text:
    MARY B. WELLER, JOSEPH N. SEMPLE AND MARGARET M. SEMPLE, PLAINTIFFS, v. HOME NEWS PUBLISHING COMPANY, A NEW JERSEY CORPORATION, ST. PETER’S GENERAL HOSPITAL, A NEW JERSEY CORPORATION, AND JEFFREY MURRAY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 10, 1970.

      Mr. Thomas B. Hood for plaintiffs (Messrs. Seaman and Clark attorneys).

      Mr. Franz J. Skok for defendant Home News Publishing Company (Messrs. Seifert, Frisch and Cruber, attorneys).

      Mr. William B. Cohen for defendants St. Peter’s Hospital and Jeffrey Murray (Messrs. Cohen, Hoagland, Cohen and Keefe, attorneys).
   Furman, J. S. C.

Defendants move for summary judgment (B. 4:46). The complaint filed December 3, 1968 and the pretrial order entered September 12, 1969 allege libel of Mrs. Weller, who died on August 19, 1970, and of her daughter and son-in-law, Mr. and Mrs. Semple, and invasion of Mrs. Weller’s right of privacy. The facts, which are substantially undisputed, are unusual.

Mrs. Weller in 1967 was a paying patient in defendant hospital suffering from a heart affliction. Defendant Murray as its public relations director prepared a series of three articles dealing with charity patient care. Defendant newspaper published these articles. The second had as its central figure Prudence “Grandmom” Pickett, a charity patient not eligible for Medicare, cheerful, unselfish and destitute. “Grandmom” Pickett was fictitious, although the article, which was published on Sunday, December 10, 1967, did not so state. The accompanying photograph, captioned “Grandmom” Pickett, was that oí Mrs. Weller in a walker in profile view.

A release entitled “Photographic Consent” is alleged but not relied upon by defendants on this motion. Plaintiffs deny such consent.

As to Mrs. Weller’s causes of action for libel and invasion of privacy, defendants urge their abatement upon her death during the pendency of the litigation. The authority cited is Alpaugh v. Conkling, 88 N. J. L. 64 (Sup. Ct. 1915), which held that the survival statute (now N. J. S. A. 2A:15-4) did not apply to a cause of action for slander by the decedent, who died during the pendency of the litigation. Justice Parker stated broadly (at 67) that “the conclusion that the Legislature did not intend that libel or slander, considered purely as injurious to the feelings and reputation and apart from special damage, should survive to the personal representative.”

Alpaugh has been cited as the law of New Jersey in the Federal District Courts for New Jersey and for the Southern District of New York. Palmisano v. News Syndicate Co., 130 F. Supp. 17 (S. D. N. Y. 1955); Patrick v. Esso Standard Oil Co., 156 F. Supp. 336 (D. N. J. 1957).

The former Supreme Court in Alpaugh construed the words “trespass done to the person or property” as encompassing torts generally (Ten Eyck v. Runk, 31 N. J. L. 428, 431 (Sup. Ct. 1866)) but only if involving physical injuries or, possibly, special damage claims. The present case parallels Alpaugh in that general damages, not special damages, are sought.

The holding in Alpaugh is by a court of like jurisdiction at nisi prius and need not be followed. Wolf v. Home Insurance Co., 100 N. J. Super. 27, 35 (Law Div. 1968), aff’d 103 N. J. Super. 357 (App. Div. 1968); 20 Am. Jur. 2d, Courts, § 201 (1965). The result is repressive and out of keeping with the preferable trend outside New Jersey. Emmanuel v. Bovino, 26 Conn. Sup. 356, 223 A. 2d 541 (Conn. Super. Ct. 1966); Brown v. Mack, 185 Misc. 368, 56 N. Y. S. 2d 910, 914-915 (Sup. Ct. 1945); Prosser, Law of Torts (3 ed. 1964), at 923; Note, “Inadequacies of English and State Survival Legislation,” 48 Harv. L. Rev. 1008 (1935); Evans, “A Comparative Study of the Statutorjr Survival of Tort Claims Eor and Against Executors and Administrators,” 29 Mich. L. Rev. 969 (1931).

Dean Prosser has pressed the view that

* * * the modern trend is definitely toward the view that tort causes of action and liabilities are as fairly a part of the estate of either plaintiff or defendant as contract debts, and that the question is rather one of why a fortuitous event such as death should extinguish a valid action. Accordingly, survival statutes gradually are being extended; and it may be expected that ultimately all tort actions will survive to the same extent as those founded on contract. [Prosser, op. eit., at 923].

.All tort actions abated at common law upon the death of a party. Ten Eyck v. Runk, 31 N. J. L. 428, 430 (Sup. Ct. 1866), Tichenor v. Hayes, 41 N. J. L. 193, 197 (Sup. Ct. 1879); Reilly v. Deans, 131 N. J. Eq. 547, 548 (Ch. 1942), Prosser, op. cit., at 920-921; 1 C. J. S. Abatement and Revival § 132, p. 178 (1936).

The survival statute abrogating the common law rule preserved a decedent’s cause of action for trespass to person or property and a cause of action against a decedent for trespass to person or property without stated exceptions. To construe trespass to person as not encompassing libel or invasion of the right of privacy is to import a limitation into the survival statute which is not expressed. The term “trespass” in the statute is equated with “tort.” It should not be modified by implication to exclude torts in which damages for emotional distress, not physical injury, are sought. Any such distinction is arbitrary. Damages for mental suffering and nervous anguish without physical injury were recoverable at common law in several causes of action arising out of trespass on the case, e. g., libel, slander, malicious prosecution and alienation of affections. Nor is there any logical basis for Justice Parker’s dictum in Alpaugh that defamation actions alleging special damages, that is, property or money losses, are within the survival statute, although defamation actions alleging general damages are not.

The survival statute is, therefore, construed to apply to the torts of libel and invasion of the right of privacy resulting in damage to reputation and emotional distress without special damages. Alpaugh is specifically not followed. The motion for summary judgment on the two counts brought by Mrs. Weller, now deceased, is denied.

In their briefs defendants and plaintiffs have argued in favor of and opposing a summary judgment on a cause of action by Mr. and Mrs. Semple for invasion of their right of privacy. No such cause of action may be fairly said to be framed in the complaint- or pretrial order.

In any event, there is no recognized cause of action for invasion of a relational right of privacy, except in some factual circumstances when the relative is deceased at the time of the tort. Note, “Relational Right of Privacy,” 21 Rutgers L. Rev. 74 (1966); Hanson, Libel and Related Torts, 1¡ 265 at 212 (1969).

Finally, defendants contend that the count by the Semples sounding in libel should be struck down. They urge that the courts have disallowed as a matter of law vicarious defamation actions arising out of a defamation of a relative, absent special damage or damage to plaintiff’s reputation by necessary implication, e. g., that her child is illegitimate. Prosser, op. cit., at 762; Hanson, op. cit., 35 at 35, 200 at 165-166; Pogany v. Chambers, 206 Misc. 933, 134 N. Y. S. 2d 691 (Sup. Ct. 1954), aff’d 285 App. Div. 866, 137 N. Y. S. 2d 828 (App. Div. 1955), app. den. 285 App. Div. 934, 139 N. Y. S. 2d 887 (App. Div. 1955); Rose v. Daily Mirror, Inc., 284 N. Y. 335, 31 N. E. 2d 182 (Ct. App. 1940).

These authorities, apparently unimpeachable, are not governing. The theory of plaintiffs Semple is that they were libelled becanse the readers of defendant newspaper recognized the photograph of her mother, identified as a charity patient, and considered that her daughter and son-in-law were derelict in their obligation to her and had defrauded defendant hospital by representing that they were impoverished themselves. Neither the intent to defame nor the naming of the plaintiff is a necessary element in an action for libel. Prosser, op. cit., at 767 and 790; Harper & James, The Law of Torts, § 5.7 at 366 (1956); Hanson, op. cit., 18 at 25; 3 Restatement, Torts, § 580 at 205 (1938).

Thus it appears that a fact question for the trier of fact would be raised if the proofs in their most favorable aspect would support findings that the relationship of plaintiffs Semple with decedent Mrs. Weller was known to an appreciable number of the readers of defendant newspaper and her identification as a charity patient reasonably understood by them as damaging plaintiffs’ reputations.

The motion for summary judgment on the cause of action in libel by plaintiffs Semple is, therefore, likewise denied.


source: Caselaw Access Project

author: ■ Makzulli, P. J. D. C.

license: Public Domain

text:
    PHILIP KRUVANT, NAOMI KRUVANT AND DANIEL KRAM, PLAINTIFFS, v. SUNRISE MARKET, INC., A CORPORATION OF NEW JERSEY, DEFENDANT.
    District Court Essex County
    Decided November 6, 1970.

      Mr. Jerome C. Eisenberg for plaintiffs (Messrs. Clapp & Eisenberg, attorneys).

      Mr. Gilbert Ehrenhranz for defendant (Messrs. Hellring, Lindeman & Landau, attorneys).
   ■ Makzulli, P. J. D. C.

This is a possessory action for nonpayment of rent. The tenant, Sunrise Market, on January 28, 1966 entered into a long-term lease of a premises in West Caldwell, New Jersey, .with the landlord, Philip Kruvant et als. That lease provided in part:

28. Any controversy or claim arising out of, or relating to the interpretation, performance or non-performance of this lease, except the payment by TENANT of rent and real estate taxes (but not excepting any controversy or claim relating to the proper amount thereof payable by TENANT hereunder) shall be settled by arbitration in the City of New York, before the American Arbitration Association and pursuant to their rules and regulations and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Rent shall be paid in accordance with the terms hereof during arbitration.

