author: Collester, J. A. D.

text:
    ROWLAND W. PIERSON, JR., PLAINTIFF-RESPONDENT, v. ROBERT FREDERICKSON AND ROBERT FREDERICKSON, JR., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1968
    Decided July 17, 1968.

      Before Judges Coneord, Collester and Labrecque.

      Mr. Michael J. Qernigliaro argued the cause for appellants {Messrs. Campbell, Mangini, Foley & Lee, attorneys).

      Mr. Philip G. Auerbach argued the cause for respondent (Messrs. Drazin, Warshaw, Auerbach & Budniclc, attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendants appeal from a judgment entered in this personal injury automobile negligence action following a jury verdict awarding plaintiff damages of $32,-000. Their motion for a new trial was denied.

The accident which resulted in this action occurred at about 4:40 a.m. on January 1, 1965 when plaintiff’s automobile, which was being driven in a westerly direction on Atlantic Avenue in Long Branch, collided with a motor vehicle owned by Robert Erederickson and operated by his son Robert Erederickson, Jr. The Erederickson car was being driven in a northerly direction on Liberty Street which dead-ends into Atlantic Avenue, a through street, forming a T-intersection. Immediately to the north of and beyond the T there was a private roadway which led into a housing project. Plaintiff, who was seriously injured, suffered a loss of memory and could not recall the details of the accident. His last recollection prior to the impact was crossing a small bridge 75 to 100 yards east of the intersection at a speed of 20 to 25 m.p.h.

Defendant Robert Erederickson, Jr., who was unfamiliar with the area and was being given directions by his companion, was not aware that Liberty Street did not continue across at Atlantic Avenue. He testified that his maximum speed within the two block preceding the intersection was 25 m.p.h. and when he was several car lengths from Atlantic Avenue he slowed down to about 10 m.p.h., observed no traffic on Atlantic Avenue, and then began to accelerate back to 25 m.p.h. When he was about to enter the intersection he saw the plaintiff’s car and decided the chances of avoiding the collision were greater if he proceeded through rather than if he attempted to stop.

When the accident occurred three people were awake in the Edward Eister household on the southeast corner of the intersection (this being the morning following New Year’s Eve). Mr. Fister was in the bathroom on the side of his house facing Liberty Street when he heard the motor sound of the defendants’ approaching vehicle. He first heard the sound when it was faint at a distance which he estimated to be a block or two away. The noise grew louder as the car came nearer; it increased without interruption, and immediately after it passed his house he heard the crash of the collision.

During a preliminary examination conducted by the court out of the presence of the jury Mr. Fister testified that he had been an electronics engineer for 30 years, had been employed 'in governmental research including the use of instruments to measure sound waves in order to detect the movement of vehicles and persons, and that with such experience and his familiarity with automobiles he could estimate the minimum speed as which a vehicle was traveling based on auditory perception even though he had not actually seen the car in motion. The court over defendants’ objection held that he was competent to so testify. Thereafter Fister testified that the minimum speed of the Frederickson car while it was being operated on Liberty Street just before the collision occurred was 30 m.p.h.

Testimony by Marjorie Mitchell, a guest at the Fister home, that she heard the car coming up Liberty Street at a "fairly high rate of speed” and by Marjorie Fister, Edward Fister’s wife, that she also heard the car approaching "at a rapid rate of speed” was stricken by the court as being speculative.

The primary issue on this appeal is whether the court erred in permitting Mr. Fister to testify as to the minimum speed of the Frederickson automobile based solely on his auditory perception of the sound of the car as it was being driven along Liberty Street.

Defendants contend (1) that evidence regarding the speed of a motor vehicle based solely on the sound of the motor should not have been admitted in the form of either lay or expert testimony and the court erred in permitting Eister to testify, (2) that assuming such testimony may be introduced in the form of expert testimony Eister lacked the requisite qualifications of an expert, and (3) even if Eister possessed such qualifications the court erred in permitting him to testify because his name had not been listed as an expert witness in plaintiff’s answer to defendants’ interrogatories.

The fundamental qualification for a witness is that he have personal knowledge of the subject matter of his testimony. Personal knowledge is based upon the impressions that a witness has gained by means of his own senses. 2 Wigmore, Evidence (3d ed. 1940), §§ 656, 657; McCormick, Evidence, § 10, p. 19 (1954); Bule 19, New Eules of Evidence. Visual perception is not the exclusive sensory means of gaining personal knowledge; it can also be attained by means of auditory perception. In this case there is no suggestion that Mr. Eister did not adequately hear the sound of the defendants’ automobile and the judge properly concluded that the jury could reasonably believe that the witness perceived the event. Gf. Bule 19, New Buies of Evidence.

We believe that it is not beyond the experiential qualifications of an ordinary observer to draw conclusions of speed of an automobile based exclusively on auditory perception. It is common knowledge that the sound made by rapidly moving vehicles differs from that made by those moving slowly. The sound made by moving motor vehicles is familiar to most people. The sense of speed of movement depends more on how quickly the sound advances and recedes than on how loud the noise of the motor happens to be.

In other jurisdictions a lay witness has been permitted to' give an estimate of speed based entirely on auditory perception. See Bennett v. Central of California Traction Co., 115 Cal. App. 1, 1 P. 2d 47 (Dist. Ct. App. 1931); Hayungs v. Falk, 238 Iowa 285, 27 N. W. 2d 15 (Sup. Ct. 1947); Hauswirth v. Pom-Arleau, 11 Wash. 2d 354, 119 P. 2d 674 (Sup. Ct. 1941); Smith v. Doyle, 69 App. D. C. 60, 98 F. 2d 341 (D. C. Cir. 1938); Hamilton v. DeCamp, 120 Kan. 645, 244 P. 1057 (Sup. Ct. 1926); Nesbit v. Crosby, 74 Conn. 554, 51 A. 550 (Sup. Ct. 1902); Murphy v. Cole, 338 Mo. 13, 88 S. W. 2d 1023, 103 A. L. R. 505 (Sup. Ct. 1935); Kuhn v. Stephenson, 87 Ind. App. 157, 161 N. E. 384 (App. Ct. 1928); Van Horn v. Burlington C. R. & N. R. Y. Co., 59 Iowa 33, 12 N. W. 752 (Hist. Ct. 1882). In some of the cases the testimony was admitted because of the witness’ special qualifications. Murphy v. Cole, supra (mechanic); Kuhn v. Stephenson, supra (mechanic). In cases which ex-clud such testimony the decision of the court can be explained by the court’s determination that there was insufficient auditory perception on which to base a conclusion of speed, or that in the court’s judgment the witness was not qualified to make such a conclusion. Haight v. Nelson, 157 Neb. 641, 59 N. W. 2d 576, 42 A. L. R. 2d 1 (Sup. Ct. 1953); Law v. Gallagher, 9 W. W. Han. 189, 39 Del. 189, 197 A. 479 (Sup. Ct. 1938); Laubach v. Colley, 283 Pa. 366, 129 A. 88 (Sup. Ct. 1925); Challinor v. Axton, 246 Ky. 76, 54 S. W. 2d 600 (Ct. App. 1932).

It is clear that based on adequate visual observation an ordinary witness can state his conclusion of whether a car was moving fast or slow or give an estimate of its speed. Baus v. Trenton & Mercer Co. Trac. Corp., 102 N. J. L. 1 (Sup. Ct. 1925), affirmed 102 N. J. L. 712 (E. & A. 1926); Roeltgen v. Public Service Railway Co., 2 N. J. Misc. 471 (Sup. Ct. 1925). See generally, Annotation, “Admissibility and probative effect of testimony that motor vehicle was going ‘fast’ or the like,” 92 A. L. R. 2d 1391 (1963); Annotation, “Opinion evidence as to speed of automobile,” 70 A. L. R. 540 (1931); 94 A. L. R. 1190 (1935). If a lay witness is competent to form an opinion of speed based on visual observation we see no logical reason why he should not be competent to do so based upon auditory perception.

