text:
    STEVEN E. SABLOFF, AN INFANT BY HIS GUARDIAN AD LITEM HERBERT SABLOFF, AND HERBERT SABLOFF, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. YAMAHA MOTOR CO., LTD., YAMAHA INTERNATIONAL CORPORATION, A CORPORATION AND HARLEY-DAVIDSON OF ESSEX, A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1971
    Decided February 3, 1971.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. Leonard J. Felzenberg argued the cause for appellants (Messrs. Boshein, Kronisch d Felzenberg, attorneys).

      Mr. Daniel K. Van Dorn argued the cause for respondents Yamaha Motor Co., Ltd., and Yamaha International Corporation (Messrs. Gleeson, Hansen d Paniages, attorneys).

      Mr. Guy H. Haskins argued the cause for respondent Harley-Davidson of Essex (Messrs. Haskins, Robottom & Hack, attorneys).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

This is a products liability case involving a Yamaha motorcycle, in the operation of which the infant plaintiff was injured. The suit is against the manufacturer, the importer and the dealer which ultimately sold the cycle to plaintiff. Liability is asserted on the theories of negligence, strict liability in tort and breach of warranty. Plaintiff father joined in the action for his damages per quod.

At the close of all the proofs, on motion of defendants under R. 4:40-1, judgment was entered by the trial judge in favor of all defendants. On their appeal from that judgment, plaintiffs argue that (1) it was error to take the case from the jury, and (2) the trial court erred in excluding certain evidence.

I

In passing upon a defendant’s motion for judgment in his favor, made at the close of all the proofs under R. 4:40-1, the test to be applied by the trial judge is whether the evidence, together with the legitimate inferences therefrom, could sustain a judgment in favor of the plaintiff. If, accepting as true all the evidence which supports the position of the party opposing the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. Dotson v. Anastasia, 55 N. J. 2, 5 (1969).

So guided, we note that infant plaintiff Steven E. Sabloff purchased the subject motorcycle, an 80 C. C. Yamaha motorcycle, from defendant Harley-Davidson of Essex on Friday, August 13, 1965, two days before he became 18 years old. The cycle had been operated only 56 miles, purportedly, at the time of purchase, and Mr. Steele, the seller’s president, gave Steven, the purchaser, a “new bike”' warranty. Steven drove the motorcycle home that day, experiencing only a little stalling problem which quickly cleared up.

Steven had motorcycle experience prior to the purchase of this machine. In the summer of 1964 he learned how to ride and operate a motorcycle by using a friend’s Honda on farm property in Livingston, operating it on the farm about three days a month throughout a whole year and thereby becoming “able to handle the motorcycle pretty well.” About the end of July 1965 Steven purchased his own motorcycle, a Yamaha 55 C. C., and experienced no difficulty in operating it without any accident or trouble. But the need for routine servicing led him to defendant dealer’s shop and the purchase of the motorcycle in issue, the Yamaha 80 C. C. He had a “learner’s permit” at the time of this purchase.

On Saturday, the day after the purchase, plaintiff rode the motorcycle another 50 miles and had no trouble with it.

On the following Sunday evening plaintiff drove around the area, stopping at a friend’s house, at Livingston Center and at Livingston High School. At about 8:50 p.m., on this August 15, 1965 Sunday, plaintiff and Larry Bagoon, a licensed driver who was on his own motorcycle, rode out Memorial Park Drive and then right on South Livingston Avenue. This blaektopped road was dry and traffic was light. The weather was clear. Steven testified that he was feeling fine. They were travelling at about 25 miles an hour, with Larry about 15 feet behind plaintiff. Suddenly, the front wheel of the motorcycle stopped turning, the cycle went out of control, veered to the right and skidded about 10 or 15 feet before' crashing into a parked car, causing injury to plaintiff. Steven testified that he had not touched the brake and had no reason for wanting to stop.

Thomas J. Holán, Jr., a Livingston police officer at the time of the accident, testified that he was in a police patrol ear and came to the scene of the accident at 9:13 p.m., “within a minute or two, possibly,” after it had occurred. He found plaintiff on the street pavement and asked him wliat had happened. Plaintiff told him “they were doing approximately 25 to 30 miles an hour and the front wheel, the front tire of the motorcycle apparently locked on him and he struck — he lost control of the motorcycle and struck a parked car.” The motorcycle was in the street at the scene of the accident and unchanged between the time of the accident and the time the officer saw it. The officer “noticed that the front fender (of the motorcycle) had a dent in it and that the front wheel would not move, as I was told by Mr. Sabi off.” (Emphasis added). The officer explained that he meant, the front wheel “would not rotate.” He saw nothing that was preventing it from rotating, “such as a spoke broken or a fender or anything like that.” He observed that the hand brake had the lever “in the raised position, that is disengaged.” The officer stated that the speed limit in that area was 40 miles an hour. The officer observed no skid marks on the highway.

Larry Bagoon’s deposition was read, since he was unavailable. He confirmed that the wheel would not rotate. So, too, did Jeffrey Sabloff, plaintiff’s brother, who examined the motorcycle later that night.

Jesse Fisher testified as an expert witness on behalf of plaintiffs. Although his qualifications as an auto repair man showed a marked absence of expertise as far as motorcycles were concerned, the trial judge permitted him to testify to Ms opinion, “based on whatever factual data may he supplied to Mm.” The trial judge remarked, however, “the probative value I will leave for the jury.” (Granting defendants’ motions prevented the jury’s appraising the “probative value” of Fisher’s expert testimony.)

Fisher had no opportunity to see the wheel while it was still on the motorcycle. When he observed it, the wheel had been removed from the fork, thus preventing his determining “the side play that this wheel had at the time of the accident.” Fisher testified as to this aspect, “If it had excessive side play prior to the accident, it could have locked the wheel by twisting and forcing the brake to become applied.”

Fisher actually reassembled the brake assembly in his laboratory. He testified:

I found the brake was working properly. I found nothing wrong with it. The axle, which is slightly bent, I noted, hut it didn’t affect the brake operation and it was safe to assume, I felt, at that time and I still do, that that bend in the axle was a result of the accident, and it did not affect the braking of the front wheel.

When Fisher was asked in a hypothetical question as to what could have caused the accident, he stated that it could have been a driving error, namely, in activating the brakes, or it could have been a mechanical error, “excessive side play prior to thp accident * * * could have locked the wheel by twisting and forcing the brake to become applied.” He claimed that a factor which could bring about such side play might be the tightness of the nuts on the axle bolt.

The difficulty with Fisher’s expert opinion testimony was in its being based upon two possible theories of causation, viz., (1) the human factor in activating the brakes, and (2) the mechanical error in too much “side play due to improper tightening of the nut.” There was no direct proof of “excessive side play” prior to the accident, which “could have locked the wheel.” There was no direct proof of any “inadequate tightness of the nuts on the axle bolt” which could have brought about such excessive side play.

We pause here to note that the motorcycle wheel, as such, comes fully assembled to the dealer and the latter’s function is to attach the wheel to the fork by inserting the axle bolt through an opening in the wheel and screwing on a nut at the end of the bolt. A demonstration of that simple operation by the dealer was made before us at oral argument. It involves no complicated performance.

Steele, defendant seller’s president, testified that he had originally assembled the cycle. He referred to no manufacturer’s manual in doing so. He stated that there was none then available to the best of his knowledge. Steele relied only on his 25 years of experience in tightening nuts. He stated that he tightened this particular nut “so that it cannot come loose by itself and can only be taken off by a wrench.” Steele testified that the tolerance in the side play was less than the 3 mm. recommended by the manufacturer as a side play limit at the wheel rim, according to a manual put out by Yamaha subsequent to the accident, and identified by Pisher. Steele had also road-tested the motorcycle before its delivery to plaintiff and had found no difficulty with it.

Leo C. Lake, service manager for Yamaha International, testified as an expert witness for defendant. He had contributed to the manual referred to above. He stated that the 3 mm. test was intended to deal with limits of wear and not in original wheel assembly. He also said that the tightening of the nuts has nothing to do with side play. They should be wrench-tight. It was his opinion that if, under the circumstances of this case, the wheel had locked, the motorcycle would have fallen immediately and not skid any considerable distance.

Gordon Jennings, former editor of Cycle magazine and present editor of Car and Driver, testified as an expert for defendants. He had examined the motorcycle and had reassembled the wheel. He testified that the only way in which the wheel could have involuntarliy locked would have been if a lug broke or there was other damage which pulled on the brake. This did not occur. He confirmed Lake’s opinion that, if the wheel had locked, the motorcycle would have fallen immediately. Jennings added his opinion that the front tire had not been involved in a skid.