The tenant has made the payments due under the said lease to the landlord as they became due up through and including the month of August 1970. In August 1970 the tenant expended over $54,000 to repave the parking area, a repair1 which the tenant alleges should have'been made-by the landlord but which the landlord, even after proper notice) failed to make. The tenant has failed to pay to the landlord the rent due for the months of September, October and November 1970. The tenant seeks a setoff against the rent due for said months, alleging that it is entitled to that credit as a result of the expenditure for the paving of the parking area. The tenant alleges that under the law, as set forth in Marini v. Ireland, 56 N. J. 130 (1970), the tenant had the right to make the repairs and deduct the cost of the repairs from the rent allegedly due. It is admitted that the tenant had been paying a rental of $5,000 per month many months prior to August 1970. The tenant raises the following questions for the court’s determination:

1. Whether the rational of the Marini v. Ireland decision applies in this commercial situation.

2. Whether a possession action by this landlord can be brought since the tenant alleges that the amount of rent due has not been determined as a result of the landlord’s violation of the lease.

It is apparent, under the terms of the lease, that all rent shall be paid in accordance with its terms during arbitration of any dispute. The tenant in this instance is asking this court to determine whether or not it is in fact the landlord’s obligation to repair or repave the parking area. This, all parties agree, is a proper subject matter for arbitration. It is clear from the lease that during arbitration the rent shall be paid. The problem is, what is the amount of rent to be paid? The parties have, by their actions, established the rental to be $5,000 per month. Paragraph 28 further provides that any controversy or claim relating to the proper amount of rent payable by the tenant shall also be arbitrated. It is this court’s considered opinion that pending arbitration the tenant must pay the amount of rent due without reduction. The amount established as being the rent by the parties as a result of their past action is $5,000 per month. The tenant’s failure to make payment even during the period of arbitration would entitle the landlord to bring an action for possession.

This court does not feel that it should try a dispute which the parties had previously agreed to arbitrate. When a controversy is within an arbitration clause, it is absolutely arbitrable. Jersey Central Power & Light Co. v. Local Union No. 1289, etc., 38 N. J. 95 (1962), and Sussleaf-Flemington, Inc. v. Bruce, 84 N. J. Super. 599 (App. Div. 1964).

Even if the above conclusion were not correct, it is this court’s considered opinion that the doctrine as laid down in Marini v. Ireland, 56 N. J. 130 (1970), and as expanded in Academy Spires, Inc. v. Brown, 111 N. J. Super. 477 (Cty. Dist. Ct. 1970), would not be applicable to commercial tenancies. Justice Haneman stated in Marini

It is of little comfort to a tenant in these days of housing shortage to accord him the right upon a constructive eviction to vacate the premises and end his obligation to pay rent. [56 N. J. at 146]

It is clear that it was the court’s intention to limit the remedy as set down in Marini to residential tenancies.

There will be a judgment for ■ possession. Warrant not to issue provided tenant pays the rent to the landlord or deposits the rent due with the court pending appeal.


author: Leonard, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM RODRIGUEZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 23, 1970
    Decided December 17, 1970.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. George A. Marz, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney; Mr. Herbert I. Wachstein, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. I. Michael Heine, Assistant Prosecutor, argued the cause for respondent (Mr. A. Donald Bigley, Camden County Prosecutor, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant appeals, pursuant to leave granted, from a County Court order denying his motions for dismissal of four indictments, each charging him with the unlawful sale of marijuana (N. J. 8. A. 24:18-4) to State Trooper Irizarry on September 2 and 7, 1966, in Camden, New Jersey.

At the time Irizarry was a police undercover agent. The alleged offenses took place on the above noted dates in a Camden poolroom managed by defendant. Irizarry was participating in a large undercover narcotic investigation which commenced in August 1966 and terminated in January 1968. State Police detective Joseph DiCaro, assigned to the narcotics bureau, was the supervisor of the investigation and Irizarry was working under him.

The four indictments against defendant were returned in September 1966. However, they as well as all other indictments returned as a result of the above investigation were impounded and not released until April 1968. Arrest raids generally took place in May 1968. The police raided premises on Haddon Avenue, Camden where they thought defendant resided with his family but they found it empty. He was not apprehended until October 3, 1969.

Defendant’s motions for dismissal were grounded upon his contention that the three-year delay between the alleged offenses and his arrest deprived him of his right to a speedy trial, due process and the effective assistance of counsel. The same arguments are advanced on this appeal, with the addition of a claim that the delay was purposeful and oppressive. Defendant asserted below and now asserts that presently he is unable to recall the dates of the alleged offenses, his activities during those days, or any persons with whom he may have come in contact.

An accused who asserts that his rights of due process and to a speedy trial have been violated by reason of a delay between an offense allegedly committed by him and his arrest therefor has the burden of establishing both that (1) there was no legitimate reason for the delay and (2) he was prejudiced thereby. Powell v. United States, 122 U. S. App. D. C. 229, 352 F. 2d 705, 708 (D. C. Cir. 1965). The court in Powell in determining that the delay therein was supported by a “commendably legitimate reason” stated:

Use of undercover agents is a necessary and accepted police practice, and the interest of the Government in keeping an agent’s identity secret for a reasonable period is a legitimate basis for delaying the arrest of an individual wrongdoer while the agent is continuing his covert investigations, [at 708]

See also, State v. Rountree, 106 N. J. Super. 135 (Cty. Ct. 1969), wherein the court in a thorough and well reasoned opinion set forth the various matters necessary to be considered in arriving at an evaluation of the problem here involved.

Detective DiCaro testTied that all indictments resulting from the Camden area undercover narcotic investigation were impounded to protect the undercover agent and the investigation which he was conducting. They were released in April 1968, the investigation having been concluded. This testimony which was not contradicted was more than adequate support for the trial court’s determination that the delay of defendant’s arrest for at least the period from September 1966 to May 1968, when the indictments were released, was “reasonable” and in the “interest of justice.”

The court further found that the delay in defendant’s arrest from May 1968 until October 3, 1969 was caused by defendant’s affirmative conduct and not by the inaction of the State. This finding is fully supported by the record. Upon the release of the indictments the police attempted to arrest defendant at his last known address. This turned out to be a vacant house. The police were told defendant had fled to New York and would not return. Notice was sent to the F. B. I. Defendant was absent from the Camden area during most of this period. Thereafter he was arrested on October 3, 1969, when a policeman recognized him on a Camden street.

Next, we consider defendant’s assertion that he was prejudiced by the delay. He testified that he could not recall his activities on the dates charged in the indictments. He denied knowing Irizarry. On cross-examination he conceded that he had smoked marijuana but could not remember who gave it to him. He admitted that he might have possessed it on the critical dates but not in quantity; and that he had directed people where they might buy the drug, although he now does not remember where. He denied that he ever sold it himself. The trial judge determined as a fact that defendant did not have “such a lack of recall as he has sought to demonstrate, and that the testimony he has presented shows in fact a selective recall depending on whether he deems the answer to be favorable to his own position.” The court found his “credibility grossly impeached” and that he could readily consult with counsel and apprise him of the incidents in question. The evaluation of defendant’s credibility was for the court, as the trier of the facts, and we find that its determination on the issue of defendant’s alleged lack of recall was also fully supported by the credible evidence in the record.

Thus, we conclude that defendant did not carry the burden of establishing the two necessary factors set forth in Powell v. United States, supra, 122 U. S. App. D. C. 229, 352 F. 2d 705, 708.

Judgment affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STANLEY RYDZEWSKI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 34, 1970
    Decided December 21, 1970.

      Before Judges Goldmann, Leonaiíd and Mountain.

      Mr. Robert A. Galisson, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney; Mr. Edward Weisslitz, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph T. Maloney, Deputy Attorney General, argued the cause for Department of Institutions and Agencies (Mr. George F. Kugler, Jr., Attorney General, attorney).

      Mr. Richard A. Fiore, Assistant Prosecutor, argued the cause for respondent (Mr. Robert Dills, Bergen County Prosecutor, attorney).
   The opinion of the court was delivered by

Golkmann, P. J. A. D.

On this appeal from a denial of his petition for post-conviction relief defendant again argues, as he did in the County Court, that the denial of his applications for classification as a “minimum security” prisoner constitutes an illegal sentence and, farther, that the 3-5 and 1-2 concurrent State Prison sentences imposed for breaking and entering and for larceny were “manifestly” excessive although concededly within statutory limits.

We find no merit whatever in the claim of excessive sentence. Indeed, at the post-conviction hearing defendant said, “I am not saying that the sentence is illegal in any way. The sentence is proper.” However, he believed the sentence burdensome in his case, and his exposition of what he means by this points in the same direction as his claim that he was entitled to minimum security status.

Defendant argues that under N. J. 8. A. 30:4^92 the State Prison Classification Committee should have classified him for minimum security employment, and that the court should so classify him and thereby reduce his sentence by 73J¿> days, constituting the work credits he would have received had he been properly classified. The county judge held that even if that argument had merit, post-conviction relief was not the proper method of testing the administrative action of the prison1 officials at Rahway where defendant was incarcerated: a person aggrieved by the action of a state administrative agency should seek judicial review in the Appellate Division.

The notice of appeal recites that defendant appeals not only from the County Court’s denial of his petition for post-conviction relief but from the administrative determination of the prison authorities denying him minimum security work status. The Attorney General appears solely for the purpose of appropriate response to the latter.

Defendant’s appeal from the complained-of administrative action should have been brought in this court in the first instance. R. 2:2-3(a), formerly R. R. 4:88-8(a), provides that appeals may be taken to the Appellate Division as of right to review the final action of any state administrative agency or officer, except where governed by R. 4:74-1 and 8, not here applicable. We overlook defendant’s lapse since the matter is now squarely before us for decision.

N. J. 8. A. 30:4-92 provides:

The inmates of all correctional and charitable, hospital, relief and training institutions within the jurisdiction of the State Board shall be employed in such productive occupations as are consistent with their health, strength and mental capacity and shall receive such compensation therefor as the State Board shall determine.
Compensation for inmates of correctional institutions may be in the form of cash or remission of time from sentence or both. Such remission from the time of sentence shall not exceed 1 day for each 5 days of productive occupation, but remission granted under this section shall in no way affect deductions for good behavior or provided by law.
In addition, all inmates classified as minimum security and who are considered sufficiently trustworthy to be employed in honor camps, farms or details, shall receive further remission of time from sentence at the rate of 3 days per month for the first year of such employment and 5 days per month for the second and each subsequent year of such employment.

