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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. QUINCY H. LUCARELLO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1975
    Decided June 12, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Thomas P. Ford, Jr., argued the cause for the appellant (Messrs. Citrino, Balsam <& Ford, attorneys).

      Mr. Steven E. Bosenfeld, Assistant Prosecutor, argued the cause for the respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

The Law Division, by order, relieved Thomas P. Ford, Jr., as counsel for defendant Quincy H. Lucarello, Commissioner of Public Safety and Director of the Police and Fire Departments of the City of Orange, ‘^because of conflict of interest due to his former position as an Assistant Prosecutor of Essex County and First Assistant Prosecutor of Essex County during the period between September of 1959 and September of 1971.” Defendant applied for leave to appeal from that order. We granted such leave and accelerated the appeal. See B. 2:5-6, B. 2:9 — 2.

The pertinent facts may be briefly summarized. Ford joined the Essex County Prosecutor’s Office as an assistant prosecutor on September 14, 1959. On May 2, 1966 he was appointed first assistant prosecutor of the county and served in that capacity until September 3, 1971 when he became a partner in the law firm of Citrino, Carella, Balsam & Ford, now Citrino^ Balsam & Ford. In August 1965 an investigation was undertaken by the Essex County Prosecutor’s Office regarding possible criminal activity within the Police Department of the City of Orange. The investigation is still continuing.

According to the prosecutor’s office a primary source of information throughout the investigation has been Eocco Za-rillo. Director of Information and Complaints for the City of Orange, who continuously reported regarding police improprieties in Orange. It is his testimony which forms in substantial part the basis for the present indictments against defendant charging defendant with (1) false swearing before the Essex County grand jury on December 3, 6 and 13, 1974 (Indictment No. 1994-74); (2) conspiracy to obstruct justice from on or about May 28, 1974 through on or about July 9, 1974, obstructing justice and malfeasance in office (Indictment No. 1995-74), and (3) conspiracy, between on or about September 26, 1974 through on or about March 24, 1975, to obstruct justice by endeavoring to persuade Eocco Zarillo to testify falsely before the grand jury, obstructing justice and attempted subornation of false swearing (Indictment No. 1996-74).

At the hearing in the Law Division the trial judge asked counsel whether he recalled, during the time he was assistant prosecutor or first assistant prosecutor, interrogating Rocco Zarillo. Ford answered: “I may have talked to him.” At the hearing assistant prosecutors informed the court that Rocco Zarillo had played certain tape recordings for the prosecutor’s office; that Ford was present at the interrogation of Zarillo during the playing of the recordings; that one recording, made in 1969, called the “Split the Pie” tape recording, referred “to certain Orange police officers allegedly on the pad to certain gamblers in the City of Orange”; that this tape recording was played for Ford when he was employed in the prosecutor’s office, and that this recording “is a part” of the indictment for false swearing returned against the defendant Quincy H. Lucarello. This latter reference obviously is to that part of one of the indictments which alleges that defendant testified falsely before the grand jury when he denied, among other things, that he knew of the tape or that he discussed its contents with Rocco Zarillo, or that he knew that any potential grand jury witnesses intended to testify in an untruthful manner about the tape. When asked by the trial judge whether he recalled listening to tapes in 1970, as the prosecutor alleged, Ford answered: “I don’t, but I will, for the purposes of this record, I will say that there may have been tapes I heard.”

It is clear from the record before us that two of the pending indictments (Nos. 1996-74 and 199L-74) against defendant, in substantial part charge him with (among other things) attempting to keep from the grand jury evidence of alleged criminality involving the Orange Police Department uncovered by the prosecutor’s office during Ford’s tenure there in an investigation in which he took part as first assistant prosecutor.3 Ford’s continued representation of defendant would, accordingly, be in direct violation of Disciplinary Buie SL-lOl(B), which reads as follows:

A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

Cf. N. J. S. A. 52:13D-17.

As pointed out by the court in In re Biederman, 63 N. J. 396 (1973):

The ethical requirement that an attorney who has been a public employee may not, upon retirement, act on behalf of a private client in any matter upon which he was engaged in the public interest is neither new, ambiguous nor difficult to understand. In Formal Opinion 134 of the American Bar Association (1935) it was held that an attorney formerly employed by a state’s attorney’s office might not, after retiring to private practice, either defend cases that originated while he was connected with that office or defend persons against whom he had aided in procuring indictments. In N. J. Advisory Committee on Professional Ethics, Opinion 207, 99 [sic] N. J. I¡. J, 451 (1971) the same result was reached upon substantially identical facts, even though the attorney had played no part in the investigation and prosecution which had taken place while he was an assistant county prosecutor, [at 399-400]

In the N. J. Advisory Committee on Professional Ethics, Opinion 207, 94 N. J. L. J. 451 (1971), reference was made to the very similarly, although less precisely, phrased predecessor rule to DR 9-101(B) which appeared as part of former Canon 36 of the Canons of Professional Ethicsa and which provided that:

A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.

The Advisory Committee, on Professional Ethics, in Opinion No. 207, quotes the following from Opinion 134 (1935) of the Committee on Professional Ethics of the American Bar Association:

A lawyer retiring from public employ cannot utilize or seem to utilize the fruits of the former professional relationships in subsequent private practice involving a matter investigated or passed upon either by himself or others of the public legal staff during the time he was identified with it.

And, N. J. Advisory Committee on Professional Ethics, Opinion 111, 90 N. J. L. J. 361 (1967), points out in part that:

The American Bar Association, Committee on Professional Ethics, Opinion 134 (1935), interprets Canon 36 and extends the prohibition [therein] to any matter which originated in the office with which the attorney was connected where he was in a position of confidence and actually knew or had the opportunity to know facts because of his position in said office.

We find no merit in Eord’s suggestion that there is no conflict of interest or appearance of a conflict inasmuch as the dates of the specific charges in the pending indictments are long after he left the prosecutor’s office. While the indictments against defendant charge him with acts occurring after Ford left the prosecutor’s office, much of the information relevant to the crimes charged in two of the indictments was gathered while Ford was first assistant prosecutor. The crimes charged in these two indictments involve, in substantial part, alleged manipulation or cover-up of the previously gathered evidence. Having had a part in the investigation of alleged criminal activity in the Orange Police Department while first assistant prosecutor, Ford is disqualified at any time from representing a defendant charged with attempting to keep from the grand jury evidence of such alleged criminal activity. Public confidence in the bar can demand no less.

Defendant, of course, is entitled to retain qualified counsel of his own choice. He has no right, however, to demand to be represented by an attorney disqualified because of an ethical requirement. And, we point out, his remaining choice is not a narrow one. There are many well qualified attorneys who are not affected by the disqualification which is the subject matter of this appeal.

The order of the Law Division under review is affirmed.

Morgan, J. A. D.

(dissenting). I dissent from the opinion of my colleagues because of one essential and uncontroverted fact. The offenses with which Lucarello is charged with committing occurred approximately three years after Ford resigned from his position as Essex County Assistant Prosecutor. Ford could not therefore have been with the prosecutor’s office at the time these offenses were the subject of the investigation because they had not yet occurred. One can only investigate a past event, not a future one.

Ford was retained by Lucarello to'defend against charges contained in three multi-count indictments returned in April 1975. The first indictment, No.. 1996-74, charges Lucarello with having attempted, between September 26, 1974 and March 24, 1975, to suborn perjured testimony by one Rocco Zarillo in connection with a criminal investigation “then pending” before a grand jury of Essex County, and conspiring with others, named in the same indictment, to suborn Zarillo’s perjured testimony before the grand jury during that same period of time.. The essential facts constituting the offenses charged in separate counts of this indictment are alleged therein as being that defendant and the codefendants, during the several months period referred to above, “unlawfully, unjustly and corruptly solicited, incited, enticed and endeavored to persuade the said Rocco Zarillo to testify falsely in the said investigation before the Grand Jury * * These solicitations, enticements and the like allegedly took place between September 26, 1974 and March 24, 1975, almost three years after Ford left office. I am at a loss to discern how Ford’s tenure with the Essex County Prosecutor’s Office which terminated three years before commission of the alleged offense could possibly confer on Ford or his client any possible advantage not enjoyed by counsel not so previously employed.