During the course of Pisher’s testimony, the Yamaha manual was offered in evidence, but admission was not allowed by the trial judge.

A. AS TO DEPENDANT HAELEY-DAVIDSON OP ESSEX

Accepting as true all the evidence which supports the position of plaintiffs and according them the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ as to the liability of Harley-Davidson of Essex, the dealer which sold this Yamaha motorcycle to the infant plaintiff.

The motorcycle had been sold under a “new bike” warranty in assembled form. There was additionally the implied warranty of merchantability, of fitness for use as a motorcycle. Plaintiff had made no adjustment to the motorcycle between the time of purchase on Friday and the accident on Sunday, two days later.

A motorcycle whose front wheel stops rotating while being operated by an experienced cyclist at 25 miles an hour along a paved public highway, without any brake being applied or any other cause for the stoppage attributable to the driver or some third person, is not as warranted. Common sense dictates the conclusion that wheels are placed on a motorcycle to rotate when the cycle is in operation along the highway, unless the rotation of the wheel is stopped by the application of some brake power, by the non-use of motor fuel, by driving the cycle into some fixed object, or by some such non-mechanical failure.

It was for the jury to decide whether it believed plaintiff’s version of the happening — that the front wheel of this motorcycle suddenly stopped rotating, when he had not applied any brake power and had no reason for doing so and none of the other non-mechanical possibilities existed therefor.

A jury could have found credence in plaintiff’s version from the testimony of police officer Nolan, who arrived upon the scene within a minute or two after the accident and confirmed by his own observation that “the front wheel would not move as I was told by Mr. Sabloff.” The officer saw nothing that was preventing the rotation and noted that the brake had been “disengaged.” Further confirmation that “the wheel would not rotate” could have been found in Larry Bagoon’s sworn statement and the testimony of plaintiff’s brother Jeffrey.

Since plaintiff’s expert had advanced the two possible causes for the stoppage of the wheel’s rotation and testimony on behalf of plaintiff liad negated the one, the jury could have reasonably found the other reason — improper tightening of the nut at the end of the axle bolt —■ the cause of the wheel’s locking and failure to rotate. True, Steele had testified that he had made the attached nut “wrench-tight,” based on 25 years’ experience in tightening nuts, although he knew of no manufacturer’s manual at that time limiting tolerance in the tightening to 3 mm. But his credibility was also a matter lor jury determination, as was the plaintiff’s recital.

We appreciate that defendant expert witnesses had offered opinions contradictory of that expressed by plaintiff’s expert, as summarized above. But tírese conflicts were for the jury to resolve.

New Jersey has adopted the more liberal and more modern view of finding liability in favor of a purchaser of a mass-produced article who is injured in its use, finding it unnecessary any longer to prove negligence, and unnecessary to establish privity of contract, and invoking the concept of breach of warranty. Henningsen v. Bloomfield, Motors, Inc., 32 N. J. 358 (1960). The purpose of the present view is to shift the burden of accidental injury caused by products sold in the stream of everyday commerce upon those who market them, who owe a duty to the public who purchase these products. Restatement, Torts 2d, § 402A, comment (c) (1965).

We realize that a plaintiff must present proof “heavier than mere surmise or conjecture.” Jakubowski v. Minnesota Mining and Mfg. Co., 42 N. J. 177, 182 (1964). In that ease plaintiff had introduced no evidence from which it could reasonably have been inferred that more probably than, not the cause of the break was one for which the defendant was responsible. (At 186).

But more appropriate under the evidence herein is the rule laid down in Smith v. Frontier, Inc., 53 Wash. 2d 805, 337 P. 2d 299 (Wash. Sup. Ct. 1959), in which the purchaser of a recapped tire was awarded a judgment against the seller for damages resulting from an automobile accident caused by failure of the tire due to separation of the bond of the manufacturer’s original rubber from the carcass. There were two possible causes of the separation, mz-, (1) excessive heat due to the tire being run under-inflated at high speeds, or (2) the bond was defective prior to recapping, was further weakened by the recapping process, and finally separated because of the heat generated during normal driving. The court concluded:

The record adequately supports a finding by the jury that not only were the road conditions and the driving normal, but also that the tire was not underinflated. This leaves the second cause of the separation available to the jury without recourse to speculation, [at 301]

So is it in the instant case. Plaintiff’s expert gave two possible causes of the front wheel’s failure to rotate. Plaintiff’s testimony negated the one — error on the part of plaintiff in activating the brake. This left the second cause — improper tightening of the nut at the end of the axle bolt, thereby producing excessive side play and locking of the wheel — “available to the jury without recourse to speculation,” as noted in Smith, supra.

We conclude as to Harley-Davidson of Essex, that the evidence at the close of all the proofs required submission of the case to the jury as to its liability. There were factual issues, requiring the jury’s appraisal of the credibility of the witnesses and the conflicts in the opinions expressed by the expert witnesses. It is always a better practice to submit close questions of fact to the trier of the facts, reserving the motion for judgment n. o. v. until after verdict rendered, especially where credibility is the fulcrum upon which the issue turns. The granting of that defendant’s motion for judgment under R. 4:40-1 was erroneous and requires a remand for a new trial as to its liability.

B. AS TO DEPENDANTS YAMAHA MOTOR CO., LTD., AND ITS AUXILIARY CORPORATION.

Plaintiff’s expert, Pisher, took the front wheel of the subject Yamaha motorcycle to his own shop and, referring to a Yahama service manual, reassembled the parts. He found nothing wrong with the brake. It worked properly. He found no defect in any of the components manufactured by this defendant. Upon reassembly, everything was in good order, as noted in the quotation from his testimony, supra.

A “probable cause” of malfunction in the wheel was ascribed by Pisher to “excessive side play” which could have locked the wheel by twisting and forcing the brake to become applied. He asserted that too much side play would, in the absence of his finding of a defective component, be probably “due to improper tightening of the nut.”

The tightening of the nut on the end of the axle bolt was done by Steele, president of the dealer, as noted above. If the jury should find upon a retrial of this action that the nut was improperly tightened by Steele, thereby causing excessive side play and the locking of the wheel, would Yamaha, the manufacturer, be liable to the purchaser because of its having delegated this partial assembly function to the dealer F

When a motorcycle, such as that involved herein, is received by Harley-Davidson from Yamaha, the handlebars are removed, the controls are disconnected from the handlebars, and the front wheel, front fender, seat and tail light are removed. The assembly is made by the dealer and the motorcycle is shown and sold to the purchaser in its assembled form.

A manufacturer should not escape responsibility for breach of its warranty of fitness for purpose, when the breach is caused by an act of improper assembly — the assembly having been entrusted by the manufacturer to an authorized dealer, rather than to some employee of the manufacturer. It would be unrealistic to treat a motorcycle manufacturer as a mere purveyor of motorcycle non-assembled parts and relieve it from the warranty of merchantability simply because there is ho showing of a defective component part.

In Vandermark v. Ford Motor Company, 61 Cal. 2d 256, 37 Cal. Rptr. 896, 391 P. 2d 168 (Cal. Sup. Ct. 1964), it was held that an automobile manufacturer, which did not deliver its automobiles to the dealers ready to be driven away by the ultimate purchasers but relied on the dealers to make final inspections, corrections and adjustments necessary to make the automobiles ready for use, could not escape liability for a defect in the automobile on the ground that it may have been caused by something that an authorized dealer did or failed to do. As the court expressed it:

* * * as the manufacturer of the completed product cannot delegate its duty to have its ears delivered to the ultimate consumer free from dangerous defects, it cannot escape liability on the ground that the defect in Vandermark’s car may have been caused by something one of its authorized dealers did or failed to do. [37 Cal. Rptr. at 899, 391 P. 2d at 171]

Vandermarlc also was concerned with whether a brake system had been properly installed and adjusted before the accident.

So, here, where Yamaha did not deliver its motorcycles to its dealer ready to be driven away by the ultimate purchasers but relied on the dealer to put into assembly the non-assembled parts and make the motorcycles ready for use, Yamaha could not escape liability for a defect in the motorcycle on the ground that it may have been caused by something that its authorized dealer, Harley-Davidson of Essex, did or failed to do in attaching the front wheel to the fork of the subject motorcycle. Yamaha’s manual, subsequently published, recognized the danger in this function when it noted a 3 mm. tolerance in the side play — a limit which could be exceeded, according to plaintiff’s expert, by insufficient tightening of the particular nut at the end of the bolt.