It is the last paragraph that is the focus of defendant’s classification argument.

The statute thus gives the State Board of Control full power and authority in the area of internal prison management to engage inmates in productive occupations consistent with their health, strength and mental capacity, and further, to provide such compensation therefor as in its best judgment it may determine. Cf. Harris v. Yeager, 291 F. Supp. 1015 (D. N. J. 1968) (challenge under the Federal Civil Rights Act to state prison’s administrative policy of compulsory saving by inmates of their monthly earnings).

Discretion is vested in the prison officials to determine which inmates shall be classified as minimum security because “considered sufficiently trustworthy to be employed in honor camps, farms, or details,” thereby entitling them to an additional remission from sentence. In the exercise of that discretionary power prison officials may consider a wide range of facts and circumstances, such as the inmate’s past criminal record, his propensity for becoming involved in criminal activity, his institutional record on work assignments, disciplinary reports, adjustment to institutional programs, obedience, his capacity to work with other inmates and under authority, attitudes and any prior history of addiction to drugs.

Basic to the resolution of any proceeding seeking review of prison administrative action is the legal principle that courts will not interfere with the internal administration of the institution, absent action by the prison authorities which deprives an inmate of his constitutional rights or is clearly capricious or arbitrary. That principle, taken from earlier federal cases, was adopted by this court in McBride v. McCorkle, 44 N. J. Super. 468 (1957), where plaintiff alleged that he was subjected to cruel and unusual punishment by reason of prolonged "solitary confinement” which denied him the free exercise of his religious beliefs through attendance at Mass, as prescribed by the Eoman Catholic Church. We dismissed his appeal, finding that his repeated violation of prison rules merited his confinement, stating:

* * * Courts are not required to supervise the administration of prison rules and regulations and prison disciplinary procedures. To do so would effectively disrupt prison administration and contravene public policy. We do not believe the Legislature or the rules of court intended any such review or result. Such matters are left to the discretion of prison authorities so long as .their conduct does not involve deprivation of the prisoner’s constitutional rights and is not clearly capricious or arbitrary. The moment a man is sentenced to State Prison and received within its walls, there arises a duty on the part of the Principal Keeper to discipline him according to the practice laid down by the Board of Managers and the -State Board of Control. Reasonable discretion must be accorded the Principal Keeper in discharging his duties; penal administration must be kept flexible to the circumstances of a particular case. Whether he is properly enforcing prison rules and regulations is left to the judgment of the Board of Managers, to whom he is responsible in the first instance, and of the State Board of Control ultimately.
Thus, the only situation calling for review would be one where there was presented a statement of facts which, if true, would clearly amount to arbitrary or capricious treatment of the prisoner by the Principal Keeper, or a deprivation of the prisoner’s constitutional rights. Present such treatment or deprivation, uncorrected by administrative action or review, there unquestionably would be a judicial remedy. [Citations omitted] * * *. [at 477]

And see Gurczynski v. Yeager, 339 F. 2d 884 (3 Cir. 1964); United States ex rel. Stuart v. Yeager, 293 F. Supp. 1079 (D. N. J. 1968), aff’d 419 F. 2d 126 (3 Cir. 1969), cert. den. 397 U. S. 1055, 90 S. Ct. 1400, 25 L. Ed. 2d 673 (1970); Ford v. Board of Managers of N. J. State Prison, 407 F. 2d 937 (3 Cir. 1969).

Accordingly, short of action which deprives an inmate of his constitutional rights or action which is clearly capricious or arbitrary, courts will not undertake to determine what work program an inmate shall be given, this being purely a matter of prison administration. That the action of the prison authorities in not classifying defendant as a minimum security prisoner did not trespass upon his rights is fully established by his prison record. That record • — ■ a lengthy and detailed one — clearly supports the administrative determination that defendant is not “sufficiently trustworthy” to be employed in honor jobs as a minimum security inmate. It shows an extensive involvement in criminal activity since 1958, continuing use of narcotics, violation of parole in 1963, his leaving the Lexington, Ky., Federal Hospital for Narcotic Addicts and, more important than all this in deciding whether defendant was properly dealt with, his poor record of work and conduct in confinement during all three of his commitments to state institutions.

We find the prison authorities’ refusal to classify defendant as a minimum security inmate not only proper but wise, and accordingly affirm.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EMANUEL EARLE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued December 1, 1970
    Decided December 18, 1970.

      Before Judges Kilkenny, Halpern and Lane.

      Mrs. Sonia Napolitano, Assigned Attorney, argued the cause for appellant (Messrs. Teltser, Byrne & Greenberg, attorneys).

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

Halpern, J. A. D.

Defendant appeals from a judgment of conviction for atrocious assault and- battery in violation of N. J. 8. A. 2A:90-1. He was sentenced to State Prison for not less than five nor more than seven years.

A summary of the essential facts testified to by the victim, Joseph Lancellotti, follows: He was employed as a patrolman by the Lehigh Valley Eailroad. Shortly after midnight, on June 9, 1968, while inspecting freight cars in the Newark railroad yard he saw two men stacking boxes in a freight car in an area partially illuminated by floodlights. He approached them with a lighted flashlight in one hand and a revolver in the other. He identified himself and ordered the two men to step down. Within seconds thereafter he was struck from behind with a hard object causing him to drop the flashlight. He was then kicked and severely beaten with a lead pipe and dragged across the ground causing injury to his chest, legs and side. Before losing consciousness he fired all the bullets in his gun, and threw it away when he heard one of the attackers say “Dixon, get his gun and kill him.” He was of the opinion that four men participated in the attack.

The following day he made a written report to his employer setting forth what had transpired but describing only one of his attackers (admittedly, not the defendant). At about the same time he gave an oral statement of the occurrence to the police and the other railroad patrolmen together with a description of the four attackers. In his court testimony, which was not too clear, he described them thusly — • one was “five seven, five eight, approximately 40 years old wearing a white T-shirt. I’ve described too as being large negro males. * * * and the other being approximately six feet tall, wearing a T-shirt, short hair and a mustache.” The last described person was presumably the defendant. Over a period of about seven months he viewed approximately 200 photos, and looked at about 15 men who had been arrested on railroad property for breaking and entering, but was unable to make an identification.

On January 4, 1969 the victim was informed by another railroad employee, John Pugh, that he had just arrested a trespasser who resembled the description of one of the attackers. Pugh told him the trespasser was abusive and had tried to attack him. Pugh testified he described the trespasser to the victim as being a light skinned “colored” male, with a mustache, with very close knit hair, and big in size.

The victim went to police headquarters and identified defendant who was then in a cell with two other black men. One of the men was short and in handcuffs, the other was tall and thin with a conspicuous sear running from his forehead to his cheek. Admittedly, the defendant was then under arrest and in police custody for trespassing, and under suspicion for attacking the victim about seven months ago; he was not represented by counsel, or advised of his right to counsel.

The victim testified that his identification of defendant was based on seeing him by the freight ear and observing bim while being beaten and dragged. This version of what had transpired differed from the report made to his employer wherein he stated “* * * I identified myself as a police officer and told the men inside the car they were under arrest and to come out of the car slowly. The two men in the car immediately raised their hands in the air, turned around with their backs to me and began to climb out of the car. The first one out of the ear turned around and faced me when he reached the ground and I saw he was a male negro, 5'7" or 5'8" in height, approximately 175 pounds, about 40 years of age, wearing a white T-shirt * * *.” We note again that the only described attacker in the report was not the defendant.

The pivotal testimony concerned defendant’s identification. The victim, without objection by defendant, made an in-court identification of defendant as being one of his attackers. When asked on direct examination about the confrontation at police headquarters the defendant objected contending it was improper under United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and the companion eases. The transcript reveals the following colloquy out of the jury’s presence:

Mr. Higgins: your honor, this seems to me to be a situation that comes under Wade and Stokehj.
The Court: No, it doesn’t. This is in the cell. This isn’t a lineup.
Mr. Higgins: This is similar to a lineup. He looked at three men in a cell.
The Court: No, it isn’t. If that be your objection, it is overruled.

We are left with the inference that if a formal lineup had taken place the court would have held a taint hearing.

The victim, and thereafter Pugh, testified on direct examination concerning the confrontation in the cell at police headquarters. The State attempts to justify the court’s ruling upon the ground that defendant was in custody of the police for a different offense, hence Wade did not apply.

We have determined that the court erred in allowing into evidence the testimony concerning the pretrial confrontation, requiring a reversal and a new trial. The defendant was under arrest and in police custody, albeit it was for another offense, and, absent an appropriate waiver, he was entitled to the assistance of counsel before the confrontation took place. Clemons v. United States, 133 U. S. App. D. C. 27, 408 F. 2d 1230, cert. den. 394 U. S. 964, 89 S. Ct. 1318, 22 L. Ed. 2d 567 (1969) ; Mathis v. United States, 391 U. S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968); United State v. Wade, supra; Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). See State v. Wilbely, 112 N. J. Super. 216 (App. Div. 1970) decided November 16, 1970, in which case this court reversed a conviction because the police knew defendant had counsel, but held a pre-indictment lineup without the knowledge or consent of counsel.

The court in Mathis, in discussing the effect of questioning a defendant who is being held for an entirely different offense said: “These differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to he given to a person held in custody.” (391 U. S. at p. 4, 88 S. Ct. at p. 1505). This is true even though it occurred prior to indictment. United States v. Zeiler, 427 F. 2d 1305 (3 Cir. 1970); United States v. Ayers, 426 F. 2d 524 (2 Cir. 1970); People v. Fowler, 1 Cal. 3d 335, 82 Cal. Rptr. 363, 461 P. 2d 643 (Cal. Sup. Ct. 1969).

