the burns on her body caused death.

The defense was articulated through several witnesses —

Barry Williams, who dated defendant’s younger sister and who knew defendant for approximately seven years, testified that he came to defendant’s apartment on the fateful day sometime before noon. He was joined there later in the afternoon by Mrs. Dorothy Lawrence. Defendant and Mrs. Lawrence were sponsoring a fashion show and they found it necessary to correct tickets for the affair since the printer had made a material omission on them. Williams joined defendant and Mrs. Lawrence in correcting the tickets. At the time Kimberly and Karen were in a bedroom in the apartment. While so engaged defendant was called from the apartment by a neighbor and during her absence Williams went into the twin’s bedroom to look for a pen. He noticed that Kimberly was between the wall and the bed. He described her position as —

Well, she was on a slant, with one of her arms down towards the heater, in between the wall and the bed. She was down, like that, and her head was, like, going upward, and her back was, like, towards the down — between the wall and the bed.

He testified that most of Kimberly’s body was on the bed.

When Williams went into the room and found Kimberly it was “pretty hot” with a temperature of “about 80, 85”. He said that the heat was almost unbearable. He had on prior occasions experienced intense heat in the apartment. He picked Kimberly up from the bed and her body was stiff and hard, whereupon he called Dorothy Lawrence. Mrs. Lawrence came into the room, took Kimberly’s body and began to run out of the bedroom when she humped into defendant who in turn took the body and began breathing into her mouth. Defendant, according to Williams, — “yelled for somebody to call the ambulance.”

Williams had known the infants since they were about three or four months old and in his view they were “pretty healthy, pretty happy * * *.” He testified that he personally fed both Kimberly and Karen milk out of a bottle sometime during the morning of October 26, 1971.

Dorothy Lawrence, a neighbor and friend of defendant’s, recounted essentially the same facts regarding the fashion show and the correction of tickets. She heard Barry Williams yell to get defendant and she went into the bedroom to see what was happening. Defendant returned to the apartment hysterically, took Kimberly from her and began to breathe into her mouth. Mrs. Lawrence called the rescue squad which arrived almost immediately. She had been in defendant’s apartment on numerous previous occasions and saw Kimberly and Karen being fed. She testified that defendant had the reputation of being a good mother. She never heard of nor personally observed any indifference to the twins by defendant or acts of not caring for them or defendant’s three other children, aged four, three and two.

Three other neighbors of defendant — Carol Bryant, Hattie Bradley and Prances Jackson — who had observed the children up to about one month before Kimberly’s death were in essential agreement that defendant had the reputation for being a good mother and that the children appeared normal and healthy. The State conceded on summation that these witnesses were — “telling the truth”. Mrs. Jackson added that the heating conditions at the Tall Tree Apartments were unnatural and that as a result of that she and a group of tenants drafted a letter to Governor Cahill. Some action resulted therefrom although the record is not clear in that regard. She stated that when in defendant’s apartment it seemed to be unusually warm and that on most of those occasions it was “very hot”.

Defendant’s mother, Lavinia Walker, occasionally visited her and observed the twins being fed and that when she last saw them they appeared to be normal and happy.

Defendant testified in her own behalf and stated that on the morning of October 26, 1971 Barry Williams had taken care of her younger children, including the twins, while she walked her older son Gary to school. She stated that the children were fed that day both by herself and Williams. She recounted the activity with the fashion show tickets stating that while so engaged a neighbor called to her whereupon she left the apartment. She returned to the apartment having been advised that something was WTong with one of the babies. She went into the bedroom, picked up Kimberly and ran out of the apartment blowing into her mouth. She testified that nothing was wrong with the twins when she put them to bed. She always fed the children and never intended to withhold food from them. She conceded that the twins had lost weight but did not think this was abnormal. She did not feel that the twins were in need of medical attention during the month of October. She explained her lack of concern for the weight loss by stating — “And by them being twins, I thought this was normal, that when they got older they would pick up weight.” She denied that Kimberly ever appeared to her as she was depicted in the pre-autopsy photographs.

In its instructions to the jury, the trial court specifically instructed them that it might not consider the burns as a cause of death or even a contributing cause thereof.

The trial court adopted the State’s position that the neglect consisted in the failure to provide adequate food and medical attention — “and nothing else”. A similar instruction was given in a supplemental charge addressed to a jury inquiry again specifically removing from their consideration the burns as a cause of or contributing factor of death. (Defendant never meaningfully advanced a defense of accidental burning and as already noted the State merely alluded to the suggestion of a cover up.)

Following the jury finding of guilt on both counts of the indictment, defendant moved for a judgment of acquittal notwithstanding the verdict or in the alternative for a new trial. Defendant emphasized during argument on the motion 1) “the Pietrucha answer” i. e., placement of Karen in a foster home, and that her case was one of “child neglect”; 2) the “trial within a trial” as it related to Karen; and 3) the failure of the trial court to instruct the jury on her request on “proximate causation” between the alleged child neglect and Kimberly’s death. The State argued that Karen’s condition was admissible under Evid. R. 55 to show “lack of accident” in defendant’s treatment of Kimberly. The trial court in response to the motion granted a new trial on the manslaughter count only stating —

* * * I am satisfied in my mind, having lived through the trial, that the remark at that time was so devastating in the light of the charge being made against the defendant, and in light of the inference to be drawn by the jury on the theory of the State’s case, and that is that she would intentionally have caused those burns, or somebody placed the child on that radiator, whether that was of very great likelihood after the child had expired; and you take that entire picture, and we’re concerned with a fair trial, justice, the woman has five children. She had five children. Granted she neglected the child, neglected the children. That, of course, is a far cry from manslaughter *■ * *
Using hindsight, I suppose I made a mistake in not granting a mistrial right then and there. However, that error cannot be corrected excepting in resolving the issue that’s presented in favor of the defendant now * * *

He concluded with •—

It is my considered judgment that the evidence established neglect of a child beyond doubt. However, as to the manslaughter count, I cannot say the same. There, there were so many questions involving credibility and changing of the death certificate, and burns contributing or causing the death, and the inference that the child being dead of malnutrition, must have been moved to the heater by some force, and the State urged the inference of the mother doing it to cover up. That in my judgment, highly prejudicial matter, such as Dr. Pietrucha’s statement was enough to tip the scales in favor of the State as to the manslaughter count.

On these cross-appeals the State argues for the reinstatement of the manslaughter conviction arguing basically that there was no showing by defendant of a manifest denial of justice and that the trial court abused its discretion in granting a new trial on the manslaughter count since it was in effect substituting its judgment for the jury verdict.

Defendant 'argues that the new trial was mandated since 1) there was a manifest denial of justice, 3) that the trial court erred in its failure to charge “proximate cause”, 3) that the trial court should have entered a judgment of acquittal on the child neglect count since it merged with the conviction of manslaughter, 4) that the trial court erred in denying a new trial as to the child neglect count and 5) that the court erred in permitting the testimony regarding the condition of the surviving twin Karen.

We need not decide here whether the trial court’s basic reason for granting the new trial, namely the “devastating” response by Dr. Pietrucha, was so prejudicial as to mandate it since our review of the record satisfies us, that in the context of this ease, the court erred on the broader ground of permitting the State to introduce proof of Karen’s condition as primary evidence of the really single fact in issue •— neglect of Kimberly. The Pietrucha response was in our view but a part of that erroneous climate.

It will be remembered that from the very opening of the trial the State contended and in fact proved that the surviving twin Karen was suffering from malnutrition and argued throughout that such proof was admissible as an exception to Evid. R. 55 to demonstrate in defendant absence of mistake on her part in the purported maltreatment of Kimberly.

We say again that reduced to its basics the case proceeded on the grounds of “* * * willfully failing to provide proper and sufficient food [and] medical attendance” by defendant to Kimberly. N. J. S. A. 9:6-1.

Evid. R. 55 provides —

Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.

That “other crime evidence” may be relevant and significantly probative is not the test. We deal here with a rule of exclusion. It has been noted that where the other crime is similar to the offense at issue and of recent vintage the probative weight thereof might be high however the proof is excluded by the rule in the interest of fundamental fairness and avoidance of undue prejudice to a party’s cause. When other crime evidence is admitted a jury might tend to think of defendant as a bad person in general and thereby convict him in a criminal case for that reason alone. The rationale of the rule is grounded in the policy of assuring a litigant’s right to a fair trial where an impartial determination is made on the facts of the ease at bar absent extraneous and prejudicial material. See Report of New Jersey Committee on Evidence (1963 ed.) (1963 Report), Comment on Rule, at 101-102; Compare State v. Harris, 105 N. J. Super. 319 (App. Div. 1969).

