text:
    STATE OF NEW JERSEY, PLAINTIFF, v. THOMAS CARROLL TAYLOR, DEFENDANT.
    Bergen County Court
    December 13, 1974.

      Mr. Lawrence J. Jaskot, Assistant Prosecutor, for the State (Mr. Joseph G. Woodcock, Jr., Prosecutor of Bergen County, attorney).

      Mr. Anthony Speranza for defendant.
   Rosenberg, J. J. D. E. C., Temporarily Assigned.

This is an appeal on the transcript pursuant to R. 3 :23-8 from a denial of a motion to acquit at the end of the State’s case and from a consequent conviction found in a municipal court for larceny of personal property of the price or value of $200 or less committed in violation of N. J. S. A. 2A:170-30.1.

The gravamen of the appeal rests in the absence of proof that the subject matter of the theft was of a specific price or value; that the court erred in holding that proof of some value was sufficient and, further, it could take judicial notice thereof.

The original charge against defendant was predicated upon a larceny in excess of $200 but under $500, in violation of N. J. S. A. 2A:119-2, and the case proceeded to trial upon waiver of indictment and trial by jury. The evidence produced by the State established that defendant had stolen a tape deck recorder and tool box containing automotive tools. These were described by two witnesses for the State, but no evidence was presented as to their price or value. The defendant did not testify.

Defense counsel moved for a dismissal of the complaint for failure of the State to establish the price or value of the property within the requirements of N. J. S. A. 2A:119-2. The State then moved to amend the complaint to charge a violation of N. J. S. A. 2A:170-30.1. The judge granted the motion pursuant- to R. 7:10-2 and thereupon found defendant guilty of violating said statute, holding that a finding of a specific price or value was essential only with respect to the degree of the offense involved in a charge under N. J. S. A. 2A :119—2 that proof of some value was sufficient under N. J. S. A. 2A:170—30.1, and that it would take judicial notice thereof.

At common law simple larceny was constituted of the “felonious taking and carrying away of the personal good of another.” Further, at common law simple larceny was subdivided into petit larceny when the goods were of the value of 12 pence or under and grand larceny when the value was above 12 pence. Blackstone’s Commentaries (Chase ed. 1924), 963. The gradations as to value were effective in establishing the punishment, grand larceny being punishable by death and petit larceny by imprisonment or whipping. Id. at 971. However, the nature of the offense was the same in both cases, the difference being in the degree of punishment only. Hale, Pleas of the Crown (Wilson ed. 1784), 504.

The statute, N. J. S. A. 2A: 119-2, entitled, “Stealing money, chattels and other articles, property and things,” has been held to encompass the common law offense. Gardner v. State, 55 N. J. L. 17 (Sup. Ct. 1892), aff’d 55 N. J. L. 652 (E. & A. 1893). Although not establishing gradations as petit or grand larceny, New Jersey also followed the com-moil law in establishing the severity of punishment predicated on the price or value of the goods stolen. By virtue of L. 1972, c. 159, § 1, effective September 27, 1972, N. J. S. A. 2A:119-2 was amended to designate larceny in excess of $200 and under $500 a misdemeanor and as a high misdemeanor when the price or value of the property was $500 or over. Section 2 of the same act provided, under N. J. S. A. 2A:170-30.1, that larceny of property of the price or value of $200 or less constituted disorderly conduct.

There are no decisions in this State specifically stating that a finding of “some value” is sufficient for a conviction under N. J. S. A. 2A:170-30.1 and that judicial notice may he taken thereof. However, decisions in sister jurisdictions uniformly hold that this degree of proof is adequate to support a conviction for larceny. In Lanham v. Commonwealth, 250 Ky. 500, 63 S. W. 2d 585 (Ct. App. 1933), the indictment was for the larceny of gasoline “of less value in the aggregate of $20.” The conviction by a jury for petit larceny was affirmed, the court holding:

“In cases of grand larceny it is necessary to prove that the value of the property alleged to have been stolen was more than $20, but in cases of petit larceny it is sufficient if the proof shows property taken was of any value less than $20. * * *" The courts will take judicial notice that this amount of gasoline was of some value. [at 587; emphasis supplied]

In State v. Paramo, 92 Ariz. 290, 376 P. 2d 554 (Sup. Ct. 1962), defendant was convicted of the petty theft of a gasoline engine. The conviction by a jury was affirmed, the court stating:

Defendant next contends that there was error by the trial court in not granting a directed verdict or a new trial as the state completely failed to prove the monetary or market value of the property alleged to have been stolen. However, since the defendant was charged only with petty theft, there was no need to show the actual market value of the engine, but only that it had some value to the owner. [376 P. 2d at 556; emphasis supplied]

In People v. Kelly, 66 Ill. App. 2d 204, 214 N. E. 2d 290 (App. Ct. 1965), the court, after a bench trial, held:

When the State seeks the maximum penalty permitted by the statute, by alleging in the indictment a property value in excess of $150 (as in this ease), and the proof fails as to value only, it does not follow that the crime of ‘theft’ has not been proved. The court may take judicial notice of the fact that a 1959 Chevrolet driveable in 1964 is a thing of some value even though it may not, without more proof, conclude that the value exceeds $150. People v. Dunsworth, 323 Ill. App. 470, 474-478, 56 N. E. 2d 52. [214 N. E. 2d at 293; emphasis supplied]

In People v. Sparks, 9 Ill. App. 3d 408, 292 N. E. 2d 447 (App. Ct. 1972), defendant was convicted of the attempted theft of an automobile under $150 in value. Defendant contended that the State failed to prove the value of the automobile. The conviction, was affirmed, the court stating that the trial court could take judicial notice that a 1962 Buick, in driveable condition, had some value. In Boone v. United States, 296 A. 2d 449 (D. C. 1972), a conviction by a jury for grand larceny was reversed for failure of proof that the items stolen were of value to fall within the statutory amount. However, the case was remanded for resentence for petit larceny, the court holding:

‘We are not of the opinion, however, that there was no proof of value at all. There is no minimum amount required to prove petit larceny — only that the item(s) tahen have value.” 52A C. J. S. Larceny § 97 (1968). In the instant case there was sufficient proof of value to sustain a conviction of petit larceny. [Emphasis supplied]

Implicit in the offense of larceny is the right of a person not to have his property stolen from him, irrespective of its monetary price or value. These factors are of significance only when punishment is sought in excess of the minimal statutory category. Where the charge is prosecuted under N. J. S. A. 2A:170-30.1 the elements of price or value are essentially fictional. This concept is manifest in Frisbie v. United States, 157 U. S. 160, 15 S. Ct. 586, 39 L. Ed. 657 (1894); Buntin v. State, 117 Ga. App. 813, 162 S. E. 2d 234 (Ct. App., 1968). In the Frisbie ease the court held that the maxim “de minimis non curat lex” does not apply in criminal cases oí larceny. The stealing of a cent is as truly larceny as the stealing of a thousand dollars. The sum may vary the degree but does not change the character of the crime. Buntin involved an appeal from a jury conviction wherein no evidence of value was presented. The court held:

“Also, ‘value,’ as the word is used in prosecutions for larceny, does not necessarily mean money value or market value.” Gates v. State, 20 Ga. App. 171(5), 92 S. E. 974; Mance v. State, 5 Ga. App. 229, 230, 62 S. E. 1053. Chief Judge Russell said in Edmondson v. State, 18 Ga. App. 233, 240, 89 S. E. 189, 192, “We conclude, therefore, that anything, — that is to say, any material object except man —- which has any intrinsic value, however small, can be the subject-matter of larceny from the house.” [162 S. E. 2d at 236]

State v. Romero, 95 N. J. Super. 482 (App. Div. 1967), cited by defendant, is not apposite. There the proof of price or value was held to be essential because the State was endeavoring to establish a degree of larceny under N. J. S. A. 2A:119-2. But compare Romero with State v. Dunbar, 124 N. J. Super. 234 (Law. Div. 1973), whore a jury verdict for receiving stolen property under N. J. S. A. 2A:139-1 was set aside because the proof failed to establish value within the requirements of this statute, but the court nevertheless found defendant guilty of violating N. J. S. A. 2A:170-41.1, the court holding at page 238:

“* * * The jury will have to determine that the value is in excess of S200 in order to convict a defendant of the indictable offense. Obviously, if the jury determines that the value is not in excess of $200, then a determination has been made of all that is necessary to convict the defendant of the disorderly persons offense.”