The State having offered the pretrial identification testimony as substantive proof on its direct ease it called into play the exclusionary rule in Gilbert. In Wade, supra, the pretrial confrontation testimony was elicited on cross-examination, whereas in Gilbert some of the pretrial confrontation was elicited on the Government’s direct case. In establishing the exclusionary rule the court in Gilbert stated (388 U. S. 272-273, 87 S. Ct. 1956) :

The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.
Quite different considerations are involved as to the admission of the testimony of the manager of the apartment house at the guilt phase and of the eight witnesses at the penalty stage that they identified Gilbert at the lineup. That testimony is the direct result of the illegal lineup “come at by exploitation of [the primary] illegality.” Wong Sun v. United States, 371 U. S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441, 455. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup.

The exclusionary rule in Gilbert requires a reversal of defendant’s conviction and a new trial unless we can find from all the evidence that there was harmless error. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). We turn to the evidence with this view in mind. The victim was the only State’s witness to the attack so that his testimony requires careful scrutiny. The totality of the circumstances surrounding the attack casts doubt upon the victim’s ability to identify his assailants. The occurrence of the attack in a railroad yard shortly after midnight; the discrepancy in the victim’s story as to seeing defendant’s face; the description given in his report of one other than defendant; and the lapse of about seven months until he saw defendant in the cell at police headquarters makes it questionable that he could identify defendant considering the opportunity he had and the circumstances under which he saw defendant. Finally, and most significant is the fact that Pugh was provoked by defendant for giving him a hard time when arrested. Pugh described in detail defendant’s appearance to the victim before the identification was made. The two men in the cell with defendant were so different in appearance than defendant that the victim had little alternative but to select the defendant. Since lineups for identification purposes are a recognized and approved police practice, any confrontation for that purpose must be carried out with fundamental fairness and without suggestion or procedure that will likely result in a misidentification. Once a witness misidentifi.es a suspect the probability is great that he will not retreat front that position. Wade, supra, at 388 U. S. p. 229, 87 S. Ct. 1926. Since each case must be decided on its own facts, we have concluded that the totality of the circumstances here present did not measure up to the standards of fundamental fairness, resulting in a denial of due process to defendant. Therefore, we are unable to say that the admission of the pretrial identification was harmless error.

We have considered the other grounds for appeal raised by defendant but find it unnecessary to pass upon them. We comment in passing, since it happens too frequently, that prosecutors should refrain from mentioning or commenting that defendant did not testify unless something has occurred during the trial which requires it. See State v. Schultz, 46 N. J. 254 (1966), cert. den. 384 U. S. 918, 86 S. Ct. 1367, 16 L. Ed. 2d 439 (1966); State v. McElroy, 96 N. J. Super. 582, 585 (App. Div. 1967), eertif. den. 53 N. J. 512 (1969).

Reversed and remanded for a new trial.

       in discussing the element of lapse of time the court in Phipps v. Follette, 428 F. 2d 912, 915 (2 Cir. 1970) stated: “Lapse of time between the crime and the confrontation is also important; the longer the interval, the greater the dangers that the initial image will have dimmed and that the second image will play a significant role. Also, a long interval between the initial observation and the trial coupled with an improper confrontation a comparatively short time before the witness appears in court enhances the danger that he may be relying on his most recent encounter.”


author: Eritz, J. S. C.

text:
    CHARLES E. STEPHENSON, PLAINTIFF, v. MARIE V. STEPHENSON, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 21, 1970.
    Civil action.

      Mr. William E. Moimlford, -Jr. for the motion (Messrs. Lewis, Siegel S Wood, attorneys).
   Eritz, J. S. C.

The matter appears on the motion of Lewis, Siegel & Wood “for an Order to have Charles E. Stephenson found in contempt of court for failure to obey Judge Gebhardt’s order directing payment of counsel fee in the amount of $150.00 which sum was due and payable April 8, 1968, as per the order of Judge Gebhardt stated in open court on February 21, 1968.”

Charles E. Stephenson was plaintiff in an action for divorce which eventuated in a judgment nisi on April 29, 1968. At the time of this judgment defendant wife was represented by Albert Cooper, Jr., by virtue of a substitution of attorney filed April 24, 1968 for Lewis, Siegel & Wood.

The motion was first noticed for October 30, 1970. In that notice the motion was said to be supported “as per a copy of the attached Order.” The copy of the order submitted with that motion recited an appearance on February 21, 1968 by an attorney for plaintiff, and the representation of defendant by Frederick S. Dunn, Jr., of Lewis, Siegel & Wood. It also provided for payment by plaintiff Charles E. Stephenson to Lewis, Siegel & Wood of $150 on account of legal fees, “said sum to be due and payable at the time of final hearing set for April 8, 1968, in the event the plaintiff is unable to pay said sum any sooner.” The copy of that order attached to the motion has a line for the signature of the judge and a line for the consent as to form of the attorney for plaintiff, but neither signature appears. The blanks provided for the date of the order are not filled in. No supporting affidavits were filed with the motion. On October 30, 1970 no one appeared on the motion.

Immediately thereafter a second motion was filed. It is that motion which is now before me. The “Order” does not reappear, but rather I am advised by affidavit with this motion that on February 21, 1968 Frederick S. Dunn, Jr., apparently on behalf of Lewis, Siegel & Wood, appeared before Judge Gebhardt on behalf of the wife, at which time “the Court ordered the plaintiff to pay my law firm a legal fee of $150.00.” I have reviewed the original file and searched the docket, of which things I take judicial notice, and am satisfied that no order to this effect was formally entered. The judgment nisi, signed by Judge Gebhardt, makes no mention of counsel fees.

It is clear that irrespective of any pronouncement Judge Gebhardt may have made on February 31, 1968, no formal order was ever entered. This was conceded on oral argument. Accordingly, the motion must be dismissed. “An order which has no basis in any record of the court making the order, or in documents filed with that court that may be made into a record, is a mere nullity.” In re Ryan’s Estate, 130 N. J. Eq. 380, 381 (Prerog. 1941).

The rule then in effect, R. R. 4:55-1, which provided for the presentation of an order within ten days after decision of the judge, but limited the situations to those “where it is necessary for the trial judge to execute a formal written judgment or order,” offers little solace to the movant. In re Ryan’s Estate, supra, makes such a formal written order necessary in any case where subsequent activity is bottomed upon that order, subject always, of course, to the inherent power of the court to accommodate an inequitable situation. That this was the true intent of the rule is to be seen in its reformation with the general revision of 1969: R. 4:43-l (a) removes the limiting phrase.

I am of the view that the failure to submit a formal written order in the case of any determination is at the risk of the parties being unable later to move with respect thereto or to appeal therefrom.

In my opinion, this is the way it should be. The salutary purpose of R. 4:43-1 (a), requiring that ’’Formal written judgments or orders shall be presented to the court for execution within 10 days after its decision is made known, unless such time is enlarged for good cause,” is vividly demonstrated by this motion. Almost three years have elapsed. Judge Gebhardt is no longer on the bench. No other pleadings appear of record to indicate that the differences between the parties were not put to rest for all time by the judgment nisi over %x/z years ago. In matters serious enough to be labeled a “contempt” by the motion maker, no confident decision can be reached based on such a predicate.

In passing, I question the “contempt” terminology. See N. J. Dept. of Health v. Roselle, 34 N. J. 331 (1961), and In re Carton, 48 N. J. 9 (1966). The exception I take is not without significance. My firm conviction, born of experience, is that, while not necessarily so in this case, the threat of “contempt” is often intentionally and improperly asserted in pleadings which have no other legitimate purpose than to seek supplemental relief for a litigant. The words “contempt of court” are used to project a foreboding of dire consequences far beyond the most extreme sanctions which might otherwise be thought to be properly consequent to the disobedeince of an order in a civil matter. I believe the practice offends the proper purpose of the intended legal process and is to be discouraged.

The motion is dismissed.


author: Consodiíte, J. C. C.

text:
    IN THE MATTER OF JEROME A. FINKELSTEIN CHARGED WITH CONTEMPT OF COURT.
    Superior Court of New Jersey Chancery Division
    Decided December 18, 1970.

      Mr. Gerald A. Liloia for the Court (Messrs. RiTcer, Danzig, Scherer and Brown, attorneys).

      Mr. Robert L. Doris, Jr. (Essex County Legal Services Corporation) argued the cause for defendant.
   Consodiíte, J. C. C.

(temporarily assigned) Deposition of one suspect of concealment of defendant’s assets was taken for use on a motion. Defendant participated. His attorney did not attend. His participation demonstrated a clear intent to make a shambles of the proceeding. He climaxed interruptions, advices to the witness, remarks to counsel with' the epithet to the attorney more redolent of another and far younger generation than his, “It takes a pig to represent a pig.”

His conduct was a direct interference with the orderly administration of justice. Discovery is a pillar of the procedural edifice. Chief Justice Vanderbilt, speaking to this point in Lang v. Morgan’s Home Equipment Corp., 6 N. J. 333 (1951), stated:

Liberal procedures for discovery in preparation for trial are essential to any modern judicial system in which the search for truth in aid of justice is paramount and in which concealment and surprise are not to be tolerated. * * * [at 338]

Discovery has ancient roots. .Its antecedents are in Roman law where actions interrogatorial and actions ad exhibendum compelled a defendant to make answer under oath to questions or to produce some specific thing. Phillimore, Private Law among the Romans, 182. The procedural and remedial machinery necessary to the extraordinary jurisdiction, exercised at first only permissively by the Chancellors of England, developed over centuries into a Court of Chancery in the 14th Century. During all these centuries “there was always jurisdiction to give discovery.” Whitfield v. Fausett, 1 Ves. Sen. 387, 392 (1750).

Generally, see: 1 Pomeroy, Equity Jurisprudence (5th ed. 1941) 275-336, 392-409; Ashburner, Principles of Equity (2d ed. 1933), 9, 10, 29-34; Spence, Equitable Jurisdiction of the Court of Chancery (1846) 411-413, 676-680; 1 Pollock and Maitland, History of English Law (2d ed. 1899) bk. 2, c. 111.