If the jury should find that the dealer’s lack of a sufficient tightening of the particular nut was the cause of the front wheel’s failure to rotate, then the jury might also visit responsibility upon defendant manufacturer for the function delegated by it to be performed by the dealer and not properly performed.

There is no need at this time to determine the rights of defendants inter sese. Each defendant has filed a cross-claim against the other, thus making it proper to keep all parties in the suit. The issue proposed by the cross-claim may never arise if the jury returns a verdict of no cause for action against all defendants. But, on the other hand, it might in the event of a verdict for plaintiffs. We decide only that reversible error was committed in not submitting the issue to the jury as to all the defendants.

II

In view of our remand for a new trial, we find it unnecessary to decide plaintiffs’ second point. The evidence excluded was a manual published by Yamaha subsequent to the accident. But see Hansson v. Catalytic Constr. Co., 43 N. J. Super. 23, 27 (App. Div. 1956), and our Rules of Evidence, Rules 4 and 51. We do not wish to preclude the trial judge from ruling on the issue of admissibility on the basis of the proofs offered at the new trial.

The judgments are reversed, and the matter is remanded for a new trial.


source: Caselaw Access Project

author: Carton, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WARREN E. DENNIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 23, 1970
    Decided February 3, 1971.

      Before Judges Cokkohd, Kolovsky and Cautos.

      Mr. Edward Weisslitz, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. George N. Pappas, Assistant Prosecutor, argued the cause for respondent (Mr. Denis A. Cipriano, Assistant Prosecutor, on the brief; Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Carton, J. A. D.

Defendant appeals from a conviction for possession of heroin. The principal ground he urges for reversal is that the 22 glassine envelopes of heroin seized from his person should have been suppressed as the product of an illegal search.

Officer Daniano testified on the motion to suppress that he and Officer Eitzsimmons went to the Tichenor Street area of Newark on July 12, 1969 to locate one Arlene Cruz, sought as a material witness in connection with a homicide. (At the trial Officer Eitzsimmons added that she had also been identified as a suspect in that killing). The officers took Miss Cruz to headquarters between 9:00 and 9 :30 that evening. An hour later they returned to the same area on the lookout for another suspect in the same killing. Eitzsimmons testified at the trial that he guided the patrol car slowly along the street as Daniano made a visual search for the murder suspect. As the car came near to defendant, Dennis walked toward it, saying in a tone described by Daniano as “boisterous”: “What did you do with my girlfriend?” The officers knew defendant to be Miss Cruz’s boyfriend.

Daniano described what transpired as Dennis approached the ear:

He put his hand in his pocket, and I had jumped out of the car and took his hand out of his pocket. Fearing that he might have a weapon, I took his hand out and searched him and I got the 22 decks of heroin.

The search referred to in the testimony was an examination of the pocket into which defendant had thrust his hand.

On cross-examination Daniano averred that defendant’s hand was in his right pocket. When he pulled Dennis’ hand out of the pocket, it “came out empty.” The heroin was found when Daniano put his hand in that same pocketDaniano testified further:

q * * * x asked you if you patted him down.
A Yes, yes.
❖ sjs
Q Now, Officer, in your search, you were searching for a weapon, correct?
A That’s correct, yes.
Q You thought lie had a gun, is that correct?
A Yes.
Q Did you put your hand in that right-hand pocket?
A Yes, I did.
Q Did you put your hand in there first, or did you pat him down first ?
A To be honest with you, I don’t remember what I did. I did it, you know, very fast.

Defendant’s version was that he and his girlfriend, Miss Cruz, had been standing outside a bar. The police drove up, summoned her to the patrol car and took her to headquarters for questioning because she had been with “this girl that got killed.” Returning about an hour later, the police informed him that Miss Cruz had not given a statement and enlisted Ms help in obtaining one from her. He went to headquarters hut was unable to persuade Miss Cruz to give a statement. Dennis clamied that he was then taken to the bull pen and informed that the police had found 22 decks (of heroin) on him. He insisted that he had not been searched until after ho was placed in the bull pen and that he possessed no narcotics at that time.

The court denied the motion to suppress, finding the factual situation as depicted by Daniano.

At the trial Daniano gave virtually the same testimony as he had given at the hearing on the motion. As to the sequence of events, he stated he first removed defendant’s hand from the pocket. Thrusting his own hand into the same pocket, he found the glassine envelope. He then conducted a pat-down search. He could not remember whether he grabbed defendant’s hand from the side or from behind, since his actions were spontaneous.

Officer Fitzsimmons substantially corroborated Daniano’s account. Ho testified that defendant was “hollering to us, ‘Where is my girlfriend, what did you do with my girlfriend ?’ ” Fitzsimmons believed that the man had a weapon in Ms right pants’ pocket. His observations of Dennis’ eon-duet at that point prompted him to warn Daniano, “Be careful. He has his hand in his pocket.”

The trial court impliedly found that Daniano acted out of fear for his personal safety in making the search which resulted in the discovery of the heroin, and that the search and seizure were legally unobjectionable. We agree.

The question before us is whether the trial court was justified in determining that Officer Daniano acted with reasonable prudence and, if so justified, whether the steps the officer took to neutralize the threat of physical harm were reasonable. More precisely, the question is whether the circumstances confronting this officer were of such an emergent and menacing nature as to justify a reasonable belief on his part that it was necessary for his safety to seize the object thought to be a gun without preliminarily frisking Dennis.

In examining the factual situation, we must bear in mind that a police officer is not required to be a constitutional lawyer. In assessing the quality of his behavior or reaction, “the common and specialized experience and work-a-day knowledge of policemen must be taken into account” and the entire transaction reviewed “in a common-sense and realistic fashion.” State v. Contursi, 44 N. J. 422, 431 (1965).

The officers were in the process of investigating a homicide which they believed to be murder. Earlier that evening, in that same area, they had picked up defendant’s girlfriend and had taken her to headquarters for interrogation. As defendant said, “Miss Cruz had been with the girl that was killed.” The police had just returned from questioning her. Hot only was defendant’s girlfriend a possible witness to the killing, but also her name had been mentioned to the police as a suspect. The policemen were in the process of seeking out another suspect in the same crime.

The hour was late — the area one of high crime intensity. Dennis’ inquiry as to the whereabouts of his girlfriend bristled with hostility. Considered against this backdrop, defendant’s confrontation with the two officers, his less than patient approach toward the patrol car, and the movement of his hand to his pocket could reasonably have been interpreted to evidence an intent to inflict immediate bodily harm. The situation was pregnant with the probability of danger. Common sense compelled the officers to act for their own safety.

One of the well-established exceptions to the general requirement of a search warrant is when the attendant circumstances are exigent or emergent. See Warden v. Hayden, 387 U. S. 294, 298-300, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); Chapman v. United States, 365 U. S. 610, 615, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961); McDonald v. United States, 335 U. S. 451, 454-455, 69 S. Ct. 191, 93 L. Ed. 153 (1948); Johnson v. United States, 333 U. S. 10, 14-15, 68 S. Ct. 367, 92 L. Ed. 436 (1948). We believe that rule clearly applicable here.

The Constitution does not require an officer to wager his physical safety against the odds that a suspected assailant is actually unarmed. The United States Supreme Court has adverted to the standard of conduct to which the police must adhere in the face of apparent danger. In establishing guidelines, the court took cognizance of the violence which may be directed against a police officer in the performance of his duties and the need for law enforcement personnel to guard against it.

* * * Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.
Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. AVhen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [Terry v. Ohio, 392 U. S. 1, 23-24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]
* » * ijhe officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations omitted] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to Ms inchoate and unpartieularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience, [citation omitted] [Id. at 27, 88 S. Ct. at 1883]

See also State v. Dilley, 49 N. J. 460 (1967).

The officer’s action of grasping defendant’s hand as defendant bore down on him is beyond reproach. If he believed (as we are of the opinion he was reasonably entitled to believe) that defendant had a weapon in the pocket where his hand was stationed and was about to use it, then the officer was entitled to prevent the anticipated attack in this fashion. This conservative method of self-protection would seem preferable to that of drawing his own gun or taking the offensive in some other manner in the face of the poised attack. Retreat would be incompatible with his responsibility as a police officer. He was compelled to act.