Evict. R. 9(1) requires that judicial notice be taken of “propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.” It is beyond dispute that in this age of the employment of tape recorders in preserving music and the human voice in all their content and tonalities, and the almost universal addiction to the automobile as a means of travel, that a tool bos containing automobile tools and a tape recorder have some value within the purview of Judicial notice.

It is, therefore, determined that the trial Judge was completely within his power to take Judicial notice 'that the property stolen was of some value and the defendant herein is found guilty of violating N. J. S. A. 2A:170-30.1.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN BICANICH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 19, 1973
    Decided December 28, 1973.

      Before Judges Leonard, Allcorf and Crahay.

      Messrs. Gitta, Gasser, Garluccio & Holzapfel, attorneys for appellant (Mr. Daniel J. Garluccio, of counsel, Mr. Gregory V. Sharlcey, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of Few-Jersey, attorney for respondent (Mr. Robert V. Gluclc, Deputy Attorney General, of counsel).
   Per Curiam.

Defendant, a school teacher, was convicted by a jury of impairing the morals of a minor child contrary to N. J. S. A. 2A:96-3 and carnal indebency contrary to N. J. S. A. 2A The alleged offenses occurred in a classroom at different times on the same day and involved the same minor female child.

On this appeal he asserts —1) that the trial court erred in limiting his cross-examination of the victim and a school nurse so as to demonstrate lack of "fresh complaint”, and 2) that the trial court erred in refusing to allow defendant to testify regarding disciplinary problems he encountered with the victim prior to the alleged criminal occurrences so as to demonstrate bias in her against him.

We find no mistake in the exercise of the trial court’s discretion in not permitting testimony of lack of complaint by the victim to the school nurse. Apparently, before the involved incident, she was visited frequently by the victim regarding other unrelated problems. Defendant argues that a relationship had been developed making it likely that the victim would have reported the acts committed against her and that failing to report them would generate an inference of their non-occurrence. (The victim first mentioned the alleged incidents between a week or two after their occurrence. Then, not wanting to go to school the next day she spoke of them to a girl friend of her older brother who advised her to Ml her mother.)

The “fresh complaint” rule is one of the recognized exceptions to the exclusionary hearsay rule and permits proof of complaints of sexual offenses to persons to whom the victim would ordinarily turn to for sympathy, protection and advice. State v. Balles, 47 N. J. 331 (1966), cert. den., appeal dismissed, 388 U. S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). We find no meaningful prejudice to defendant here in the trial court’s proscription against examination into the lack of complaint vie a vis the school nurse and a pupil. Evict. R. 4.

We are satisfied, however, that the second alleged error asserted by defendant has merit and of a quality warranting reversal. A review of the entire record satisfies us that while there was sufficient evidence from which the jury could find guilt, the case was, in a word, “close”. As noted, the offenses allegedly occurred at different times. As to one, it was the victim’s word as to what occurred against defendant’s denial of the happening. As to the other, there was some minimal corroboration by another nine year old girl but it was not compellingly persuasive.

Credibility in cases such as this is ofttimes the most critical issue. Interest, motive and bias are factors which may affect a witness’ credibility. State v. Smith, 101 N. J. Super. 10 (App. Div. 1968), certif. den. 53 N. J. 577 (1969); State v. Taylor, 38 N. J. Super. 6 (App. Div. 1955); State v. Manno, 29 N. J. Super. 411 (App. Div. 1954); State v. Salimone, 19 N. J. Super. 600 (App. Div. 1952), certif. den. 10 N. J. 316 (1952).

The record reflects that on a voir dire examination defendant offered to show that shortly before the alleged offenses there had been an incident between him and the victim wherein he had separated her from a close friend because of behavioral difficulties which tended to interrupt the classroom. Thereafter, the victim approached him and asked to be returned to the seat in the classroom near her friend. Defendant refused to honor this request and subsequently — he testified — she was “cool towards him.” In the context of this case this testimony should have been permitted into evidence for jury consideration. Evid. R. 20.

We cannot here measure the impact such testimony might have had on the jury in demonstrating bias in the alleged victim against defendant so as to affect her credibility.

We do not deal with harmless error here since we are unable to find beyond a reasonable doubt that the erroneous limitation of proof did not ¡have the clear capacity to produce an unjust result. Compare State v. LaPorte, 62 N. J. 312 (1973).

Reversed and remanded for a new trial.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN KYLES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 14, 1975
    Decided January 29, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Stanley G. Van Ness, Public Defender, attorney for appellant (Mr. Stanley Marcus, designated counsel, of counsel and on the brief),

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Robert H. Klausner, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant was indicted for the commission of an atrocious assault and battery upon Estelle Monk and for the commission of the same offense upon her daughter, Anna L. Brown. A jury acquitted defendant of the charge with respect to Mrs. Monk but convicted him of committing this offense against Anna. An indeterminate sentence to “Yardville” was imposed, and this appeal followed.

Defendant asserts as grounds for reversal that (a) the trial judge erred in refusing to grant a continuance when defense witnesses under subpoena failed to appear; (b) the charge as to flight from the scene of a crime should not have been given, and (c) the verdict was against the weight of the evidence.

On May 7, 1973 Mrs. Monk resided in an apartment in Asbury Park with three of her children. Also residing there, temporarily, were defendant’s sister Elizabeth, her husband Bobert Livingston, and their two children. Defendant and two of his younger brothers also were in the apartment that night, some time after midnight, according to the police.

There was evidence in the case to show that defendant, Mrs. Monk and defendant’s sister were involved in an argument. The police were called and they broke up the quarrel. Defendant had been observed pushing Mrs. Monk and was restrained. Mrs. Monk left the apartment with the police, but returned later with her 16-year-old daughter Anna. It was then that Anna was struck on the head by a pipe. There was sufficient credible evidence for tire jury to find that defendant was the assailant. Anna suffered cuts on her head requiring 14 stitches and was hospitalized for four days. There was also evidence that defendant fled after striking her.

This abbreviated recitation of the evidence will serve to dispose of two points urged by defendant ■— that the verdict was against the weight of the evidence and that the trial judge should not have charged the jury as to the inference to be drawn from the flight of an accused from the scene of a crime. Although there was a conflict in the evidence, as to the assault on Anna and defendant’s flight, there was suffieient credible evidence as to both to justify the charge on flight and to support the guilty verdict.

At this juncture we pause to note serious improprieties in defendant’s brief. No exception was taken by defense counsel to the court’s charge on flight (although its inclusion was specifically mentioned at side bar during the discussion of possible exceptions), but defendant’s brief fails to mention, as required by R. 2:6—2(a), that this point was not presented below. The requirement of this rule is, by its very language, “mandatory.” The consequence of the failure to object below is provided by R. 1:7-2. Subject to the exception for “plain error,” R. 1:7-2 provides that “no party may urge as error any portion of the charge to the jury or omissions therefrom unless he objects thereto before the jury retires * * State v. Hock, 54 N. J. 526, 538 (1969), cert. den. 399 U. S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Despite the failure to comply with this procedural requirement we have considered the merits and find that the trial judge’s charge on the issue of flight was correct and relevant in this case. Defendant’s brief argues that the charge on flight was inappropriate since the evidence that defendant fled after striking Mrs. Monk was disproved by the testimony that he was still in the apartment when the police arrived. However, the brief fails to mention the credible evidence of defendant’s flight after Anna Brown was'1 struck down. Thus, the brief ignores entirely the significant proofs to which the charge on flight would apply. State v. Sullivan, 43 N. J. 209, 238-239 (1964), cert. den. 382 U. S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).