Both under the older and the current practice, discovery is accomplished away from the courtroom and in the absence of a judicial officer. Ordinarily, depositions are taken before a person authorized to administer oaths, usually a certified shorthand reporter. B. 4:12-1. The proceeding is not a public trial. Re Western of Canada Lands & Works Company, L. R. 6 Ch. Div. 109. It is ministerial in function but necessarily adjuctive to judicial process.

New York’s counterpart of the deposition practice is examination before trial. A litigant who interfered with such an examination by referring to a witness as “a god damned liar” was held to be in criminal contempt. That the words were spoken in the heat of anger was no excuse. Sewards v. Rubin, 204 Misc. 172, 125 N. Y. S. 2d 776 (Sup. Ct. 1953).

It would appear that our courts have the same recourse. N. J. S. A. 2A :10-1 to 7, defining the power of courts to punish for contempt, lists three grounds, none of which fits this case. However, the statute by its words does not affect the inherent power of the Superior Court to punish for contempt. N. J. S. A. 2A:10-1; In re Caruba, 139 N. J. Eq. 404 (Ch. 1947).

T have searched without success for cases other than Seward v. Rubin, supra, or text reference concerning contempt citation for opprobrious conduct by parties (or anyone else) at a deposition hearing. However, dearth of precedent has never been a deterrent to action on new combinations of facts.

* * * New combinations of facts are constantly arising and producing new questions of law; the determination of each of these may be considered a new law, for it lays down a rule to be followed in time to come, and the reports of our Courts of Justice are far more voluminous than the statute book * * * [2 The Lives of The Chief Justices of England 297 (1873)]

And in Cancellieri v. De Modica, 57 N. J. Super. 598, (Law Div. 1959).

Although lack of precise precedent treating a particular fact situation as a criminal contempt would not prevent a court from adjudicating it to be such if it should determine that the act complained of tended to obstruct, hinder, or hamper justice in its due course (17 C. J. S. Contempt § 8, p. 11; State ex rel. Turner v. Albin, 118 Ohio [St.] 527, 161 N. E. 792 (Sup. Ct. 1928)), the absence of such precedent must give the court pause to make certain that it is not unwarrantedly expanding the area in which it should invoke such power. 17 C. J. S. Contempt § 8, p. 11. [at 604]

Bnt the proposition involved has not been without pertinent comment.

“The Law considers it as a contempt of the arrthority of the Court to abuse and villify the person who is acting under it.” Wilmot, Notes on King v. Almon, 270 (1765) as cited in Fox, The History of Contempt of Court, 215 (1927).

And modernly in our own State;

* * * the presentation of the truth to the court is paramount; it must proceed unimpeded and unhampered despite claims of prying, where, as here, there exists the means of affording adequate protection against unwarranted intrusion and invasion of the rights of one party by another party. [Bead Chain Manufacturing Co. v. Smith, 1 N. J. 118, 120-121 (1948) ]

I doubt that citation of this defendant for his obstreperous misconduct at the deposition hearing is an unwarranted expansion of the criminal contempt area. To hold otherwise would certainly tend to hinder or hamper the administration of justice.

The transcript demonstrates that defendant’s misconduct was continuous and deliberate, was focused on impeding the course of justice, State v. Zarafu, 35 N. J. Super. 177, 180 (App. Div. 1955), and was pinpointed to the abuse of an officer of the court in an endeavor to obstruct the course of justice. In re Merrill, 88 N. J. Eq. 261, 266 (Prerog. 1917); In re Bowers, 89 N. J. Eq. 307, 309 (Ch. 1918). Defendant’s conduct was clearly a criminal contempt of court, and I cite him therefor.

Under our case law the conduct of defendant might well be held to be in facie curiae. There was an order to take the deposition. There is a record of the proceeding that was made for, and used at, argument on a motion in the ease. There was an admission in open court of the climactic remark.

However, the proof of the contempt, although it is in the transcript, could depend on testimony from those attending the taking of the deposition. The trial judge was not there present. Swanson v. Swanson, 8 N. J. 169, 184 (1951).

I believe it to be better practice on the facts herein to refer the trial of defendant for criminal contempt to another judge.

Let the petition and order to show cause why defendant should not be adjudged guilty of contempt of court, and the order appointing an attorney to prosecute under R. 1:10-2, be filed.


author: Polov, J. J. D. E. C.

text:
    M., PLAINTIFF, v. M., DEFENDANT.
    Juvenile and Domestic Relations Court Morris County
    Decided December 8, 1970.

      Mr. John P. Gleason of the Morris County Legal Aid Society, attorney for plaintiff.
    ilir. Lewis Stein, attorney for defendant.
   Polov, J. J. D. E. C.

Defendant seeks an order establishing his right to visit with his illegitimate children. Plaintiff was previously awarded suppport from defendant for her three infant children born out of wedlock. He is the natural father of the children, the parties having lived together and held themselves out as husband and wife for more than 15 years although they were never married. Their relationship produced one child on December 17, 1962 as well as twins born on March 21, 1966. Plaintiff separated herself from defendant in July 1969 and has refused to permit him access to or visitation with the children ever since.

Defendant asked for visitation privileges at the first hearing but plaintiff opposed it, relying on N. J. S. A. 9:J 6--1 which predicates the putative father’s “right of custody, control and access” upon the “mother’s consent.” Plaintiff having refused to consent, an order was entered denying visitation, which order defendant now seeks to have vacated. He has partially complied with his support obligations and promises full compliance in the future.

The limiting provisions of the statute relied upon by plaintiff are harsh and unrealistic if they must be applied to the circumstances of this case. This court is, of course, bound by specific legislative directive and may not usurp the function of the Legislature, Adams v. Atlantic County, 137 N. J. L. 648 (E. & A. 1948); Schmoll v. Creecy, 104 N. J. Super. 126, 138 (App. Div. 1969), whether or not the 1913 enactment is relevant today.

The stated policy grantnig the mother of illegitimate children exclusive custody and control seemingly confers upon her the power to consent or withhold consent to “access” for the putative father. This presumably is an advance from, but based upon the ancient common law concept that a bastard is nullius films, the child of no one. The putative father was not then obligated to support his illegitimate child and the rights of inheritance by or from such a child were severely restricted. See 10 Am. Jur. 2d Bastards, § 8. Under the provisions of a statute adopted in 1929, the mother now has a right to seek support from the natural father for her illegitimate child. N. J. 8. A. 9 :16-2 et seq. Prior to that enactment the father could have been compelled to support only if the “child would otherwise be a public charge.” Ousset v. Euvrard, 52 A. 1110 (Ch. 1902). Since then there has been a discernible trend in the decisional law in this State and other jurisdictions toward recognition of the rights and obligations of a putative father more comparable to those of a natural father than under old common law concepts. For a comprehensive review of the authorities supporting this conclusion see In re Guardianship of C., 98 N. J. Super. 474 (J. & D. R. Ct. 1967).

The significant inquiry in any proceeding involving custody and visitation of children must surely be what is in the best interests of the children. Lavigne v. Family and Children’s Society of Elizabeth, 11 N. J. 473 (1953); Baker v. Baker, 81 N. J. Eq. 135 (Ch. 1913). If we resolve that visitation by the father in this case would be in the children’s best interests, how does the statutory provision limiting access apply to his demand for visitation privileges?

Plaintiff and defendant lived together for 15 years during which time they held themselves out as man and wife not only to the public but also to their children. The children know defendant as their father. They bear his name. I find that plaintiff’s continuous holding out of the defendant as her husband and father of her children, and the fact of her living with him as his wife for so many years, constitutes “consent” to his access to the children for the purpose of this statute.

Unquestionably, the welfare and best interests of the children are paramount considerations in any determination concerning custody and visitation problems, Baker v. Baker and In re Guardianship of C., supra, and I find that as a matter of fact reasonable visitation by defendant with his children would not be detrimental to their welfare and best interests. Any right plaintiff may have had under the statute to withhold consent has been waived by her conduct. Her previous implied consent arising from the fact of their living together for 15 years cannot be revoked at this time.

It is relevant to note that at the time of the adoption of this statute substantially in its present form, L. 1913, c. 331, §§ 1, 2 (1924 Suppl. §§ 97-29a, 97-29b), supplement to L. 1902, c. 92, this State recognized common law marriages. Sturm v. Sturm, 111 N. J. Eq. 579, 588 (Ch. 1932); Schaffer v. Krestovnikow, 88 N. J. Eq. 192 (Ch. 1917) aff’d, 89 N. J. Eq. 549 (E. & A. 1918); Bey v. Bey, 83 N. J. Eq. 239 (Ch. 1914). Had these parties lived under these circumstances prior to the enactment of this provision in 1913, they may well have been husband and wife as a matter of law and the children consequently legitimate. Therefore, it is reasonable to conclude that the Legislature did not intend to include this kind of situation within these particular statutory limitations. Furthermore, the statute itself declares its intention “to be declaratory of the existing law on this subject.” N. J. S. A. 9:16-1. The case law existing at that time specifically recognized the visitation rights of the natural father of illegitimate children where he contributed to their support, absent a finding that such visitation would be detrimental to the children’s best interests. Baker v. Baker, supra.

An order will be entered granting reasonable rights of visitation to defendant subject to such further orders of the court for the protection of the best interests of the children as may be appropriate.


author: Keíttz, P. J. J. & D. E. C. A

text:
    THE STATE OF NEW JERSEY IN THE INTEREST OF K. V. N.
    Juvenile and Domestic Relations Court Union County
    Decided December 8, 1970.

      Mr. Robert A. Kopnicki, Assistant Prosecutor, for the State (Mr. Karl Asch, Union County Prosecutor, attorney).