To conclude that such testimony has too low a probative value to be admissible as evidence would run contrary to the rule that all relevant evidence is admissible. In any case the weight to be given such evidence is a matter for determination by the jury. Cf. Miller v. Trans Oil Co., 18 N. J. 407 (1955); New Buies of Evidence, Buie 7(/).

In the instant case Eister had experiential qualifications for judging speed based on auditory perception that were greater than those of the ordinary layman. To the extent that his description of the speed of the Erederiekson car as being “in excess of 30 miles per hour” is more precise than the use of the adjective “fast” we cannot see how the defendants were prejudiced thereby. The speed of 30 m.p.h. does not mean to the the average layman a rate of speed in excess of what he would intend to signify if he were to use the simple term “fast.” Therefore, if a lay witness may from the sound of a vehicle describe its movement as “fast,” Mr. Eister’s use of the term 30 m.p.h. cannot be regarded as harmful to the defendants. We hold that the trial court did not err in permitting such testimony.

It follows from the law on the point developed herein-above that it would not be improper for the average lay witness who is familiar with the sound of a moving automobile* to give a general characterization of the vehicle’s speed, i. ei„ slow or fast, based solely on auditory perception. Accordingly, we add parenthetically, it would not have been a mistaken exercise of discretion for the trial court to have permitted! Miss Mitchell and Mrs. Eister, presumably having the knowledge of the average layman as to the sound of fast and slow moving automobiles, to testify that the Fredrickson car was going “fast.”

Mr. Eister’s name was listed in the answers to interrogatories as a witness having knowledge of relevant facts pertaining to the accident. Since the attempted strengthening of his qualifications as an expert witness was unnecessary the defendants cannot be regarded as having been prejudiced by the failure to list his name as that of an expert.

Defendants’ final point is that the court erred in denying their motions to dismiss the complaint. They argue that the sole element of negligence which could be inferred from the testimony was that the Erederiekson car was being operated at an excessive rate of speed and that such inference could only be drawn from Mr. Fister’s testimony which should have been excluded.

We have held that Mr. Fister’s testimony was properly received. Moreover, we are satisfied from our review of the record that even without his testimony there was sufficient evidence to require submission of the issue of negligence to the jury.

' Affirmed.


source: Caselaw Access Project

author: Labrecque, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES GRANT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 17, 1968—Decided
    July 18, 1968.

      Before Judges Coneord, Labrecque and Halpern.

      Mr. Gerald T. Foley, Jr., Assistant Public Defender, argued the cause for appellant {Mr. Peter Murray, Public Defender, attorney; Mr. Richard Newman, Deputy Public Defender, of counsel; Mrs. Susan T. Sinins, Assistant Public Defender, on the brief).

      Mr. Matthew J. Scola, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant James Grant appeals from a judgment of conviction for assault and battery upon a law enforcement officer in violation of N. J. S. 2A :90-4 and from the revised sentence imposed therefor.

The offense occurred on November 20, 1966 while defendant was serving a seven month sentence, commencing July 19, 1966, in the Essex County Penitentiary on charges of shoplifting, failure to have a narcotics registration card in his possession, and being under the influence of a narcotic drug. At the time of his arrest on the above charges, he was on parole from the New Jersey State Prison, having been convicted in January 1965 of breaking and entering and larceny. The State parole authorities filed a detainer against him shortly after his arrest.

On November 20, 1966, during the course of a riot in the mess hall of the Essex County Penitentiary, Everett Hannon, a correction officer on duty there, was allegedly assaulted by defendant and later knocked unconscious by other inmates, suffering a concussion and three broken teeth. Three days later, while still in the hospital, and after viewing some 50 pictures of prisoners, he identified a picture of defendant as that of one of his assailants. He again identified defendant at the trial.

While on duty in the mess hall, Hannon was wearing his official uniform and badge but was not armed. He and other correction officers were authorized to carry weapons only when performing out-of-prison functions such as transporting prisoners to and from courts or hospitals or when guarding prisoners working outside the prison grounds. In addition to the above, his duties were, generally, to supervise prisoners and maintain order in the penitentiary.

Defendant first urges that an Essex County Penitentiary correction officer is not a “law enforcement officer” within the intendment of N. J. 8. 2A :90-4. The functions and responsibilities of correction officers performing the duties described above, are such that we are unable to agree with defendant’s contention. Whether those performing such duties bear the title of jail guard, warden or correction officer, overseeing the custody and punishment of law violators is as much a part of law enforcement as undertaking the detection and apprehension of such violators. Moreover, they have the further duty of detecting and preventing violations of law by prisoners, e. g., assaults on other prisoners, escapes, etc., and in that sense are literally law enforcement officers. In certain counties (including Bergen) they are specifically vested by statute with all the power and authority of constables. See N. J. 8. A. 30:8-18. It would be incongruous to hold that correction officers were law enforcement officers in Bergen, but not in Essex. We are satisfied that the Legislature intended to encompass within the scope of the statute those persons whose duty it is to supervise the administration of criminal punishment and to maintain security within and without the confines of the State’s penal institutions. We find no basis in logic or reason for limiting the meaning of the term “law enforcement officer” to persons empowered by law to investigate, arrest and prosecute violators of the law, as urged by defendant. Cf. Caldaro v. Ferber, 39 N. J. 314 (1963); Bownes v. Meehan, 45 N. J. L. 189 (Sup. Ct. 1883).

Equally unconvincing and without merit is defendant’s contention that the phrase “other law enforcement officer” in N. J. 8. 2A :90-4 is so vague and ambiguous as to render the statute unconstitutional. See United States v. National Dairy Products Corp., 372 U. S. 29, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963), rehearing denied 372 U. S. 961, 83 S. Ct. 1011, 10 L. Ed. 2d 13 (1963).

Following his conviction, the court, on December 5, 1967, sentenced defendant to State Prison for a term of not less than three nor more than five years to run concurrently with the balance of any term to be served on a charge of violation of parole then pending against him. On January 5, 1968, following a letter to the court from the Department of Institutions and Agencies, the sentence was revised to delete that portion thereof which provided that the sentences were to be concurrent. Defendant challenges the revised sentence.

In deleting the provision making the sentence concurrent with the one to be served for violation of parole, the trial judge was motivated solely by the view that N. J. 8. A. 30 ¡4-123.27, to which his attention had been directed by the foregoing letter, precluding the imposition by him of a concurrent sentence. In this we find him to have been mistaken.

N. J. 8. A. 30:4r-123.27 governs the procedure to be followed by the State Parole Board with reference to “persons serving sentence or awaiting trial for crime committed after parole.” It provides for the detaining of a prisoner confined in an institution other than the one from which he was paroled, for a subsequent offense committed while on parole. The trial judge relied upon the final sentence contained therein, which is as follows:

“* * * No part of a sentence, for winch a parole has been granted and revoked, shall be deemed to be served by a prisoner, whose parole was revoked, while he is serving a sentence for an offense other than the one for which he was paroled.”