We are not persuaded that once the officer succeeded in removing defendant’s hand from his pocket he had the right to proceed only with a pat-down search. This argument is projected on the theory that the apparent threat to the officer’s safety had been then averted or suspended and he was relegated to take procedures less intrusive on defendant’s privacy. It is based, too, on the assumption that each motion during the factual complex can be isolated from another and examined individually. We consider such an approach totally unrealistic. It seeks to divide an instantaneous reaction into segments separable one from another and to replay the scene in slow motion with the benefit of a stop-action camera. Such isolation of motion suspended in time and place distorts the tempo and the reality of the situation.

The search involved a reflex reaction to the threat of danger — an attempt to disarm an assassin. Reaching inside the pocket in the expectation of seizing a gun was part and parcel of that reaction. This was not merely a precautionary probe of a person suspected of generalized criminal activity. Ebr was the transaction one in which the officer had the opportunity to reflect on possible alternative courses of action. Under these circumstances the police officer was not limited to conducting a pat-down or frisk as to that pocket in which the weapon was believed to be located.

The situation confronting Officer Daniano bears no resemblance to that described in Sibron v. New York, 392 U. S. 40, 88 S. Ct. 1912, 20 L. Ed. 2d 917 (1968). There the court held that the officer was not motivated by fear for his personal safety, but was desirous of securing evidence of crime. The court then considered the scope of the search:

Hveu assuming arguendo that there was adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception—the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents, [at 65-66, 88 S. Ct. at 1904]

Terry and Sibron are concerned with the limits of the investigation of generalized suspicious behavior and the precautionary measures available when that behavior could reasonably lead the officer to believe that his safety could be endangered. In the words of the court in Terry,

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could uneaspeetedVy and fatally be used against him. [392 U. S. at 23, 88 S. Ct. at 1881 emphasis added]

This was not a search initiated by an officer to uncover weapons that could be unexpectedly used against him. It was not an exploratory or preliminary course of action adopted for the purpose of assuring himself that the man was unarmed. It involved affirmative steps intended to disarm one believed to be an assailant. It was a reaction to the threat of an imminent attack expected to originate from a specific point.

The present case resembles in some respects that before the court in People v. Taggart, 20 N. Y. 2d 335, 283 N. Y. S. 2d 1, 229 N. E. 2d 581 (Ct. App. 1967), app. dism. 392 U. S. 667, 88 S. Ct. 2317, 20 L. Ed. 2d 1360 (1968). There the police received an anonymous telephone tip that a man fitting a particular description was carrying a pistol in his left-hand jacket pocket. An officer went to investigate, observed a man fitting the description at the designated location, and thrust his hand into his jacket pocket. No frisk or pat-down preceded the search of the pocket. The officer testified that he observed no bulge prior to the search and that he had never seen defendant before that time. There is no indication that the police officer thought he was in immediate danger.

The court upheld the search although the search exceeded the limitations set out in that court’s prior decisions.

Even assuming that under normal circumstances the “search” allowed by section 180-a ’should be limited to a “frisk,” the action of the detective in this case was proper, because of the additional circumstances. Delaney had a reasonably based suspicion not only that defendant was carrying a pistol but also that the weapon was located in his left-hand jacket pocket. It would seem unreasonable to require an officer in that situation to engage in a preparatory and undoubtedly dangerous frisk—particularly in view of the fact that defendant was standing in the middle of a group of children at the time of the search. [283 N. Y. S. 2d at 8, 229 N. E. 2d at 586]

The procedure followed by the officers which resulted in the discovery of the heroin was not violative of the Fourth Amendment.

Defendant advances several additional grounds for reversal — all under the “plain error rule.” We find no merit in any of them.

Affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MELINDA E. MUNDY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1971
    Decided January 14, 1971.
    Before Judges Lewis, Matthews and Muntz.

      Mr. Sherwood H. Mundy argued the cause for appellant.

      Mr. Peter A. DeSarno, Special Deputy Attorney General, argued the cause for respondent (Mr. Clinton E. Cronin, Acting Prosecutor of Middlesex County, attorney).
   Per Curiam.

The judgment below is affirmed substantially for the reasons expressed in the opinion of Judge Bachman for the Middlesex County Court, 113 N. J. Super. 308.


author: Mountain, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GEORGE GILLMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 11, 1971
    Decided February 9, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Donald M. Weilzman argued the cause for appellant {Messrs. Gluclcsman and Weilzman, attorneys; Mr. Weilzman, of counsel and on the brief).

      Mr. Bruce P. Miller, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Miller, on the brief).
   The opinion of the court was delivered by

Mountain, J. A. D.

Defendant appeals from a conviction of having violated N. J. S. A. 54:40A-32, which forbids transporting unstamped cigarettes on the public highways unless in possession of invoices or delivery tickets.

On March 3, 1967 defendant was arrested by the Livingston Township police and shortly thereafter charged with a violation of the statute mentioned above. At the time of his arrest he was driving a Lincoln sedan to which was attached a trailer. The Livingston police had received information from two New York detectives, who had trailed defendant’s ear from North Carolina, that he was carrying a large quantity of unstamped cigarettes. Actually 3,003 cartons were discovered in the trailer and seized as contraband.

A hearing was held on defendant’s motion to suppress and the motion was denied. A later application to reconsider the motion was also denied. Defendant stood trial before the municipal magistrate and was convicted. His conviction was affirmed by the Essex County Court.

Although a number of issues are raised on appeal, defendant’s chief argument is concerned with the validity of the search warrant which issued shortly after his apprehension. It was as a result of the execution of this warrant that the contraband articles were discovered.

Probable cause for the issuance of the warrant must rest upon the testimony of Livingston Township detective Albert Eachet. His sworn statement was to the effect that two out-of-state detectives advised him that the vehicle, which they accurately described, had proceeded from North Carolina to a probable terminal point in New Jersey and that it contained contraband cigarettes. He had also been told — or knew —• that the name of the operator of the car was George Gillman who was said usually to carry a gun in his car.

■ Acting upon this information, he spotted the car and in conjunction with other law enforcement officials followed it and stopped it, ostensibly for failing to have a stop light. Defendant, then driving the car, was unable to produce any registration for the trailer. Upon being requested to allow the officers to inspect it,' he declined to open the trailer door.

Defendant first claims the warrant to have been improperly issued because Detective Eachet’s statement did not set forth in detail the ultimate source of all the information recounted.

As has been stated, “* * * no mathematical formula exists for application either by a trial or appellate court in deciding whether a search warrant was supported by probable cause. Each case depends upon a sensitive appraisal of the circumstances shown to the issuing judge.” State v. Kasabucki, 52 N. J. 110, 117-118 (1968).

It is important to note that the information contained in the detective’s sworn statement consisted in part of his own knowledge and observations and in part of information supplied to him by other law enforcement officers. Information coming from law enforcement colleagues should be entitled to greater credence than knowledge supplied by an informer who lurks in or near the underworld. The courts have sensibly agreed that where information is so imparted by another law enforcement officer, it is to be received with benevolent assumptions not appropriate to information offered by a typical informer, generally of the criminal class, who has reward in mind. This point was noted in State v. Kasabucki, above, where the information was received from the First Deputy Commissioner of the New York City Police Department. The rule has been followed elsewhere.

The controlling- principle seems to be that it is not necessary for the officer making the arrest to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause provided that he acts upon the direction of or as a result of communication with a superior or brother officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest. [People v. Horowitz, 21 N. Y. 2d 55, 286 N. Y. S. 2d 473, 233 N. E. 2d 453 (Ct. App. 1967)1

See also People v. McKiernan, 56 Misc. 2d 845, 290 N. Y. S. 2d 976 (Cr. Ct. N. Y. City 1968); People v. Smith, 31 App. Div. 2d 863, 297 N. Y. S. 2d 225 (App. Div. 1969). In Mullaney v. State, 5 Md. App. 248, 246 A. 2d 291, 299 (Ct. Spec. App. 1968), it was observed,

Without question, the observations of fellow law enforcement officers constitute a reliable basis in the assessment of whether probable cause to arrest exists. [Citations omitted] Equally well settled is the proposition that probable cause to arrest may be based on information collectively within the knowledge of the police.

Indeed the Supreme Court of the United States has noted its approval of the practice of incorporating the results of the observations and investigation of other law enforcement officers when making application for a search warrant. United States v. Ventresca, 380 U. S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684, 690 (1965).

We are satisfied as to the soundness of this rule and as to its applicability here.

Defendant further contends that the later discovery that certain of the statements contained in the sworn testimony which formed the basis for the issuance of the warrant were incorrect should constitute an independent basis for striking down the search warrant. In the first place none of the alleged “false statements” were especially material and each of them can probably be explained. They do not suggest purposeful falsification. In any event the rule in RTew Jersey would appear to preclude this kind of attack, which, where found elsewhere, rests upon statute. There is no legislation of this sort in our State. Furthermore R. 3 :5-7 (d) states that,

In the absence of bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution.