While an attorney should zealously advance the cause of his client, the piecemeal selection so as to create a putative issue is to be condemned. It is improper for an attorney to present an issue unless it can be done in good faith. DR. 7-102 (A) (2). Simply because an indigent defendant has the right to be represented by counsel and the right to an appeal without cost does not oblige Ms counsel to urge specious arguments so as to satisfy that right. No party has the right to have advanced on his behalf contentions that are palpably and clearly unmeritorious. It is a disservice to all litigants when the court’s time is consumed by such contentions.

The argument that the verdict is against the weight of the evidence is also advanced on this appeal without noting that it was not raised below. R. 2 :10-1 specifically provides that such an issue “shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court.” Therefore, defendant is barred from questioning the weight of evidence. State v. McNair, 60 N. J. 8, 9 (1972); State v. Perry, 128 N. J. Super. 188, 190 (App. Div. 1973), aff’d 65 N. J. 45 (1974). It is particularly important to have the trial judge’s view of the evidence before an appellate court undertakes an evaluation of its weight. Although we have noted above the lack of merit in this contention, by considering the merits we do not intend to denigrate the importance of this procedural rule.

Defendant has also contended, as the first point raised on this appeal, that the trial judge erred in failing to grant defense counsel a continuance because witnesses subpoenaed on behalf of defendant did not appear. The trial was commenced on a Thursday. On that day the State rested its case after presenting three witnesses — Mrs. Monk, her daughter and a police officer. Defendant then testified in his own behalf and Ms testimony was completed in the afternoon. At that time his counsel advised the judge that he had other witnesses who were presently unavailable. The court noted that the case could not be completed that day, in any event, and would be continued until Monday.

On Monday morning defense counsel stated that he had three possible witnesses — defendant’s sister Elizabeth, his younger brother Melvin, and Elizabeth’s husband, Robert Livingston, all of whom were in the apartment on the night in question. Defense counsel stated that another sister of defendant asked these three individuals to come to the court house early Monday morning so that defense counsel could speak to them. He also advised the judge that Elizabeth and Melvin were both subpoenaed on the preceding Priday and that they were advised that transportation could be arranged for them by calling the Public Defender’s office.

The prospective witnesses did not appear in court on Monday, nor did they call to request transportation. Defense counsel asserted that “they could very well develop into necessary witnesses in this case,” and he requested a continuance, stating that defendant wanted these persons to testify on his behalf. The judge noted that it was then 10:30 in the morning and defendant’s sister and brother, the subpoenaed persons, had not appeared. The application for a continuance was denied.

Events such as these pose a difficult problem for a trial judge. Initially we note that the granting of an adjournment is a matter for the discretion of the trial judge. State v. Smith, 66 N. J. Super. 465, 468 (App. Div. 1961), aff’d 36 N. J. 307 (1962). Accord, Ungar v. Sarafite, 376 U. S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921, 931 (1964).

In State v. Smith, defendant sought to compel the appearance of his brother and sister-in-law in the hope they would support his alibi, although both witnesses had told defense counsel that their evidence would not be helpful to defendant. The trial judge issued subpoenas and continued the case until 3. p.m., but only defendant’s sister-in-law was subpoenaed. When neither witness appeared the- trial was resumed and completed. In affirming the conviction for armed robbery the Supreme Court noted that no showing was made as to what the witnesses’ testimony would have been or would be at a new trial if one were granted. The affirmance was without prejudice to defendant’s right to move for a new trial “in accordance with the procedure regularly employed for. that .purpose.” 36 N. J. at 308.

The unexplained failure of a brother and sister to appear voluntarily or in response to a subpoena when defendant is charged with a serious crime must raise some doubt as to their ability honestly to support defendant’s case. Defense counsel did not request the issuance of a bench warrant or other steps to compel their appearance. See N. J. S. A. 2A:81-15(c), which subjects a disobedient witness to punishment for contempt. To this day we do not know what defendant’s potential witnesses might have said at the trial. Thus, it cannot be said that defendant was prejudiced by the nonappearance of these witnesses. It is futile to adopt a rule that requires a continuance, or the reversal of a conviction, simply, on the showing that a relative of defendant who had relevant information did not appear in response to a subpoena, especially when the information might in fact be harmful to the defense.

Accordingly, the judgment of conviction is affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GEORGE SOTTERIOU, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 7, 1975
    Decided February 3, 1975.

      Before Judges Halpeee, Cbahay and Ackebmah.

      Mr. Irving I. Vogelman argued the cause for appellant (Messrs. Brown, Vogelman <& Ashley, attorneys; Mr. Raymond A. Brownj on the brief).

      Mr. Marc J. Friedman, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Per Curiam.

Following a four-week trial on a 14-count indictment a jury returned a verdict of guilty against defendant of (1) conspiracy to commit arson (N. J. S. A. 2A:98-1 and 2A:98-2); (2) arson of a building other than a dwelling house (N. J. S. A. 2A.-89-2); (3) burning a building with intent to defraud an insurance company (N. J. S. A. 2A:89-3); (4) manslaughter; (5) possession of a switchblade knife (N. J. S. A. 2A:151-62), and (6) giving false information with respect to a crime (N. J. S. A. 2A:148-22.1). Two remaining counts were dismissed by the trial judge. Defendant’s motion for a new trial was denied.

Defendant was sentenced to New Jersey State Prison for two to three years for conspiracy, five to seven years for arson, five to seven years for defrauding an insurance company, and eight to ten years for manslaughter. These sentences were to be served concurrently. Additionally, defendant was sentenced to two consecutive one to two-year terms for possession of a switchblade and for giving false information to the police. The sentences aggregated 10 to 14 years.

Before setting out defendant’s points of appeal and our disposition of them we will detail so much of the factual record we deem to be illuminative.

A fire heavily damaged the Zoo Tavern in Carteret, Middlesex County, on September 28, 1971. Two deaths resulted from it.

On September 7, 1971 — three weeks before the fire — defendant, a fire adjuster, was engaged by Louis Tzatzos and his wife Joan, the proprietor of the Zoo, to adjust another fire which had damaged its basement. On the night of September 27, 1971 defendant, his wife, Joseph D’Orsi and Joanne Sandonato, an indicated coconspirator, dined together. Following dinner defendant drove his wife home and then took D’Orsi and Miss Sandonato to their apartment in Avenel. Miss Sandonato testified that she and D’Orsi entered the apartment at midnight. Approximately 15 minutes later, D’Orsi, who did not own an automobile, left the apartment.

Bichard Alexander, a Woodbridge police officer who was conducting a surveillance of D’Orsi’s apartment, testified that sometime between 11 and midnight he observed two men drive off in defendant’s black Cadillac. Shortly after midnight three witnesses saw D’Orsi and Louis Tzatzos in the Sports Best Tavern in Carteret. The proprietor, Ilank D’Orsi, testified that his brother Joseph D’Orsi and Louis Tzatzos conferred in a back room and departed together between 2:30 and 3:00. At approximately 2:50 a Carteret police officer discovered the fire at the Zoo. Louis Tzatzos was found dead in the men’s room and Joseph D’Orsi, his clothes ablaze, was discovered approximately 60 feet from the rear of the structure. D’Orsi died later in the hospital. Later that morning an investigation by the Middlesex County Prosecutor’s Office revealed that (1) there was a strong odor of gasoline behind the Zoo’s bar; (2) the rear door of the tavern was found some distance from the structure; (3) a neighbor had heard a dull explosion, and (4) a juke box in the tavern had been placed in such a way as to limit access through the front door.