Prior to enactment of the present statute, L. 1948, c. 84, now N. J. 8. A. 30 ¡4-123.1 et seq., certificates of parole (and comparable licenses issued prior to 1948) containing conditions dealing with the subsequent disposition of a 'parolee upon conviction of a crime while on parole, provided the courts with considerable litigation. Chernachowicz v. State, 39 N. J. Super. 571, 574 (App. Div. 1956), affirmed 22 N. J. 83 (1956), certiorari denied 352 U. S. 897, 77 S. Ct. 136, 1 L. Ed. 2d 89 (1956). See also State v. Parker, 15 N. J. Super. 412 (App. Div. 1951); In re Macejka, 10 N. J. Super. 393 (Cty. Ct. 1950). Its passage has undoubted^ produced a greater uniformity in the treatment of parolees in cases involving the subsequent commission of a crime. See Chernachowicz v. State, supra; State ex rel, Kincaid v. State Parole Board, 53 N. J. Super. 526 (App. Div. 1959); Lipschitz v. State, 43 N. J. Super. 386 (App. Div. 1957). Cf. Donnelly v. New Jersey State Parole Board, 91 N. J. Super. 302 (App. Div. 1966). However, regardless of whatever effect the statute may have in prescribing and limiting the power and discretion of the State Parole Board in the performance of its duties relative to parole, or in providing the courts with guidelines for the disposition of a prisoner upon the completion of his service of a sentence for a crime committed while on parole where the sentencing court has not otherwise explicitly provided, we are convinced that the statute was not intended to and does not divest a court charged with the duty of sentencing a defendant for such subsequent crime of its inherent power to impose such sentence as it may in its discretion consider just to the individual and adequate for the protection of society. While the duty of determining questions of parole devolves upon the State Parole Board, the power of imposing sentence as a correctional measure, and the determination of how the public interest will best be served thereby, lies with the judiciary. See State v. Moore, 21 N. J. Super. 419, 422 (App. Div. 1952). Cf. State v. Ivan, 33 N. J. 197 (1960). This power encompasses the discretion to make the sentence consecutive to or concurrent with that remaining to be served on a prior sentence for breach of a condition of parole. That the Legislature did not intend otherwise by the statute is indicated by the language “no part of a sentence * * * shall be deemed to be served * * *.” (Emphasis added.) This is constructional, not mandatory language. In other words, absent a contrary direction by the sentencing judge, a sentence for a crime committed while on parole shall be deemed (e. g., by the parole and prison record-keeping officers) to be served separately from service of the incomplete sentence on which parole was previously granted. None of our previous decisions construing the statute are to the contrary.

We therefore conclude that the original (December 5, 1967) sentence of 3-5 years in State Prison which provided for its concurrent service “with the balance of any term to be served by defendant * * * on a parole violation now pending against him” was valid. As noted above, in the absence of such a direction in the sentence, the statute would have been controlling and defendant’s term for violation of parole would have been consecutive to service of the term imposed by the court. It follows that the sentence originally imposed, representing the judge’s conception of an appropriate exercise of sentencing discretion, should be reinstated.

We have reviewed defendant’s remaining contentions and find them to be without merit. The manner of his identification by Hannon was not so unfair, suggestive or unreasonable as to amount to a denial of due process. State v. Matlack, 49 N. J. 491 (1967), certiorari denied 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967); Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Woodard, N. J. Super. (App. Div. 1968). His sentence was well within the statutory limits and we find nothing to indicate that it resulted from a mistaken exercise of the court’s discretion. State v. Gibbs, 79 N. J. Super. 315, 324-326 (App. Div. 1963).

Eeversed and remanded for disposition in conformity with this opinion.


text:
    DEPARTMENT OF HEALTH, STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. SOL SCHNOLL DRESSED POULTRY COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 13, 1968
    Decided July 23, 1968.

      Before Judges Con ford, Codlester and Labrecque.

      Mr. Walter B. Davis, Jr., Deputy Attorney General, argued the cause for appellant (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).

      Mr. Jack M. Schnoll argued the cause for respondent.
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal by plaintiff State Department of Health from a district court judgment entered in favor of defendant Sol Schnoll Dressed Poultry Company dismissing its action to recover a penalty for failure to obtain a license required under N. J. S. A. 24:9-21 et seq.

The facts are not in dispute. The statement of the evidence and proceedings submitted pursuant to B. B. 1:6~3 shows that defendant is engaged in the business of purchasing and selling food products both wholesale and retail in the City of Newark. In connection with that business defendant operates and maintains a storage space mechanically cooled below a temperature of 45° Fahrenheit in which food products other than fresh unprocessed fruits and vegetables are stored. Some of the food is stored in excess of 30 days. All of the food is owned by defendant and is held in storage for the purpose of resale and not for consumption on the premises.

An investigation by the Department of defendant’s premises revealed the existence of the refrigerated warehouse and that defendant had not obtained a license to operate the same. Plaintiff thereupon brought the penalty action which was dismissed by the district court. This appeal followed.

Section 22 of the statute cited above provides that any person desiring to operate or to continue to operate a refrigerated warehouse or locker plant must obtain a license from the State Department of Health to do so. Section 21 defines “refrigerated warehouse” and “locker plant” as follows :

“b. ‘Refrigerated warehouse’ shall mean any place artificially or mechanically cooled to or below a temperature of forty-five degrees Fahrenheit in which articles, other than fresh unprocessed fruits and vegetables, are placed and held for thirty days or more, except a restaurant, store, home, or eating club utilizing its refrigerated warehouse space exclusively for its own use.
c. ‘Locker plant’ shall mean any refrigerated storage warehouse or the portion thereof which provides separate individual lockers, cabinets, boxes, baskets, or other receptacles, for the storage of food products for home or personal use only and not for purpose of sale.”

The trial court held that defendant’s wholesale business fell within the statutory exemption of a “store” which utilized its refrigerated warehouse space exclusively for its own use and therefore no license was required.

Plaintiff contends that the trial judge erred in his conclusion. It claims that the term “store,” as used in the exemption clause of the statute, pertains to a retail store and not a wholesale business, and that the legislative history of the statute reflects a legislative intent to require wholesale businesses to be licensed.

The central issue in this case is the meaning of the word “store” as used in the exemption clause of the statute. The word “store” has a broad meaning in the United States as “any place where goods are kept for sale, or are sold.” Township of Maplewood v. Tannenhaus, 64 N. J. Super. 80, 88 (App. Div. 1960). Words are inexact tools at best, and when the meaning of a word used in a statute is not explicit its meaning will be restricted, whenever it is necessary, in such manner as to carry out the legislative intention, and the reason and spirit of the statute will control its interpretation. DeFazio v. Haven Savings and Loan Ass’n, 22 N. J. 511, 518 (1956). The real intention, when ascertained, will prevail over the literal sense of the term. Pine v. Okzewski, 112 N. J. L. 429, 433 (E. & A. 1933). See also Board of Education of City of Asbury Park v. Hoek, 38 N. J. 213, 231 (1962); Seatrain Lines, Inc. v. Medina, 39 N. J. 222, 226-231 (1963).

The purpose of N. J. S. A. 24:9-21 et seq., as indicated by the title of the enacting statute, is to protect the public’s health. See L. 1951, c. 342. The evil it seeks to eliminate is the distribution of unwholesome food. As remedial legislation it must be liberally construed to promote the public policy of the State in protecting the safety of its people. Cf. State v. Meinken, 10 N. J. 348, 351-352 (1952); Garianni v. Schwenker, 38 N. J. Super. 350, 361 (App. Div. 1955).

In construing a statute the court’s fundamental duty is to determine the purpose and intent of the Legislature. To comprehend the full force and scope of the legislative intent, due regard must.be had of the old law, the mischief resulting therefrom, and the enacted legislative remedy for the eradication of the evil. DeFazio v. Haven Savings and Loan Ass’n, supra, at pp. 518-519; Holt v. Akarman, 84 N. J. L. 371, 377 (E. & A. 1912); 2 Sutherland, Statutory Construction, § 4501, pp. 3LL-315 (1943). A reading of the old law, B. S. 24:9-1 et seq. (repealed), and the present statute, N. J. S. A. 24:9-21 et seq., clearly indicates that the existing statute was enacted to revise sanitary regulations in order to deal with modern developments in the cold storage of food products.

In construing statutory provisions resort may freely be had to the pertinent legislative history in ascertaining the true sense and meaning of the language used. Lloyd v. Vermeulen, 22 N. J. 200, 206 (1956). When the bill, designated as Assembly Bill 656 (which was enacted into law as L. 1951, c. 342), was introduced on March 5, 1951 in the Assembly it contained the same exemptions from license requirements as finally enacted. The Senate amended the bill to enlarge the exemptions from “restaurant, store, home and eating club” to include the words “manufacturer or distributor.” Governor Driscoll refused to sign it as amended and sent it back for reconsideration on June 26, 1951. In commenting upon the bill the Governor said in part:

“During- the progress of the bill through the Legislature the definition .of ‘refrigerated warehouse’ in section 1 was- amended so that a manufacturer or distributor utilizing its refrigerated warehouse space exclusively for its own use was added to the list of those exempted from the definition. Neither of the two added exemptions were in the old law. The proposed exclusion of manufacturers and distributors does not appear to be in the public interest.” Veto Messages of Governor Alfred E. Driscoll, 1951, p. 37

Reconsideration of the bill by the Legislature led to a reenactment with the added exclusions deleted.