Lucarello has entered a plea of .not guilty to all counts of this indictment. Presumably, he will be denying that he singly, or in conspiracy with others, solicited, enticed or atr tempted to persuade Zarillo to perjure himself before the grand jury. Zarillo may well testify that Lucarello did commit these acts. At any rate, a credibility issue will be presented concerning whose testimony is to be believed. Nothing in the briefs submitted to this court, or during oral argument, or in the hearings conducted before the trial court, even remotely suggests that Ford may have obtained knowledge during his tenure with the prosecutor’s office which would permit him to more successfully defend against these charges based upon offenses committed long after he ceased being an assistant prosecutor.

The State concedes (the majority do not address the point) that Ford’s representation of Lucarello with respect to the second indictment, No. 1995-74 (in seven counts some of which are not applicable to Lucarello), does not implicate him in any conflict of interest arising from his previous tenure as assistant prosecutor so as to require his disqualification, because the conduct charged therein as criminal arose long after Ford ceased to be an assistant prosecutor and no investigation pertaining to those charges could have been conducted by the prosecutor’s office during Ford’s term of service. Why should Ford b:e qualified with respect to the charges in Indictment 1995-74 and disqualified with respect to indictment 1996-74, when the charges in both were with respect to conduct occurring long after Ford left office. Surely the fact that Ford may have known Zarillo, the person whose perjured testimony was allegedly sought by Lucarello in 197L-75, cannot be the basis for disqualification. The fact that a lawyer knows or even has dealt with a witness (in other than a lawyer-client relationship not here pertinent), by itself, is no basis for disqualification under any rule of ethics with which I am acquainted.

The third indictment, No. 199L-74, charges Lucarello alone, in three counts, with having given false testimony on or about December 3, 6 and 13, 1974 before the grand jury in connection with a criminal investigation “then” pending. Here, too, the criminal conduct charged to Lucarello occurred long after Ford left the office of assistant prosecutor, and his former office could not have been investigating this matter at the time he served because it had not yet occurred. The majority’s 'concern, and the opinion which reflects it, stems from the fact that the false testimony allegedly given by Lucarello concerned his knowledge of the existence and contents of a tape recording, made during 1970, in which Rocco Zarillo participated — the so-called “split-the-pie” tape. This tape came into existence while Eord was an assistant prosecutor, and although he doesn’t recall, he is willing to have this court assume, arguendo, that he had actual knowledge of its existence and its contents. Accordingly, these facts are not • disputed. It must be stressed, however, that this tape did not implicate Lucarello in anything. He was not mentioned therein. Indeed, he could not have been since he was not even elected at the time to the office in which he had to be in order to commit the offense with which he is being charged in these three indictments. (He was elected police commissioner in May or June of 1974). Moreover, Lucarello is not being charged with testifying at variance to the facts related in the tape.. Rather the charge is that he misrepresented, under. oath, the extent of Ms knowledge concerning the existence of the tape ■ and knowingly misrepresented to the grand jury, under oath, the contents thereof. The existence of the tape, however, and its contents, are no secret. The tape is discoverable and, in fact, has already been discovered by several of the codefendants in this series of indictments. Moreover, with respect to the charges contained in this indictment (Ho. 1994-74), iit will be an essential item of proof in the State’s case against Lucarello and will have to be disclosed during trial. The truth or falsity of the matters referred to therein is not at issue with respect to these charges. The only issue concerns whether Lucarello lied when he minimized his knowledge of the existence of the tape or, for example, when he referred to it as being unintelligible (when it is contended it was intelligible) or when he described or knowingly misdescribed its contents. The tape is an immutable fact; it says what it says, and no one, not even Eord, can change it.

Accordingly, I fail to see how the fact that the tape came into existence during Ford’s tenure as assistant prosecutor, and that he had knowledge of its existence and contents during that period of time, can be the basis for a disqualification. Such knowledge would have to be shared by any other counsel retained to defend Luearello with respect to these charges. He would have to acquaint himself with the contents of the tape. The fact that Ford is assumed to already have this knowledge cannot therefore be the basis for any conflict on his part and consequent disqualification.

The simple fact is that Luearello wants Ford to represent him. Ford accepted the retainer and, interestingly, acted pursuant to this retainer in representing Luearello, while Luearello testified (falsely according to indictment No. 1994-74) before the grand jury with respect to these tapes of which Ford presumably had knowledge, the very conduct which gave rise to these charges. Luearello should be held entitled to be represented by counsel of his choice unless chosen counsel is clearly disqualified, for ethical considerations, from representing him. The right to counsel of one’s choice is inherent in the constitutional right to counsel afforded one accused of crime in state prosecutions by the Fourteenth Amendment to the United States Constitution. Crooker v. California, 357 U. S. 433, 439, 78 S. Ct. 1287, 2 L. Ed. 2d 1448, 1454 (1958); United States ex rel. Ferenc v. Brierley, 320 F. Supp. 406, 408 (E. D. Pa. 1970); Lee v. United States, 98 U. S. App. D. C. 272, 235 F. 2d 219, 221 (1956). It is a right of great magnitude and should not be compromised on the basis of some ephemeral and visceral adverse reaction to a particular retainer. Unless there exists some real basis for disqualification, on recognized and justifiable ethical ground, this important right should be held inviolate.

Ethics Opinion 207 is inapplicable. It holds that a former assistant prosecutor is disqualified from representing an accused who was indicted “as a result” of an investigation being conducted by the prosecutor’s office while the former assistant prosecutor- held, office. (Iu the case presented, the retainer was being considered only two months after he left office). In this case' there can be no, dispute but that Lucarel'lo was not indi'cted “as a result” of an investigation conducted while Eord was assistant prosecutor. The offense with which Lucarello. is charged occurred almost three years later and thérefore could hot have been under investigation: at the time. In re Biederman, 63 N. J. 396 (1973), a case of egregious conflict of interest on the part of the attorney therein involved, is clearly inapplicable to- the present case.

What' are the considerations underlying the court’s opinion? .Clearly, they do not concern the interests of the accused who is resisting the action taken by the majority. Presumably the court’s primary concern is with possible prejudice to the State. But the State has not even claimed that it would be prejudiced by Ford’s continued participation in the case. It has certainly failed to point out how it would be prejudiced, and the court’s opinion is no more informative. Ford is apparently being disqualified for a “conflict of interest.” But nowhere in the majority opinion is the “conflict” identified. I perceive none. Surely Ford would not be expected to be interested in convicting his own client or in protecting Rocco Zarillo with whom he had no previous relationship.

It appears that the majority’s fundamental concern is with the court’s image in the “public” mind. But what are the dark suspicions which the majority fear the “public” will harbor concerning the integrity of this prosecution? Surely the public will not suspect a failure of the State to vigorously press the prosecution because of Ford’s presence in the case when the prosecution went to the trouble of securing the multiple indictments against Lucarello after being aware that Ford was representing him. How could the public suspect leniency of the prosecutor in Ford’s favor when the prosecution has so vigorously sought his ouster ? Indeed, if the State is as vigorous in its prosecution of Lucarello as it has been in its efforts to disqualify his attorney, public confidence in the sufficiency of the prosecution will be fully vindicated. Although the court’s concern with the image of justice is commendable (I share it), its opinion nowhere describes how Ford’s participation will or could result in tarnishing it.