Evid. R. 55 by its terms of course does not proscribe the introduction of proofs of other crimes under all circumstances. The exceptions to the rule explicitly make other crime evidence admissible to prove some other fact in issue. Inadmissibility is grounded in the tendency of such evidence to be highly prejudicial and great care should be taken by a trial judge before admitting it. A court should be convinced that other crime evidence relates to a fact truly in issue and that it is not being introduced on some spurious ground. See State v. Professional Credit Corp., 112 N. J. Super. 286 (App. Div. 1970).

The State presses here its argument that the proof of Karen’s treatment by defendant was admissible from the outset to show that there was no mistake by defendant in her alleged maltreatment of Kimberly.

It asserts —

Certainly, the jury should learn that a twin sister of the deceased child, who was living in the same apartment with the deceased, and with the defendant, was also suffering from severe malnutrition and dehydration.
This testimony goes directly to the issue of intent on the part of the defendant to do the acts in question and to the state of mind of the defendant and especially, and more importantly, to counteract the contention of the defendant that the child’s death was accidental. (emphasis added)

This does not persuade. At the moment the State addressed its opening remarks to the jury — and Karen was then introduced — there was no “contention” to “counteract”. The defense ultimately and simply was no wilfull neglect.

The record before us does not reflect that the State’s position has ever been that defendant intentionally harmed Kimberly or Karen but rather that she was guilty of wilfull and gross neglect of them. Whatever logic may reside in the State’s theory that since Karen evinced signs of malnourishment, proof of that should have indicated to defendant that she was similarly mistreating Kimberly, that reasoning quickly is diluted by observing that defendant may not have been alerted to their deteriorating condition since in her mind their development was as it was because of the fact that they were twins. Additionally, we are satisfied that whatever relevance and probative force Karen’s condition had, it was clearly outweighed by the inflammatory prejudice to defendant here. Evid. R. 4. Karen’s condition was not a fact in issue. The “Pietrueha answer” only serves to highlight the evil in the receipt of the proof. See Comment on Rule 55, at p. 223 where we find —

No matter what the theory advanced for admission of other crime evidence, before other crime proof may be admitted, it should be shown that the evidence possesses independent relevance to the case, and that this relevance is not substantially outweighed by the rish that the evidence might produce prejudice or confusion. See 1963 Report, Comment on Rule 55, at 102-104; 1955 Report Committee Annotation, at 108. If the evidence is admitted, the jury must be instructed pursuant to Rule 6 of the limited weight which may be given to it. (emphasis added)

We do not perceive in this record that the State demonstrated that the proof of Karen’s condition possessed independent relevance to the case and that that relevance, if any, was not substantially outweighed by the risk that it might produce prejudice or confusion of issues.

In State v. Professional Credit Corp., supra, a corporate collection agency and its president were convicted of obtaining money under false pretenses. The conviction was reversed on the ground that the collection agency’s claim of interest from a debtor, not authorized by the creditor client did not constitute deception or fraud. The Court noted that other complaints were then pending against the same defendants on which indictments had either been returned or upon which indictments had been sought. The Court observed at p. 290 regarding this other crime evidence that —

The trial court admitted testimony concerning other accounts collected by the corporate defendant. This testimony tended to show that although the corporation collected interest on such other accounts, it did not pay the interest over to its client. In our opinion, the testimony had no relevance to the charge of obtaining money from Mrs. Somers by false pretenses or to the conspiracy charge. The evidence was not admissible under Rule 55 of the Rules of Evidence.

An expression for the rationale of the Rule and its exceptions were recited by Justice Heher in State v. Kociolek, 23 N. J. 400, at 418 (1957) —

“There are exceptions to the general rule that upon the trial of a person for one crime ‘evidence that he has been guilty of other crimes is irrelevant,” related to opportunity, motive, intent, a particular element of the crime charged, and the like, as (a) when the ‘circumstance of the crime charged and those of an extraneous crime indicate that they were both committed by the same person’; (b) when the accused’s ‘perpetration of an extraneous crime shows that he had the opportunity of committing the crime in issue’; (e) when ‘the several crimes may have sprung from a single motive, aiming at the accomplishment of the same end’; (d) when the commission of a different offense ‘discloses a motive for the commission of the offense charged, e. g., the defendant’s adultry [sic] with a wife may be relevant on his trial for the murder of her husband’; (e) when ‘one crime may have been perpetrated as a preparation for, or means of committing, concealing or escaping from another’; (f) when the ‘acts charged to be criminal may reasonably be innocent, and are criminal only when performed with a certain intent or with knowledge of a certain fact,’ in which case ‘other acts of the defendant, though criminal, may he adduced to prove that he had such specific intent or knowledge,’ e. g., ‘utterance of counterfeits, the making of false pretenses, the reception of stolen goods, the publication of libels, and, probably, occurrences claimed by the defendant to be accidental’; and (g) ‘in general it may be said that whenever the defendant’s guilt of an extraneous crime tends logically to prove against him some particular element of the crime for which he is being tried, such guilt may be shown.’ Yet ‘it must not be supposed that the defendant’s propensity to commit crime, or even to commit crimes of the same sort as that charged, can be put in evidence to prove his guilt of the particular offense, for however reasonable would be the deduction that, when a pocket is picked in a group of persons, of whom only one is addicted to picking pockets, he is the offender, his singularity in this respect could not, under our legal theory figure as proof of his guilt; there must appear, between the extraneous crime offered in evidence and the crime of which the defendant is accused, some other real connection, beyond the allegation that they have both sprung from the same vicious disposition.’ State v. Raymond, 53 N. J. L. 260, 264 (Sup. Ct. 1891), Dixon J. See also State v. Lederman [112 N. J. L. 366], supra; State v. Noel [102 N. J. L. 659], supra.; State v. Lanto, 98 N. J. L. 401 (Sup. Ct. 1923), affirmed 99 N. J. L. 94 (E. & A. 1923) ; State v. DePaola, 5 N. J. 1 (1950). (emphasis added)

See also State v. Ascolese, 59 N. J. Super. 393 (App. Div. 1960); State v. Neff, 67 N. J. Super. 213 (App. Div. 1961).

Cases illustrative of admissible “other crime evidence” may be found in State v. Baldwin, 47 N. J. 379 (1966), cert. den. 385 U. S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966) (proof of involvement in robbery, as motive for murder of prospective witness;) State v. Sinnoit, 24 N. J. 408 (1957) (In sodomy prosecution proof of similar act on another at same time and place, admissible as part of res gestae and evincing common plan); State v. Mulero, 31 N. J. 224 (1968) (Proof of prior heatings of victim in murder prosecution to evidence intent or negative innocent intent. It was noted that relevancy there “may be debatable.”); State v. Donohue, 2 N. J. 381 (1949) (Proof of prior beatings of victim in murder case as evidence of malice or ill will); State v. Jones, 94 N. J. Super. 137 (App. Div. 1967) (Proof of escape from custody pending armed robbery prosecution admissible on issue of defendant’s consciousness of guilt); State v. Smith, 84 N. J. Super. 452 (App. Div. 1964), certif. den. 43 N. J. 270 (1964) (Proof of solicitation of victim in rape prosecution to commit acts of perversion admissible as part of res gestae and evincing defendant’s state of mind); State v. Mor, 85 N. J. L. 558 (Sup. Ct. 1914) (In prosecution for fraud for sale of Short weighted goods, admissible to show similar sales to others at about same time — “for a single purpose only” — to negative that the involved sale was the result of mistake.)

We do not view the case before us as within the rationale of the authorities just mentioned. See also McCormick, Evidence, § 157, p. 329 (1954).

We do not deal here with a situation where a defendant may have been alerted to purported wrongdoing on the basis of some prior criminal activity but rather with an alleged contemporaneous willful neglect of identical infant twins who by the testimony of the State’s medical witnesses would tend to either thrive or suffer in identical fashion if treated similarly. Thus, in our view the challenged proofs did not have sufficient probative force to prove, as an other fact in issue, defendant’s absence of mistake or accident. Evid. R. 55.

We find the error to be of a quality warranting reversal since we cannot say that the demonstration of defendant’s guilt was so clear that the challenged proofs did not affect the result. State v. LaPorte, 62 N. J. 312 (1973). The State concedes that if we agree with the trial court that Dr. Pietrueha’s “devastating” statement affected the manslaughter count, it could not argue that it would not have the same effect on its consideration of the charge of child neglect. In this regard, since we find broader error, we hold that the testimony regarding Karen likewise tainted the conviction on the count of child neglect.

We perceive no merit to defendant’s argument that the court erred in denying its request to charge the jury on “proximate cause” on the manslaughter count. Our review of the entire charge satisfies us that the court made it eminently clear that it would have to be shown beyond a reasonable doubt that death resulted from the asserted acts of neglect. State v. Wilbely, 63 N. J. 420 (1973).