While a wholesaler arguably may be distinguished from a “distributor” in a technical sense in that the latter ordinarily is the agent of the manufacturer in the sale of goods to retailers, usually in a particular territory, the terms “wholesaler” and “distributor” are frequently understood as interchangeable. It seems clear, therefore, that the Legislature in ultimately acquiescing in the Governor’s desire to deny exemption to distributors intended to protect the public from the dangers inherent in long periods of storage of food products thought to accompany the wholesale food business and to exclude from the licensing requirements of the statute only retail businesses which deal directly with the consumer.

Our consequent conclusion that the term “store,” as used in the exemption clause, was intended by the Legislature to mean “retail store,” is supported by application of the doctrine of noscitur a sociis. It is an elementary canon of statutory interpretation that ordinarly the coupling of words denotes an intention that they should be understood in the same general sense. The natural, ordinary and general meaning of terms and expressions may be limited, qualified and specialized by those in immediate association. Words of general and specific import take color from each other when associated together, and thus a word of general significance is modified by its associates of restricted sense. The general word is qualified by the particular word. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 96 (1954); Ford Motor Co. v. N. J. Dept. of Labor and Industry, 5 N. J. 494, 502 (1950).

Here, the other categories excluded from the application of the statute under the exemption clause (restaurant, home and eating club) comprise a class having a common relationship and purpose—the supplying of food directly to the consumer. The coupling of “store” with such categories indicates an intention to restrict its meaning to that common purpose—a retail store dealing directly with the consumer exclusively. We are satisfied that the statute was never intended to exclude from its regulations and requirements a wholesale food products business, even if, in addition thereto, it partly does some retail business.

We also see no merit in defendant’s argument that the purpose of N. J. S. A. 24:9-21 et seq. was to license only refrigerated warehousing and locker plant businesses in which food products of other persons are stored and for which storage charges are paid. If this were so there would be no statutory safeguards to protect the ultimate consumer from the dangers of deleterious foods stored in a refrigerated warehouse and thereafter distributed to retailers for sale and consumption by the public. We are satisfied that the statute was intended to'apply to all refrigerated food products businesses except those specifically excluded therein.

The judgment is reversed and the case is remanded to the district court for the entry of judgment in favor of plaintiff in the amount of the penalty provided for by N. J. S. A. 24:9-24.


author: Demos, J. S. C.

text:
    ANNA RAVES, PETITIONER-APPELLANT, v. COUNTY OF MIDDLESEX-ROOSEVELT HOSPITAL, RESPONDENT-APPELLEE.
    Middlesex County Court Law Division
    Decided July 12, 1968.

      Mr. Louis V. Jacobson for petitioner (Messrs. Jacobson and Silverman, attorneys).

      Mr. Jolin 8. Bonington for respondent (Messrs. Schneider and Morgan, attorneys).
   Demos, J. S. C.

(temporarily assigned). In this workmen’s compensation appeal, the petitioner Anna Raves on August 23, 1964, suffered injuries by accident arising out of and in the course of her emplojunent for the County of Middlesex, Roosevelt Hospital. The injury was caused by the negligence of a third party. The negligence claim, handled by an attornej'' other than petitioner’s present counsel was concluded by way of settlement for the sum of $4,000, before the employee’s claim for compensation benefits was heard in the Division of Workmen’s Compensation. It was not until just short of two years after the occurrence of the accident that petitioner’s attorneys, in the compensation claim, were consulted for the first time. A claim petition was filed on July 18, 1966, being prior to the settlement of the third-party negligence claim.

In answer to the filed claim petition, the respondent admitted the employment and notice of the accident. While R. 8. 34:15-15 requires the employer to “furnish to the injured workman such medical, surgical and other treatment, and hospital services, as shall be necessary to cure and relieve the workman of the effects of the injury . . .”, the petitioner’s hospital bill at the Perth Amboy General Hospital, where she was removed immediately following the accident, was not paid for by the employer nor did the employer furnish or pay for the medical treatment that she required. The judge of compensation properly included these items as part of the ultimate judgment in favor of the petitioner. In addition petitioner was awarded permanent disability of ten per cent of partial total. Five per cent partial total each for orthopedic and neuropsychiatric conditions. The total workmen’s compensation liability of the employer for medical and hospital bills, temporary disability and permanent partial disability, amounted to $3,335.57, slightly less than the gross third-party recovery. However, after giving the employer credit for the sums to which it was entitled under N. J. 8. A. 34:15—40, the employer was required to pay the petitioner the sum of $1,074.43.

The judge of compensation allowed a counsel fee to petitioner’s attorney of $210.00 based only on the last stated amount and not on the full compensation award of $3,335.57.

Petitioner does not appeal from the compensation award entered by the judge of compensation. This limited appeal is from that portion of the judgment of the judge of compensation wherein he allowed a counsel fee on the net sum recovered by the petitioner, rather than on the full compensation liability. Appellant contends that the counsel fee should have been based on the entire compensation award, before any credits were given to the respondent, resulting from the third-party-settlement.

The judge of compensation in granting the allowance of a counsel fee to petitioner’s attorney indicated that it was his understanding of the existing law to be that he was restricted in the making of such allowance to such net amount recovered by the petitioner. He further indicated that he would have granted a larger counsel fee if he were permitted to consider the full compensation award before credits given to the respondent. Counsel for the respective parties indicate that the judges of compensation are divided in their opinions as to the method to be used in granting counsel fee allowances in eases where a third-party claim has been concluded prior to the entry of judgment in the workmen’s compensation ease.

N. J. 8. A. 34:15-64 in part provides:

“Tlie official conducting any hearing under this chapter may, in his discretion, allow to the party in whose favor judgment is entered, * * * a reasonable attorney fee, not exceeding twenty per centum (20%) of the judgment * * (emphasis supplied)

This section further provides:

“When, however, at a reasonable time, prior to any hearing compensation has been offered and the amount then due has been tendered in good faith or paid, the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award in excess of the amount of compensation, theretofore offered, tendered in good faith or paid.”

N. J. 8. A. 34:15-40 in paraphrase, provides that where a third-party is liable to the employee for an injury, the existence of a right to compensation from the employer shall not operate as a bar to the action of the employee against the third-party. In the event an employee recovers from the third person, the employer becomes entitled to certain credits in the workmen’s compensation judgment.

It is to be noted that N. J. 8. A. 34:15-64 makes no reference to N. J. S. A. 34:15-40 nor to the credits to which an employer is entitled in the event of a third-party recovery. N. J. S. A. 34:15-64 speaks only of a reasonable counsel fee allowance not exceeding twenty per cent of the judgment and the effect upon the counsel fee of a tendered or paid good faith offer made by the employer. As the employer herein does not contend that the third-party recovery constitutes an offer made in good faith by it, there can be no claim for a credit against the counsel fee allowance, on this basis.

Research reveals only two reported cases relevant to the question involved. In Caputo v. Best Foods, Inc., 17 N. J. 259 (1954), as a consequence of a compensable injury, the employee was blinded. Liability was acknowledged. The respondent paid the medical expenses and commenced payment of compensation on the basis of total disability. It had paid $3,000 on account of its obligation when the third-party claim was settled for $60,000.

Notwithstanding respondent’s assumption of its statutory obligation, petitioner seeking the protection of a workmen’s compensation judgment, filed a claim petition. An award was entered for temporary disability as paid and for 100% of total disability, which at petitioner’s rate amounted to $11,250. A counsel fee to petitioner’s attorney was refused by the judge of compensation as not permissible under N. J. S. A. 34:15-64 in view of respondent’s offer and tender to pay compensation for total disability with which there had been full compliance until the settlement of the third-party claim in excess of the compensation value of the case.