For these reasons I fail to see how Ford’s representation of Lucarello is “conduct that is prejudicial to the administration of Justice.” DEI-102. He did not have “substantial responsibility” in the matter now pending while he was a public employee because, as previously noted, the “matter” had not even come into existence at that time. DE9-101(B). The consequences of a generalized public distrust of governmental functions so much an unfortunate element in our current life should not be visited upon Lucarello.

I doubt whether public confidence in the integrity of our judicial procedures can be maintained (or restored) by disqualifying attorneys for an unethical conflict of interest where none exists or can exist, with the result of depriving a criminal accused of the services of an attorney in whom he reposes confidence.

The relationship between attorney and client is highly confidential, demanding personal faith and confidence in order that they may work together harmoniously. [In re Mandell, 69 F. 2d 830, 831 (2d Cir. 1934)]

Unfounded suspicions of ethical infractions by the public should not be given the effect of interfering with an accused’s fundamental constitutional right to counsel of one’s own choice. Public confidence can never be based on so flimsy a foundation.

        E. g., that between on or about November 1, 1974 through on or about November 14, 1974 defendant and others named with him (1) “did attempt willfully to cause, procure and suborn willful false swearing by soliciting, instigating and endeavoring to persuade Roeco O. Zarillo to be and appear as a witness before the said Grand Jury and upon the same investigation to falsely swear and give false evidence,” and (2) “did willfully and knowingly solicit and endeavor to persuade Itocco O. Zarillo, a Grand Jury witness, to withhold, burn, destroy and prevent the said Grand Jury from hearing certain tape recordings of a potential criminal nature against certain police officers of the City of Orange.”
      That on or about December 6, 1974 he swore falsely before the grand jury when he denied that he knew that any potential grand jury witnesses intended to testify in an untruthful manner about the so-called “split-the-pie” tape, in that he “did have knowledge that potential Grand Jury witnesses intended to testify about the so-called ‘split-the-pie’ tape in an untruthful manner before the said Grand Jury.”

       94

      By separate opinion filed today we have also sustained the disqualification, on separate grounds, of Allen O. Marra, a former assistant prosecutor, an associate in the law firm of Citrino, Balsam & Ford, (a) as attorney for Gaetano Jaquindo and Salvatore Rizzo, charged in two indictments as coconspirators with defendant Quincy H. Lucarello, and (b) as attorney for Felix Jaquindo. See State v. Jaquindo, Rizzo and Jaquindo, Docket Nos. A-2975-74, A-2976-74 and A-2977-74.

      The court’s opinion characterizes the net effect of the charges against Lucarello as “attempting to keep from the grand jury evidence of alleged criminality involving the Orange Police Department uncovered by the prosecutor’s office during Ford’s tenure there in an investigation in which he took part as first assistant prosecutor.” I do not concur in this characterization. The charges against Lucarello are as reflected in the indictments in which he is named as defendant.

      It did not hold, as it easily could have, that the former assistant prosecutor was disqualified, for a stated peroid of time, from representing an accused in the county in which he served as such. Although much could be said in support of such a rule, it has never, to my knowledge, been adopted.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SUE H. DEAN, PETITIONER-APPELLANT, v. JOSEPH A. HOFFMAN, COMMISSIONER OF THE DEPARTMENT OF LABOR AND INDUSTRY, AS CUSTODIAN OF THE SECOND INJURY FUND, RESPONDENT-APPELLEE.
    Superior Court of New Jersey Appellate Division
    Argued May 6, 1975
    Decided May 16, 1975.
    ' Before Judges Carton, Crane and Kolb.
    , Mr. Alfred J. Hill argued the cause for appellant (Messrs. Wilentz, Goldman & Spitzer, attorneys).

      Mr. Peter D. Pizzuto, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).
   Per Curiam.

In this workmen’s compensation action petitioner Dean appeals from an order dismissing her application for benefits under the Second Injury Fund (N. J. S. A. 34:15-94 et seq).

Petitioner received an award for a work-connected injury on March 30, 1972. The judge of compensation found partial permanent disability from May 22, 1968, orthopedic and neuropsychiatric in nature, involving an occupational disability superimposed on a pre-existing osteoarthritis with post-traumatic neurosis. On this basis he awarded petitioner 66 2/3% of partial total disability (50% orthopedic in nature; 16 2/3% neuropsychiatric in nature) for 366 2/3 weeks, at $40 a week, totaling $14,666.67. This court, in an unreported opinion, affirmed on the basis of the findings of the judge of compensation.

, Petitioner filed her petition in the present proceeding for injuries under the Second Injury Eund on March 19, 1973. In support of her claim petitioner produced the testimony of Dr. Novich, who expressed the opinion that petitioner was totally disabled and unfit for the labor market. He also expressed the opinion that, assuming an award of 66 2/3% partial disability and petitioner’s medical history, she is totally disabled, and was so at the time of the prior judgment. It appears that Dr. Novich testified in the earlier proceeding, at which time he found 40% disability. His explanation for the inconsistency was that when he examined petitioner in 1971 he only examined her neck and not her low back.

The judge of compensation, in his advisory report to the Commisioner of Labor and Industry, found that petitioner had not sustained the burden of proving her eligibility for benefits under the fund. In so ruling he noted that in the prior judgment it was determined that petitioner was'hot totally • disabled. The judge of compensation rejected Dr. FTovich’s testimony that he had not considered her overall condition when he examined her on the previous claim.

The Director of the Division, acting for the Commissioner, adopted Judge Saland’s advisory report and.. dismissed the petition. Hence this appeal.

We affirm. The Commissioner’s finding and determination could reasonably have been reached on sufficient credible evidence present in the record, giving due weight to the expertise of the judge of compensation and his opportunity of hearing and seeing the witnesses. De Angelo v. Alsan Masons, Inc., 122 N. J. Super. 88, 89 (App. Div.), aff’d o.b. 62 N. J. 581 (1973).

We add this comment. In the earlier proceeding petitioner sought an award claiming total disability not only on the basis of her neck injury but also because of a claimed back injury. In that proceeding the Compensation Division ruled that she was entitled only to an award of partial total disability and rejected the larger claim of total disability. This court affirmed that award. It would appear to us that she may not relitigate the very same question in this proceeding to which the employer is not a party. The principle of collateral estoppel should bar the present proceeding.

Affirmed.


text:
    MOTOR CLUB FIRE & CASUALTY CO., PLAINTIFF-RESPONDENT, v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-APPELLANT, AND FRANCES SCIBETTA, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 6, 1975
    Decided July 15, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Richard D. Catenacci argued the cause for appellant New Jersey Manufacturers Insurance Company (Messrs. McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Jerome S. Lieb argued the cause for respondent Motor Club Fire & Casualty Co. (Messrs. Lieb, Teich & Berlin, attorneys.).

      Mr. Judson L. Levin argued the cause for respondent Frances Scibetta.
   Per Curiam.

New Jersey Manufacturers Insurance Company (NJM) appeals from a judgment declaring that the insurance policy which it issued to Jennie Y. Leonard affords primary coverage for an accident which occurred while Nicholas Scibetta (Nicholas) was driving Mrs. Leonard’s automobile-. -At the time Nicholas owned an automobile which was insured by plaintiff, Motor Club Firé & Casualty Company (MCA), whose policy covered Nicholas while operating another vehicle. The principal questions sought to be determined in the action commenced by MCA were whether the NJM policy afforded coverage for the accident and, if so, which policy afforded primary coverage. The problem was created when Nicholas, who had been invited into the car as a passenger, took over the operation of the car and drove off after Mrs. Leonard was frightened into leaving the car by Nicholas’ unusual behavior.