There was testimony that at 3:20 defendant phoned Joanne Sandonato and told her to meet him at her father, John Sandonato’s house, and that defendant appeared at the Sandonato residence at 4. His lower back and legs were burned and part of his pants were “welded” to his calf. Defendant exclaimed, “Joe’s dead. Lou’s dead.” John Sandonato then drove defendant to Middlesex General Hospital. On the way defendant asked Sandonato to tell hospital personnel that he had burned himself accidentally at a barbecue in the Sandonato backyard. Sandonato refused and defendant entered the hospital alone.

Andrea Dite, a nurse on duty in the hospital emergency room, testified that defendant stated he "was putting his ear in the garage. Two men grabbed him, put a bag over him, took him away, burned him with something.” Defendant, according to Dite, said that the two unknown assailants left him on Route 1 where a passerby stopped and drove him to the hospital. Defendant was removed to the intensive care unit. Andrea Dite retrieved a switchblade knife from his pants pocket after his clothes had been removed. Thereafter, defendant reiterated his purported assault and kidnapping to New Brunswick police officer James Leffier.

The essential factual defense was articulated by defendant, who testified that after driving D’Orsi home he received a telephone call about 2 from D’Orsi telling him that he wanted to repay a loan. D’Orsi suggested that defendant could collect the money at the Zoo. Defendant asserted that he drove to Carteret, entered the Zoo and saw a bright flash. From that moment on defendant disclaims any recollection of subsequent events. Defendant stated that he found the switchblade knife at the scene of the Royal Oak Restaurant — the situs of another fire which he had been adjusting. Defendant contended that he placed the knife in a brown bag and put it into his raincoat pocket, intending to return it to the owner of the Royal Oak on the following day. In a word, defendant denied involvement in any of the alleged criminal transactions.

Defendant asserts eight points on this appeal. Our review of the voluminous trial record satisfies us that there is no merit to any of the issues raised.

I. The Manslaughter Conviction

Defendant argues that the trial judge erred in submitting the issue of involuntary manslaughter to the jury. He asserts that “involuntary manslaughter — is inapplicable to circumstances in which the victim is a coconspirator who actively contributes to his own demise.” In support of this contention defendant draws an analogy to several felony murder cases which have held that a person cannot be tried for the death of his coconspirator. This argument lacks merit. First, there is impressive authority supporting the contrary position. See Commonwealth v. Bolish, 391 Pa. 550, 138 A. 2d 447 (Sup. Ct. 1958). Second, in several of the out-of-state authorities upon which defendant relies the limiting statutory language precluded conviction. See, e. g., People v. Wood, 8 N. Y. 2d 48, 201 N. Y. S. 2d 328, 167 N. E. 2d 736 (Ct. App. 1960). On the other hand, our murder statutes, N. J. S. A. 2A:113-1 and 2, are by their terms broad (see State v. Kress, 105 N. J. Super. 514 (Law Div. 1969); State v. McKeiver, 89 N. J. Super. 52 (Law Div. 1965)), and they have been construed to include the homicide of a cofelon. State v. Burton, 130 N. J. Super. 174 (Law Div. 1974). Contra, State v. Suit, 129 N. J. Super. 336 (Law Div. 1974).

In any event, we do not deal here with a murder conviction. The court presented this case to the jury on the ground of involuntary manslaughter. Our Supreme Court has succinctly defined that offense as “an unintentional homicide, committed without excuse or justification, under circumstances not manifesting or implying malice.” State v. Bonano, 59 N. J. 515, 523 (1971). The homicide here was neither excusable nor justifiable. Malice was not an issue. There was more than ample credible evidence from which the jury could find defendant guilty beyond a reasonable doubt. Cf., State v. Garner, 238 La. 563, 115 So. 2d 855 (Sup. Ct. 1959).

II. The Switchblade Knife

[The court holds that reading the charge in its entirety, the judge properly charged on possession of the knife.]

III. The Expert Testimony

[The court finds that the trial judge did not abuse discretion in permitting the investigator to testify as an expert.]

IV. The False Information Gonviction

Defendant was convicted of violating N. J. S. A. 2A:148.22.1, which provides:

Any person who knowingly and willfully gives false information or causes false information to be given to any law enforcement officer or agency with respect to the commission of any crime or purported crime is guilty of a misdemeanor. [Emphasis supplied]

The statute was enacted to deter individuals from giving false information 'to law enforcement authorities. State v. Hobbs, 90 N. J. Super. 146, 148 (App. Div. 1966). It is clear that such false information has the capacity to cause a waste of investigative resources and to distract and mislead from legitimate and necessary police undertakings. Here defendant reported at least two purported crimes — kidnapping and atrocious assault and battery. The record reflects that the statements at first were taken seriously and were investigated by two New Brunswick police officers and the Metuehen chief of police.

Defendant also contends that he was compelled to tell the hospital personnel the false story in order to receive treatment, and that to convict him under these circumstances violated his Eifth Amendment right to remain silent. This contention is pure sophistry and warrants no discussion. Simply, no one compelled defendant to fabricate a story about criminal events which did not happen. In our view the “kidnapping and assault” scenario was designed to remove defendant from the scene of the Zoo fire.

V. Weight of Evidence

[The verdicts were not against the weight of the evidence.]

VI. The Arson Counts

The trial judge charged the jury that they were to first consider the charge of statutory arson. The judge thereafter instructed the jury that if they found beyond a reasonable doubt that defendant did not commit the crime of arson, they could consider “whether an attempt to commit the crime has been established.” When the verdict was announced the clerk asked the foreman — “How did you find as to the second count, arson ?” The foreman replied, “Guilty.” The jury was polled. No exception to the form of the verdict was made. Defendant contends that the verdict is uncertain and that this court should mould the verdict to guilty of attempted arson.

In State v. Landeros, 32 N. J. Super. 168 (App. Div. 1954), rev'd in part on other grounds 20 N. J. 69 (1955), defendant was charged with assault with intent to rape, atrocious assault and battery and assault and battery. The jury returned a general verdict of guilty. Judge (later Justice) Eraneis, in 'upholding the conviction of the greater included offense, stated that if

* * * a general verdict of guilty had been returned without any specification with respect to counts, the verdict would have been valid and sentence could be imposed on the most serious charge * * * so long as there was evidence in the record to support the submission of that issue to the jury for determination, [at 172]

We subscribe to Tanderos but need not reach this issue since we are satisfied that on the facts of this case defendant’s conviction of arson merged with his conviction of burning a building with intent to defraud an insurance company. The act of arson was not a “distinct criminal affair” but rather it was “an integral part” of the crime of burning with intent to defraud. State v. Hill, 44 N. J. Super. 110, 112 (App. Div. 1957); cf. State v. Jamison, 64 N. J. 363, 380 (1974). Accordingly, we vacate the conviction for arson and sentence imposed as charged in Count II of the indictment.

VII. The Sentences

[Sentences held not excessive or unduly harsh.] As modified, the judgments under review are affirmed.

      Defendant was named in eight counts of the indictment. His trial was severed from other defendants whom we alluded to in State v. Sotteriou, 123 N. J. Super. 434 (App. Div. 1973).


author: Kole, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN HUMMEL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 14, 1975
    Decided January 29, 1975.

      Before Judges Carton, Crane and Koee.

      Mr. Norman L. Z'loimch argued the cause for appellant (Mr. Marvin B. PersMe for Messrs. PersTcie and Gallinan, attorney; Mr. George Broivn Neidig on the brief).

      Mr. Howard E. Hruclcs, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Kole, J. A. D.

Defendant appeals from his convictions for contributing to the delinquency of two minor girls (N. J. S. A. 3A :96-4), for their carnal abuse (N. J. S. A. 3A: 138-1 and for impairing their morals (N. J. S. A. 2A:96-3). The girls, R and D, are both under the age of 16.