Accordingly, we affirm the trial court’s order granting a new trial on the manslaughter charge and reverse its denial of a new trial on the charge of child neglect. In view of our disposition here, we need not respond to defendant’s other points of appeal adding only that the State concedes that if on retrial defendant is convicted of manslaughter the child neglect count will merge with it as a lesser included offense.

The matter is remanded to the trial count for a trial on both counts of the indictment not inconsistent with this opinion.

Alloobn, J. A. D.

(dissenting). The evidence is undisputed that the deceased child (Kimberly) and a twin sister (Karen) were born on March 16, 1971, in normal, healthy condition; that when examined on May 11, 1971, approximately two months after their births, the doctor found both to be in normal condition and in good health; that when next examined Aty2 months later (October 26, 1971), at the age of seven months, Kimberly was dead as a result of malnutrition and dehydration (postmortem>, photographs depicting the emaciated condition of the child’s body providing unneeded corroboration), and her twin (Karen) was alive but suffering from malnutrition and dehydration; and that during the whole of the brief seven months of Kimberly’s lifetime, she and her twin were in the sole care, custody and charge of their mother, the defendant. Despite the fact that she had three other children aged two, three and four years, and although she concedes to having been conscious of the loss of weight of both the twins, defendant claims to have been unaware that both children were literally starving.

Thus, the critical issue in this case is whether the death of Kimberly was due to the knowing failure of defendant to provide the child with food adequate to sustain her life — or, as counsel for the defendant posed the question to the jury during summation, whether the death of the child was the result of “an honest mistake” by defendant or the product of a “willful mind.” Except for the proofs regarding the condition of the deceased child, no evidence could be more relevant, cogent and material in the resolution of this issue than evidence that the twin of the deceased child, living in the same household during the same period of time, under the care, custody and charge of the same mother, was likewise suffering from malnutrition and dehydration, and manifested the same external symptoms of neglect and lack of nourishment as those exhibited by the deceased child, including weight loss and emaciation.

So viewed, the testimony as to the physical condition of the surviving twin was clearly admissible to demonstrate that the malnutrition and dehydration from which the one child died was the result of a “willful mind,” rather than accident, inadvertence or an “¡honest mistake” on the part of defendant. However Evid. R. 55 may be regarded, whether as a rule of exclusion or otherwise, Stone, “The Rule of Exclusion of Similar Fact Evidence: America,” 51 Harv. L. Rev. 988 (1938); Williams v. State, 110 So. 2d 654 (Fla. Sup. Ct. 196-9), cert. den. 361 U. S. 847, 80 S. Ct. 102, 4 L. Ed. 2d 86 (1959), evidence of other criminal acts by a defendant is admissible thereunder so long as it is relevant to some matter in issue and is not received simply to show the general disposition of the defendant to commit crime. New Jersey Rules of Evidence (1972), Rue 55 and comment.

Where the proof of similar acts by defendant tends to establish that the offense for which defendant presently is on trial “was not inadvertent, accidental, unintentional, or without guilty knowledge,” such evidence is admitted in almost all jurisdictions, including New Jersey. McCormick on Evidence (2 ed. 1972), § 190; State v. Fay, 127 N. J. L. 77 (Sup. Ct. 1941); State v. Popick, 83 N. J. L. 318 (Sup. Ct. 1912). In recognition of this long established principle, Rule 55 itself expressly provides that such evidence “is admissible to prove * * * knowledge * * * or absence of mistake or accident.”

Prosecutions for maltreatment and other offenses against children are no different in this respect than are prosecutions for any other type of criminal offenses. And, where other similar acts by defendant are relevant to establish some matter in issue (not including defendant’s general disposition to commit crime), proof of such other acts is admissible — whether they involve the same or other children, and whether they occur prior to or contemporaneous with the offense for which defendant is standing trial.

Thus it is that where a defendant is charged with the commission of an offense against one child, evidence of the commission by defendant of the same or similar acts against other children, prior to or contemporaneous with (or, on occasion, subsequent to), the offense in question is held to be properly admissible. Illustrative are cases involving physical mistreatment. Williams v. People, 114 Colo. 207, 158 P. 2d 447 (Sup. Ct. 1945); State v. Sanchez, 94 Idaho 125, 483 P. 2d 173 (Sup. Ct. 1971); State v. Bradford, 259 La. 381, 250 So. 2d 375 (Sup. Ct. 1971); Commonwealth v. Boykin, 450 Pa. 25, 298 A. 2d 258 (Sup. Ct. 1972); sexual offenses, State v. Wilson, 320 S. W. 2d 525 (Mo. Sup. Ct. 1959); State v. Sinnott, 24 N. J. 408 (1957); State v. Sims, 4 Wash. App. 188, 480 P. 2d 228 (Ct. App. 1971); Hendrickson v. State, 61 Wis. 2d 275, 212 N. W. 2d 481 (Sup. Ct. 1973).

Likewise, such evidence is admitted where it involves the same or similar acts committed upon or against the same child or children — physical mistreatment, People v. Brommel, 56 Cal. 2d 629, 15 Cal. Rptr. 909, 364 P. 2d 845 (Sup. Ct. 1961); Fabian v. Slate, 235 Md. 306, 201 A. 2d 511 (Ct. App. 1964), cert. den. 379 U. S. 869, 85 S. Ct. 135, 13 L. Ed. 2d 72 (1964); Commonwealth v. Cutler, 356 Mass. 245, 249 N. E. 2d 632 (Sup. Ct. 1969); sexual offenses, State v. Finley, 108 Ariz. 420, 501 P. 2d 4 (Sup. Ct. 1972); contributing to delinquency, State v. Holleman, 225 Or. 7, 357 P. 2d 264 (Sup. Ct. 1960); furnishing alcoholic beverages, Schnee v. State, 254 Ind. 661, 262 N. E. 2d 186 (Sup. Ct. 1970).

In short, there is nothing whatever in the ease presently before the court, factually or legally, that would justify the exclusion of the evidence regarding the physical condition of the twin of the deceased child. Compare State v. Mulero, 51 N. J. 224 (1968). And, no limiting instruction having been sought, none was required. See, e. g., People v. Kelly, 386 Mich. 330, 192 N. W. 2d 494 (Sup. Ct. 1971); People v. Harper, 39 Mich. App. 134, 197 N. W. 2d 338, 340-341 (App. Ct. 1972); 1 Wigmore on Evidence (3 ed. 1940), § 13 at 301; cf., Evid. R. 6.

So far as concerns the testimony of Dr. Pietrucha, the challenged portion hardly may be said to have been “clearly capable of producing an unjust result” when considered in the context of the offenses with which defendant was charged (child neglect and manslaughter) and in the light of the supporting evidence. R. 2:10-2. Moreover, even making the dubious assumption that the testimony was prejudicial, any prejudice could have been readily cured by appropriate instruction by the court at that point in the trial. Counsel for defendant, however, declined the offer of the trial judge to give such curative instruction.

For these reasons I would reverse the order granting a new trial, reinstate and affirm the judgment of conviction for manslaughter, and vacate the judgment of conviction for child neglect as a lesser included offense of manslaughter. State v. Sims, 65 N. J. 359 (1974).


source: Caselaw Access Project

author: Pjsk Oueiait.

license: Public Domain

text:
    JOHN J. KNOBLE AND SERGIO INTRONA, APPELLANTS, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided December 30, 1974.

      Before Judges Lora, Handler and Tarleton.

      Mr. John P. GroaJce argued the cause for appellants (Messrs. Lum, Biunno and Tomplcins, attorneys; Mr. Joseph B. McMahon of counsel).

      Mr. Charles J. Harrington, Jr. argued the cause for respondent (Messrs. Irving Malchman and Richard, P. Cohen on the brief).
   Pjsk Oueiait.

These are appeals from orders of the Waterfront Commission revoking and denying appellants’ licenses as port watchmen (security officer and pier guard). The effective dates of these orders have been stayed by the commission pending disposition of these appeals.

John J. Knoble was a day supervisor, Sergio Introna a night supervisor and Richard H. Roed (not involved in these appeals) a pier guard for McRoberts Protective Agency, Inc., at piers A, B and C in Hoboken, New Jersey. Roed, who was Knoble’s son-in-law and had a full-time day job at Electric Service Repair Center in Hawthorne (40 minutes by car from the piers) worked the 4 p.m. to midnight shift at piers A, B and C as a pier guard. Knoble made up the payroll time sheets for McRoberts in draft form and gave them to Introna who prepared the time sheets in final form.

A Commission investigation disclosed that between June 28, 1971 and October 16, 1971, Roed was absent from his duties on the piers for a total of 136 hours but was paid $444.50 for this work he did not actually perform. The schedule prepared to show this discrepancy was based upon Roed’s time cards at Electric Service Repair, the logbook of the Commission in which each port watchman is required to sign his times in and out, and the payroll time sheets of McRoberts that were prepared by Knoble and Introna.