There is no substantial dispute of fact. Mrs. Leonard testified in the nonjury trial below, and her prior deposition, as well as that of Nicholas and Mrs. Scibetta, were placed in evidence.

On August 26, 1971, Mrs. Jennie Leonard, aged 63, was a neighbor of the Scibettas, whose son Nicholas was experiencing a serious emotional disorder. Nicholas was scheduled to see a psychiatrist that night. Mrs. Leonard was going to drive him there and decided that they should look for the office in the afternoon so that she would know her way. Mrs. Leonard was driving her car, and Nicholas and his mother, who went along, were in the front seat. Mrs. Scibetta was seated between Mrs. Leonard and Nicholas.

On the trip Mrs. Leonard made a wrong turn. She stopped for directions and then returned to the correct road. Suddenly Nicholas, in an agitated state, seized the steering wheel and started to climb over his mother toward the driver’s seat. According to Mrs. Leonard’s testimony he said, "Get out of this car, Jennie, get out of this car.” Mrs. Leonard and Mrs. Scibetta both testified that they became very frightened. Mrs. Leonard testified, "It was like a shock. I never expected it, really.” She testified that she put on the emergency brake and got out of the ear because she was frightened. Mrs. Scibetta testified that she and Mrs. Leonard were "stunned” and "scared” and that Mrs. Leonard said, "Oh, my God,” and stopped the ear. Mrs. Scibetta kept telling Nicholas to stop, but he paid no attention to her. After getting out of the car, leaving her pocketbook behind and the motor running, Mrs. Leonard just stood there; she was “stunned.” She testified that Nicholas drove off and left her standing there. It all happened very fast.

Shortly after driving off Nicholas was involved in an accident. He struck another vehicle and a building. Mrs. Sci-betta was injured and commenced an action against Nicholas. Suit papers were forwarded to NJM with the request that it defend Nicholas. NJM disclaimed coverage on the ground that Nicholas was not operating the vehicle with the permission of its insured. Thereafter, this action was instituted.

The trial judge held that the NJM policy afforded coverage for the accident while the car was operated by Nicholas. His rationale was as follows: (1) the NJM policy (as well as the MCA policy) included as “persons insured” the named insured (Mrs. Leonard), residents of her household and “any other person using” the Leonard vehicle “with the permission of the named insured, provided the actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission”; (3) by the terms of the policy NJM agreed to pay “on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * arising out of the ownership, maintenance or use of the * * * automobile * * (3) N. J. S. A. 39:6-46(a) and N. J. S. A. 39:6-48(b) require that an insurance policy insure “any other person using * * * any such motor vehicle with the express or implied consent of the insured, against loss * * * for injury * * * growing out of the maintenance, use or operation of the motor vehicle * * (4) although “his [Nicholas’] use later on was converted or extended * * * into an operation * * * his use, nevertheless, continued.” Accordingly, it was held that by operation of law the NJM policy was required to cover the accident resulting from the “continued use” of the vehicle by Nicholas after he became the operator of the vehicle.

Whether Nicholas was operating the vehicle with the permission of Mrs. Leonard was dealt with by the trial judge in the following manner: Mrs. Leonard knew that Nicholas’ mental condition was “something less than stable,” and when she got out of the car she “knew that Nicholas Scibetta was attempting to place himself in the driver’s seat behind the steering wheel.” The trial judge further reasoned that the driver of a vehicle is presumed in law to he operating it as the agent of the owner; that the owner must rebut that presumption, and that Mrs. Leonard did not carry the burden of persuasion that Nicholas was not driving the vehicle with her permission. The trial judge specifically stated:

I have not decided that he was operating the vehicle with permission * * *.
I have not found that she gave Nicholas Scibetta an implied consent or that he had the implied consent to operate. I haven’t said that and I make no finding on the point. I said that alternative to my main decision, which went on a construction of the policy, I find that his operation was presumed in the law to be as her agent and as her agent, therefore, with her permission. I said further that because of that, you [NJM] have the burden of persuading the trier of fact that such operation was not as an agent or with implied consent. I further said you [NJM] failed to satisfy or sustain the burden.

In this case we have no difficulty in concluding that Nicholas did not have permission to operate the Leonard car. To the extent that the trial judge left the issue undecided, we exercise our authority to make a finding of fact on this issue. R. 2:10-5; Farmingdale Realty Co. v. Farmingdate, 55 N. J. 103, 106 (1969). To the extent that the trial judge determined that Nicholas’ permission to use the car had not been disproved, giving effect to the presumption of agency, we disagree. The presumption of agency between owner and driver (Tischler v. Steinholtz, 99 N. J. L. 149, 152 (E. & A. 1923); Mahan v. Walker, 97 N. J, L. 304, 306 (E. & A. 1922) )■ has been considerably weakened by the low place now accorded to presumptions of fact, once contrary evidence has been introduced. Evid. R. 14; Harvey v. Craw, 110 N. J. Super. 68 (App. Div. 1970), certif. den. 56 N. J. 479 (1970). Cf. In re Weeks, 29 N. J. Super. 533 (App. Div. 1954), There the court noted that a presumption disappears as a factor in the case when substantial evidence of contradiction or explanation has been adduced. Id. at 536. Evid. B. 14 does not require “substantial” evidence — merely “evidence to the contrary of a presumed fact,” unless reasonable minds could not differ. See State v. Humphreys, 54 N. J. 406, 414r-416 (1969). Here it is clear that Nicholas was not driving the car as the agent .of Mrs. Leonard. Harvey v. Graw, supra; cf. Clemens v. O’Brien, 85 N. J, Super. 404 (App. Div. 1964).

Mrs. Leonard testified that never before had she given permission to Nicholas to drive the car. She was frightened into leaving her car. Even if she had realized that Nicholas intended to take over the operation of the car, she left under duress and did not voluntarily consent to his operation. While Mrs. Leonard had not prohibited the operation of the car by Nicholas, we conclude that the “willing mind of the permitter” (State Farm Mut. Auto. Ins. Co. v. Zurich Am. Ins. Co., 62 N. J. 155, 168 (1973)), is not present and cannot be inferred in this case.

The substantial issue in the ease is whether the NJM policy affords coverage when Nicholas’ initial use of the car as a passenger was with permission but was followed by his operation of the car without the owner’s permission, express or implied.

In Selected Risks Ins. Co. v. Zullo, 48 N. J. 362, 373 (1966), as earlier in Matits v. Nationwide Mut. Ins. Co., 33 N. J. 488, 496 (1960), it was held that policies insuring motor vehicles registered in New Jersey are deemed to contain the broad omnibus clause required by N. J. S. A, 39:6-46(a). This statute provides that the policy shall “insure the insured named therein and any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured * * N. J. S. A. 39:6-48(b) provides: “The policy * * * shall not conflict with the provisions of this act * * In Matits, supra, the court held that:

*' * if a person is given permission to use a motor vehicle in the first instance, any subsequent us® short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile insurance policy. [33 N. J. at 496-497]

Selected Risks Ins. Co. v. Zullo and Matits, supra, both held that the policies afforded coverage despite deviations from the intended use of the vehicle, where permission had been given initially to use and drive the vehicle. The deviation in Zullo was a trip for a soda, the driver being a minor, and in Matits it was drinking at several taverns before returning the car.