An examination of the record amply sustains the decision of the trial judge from the attack that his findings were against the weight of the evidence.

Finally it is urged that N. J. S. A. 54:40A-32 is unconstitutional as in violation of the Commerce Clause and as an intrusion upon a field which has been entirely preempted by federal legislation. Such is clearly not the case. The statute in question, whether viewed as an exercise of the police power of the State or as an exercise of the implied right to protect the State’s power to raise revenue, is constitutional. Precisely the same argument was directed to an almost identical statute in State v. Sedacca, 252 Md. 207, 249 A. 2d 456 (Ct. App. 1969). There the court found ample justification for sustaining its constitutionality. We adopt the reasoning there set forth and reach a like result.

The conviction is affirmed.


author: Bachman, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MELINDA E. MUNDY, DEFENDANT.
    Middlesex County Court Law Division
    Decided February 20, 1970.

      Mr. Peter DeSarno, Esq., Assistant Prosecutor, for the State (Mr. Edward J. Dolan, Prosecutor, attorney).

      Mr. Sherwood H. Mundy, attorney for defendant.
   Bachman, J. C. C.

Defendant was convicted of driving 36 miles an hour on Old Raritan Road between Inman Avenue and King Street in Edison. The State alleges this to be a residence district in which the speed limit is 25 miles an hour under N. J. S. A. 39 :4-98. Defendant admits she drove at that speed but denies that the area involved is a “residence district.” She maintains that in the area involved the speed limit is 50 miles an hour and that the conviction in the Municipal court of Edison for speeding was erroneous. Thus, the central issue on this trial de novo is whether Old Raritan Road, at the point where the alleged violation occurred, is a “residence district” where the statutory speed limit is 25 miles per hour. A residence district is defined in N. J. S. A. 39:1-1 as follows:

* * * that portion of a highway and the territory contiguous thereto, not comprising a business district, where within any 600 feet along such highway there are buildings in use for business on residential purposes which occupy 300 feet or more of frontage or at least one side of the highway.

Our speeding statute prescribes a maximum speed of 25 miles an hour for any “residence district.” N. J. S. A. 39 :4—98.

Defendant contends that the State has failed in its burden of proving that the area involved was in fact a residence district. State, v. Miller, 58 N. J. Super. 538 (Cty. Ct. 1959). Specifically, defendant avers that the prosecution has not shown that the area involved has “buildings” which occupy at least 300 feet of building frontage on at least one side of the highway to sustain the conviction.

The testimony and evidence given was essentially as follows: The State introduced into evidence a tax map showing the area involved. Police officer Cook testified that the alleged violation took place on Old Raritan Road in the section close to King Street and in the direction of Inman Avenue. He further testified that there were several homes occupied in the area in question, and that it was a residential area. He also testified that the area on the right hand side of Old Raritan Road between Webb and King Street was fully occupied by homes, and that this area was over 600 feet.

Defendant then produced one Jeney, a Metuchen real estate broker. He testified that he examined the area involved and found that the total length of the area between King Street to Inman Avenue was 611.65 feet. Jeney then testified that 60% of this area on one side had residences, but that their total structural frontage was less than 300 feet. He further testified that next 600 feet on the easterly side of Old Raritan Road from King Street to Webb Street was 100% residential but that the eight homes on that side had a total structural frontage of only 279.51 feet.

Defendant contends that the language in the pertinent statutory definition applied to building frontage rather than land frontage. Accordingly, she argues that the area in question did not meet the requisite 300 feet of building frontage on one side of the highway necessary for a conviction. She cites State v. Zeus, 56 N. J. Super. 323 (Cty. Ct. 1959), and State v. Bastian, 78 N. J. Super. 49 (Cty. Ct. 1962), as legal authority for that proposition.

In Zeus, supra the court ruled that the dimension of 300 feet in the residence district statute applied to the buildings only. This decision was reaffirmed by way of dictum in Bastian. Although both Union County eases present an interesting interpretation to the statutory definition of “residence district,” this court is of the opinion that it need not be bound by them. It is axiomatic that a County Court must take into consideration an opinion of another court of equal jurisdiction, but such opinion is not binding. State v. Patfol, Inc., 71 N. J. Super. 404, 408 (Cty. Ct. 1961), rev’d on other grounds 76 N. J. Super. 287 (App. Div. 1962); Ferraro v. Ferro Trucking Co., 72 N. J. Super. 519, 523 (Law Div. 1962); Wolf v. Home Insurance Co., 100 N. J. Super. 27, 35, 36 (Law Div. 1968).

This court holds that the Union County Courts have misconstrued what a “residence district” is under N. J. S. A. 39 :1—1. The basis for their finding is found in a comment by Judge Clapp of the Appellate Division in Melone v. Jersey Central Power & Light Co., 30 N. J. Super. 95 (App. Div. 1954). In describing a residence district under N. J. S. A. 39:1—1 he said that “to constitute any 600 feet a residence district, there must be, at least, on one side of the street, for example 10 buildings, each averaging 30 feet front, each on a lot averaging 60 feet front, or, for example, 7 buildings, each averaging 43 feet front, each on a lot averaging 86 feet front.” (At 100, emphasis supplied).

The appellate court was simply giving two illustrations of a “residence district” rather than indicating that it construes the statutory definition as only applying to measurement of buildings. To suggest that a street having 8 houses on one side, each averaging 35 feet front, each on a lot averaging 75 feet frontage, does not constitute a “residence district” under the statute is to give the statute so literal a reading as to require that this court wear blinders. This the court is clearly not permitted to do. This court is of the opinion that it must read the Motor Vehicle Act sensibly and avoid absurd consequences; it must presume the legislative intent to be “consonant to reason and good discretion.” Schierstead v. Brigantine, 29 N. J. 220, 230 (1959).

In Baker v. Court of Special sessions, 125 N. J. L. 127 (Sup. Ct. 1940), the court found a section of a street about one-third of a mile long with a total of ten private residences, which was colloquially known as a residential section and zoned residential, to be a “residence district” under the earlier statute. The definition at that time was: “the territory contiguous to a highway not comprising a business district when the frontage on the highway for a distance of three hundred feet or more is mainly occupied by dwellings, or by dwellings and buildings in use for business.” The court rejected the argument that the words “mainly occupied” meant over 50% of the total frontage should actually be covered by buildings. The court said that if that argument were to prevail, “it would mean that where a locality had been laid out into a series of large and handsome places, with average frontage of say 200 feet each, one house on each lot, it could not be classed as ‘residential’ in the intendment of the statute, unless more than 50 per cent of the total frontage was occupied by residences. We think the evidence satisfactorily showed a residential status in the intendment of the statute.” (At 129)

The court in Zeus, supra, held that the present statutory definition required it to reject the reasoning of the Baker case. The Union County Court found that change was necessary to modernize our traffic rules to meet the ever-changing traffic situation. Our traffic laws must keep up with the times, but the requirement of 300 feet of building frontage does not aid in such an aim. It would necessitate going through the burdensome requirements of N. J. S. A. 39 :4-98 to get a 25 miles an hour speed limit in many residential areas where homes owners have the good fortune of having large lots, or where some blocks of the street do not conform to the requirements set forth in Zeus.