Defendant was sentenced to State Prison for concurrent terms of 5 to 7J^ years on each carnal abuse charge; 1 to 3 years on each morals impairment charge, and a term of 1 to 3 years on each contributing to delinquency offense, concurrent with each other but consecutive to one of the carnal abuse 5 to 7J^-year-terms. Thus, his aggregate sentence was for a period of 6 to 10}4 years.

During a period of slightly more than three years K and D were foster children in the home of defendant and his wife. They were about 13 years old when they arrived and about 15 years of age when they left. R’s younger sister C, who was about seven years old when she entered, was also a foster child in the home.

According to R, within two weeks of her arrival she acceded to defendant’s request to enter his bedroom to scratch his back. While there, there was mutual touching of private parts and then intercourse. Thereafter on other occasions there were also acts of intercourse and touching by mouth of each other’s sex organs. She discussed these events with D, who told her that defendant liked to have intercourse with her and she ‘had to play with him and he played with her.” R had seen her sister C in defendant’s bedroom more than ten times. •

R reported that she had never complained to either Mrs. Hummel or to Linda Portwood, her caseworker, of these events while living in the Hummel home. She said that she was afraid to complain because defendant had said that she would be put away in a children’s shelter if she told. After leaving the Hummel house R was placed in the home of her sister L. When she had been there about one month she advised her sister as to Mr. Hummel’s acts. L. testified that E had informed her that defendant had frequent sexual relations with the three girls over a period of three years.

D testified that several months after she had entered the Hummel home as a foster child she had accompanied E into defendant’s bedroom to scratch his back and that defendant, “would mess” and touch her privates. Some time later, a week or a month, D was again in defendant’s bedroom scratching his back, when he threw her on the bed and made her have intercourse with him. On another occasion she was asleep on the couch in the living room and awoke to discover that defendant had his head between her legs. She pulled his hair and hit him until he got away. D said that she had intercourse with defendant two or three times and that he had, on occasion, offered her $1 if he could make love to me or “something.”

D also stated that E had told her on several occasions about her activities with defendant and that the two of them had discussed these events. She also testified that before she left the Hummel house the youngest foster child, C, informed hex that defendant had played with her. D stated that she had not complained to the caseworker or to anyone else about defendant’s conduct because he had said that she would be put away if she told. She first imparted this information to her aunt after leaving the Hummel home to reside with her.

C testified that defendant called her into his bedroom to scratch his back and comb his hair and that he would ask her to “pull down my pants once in awhile.” She testified that “he put his finger in my rear end” more than once. C reported that on one occasion defendant’s wife entered the bedroom while she had her pants down and yelled at her and sent her to her room. On this occasion she and E told each other what defendant had been doing to them. E and D told C not to scratch defendant’s back again and she did not do so thereafter. C said that she had not told the police about these events when questioned because she was afraid that defendant would put her away.

Linda Portwood, a caseworker for the New Jersey Division of Youth and Family Services, assigned to the foster children in the Iiummel house, reported that she had received a telephone call from L some two or three weeks after R had moved into her home. Upon visiting L’s house she spoke to R, who told her of defendant’s conduct toward her. She also testified to a subsequent conversation with D, who verified R’s story. As a result of these interviews Miss Portwood confronted defendant, who denied the charges. She arranged to transfer the remaining foster children from the Hummel house and notified the county prosecutor.

Defendant testified. He denied the charges. He stated that he was not. close to the foster children and that he believed they resented the fact that he paid more attention to his own daughters.

The foster children, he said, created problems. R had great difficulty with school work and his wife had resisted efforts to place the girl in a school for retarded children. He described R as very temperamental and as suffering nightmares. He said that R disliked him and his family because they were strict, and that D had been arrested for stealing at a local shopping center.

He conceded that the foster children did scratch his back while watching television. He said that they had only entered his bedroom once or twice to scratch his back and that, although he was not fully dressed, he was fully covered by the bedclothes, the door was left open and his wife was in the next room. He also stated that he had given R money to scratch his back but did so "very seldom.’’ He further stated that he had been sexually impotent for a number of years and had not had relations with anyone, including his wife. Defendant and each of the foster children were in agreement that defendant’s wife slept in the living room on a couch.

A psychiatrist called by defendant gave evidence based on an interview and examination of defendant. He reported that defendant, as a young man, had been able to function sexually only with the assistance of alcohol and that he had lost even this ability in his forties. The doctor concluded that defendant suffered from lifelong feelings of insecurity and anxiety; that ho suffered from impotence and that there was no evidence of sexual perversion. He stated, however, that there was no reliable physical test to establish the existence of impotence and that it was necessary to rely in large measure on the statement of the patient in reaching his conclusions.

Two character witnesses testified as to defendant’s good reputation.

We have reviewed each of the errors alleged by defendant and have concluded that they are without merit. Hence, considered alone or in the aggregate, they do not warrant reversal of the convictions.

The first claimed error is the trial judge’s permitting various witnesses to testify as to conversations with E and D, the objects of the sexual misconduct for which defendant was convicted, relating to such misconduct. It is urged that the fresh complaint rule does not apply to E’s testimony concerning the statements made to her by D, D’s testimony as to E’s statements to her, or L’s testimony as to what E told her in this respect. These statements were hearsay and were admissible only under the fresh complaint doctrine. We note that the court discouraged the recounting by witnesses of the details of the statements involved.

It is contended that E should not have been permitted to testify as to D’s statement to her before D had testified and an attack been made on D’s credibility.

Defendant first argues that such evidence is admissible under the fresh complaint rule only in response to efforts by defendant to impeach a complaining witness. We do not agree.

In State v. Balles, 41 N. J. 331, 338 (1966), cert. den. and app. dism. 388 U. S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 132 (1967), the court discussed the fresh complaint rule:

The rule is applied widely in rape and morals cases and permits proof that the violated victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice.

In Bailes the court gave the rationale for the rule, saying':

*' * * if no testimony were offered with respect to the complaint the jury might naturally assume that none was made and * * * it is only just that the prosecution he permitted to forestall this natural assumption by showing that a complaint was in fact made.' [at 338; emphasis supplied]

Thus, the State need not wait, as defendant contends, until defendant has brought the assumption of contradiction into the open by explicitly raising the question. The prosecutor may. anticipate, that assumption in the minds of the jurors and introduce the fact of the complaint and the nature thereof before any actual impeachment occurs. See also, State v. Tirone, 64 N. J. 222 (1974); State v. Gambutti, 36 N. J. Super. 219, 226 (App. Div. 1955).

The statement in State v. Orlando, 119 N. J. L. 175, 180 (Sup. Ct. 1937), relied on by defendant is inapposite. There the complaining witness had already been impeached. The court was concerned not with the kind of pre-impeachment testimony here involved, as to the nature of the complaint, hut rather with the admissibility of the details of the complaint to rehabilitate the credibility of the witness.

Defendant also claims that R’s testimony as to D’s statements to her should not have been admitted because the complaining witness, D, had not yet testified. This, too, is without substance. Bailes, supra, rejects any notion that such testimony may only be admitted after the complaining witness has testified. 47 N. J. at 340. The court there noted that the onfy significant question is whether, in fact, the complaining witness does give testimony at trial. Here both R and D testified. As Balles said (at 340-341), “in any event The defendant cannot regulate the state in its order of proof.’ ”

Defendant argues that the statements of R and D referred to in the testimony of otheT witnesses occurred too late in time to qualify as fresh complaints. In IPs case the statements were made some three years after the events complained of began, and four to six weeks after she left the Hummel house. This argument is also without merit.

As already noted, the fresh complaint rule permits “proof that the violated victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice.” State v. Balles, supra at 338.