Indem. Ins. Co. of North America v. Metropolitan Cas. Ins. Co. of New York, 33 N. J. 507 (1960), was decided on the same date as Matits, supra. There the court hold that a policy covered an accident which occurred while the car was devoted to its intended use, a sales-promotion trip to a brewery, although it was driven by a guest in violation of instructions to the initial driver. The car had been entrusted to an employee of a corporation in which the car’s owner had an interest. The court there noted that the omnibus clause in question “says nothing about operation of the ve-hide,” operation being the “manipulation of the car’s controls” or, simply put, driving the car. Id. at 513. The clause afforded coverage for “any person while using the automobile * * * provided the actual use is with [the named Insured’s] permission.” Id. Ruling that an automobile can be used “by one riding in it,” although another is the driver, and that the use of an auto is broader than its mere operation, the court held that the coverage applied since the vehicle was still being used for the purpose of the trip, although a passenger, with consent of the initial driver, but contrary to his instructions, had taken over the operation of the vehicle. Id. Similarly, in Odolecki v. Hartford Accident & Indem. Co., 55 N. J. 542 (1970), it was held that coverage is afforded for an accident occurring while the car was driven by someone other than the first permittee (there, a son), despite instructions from the owner to the first permittee prohibiting its use or operation by another. The first permittee, the son, had given his friend permission to drive the car. In the course of its opinion the court overruled the more restrictive holding of Baesler v. Globe Indem. Co., 33 N. J. 148 (1960), in which a prohibition against the use by anyone other than the first permittee was given effect. The court in Odolechi noted that the purpose of the statutorily required omnibus clause is to protect the public as well as the named and additional insured. Odolecki, supra, 55 N. J. at 549; see State Farm Mut. Ins. Co. v. Zurich Am. Ins. Co., supra, 62 N. J. at 180.

In Odolecki and Indem. Ins. Co. of North America v. Metropolitan Cas. Ins. Co. of New York, supra, the omnibus clause included “any person while using the automobile * * * provided the actual use of the automobile is with * * * permission” of the named insured. In the latter case the court enunciated the rule that “coverage under an omnibus clause like the one before us depends upon whether the use, as distinct from the operation, of the automobile is a permitted one.” Id., 33 N. J. at 514r-515.

In the case at hand, the clause reads:

* * * any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission * * *.

This language was intended to preclude coverage of a vehicle which is operated without permission of the owner. It is not a violation of N. J. 8. A. 39:6-46 (a) to exclude coverage for a person who seizes and operates a vehicle without express or implied permission, notwithstanding that his initial use as a passenger was authorized. N. J. 8. A. 39:6-26(c) exempts owners from the requirements as to security or suspension, if their vehicles are operated without permission, express or implied.

In the case at hand, where the operation followed a coerced ouster of the owner from the automobile, we conclude that the initial use was superseded by an unauthorized seizure and operation. We do not find it unreasonable to permit an insurance policy to exclude coverage where a person, allowed to use a vehicle as a passenger, has ousted its owner from the vehicle and has taken over its operation without permission, express or implied.

Accordingly, we reverse the judgment insofar as it determined that the NJM policy afforded coverage and that NJM was required to undertake the defense and reimburse MCA for expenses incurred by MCA in its defense of the underlying action.

      The complaint asserted that if the Leonard motor vehicle was operated by Nicholas without permission of its owner, the MCA policy also' would not afford coverage to Nicholas. However, this position was abandoned at trial. Counsel for MCA conceded that Nicholas was covered by the MCA policy. The MCA policy provides that the named insured (Nicholas) is an insured person with respect to a nonowned automobile. No conditions are attached to that clause; specifically, such insurance is not conditioned on the named insured having permission to operate a non-owned vehicle.

      The judgment entered by the court declared that the NJM policy issued to Mrs. Leonard affords primary coverage to Nicholas for the claim of his mother arising out of the automobile accident of August 26 up to the policy limit; that secondary coverage is afforded by the MCA policy issued to Nicholas up to its policy limit; that NJM must furnish the defense to Nicholas in the action pending against him arising out of the accident, and that NJM must reimburse MCA for its cost incurred theretofore in furnishing a defense to Nicholas in the aforesaid action.


author: Michels, P. J. A. D. Morgan, J. A. D.

text:
    JOSEPH DAVI AND ROSE DAVI, HIS WIFE, PLAINTIFFS-APPELLANTS, v. CABANA POOLS, INC., A . CORPORATION OF THE STATE OF NEW JERSEY, AND S. TOM FREDA, A. K. A. THOMAS FREDA, DEFENDANTS, AND ROBERT D. STEARNS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 7, 1975
    Decided July 16, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Kenneth G. Poller argued the cause for appellants {Messrs. Weitz, Gutfleish, Wurtzel and Sterling, attorneys).
    No brief was filed in behalf of respondent.
   The opinion of the court was delivered by

Michels, P. J. A. D.

Plaintiffs appeal from a judgment dismissing their complaint against defendant Robert D. Stearns entered by the trial judge at the close of all of the evidence. Plaintiffs had entered into a contract with defendant Cabana Pools, Inc. (Cabana), pursuant to which Cabana was to furnish the necessary materials and labor for the installation of a swimming pool on plaintiffs’ property in the Borough of Hopatcong, New Jersey. The contract provided that plaintiffs were to be responsible for the pool location within their property lines. However, defendant S. Tom Freda, a/k/a Thomas Freda, an officer of Cabana, informed plaintiffs during negotiations that he would take care of everything. Freda looked at the property, measured it and advised plaintiffs that everything would be fine. However, Freda apparently did not inform plaintiffs of the necessity of obtaining building permits in order to install the pool. Plaintiffs signed the contract and executed a promissory note which was assigned by Cabana to New Jersey Mortgage and Investment Corp.

Shortly after the contract was signed Cabana applied to the borough for the necessary building and zoning permits on behalf of plaintiffs. Stearns, who was also president of his own pool company, was employed part-time by Cabana and other companies to obtain these permits. He completed and signed the applications for the permits filed with the borough. In each application he stated that the lot size of the property on which the pool was to be installed was 100 feet wide in the front and rear and 150 feet deep. He also stated that the pool would be erected 50 feet from the front line, 10 feet plus from the rear line, 15 feet from the left side line, and 5 feet plus from the right side line. Each application was signed by Stearns. The application for the building permit contained the following certification:

I, Robert D. Stearns interested as Agent residing at 89 Sand Rd Fairfield NJ will superintend the construction of the within said building, and having the proper authority from the owner to apply for this permit, and make this application, say: That the statements made in this application are true, and the proposed work will be done in accordance with the ordinances of the Borough of Hopatcong.

And the application for the zoning permit contained the following certification:

I, Robert Stearns interested as Agent Residing at 89 Sand Rd Fairfield, NJ having proper authority from the owner to apply for this permit and make this application say: That the statements made in this application are true.

On the basis of the truth and accuracy of the statements set forth in those applications the borough issued the zoning and building permits and Cabana constructed the pool on plaintiffs’ property.

The measurements set forth in both applications and certified by Stearns to be true were not truthful and were grossly inaccurate. The property was only 46 feet wide in the front and rear and only 100 feet deep. In addition, Stearns did not “superintend the construction” of the pool. As a result the pool was installed in violation of the sideline requirements of the borough’s zoning ordinance. Plaintiffs were therefore compelled to remove the pool at their own expense. They instituted this action against Cabana, Preda and Stearns to recover the damage they sustained as a result of alleged fraud, misrepresentation and negligence of each defendant. Freda ■ settled with plaintiffs prior to trial. At the close of all of the evidence the trial court directed a verdict in favor of plaintiffs against Cabana, which had defaulted, and granted Stearns’ motion for Judgment, holding that Stearns did not owe any duty to plaintiffs and that the representations made by Stearns in the applications for the building and zoning permits were not relied upon by plaintiffs. We disagree.