In State v. Halliday, 69 N. J. Super. 180 (App. Div. 1961) the court, in interpreting the statutory definition of “residence district,” held that the “statute does not require that all of the ‘600 feet along such highway’ on the 300 feet of “buildings in use for business or residential purposes’ must be in the area traversed by the defendant. [I]f a motorist [defendant] enters a residence district and penetrates it for even a short distance at a speed of more than 25 miles per hour, he exceeds the speed limit.” [At 182] In Holliday, the court had before it the following facts:

In the ease at bar, the first house on the east side of Morris Avenue passed by defendant was #577, about 220 feet south of the Union-Elizabeth line, and he was stopped in front of #539-541 about 530 feet further south. There may not have been 300 feet of buildings in use for business or residential purposes in any 600 feet of Morris Avenue to the point where he was stopped, but in the 600 feet south of #577 (which included about 70 feet beyond the point where he was stopped) there were such buildings occupying more than 300 feet of frontage on the east side of Morris Avenue. Those 600 feet therefore constituted a residence district, and since defendant drove 37 miles per hour therein, he was guilty as charged”, [at 183]

It is this court’s view that such a commonsense and realistic approach must be applied in the matter at bar. The court takes note that in State v. Forschino, 99 N. J. Super. 401 (App. Div. 1968), the appellate court factually used part of a commercial building, which was set back from the roadway 267 feet in order to satisfy the 300 foot frontage requirement of the business district definition in N. J. S. A. 39:1-1, to sustain a conviction. Judge Collester indicated the statutory purpose:

Defendant also claims that the trial court erred by including as “Frontage” the wing or set-back part of the building. The merit of this argument should be appraised from the viewpoint of the purposes and objects of the statute, not by an over-technical definition of the words used. The limitation of allowable speed in business (and residence) zones was to promote the safety of people using the highways or living or working in relatively populous areas, [at 404]

Accordingly, this court finds that the 300-foot frontage requirement of N. J. S. A. 39 :1—1 for “residence district” simply means that 300 feet of the 600 feet on one side of the highway must be used for residential purposes, and that the 600-foot requirement is met when part of the highway is shown to be a residence district. Since 60% of the area on one side of Old Raritan Road between King Street to Inman Avenue is used for residential purposes, and 100% of the area between King Street to Webb Street on one side is also used for residential purposes, total area in question is a residence district within the purview of the speeding statute. Accordingly this court finds defendant guilty and imposes a fine of $10 and $5.00 costs to the Edison Township Municipal Court, and $7.75 costs to this court.


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

text:
    THE MAYOR AND BOARD OF ALDERMEN OF THE TOWN OF DOVER, ETC., PETITIONER-APPELLANT, v. TEXLITE, INC., ETC., AND DIVISION OF TAX APPEALS OF THE DEPARTMENT OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENTS. THE MAYOR AND BOARD OF ALDERMEN OF THE TOWN OF DOVER, ETC., PETITIONER-APPELLANT, v. BRIGGS MANUFACTURING COMPANY, ETC., AND DIVISION OF TAX APPEALS OF THE DEPARTMENT OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENTS.
    [No. A-369-69]
    [DOCKET No. A-714-69]
    Superior Court of New Jersey Appellate Division
    Argued January 25, 1971
    Decided February 8, 1971.

      Before Judges Contobd, Kolovsky and Cauton.

      Mr. Erhard B. Thierfelder argued the cause for appellant.

      Mr. Harry L. Sears argued the cause for respondents Tex-lite, Inc. and Briggs Manufacturing Company (Messrs. Young and Sears, attorneys).
    Statement in lieu of brief filed by Mr. Herlerl K. Glide-man, Deputy Attorney General, for respondent Division of Tax Appeals (Mr. George F. Kugler, Jr., Attorney General, attorney).
   As to Texlite, Inc.

The opinion of the court was delivered by

Conford, P. J. A. D.

This appeal involves the correctness of a determination of the Division of Tax Appeals reducing this taxpayer’s gross personal propertj- valuation of business inventories for the tax year 1967 from $258,536 to $170,000 and the corresponding assessment thereof from $30,378 to $18,330.

The original assessment was in conformity with a return duly filed by the company with the municipal assessor. The corporation was later taken over by the Glen Alden Corporation, and a Mr. Bareli, a representative of that organization, testified before the Division that a mistake had been made in the preparation of the original return. Although his testimony was not very clear, examination thereof in the light of the schedule attached to the return appears to lend substance to the claim of mistake: the schedule purports to show how the disclosed average inventory of $258,536 during the pertinent inventory valuation year—1965—was arrived at.

In the foregoing regard, it should first be noted that raw material inventory is exempt. N. J. S. A. 54:4-11 (as amended by L. 1964, c. 141, § 3). The original schedule arrived at the aforesaid figure of $258,536 in purported accordance with the “Average Inventories — Percentage of Gross Profits” method. It listed four quarterly 1965 figures in the column for “Gross Quarterly Inventory”, totaling $1,215,812. It deducted therefrom a figure for raw materials of $181,688 not indicated to be a total of any corresponding quarterly figures for raw materials, thereby arriving at a remainder of $1,034,144. This sum was divided by 4 to produce an average for the year of $258,536 as representing inventories other than raw materials. Barch testified that the $181,688 figure represented only the year-end raw material inventory; that the correct initial quarterly figure was $80,000, and that the average inventory for raw material throughout the year was $130,000.

In effect, the argument of the taxpayer was that the latter figure should be multiplied by 4, to correspond with the method of determining Gross Quarterly Inventory as shown on the original return, and thereby avoid a distorting result. This would yield $520,000, which, when deducted from the gross inventory aggregate shown above, would give a remainder of $680,000 instead of the $1,034,144 shown on the return. Dividing the $680,000 by 4 produces the alleged true average taxable inventory of $170,000 claimed by the taxpayer and allowed by the Division.

While we understand the taxpayer’s argument we are not satisfied that proper or adequate supporting proofs were adduced or satisfactory findings of fact made by the Division. Barch had no connection with the Texlite Company during 1965, when the inventories in question accrued, and, in the absence of an explanation not apparent on this record, could have had no personal knowledge thereof. He offered no company records or other data to substantiate his assertions that $181,688 was only a year-end figure for raw materials, or $130,000 the average thereof throughout the year. The testimony was purely eonclusional and the source not indicated. Better proof was required to overcome the probative effect of the company’s own original return.

The finding by the Division judge was merely that “it was quite obvious” that the “office personnel” had made errors in the tax return, without stating what those errors were, or making any other findings explanatory of the Division’s final judgment. The findings were inadequate. See Jas. M. McCunn & Co., Inc. v. Fleming & McCaig, Inc., 81 N. J. Super. 97, 105 (App. Div. 1963).

For the foregoing reasons the Texlite matter must be remanded for rehearing at which the taxpayer will be required to adduce competent and satisfactory proofs establishing its claim of mistake in the original return and the Division to make appropriate and specific explanatory findings of fact.

In so directing, we reject the town’s argument that the taxpayer was barred from establishing its true taxable valuation by its own contrary return. We find nothing in the tax statutes or any authoritative decision in this State conclusively binding the taxpayer to its return and barring it from seeking relief on an appeal from an incorrect assessment even where based on the taxpayer’s own incorrect return. The return is evidential against the taxpayer, but in the absence of fraud or bad faith rebuttable. See 51 Am. Jur., Taxation, § 667 at 629. We do not regard Kirkpatrick v. Board of Assessors, 57 N. J. L. 53 (Sup. Ct. 1894), as clear or cogent authority for a contrary position.

As to Bkiggs Manufacturing Company

This appeal involves taxability in Dover of business machinery and equipment for the tax year 1967. Under the amendment by L. 1965, c. 20, § 1 of N. J. S. A. 54:4-12, which would appear to have become operative beginning with the tax year 1966, property “used in business within the taxing district during any part of the 12-month period ending on the preceding listing date” is taxable therein, but as of its fair value on the listing date. January 1, 1966 is the “listing date” for the tax year 1967. N. J. S. A. 54:4-11.

The same Mr. Barch who testified in the Texlite ease also testified in the Briggs case. Barch had no connection with Briggs in 1964 or 1965 and apparently no personal knowledge concerning its property or operations during those years. Before he became associated with the firm Briggs filed a tax return in Dover showing a valuation as of January 1, 1966 for business machinery and equipment of $534,140. At the hearing before the Division Barch testified that except for a furnace allegedly worth $32,000 all of the other equipment of Briggs was moved from Dover to the Briggs’ plant in Michigan beginning “probably” in November, and “[being] substantially completed in December of 1965”.

Apparently on the basis of the taxpayer’s argument at the hearing that “the property was removed before the end of 1965” the Division entered judgment reducing the assessment for business equipment to a figure based upon the furnace valuation of $32,000 given by Barch. This was erroneous.

As the statute clearly indicates, any property used in business in Dover'at any time during the calendar year 1965 was taxable for the tax year 1967, albeit as of its value on January 1, 1966. The phrase “used in business,” as employed in N. J. S. A. 54:4-12, must be read in pari materia with the definition thereof in N. J. S. A. 54:4-11, as amended in L. 1964, c. 141, § 3, which reads:

The term “used in business” shall mean used in any activity, transaction or privilege engaged in, conducted or exercised for gain or profit, or held for such use. [Emphasis added]

Thus, any business machinery or equipment of Briggs located in Dover at any time during the calendar year 1965 was taxable for the tax year 1967 if used in business in Dover or held there for business use and could not be lawfully exempted merely because removed from Dover near the end of 1965. This case is distinguishable, in respect of the critical date or time of location of the property in the taxing district, from Bayonne v. International Nickel Co., Inc., 104 N. J. Super. 45 (1968), aff’d o. b. 54 N. J. 94 (1969), app. dism. 396 U. S. 111, 90 S. Ct. 396, 24 L. Ed. 2d 304 (1969), as that ease involved the tax year 1965 and was therefore decided without the application of the 1965 amendment of N. J. S. A. 54:4-12 which is functionally inapplicable to tax years prior to 1966. In Bayonne, therefore, the critical date or time of location was determined to be the same as the “listing” or assessing date—January 1 of the year preceding the tax year—as specified by the 1964 amendment of N. J. S. A. 54:4-11.