In determining what constitutes a reasonable time in tins case it is important to recognize that both E and D were foster children undoT the control of defendant and his wife. Additionally, the jury obviously believed their testimony that defendant had threatened them with being put away in a children’s shelter if they spoke. Under these circumstances their continued silence, except with respect to statements to each other, while resident in the Hummel home is not unreasonable. Nor is a delay of four to six weeks before E informed her sister L of what had happened unreasonable. We cannot conclude, under evidence which the jury could find credible, that a 15-year-old girl, abused and threatened for some three years, would not reasonably require several weeks to overcome her residual fears. “[The] nearness of the complaint to the occurrence or the remoteness therefrom cannot affect its competency, but only its probative value.” State v. Schaeffer, 87 N. J. L. 663, 667 (E. & A. 1915). See also State v. Balles, supra, 47 N. J. at 341; Wigmore, Evidence (Chad. rev. 1972), § 1135. at 303 — 303.

We are satisfied that under the circumstances of this case all of the statements of the complaining witnesses, including those to each other, were made within a reasonable time after the events, and thus were competent. We also conclude that the information imparted by each of the girls to the other — D and E — constituted complaints within the fresh complaint rule.

Defendant contends that the trial court erred in failing to instruct -the jury at the time the fresh complaint testimony was admitted as to the limited purpose for which it was received. There is no such time requirement under Evid. R. 6. In its instructions to the jury at the end of the case the court adequately charged with respect to the limited nature of this testimony. In any event, there is no basis for assuming that any delay in giving this instruction tended to prejudice the jury against defendant. The fresh complaint testimony was clearly identified as hearsay, the source and circumstances of each statement being specified in the testimony of each witness. The victims themselves testified as to the events recounted in the hearsay statements. Under these circumstances we cannot conclude that, even prior to the instruction, the jury thought that the other witnesses had independent knowledge of the events complained of.

Defendant’s reliance on State v. Tirone, supra, is misplaced. The court there held that it was not plain error for the trial court to fail to give any instruction at all on the limited purposes for which fresh complaint evidence was admitted. Here the potential for prejudice is far less since a proper instruction was given.

Defendant asserts that the judge erred in allowing D to testify about a conversation she had with C. C, R’s younger sister, was not a complaining witness and the indictments here in no way referred to any acts by defendant involving her. D testified that C had told her that defendant had made her “play with him.”- The judge did not admit this hearsay statement of C under the fresh complaint rule, because C was not a victim of any of the offenses being tried. Rather, it was admitted under Evid. R. 55 concerning evidence of other crimes.

We have concluded that D’s testimony of what 0 told her was inadmissible either under the fresh complaint doctrine or under Evid. R. 55. It is not a complaint under that doctrine, irrespective of whether C was a complaining witness; for C’s testimony on the stand did not involve a claim that defendant made her “play with him.” It was thus inadmissible hearsay. Evid. R. 55 may not he utilized to admit hearsay otherwise incompetent as evidence. However, since C herself testified, we have concluded that the admission of D’s testimony as to the single conversation with C was harmless error.

Defendant objected to C’s testimony at the trial. We shall iherefore consider whether that evidence was properly permitted under Evid. R. 55.

Other crime evidence may be admitted under that rule if the evidence is designed “to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.” It is not necessary that there he a conviction for the proof of the other crime to be admitted. See State v. Seefeldt, 51 N. J. 472 (1968); State v. Mulero, 51 N. J. 224 (1968). Moreover, the specific instances mentioned in the rule where such proof may be allowed is “only illustrative. It is not meant to include; all situations when the other crime, evidence may be advanced as proof of a fact in issue.” Report of the State Rules of Court Review Commission (1972 ed., Annotations), at 214, 220 (hereafter Report).

The testimony of C, a foster home ward in defendant’s home during the same period that D and R were there, was admissible to show defendant’s state of mind and attitude as to sexual behavior with his wards. The criminal acts testified to by G were so related fir the crimes charged against defendant as to time, place and circumstance as to evidence a continuous state of mind with respect to the acts for which he was being tried. See State, v. Sinnott, 24 N. J. 408, 413-414 (1957). The fact that 0 was not mentioned as a victim in any indictment against defendant for the acts testified to is of no moment.

C’s testimony did not bear on defendant’s general predisposition towards sexual misconduct with young girls or the kind of wrongdoing with which he was charged. Rather, the circumstances here were so circumscribed, involving the treatment of foster children in defendant’s home while they resided there, that the other crime evidence given by C and real legal relevance to the issue of his sexual attitude and conduct towards such foster children. It is so intertwined in time, place and circumstance with the charges here involved as to be admissible under Evid. R. 55. See State v. Smith, 84 N. J. Super. 452 (App. Div. 1964); State v. Hinterberger, 41 N. J. Super. 597, 605 (App. Div. 1956), certif. den. 23 N. J. 57 (1956); State v. Kuske, 109 N. J. Super. 575 (App. Div. 1970), certif. den. 56 N. J. 246 (1970); McCormick, Handbook of the Law of Evidence (1972) , § 190, at 448-450. See also State v. Mulero, supra. The independent relevance of this testimony to the ease was such that it cannot be said to have been substantially outweighed by the risk of prejudice to defendant. See State v. Slocum, 130 N. J. Super. 358 (App. Div. 1974).

Defendant argues that under Evid. R. 6 the judge should have instructed the jury as to the limited purpose for which C’s testimony was being admitted. This is correct. Report, supra, at 223. Apart from C’s testimony there was ample evidence of defendant’s guilt to which the jury, as it did, could give credence. Under these circumstances the failure to give the instruction had no such real possibility for prejudice as to warrant a conclusion that, by reason thereof, the jury arrived at the wrong result. State v. Tirone, supra; State v. Macon, 57 N. J. 325 (1971); State v. Di Paglia, 64 N. J. 288 (1974). Compare State v. Bankston, 63 N. J. 263 (1973) .

Defendant contends that he was deprived of his constiintional right of confrontation and effective cross-examination by the court’s limitation of his attempts to impeach the credibility of E and D. We disagree.

We assume, for the purpose of determining the issue thus raised, that the contents of the caseworker’s social records as to these girls might be admissible as business records or otherwise and that their confidentiality would not have barred such admissibility.

The judge refused to allow defendant, through cross-examination or the social records of the girls, to show a prior fabrication as to what defendant refers to as a "serious matter,” previous instances of misconduct and disorderly behavior on their part, their instability of character and their being problem children in other foster homes. The development of this evidence, in conjunction with proof that defendant treated them strictly and required discipline, according to defendant, would have demonstrated motives of resentment from which an inference could be drawn that the girls were lying. The court also did not permit evidence that D had accused her uncle of an indecent obscene gesture, an accusation deemed to be somewhat similar to that in the present ease.

Such methods of impeachment are precluded by Evid. R. 22, which provides in part;

As affecting the credibility of a witness * * *
(c) evidence of traits of his character other than honesty or veracity or their opposites, shall be inadmissible;
(d) evidence of specific instances of his conduct, relevant only as tending to prove a trait of his character, shall be inadmissible.

Thus, defendant’s approach was improper both in the character traits it sought to establish and in the use of specific instances of conduct to establish these traits. Additionally, such evidence of D’s accusatory trait was not admissible. See State v. Mondrosch, 108 N. J. Super. 1, 4 (App. Div. 1969), certif. den. 55 N. J. 600 (1970).

The evidence sought to be adduced in no respect would show bias against this defendant or a motive to fabricate with respect to the charges against him. The bad- experiences of the girls in their prior foster homes or their developing a hatred thereby for any foster parent were not relevant to or probative of a prejudice against defendant or of a motive to charge defendant with these sexual offenses. The situation here is thus substantially different from that in Davis v. Alaska, 415 U. S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Douglas v. Alabama, 380 U. S. 415, 58 S. Ct. 1074, 13 L. Ed. 2d 934 (1965) or United States v. Harris, 501 F. 2d 1 (9 Cir. 1974), relied on by defendant.