We are satisfied that in the light of the circumstances Stearns had a duty to exercise reasonable care in the preparation and filing of the applications for the building and zoning permits. As Justice Heher stated in Wytupeck v. Camden, 25 N. J. 450 (1957):

“Duty” is not an abstract conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably foreseeable, Lokar v. Church of the Sacred Heart, 24 N. J. 549 (1957). In the field of negligence, duty signifies conformance “to the legal standard of reasonable conduct in the light of the apparent risk”; the essential question is whether “the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” Prosser on Torts (2d ed.), section 36. Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct.
* :[¡ s$i * ❖ * *
“Duty” is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duty must of necessity adjust to the changing social relations and exigencies and man’s relation to his fellows; and accordingly the standard of conduct is care commensurate with the reasonably foreseeable danger, such as would be reasonable in the light of the recognizable risk, for negligence is essentially “a matter of risk * * *■ that is to say, of recognizable danger of injury.” Prosser, Ibid., section 30. [at 461-462]

Stearns was paid at the rate of $20 an application and had processed approximately 60 to 70 such applications for Cabana alone. He also handled similar applications for other companies, as well as his own pool company. He knew, or at the very least should have known, that the issuance of the necessary building and zoning permits was dependent upon the truth and accuracy of the facts stated in the applications, and that if a pool or any other structure were built in violation of the zoning laws, the property owner would be compelled to remove the structure at his expense. In spite of this Stearns did nothing to verify the truth or accuracy of the facts he certified in the applications and admittedly never gave any consideration to the consequences of his conduct. When he did not receive the usual plot plan for the proposed location of the pool on plaintiffs’ property but only “a mimeographed sheet or photostatic copy of something, which wasn’t a plot plan,” and it “looked like it was made out by the salesman or somebody of the proposed location of the pool,” he did not personally inspect and measure the property or even make any inquiry to verify the truth and accuracy of the information furnished him. He merely assumed that the measurements furnished to him by Mr. Tholen, a vice-president of Cabana Pools, were truthful. Moreover, there was no proof that Stearns was to superintend the construction of the pool, and his false statement to this effect apparently was made without direction by or command of Cabana.

We are satisfied from our study of the record that reasonable minds could differ as to whether Stearns exercised that degree of care in the preparation and filing of the applications that the reasonably prudent person under similar circumstances would have exercised. See Rappaport v. Nichols, 31 N. J. 188, 201 (1959); Ambrose v. Cyphers, 29 N. J. 138, 144 (1959). See also Prosser on Torts (4 ed. 1971), § 31 at 145-149. Thus, a factual issue was clearly presented for resolution by the jury, and the trial judge therefore erred in granting Stearns’ motion for judgment at the close of the evidence.

Furthermore, we point out that Stearns is not relieved from liability for his tortious conduct by the mere fact that he prepared and filed applications for the permits at the direction of Cabana, or was furnished measurements of the property and proposed location of the pool by one of Cabana’s vice presidents. The general rule is set forth in 3 Am. Jur. 2d, Agency, § 300 at 660-661:

* * * In other words, if the agent is under a duty to third persons as well as to his principal, a breach of his duty to such third persons will render the agent liable to them. Thus, whether he is acting on his own behalf or for another, an agent who violates a duty which he owes to a third person is answerable to the injured party for the consequences. It is no excuse to an agent that his principal is also liable for a tort, inasmuch as the rights of a principal and agent inter se do not measure the rights of third persons against either of them for their torts, and the fact that an agent might have a right of exoneration or indemnity against his principal for a tort would not affect the rights of a third person against the agent. Nor is an agent who is guilty of tortious conduct relieved from liability merely because he acted at the request, or even at the command or direction, of the principal, unless he is exercising a privilege of the principal to commit the act. * * *
In accordance with these principles, an agent or other employee, merely because of his relationship as an agent or employee, or because of the additional fact that he has acted at the direction or command of his employer, cannot escape or exempt himself from liability to a third person for his own negligence or his own positive wrongs, such as a trespass, an assault, the conversion of property, fraud or misrepresentation, defamation, or other form of tortious conduct.

See also, Martin v. Baldwin, 90 N. J. L. 241, 244 (E. & A. 1917); Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628, 1638 (1949); Restatement of the Law, Agency 2d, § 343 at 105-106, § 350, comment (a) at 119-120. It was still for the jury to determine whether Stearns should have recognized and foreseen an unreasonable risk or likelihood of harm to plaintiffs by his failure to verify the truth and accuracy of the information upon which the issuance of the necessary permits by the Borough was dependent. The integrity and usefulness of statements of this nature would be eroded by relieving the person who certifies to their truth and accuracy of his responsibility for them because he may have followed the direction or command of his superior or employer.

Accordingly, the judgment in favor of Stearns is reversed and the case is remanded to the trial court for trial consistent with the views expressed in this opinion.

Morgan, J. A. D.

(dissenting). I would affirm the judgment dismissing plaintiffs’ claim against Stearns although for reasons different from those given by the trial judge. Stearns was merely a subordinate employee of Cabana Pools, Inc. According to the testimony, his sole function was to run various errands for his employer, including making applications for the necessary municipal permits and licenses in connection with pool construction. Stearns had never visited the plaintiffs’ property, and in describing the dimensions thereof, relied upon the information given to him by his employer on a diagram drawn by the employer for purposes of making the application for permission to install the swimming pool. There was no evidence that he incorrectly copied this information.

In my view, an employee justifiably relies upon information supplied him by his employer in the absence of circumstances suggesting the unreliability thereof. He is not required to routinely question the accuracy of that information or to suspect its negligent or fraudulent character, and is therefore not obligated to himself check its accuracy. “An agent can properly rely upon statements of the principal to the same extent as upon statements from any other reputable source.” Restatement, Agency 2d, § 348, comment (b), (1958 ed.).

Stearns occupied the status of an innocent agent of a guilty principal, and this by the undisputed facts in the case. As noted in the Restatement, Agency 2d, supra:

b. Innocent agent of guilty principal. An agent is not liable because of misrepresentations of the principal or of another agent unless he knows or should know of them. He is not affected by the knowledge of facts which the principal or another agent has and which, if known to him, would cause his representations tO' be fraudulent. An agent who makes untrue statements based upon the information given to him by the principal is not liable because of the fact that the principal knew the information to be untrue. An agent can properly rely upon statements of the principal to the same extent as upon statements from any other reputable source.

Hence, in the illustration given by the Restatement, Agency, fox this principle, a salesman employed by an antique dealer told by his employer that a certain article for sale is an authentic antique is not liable to one who purchases it on his representation that it is an antique when it turns out to be a modern piece. The salesman is under no duty to suspect the accuracy of his employer’s information and to independently confirm it. The example given by the trial court is also appropriate. An employee of a public utility does not become liable to a customer whose power he turns off when his employer informs him that the customer has defaulted in payment of his account, even though that information turns out to be inaccurate. To require an employee to verify information supplied by an employer when no reason appears to cause him to doubt its accuracy, would seriously impede the free functioning of business and industry. See also, Smith v. Badlam, 112 Vt. 143, 22 A. 2d 161 (Sup. Ct. 1941). Subordinate employees must be permitted ■ to act upon information supplied by their employers in the absence of any untoward circumstances suggesting its unreliability, and they should not be subjected to the risk of personal liability when they do so.

The fact that Stearns certified the truth of the information supplied adds nothing to the case. First, in neither certification did Stearns aver the truth of the information based upon his own personal knowledge. He simply certified the information to be true as he justifiably believed it to be. Second, Stearns was either under a duty to personally verify the information before filling in the application or he wasn’t. He was either entitled to rely on his employer’s information or he wasn’t. His duty in that regard or the justifiability of his reliance on his employer’s probity and the accuracy of the information given him cannot be made to depend upon whether the particular municipality required certification of information contained in an application as a condition to issuance of the requisite permits and licenses.