Knoble and Introna were charged with falsely recording Roed’s working at times when he was not physically present. This factual background was not disputed by appellants. Based upon these facts the Commission concluded Knoble and Introna had misappropriated property by means of false and fraudulent misrepresentations and pretenses to their employer, an offense under N. J. S. A. 32:23-93, and had demonstrated a lack of good character and integrity which was cause to revoke or suspend their licenses under N. J. S. A. 32:23-41.

Defendants contend that the conduct in question does not demonstrate a lack of good character and integrity within the meaning of the Waterfront Commission Act; that N. J. S. A. 32:23-93(2) (misappropriation of any other person’s property) does not encompass the conduct in question, and that the decision to revoke and deny their licenses was unreasonable, arbitrary and capricious.

It is defendants’ position that the “good character and integrity” provisions of the act were designed only to bar from waterfront employment gangsters, racketeers, hoodlums and ex-convicts who carried on extortion, pilferage, loansharking, gambling, violent assaults and bombings, as well as persons who have been convicted of crime, are notorious hoodlums; have criminal records or perhaps, have been indicted for serious crime. They argue that neither the act nor its surroundings or objectives suggest that the “good character and integrity provisions” were intended for use as the basis of severe disciplinary measures against waterfront employees for conduct violative of the employment re-, lation, but not specifically proscribed by the act nor the subject of any arrest, indictment or conviction. EurtheTmore, they assert they do not fit the description of the undesirables to whom the act was meant to deny employment.

N. J. S. A. 32:23-41 provides no license for a port watchman shall be granted “unless the Commission shall be satisfied that the applicant possesses good character and integrity.” N. J. S. A. 32:23-44(a) permits revocation or suspension of a license for “conviction of a crime or other cause which would permit or require his disqualification from receiving a license upon original application.”

As respondent points out in its brief, the New York State Crime Commission in its Fourth Report, Leg. Doc. No. 70 (1953), which led to the enactment of the Waterfront Commission Act, extensively discussed the regulating of port watchmen. They found the degree of pilferage and other lawlessness on the docks required that, in the public interest, the independence and caliber of the men employed as port watchmen should be substantially improved and that the same considerations which motivated the licensing of private detectives and investigators mandated the licensing of port watchmen. It was also suggested that, among other requirements, no person be so licensed who fails to meet reasonable requirements as to intelligence, physical condition, age and moral character.

It is clear the policy behind the statutory scheme regulating activities on the New York waterfront is applicable to security officers and port watchmen. Consequently, an offense or conduct demonstrating lack of good character or integrity may, in proper circumstances, be the basis for disciplinary proceedings, and the same standards that control the granting of the application for the license apply with equal force in a proceeding for the revocation of the license “for cause.” Cf. In re Berardi, 23 N. J. 485, 490-491 (1957).

The statutory standards of “good character and integrity” have been applied on many occasions by the Waterfront Commission to misconduct similar to that proved in this case, i. e.j payroll padding or overbilling. See, e. g., C. C. Lumber Co., Inc. v. Waterfront Comm’n, 31 N. Y. 2d 350, 339 N. Y. S. 2d 937, 292 N. E. 2d 1 (Ct. App. 1972); Di Bella v. Waterfront Comm’n of New York Harbor, 39 A. D. 2d 653, 331 N. Y. S. 2d 726 (App. Div. 1973); Continental Terminal Operating Corp. v. Thompson, 16 A. D. 2d 952, 229 N. Y. S. 2d 981 (App. Div. 1962); McNamara v. Waterfront Comm’n of New York Harbor, 11 A. D. 2d 1017, 206 N. Y. S. 2d 479 (App. Div. 1960).

In view of all of the foregoing it is our conclusion that appellants, by their conduct, demonstrated a lack of good character and integrity within the comprehension of the Waterfront Act and thereby subjected themselves to these disciplinary proceedings.

Having concluded that appellants’ conduct demonstrated a lack of good chaarcter and integrity within the meaning of the Waterfront Commission Act, we deem it unnecessary to determine whether said conduct constituted a misappropriation of property in contravention of N. J. S. A. 32:23-93(2).

Einally, appellants contend the Commission’s decision to revoke and deny their licenses was so harsh as to be unreasonable, arbitrary and capricious.

Our review of the record reveals that Knoble, who was 55 years old at the time of the hearing, is married, has three grown children and has never been convicted of a crime. He has been employed by McRoberts and licensed by the Commission for 16 years. His only other disciplinary action occurred about ten years ago and involved his not wearing a hat or badge on the job.

Sergio Introna, who was then 35 years of age, is married and has three small children. He, too, has worked for 16 years for McRoberts and been licensed by the Commission during that time. His previous violations consisted of driving a car on a pier, contrary to regulations, and calling on his men to bring some cardboard boxes to his home to cover up windows blown out by an explosion. He has never been convicted of a crime.

It is noted there was no evidence that the appellants had benefitted financially or otherwise from their actions. Rather, they sought only to help Knoble’s young son-in-law Roed make some extra money.

While we are mindful that the area is a sensitive one, that the offense was serious and willful, and demonstrated a lack of good character and integrity, it is our conviction that in the light of all of the circumstances of the case, revocation and denial of their licenses was unduly severe and, therefore, arbitrary and unreasonable. The records of these appellants over a 16-year period are otherwise unblemished except for the minor transgression of Commission regulations by Introna set forth above. There is no suggestion that there would be any further offenses if the respective licensees were punished severely short of license revocation or denial.

We are satisfied this is an appropriate ease for judicial imposition of a lesser penalty. Mayflower Securities v. Bureau of Securities, 64 N. J. 85, 93 (1973). Accordingly, the penalties of revocation and denial of license are vacated and appellants’ licenses are ordered to be suspended for a period of one year from the date of this opinion.


author: Per Curiam.

text:
    EDWARD SUSKI, JR., PLAINTIFF-APPELLANT, v. MAYOR AND COMMISSIONERS OF THE BOROUGH OF BEACH HAVEN, ROBERT SHOMO, BUILDING INSPECTOR OF BEACH HAVEN, ROBERT D. SPIEGLE AND DORIS LORRAINE SPIEGLE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 20, 1975
    Decided January 30, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. Edward Sushi, Jr., argued the cause for appellant (Messrs. Witinshi, Sushi, KiTle & Scott, attorneys).

      Mr. Franhlin Berry, Jr., argued the cause for respondents Mayor and Commissioners of the Borough of Beach Haven and Bobert Shomo, Building Inspector (Messrs. Berry, Summerill, Rinch & Berry, attorneys).

      Mr. Robert E. Dietz argued the cause for respondents Bobert D. Spiegle and Doris Lorraine Spiegle (Messrs. Dietz, Allen, Radclife & Sweeney, attorneys).
   Per Curiam.

Plaintiff filed this prerogative writ action against defendants Mayor and Commissioners of the Borough of Beach Haven (borough), Beach Haven Building Inspector Robert Shomo and Robert D. Spiegle and Doris Lorraine Spiegle (Spiegles) to (1) restrain construction by the Spiegles of a dwelling in violation of the Borough’s “dune ordinance”; (2) invalidate a building permit issued for said dwelling; (3) declare void and ultra, vires an agreement between the borough and the Spiegles which led to the issuance of the permit, and (4) compel the borough to institute condemnation proceedings. At the conclusion of trial judgment was entered in favor of defendants, and plaintiff appeals.

The current litigation is an outgrowth of two previous actions instituted by the Spiegles against the borough, both reported. Spiegle v. Beach Haven, 46 N. J. 479 (1966) cert. den. 385 U. S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966) and Spiegle v. Beach Haven, 116 N. J. Super. 148 (App. Div. 1971). A review of the opinions in those cases is essential to a proper understanding of the issues involved here.

Plaintiff is the owner of a tract of land in Beach Haven described as Block 42, Lots 10, 11 and half of Lot 12. The Spiegles own the other half of Lot 12, as well as Lots 13 and 14 of the same Block. Both' are oceanfront tracts 100’ x 100' in area. Plaintiff’s tract contains a dwelling. The Spiegles’ tract is undeveloped.

After a severe storm in March 1962 the borough enacted ordinances regulating construction on the oceanfront and establishing a building line beyond which no structures other than fencing, boardwalks, steps, pavilions, small platforms and bulkheads could be erected. The purpose of the ordinance, titled “Borough of Beach Haven Beach Protection Ordinance” and commonly known as the “dime ordinance,” was to protect the dunes from erosion which, in turn, would protect the borough from high tides and flooding. The building line thus created by the ordinance runs through the land of both plaintiff and Spiegles. The Spiegles instituted an action against the borough to have this and another similar ordinance set aside as unconstitutional, contending that the ordinance, as applied to them, constituted a taking of their property for public purposes without just compensation.