To return to the instant ease, Barch testified that Briggs ceased manufacturing water heaters — the operation in which the equipment in question was used — in 1964. The company argues that therefore the equipment was not used in business in Dover at any time during 1965 even though not removed from Dover before the end of the year. Assuming, arguendo, Bareh’s testimony is competent or satisfactory for this purpose, the foregoing does not negate the thesis that the property was being held in Dover in 1965 for business use, whether the intended use was to be in Dover or elsewhere. Physical presence of property in a taxing district ordinarily renders it taxable there unless a clear intention conlra is to be found in the taxing statute. See Finnegan v. State Board of Tax Appeals, 131 N. J. L. 276, 278 (Sup. Ct. 1944).

Since the point of statutory construction hereinabove discussed was not pinpointed at the Division hearing the taxpayer will be allowed an opportunity at a rehearing to establish, if it can, that the property in question was neither used in business in Dover nor held there for such use, during any part of the calendar year 1965; or that such property as was so used or held had a taxable value of less than that used by the Dover assessor in making the 1967 assessment. But, for reasons stated in the Texlite case, the proof will have to be adduced through persons having first-hand knowledge of the material facts, not Mr. Barch, who did not, or the case made by other competent and satisfactory proof. Proper supporting findings of fact must be made by the Division in support of any judgment it renders. The opinion of the Division in this case relates some of the evidence but is devoid of express findings of fact keyed to appropriate conclusions of law.

We note extended protraction of the decisions in these cases after conclusion of the hearings in the Division. The remand directed herein should be executed with dispatch.

Both cases remanded for rehearing and redetermination as directed above. No costs. We do not retain jurisdiction.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JUAN R. TAPIA AND CARMELO V LABOY, DEFENDANTS-APPELLANTS, AND JOSE MANUEL RODRIGUEZ, JORGE HERNANDEZ AND FELIX A. RIVERA, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1971
    Decided February 8, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. Edward Weisslitz, Assistant Deputy Public Defender, argued the cause for appellants (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Solomon Forman, Assistant Prosecutor, argued the cause for respondent (Mr. Bobert N. McAllister, Jr., Atlantic County Prosecutor, attorney; Mr. Ernest M. Curtis, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

The Atlantic County grand jury jointly indicted five men for the murder of one Albert Elacco on November 30, 1968 in Atlantic City, contrary to the provisions of N. J. S. A. 2A .113-1 and 2A :113-2. Because of the complexity of the names of those indicted, we shall for the sake of simplicity refer to them hereinafter as Tapia, Laboy, Hernandez, Rodriguez and Rivera.

The five men were jointly tried before a jury. None of them testified or called any witnesses in their defense. The trial judge granted Rivera’s motion at the close of the State’s case for a judgment of acquittal. The jury acquitted Rodriguez. The jury found Hernandez guilty of manslaughter. It returned a verdict of guilty of murder in the second degree against Tapia and Laboy.

They were sentenced to the Yardville Reformatory, Youth Reception and Correction Center, for maximum terms of eight years in each instance. The present appeal from the judgments of conviction is being prosecuted jointly only by Tapia and Laboy.

It is undisputed that on November 30, 1968, at approximately 12:30 a.m:., Albert Elacco was stabbed to death during a barroom fight at the Adelphia Bar in Atlantic City. The jury could reasonably find from the evidence that, in that fight, Tapia and Laboy and Hernandez, at least, were arrayed on the one side and Elacco was alone on the other side. An eye-witness testified that both Tapia and Laboy used a knife in stabbing at Placeo, and Elacco, a carpenter by trade, brandished a carpenter’s handsaw in warding off his attackers.

During the melée, another eye-witness, Harry R. Wilson, observed a butcher’s knife, bloody to the hilt, sliding across the floor from the area across the room where the fight was in full progress and coming to rest at his foot, as he stood at the bar close to Rodriguez. Wilson thereupon picked up this knife and threw it behind the bar to prevent any further use of it. There was no direct evidence as to whose hand had held this large knife or who, if any of those involved, had plunged it into the victim.

There was medical testimony by Dr. Milton Ackerman, who conducted a postmortem examination of Elacco on November 30, 1968, at about 10:15 a.m., that the victim died of a stab wound of the chest with hemorrhage produced by that stab wound. He elaborated that “the wound penetrated the left chest * * * at about the level of the sixth rib * * * passing through the lower lobe of the left lung, and then penetrating the heart.” He described the wound as a “tapering wound” and calculated the depth of the wound as “five to six inches” from the skin surface to the point of the deepest penetration of the left heart chamber.

Shown a 3 1/4-inch-blade knife found in Tapia’s dresser, Dr. Ackerman stated his opinion that “this knife could not have caused this wound.” Shown a skewer found under a refrigerator in Rodriguez’ apartment, which was circular and only three or four inches long, the doctor stated as his opinion that this skewer could not have caused the death wound. This opinion was based also on the fact that the wound was made by a “flat-bladed object” and the wound penetrating the skin “was a little bit under two inches.” The smaller knife, found in Tapia’s dresser, was not even an inch and one-half wide. But Dr. Ackerman stated as his opinion that the butcher knift could have produced the “entrance wound” and its blade of “almost ten inches” could have been the knife used to inflict the mortal wound.

Certainly, the jury could reasonably find the butcher knife, with blood on it to the hilt, sliding across the floor from the direction of the battle area, was the weapon used to kill Elacco.

Marion Kamen, a witness for the State, testified that, in her capacity as a senior chemist employed by the New Jersey State Police, she typed and classified blood samples of the victim Albert Elacco and defendant Laboy, as well as blood on the hilt or handle of the butcher knife. All revealed Tj^pe 0 blood. The skewer was negative for blood; the small knife was positive for human blood, but there was not enough for typing. Hernandez’ blood was Type B.

There was evidence of animosity on Laboy’s part against Elacco which predated the fatal incident. Mrs. Hola Link, a girlfriend of Elacco, testified to a conversation she had with Laboy a week before Hovember 30, during which he told her: “If I don’t get your husband, meaning Al, that he will kill my child or me.” This threat was apparently prompted by La-boy’s expectation that Elacco would testify against him in an unrelated robbery case. There was testimony by eyewitnesses that, immediately before the murder, Elacco had walked from the bar toward a pool table where Laboy was with Tapia and Hernandez, and as Elacco approached the men, there was a heated argument in Spanish and Elacco was struck in the face by Hernandez or Laboy, or both. A fight immediately ensued, during which Elacco was mortally wounded, and thereupon Tapia, Laboy and others hurriedly left the barroom.

We need not dwell on further details at this point. We now consider the arguments advanced by Tapia and Laboy for a reversal. We shall deviate from their order of presentation for a more logical approach.

I

It is argued that if was unduly prejudicial to try Tapia and Laboy jointly with Eodriguez and that Eodriguez should have been severed from this trial.

This issue was not raised in the trial court. Ho motion for a severance was made prior to the trial or even at the trial. These defendants concede, “The usual procedure for the defendant who fears prejudice will result from a joint trial is to move prior to trial for a severance, and the court may grant such a motion.” State v. Sinclair, 49 N. J. 525 (1967); State v. Baker, 49 N. J. 103 (1967); State v. Manney, 26 N. J. 362 (1958). R. 3:15-2(b) provides:

If for any other reason it appears that a defendant or the State is prejudiced by a joinder of offenses or of defendants in the indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

The joinder of the five in the same indictment for a single murder at the same time and place, on the theory that all those indicted had participated in the offense, was proper. It is authorized by R. 3 :7—7. In the interests of economy and efficiency, jointly indicted defendants may be tried in a single trial. Such was the situation here. There was but a single episode.