      Mr. Leonard A. Wolkstein, Assistant Deputy Public Defender, for the juvenile (Mr. Stanley C. Van Ness, Public Defender, attorney).
   Keíttz, P. J. J. & D. E. C. A

complaint was filed against the juvenile charging that he was under the influence of heroin, in violation of N. J. 8. A. 2A:4 — 14. The juvenile was adjudicated delinquent on the complaint and on August 5, 1970 an order was entered committing the juvenile to the New Jersey Eeformatory for Males for an indefinite term not to extend beyond his twenty-first birthday, pursuant to N. J. 8. A. 2A:4-37. At the time of the entry of the order the juvenile was 17 years of age.

Thereafter, a motion was made to limit the commitment to a term not greater than six months. It is argued that the maximum sentence an adult could be given for the same offense is six months, N. J. 8. A. 2A:170-8, 2A:169-4, and that an indefinite term such as was here imposed constitutes an unjustifiable differentiation in treatment, thereby denying the juvenile equal protection of the law. This attack upon the dispositional phase of the juvenile system presents a novel issue in this State.

It is contended that in light of In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), and subsequent interpretations and extensions of the Gault decision granting additional constitutional safeguards to juveniles, the juvenile in the present case is being denied equal protection of the law in violation of the Fourteenth Amendment of the United States Constitution.

The juvenile system has had the benefit of continuous judicial refinement in recent years. The United States Supreme Court decided in In re Gault, supra, that a juvenile was entitled to the four basic rights of notice of the charges, representation by counsel, confrontation and cross-examination of witnesses, and the Fifth Amendment privilege against self-incrimination. See, e. g., In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), holding that a determination of delinquency in a juvenile proceeding must be based upon proof beyond a reasonable doubt; State in the Interest of Carlo, 48 N. J. 224 (1966), applying the constitutional safeguards with respect to voluntariness to govern the use of confessions in juvenile court; State in the Interest of B. D., 110 N. J. Super. 585 (App. Div. 1969), aff’d 56 N. J. 325 (1970), excluding confessions not obtained by methods consistent with due process requirements; State v. J. M., 110 N. J. Super. 337 (App. Div. 1970), requiring that all the elements of the crime charged be proven in order to constitute proof beyond a reasonable doubt: State in the Interest of W. O., 100 N. J. Super. 358 (App. Div. 1970), allowing sequestration of witnesses in juvenile hearings; State v. Lowry, 95 N. J. Super. 307 (Law Div. 1967), applying the search and seizure provisions of the Fourth Amendment to juveniles; State in the Interest of L. B., 99 N. J. Super. 589 (J. & D. R. Ct. 1968), holding that a motion to suppress evidence may be made in Juvenile and Domestic Relations Court; State in the Interest of B. H., 112 N. J. Super. 1 (J. & D. R. Ct. 1970), interpreting the defense of statute of limitations under the Disorderly Persons Act as substantive and available to juveniles. See also, State in the Interest of C. S. and J. C., 112 N. J. Super. 144. (App. Div. 1970); State in the Interest of L. M., 56 N. J. 358 (1970); State v. Tuddles, 38 N. J. 565 (1962) ; State v. Van Buren, 29 N. J. 548 (1959); State in the Interest of L. M., 109 N. J. Super. 278 (App. Div. 1970), aff’d 57 N. J. 165 (1970).

It is clear that the United States Supreme Court by its decision in Gault initiated a trend toward the application of the constitutional safeguards available to adults to the juvenile court system. The court was skeptical about the claimed benefits granted juveniles by reason of the informal atmosphere and rehabilitative dispositions to training schools or correction centers. Mr. Justice Fortas, speaking for the court, stated:

The fact of the matter is that, however euphemistic the title, a “receiving home” or an “industrial school” for juveniles is an institution of confinement in which the child is incarcerated for a greater or lessor time. [387 U. S. at 27, 87 S. Ct. at 1443.]

Although Gault specifically stated that the dispositional phase of juvenile proceedings was not an issue there, 387 U. S. at 10, 87 S. Ct. 1428, it has been argued by counsel for the juvenile herein that subsequent cases have extended the Gault principle to reach this question. In re Wilson, 438 Pa. 425, 264 A. 2d 614 (Sup. Ct. 1970).

The disposition of juvenile offenders to terms which may result in commitment for a period of time longer than that which an adult could receive for the same offense has been held to be not violative of the equal protection clause of the Constitution by five Circuit Courts of Appeals. Cunningham, v. United States, 256 F. 2d 467 (5 Cir. 1958); Carter v. United States, 113 U. S. App. D. C. 123, 306 F. 2d 283 (1962); Standley v. United States, 318 F. 2d 700 (9 Cir. 1963); Rogers v. United States, 326 F. 2d 56 (10 Cir. 1963) ; Brisco v. United States, 368 F. 2d 214 (3 Cir. 1966). In all five eases the constitutionality of the Federal Youth Corrections Act, 18 U. S. C. A. 5005-5024, was upheld.

I am aware that all of the above cited cases were decided prior to Gault. However, in Smith v. State, 444 S. W. 2d 941 (Tex. Civ. App. 1969), the court sustained the difference in treatment of juveniles, stating that the standard to be applied to classifications under the equal protection clause in regard to juveniles is that which requires only a reasonable nexus between the classification and a valid governmental objective. Such a standard of review requires a juvenile to show how the classification is unreasonable or that the objective or purpose is merely illusory. In other words, assuming that the theoretical purpose is reasonable, the juvenile has the burden of showing that the classification is unreasonable in practice. See also, R. R. v. Texas, 448 S. W. 2d 187 (Tex. Civ. App. 1969), app. dism, 400 U. S. 808, 91 S. Ct. 35, 27 L. Ed. 2d 37 (1970).

Counsel for the juvenile contends that the classification is theoretically unreasonable and also claims that the State should have the burden of substantiating the claimed justification for the difference in treatment.

I do not believe that Gault can be construed to mean that the juvenile system is inherently unreasonable. Gault itself recognized the difference in juvenile proceedings when it said:

As we shall discuss, the observance of due process standards, in.telligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process. [387 U. S. at 21, 87 S. Ct. at 1440.]

I agree with the pronouncement oi the Pennsylvania Superior Court which said in Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A. 2d 9 (1967), cited with approval by this State’s Supreme Court in State in the Interest of J. W., 57 N. J. 144 (1970) :

It is inconceivable to us, however, that our highest Court attempted through Gault, to undermine the basic philosophy, idealism and purposes of the juvenile court. We believe that the Supreme Court did not lose sight of the humane and beneficial elements of the juvenile court system; it did not ignore the need for each judge to determine the action appropriate in each individual case; it did not intend to convert the juvenile court into a criminal court for young people. Rather, we find that the Supreme Court recognized that juvenile courts, while acting within the constitutional guarantees of due process, must, nonetheless, retain their flexible procedures and techniques, [at 145]

It needs no citation to state that the philosophy of the juvenile court system is the education, treatment and rehabilitation of the juvenile rather than punishment. With such a purpose it can hardly be argued that a classification based on age is so arbitrary, irrational or capricious as to render the treatment of juveniles unconstitutional as a denial of equal protection. Smith v. State, supra. Furthermore, there is the presumption in favor of constitutionality. Harvey v. Board of Chosen Freeholders, Essex County, 30 N. J. 381 (1959).

However, it was pointed out in Smith v. State, supra, that there is another category of cases wherein the presumption of constitutionality is not nearly so great. The court stated:

In these cases, the statute is subjected to the “the most rigid scrutiny”, Korematsu v. United States, 323 U. S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194 (1944), and the ordinary presumption of constitutionality seems to melt away, so that the burden is on the person defending the statute to show a substantial, empirically grounded justification to support the differentiation. Loving v. Virginia, 388 U. S. 1, 8-9, 11, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) ; McLaughlin v. Florida, 379 U. S. 184, 196, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964) ; “Developments in the law — Equal Protection”, 82 Harv. L. Rev. 1067, 1087-1123 (1969). [444 S. W. 2d at 946]

Under this line of cases the basis of the classification is examined to determine if there is reasonable cause for the categorization, and even if the basis is determined to be reasonable, the application of the classification is examined for reasonableness with regard to due process and equal protection.

A classification based on age has never been considered inherently unreasonable. Smith v. State, supra. If it were, the entire juvenile system would be unreasonable. Therefore, if there is any prejudice to the juvenile, it must be in the application of the classification. It could be argued that the disparity in the length of sentence so infringes upon the fundamental rights of a juvenile as to render the classification unreasonable if the classification stood alone. However, the classification must be examined in the context of the juvenile system.and the benefits extended to the juvenile thereby.

If the young offender were merely committed for a length of time four or five times greater than the maximum sentence for an adult, such a result would probably render the classification unreasonable. In re Wilson, supra. However, such is not the case here. The juvenile is treated under the juvenile system whereby the indeterminate commitment may result in a longer period of confinement, but the place and purpose of that confinement generally is not the same as that for adult offenders, and the indeterminate term might just as easily result in a lesser period of confinement depending on the juvenile’s progress. The place of confinement is usually geared toward teaching and rehabilitating the youthful offender and not for punishment. See, Urbaniak, “The History and Philosophy of the New Jersey Reformatory System” (1968). Compare, In re Wilson, supra, with N. J. S. A. 2A:4-1 et seq.

Assuming the good intentions of the juvenile system, the classification based on age and its application to commitment is theoretically reasonable. The question that remains is whether a juvenile has the burden of proof to show that the juvenile system does not in practice live up to the high theoretical ideals.

If the presumption of constitutionality is to have any effect, the burden of proof must be on the juvenile. It is not the function of this court to order the State to conduct what would constitute a legislative investigation. The judicial and correctional functions of the juvenile system have been established by statute specifically stating the purposes and goals of the rehabilitative process. N. J. S. A. 2A:4-1 et seq. If those laws are not being complied with and the stated benefits of the juvenile system are no more than euphemisms, then judicial inquiry might be warranted. However, no evidence has been introduced here which would indicate that the juvenile process in the State affords the youthful offender no more than a longer period of confinement.

The motion to limit the commitment is denied. An order will be entered.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD MARTINEZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 8, 1970
    Decided December 28, 1970
    Before Judges Kilkenny, Halpern and Lane.