The record is devoid of any evidence of circumstances which could have suggested to Stearns that the information given him by Ms employer concerning the dimensions of plaintiffs’ lot was inaccurate or that it so grossly deviated from the truth. As previously noted, in the absence of such circumstances, he was free to assume its truth and is neither morally derelict or legally responsible for his failure to independently check its accuracy. The rule announced in the majority opinion places any subordinate employee in jeopardy of liability for substantial damages (for which he may be uninsured) in any case in which he accepts as true information given to him by his employer even where he has no reason at all to suspect its inaccuracy or fraudulent character. In my view, such a rule is without foundation in considerations of public policy or justice.

I would affirm.


author: Botter, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FRANCIS SCHREIER, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 20, 1975
    Decided July 16, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Allen L. Shulman, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Peter N. Gilbreth, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Botter, J. A. D.

On this appeal we are called upon to determine whether defendant was lawfully convicted for carrying a loaded antique handgun replica without a permit, in apparent violation of N. J. S. A. 2A:151-41(a), despite the fact that N. J. S. A. 2A:151-18 exempts antique firearms from the provisions of the New Jersey Gun Control Law, N. J. S. A. 2A:151 — 1 et seq. Upon conviction in a jury trial, defendant was given a suspended indeterminate “Yardville” sentence, probation for three years and a fine of $1000.

The State offered evidence to show that defendant entered a tavern on the night of April 12, 1972 wearing a gun in a holster on his hip. The gun was a copy of a .44-caliber Colt cap and ball revolver of Civil War vintage. It was loaded with cap, lead ball and black powder in its six chambers. An expert later test fired the gun and found it operable.

In the tavern an off-duty police officer saw defendant wearing the gun, confronted him and called for assistance. Defendant was arrested shortly thereafter. There was testimony that defendant said he had come from work, that he worked at an Esso gas station and that he carried the gun for protection. There was also evidence to show that defendant had no permit for the gun. Police records failed to show that the gun had been used in the commission of any crime or offense.

The sole witness for the defense was the proprietor of a licensed gun shop in Irvington, New Jersey. He testified that he sold the gun, a replica of an antique, to defendant sometime before April 12, 1972. It was inferable from his testimony that defendant had no permit when he bought the gun. Defendant finally stipulated that he had no permit to carry the gun, claiming none was necessary.

N. J. S. A. 2A:151-41 provides in pertinent part:

Except as hereinafter provided, any person who carries, holds or possesses in any :i" *■ * vehicle, or on or about his clothes or person * * * in any public place or public area:
a. Á pistol or revolver without first having obtained a permit to carry the same in accordance with the provisions of this chapter; * * * * * * *• * * *ls guilty of a high misdemeanor.

N. J. S. A. 2A:151-18 provides:

This chapter does not apply to antique firearms which are incapable of being fired or discharged or which do not fire fixed ammunition, or those manufactured before 1898 for which cartridge ammunition is not commercially available, and are possessed as curiosities or ornaments or for their historical significance or value.

In Service Armament Co. v. Hyland, 131 N. J. Super. 38 (App. Div. 1974), certif. granted 67 N. J. 80 (1975), replicas of antique firearms, in addition to real antiques, were held to be exempted from regulation by N. J. S. A. 2A:151-18. In the trial below the prosecutor conceded that when the gun was sold to defendant, replicas of antiques were treated administratively as the equivalent of “antique firearms” within, the meaning of the statute. The State now contends that this concession, favorable to defendant, was erroneous and seeks to preserve this point because of the appeal in Service Armament Co. v. Hyland, supra, pending in our Supreme Court. Our disposition bypasses this issue entirely.

The statutory exemption of N. J. S. A. 2A:151-18 applies to antique firearms “which are incapable of being fired * * * or which do not fire fixed ammunition, or * * * [were] manufactured before 1898 for which cartridge ammunition is not commercially available, and are possessed as curiosities or ornaments or for their historical significance or value.” (Emphasis added.) We read the word “and” in its usual conjunctive sense, especially in the context where several phrases modifying “antique firearms” are set off by the word “or” used disjunctively. Thus, to be exempt from permit requirements the antique firearm must be of a qualifying type and must be possessed as a curiosity, ornament or for historical value. Cf. State v. Green, 62 N. J. 547, 560 (1973). The trial judge followed this plain interpretation in charging the jury.

On appeal defendant contends only that the statutory definition of the exemption is so vague and uncertain as to constitute a denial of due process. In support defendant cites Jordan v. DeGeorge, 341 U. S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1951), for the principle that a statute will be deemed “void for vagueness” if it does not adequately forewarn the public of the conduct that will be considered criminal. See Papachristou v. Jacksonville, 405 U. S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); United States v. Harriss, 347 U. S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954) ; Lanzetta v. New Jersey, 306 U. S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939); State v. Lair, 62 N. J. 388, 393 (1973). The contention here is that the qualifying language, “as curiosities or ornaments or for their historical significance or value,” is too vague a standard, especially where the firearm may be possessed for dual purposes. We find this argument unpersuasive.

Absent a contrary statutory signal, words and phrases used by the Legislature are accorded their ordinary, “generally accepted meaning.” N. J. S. A. 1:1-1; Fahey v. Jersey City, 52 N. J. 103, 107 (1968); State v. Joas, 34 N. J. 179, 187 (1961). Resort to a dictionary is not necessary to understand that the possession of a gun for purposes other than as a curiosity (something that arouses interest), or ornament (something that decorates) or for historical interest (concern) or value (worth), falls outside the statutory exemption. Moreover, the other phrases qualifying an exempt firearm, especially the phrase “which are incapable of being fired,” make clear the legislative intent to exclude from regulation ancient firearms kept for purposes that minimize the inherent risk of harm.

Phrases subject to greater diversity in interpretation have been upheld against constitutional challenge. State v. Nor-flett, 67 N. J. 268, 283-285 (1975), and State v. Moretti, 52 N. J. 182 (1968), cert. den. 393 U. S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968), upheld “without lawful justification” as a test for an illegal abortion; State v. Lair, supra, 62 N. J. at 394-395, upheld the prohibition of “[sjodomy, or the infamous crime against nature” contained in N. J. S. A. 2A:143-1; and State v. Joas, supra, 34 N. J. at 187, upheld the careless driving statute which forbids driving “carelessly or without due caution * * * as to * * * be likely to endanger, a person or property.”

In the case at hand the only evidence bearing on defendant’s purpose in possessing the gun was that he wore it exposed in a holster, fully loaded, that he had come from work at a gas station and that he said he carried it “for protection.” While carrying it in a hip holster may excite some curiosity, the jury was free to find that this was not his sole purpose; rather, it was as he stated it to be, for protection. In these circumstances defendant cannot justifiably contend that a layman would be misled by the vagueness of the words “curiosity,” “ornament” or “historical value,” into believing that carrying such a weapon for protection would keep him within the sanctuary established by the Legislature. As stated in United States v. National Dairy Products Corp., 372 U. S. 29, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963):

In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. [372 U. S. at 33, 83 S. Ct. at 598, 9 L. Ed. 2d at 565-566]

See State v. Norflett, supra, 67 N. J. at 285. We hold that the statute gives ample warning of the conduct prohibited.

The conviction is affirmed.

      Tlie expert testified that a cap and ball firearm such as this is fired by a hammer striking a cap which ignites a powder charge which, in turn, propels the lead missile. It contrasts with modern weapons which fire “fixed ammunition,” a cartridge which contains the ignition source, powder charge and lead missile in one casing. “Fixed ammunition” is a term used in N. J. S. A. 2A:151-18.


text:
    WEST ORANGE LICENSED BEVERAGE ASSOCIATION, APPELLANT, v. BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE TOWN OF WEST ORANGE AND RICHARD L. PLOTKIN, ESQ., RECEIVER FOR RALLO’S BAR, INC., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 5, 1975
    Decided July 18, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Harry P. Durkin argued the cause for appellant.