The County Court affirmed the judge of compensation. On appeal to the Appellate Division, both lower tribunals were reversed on the question of the allowance of a counsel fee and petitioner’s counsel was granted leave to apply for a fee for services performed at all three levels of the proceedings. The Supreme Court in affirming the Appellate Division stated:

“Were there no third-party recovery, the primary obligation of compensation for the attendant disability would remain the employer’s; and it would he manifestly inequitable and unjust to lay upon the injured employee the cost of a recovery that under the statute inured to the employer, not alone the reimbursement of payments actually made but also the extinguishment of the whole of the continuing liability. There can be no doubt such is the principle of the statutory policy.” (at p. 264)

Further:

“And we concur in the conclusion of the Appellate Division that in these circumstances the allowance of an attorney’s fee is within the discretionary grant of R. S. 34:15-434.” (at p. 269)

Later the Court noted:

“But in these circumstances there was jurisdiction to determine the quantum of the employer’s liability under the Compensation Act, a prerequisite to the assessment of his interest and the employee’s in the the third-party recovery; and it would seem to be indisputable that this issue as to the relative rights of the parties in matters of substance is not within the policy of the cited statutory provision against the allowance of attorney’s fees where there is no genuine controversy.” (at p. 270)

In Burpee v. Princeton Municipal Improvement Co., 88 N. J. Super. 552 (App. Div. 1965) before the compensation hearing was held the third-party case was settled for $15,000. The ultimate compensation award was for slightly less than $15,000. The judge of compensation ruled that he had no power to award a counsel fee to petitioner’s attorney because the third-party recovery was greater than the compensation award. The County Court affirmed relying on N. J. S. A. 34:15-64.

The Appellate Division reversed the lower tribunals, stating:

“We hold that the judge of compensation did have the right to allow a fee in this case. Here there was a judgment in favor of Burpee. The mere fact that the employer was entitled to a credit against that judgment related only to the satisfaction of the judgment and did not affect the propriety and indeed the necessity of entering it. Thus its entry gave the judge of compensation the right to allow a fee.” (at p. 557).

As the court pointed out in the Burpee case, it is vital that an employee proceed with his compensation hearing to fix the liability of the employer. It is foreseeable that the employee’s disability may increase, in which case the compensation judgment would be an indispensable condition precedent to any further compensation benefits.

In the instant case, if there had been no third-party recovery a fee would be allowed counsel on the award of ten per cent of the partial total together with the unpaid medical and hospital charges. A lawyer who is diligent in the prosecution of a third-party claim should not be penalized because the third-party claim is settled and his client receives the proceeds before the compensation claim is heard. It is an attorney’s obligation to proceed with the compensation case not only to fix the employer’s liability but also to establish the nature and extent of the injured workmen’s disability. As indicated, this determination is essential in the event the employee should seek future benefits because of the worsening of his condition, the need for additional medical care or his eligibility for benefits under the “Second Injury Fund” (N. J. 8. A. 34:15-94-95.3). In the absence of a compensation judgment fixing the employee’s disability, some if not all of these future protections may be lost to him. In fairness, the attorney’s services rendered in the compensation ease should be reasonably compensated.

N. J. 8. A. 34:15-64 permits the hearing official, in his discretion, to grant a reasonable counsel fee, not exceeding twenty per cent of the judgment. The use of the term judgment embodies the full amount of the award, in this instance the sum of $3,335.51. The statute does not intend that only that part of the award remaining after the employer receives his proper credit for the third-party recovery should be considered in assessing counsel fees. The Legislature in qualifying the nature and extent of the counsel fee excluded that portion of the award resulting from a tender or payment made in good faith by the employer within a reasonable time prior to a hearing. The meaning of what the Legislature said is clear. The Legislature did not include third-party recoveries as an element to be considered in the reduction of the amount of counsel fee to be allowed. In cases of this type the judge of compensation in awarding counsel fees should consider the full award rendered the successful petitioner without regard to the third-party recovery or the credits which flow therefrom to the employer.

Of necessity, a word of caution is needed relative to the amount of counsel fee allowable. N. J. 8. A. 34:15-64 places the discretion in the judge of compensation to award reasonable counsel fees up to twenty per cent of the judgment. This opinion does not purport to instruct the judge of compensation that a counsel fee of twenty per cent of the full judgment should be allowed in any case.

The determination of the amount of counsel fee to be allowed is within his discretion after giving due consideration to the services rendered by the attorney, the benefits received by the petitioner and the other criteria needed for the fixing of a reasonable attorney fee.

In view of the fact that the judge of compensation indicated that he may have granted a greater counsel fee, if he was permitted to consider the full award instead of the net amount after credit for the third-party recovery was taken, the matter of counsel fee is remanded to the Division of Workmen’s Compensation for reconsideration within the discretion granted by statute. Counsel for the petitioner may therefore apply to the judge of compensation for a hearing relative to a reasonable counsel fee in conformance with this opinion.


author: Goldmann, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD OWENS, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1968
    Decided July 1, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. Morton Stavis argued the cause for appellant (Messrs. Irvin L. Solondz and Morton Stavis, attorneys).

      Mr. James R. Zazzali, Assistant County Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Goldmann, S. J. A. D.

Defendant was convicted in Newark Municipal Court on three charges of assault and battery under the Disorderly Persons Act (N. J. 8. 2A :170-26). Two of these involved police officers acting in the performance of their duties and one defendant’s three-week-old child. He was also convicted for resisting arrest, a violation of the local ordinance. In sentencing defendant the magistrate imposed four consecutive nine-month terms of probation in lieu of confinement in the county jail. As to two of the charges, defendant was ordered to pay a fine of $1 a week for 18 months of the probation period.

Defendant appealed to the County Court, B. B. 3 :10-2, where the matter was considered de novo on the record made before the municipal magistrate. B. B. 3:10-10(a). After hearing oral argument, the county judge found defendant guilty and imposed the same penalties as before.

Before proceeding to the facts, we observe that defendant challenges certain of the magistrate’s factual findings. The claim is misdirected and may not be considered here, for this appeal is from the County Court judgment. B. B. 2:2—1(Z>).

I

While on patrol duty on January 13, 1967, Newark police officers Schmaltz and Yscamp received a radio call at about 5:17 p.m. to investigate a boyfriend-girlfriend dispute. They at once drove to the address given by the police dispatcher and were met at the side entrance by Eva Getter, who identified herself as defendant’s wife. Only later did it appear that she and defendant were not married, but were living together with their newborn child. One of the officers testified that upon arrival he observed that Miss Getter “was worried and she was in hysterics.” She said she had been locked out of her apartment after, a fight with defendant and exclaimed, “All I want is the baby, my baby and my clothes so I can move out.”

Miss Getter directed the officers to the door of the apartment, located a few feet from the side entrance to the building. Defendant answered the doorbell but refused admission to the officers and Miss Getter. Yscamp testified that defendant began screaming and yelling at them, although they had explained they would like to talk to him about his problem and help out. Defendant shouted, “You don’t have a search warrant and you can’t come in here,” and with this he slammed the door in their faces. The officers turned to Miss Getter in an attempt to find out what was the matter with the man—had he been drinking or was he crazy? Her answer was unresponsive; all she kept repeating was her hysterical demand for her baby.

Unable to learn anything more. Yscamp again fang the doorbell. On cross-examination Yscamp described his thoughts at that moment:

“We were concerned about the baby. This was the main concern. It was her concern and it was our concern, the baby.”

Pressed further, he testified that on the basis of the facts before them, they feared for the child’s safety:

“We had concern for the baby. She [Miss Getter] was near hysterical. She wanted the baby. With the condition of this guy answering the door, yelling and screaming, loe were concerned for the baby. This was the main reason why [we rang the bell again], if the baby urns in there, the baby’s life might be in danger.
Q. Any idea about the baby’s life being in danger was your idea? A. No. She made us believe that by the way she was acting, by her concern. She wanted the baby.
Q. She wanted the baby. A. She wanted the baby. This was her concern. It was our concern to find out how the baby was.” (Emphasis supplied)

After the second ring defendant again opened the door, this time only a few inches. The officers told him (and repeated several times) that they only wanted to talk to him: “We’d like to talk to you. We don’t have to come in. We’ll talk to you right here.” They received the same answer as before. This time, however, as defendant tried to slam the door its movement was abruptly halted by Yscamp’s foot just inside the doorframe. Defendant three times slammed the door against the officer’s shoe in unsuccessful attempts to close it. Upon his third failure defendant, a powerful 6'2" man weighing more than. 190 pounds, suddenly threw the door wide open, struck out at the officers, and with his .fist hit Schmaltz in the head. Miss Getter became even more hysterical than when defendant had slammed the door the first time.