Defendants argue that they did not move for a severance because they anticipated that a statement made by Rodriguez to Yves Bonner G-anther (hereinafter “Ganther”), an investigator for an attorney representing Hernandez, obtained by mistake, would have been admitted. However, this statement was deemed inadmissible at trial essentialy because of the attorney-client privilege. Defendants even then did not move for a severance. But they maintain that the trial judge should have, sua sponte, severed Rodriguez as a party to this joint trial.

We appreciate that there are times when the circumstances are such that a trial judge should order a severance, sua sponte, in the interests of a fair trial and justice. See State v. Carroll, 51 N. J. 102 (1968); State v. Young, 46 N. J. 152 (1965); Washington v. Texas, 388 U. S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). But the instant case is not in that category.

Defendants allege that they had intended to use the statement, made by Rodriguez to Ganther under the mistaken belief that he was acting for Rodriguez’ own attorney and Ganther’s mistaken belief that he was interviewing Hernandez, as exculpatory evidence in their behalf. However, this evidence was ruled inadmissible, essentially under the attorney-client privilege, Rodriguez being a party defendant, as noted above. We find no substantial merit in this point.

Nor would Eodriguez’ statement constitute an "admissionn”, as defendants assert, because an “admission,” as such, can be made only by a party to an action, and Eodriguez would not, if severed from the trial, have been a “party” to the litigation.

Moreover, in the light of all the evidence, there would have been little, if any, probative value in Eodriguez’ statement, so far as these defendants are concerned, as noted in Point II, infra.

II

We next consider the claim of defendants’ Tapia and Laboy that it was prejudicial error for the trial court to exclude the testimony of the investigator concerning his interview with Eodriguez.

Defendants argue first that Ganther’s testimony would not have been within the attorney-client privilege. We disagree. This investigator was engaged by the Public Defender to assist Mr. Donald Phillips, an attorney designated by the Public Defender to represent defendant Hernandez in this murder ease. In making his investigation he interviewed Eodriguez under the mistaken belief that he was interviewing Hernandez. This was undoubtedly due to confusion stemming from some similarity of names, Eodriguez’ full name being “Jose Eodriguez Hernandez,” and the other defendant’s name being “Jorge Hernandez.” He did not interview Hernandez, the person he was assigned to interview. The interview of Eodriguez at the jail was through an interpreter—Eodriguez spoke only Spanish and Ganther spoke only English. According to Ganther’s report, not admitted into evidence, Eodriguez stated that he observed the fighting take place and all of a sudden he was struck with a handsaw by Elacco, but only by the flat portion of the saw which caused no injury. Eearing he would be struck again, he allegedly stated that he quickly pulled “his knife [a 6" blade knife] and struck the victim somewhere near the left portion, the mid body.” He did “not know if he hit him. He did not see any blood and the victim did not fall down, and made no sign of being wounded.”

The trial judge properly determined that Rodriguez gave his statement for the benefit of his own attorney, believing that his interviewer was acting as agent for his own attorney. Erom this, it was correctly concluded that the statement was privileged as a confidential communication under the relationship of attorney and client.

Concededly, the attorney-client privilege extends to any person who is or may be the agent of either the attorney or client. State v. Kociolek, 23 N. J. 400 (1957); State v. Lo Ponio, 85 N. J. L. 357 (E. & A. 1913). Defendants, however, argue that Ganther was not the agent of either Rodriguez or his attorney, but rather the agent of Hernandez’ attorney. This is true, in fact, but his interview with Rodriguez was based upon his representation and mistaken belief that he was acting as agent for Rodriguez’ attorney; and Rodriguez’ statement, confidential in nature was given in reliance upon Ganther’s representation that he was acting for Rodriguez’ attorney. This is not a case of a bystander accidentally overhearing a conversation between an attorney and client. See People v. Barker, 60 Mich. 277, 27 N. W. 539 (Sup. Ct. 1886), where a private detective, and State v. Russell, 83 Wisc. 330, 53 N. W. 441 (Sup. Ct. 1893), where a district attorney represented themselves to the accused as his attorney and the statements obtained were held inadmissible. We find no valid distinction between a deliberately false representation of attorney status and one mistakenly made, upon the basis of which in either instance the purported client fully relies, simply because the one misrepresentation is more grievous than the other. The confidence exists even where there was no deliberate intent to deceive. See 3 Wharton’s Criminal Evidence (12 ed.), § 808 at 155.

So, too, we find lacking in merit defendants’ claim that Rodriguez’ statement was admissible as a “declaration against interest.” See Evidence rule 63(10). They argue that a declaration against penal interest is admissible “if it exculpates a defendant on trial,” citing Report of the New Jersey Supreme Court Committee on Evidence (1963), Comment on Rule 63(10), at 171.

The statement by Rodriguez would not exculpate these defendants. When he. allegedly struck at Placeo with a knife, as a defensive measure, Rodriguez “did not know if he hit him. He did not see any blood and the victim did not fall down, and made no sign of being wounded,” according to Ganther’s report. Rodriguez immediately ran out and took the knife with him. Such a declaration further lacks exculpation in view of Wilson’s testimony as to the bloody butcher knife, capable of causing the mortal wound, and the testimony of the witness Garcia who heard Tapia say to Laboy during the progress of the tight, “Kill him. Kill him.” Nor would it detract from the incriminating evidence of Garcia’s testimony that he saw Tapia pass a knife to Laboy, who stabbed at Placeo twice and then “saw blood on the shirt [Placco’s],” and that Tapia, with the same knife, then stabbed Placeo in the left side of his breast.

In brief, the statement by Rodriguez was not of such an exculpatory character as to justify its admission into evidence under Evidence Rule 63(10), even were it not also properly excluded under the attorney-client privilege.

III

During the trial James Greene, testified as a witness for the State. He witnessed the fight in question. He stated that he saw Placeo swinging a saw at three or four people in front of him. Fie identified Laboy as being there and standing with several others in front oí Placeo. He asked Placeo what he was trying to do and Placeo said, “They are out to get me.” Then he saw Laboy jab Placeo “with what I don’t know.” Placeo went back to the second or third stool from the end of the bar and then “collapsed.”

Defendants contend that Placco’s statement to Greene was hearsay and it was, therefore, error for the court to permit the statement into evidence, over their objection.

We find no error in the trial court’s admission into evidence of Greene’s recital of Elacco’s declaration of a condition observed by him while he was “under the stress of nervous excitement caused by such perception, in reasonable proximity to the event, and without an opportunity to deliberate or fabricate.” Evidence Buie 63(4). Elacco’s statement was uttered spontaneously and contemporaneously with the fight. It explained his brandishing his carpenter’s saw in defense against his apparent attackers armed with knives; The fact that the statement was in answer to a question does not deprive it of its spontaneity or make it any the less a part of the res gestae. See Riley v. Weigand, 18 N. J. Super. 66, 73-77 (App. Div. 1952). The statement was further evidence of the threat made a week prior when Laboy told Nola Link of his intent to “get” her husband, meaning Al, adverted to above. Then, too, the State’s witness, Wilson, testified that Laboy struck the first blow and thereupon the fight ensued.

IY

Defendant’s next point is that the trial court erred in denying their motion for a new trial. There were two reasons asserted in support of this motion. Eirst, they argue that the verdict was against the weight of the evidence. Secondly, they aver that the acquittal of Rodriguez makes him now available for use at a new trial at which they would have access to vital evidence, not previously available when he was on joint trial. They would equate this newly available evidence with newly discovered evidence, albeit they knew of it before the former trial.

We shall dispose of the claim that the verdict was against the weight of the evidence under Point V, infra, where defendants iterate the same argument.

The “new evidence” alluded to is the report of the interview of Rodriguez by Ganther. But this evidence would still be subject at a new trial to the attorney-client privilege under which it was obtained. The availability of Rodriguez to testify at a new trial, and Ms inability then to invoice the privilege against self-incrimination by reason of his acquittal of this murder charge, does not carry with it any assurance that he could not and would not invoke the same privileges again because of other charges which could be made against him, e. g., carrying a concealed weapon, or atrocious assault and battery, to name but two.

V

These defendants assert, finally, that the verdict was contrary to the weight of the evidence.

Our review of the trial transcript and the evidence satisfies us that it does not clearly and unequivocally appear that the trial court’s denial of the motion for a new trial was a manifest denial of justice under the law. R. 2:10—1. State v. Forcella, 35 N. J. 168, 175 (1961), cert. denied 369 U. S. 866, 82 S. Ct. 1035, 8 L. Ed. 2d 86 (1962); State v. Reyes, 98 N. J. Super. 506, 512 (App. Div. 1968), certif. den. 51 N. J. 582 (1968).

The judgments of conviction are affirmed.