      Mr. Daniel B. Coburn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Coburn on the brief).

      Mr. James A. Carey, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Neuper, Monmouth County Prosecutor, attorney).
   The opinion of the court was delivered by

Halpern, J. A. D.

Defendant was convicted by a jury of breaking and entering Saint Agnes Church, of Atlantic Highlands, with intent to steal, in violation of N. J. S. A. 3A:94-1. His indeterminate term to the Hew Jersey Eeforrnatory for males was suspended, and he was fined and placed on probation for two years. The appeal is from the judgment of conviction.

The jury could have found from the State’s proofs that defendant, Jeifry McCann and Eaymond Piano broke and entered Saint Agnes Church about 1 a.m., on June 4, 1969. Although nothing had been stolen, some things had been tampered with — i. e., a chalice cloth bag with a quarter in it and some keys were taken from the church safe and found within the church; and a smoldering candle was found in a glass holder. The police found the three intruders hiding in the basement.

By way of defense the defendant and his witnesses testified that McCann had been thrown out of his sister’s home where he resided, and they had entered the church to sleep for the night. Defendant denied touching or stealing anything, but intimated that his companion, Eaymond Piano (who previously had pled guilty), was running around in the church and misplaced the church property.

The narrow issue before us is whether the trial judge committed prejudicial error in his supplemental charge to the 3^7-

N. J. 8. A. 2A :94r-l provides:

Any person who willfully or maliciously breaks and enters, or enters without breaking, any building, structure, room, ship, vessel, car, vehicle or airplane, with intent to kill, kidnap, rob, steal, commit rape, mayhem or battery, is guilty of a high misdemeanor.

In his original charge the trial judge read the indictment and the pertinent part of the statute to the jury and properly instructed them on all the elements constituting the crime charged. After deliberating for about two hours the jury inquired: “Is the intent to steal before entering presumed if they decided to steal after they got into the church?” The trial judge responded:

Well, I charge you, as I did in the main charge, that intent is to be derived not only by the oral testimony in the case but by the actions of the various people concerned. Intent is usually a secret matter and therefore is not subject to a clear exposition that at this moment I intended to do this thing, at that moment I intended to do another.
Now, to answer your question specifically I charge you that if at any time after they entered the church the specific intent to commit larceny was formed or the specific intent to steal was formed that intent will relate back to the moment of entry. In other words, this is an integrated completed crime. It had its beginning when they broke and entered or entered without breaking the church and whatever they did inside it is an integrated whole and no matter at what point during -that series of events the specific intent was formed, if it was formed, that specific intent will relate bade to the beginning of the acts that constitute the crime.

Appropriate objection was made to the supplemental charge. In about 45 minutes the jury returned a verdict of guilty. On defendant’s motion for a new trial based on the alleged error in the supplemental charge, the trial judge, with commendable frankness said:

* * * if you intend to take an appeal, and I hope you do because I think this area of the law needs clarification, I will state specifically at this time that I am firmly convinced that the jury returned the verdict that they did on the basis of my supplemental charge, so that we can clearly confront the problem. The motion is denied.

The State’s statement in lieu of brief makes no effort to support the legal position adopted by the trial judge, but argues that the original and supplemental charges must be considered as a whole to determine “whether the charge in its entirety was ambiguous or misleading.”

The provisions of N. J. 8. A. 2A :9L-1 make it mandatory that the statutory intent to steal must coexist with the breaking and entering, or entering without breaking, before one is guilty under the statute. The language used leaves no room for a contrary construction. No reported New Jersey decision has been called to our attention dealing with a situation where the criminal intent was formed after the unlawful entry, nor has our independent research revealed any such case.

Decisions and legal texts supporting our view are State v. O’Leary, 31 N. J. Super. 411 (App. Div. 1954); Ridley v. State, 228 Md. 281, 179 A. 2d 710, 711 (Ct. App. 1962); People v. McCombs, 94 Ill. App. 2d 308, 236 N. E. 2d 569 (Ct. App. 1968); People v. Weaver, 41 Ill. 2d 434, 243 N. E. 2d 245, 248 (1968), cert. den. 395 U. S. 959, 89 S. Ct. 2100, 23 L. Ed. 2d 746 (1969); Conrad v. State, 154 Tex. Cr. R. 624, 230 S. W. 2d 225, 226 (Tex. 1950) ; Fletcher v. Robbins, 234 A. 2d 636 (Me. Sup. Jud. Ct. 1967) ; 2 Wharton’s Criminal Law and Procedure, § 408 at 26—29 (1957); Underhill’s Criminal Evidence (5th ed.), § 717; 12 C. J. S. Burglary § 2, and Perkins on Criminal Law, at 166 (1954).

Because the language used in N. J. S. A. 2A:94-1 is so clear that the intent to steal must accompany the unlawful entry, the New Jersey courts have had no occasion to squarely decide the issue. See State v. Tassiello, 75 N. J. Super. 1 (App. Div. 1962), aff’d 39 N. J. 282 (1963) ; State v. Papitsas, 80 N. J. Super. 420 (App. Div. 1963). This is also evident in State v. Young, 57 N. J. 240, (decided December 7, 1970), wherein Chief Justice Weintraub reviewed various criminal statutes which required proof of an unlawful intent with an unlawful act. In discussing N. J. S. A. 2A:149A-2, -which, makes it a misdemeanor for certain persons to enter a school with the intent to disrupt classes, he said, “The offense being the entry with the forbidden purpose, the offense was complete when defendant entered the school. Thus, the later events were of no moment except insofar as they might evidence the intent with which he entered the premises.” And again, when analogizing the intent referred to in N. J. S. A. 2A :149A-2 with N. J. S. A.. 2A:94-1, he said “It is not inherently wrong to enter a ‘building, structure, room, ship, vessel, car, vehicle or airplane’ but it is a high misdemeanor to enter ‘with intent to kill, kidnap, rob, steal, commit rape, mayhem or battery.’ ”

In summary, the trial judge should have instructed the jury that the State must prove beyond a reasonable doubt that defendant:

(a) Broke and entered the church, or

(b) Entered without breaking, and

(c) At the time of breaking and entering, or entering without breaking, he intended to steal money, goods and chattels of the Saint Agnes Church, and

(d) That such intent to steal may be inferred from what transpired after the unlawful entry occurred.

Reversed and remanded for a new trial.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAMUEL LEE CLARK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 13, 1970
    Decided December 28, 1970.

      Before Judges Sullivan, Labrecque and Gaulkin.

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

      Mr. David 8. Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

In 1965 defendant was convicted after trial by jury of rape and of robbery. As to the rape, he was found to be subject to the Sex Offender Act, N. J. 8. A. 2A:164-1 et seq., and, pursuant to N. J. 8. A. 2A:164-6, he was committed for treatment. Such commitment is “until lie is ‘capable of making an acceptable social adjustment in the community’ even though that be for the period equal to that provided by law as the maximum punishment for the crime of which he was convicted.” State v. Mickschutz, 101 N. J. Super. 315, 320 (App. Div. 1968); N. J. S. A. 2A:164-8. The maximum for rape is 30 years. Eor the robbery defendant was sentenced to a term of five-to-seven years, consecutive to the sentence upon the rape charge.

Defendant took no appeal but in 1969 filed a petition for post-conviction relief. After hearing, the petition was denied, and defendant appeals. We affirm.

I

The grounds for relief alleged in the petition were, “The verdict is contrary to the weight of the evidence. And seeking a reduction of sentence.” Defendant’s counsel concedes that the contention that the verdict is against the weight of the evidence is not a proper basis for post-conviction relief. However, defendant contends that “although the rules provide for review of sentences in post-conviction proceedings only when the sentence is illegal, B. 3:22-2(c), * * * State v. Hicks, 54 N. J. 390 (1969), shows that sentences which are legal but excessive may be reviewed within the post-conviction framework.” Since the present attack upon the sentence basically is that it is illegal, it is not necessary for us to determine whether State v. Hicks (supra) does permit the review of all sentences via petitions for post-conviction relief.

At the hearing on the petition, defendant’s counsel (not present counsel) stated his position to be as follows:

* * * It is the contention of the defendant, your Honor, that if the rehabilitation treatments at the Diagnostic Center are incomplete then in effect the defendant is not serving an indeterminate [sic] for the purposes of rehabilitation which the Diagnostic Center is geared for but in effect is serving a custodial sentence.
Your Honor, the petitioner requests this Court to hear from the defendant as to the type of rehabilitation that he is receiving at the Diagnostic Center.
*• * :[: í¡í *
THE COURT: All right. Anything else you want to tell me?
MR. GOLD: No, your honor.

The trial court refused counsel’s request to permit defendant to testify “as to the type of rehabilitation that he is receiving,” saying “[w]hat am I going to do, substitute my judgment for [that of] the rehabilitation center ?” After defendant’s counsel said he had nothing else to offer, the trial court dismissed the petition.

Defendant’s appeal is presented to us under one point, “the failure of the court to afford the defendant a full and complete hearing on post-conviction relief constituted error.” Whether the court so failed depends upon what defendant offered to prove. As we have seen, defendant offered testimony upon only one subject, the sufficiency of the treatment he was receiving. He did not contend he was not receiving treatment. To satisfy ourselves that he was in fact receiving some psychiatric treatment, we obtained copies of the records of the Diagnostic Hnit at Eahway, where defendant has been confined (according to his brief) since July 1967. Those copies have been exhibited to defendant’s present counsel. They show that defendant has been in group therapy since long before the filing of his petition to the present. The last report of - his progress prior to the argument of this appeal was dated September 1.2, 1970.

Since defendant was receiving treatment, the trial court properly rejected the offer to prove that the treatment was not good enough. Since nothing else was offered, the hearing afforded defendant was sufficient and the petition was properly dismissed.