Both officers immediately grabbed at defendant and pushed him into the apartment. As the officers seized him,!-, he punched and kicked as he fought them off. ' The struggle inside the apartment continued for five minutes, defendant violently resisting every attempt to subdue and handcuff him. Miss Getter stood by, screaming. The three men grappled on the floor, with the officers trying to get defendant’s hands behind his back in order to manacle him securely. They at last managed to get the handcuffs on, but only with defendant’s arms in front of him. In the course of the melee Schmaltz struck defendant with his service flashlight.

Defendant was finally subdued and held on the floor in prone position, with Yscamp sitting on his back. Schmaltz then-went outside to radio for assistance. At this point defendant somehow managed to get up and, despite efforts to restrain him, ran into the bedroom where the child was lying on the bed. Miss Getter resumed her screaming, -and after defendant had picked up the-child and returned-to the living room Yscamp yelled at him to release it. Another struggle ensued, defendant (despite the handcuffs) squeezing the baby around its ^middle and holding it over his head, with Yscamp grasping defendant by the neck and Miss Getter trying to wrest the child from defendant’s hands. The testimony was that at one point defendant yelled, “If they don’t let me go, I’m going to kill him,, kill my baby. * * * They’re not going to take my baby away.”

Hearing the screams,'Schmaltz returned to the apartment. •The officers managed to get the child from. defendant, and a!s-they-turned it over t'o .Miss Getter, she-iCried out, .“You killed my baby, yOri-killed my baby,” before exiting, to a neighbor’s apartment. And when ’she handed the' child to her neighbor she said,.“Oh, he’s dead. I know he’s dead because he’s all blue in the face.” The neighbor testified that she observed bloodstains on the child’s neck and marks ■ on its body.

Eventually, other police arrived and defendant was removed to the police station. Miss Getter and the baby were taken to a local hospital to have the child examined. The hospital report shows that she told the nurse that the father had tried to choke the baby.

The condition of the apartment following the affair was silent witness to the violence of the struggle that had taken place there. The living room and bedroom were in total disarray, furniture broken, pieces of glass from a shattered ashtray were littered about, and bloodstains were visible in several places on the floor.

At the police station defendant was very uncooperative in giving his name and other required information. One officer noticed blood on defendant’s pants leg and rendered first aid to a laceration below the kneecap. Defendant appeared to be ill and was taken to a hospital where he was treated for the laceration and concussion. He remained hospitalized for two weeks.

We note that before trial in the municipal court defendant had brought a civil action against the two police officers (and others), seeking damages for the injuries he allegedly suffered at their hands. A substantial part of the voluminous record before us appears to have been made with the civil suit in mind, even though the outcome of this appeal can have no direct bearing on that matter.

Defendant’s version of the incident differs markedly from that related by the prosecution witnesses. He testified that the officers were disrespectful even before he first opened the door, and after he had answered their ring they cursed him for not opening the door. He also alleged that the officers pushed the door open after his unsuccessful attempts to close it, and that as soon as they had done so they lunged at him, spouting curses. One of them began beating him about the head with a flashlight, while the other choked him by putting an arm around his throat. Defendant, categorically denied ever striking or even swinging at the officers. (Here mention should be made of the fact that Schmaltz, the officer who claimed to have been struck, was treated for mild concussion by the police surgeqn.)

Defendant testified that the officer holding him let him get up from the floor just before he went into the bedroom where the baby was. After he had picked up the child, the officer began beating him again. Miss Getter, whose presence defendant claimed not to have previously noticed, began screaming, “My God, my baby is turning blue.” However, when she asked for the child he handed it over to her. Defendant also testified to further brutality by the officers: kicking him after he had been subdued, burning his eyelash with a cigarette while they were still in the apartment, and further disrespect, threats and lack of concern for his injuries while at the police station.

It is appropriate at this point to note that the magistrate had sequestered the witnesses on defendant’s motion. When Miss Getter was called by the State the magistrate declared her a hostile witness because of her reluctant answers. She failed to describe two separate instances of the door being opened—a fact agreed upon by the officers and defendant. According to her, the officer inserted his foot in the doorway when defendant came to. the door the one time. There were serious discrepancies between her testimony and defendant’s, and between her testimony and the statement she had given the police just three hours after the incident. Her memory, she claimed, was better on the day of trial than the evening of the occurrence. Incidentally, she also testified that she and defendant planned to marry.

The County Court judge not only had the benefit of the record made in the municipal court, but also extensive argument by counsel. In reaching his decision the judge disregarded most of Miss Getter’s testimony and characterized defendant as a “liar,” finding his story “incredible.” On the other hand, he found the testimony of the officers credible and unmarred by discrepancy. He also believed other witnesses produced by the State-—-the police sergeant who had responded to the officers’ call for assistance, and Shirley Jones, the neighbor to whom Miss Getter brought the child and who gave significant testimony as to what had happened in defendant’s apartment.

With regard to what the two officers had done, the judge said:

“* * * x conclude under the facts here that probable cause existed to enter the defendant’s home taking into consideration (he totality of all the circumstances. A woman says she is the wife and she is hysterical and her baby is inside. The police had to deal -with the situation as it arose and X hold that under those circumstances they acted reasonably and they had probable cause to go into the defendant’s apartment.
All this defendant had to do was say that this is something between my wife and myself. He didn’t have to slam the door the way he did. I think under the circumstances the police acted reasonably and did what they thought was proper under the circumstances. When they entered the apartment they had probable cause to do so.”

He concluded that the facts supported the assault and battery charges as well as that of resisting arrest, and accordingly found defendant guilty. Other questions, again raised on this appeal, were decided against defendant.

II

A- substantial portion of defendant’s brief is devoted- to challenging the factual findings of the County Court judge and the conclusions he had drawn from them. As we have noted, his resolution of the factual issues rested principally ■upon his appraisal of credibility of the witnesses.

It is now well established that our role in reviewing the factual-findings of a trial court is greatly circumscribed. Where the findings could reasonably have been' reached on sufficient credible evidence- present in the whole of the record, we will'not disturb the conviction. State v. Johnson, 42 N. J. 146, 162 (1964). Only where we are “thoroughly satisfied that the finding of guilt is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction,” do we appraise the record as if we were deciding the matter at inception and make our own findings and conclusions. Ibid.

Our reading of the record convinces us that defendant’s conviction is supported by substantial credible evidence. We recognize that the pendency of a civil suit growing out of the incident here under review may have tended to influence the testimony. But such influence must have operated on the arresting officers as well as defendant and Miss Getter. In effect, it cancelled out. The State’s witnesses were believed by the county judge on his de novo review, as they had been by the magistrate. Their testimony was sufficient to prove the elements of assault and battery committed on the officers and the infant, as well as the charge of resisting arrest.

Ill

Defendant’s principal contention on appeal is that the police unlawfully entered his home, and he was therefore fully justified in forcibly resisting their unwarranted intrusion. In making this argument defendant is willing to “assume the facts as stated by the police.”

The crucial fact in this case was Officer Yscamp’s placing his foot in the door to the apartment as defendant was about to slam it shut, refusing for a second time to talk to the police or Miss Getter. The issue thus raised is whether the foot in the door—what defendant terms an intrusion into his home and castle—was justifiable because based on probable cause. The focus of our inquiry must therefore be on that brief period of time between the officers’ arrival at the building where they met Miss Getter and the instant when Yscamp’s foot kept the door from closing.