The Supreme Court in that first action upheld the constitutionality of the ordinance. However, since the Spiegles had not adduced proof of any economic use to which the property could be put, the court in ruling against them did so “without prejudice, however, to any further proceedings based upon a claim and showing of an actual taking of a beneficial use.” 46 N. J. at 494. The Spiegles then instituted another action against the borough, claiming the dune ordinance deprived them of the beneficial use of their property without just compensation. We reversed a judgment adverse to the Spiegles with respect to the tracts of land here involved. We held, in the exercise of our original jurisdiction, that the Spiegles had a sincere intention to use the property for the erection of a one-family residence on their land; that this land straddled the dune area; that the land was suitable for building a residence, and that the dune ordinance, insofar as it prohibited construction east of the building line, represented a taking of property for which the Spiegles should be compensated. Defendant borough was “ordered to institute eminent domain proceedings against [the Spiegles] as to Lots 13 and 14 and one-half of Lot 12, Block 42, on the tax map.” 116 N. J. Super, at 170. This order is dated August 11, 1971.

There is nothing in the record to indicate that condemnation proceedings were actually instituted. However, it is clear that the borough entered into negotiations with the Spiegles which culminated in an agreement dated “the 36th [sic] day of June 1973,” by the relevant terms of which:

(1) The Spiegles agreed to lease to the borough certain beachfront property owned by them for $1 a year for 19 years;

(2) the parties agreed to apply to the Appellate Division for modification of the judgment requiring condemnation;

(3) the borough agreed to issue a building permit for construction of a structure on the Spiegles’ property, and

(4) the borough agreed to discontinue condemnation proceedings “presently outstanding.”

On August 10, 1973 a consent “order modifying judgment”, bearing both Appellate Division and Law Division docket numbers, was entered by a Law Division judge. This order recited that the “Appellate Division of the Superior Court did not retain continuing jurisdiction”; that an agreement had been entered into between the Spiegles and the borough, and that paragraph 3 of said agreement alters the “judgment of the Appellate Division of the Superior Court.” It was “ordered that the judgment and order of the Appellate Division of the Superior Court be and hereby is modified to the extent set forth in paragraph 3 of the attached agreement * * A building permit was thereafter issued to the Spiegles for construction of a residence on the tract in question. This led to the filing of the instant action by plaintiff herein.

At the conclusion of the trial of the prerogative writ action the judge, in a letter opinion, held:

(1) the opinion of this court reported at 116 N. J. Super. 148 meant that the borough could either permit construction on the lot or condemn;

(2) the parties, by entering into the consent order of August 10, 1973, clarified “their understanding of the Court’s edict”;

(3) the construction of a home on the Spiegles’ tract did not in any way affect plaintiff’s beneficial or economic interests, and

(4) to require the municipality to condemn “in all such instances can and will cast upon certain municipalities certain financial burdens which they will find troublesome to bear.”

Judgment for defendants followed, as did this appeal.

The parties concede that the pertinent factual situation has not changed since that which existed at the time of the institution of the proceedings reported in 46 N. J. 479. Nor has the dune ordinance been amended, supplemented or repealed in any manner pertinent hereto since that time.

The trial judge misconceived the holding of our former opinion.

We did not give the borough the option of either condemning or of issuing a permit to build. Nor did the parties to those proceedings believe they had any such option, for their agreement provides for an application to be made to this court for modification.

The effect of the agreement is to attempt to alter or amend the borough’s dune ordinance, permitting construction east of the building line where the ordinance prohibits such construction. The ordinance contains an exclusive list of exceptions to the prohibition against building east of the building line, and there is no provision for the borough to create additional exceptions by agreement with individual landowners.

An ordinance cannot be amended, repealed or suspended by any act of a governing body of less dignity than that which created the ordinance in the first place. V. F. Zahodiakin, etc. v. Summit Zoning Bd. of Adj., 8 N. J. 386 (1952); 6 McQuillin, Municipal Corporations (3 ed. 1969), § 21.04 at 199.

The agreement between the Spiegles and the borough on its face is illegal, void and ultra vires. It is an attempt to do by agreement what can only be done by following the appropriate statutory procedure. Midtown Properties, Inc. v. Madison Tp., 68 N. J. Super. 197 (Law Div. 1961), aff’d o. b. 78 N. J. Super. 471 (App. Div. 1963). The fact that the parties entered into a consent judgment which purported to approve the agreement does not make it a valid agreement. Edelstein v. Asbury Park, 51 N. J. Super. 368, 369 (App. Div. 1958). “If the contract is illegal and void, having it incorporated in a consent judgment will not breathe legal life into it.” Midtown Properties, Inc. v. Madison Tp., 68 N. J. Super, supra at 206.

If the borough has concluded that the dune ordinance unnecessarily prohibits building on the Spiegle tract, the appropriate remedy is to amend the ordinance. The borough cannot, by private agreement, circumvent the provisions of a valid ordinance.

The agreement herein being illegal and ultra vires, it follows that plaintiff was entitled to a judgment (1) restraining construction by the Spiegles of a building in violation of the dune ordinance; (2) invalidating the building permit issued therefor, and (3) declaring the agreement between the borough and the Spiegles void and ultra vires.

The judgment entered below is accordingly reversed and the matter is remanded for the entry of a judgment consistent herewith.

      Minutes of the meeting of the board of commissioners, held August 14, 1972, disclose that the board authorized the institution of condemnation proceedings to acquire the Spiegles’ property. At the July 1973 meeting the board resolved to ratify and confirm the agreement between the borough and the Spiegles and rescinded its earlier resolution authorizing condemnation proceedings. The record is silent as to the actual institution of any condemnation proceedings.

      Paragraph 3 of the agreement provides: “Both parties hereto will make application to the New Jersey Superior Court, Appellate Division requesting modification of the Judgment heretofore entered requiring the Borough of Beach Haven to condemn the southerly % of Lot 12, Lot 13 and Lot 14, Block 42. Inasmuch as the Court determined as a matter of fact that said parcel constituted a build-able lot, the Borough will issue a building permit for the construction of a structure thereon in accordance with plans previously submitted by Robert D. Spiegle and Doris Lorraine Spiegle, his wife, providing however, that said structure shall comply to all existing zoning and/or building code requirements and will have a period up to three years from the date of this agreement to apply for and get the permit.”


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ROBERT FEARICK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 14, 1975
    Decided January 31, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. B. Benjamin Cohen, Assistant Prosecutor, argued the cause for appellant (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Ms. Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

      Mr. William T. McElroy, argued the cause for respondent (Messrs. McElroy, Connell, Foley & Geiser, attorneys).
   Per Curiam.

Defendant pleaded guilty to a violation of N. J. S. A. 39:3-40 in that he operated a motor vehicle while his driver’s license was suspended. The municipal court judge sentenced the defendant to 45 days in the county correctional center and imposed a $200 fine plus costs.

The parties have stipulated that prior to the time of his arrest defendant’s license had been indefinitely suspended because he was suffering from a convulsive disorder as the result of a head injury; that he was driving a motor vehicle which was struck by another vehicle driven in the opposite direction. It was further stipulated that injuries resulted to several people and that the accident was not the fault of or caused by defendant.

On appeal the County Court imposed the same fine of $200 plus costs but vacated the custodial sentence.

The State appeals, contending that the imposition of a custodial sentence is mandatory under the statute and that to the extent that the judgment of the County Court omits a custodial term it is illegal.

The statute, N. J. S. A. 39:3-40, in its pertinent parts provides as follows:

No parson * * * whose driver’s license or reciprocity privilege has been suspended * * * shall personally operate a motor vehicle during the period of *' * * suspension * * *.
A person violating any provision of this section shall be fined not less than $200.00 nor more than $1000.00, or be imprisoned in the county jail for not more than 6 months, or both, provided, that if while operating a vehicle in violation of this section, such person is involved in an accident resulting in personal injury, the punishment shall include imprisonment for not less than 45 days.

Defendant contends that the Legislature did not intend that a custodial sentence should be imposed where the operator whose license has been suspended did not cause the accident in which persons were injured. It is further contended that if the statute is construed to apply to a situation where the operator is not at fault, it is unconstitutional because it provides for cruel and unusual punishment and denies due process and equal protection of the laws.

We find no merit in any of defendant’s contentions. In construing statutes we are required to accord statutory language its generally accepted meaning. N. J. S. A. 1:1—1. We are not permitted to resort to a forced construction for the purpose of limiting the plain meaning of the statutory language. Markey v. Bayonne, 24 N. J. Super. 105, 114 (App. Div. 1952). We have no hesitation in holding that the phrase, “involved in an accident,” was not intended to be limited to those situations in which the driver caused the accident. See Lykens v. American Cast Iron Pipe Co., 295 F. Supp. 895, 896 (D. C. W. D. Pa. 1969). Cf. Butter v. Jersey Coast News Co., 109 N. J. L. 255, 258 (E. & A. 1932). We perceive no intention to limit such all-encompassing language to those who were at fault.