We note in passing that there is nothing in the record to indicate that, prior to the hearing in the trial court, the trial court (or even the State) had any notice that, under the cryptic statement in the petition “[a]nd seeking a reduction of sentence,” defendant intended to present the issue of the quality or the sufficiency of the treatment he was receiving. More important, we know of no power .in the court to entertain such a challenge. (We are not called upon, in this case, to decide what the power or the duty of this court might be if a defendant received no treatment whatsoever.) This was the reason for the court’s refusal to substitute its judgment for that of the rehabilitation center, as well as for its exclusion of the proffered evidence. Such action was proper.

II

Defendant contends that it was improper to impose the fixed sentence of five-to-seven years to follow the indeterminate commitment under the Sex Offender Act. This point was not raised below but, since it challenges the legality of the sentence, we shall consider it, B. 3:22-2 (c). Defendant admits that there is no statute or precedent that renders such sentences illegal but he argues that, since a commitment under the Sex Offender Act is for treatment and not for punishment, he should be permitted to start serving Ms punitive sentence at once and to receive Ms treatment concurrently, just as he would if he had to be treated for cancer or diabetes. We find no merit in this attack, State v. Thompson, 84 N. J. Super. 173 (App. Div. 1964); State v. Mickschutz (supra).

In State v. Thompson (supra), defendant was convicted of rape, assault with intent to rape and breaking and entering with intent to rape, all arising out of a single incident. The Diagnostic Center reported that defendant came under the purview of the Sex Offender Act and should be committed to Greystone Park, but the trial judge nevertheless sentenced him to consecutive terms to State Prison for each offense. We reversed and held that the trial court should have imposed concurrent commitments to Greystone Park for the rape and assault with intent to rape, but to State Prison for five-to-seven years for the breaking and entering. We said: “Since hope of successful treatment is the purpose of the Sex Offender Act, the first two sentences should be concurrent. The third sentence may also be made concurrent with the second, since both offenses stem from the same factual complex; however, this is a matter for the exercise of the trial court’s discretion.” [84 N. J. Super. at 178]

In Thompson (supra), the offenses involved a single episode. State v. Mickschutz (supra), involved three separate charges of impairing the morals of minor girls. Defendant was found to come within the Sex Offender Act, and the Diagnostic Center recommended probation. The trial court rejected the recommendation and committed defendant to the Diagnostic Unit of the State Prison Ea.rm “for an indeterminate term on each accusation * * * [to] run consecutively * * We held that this was proper, saying:

■Defendant argues that consecutive sentences under the Sex Offender Act are prohibited. We find nothing in the statute or the cases which supports that contention. * * * Since the maximum term for each offense was three years, the trial judge doubtless felt that the period of possible confinement or parole should be nine years rather than the three years which concurrent sentences would provide, and we think that the Legislature meant to give that discretionary power to the Court * * *. [101 N. J. Super. at 319]

The clear import of Thompson (supra) and Mickschutz (supra) is that consecutive sentences or commitments of those found subject to the Sex Offender Act are not illegal or improper.

Assuming that State v. Hicks (supra) would permit us to reduce the sentence as excessive, we are not convinced that we should overturn the judgment of the trial court. The offenses were heinous and without a shadow of excuse. When the trial court imposed sentence, it was possible for defendant to be discharged from his sex offender commitment at a very early date, even though it was for rape. The trial court doubtless sought to guard against that by making the robbery sentence consecutive. We cannot say that he was too harsh when he did so.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES EARL WILLIAMS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 8, 1970
    Decided December 29, 1970.

      Before Judges Kilkenny, IIalpern and Lane.

      Mr. Jade J. Doppelt argued the cause for appellant.

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

Halpern, J. A. D.

Defendant appeals from a judgment of conviction for false swearing {N. J. 8. A. 2A :131-4). He was sentenced to a State Prison term of 2-3 years.

The undisputed facts are that on November 12, 1967 Eobert Jones was murdered in the City of Newark. On January 17, 1968 defendant was brought to the Essex County Prosecutor’s office where he signed a sworn Statement identifying Willie Washington as the murderer. In July 1968 a prosecutor’s detective and an assistant prosecutor interviewed defendant several times at the Yardville Eeformatory where he was then confined for a different offense. Presumably their purpose in seeing defendant was to prepare for trial since he was the State’s only eyewitness. Defendant told them he intended to repudiate his sworn statement of January 17, 1968 because it had been obtained under duress, and that he would not, or could not, identify Washington as the murderer.

With this knowledge in mind the assistant prosecutor, on September 17, 1968, on notice to Washington, caused defendant to be brought before a Superior Court judge in Essex County, for a “special hearing” in open court for two reasons: (1) to ascertain if the State still had a case, and (2) if defendant recanted, to lay a foundation for a false swearing complaint. Defendant was neither advised of his right to the assistance of counsel, nor warned that his answers might incriminate him. Defendant was not represented by counsel at the “special hearing” when he repudiated his January 17, 1968 sworn statement.

The holding of such a “special hearing” was proper since the State had to be certain that defendant, if placed under oath, would recant. State v. Guido, 40 N. J. 191, 200 (1963). In Guido a witness recanted during trial, and the court, in considering whether his testimony could be neutralized, suggested that:

When counsel has been advised a witness will not adhere to a prior statement but feels lie should test that disavowal under oath, he should so inform the court at side bar. The witness should then be examined in the absence of the jury, [at 200]

The court suggested this procedure because if the State offered the witness at trial with reasonable cause to believe he intended to recant, and he did recant, such would be reversible error because of the resulting prejudice. State v. Fournier, 91 N. J. Super. 477, 480-481 (App. Div. 1966); United States of America ex rel. Fournier v. Pinto, 408 F. 2d 539, 541 (3 Cir. 1969).

We see no reason why the procedure suggested in Guido, with appropriate modification, may not be utilized prior to trial if the State has probable cause to believe that a witness will recant during trial. See State v. Cullen, 103 N. J. Super. 360, 364 (App. Div. 1968). In fact, from the State’s viewpoint, it is essential, because of the time and expense involved that it know in order properly to prepare for trial. In the instant case the court dismissed the indictment on motion of the prosecutor, presumably made under B. 3 :25-l, because defendant was its only witness.

Defendant was subsequently indicted and convicted by a jury of false swearing based upon the difference in his original sworn statement of January 17, 1968 and Iris sworn testimony at the “special hearing” of September 17, 1968.

The issue before us is whether defendant, under the existing circumstances, was improperly compelled to be a witness against himself, and whether he was deprived of the assistance of counsel in violation of the Fifth and Sixth Amendments of the United States Constitution, Art. 1, para 10 of the New Jersey Constitution, and N. J. S. A. 2A:84A-17, 18 and 19. We have determined that his state and federal constitutional rights were violated requiring a reversal of his conviction for false swearing.

Defendant was in police custody when brought in for the “special hearing,” and the State was laying a foundation for a possible false swearing charge. Under such circumstances the assistant prosecutor was obliged to advise defendant that his testimony might incriminate him and that he was entitled to the assistance of counsel. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); see also State v. De Cola, 33 N. J. 335, 350 (1960). Miranda makes it clear that the “Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed from being compelled to incriminate themselves.” (384 U. S. at 467, 86 S. Ct. at 1624). It was stated thusly in Murphy v. Waterfront Commission, 378 U. S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964) :

The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. * * * it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used, [at 94, 84 S. Ct. at 1611]

It is inherent in Miranda that there exists a right to counsel incident to the privilege — a right to be advised whether to answer or not, and to have counsel present during any questioning. Nor is it essential that a person request he be given a lawyer.

While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may he the person who most needs counsel. (384 U. S. at 470-471, 86 S. Ct. 1602).

If a person in custody accused of a crime is entitled to these constitutional protections, Miranda’s rationale should include a witness in police custody under the circumstances here existing. Insofar as defendant was concerned, this was a critical stage at which he stood to lose valuable defenses or other rights, and needed the aid of counsel. State v. Vogel, 45 N. J. 400, 404-405 (1965).

The philosophy expressed in Miranda finds expression in what we deem to be an analogous situation when a prosecutor summons a witness before a grand jury who is the “target” of the inquiry. The duty of a prosecutor in these situations was considered in State v. Fary, 19 N. J. 431, 434, 436 (1955), and the court’s views are worth repeating :

The privilege of a witness against being compelled to incriminate himself, of ancient origin, is precious to free men as a restraint against high-handed and arrogant inquisitorial practices. * * * our conception of the fair play and self-respect which should attend a great state’s administration of criminal justice demands that law enforcement authorities show a scrupulous regard for the rights of those accused of crime.

Thus, being the “target” of a grand jury investigation is sufficient, of itself, to support a Eifth Amendment claim. In re Addonizio, 53 N. J. 107, 117 (1968). In varying situations, courts have set aside convictions which were obtained by violating a person’s constitutional rights —■ e. g., Coleman v. Alabama, 399 U. S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), where the assistance of counsel was mandated at a preliminary hearing; Mathis v. United States, 391 U. S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968), where an internal revenue agent interrogated a person in custody-in a state jail on another charge; and State v. Thomas, 111 N. J. Super. 42 (Law Div. 1970), where a welfare recipient was questioned by a welfare investigator concerning alleged fraud in obtaining welfare relief.

The multitude of cases dealing with Fifth and Sixth Amendment rights, are primarily concerned with the actions of the police in violating the rights of individuals — here we are confronted with the actions of a prosecutor’s assistant whose experience and training should have made him more sensitive to the problem and, therefore, worthy of closer scrutiny by us. See State v. Cassatly, 93 N. J. Super. 111, 121-122 (App. Div. 1966), certif. den. 48 N. J. 448 (1967), and cases cited therein, wherein it was held proper for the prosecutor and the court, duiing a trial, to advise a witness of his constitutional right not to testify.

In summary, the holding of the “special hearing” without advising defendant of his constitutional rights is violative of the Fifth and Sixth Amendments of the United States Constitution, which the Fourteenth Amendment makes applicable to the States, and Art. 1, para 10 of the New Jersey Constitution, and N. J. S. A. 2A:84A-17, 18 and 19.

Keversed.