The United States Supreme Court has said that probable cause exists where

“* * * ‘tlie facts and circumstances within [the officers’] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555, 39 A. L. R. 790.” (Brinegar v. United States, 338 U. S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949))

This statement is reflected in the opinions of our Supreme Court. See State v. Contursi, 44 N. J. 422, 430 (1965); State v. Burnett, 42 N. J. 377, 387 (1964). Chief Justice Weintraub in Burnett, after quoting from Brinegar, said (at page 387) : “Probable cause then is something sufficient to engender a belief somewhere between a bare suspicion and a conviction of guilt.” What follows is significant in the context of our case:

“* * Further, the issue is not whether the information which reached the officer was true or false but only whether the officer was reasonable in accepting the information as true. And in reaching his ‘belief’ the officer is not limited to evidence admissible in the courtroom. For example, hearsay will do if coupled with something to give it credit, * * (Iiid.)

The factual setting here merits quick review. Two uniformed officers, Schmaltz and Yscamp, were brought to defendant’s .door by an hysterical woman demanding her baby and clothes and who claimed to be the wife of the man inside. The moment the door opened defendant began yelling and, in spite of offers of assistance by the officers and no attempt on their part to enter his home, slammed the door in the face of all three persons outside. This so affected Miss Getter that she was unable to furnish the officers with any information whatsoever about her alleged husband. As one officer testified, because of her highly agitated condition they became concerned for the safety of the baby, said to be inside. Defendant’s manner and behavior only served to increase their concern. When their second attempt to talk to defendant faced imminent failure—and this despite their assurances that they only wanted to talk to him and be of help, and could do so without entering-—-Yscamp prevented defendant from closing the door.

Police officers faced with emergent matters in the performance of their duties are not required to be constitutional lawyers. The Fourth Amendment requires only that their actions be reasonable under the circumstances, and in assessing the quality of their behavior courts recognize the factual and practical considerations which guide reasonable and prudent laymen in the conduct of their everyday lives. Particular attention must be paid to the “common and specialized experience and work-a-day knowledge of policemen.” State v. Contursi, above, 44 N. J., at page 431. Judicial review of police action taken in the face of a fast-moving, excited situation must be “in a commonsense and realistic fashion.” United States v. Ventresca, 380 U. S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 689 (1965).

Measuring the conduct of the officers by this standard, we find that they acted reasonably in believing that Miss Getter was defendant’s wife, that there was a baby inside and that its life might be in danger. Miss Getter’s distraught, irrational condition and defendant’s violent behavior were enough to permit of the reasonable inference and belief by the police that a crime was being or was about to be committed against the child. Considering the totality of the attendant circumstances, there was probable cause to justify Yscamp’s action—and the county judge properly so found.

Thus, officers Yscamp and Schmaltz were involved in the lawful exercise of their duties at the moment the door first struck Yscamp’s shoe. Their attempts to pursue proper police practice, initially met by defendant’s resistance of every effort to speak with him, brought on defendant’s blow to the side of Schmaltz’s head. At that moment defendant was chargeable with the high misdemeanor described in N. ’ J. S. 2A :90-4, assault aud battery upon a uniformed police officer acting in the performance of his duties. He was subject to arrest without a warrant because the act or acts constituting the offense were committed in the presence of.an officer of the law. State v. Doyle, 42 N. J. 334, 345-346 (1964); State v. Smith, 37 N. J. 481, 494-495 (1962), certiorari denied 374 U. S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963); State v. Ferraro, 81 N. J. Super. 213, 218 (Cty. Ct. 1963); cf. Annotation, 76 A. L. B. 2d 1432, 1436- (§ 2), 1444 (§ 3) (1961).

The moment the two officers crossed the threshold of defendant’s apartment and attempted to subdue, restrain and handcuff him, they were arresting him for his attack on Schmaltz. State v. Doyle, above; and see State v. Bell, 89 N. J. Super. 437, 443 (App. Div. 1965). As noted, defendant’s resistance was violent and lasted a full five minutes, so that the county judge was quite correct when, he found that “under all the facts here the defendant resisted arrest from the very beginning and again after he was handcuffed.”

In the light of what has been said, each of defendant’s claims that there was no probable cause to enter without permission, that he was not under arrest during the course of the struggle, and that he had a right to defend his home from unjustifiable invasion, must fall. “It has always been illegal to resist a lawful arrest.” Warner, “The Uniform Arrest Act,” 28 Va. L. Bev. 315, 330 (1942), quoted with approval in State v. Koonce, 89 N. J. Super. 169, 181 (App. Div. 1965). Defendant, by striking Officer Schmaltz, had forfeited his right to retreat behind the closed door of his. “castle” and bar peace officers from entering. Defendant would not even have been justified in physically resisting an illegal- arrest. As this court had occasion to say in Koonce, above, ■ “a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining.” (at page 184).

Accordingly, under the facts of this case defendant could properly be found guilty of assault and battery upon each of the police officers and the baby, and of resisting arrest.

IV '

Officer Yscamp and Schmaltz initially signed separate complaints charging defendant, under N. J. S. 2A :90-4, with assault and battery upon each of them respectively—a high misdemeanor. Yscamp signed a further complaint charging defendant with assault and battery upon the baby, in violation of N. J. 8. 3A :170-36, and Schmaltz one charging him with resisting an officer, in violation of the Newark ordinance. At the trial in the municipal court the prosecution moved to downgrade the charges under N. J. 8. 3A :90-4 to disorderly persons offenses under N. J. 8. 3A :170-26. The motion was granted over the timely objection of defendant’s attorney that the downgrading would deprive him of his constitutional right to indictment by grand jury and trial by petit jury since the two charges involved were indictable offenses.

The granting of the motion below brought all four charges within the ambit of the municipal court’s jurisdiction. That court has jurisdiction in cases involving violations of the Disorderly Persons Law, N. J. 8. 2A :8-21(íZ), and, of course, violations of any municipal ordinance (here, that section of the Newark ordinance dealing with resisting a police officer), N. J. 8. 3A :8-21(c). Defendant'■ again contends that the downgrading of the N. J. 8. 2A':90-4 offenses was improper, and advances essentially the same argument here as he did in the municipal court.

“IN is unusual to find a defendant contending that he should not be tried on a disorderly persons charge, but rather for a high misdemeanor, conviction of which' would give him a criminal record. * * *»' State v. States, 44 N. J. 285, 293 (1965).

Nonetheless,: defendant, ’for whatever reason, does make such a contention.

Tn the case of In re Buehrer, 50 N. J. 501 (1967), onr Supreme Court observed that a person charged and tried on a lesser offense (there, contempt) could not raise, “without great strain,” the claim that he was denied equal protection of the law because tried for a petty offense rather than the greater offense which might have been charged on the same facts (at page 521). The court said:

“It is of course commonplace that a prosecutor need not pursue the maximum charge a factual complex could sustain. Discretion must repose somewhere to avoid the .injustice of blind rigidity. * * *” (IMd.)

The downgrading of offenses is not uncommon in our daily criminal practice. The decision to seek a conviction on a lesser charge is often a practical or even tactical one, inr volving factors and considerations best known to the prosecutor. Even so, the decision is not left solely to his own judgment. In any case where the offense charged is sought to be downgraded, a proper motion must be addressed to the court and granted. And if the judge, on his own motion, would downgrade the offense charged in the complaint, he must first seek and obtain permission of the prosecutor. State v. Dixon, 40 N. J. 180, 187 (1963). Since two of the four complaints against defendant charged high misdemeanors and, therefore, indictable offenses, the municipal magistrate would have had no jurisdiction over them unless the motion to downgrade had been made and granted. State v. Le Jambre, 42 N. J. 315, 318 (1964).

The prosecutor did make a proper motion in this case, and the municipal magistrate granted it. In the course of his objection to the granting of the motion, defendant’s attorney properly recognized that downgrading was a matter lying within the discretion of the magistrate, taking into consideration all the circumstances. Thus, unless an abuse of this discretion can be shown, we will not disturb the magistrate’s determination.

It is difficult to understand what it is that defendant assigns as an abuse of discretion. The facts we have set out above might well have supported a conviction for a high misdemeanor. Instead, defendant was charged with and convicted of only disorderly persons offenses. This does not give him a criminal record. See State v. States, above, at page 293. If the prosecutor’s decision to downgrade is to be characterized at all, it might well be considered as a lenient treatment of an aggravated situation.