The statute is designed to deter persons whose driver’s licenses have been suspended or revoked from driving upon the public highways of the State. Protection of the public is the paramount consideration. It is not accurate to say that the Legislature has chosen to inflict punishment upon blameless individuals. Bather, the Legislature has chosen to recognize the occurrence of an accident in which someone is injured as an aggravating circumstance which justifies the imposition of a greater sanction. State v. Pickens, 124 N. J. Super. 193, 196-197 (App. Div. 1973), certif. den. 63 N. J. 581 (1973).

The imposition of a more severe penalty where aggravated circumstances exist does not offend standards of constitutional law. For example, statutes providing for additional punishment for one who commits a crime while armed are not unconstitutional. State v. Wyckoff, 27 N. J. Super. 322 (App. Div. 1953). Lor do statutes which make the age of the victim in a carnal abuse case determinative of the range of permissible punishment, regardless of defendant’s actual knowledge, offend constitutional standards. State v. Moore, 105 N. J. Super. 567 (App. Div. 1969), certif. den. 54 N. J. 502 (1969).

Having in mind the legislative goal of protection of the public from the hazard of unlicensed drivers on the highways, it cannot be said that equal protection or due process is denied by the statute; it does apply equally to all those who come within the classification. State v. Smith, 58 N. J. 202, 206-207 (1971); State v. McCourt, 131 N. J. Super. 283 (App. Div. 1974). It is not unreasonable to conclude that the punishment of all persons who are involved in accidents resulting in personal injuries while driving at a time when their licenses are suspended or revoked will have a tendency to deter persons whose licenses are suspended or revoked from driving. Where there is such a rational relationship between the legislative goal and the means employed to achieve that goal, there is no denial of due process or equal protection. Jamouneau v. Harner, 16 N. J. 500, 518 (1954), cert. den. 349 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955).

We do not agree with, defendant’s contention that the mandatory custodial sanction constitutes cruel and unusual punishment. The nature of the punishment does not shock the general conscience nor does it violate principles of fundamental fairness. Whether we of the judiciary approve of the sanction selected by the Legislature is irrelevant. We cannot in any event say that the penalty is grossly disproportionate to the offense. Under those circumstances we see no merit to defendant’s contention. State v. Hampton, 61 N. J. 250, 273-274 (1972).

The court below was not at liberty to ignore the legislative command that a custodial sentence be imposed and was without power to suspend its imposition or execution. State v. Johnson, 42 N. J. 146, 174 (1964). The sentence of the County Court was thus illegal insofar as it omitted the mandatory custodial term. State v. Sheppard, 125 N. J. Super. 332 (App. Div. 1973), certif. den. 64 N. J. 318 (1973). The judgment of conviction is therefor modified to include the direction that defendant be confined for 45 days in the Essex County Correction Center. As modified, the judgment of conviction is affirmed.


text:
    DONALD F. YOUNG, PLAINTIFF-RESPONDENT, v. CITY OF PATERSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 9, 1974
    Decided February 4, 1975.

      Before Judges Lora, Handler and Tarleton.

      Mr. Ronald 8. Fava attorney for appellant (Mr. Salvatore L. Borrelli on the brief).

      Messrs. Noonan and Flynn attorneys for respondent (Mr. Robert J. Be Groot, of counsel and on the brief).
   Per Curiam.

City of Paterson appeals from an order of the Law Division suppressing all state grand jury testimony and evidence and prohibiting its use by the City of Paterson in any departmental hearings, and directing the city to provide and proceed with a full plenary hearing under N. J. S. A. 40A:14-149 within ten days. The order of the Law Division has been stayed pending appeal.

On May 7, 1973 respondent Donald F. Young, a police lieutenant in Paterson, was informed by the New Jersey State Police that he was the target of an investigation concerning police corruption in the City of Paterson. He was subpoenaed to appear before the state grand jury on May 11, 1973. On that day Young refused to testify, invoking the Fifth Amendment. The trial judge’s findings recite that the Attorney General offered Young immunity under N. J. S. A. 2A:81-17.3, an immunity “beyond the scope of public officials immunity.” Young accepted on advice of counsel and agreed to cooperate with the state investigation.

In his oral opinion the trial judge further stated that Young claimed the Deputy Attorney General indicated he would not be indicted nor named in the indictment, nor would his testimony be given to the City of Paterson to be used against him in any way.

Young was again subpoenaed to appear before the state grand jury on May 30, 1973. He refused to testify, invoking his constitutional rights, and was directed to testify and granted immunity by the assignment judge of Mercer County pursuant to N. J. S. A. 2A :81-17.3. Young refused to comply and thereupon the court directed his incarceration for contempt. On June 4, 1973 he was suspended from the police force. Thereafter, Young appeared before the state grand jury on June 21, 1973 and testified. At a meeting of the Paterson Police and Eire Board on that date, Young was restored to full duty.

The state grand jury returned an indictment against several police officers and named Young as a nonindicted co-conspirator. On June 29, 1973 Young was again suspended by the chief of police, and he demanded a hearing on the charges which was later adjourned over his objections. The trial judge’s stated chronology of events indicates that the City’s Police and Eire Board subpoenaed the Deputy Attorney General who had handled the matter before the state grand jury, but he declined to release any of the grand jury information until he was so ordered by a court of competent jurisdiction.

The city thereupon sought an order from the Mercer County assignment judge directing the release of Young’s grand jury testimony. That court ordered the Attorney General to provide the City of Paterson with all state grand jurjr testimony and minutes and all documents and statements relative to the investigation, indictment or prosecution and granting of immunity of Young, but it also ordered that Young be permitted to file with the court of appropriate jurisdiction a motion to suppress the admission of such materials. There was no indication as to the basis upon which such suppression might be sought.

Young’s motion to suppress was granted by the Law Division. According to the opinion of the trial judge, he entertained the view that the immunity which Young had received was pursuant to N. J. S. A. 2A:81-17.3 and that it was broad enough to bar a use of any testimony or evidence derived directly or indirectly from the testimony or evidence produced by a subject person before a grand jury, in a proceeding such as involved in departmental hearings pursuant to N. J. S. A. 40A :14-149.

In his recital of the procedural history as outlined above, the trial judge states as a fact the offer of the Attorney General to grant immunity “beyond the scope of public officials immunity,” and that the State “indicated” that Young’s testimony would not be given to the City of Paterson “to be used against him in any way.” However, the record, such as it is •—• no transcript having been made of any of the conversations leading up to and including the granting of immunity ■—■ furnishes no basis for a finding of fact that the State, through the office of the Attorney General, had indeed given or promised immunity of such breadth in exchange for Young’s testimony before the Grand Jury.

In addition to the foregoing, the trial judge refers to the actual order signed by the Mercer County assignment judge granting Young immunity. That order merely recites, in the statutory language of N. J. S. A. 2A-.81-17.3, that the testimony or evidence produced by Young “shall not be used against the said Donald Young in any proceeding or prosecution for a crime or offense concerning which the said Donald Young gave answers or produced evidence pursuant to the order of this court.” On its face the order does not purport to grant Young an immunity of the breadth and extent urged by him in response to the city’s appeal.

As we understand the issue, the City of Paterson argues essentially that a grant of immunity under N. J. S. A. 2A: 81—17.3 is restricted to process, actions or proceedings which are criminal in nature but does not preclude the use of information obtained thereunder for the administrative removal of public employees, especially in light of N. J. S. A. 2A:81-17.2a1 to 17.2a5. It is asserted by the city that a grant of immunity under N. J. S. A. 2A:81-17.3 does not permit a public official to have his grand jury testimony concernin ghis conduct in office suppressed or quashed in a departmental hearing.

The critical language of N. J. S. A. 2A:81-17.3, repeated verbatim in the order granting immunity, states:

* * * After complying and if but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, such testimony or evidence, or any information directly or indirectly derived from such testimony or evidence, may not be used against the person in any proceeding or prosecution for a crime or offense concerning which he gave answer or produced evidence under court order.

A fair aud realistic reading of the statute indicates that the term “proceeding” is modified or qualified by the terms “crime or offense,” and that these adjectival terms apply to the same extent to the term “prosecution.” Though juxtaposed with the term “prosecution,” the use of the term “proceeding” would not be mere surplusage. There are proceedings of a criminal nature which are not technically prosecutions and for which a grant of immunity pursuant to statute would have significance.

Moreover, if the Legislature intended that the use of the term “proceeding” would encompass civil proceedings, as argued by Young, then surely this would have been explicitly spelled out. For example, the Model State Witness Immunity Act, after which the statute was patterned, does not employ the phrase in question but rather provides, “* * * that person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order, he gave answer or produced evidence.” And see, e. g., People v. Sharp, 107 N. Y. 427, 14 N. E. 319 (Ct. App. 1887), which involved consideration of the provisions of § 79 of the Penal Code of New York, Title 8, chapter 1, in regard to bribery and corruption, and which provided that testimony “so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying.”