The judge did not abuse his discretion in refusing to permit the line of inquiry sought by defendant, nor was defendant denied a fair trial or the right of confrontation by reason of such refusal. See State v. Petillo, 61 N. J. 165 (1972), cert. den, 410 U. S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973); State v. Pontery, 19 N. J. 457, 473 (1955); State v. Tirone, supra, 64 N. J. at 228; State v. Arbus, 54 N. J. Super. 76 (App. Div. 1959). Compare State v. Steele, 92 N. J. Super. 498 (App. Div. 1966).

The judge properly instructed the jury during his charge as to the State’s burden of proof and the definition of reasonable doubt. About one hour after retiring for deliberation the jury requested a copy of the instructions in Eris respect. The judge advised the jury that it could not have a copy but instead gave a supplemental instruction as to reasonable doubt. Defendant claims that the contents of the supplemental charge and its timing were such as to confuse the jury with respect to the State’s burden of proof and thus tainted the verdict. We have examined both the charge and the supplement and are satisfied that there is no merit to this claim. The judge was not required, as defendant contends, merely to repeat or have the court reporter repeat the part of its original charge dealing with the matter. See State v. Wilbely, 63 N. J. 420, 422 (1973); State v. Terry, 89 N. J. Super. 445 (App. Div. 1965).

We conclude that defendant had a fair trial in all respects. The judgments of convictions accordingly are affirmed.

      In view of the special facts here involved, we need not comment on the query posed in the Report, supra at 221, as to whether “readily” allowing other crime evidence in certain types of sexual offense cases is still a viable exception to the exclusionary principle of Evid. R. 55.


author: Pns Cukiam.

text:
    ROBERT F. BRADLEY, PLAINTIFF-RESPONDENT, v. JOHN RAPP AND/OR MARGARET RAPP, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 6, 1975
    Decided February 24, 1975.

      Before'Judges Loka, Handler and Tarleton.-

      Mr. J.ohn Rapp argued the cause pro se.

      Mr. Qonrad Koch argued the cause for plaintiff-respondent (Messrs. AccardÁ & Koch, attorneys).
   Pns Cukiam.

Defendant tenants appeal from a judgment for possession entered in the Essex County District Court. The judgment was based upon a determination that plaintiff landlord was within the exception of N. J. S. A. 2A :18-61.1 (L. 1974, c. 49).

On March 15, 1974 plaintiff purchased the premises at 29 Old Indian Road, West Orange. It is an 80-year-old, two-family home in a residential section, with two dwelling units. Defendants (mother and son) reside in one of the two apartments and another tenant resides in the other. Defendants are month-to-month tenants under an oral lease calling for a monthly rental of $175.

Plaintiff purchased the premises for.the express purpose of residing therein with his wife and five children. On April 16, 1974 plaintiff’s then attorney served defendants with a notice to quit as of June 1, 1974, a demand for possession and a notice of increase in rent to $450. Plaintiff (now unrepresented by counsel) accepted a tender of the $175 June rent. On June 26, 1974 plaintiff’s present attorney served defendants with a second notice to quit as of August 1, 1974 and a demand for possession. Defendants tendered the $.175 August rent which plaintiff refused to accept. Defendants did not vacate and on August 6, 1974 a summons and complaint were served.

The matter was heard in the county district court on August 20, 1974 and the trial judge entered a judgment for possession but ordered that issuance of the warrant for removal be stayed until September 1, 1974 with leave to apply for a further stay to October 1, 1974.

On appeal defendants contend that plaintiff’s failure to establish “good cause” and to specify the cause of termination under N. J. S. A. 2A:18—61.1 and 61.2 create a jurisdictional question warranting review and reversal. Plaintiff argues that as an "owner-occupant” he is excepted from the statute’s provisions.

We agree that the case is properly before us, cf. Marini v. Ireland, 56 N. J. 130 (1970); Carteret Properties v. Variety Donuts, Inc., 49 N. J. 116 (1967); Ivy Hill v. Handa, 121 N. J. Super. 366 (App. Div. 1972), and pass to the merits of the narrow question raised: whether plaintiff falls within the "owner-occupied” exception of N. J. S. A. 2A:18-61.1.

Assembly Bill No. 1586 was enacted on June 25, 1974 and provided that it shall take effect "immediately”; hence it governs the instant case.

The relevant portion of N. J. S. A. 2A:18-61.1 reads:

No lessee or tenant of the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the county district court or the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than owner-occupied premises with not more than two rental units or a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant, except upon establishment of one of the following grounds as good cause * * *. [emphasis supplied]

N. J. S. A. 2A:18-61.2 provides that the requisite notice “shall specify in detail the cause of the termination of the tenancy.” Plaintiff proceeded under N. J. S. A. 2A.18-53 (a) which requires no such specificity in the notice regarding hold-over tenants. The notice in issue did not specify any cause of termination and it is not suggested that any of the enumerated grounds of “good cause” (N. J. S. A. 2A: 18-61.1) exist.

It is not without significance that the statement accompanying this legislation refers to the absence of any statutory limitations upon the reasons a landlord may utilize to evict tenants from comfortable quarters where they have not created any problems. Recognizing that this has resulted in frequent unfair and arbitrary residential ousters and cit-mg the critical housing shortage, the act proposes to limit evictions to “reasonable grounds” and “suitable notice.”

In our review of the statute we are compelled to give primary regard to the fundamental purpose for which it was enacted. At the same time we should strive to avoid an anomalous, unreasonable, inconceivable or absurd result. New Jersey Builders v. Blair, 60 N. J. 330, 338 (1972); Union County Bd. of Freeholders v. Union County Park Comm’n, 41 N. J. 333, 341 (1964); Robson v. Rodriquez, 26 N. J. 517, 528 (1958); Sandler v. Springfield Tp. Bd. of Adjustment, 113 N. J. Super. 333, 345 (App. Div. 1971).

Our approach to this task is tempered by the realization that in drafting legislation it is all but impossible for the draftsman to anticipate all contingencies and all stiuations. As Chief Justice Weintraub aptly stated in New Capitol Bar & Grill Corp. v. Div. of Employment Security, 25 N. J. 155 (1957) :

Hence cases inevitably arise in which a literal application of the language used would lead to results incompatible with the legislative design. It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end “words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms.” [at 160]

We have considered the underlying background and objectives of this legislation and are satisfied that our construction should be governed by the “common sense of the situation,” Jersey City Chap. Prop. Owners v. City Council, 55 N. J. 86, 100 (1969), rather than “scholastic strictness.” Using this yardstick, “it is not the words but the internal sense of the act that controls.” San-Lan Builders, Inc. v. Baxendale, 28 N. J. 148, 155 (1958).

We are unable to envision any motivation for a legislative intent to prohibit an owner from invoking N. J. S. A. 2A :18-53 (a) to immediately reside in a newly acquired two-family home. We are satisfied the Legislature cannot reasonably be deemed to have intended that such a purchaser is precluded from doing so except upon permanently retiring the newly purchased premise from the rental housing market paragraph (h), or running the risk and vagaries of a not “unconscionable rent increase” paragraph (f), or waiting for a “good cause” situation to arise.

The incongruity of such a situation is further buttressed by the recognition that an owner already residing in a two-family home is excepted from N. J. S. A. 2A.18-61.1 and may oust a month-to-month tenant also residing therein pursuant to N. J. S. A. 2A:18-53(a) and in one month may occupy the entire premises, whereas, if defendants’ position is sustained herein plaintiff may not reside in one of the two dwelling units unless “good cause” is established.

In our view such a result is simply not consonant with equity or reason and we should reach the result probably intended by the draftsman had he anticipated the situation at hand. Dvorkin v. Dover Tp., 29 N. J. 303, 315 (1959); In re Summit and Elizabeth Trust Co., 111 N. J. Super. 154, 168 (App. Div. 1970). Accordingly, we conclude that one who purchases a two-family premises for the express purpose of immediately residing therein renders the premises “owner-occupied” within the meaning and intendment of that phrase as used in N. J. S. A. 2A:18-61.1.