There is no lack of clear authority for what was done in this case. The interplay of the same two statutes as here involved, N. J. S. 2A :90-4 and N. J. S. 2A :170-26, was discussed in State v. States, above, in terms of the prosecution’s decision to proceed only under the Disorderly Persons Act. The court said .that

“The mere fact that two statutes overlap in ■ prohibiting the same act does not mean that the later law [2V. J. S. 2A:90-4] automatically repeals the earlier one pro tanto, or that an alleged offender can only be prosecuted for the more serious offense.” (at page 291)

The court then pointed out that there are many situations-where criminal statutes overlap in prohibiting the same basic act, and that it is not unusual to permit the prosecutor, in the exercise of discretion and considering the attendant circumstances, to determine under which statute he would proceed, (at page 292).

Accordingly, we find no error in the municipal magistrate’s granting of the motion to downgrade to disorderly persons offenses the two charges brought under N. J. 8. 2A :90-4.

V

The question remains whether defendant was entitled to a jury trial on the three charges of assault and battery, prosecuted under N. J. S. 2A This requires a consideration of Duncan v. State of Louisiana, 391 U. S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (May 20, 1968), decided one week before the argument in our case, but not cited by either counsel then or since.

Duncan was convicted of simple battery, a misdemeanor punishable under Louisiana law by a maximum sentence of two years’ imprisonment and a $300 fine. The Louisiana Constitution grants a jury trial as of right only in capital cases or in noncapital cases where the sentence imposed may be imprisonment at hard labor. La. Const., Art. VII, § 41. Defendant nonetheless requested a jury trial. It was denied. Duncan sought review in the Supreme Court of Louisiana, claiming that the denial of a jury trial violated the rights guaranteed him by the United States Constitution. That court, finding no error of law, declined to review the ruling. The United States Supreme Court reversed, holding that “a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense.” The court said that the right to a jury trial, as guaranteed by the Fourteenth Amendment, exists in all criminal cases which, were they to be tried in a federal court, would come within the Sixth Amendment’s guarantee.

Louisiana contended that even if it had to grant jury trials in serious criminal cases, Duncan’s conviction was valid because he was tried for simple assault and battery and sentenced to only 60 days in the parish prison. The court was not persuaded, stating:

“* * * It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties of six months do not require a jury trial if they otherwise qualify as petty offenses, Chell v. Schnackenberg, 384 U. S. 373 [86 S. Ct. 1523, 16 L. Ed. 2d 629] (1966). But the penalty authorized for a particular crime is of major relevan'ee in determining whether it is serious or not and may in itself, if. severe enpjigh, subject the trial to the mandates of the Sixth Amendment. District of Columbia, v. Clawans, 300 U. S. 617 [57 S. Ct. 660, 81 L. Ed. 843] (1937). The penalty authorized by the law of the locality may be taken ‘as a gage of its social and ethical judgments,’ 300 U. S., at 628 [57 S. Ct. 660], of the crime in question.” 391 U. S., at p. 159, 88 S. Ct., at p. 1453, 20 L. Ed. 2d, at p. 502.

Observing that so-called petty-offenses were tried without juries both in England and the Colonies and had always been held exempt from the otherwise comprehensive language of the Sixth Amendment’s jury trial provisions, the court stated:

“* * * There is no substantial evidence that the Framers intended to depart from this established common-law practice, and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and - simplified- judicial administration re■sulting from the availability of speedy, and inexpensive -nonjury adjudications. These same considerations compel the same result under the Fourteenth Amendment.”

Continuing, the court said:

“Of course the boundaries of the petty offense category have always been ill defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not .addressed itself to the problem, themselves face the question in the first instance. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process; although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little.” 391 U. S., at p. 160, 88 S. Ct., at p. 1453, 20 L. Ed. 2d, at p. 502.

The court noted that petty offenses are defined in the federal system as those punishable by no more than six months in prison and a $500 fine. 18 TJ. 8. G. A., § .1. In 49 of the 50 states crimes subject to trial without a. jury are punishable by no more than one year-in jail.

After further observing that in the late Eighteenth Century crimes in this country triable without a jury were for the most part punishable by not more than six months in prison (although there were exceptions to this rule), the court concluded :

“* * * We need not, however, settle in this case the exact location of the line between petty offenses and serious crimes. It is sufficient for our purposes to hold that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a jjetty offense.”

Duncan’s conviction was reversed and the case remanded.

Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538, decided the same day as Duncan, emphasized that “This Court has not had occasion to state precisely where the line falls between punishments that can be considered ‘petty’ and those that cannot be. * * * [I]t is clear that a six-month sentence is short enough to be ‘petty.’ ” The criminal contempt with which Dyke and others had been charged was held a petty offense because the maximum penalty permitted under the Tennessee statute was ten dajrs in jail and a $50 line.

Compare Bloom v. State of Illinois, 391 U. S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522, decided along with Duncan and Dyke, where Bloom had been found guilty of criminal contempt for filling a spurious will for probate and sentenced to 24 months in prison. The court held that it was constitutional error to deny Bloom his right to trial by jury.

Prom Dyke we learn that where an offense is punishable by no more than a six-month sentence, the offense is deemed “petty,” not entitling a defendant to a jury trial. On the other hand, Duncan instructs us that an offense punishable by a maximum prison sentence of two years may not be characterized as “petty,” and that a defendant charged with such an offense may not be denied his constitutional right of trial by jury. The United States Supreme Court has failed to mark the line separating a petty from a non-petty offense in terms of the maximum sentence that can be imposed.

At the time defendant was convicted N. J. 8. 2Á ¡169-4 stated that, except as otherwise expressly provided, one adjudged to be a disorderly person should be punished by imprisonment in the county workhouse, penitentiary or jail for not more than one year, or by a fine not exceeding $1,000, or both. This general provision would apply in the case of. an assault and battery under N. J. 8. 2A ¡170-26 of the Disorderly Persons Act. The possible one-year penalty fell in between those considered in Dyhe and Duncan. We are not persuaded that a disorderly persons offense of the kind here considered should be deemed other than petty because of the one-year sentence that could be imposed, especially in light of State v. Maier, 13 N. J. 236 (1953), where the history of the jurisdiction to try and punish simple assaults and batteries without indictment and without trial by jury was traced at some length and N. J. S. 2A: 170-26 found-constitutional by a- divided court.

Accordingly, the convictions are affirmed.

       The court made .special .-mention, in footnote -33- that ~B.- J.. S. 2A:169-4, our general penalty statute, for disorderly'person's offeiises, was one of the only two instances in the nation, aside frorñ'i. the Louisiana statute under review, denying a defendant a jury trial where the maximum permissible sentence might exceed six months in prison; and that such denial of a jury trial had been upheld against state constitutional attack by a 4-3 vote in State v. Maier, 13 N. J. 235 (1953).

       In light of the United States Supreme Court decisions in Duncan and Dyke, the Legislature has just passed Assembly Bill No. 847, amending N. J. S. 2A :169-4 to read that a person adjudged a disorderly person “shall be deemed to have been guilty of a petty offense” and be punished by imprisonment in the county workhouse, penitentiary or jail for not more than six months, or by a fine of not more than $500, or both. The bill was signed into law by the Governor on June 25, 1968, and is now L. 1968, o. 113. Referring to the Dunean-Dyke holdings, the Statement attached to the bill recites:
      “The [United States Supreme Court] has thus left a vast hiatus for cases where imprisonment is authorized for more than 6 months and for not more than 1 year. Nearly all of New Jersey’s Disorderly Persons Act violations are subject to a 1 year maximum, even though the vast majority do not result in sentences longer than 6 months.
      A hopeless problem would arise if the New Jersey limit were to be found subject to jury trial requirements. There are difficult enough obstacles now to the empaneling of sufficient juries for the trial of crimes; if juries were required for the petty offense of violation of the disorderly persons law, Parkinson’s law would flower in full bloom with huge masses of the population spending their time sitting on juries.”