Departmental disciplinary hearings are civil in nature. In our view N. J. S. A. 2A:81-17.3 contemplates that a person given immunity pursuant thereto would not thereby be immunized in connection with a civil departmental hearing pertaining to or involving the offense which was the subject matter of his grand jury testimony.

Young also argues that the City of Paterson should be estopped from attempting to utilize the testimony or evidence given by him to the state grand jury against himself in the disciplinary hearing before the Board of Eire and Police Commissioners because of the actions of the Attorney General. He argues he was first offered immunity under N. J. S. A. 2A:81-17.2a2, but when he flatly refused, the Attorney General elected to give him immunity beyond that prescribed in the public official statute and offered him immunity under the broader N. J. S. A. 2A:81-17.3. He further states it was agreed that he would not be named in the indictment, would be permitted within a reasonable period of time to resign as a Paterson police officer, and that the Attorney General would do what he could to aid him in the vesting of his pension rights. In this connection, it should be noted that Young did not volunteer his testimony under N. J. S. A. 2A:81-17.3. It was only after an order issued and his citation and incarceration for contempt that he finally testified before the grand jury.

His argument takes the tack that in accordance with the guidelines for equitable estoppel as laid down in Feldman v. Urban Commercial, Inc., 70 N. J. Super. 463, 474-475 (Ch. Div. 1961), the City of Paterson is equitably estopped in that (1) representations were made by the Attorney General as to the scope of the immunity and as to the nonusage of any testimony he might give; (2) the facts regarding the immunity were known to the Attorney General’s office and such knowledge is imputed to the city since it is a lesser subdivision deriving its power from’the State; (3) the truth of the matter was not known to him, that is, the full scope of how his statements would be used against him, (4) he was expected to rely thereon; (5) he reasonably relied on these statements to his detriment, and (6) he would not have so testified and waived his constitutional right to remain silent if he had known such statements could be used against him in a disciplinary hearing.

We have already pointed out the absence of a record foundation for the findings that the Attorney General sought and granted an immunity from civil as well as criminal proceedings. We are, moreover, disinclined to conclude that the asserted representations or promises attributed to the Attorney General were such as to cause Young to testify since his refusal to do so continued even after they were allegedly made and abated only with his incarceration for contempt.

We are of the view that the doctrine of estoppel may not be invoked in these circumstances. The doctrine of estoppel should not be used as a shield to insulate a public officer from the consequences of his testimony before a grand jury, at least for its use in a civil proceeding before his public employer conducted for the purpose of determining whether or not he has violated his trust and his fitness to continue in office. Cf. State v. Abbott, 64 N. J. Super. 191 (App. Div. 1960), rev’d on other grounds 36 N. J. 63 (1961), where it was held:

[T]he application of estoppel against the State is particularly inappropriate in areas such as criminal prosecution, where the welfare and safety of the community are the paramount considerations, [at 202]

And see, e. g., Thorton v. Ridgewood, 17 N. J. 499, 511 (1955); Universal Holding Co. v. North Bergen Tp., 55 N. J. Super. 103, 111 (App. Div. 1959) cited therein.

Reversed.

      It is noted that respondent Young does not challenge the position taken by the City of Paterson that generally grand jury testimony given by a public officer may be disclosed to an investigating body if “justice so requires.” Cf. In re 15th Essex County Grnad Jury, 111 N. J. Sniper. 564, 568 (App. Div. 1970). Accordingly, in view of the manner in which the issues on appeal are presented to us, we do not reach nor do we pass on the question of such disclosure in a context outside of the so-called immunity statutes here involved.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN W. BROWN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 14, 1975
    Decided January 27, 1975.

      Before Judges Halpern, Crahay and Ackerman.

      Mr. Stanley 0. Van Ness, Public Defender of Hew Jer- ' sey, attorney for appellant (Mr. J ohn Edward 8tierli, designated counsel, of counsel and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. David L. Bhoads, Assistant Prosecutor, of counsel) .
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Defendant was convicted by a jury of the unlawful possession of heroin and cocaine, in violation of N. J. S. A. 24:21-20. He was sentenced to two concurrent State Prison terms of two to five years; the sentences were suspended and he was placed on probation for a period of five years and fined $2,500. He appeals from the judgments of conviction.

The first four points raised on appeal in defendant’s brief deal with the trial judge’s refusal to grant his motion to suppress the narcotics evidence seized at the time of his arrest, and will he dealt with together. The State’s proofs on the motion, briefly stated, were that as the result of a tip from a reliable informer that certain described persons were selling narcotics, the police went to the parking lot of the Newark Holiday Inn. They observed the car and person described to them by the informer leave the parking lot and return within 45 minutes. Leon Smith was driving the car and defendant was seated beside him. As the police approached the car they observed defendant drop a tinfoil packet, which later was proven to contain cocaine, to the ground and attempt to kick it under the car as he exited therefrom. He was immediately arrested and given Miranda warnings. When defendant requested permission to go to his motel room for his jacket, the police accompanied him. On entering his room the police observed a transparent Excedrin bottle containing white powder in plain view on the vanity. The white powder was field tested and determined to be an opiate (heroin). On searching defendant they found $2,100 on his person.

Defendant testified on the motion to suppress that as Smith drove into the motel parking lot three policemen with drawn guns forced them out of the car. They were searched in the parking lot and then taken into Smith’s motel room. He denied ever possessing the tinfoil packet or seeing it near the cart. He denied being taken by the police to his motel room, or that he had any knowledge of the Excedrin bottle or the narcotic paraphernalia allegedly found by the police in the room. He denied being placed under arrest or warned of his constitutional (Miranda) rights.

The trial judge believed the police version of the incident and denied the motion to suppress. Based on the stated facts we are in accord with the trial judge’s determination. The information concerning defendant’s involvement with illegal narcotics was received from an informant whose information had proved accurate in the past. The follow-up investigation by the police confirmed the informant’s story. When defendant attempted to dispose of the tinfoil packet, which they had a right to suspect contained narcotics, they had ample probable cause to arrest defend ant without a warrant and conduct a reasonable search incidental to that arrest. Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. 2d 1879 (1949); State v. Kasabucki, 52 N. J. 110 (1968); State v. Contursi, 44 N. J. 422 (1965); State v. Hannah, 125 N. J. Super. 290 (App. Div. 1973); State v. Williams, 117 N. J. Super. 372 (App. Div. 1971), aff’d 59 N. J. 535 (1971). In addition, the trial judge would have been justified in concluding that defendant intended to abandon the tinfoil packet when he discarded it; hence no Fourth Amendment right would even be involved. See Abel v. United States, 362 U. S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960); State v, Bailey, 97 N. J. Super. 396 (App. Div. 1967).

There is no merit to defendant’s contention that the seizure of the Excedrin bottle in his room was unlawful. The police, for their personal safety and to prevent an escape, were justified in escorting defendant to his room to get his jacket when he requested it. The police, therefore, had a right to be in his room, and when they inadvertently saw the Excedrin bottle in plain view they had probable cause to suspect its contents and, therefore, lawfully confiscated it. Harris v. United States, 390 U. S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968) ; Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), reh. den. 404 U. S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); State v. Waltz, 61 N. J. 83, 87-88 (1972); State v. Griffin, 84 N. J. Super. 508, 518-519 (App. Div. 1964).

Defendant argues that prejudicial error occurred when the trial judge, on the motion to suppress, compelled him to proceed first with his- proofs. We find that procedurally the court erred but that it did not amount to prejudicial error warranting reversal. See State v. Gardner, 51 N. J. 444, 456 (1968); State v. Doto, 16 N. J. 397, 405 (1954); R. 1:7-5. It is well settled that in warrantless search cases the ultimate burden of proof rests upon the State to justify the propriety of its actions. State v. Contursi, supra; State v. King, 44 N. J. 346 (1965); State v. Gaudiosi, 97 N. J. Super. 565 (App. Div. 1967). In the instant case defendant and the State fully presented their evidence and we can observe no prejudicial harm resulting to defendant, nor does defendant point to any.

We suggest for future guidance of trial judges, when dealing with motions to suppress evidence seized as the result of a warrantless search, that all defendant need do is show the warrantless search. This then places the burden on the State to go forward with proof to justify its actions. Defendant would then, of course, be permitted to present his proofs — having in mind that the ultimate burden of proving probable cause for the search always remains with the State. See R. 3:5-7, which requires defendant to file a brief stating the facts and his supporting argument; State v. Allen, 113 N. J. Super. 245 (App. Div. 1970); Bicking v. Florida, 293 So. 2d 385-386 (Fla. D. Ct. of App. 1974). In support of the suggested procedure it is significant that Federal Bule 41, which is analogous to our R. 3 :5—7, was construed in 8A Moore, Federal Practice § 41.08(4), thusly:

The burden is on the moving party, i. e., the defendant, to prove that the search was invalid; however, if it is established that the search was made without a warrant, the burden shifts to the government to produce ‘clear and convincing evidence’ that the warrantless search meets constitutional requirements.