In reaching this conclusion we perceive no subversion of the statutory objectives, since permitting plaintiff to invoke the notice provisions of N. J. S. A. 2A:18-53(a) and reside in one of two dwelling units of his newly purchased home cannot be deemed an arbitrary or unfair ouster of the tenant which this legislation commendably seeks to avoid. Rather the contrary appears.

Accordingly, the judgment of- possession is affirmed and the matter is remanded to the Essex County District Court for further proceedings not inconsistent with this opinion.


author: Pee Cueiam.

text:
    KENNETH A. GEWERTZ, PLAINTIFF-APPELLANT, v. THE JOINT LEGISLATIVE COMMITTEE ON ETHICAL STANDARDS AND WILLIAM M. LANNING, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted February 4, 1975
    Decided February 20, 1975.

      Before Judges Lynch, Allcorn and Furman.

      Mr. Joseph F. Lisa, attorney for appellant.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondents (Mr. Stephen Shillman, Assistant Attorney General, of counsel; Mr. Richard M. Conley, Deputy Attorney General, on the brief).

      Mr. William S. Greenberg, attorney for New Jersey Bar Association, amicus curiae.

   Pee Cueiam.

Plaintiff, a member of the General Assembly, appeals from a judgment in a prerogative writ action upholding defendant Joint Legislative Committee’s denial to him of access to its advisory opinions on ethical standards. Defendant Committee was established pursuant to the Conflicts of Interest Law (N. J. S. A. 52:13D-12 et seq.)

Senate Concurr. Resolu. 28 (1972) provides that defendant Joint Committee’s advisory opinions “shall not be made public except upon the direction of a majority of all the members of the Joint Committee or upon the request of the member seeking the advisorjr opinion.” Plaintiff does not attack the constitutionality of the concurrent resolution. As a member of the General Assembly he is subject to its rules of procedure (N. J. Const. (1947), Art. IV, § IV, par. 3), which are not reviewable by the judiciary except on constitutional grounds. In re Application of Lamb, 67 N. J. Super. 39 (App. Div. 1961), aff’d 34 N. J. 448 (1961).

Plaintiff nevertheless asserts a right of access to the advisory opinions under the Right to Know Law (N. J. S. A. 47:1A-1 et seq.) or by common law. The Eight to Know Law forecloses him by its own terms: “Except as otherwise provided * * * by any * * * resolution of either or both houses of the Legislature,” all records which are required by law to be made, maintained or filed by a governmental entity or agency of the State are public records under that enactment.

Irval Realty v. Bd. of Pub. Util. Comm’rs, 61 N. J. 366 (1972), holds that the common law right of access to public records was not superseded by the Eight to Know Law. In Irval plaintiffs in gas explosion cases were granted access to Board of Public Utility Commissioners reports, despite a board regulation exempting them from the Eight to Know Law. The test set in Irval is a personal or special interest, including hardship or prejudice.

Plaintiff contends that the advisory opinions would provide him with guidelines for his own conduct in avoiding-conflicts of interest. lie cites N. J. S. A. 52:13D-12(b) : “* * * persons serving in government should have the benefit of specific standards * * Although he asserts that the advisory opinions may benefit him also as a private businessman, he is a legislator dealing with a legislative committee and governed by the rules of the Legislature. He is barred by the concurrent resolution, which protects the confidentiality of the advisory opinions. Specifically, the concurrent resolution protects against the risk that, if an advisory opinion proscribes some activity or conduct and is published, members of the public or fellow legislators may assume that the legislator who sought the opinion engaged in fact in that activity or conduct.

The State Bar Association filed a brief amicus curiae recommending a compromise, that is, publication of defendant Joint Committee’s advisory opinions with deletion of the legislators’ names. In view of the concurrent resolution we lack authority to mandate such a compromise.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH GHAUL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted February 11, 1975
    Decided February 27, 1975.

      Before Judges Halpern, Crahay and Ackebmah.

      Mr. Stanley 0. Van Ness, Public Defender of New Jersey, attorney for appellant (Mr. Edward, Hannigan, Assistant Deputy Public Defender, of counsel, Mr. 'William L. Boug'hton, Jr., on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Richard J. Engelhardt, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant was convicted by a jury of unlawfully receiving a stolen vehicle, in violation of N. J. S. A. 2A:139-3. He appeals from the judgment of conviction.

The State’s proofs indicate that a locked car owned by William Absalom had been stolen. Police officer Robert Eurth testified that at about 3:25 a.m., on December 7, 1973, he stopped a slowly driven car, containing two men, that was weaving from one side of the road to the other. While talking to defendant, who had been driving the car, the passenger ran away. He detected an odor of alcohol on defendant’s breath and thought his driving was impaired. On questioning defendant it was ascertained that he had been driving without a license (it having been previously revoked). At first defendant said his passenger’s name was Johnny Johnson, but at police headquarters gave his name as being Raymond Winkelspecht.

A distillation of defendant’s testimony follows: He claimed he had been drinking all day with Winkelspecht, who offered to take him home. At about 2:30 a.m., Winkelspecht returned with a car that he assumed Winkelspecht owned and started to take him home. On the way defendant took over the driving of the car because Winkelspecht was driving too slowly. Winkelspecht was not produced as a witness.

Defendant argues the trial judge committed plain error in failing to instruct the jury that intoxication was a valid defense. We disagree. The high misdemeanor offense of receiving a stolen vehicle requires the State to prove a criminal intent, namely, receiving a vehicle “knowing it to have been stolen * * See State v. Bott, 53 N. J. 391 (1969). Such knowledge may be negated through voluntary intoxication. State v. Letter, 4 N. J. Misc. 395, 133 A. 46 (Sup. Ct. 1926), aff’d 104 N. J. L. 188 (E. & A. 1927); Annotation, “Voluntary Intoxication-Defense,” 8 A. L. R. 3d 1236 (1966). Therefore, a trial judge should charge on intoxication whether or not it is raised as a defense if the evidence warrants the issue be presented for jury determination. State v. Frankland, 51 N. J. 221 (1968).

We are satisfied the evidence presented herein did not warrant an intoxication charge. Defendant’s own testimony indicated he could think clearly. lie was able to describe the events that occurred without contending his memory was impaired. He had sufficient presence of mind to take over the driving and to lie to the police as to the true name of his passenger. Officer Furth opined that defendant’s driving was impaired, but that is a far cry from saying, or even inferring, that he was unable to form the criminal intent necessary to convict him of the crime charged.

In view of defendant’s failure to request a charge on intoxication, and the lack of proof indicating such a degree of intoxication that would warrant an acquittal, the trial judge properly refrained from charging on intoxication. See State v. O’Connor, 42 N. J. 502, 511 (1964), cert. den. 379 U. S. 916, 85 S. Ct. 268, 13 L. Ed. 2d 187 (1964). In any event, there was no plain error. State v. Macon, 57 N. J. 325, 337 (1971). It should also be noted that no exception was taken to the trial judge’s charge on circumstantial evidence as it related to criminal knowledge.

Finally, defendant contends the trial judge erred in refusing to charge that the jury could convict defendant of a lesser included offense, namely, the disorderly offense under N. J. S. A. 2A :170-38, which proscribes the unlawful “use” of a motor vehicle. The simple answer is that a lesser included offense need not be charged unless there is a rational basis in the evidence for the jury to find that defendant was not guilty of the higher offense charged. State v. Saulnier, 63 N. J. 199 (1973). In addition, the proofs required to convict under the statutes involved are completely different. They are separate and distinct offenses. There was no error in refusing to give the requested charge.

Affirmed.