      Mr. James A. Ospenson, Assistant Town Attorney of West Orange, argued the cause for respondent Board of Alcoholic Beverage Control of West Orange.

      Mr. Richard L. Plotkin, receiver for Ratio’s Bar, Inc., argued the cause pro se.

      Mr. William F. Hyland, Attorney General of New Jersey, filed a statement in lieu of brief for the Division of Alcoholic Beverage Control (Mr. Hyland, attorney; Mr. David S. Piltzerj Deputy Attorney General, of counsel).
   Per Curiam.

This is an appeal from a decision of the Director of the Division of Alcoholic Beverage Control which affirmed the action of the Board of Alcoholic Beverage Control of the Town of West Orange (local board) approving an application by West Orange-Englewood Tennis Clubs, Inc., for a person-to-person and place-to-place transfer of a plenary retail consumption license held by Richard L. Plot-kin, Esq., receiver for Hallo’s Bar, Inc. The application sought transfer of the license from 3 Beasley Street to the West Orange Tennis Club at 1448 Pleasant Valley Way in West Orange.

The two basic issues which were before the Director and which are currently before the court are: (1) whether the appeal to the Division by the objector, appellant West Orange Licensed Beverage Association, was timely, and (2) whether the failure of one of the town councilmen (Councilman Cuozzi) to disqualify himself from voting on the transfer rendered the 3 to 2 approval by the local board void.

N. J. S. A. 33 :l-26 requires, among other things, that an aggrieved person opposing the grant of a transfer “may, within 30 days after the grant of such transfer, appeal to the director from the action of the issuing authority.” Consistent therewith, Rule 8 of State Regulation No. 15 of the Division of Alcoholic Beverage Control prescribes in pertinent part that appeals “from the granting of an application for the * * * transfer of a license must be taken within thirty (30) days from the date of the action appealed from * *

The relevant facts in this case may briefly be summarized. The application for transfer of the license (plenary retail consumption license No. C — 57) was heard by the local board of alcoholic beverage control on January 8, 1974. At the hearing counsel for one of the principal objectors to the transfer, the West Orange Licensed Beverage Association (objector), sought to have Councilman (now Mayor) Cuozzi, one of the five voting members of the local board present, disqualified from voting on the application because of his membership in the proposed transferee, the West Orange Tennis Club. The stock of the West Orange Tennis Club, a corporation, is owned by two brothers, Abraham and Nathan Gorelick. Councilman Cuozzi plays tennis at the club for two hours on Saturday mornings. He pays about $200 a year for his share of a reserved tennis court. He also pays annual dues of $25, for which he is entitled to additional club benefits. At the time of the hearing before the local board he was in his third year of membership. Counsel for the West Orange Licensed Beverage Association based his motion to have Cuozzi disqualify himself on Rule 1 of State Regulation Ho. 4 of the Division of Alcoholic Beverage Control, which provides that

No municipal issuing authority may issue a license to, or transfer a license to or from, any of its members or issue a license other than a club license to, or transfer such license to or from any corporation, organization, or association in, which any of its members is interested directly or indirectly. No municipal issuing authority may transfer, to other premises, a license of any of its members or transfer to other premises a license other than a club license of any corporation, organization or association in which any of its members is interested directly or indirectly. In such circumstances, application must be made to the Director of the Division of Alcoholic Beverage Control. [Emphasis supplied]

Cuozzi refused to disqualify himself from voting on the application. As disclosed in the minutes of the local board, at the hearing on January 8, 1974 Abraham Gorelick pointed out that the Tennis Club had 2,400 members; that no member had any voice in the operation of the club; that only members of the Tennis Club and their guests could use the club swimming pool, and that the liquor license would accommodate the club players. At the close of the hearing on January 8 the local board reserved decision on the application until its next public meeting on January 22, 1974. On that adjourned date Councilman Cuozzi moved the approval of the application. The motion was carried by a vote of 3 to 2, Councilmen Cuozzi, Mangino and Skarbnik voting in the affirmative and Councilman Spina and Council President Bonnet voting in the negative. The next day, January 23, 1974, the secretary of the local board wrote to the Director of the Division of Alcoholic Beverage Control notifying him that at its meeting on January 22, 1974 the local board approved the person-to-person and place-to-place transfer of the plenary retail consumption license.

Although the minutes of the January 22 meeting of the local board state that on motion by Councilman Cuozzi, seconded by Councilman Mangino, the application for the transfer “was approved for the reasons given in the application and in the resolution,” no resolution of the board was in existence at the time. On Eebruary 4, 1974 the town attorney prepared a form of resolution of transfer in accord with the local board’s approval of January 22. However, the board did not adopt that resolution until its meeting on April 2, 1974, the vote on the adoption being the same as that on the January 22, 1974 motion to approve the transfer. On April 3, 1974 the secretary of the local board forwarded a copy of the adopted resolution to the Acting Director of the Division of Alcoholic Beverage Control. On May 2, 1974 the objector filed its petition of appeal to the Director of the Division. A de novo hearing was held in the Division. The Division hearer recommended that the action of the local board be affirmed and the appeal dismissed, concluding that (1) the appeal to the Director was filed out of time since “the action of the municipal issuing authority appealed from occurred on January 22, 1974,” and (2) Councilman Cuozzi “had no disqualifying interest” in the West Orange Tennis Club. Exceptions to the hearer’s report were filed. The Director concurred in the findings and conclusions of the hearer, affirmed the action of the local board of alcoholic beverage control and dismissed the appeal.

In the totality of the circumstances here involved we are entirely satisfied that the appeal was filed within the time limited by N. J. S. A. 33 :l-26 and Rule 3 of State Regulation No. 15 of the Division of Alcoholic Beverage Control. It is clear from the minutes of the January 22, 1974 meeting of the local board that the hoard intended, by the reference to its approval of the application for the transfer “for the reasons given * * * in the resolution,” that its action on the application would be finalized on its adoption of a formal resolution of transfer. Fo such resolution was adopted by the board until April 2, 1974.

A quasi-judicial action of a municipal body is rendered voidable by the voting participation of a member thereof who is at the time subject to a direct or indirect private interest which is at variance with the impartial performance of his public duty. [Aldom v. Roseland, 42 N. J. Super. 495, 501 (App. Div. 1956)]

Erom our review of the record we are equally satisfied that the action of the local board in granting the transfer of the license must be set aside because of Councilman Cuozzi’s participation therein. In the circumstances his membership in the Tennis Club and his regular use of its facilities represented a sufficient interest in the applicant for the license to require his disqualification “so that not the faintest shadow be cast on .the integrity of the determination” of the board. Hochberg v. Freehold, 40 N. J. Super. 276, 284 (App. Div. 1956), certif. den. 22 N. J. 223 (1956). See also, Aldom v. Roseland, supra; Zell v. Roseland, 42 N. J. Super. 75 (App. Div. 1956).

The order of the Director of August 9, 1974 is reversed, and the action of the Board of Alcoholic Beverage Control of the Town of West Orange of January 22 and April 2, 1974 approving the person-to-person and place-to-place transfer of Plenary Retail Consumption License Fo. C-57 is set aside and declared void. The matter is remanded to the Director of the Division of Alcoholic Beverage Control for a plenary hearing and determination of the application on the merits. Rule 1 of State Regulation Fo. 4. We do not retain jurisdiction.

      We note that at no time has the local board stated its reasons for approving the transfer. Cf. Rule 10 of State Regulation No. 6; Lubliner v. Paterson Bd. of Alcoholic Beverage Control, 33 N. J. 428, 445 (1960).