Defendant’s further contention that his conviction on two counts of unlawful possession was improper, in that they merged into one offense, is without merit. We are here confronted with separate acts of possession in two different places. Defendant possessed cocaine in the motel parking lot and heroin in his motel room. These facts make State v. Butler, 112 N. J. Super. 305 (App. Div. 1970), inapplicable.

Finally, contrary to defendant’s contentions raised as plain error, we find that the trial judge’s actions in compelling defendant to exhibit his forearms to the jury, and subsequently advising the jury of a possible overnight sequestration, were unimpeachable discretionary rulings. As to the former ruling, see Evid. R. 25(a). We find no error in either of them, let alone plain error. R. 2:10-2; State v. Macon, 57 N. J. 325 (1971).

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MIGUEL ANGEL BONET, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 7, 1975
    Decided January 27, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Philip A. Kahn, designated counsel, of counsel, and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. B. Benjamin Cohen, Assistant Prosecutor, of counsel).
   Per Curiam.

Defendant appeals from his conviction on two counts of an indictment for (a) possession of a dangerous knife (N. J. S. A. 2A:151-41) and (b) atrocious assault and battery (N. J. S. A. 2A:90-1) on one David Hong. He was acquitted on the third count of the indictment charging atrocious assault and battery on one John Hong. On appeal he contends that (1) the prosecutor’s remarks in summation at trial were improper and (2) defendant was denied effective assistance of counsel so as to warrant reversal of the convictions.

Both of defendant’s contentions are constructed upon the fact that when defendant took the stand in his own defense his counsel elicited testimony from him only as to the time of his arrest hut failed to ask him whether he denied guilt of the offenses charged. Specifically, defendant testified that he was apprehended between the hours of 4 p.m. and 5 p.m. on the day of the crime. The clear purpose of this testimony was to support an inference that he could not have been one •of the culprits identified by David Hong immediately after the incident which had occurred, according to the State’s testimony, at approximately 10 p.m. on the same day. The trial judge, out of the hearing of the jury, specifically called defense counsel’s attention to the fact that he had not asked his client whether he denied the offenses. Counsel responded that he preferred to leave the matter as it was. The defense then rested.

In his summation the prosecutor commented on defendant’s failure to deny his participation in the offenses charged. Defense counsel objected on the ground that it was improper for the prosecutor to refer to defendant’s failure to deny his guilt. The objection was overruled. Thus comes this appeal.

Defendant contends that, since his only testimony on direct examination related to the time of the arrest and not to his participation in the crimes, the prosecutor’s comment as to defendant’s failure to deny the offenses was beyond fair comment and violative of defendant’s Fifth Amendment rights. He argues that any cross-examination by the prosecutor (which was waived in this case) must be limited to the scope of the direct examination of defendant and that, by analogy, no adverse comment may be made as to defendant’s failure to deny any acts which were not actually covered in his direct examination.

The argument is fallacious. First, the scope of cross-examination of a defendant who testifies on his own behalf is not limited solely to matters brought out on his direct examination but may, in the trial court’s discretion, cover other relevant matters. State v. Siegler, 22 N. J. Super. 224, 228 (App. Div. 1952), aff’d 12 N. J. 520 (1953); State v. Grover, 104 N. J. L. 10, 12 (Sup. Ct. 1927). Second, where the accused takes the stand and voluntarily testifies in his own behalf he may not stop short in his testimony by omitting to explain incriminating circumstances already in evidence without subjecting his silence to the inference to be naturally drawn therefrom. State v. Fioravanti, 46 N. J. 109, cert. den. 384 U. S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440 (1966). In that case the court quoted with approval the following language from Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917) :

The accused, of all persons, had it within his power to meet, by his own account of the facts, the incriminating testimony of the girls. When he took the witness stand in his own behalf he voluntarily relinquished his privilege of silence, and ought not to be heard to speak alone of those things deemed to be for his interest, and be silent where he or his counsel regarded it for his interest to remain so, without the fair inference which would naturally spring from his speaking only of those things which would exculpate him and refraining to speak upon matters within his knowledge which might incriminate him. [242 U. S. at 494, 37 S. Ct. at 198].

And as more particularly stated in Fioravanti-.

[ A ] defendant who undertakes to answer part of the evidence against him is subject to comment as to factual thrusts he does not meet, even though he cannot be ordered on cross-examination to testify with respect to them. * * * [W]hen a defendant chooses to speak as to only a part of the direct proof against him, the inference becomes clearer that he is unable to dispute the balance. More importantly he may thereby gather an advantage that is false, for less than the whole truth may affirmatively mislead. 8 Wigmore, Evidence (McNaughton rev. 1961), § 2276(2), pp. 459-460; cf. State v. DeCola, 33 N. J. 335, 345 (1960). It would distort the truth-finding process to expect the jurors to weigh what the defendant chooses to reveal and to be oblivious of his silence as to the remainder.
Hence Caminetti and the other cited authorities hold that if a defendant does speak in part, his omission to speak as to other direct evidence may be found to be meaningful, and this, not because he “waived” a privilege in the sense that he intentionally incurred a known consequence, but rather because it is sensible and just to permit an inference that a man who reveals only part of what he knows with respect to the direct proof against him could not truthfully meet the rest. [46 N. J. at 117-119].

In United States ex rel. Fioravanti v. Yeager, 404 F. 2d 675, (3 Cir. 1968), cert. den. 396 U. S. 860, 90 S. Ct. 131, 24 L. Ed. 2d 112 (1969), the court of appeals for the Third Circuit agreed with our Supreme Court. It is true that the same court sitting en banc has since reversed the stand it took in Fioravanti. United States ex rel. Mitchell v. Pinto, 438 F. 2d 814 (3 Cir. 1971), cert. den. 402 U. S. 961, 91 S. Ct. 1622, 29 L. Ed. 2d 124 (1971). Noting that neither Mitchell nor Fioravanti actually took the stand but rather simply offered demonstrative evidence on their behalf, the en banc court held that the demonstrative evidence is not testimonial within the meaning of the Fifth Amendment and the furnishing thereof does not constitute a waiver of the privilege. But defendant here did not, as did Fioravanti, simply offer demonstrative evidence in his behalf. He actually took the stand and gave oral testimony. Such course of action thus comes within the holding of Cammeiti v. United States, as cited by our Supreme Court in Fioravanti. See also, Johnson v. United States, 318 U. S. 189, 63 S. Ct. 549, 87 L. Ed. 704 (1949).

Defendant further argues that his testimony as to the time of his arrest was as to a collateral issue and that a waiver of Fifth Amendment rights occurs only when a defendant testifies as to a fact concerning the crime itself. Such an exception has been accepted in a situation where defendant took the stand solely for the purpose of showing that a confession was not voluntarily given. Calloway v. Wainwright, 409 F. 2d 59 (5 Cir.), cert. den. 395 U. S. 909, 89 S. Ct. 1752, 23 L. Ed. 2d 222 (1969). But here defendant’s testimony was not collateral. In testifying that he was arrested five hours prior to the alleged incident defendant was effectively attempting to 'deny that he was a participant in the offenses. This was not by any means “collateral.”

There is no merit whatever to defendant’s contention that the prosecutor’s summation was not based upon a fact in evidence. It was clearly a comment on what defendant, having taken the stand, failed to assert, namely, his denial of participation.

As to defendant’s contention that the failure of his trial counsel to ask him to deny the offenses constituted ineffective assistance of counsel, it is apparent that defense counsel deliberately adopted the stratagem in the hope of aiding the defense. Mere improvident strategy, bad tactics or mistake do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice. United States v. Cariola, 211 F. Supp. 423, 427 (D. N. J. 1962), aff’d 323 F. 2d 180 (3 Cir. 1963); State v. Bentley, 46 N. J. Super. 193, 203 (App. Div. 1957). The proofs here fall far short of showing that this trial constituted a farce or mockery of justice. State v. Woodard, 102 N. J. Super 419, 429 (App. Div. 1968), certif. den. 53 N. J. 64 (1968), cert. den. 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1969); State v. Dennis, 43 N. J. 418, 428-429 (1964). Immediately after the incident and later at the trial David and John Hong clearly identified defendant as being at the scene of the offenses, and David further identified defendant as his assailant. The proofs amply supported the jury’s finding of defendant’s guilt on the first two counts of the indictment.

The convictions are affirmed.