text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN C. CUSICK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued October 18, 1971
    Decided October 22, 1971.

      Before Judges GoLDMAínsr, Collester and Mintz.

      Mr. Philip J. Blanda argued the cause for appellant (Messrs. Blanda and Blanda, attorneys).

      Mr. Edward Roy Rosen, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant appeals his conviction on an indictment charging him with carrying a weapon without the requisite permit, in violation of N. J. S. A. 2A :151— 41. We affirm.

At about 1 a.m. on September 16, 1968 Officer Moon of the Middletown Township Police Department observed a 1963 Chevrolet traveling on Route 36 at a high rate of speed. According to his testimony, he saw the car change lanes three times without signaling, change from the fast to the slow lane and cut in front of another vehicle, weave slightly, and ride the white line separating the lanes. He stopped the car, asked defendant to produce his driver’s license and registration, and found that the license had expired. Moon said he smelled a strong odor of alcohol on defendant’s breath; his speech was slurred, and he swayed from side to side while standing near his car. The officer then arrested defendant for driving while under the influence of alcohol (N. J. 8. A. 39 :A-50(a)), and also issued a summons for speeding (N. J. 8. A. 39:4-98).

At that moment Officer Mulvey arrived on the scene and, while he stayed with defendant, Moon searched the driver’s side of the car for unconsumed alcohol and found a revolver under the front seat, loaded with five shells. Moon testified that defendant was courteous and did not threaten him.

On September 12, 1969 defendant’s motion to suppress the evidence (revolver) because obtained without a search warrant was granted by the County Court judge. The State moved for a rehearing, and that motion was denied by the same judge after argument. The State then sought leave to appeal. We granted leave, reversed, and remanded the case for a full trial on the merits. State v. Cusick, 110 N. J. Super. 149 (1970). We said that although drunken driving is not a crime, it constitutes a serious traffic offense. (See State v. Emery, 27 N. J. 348, 353 (1958), denoting the offense as ^wasi-criminal.) Our flat holding in Cusióle was that is it not unconstitutional for a police officer to search for alcohol as an incident to an arrest for drunken driving, citing the dictum in State v. Boykins, 50 N. J. 73, 77 (1967).

Defendant’s subsequent motion for leave to appeal to the Supreme Court from our decision was denied. The trial followed, the jury found defendant guilty as charged, and a fine of $200 and costs was imposed. This appeal ensued.

Defendant first argues that his arrest for drunken driving, standing alone, did not authorize the warrantless search of his automobile for the purpose of ascertaining the existence of unconsumed alcohol. In effect, he asks us to reverse our earlier holding and disregard what was said there. The issue now raised was decided on the merits in the prior-appeal and, even though it be of constitutional dimension, may not be relitigated here. State v. Smith, 43 N. J. 67, 74 (1964), cert. den. 379 U. S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965). Our decision became the law of the case and was, of course, binding upon the trial court on remand. Deverman v. Stevens Builders, Inc., 35 N. J. Super. 300, 302 (App. Div. 1955).

It is next argued that it was error for the trial judge to prohibit defendant from introducing testimony to show that his possession of the weapon fell within the exception of N. J. S. A. 2A:151-42. Counsel in his opening had said that part of the defense would be that defendant’s actions came within the purview of the statute. The prosecutor objected and the trial judge, after hearing argument, ruled as a matter of law that evidence of the kind proposed was inadmissible under the circumstances of the case.

N. J. 8. A. 2A:151-41 makes it a crime for any person to carry or possess in any automobile a pistol or revolver without first having obtained a permit to carry it. N. J. S. A. 2A:151-42(a), on which defendant relies, recites that nothing contained in 2A:151-41 shall be construed “to prevent a person from keeping or carrying about his place of business, dwelling house, premises, or on any land possessed by him, any firearm * * The construction and applicability of the latter statute was a matter for judicial determination and not a question of fact for the jury to decide. Cf. State v. Provenzano, 34 N. J. 318 (1961); Hintenberger v. Garfield, 49 N. J. Super. 175 (Law Div. 1958), aff’d 52 N. J. Super. 526 (App. Div. 1958). The trial judge was correct, both in the ruling he made on defendant’s opening and when he read the statute to the jury and charged that its exceptions were not applicable.

The statutory exceptions clearly refer to an establishment, a structure or land, and not to a private automobile or mobile piece of equipment. All that defendant proposed to present was that as manager-proprietor of a business in Union City, Hudson County, which maintained a bank depository in Monmouth County, he would transport business receipts from Union City to Monmouth County. Fearing that he might be the victim of a robbery, he possessed and carried the gun in his car. Clearly, defendant’s place of business was not the automobile, but his Union City establishment. The car itself was not registered under a business name and it was used by defendant as his personal means of transportation.

Finally, defendant claims that the trial judge committed plain error in his charge to the jury with respect to intent to possess and in stating that the statutory exception above referred to did not apply. We have dealt with the latter claim. As for the former, the judge fully charged the elements of possession — intent to possess, ability to effectively control the item involved, and awareness or knowledge of what the item is — and gave the jury some practical illustrations. He said that intent could be found from the surrounding circumstances, and properly distinguished intent from motive. He also charged on actual and constructive possession. We have carefully examined the charge and find that it fully instructed the jury in conformance with the applicable principles of law.

Defendant admitted that he knowingly placed and carried the gun in his automobile. The trial judge was entirely correct in precluding testimony with respect to defendant’s reasons for having the gun with him. Those reasons went to motive, but had nothing to do with an intent to possess and control. It is not the purpose for which the gun is to be used or the reason for carrying it that is illegal, but its possession without a permit. See State v. Labato, 7 N. J. 137, 149-150 (1951).

The conviction is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JAMES LAWSON, PLAINTIFF-APPELLANT, v. STANLEY A. DAVIS, CLERK OF ELECTIONS FOR THE COUNTY OF MONMOUTH, AND WILLIAM A. RALPH, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 18, 1971
    Decided October 18, 1971
    Opinion filed October 21, 1971.

      Before Judges Coneord, Matthews and Fritz.

      Mr. Alexander D. Lehrer argued the cause for appellant {Messrs. Anschelewitz, Barr, Ansell & BoneTlo, attorneys).

      Mr. Benedict R. Nicosia argued the cause for respondent William A. Ralph {Messrs. Doremus, Russell, Fasano & Nicosia, attorneys).
   Per Curiam.

Plaintiff, a citizen of Keyport, challenges the validity of a petition for the direct nomination of William A. Ralph as an Independent Party candidate for mayor of Keyport at the forthcoming general election. The Law Division judge held the petition valid and refused plaintiff’s demand for the removal of the candidate’s name from the ballot.

The petition contained 270 purported signatures, as against a legal minimum requirement of 49. It was established at the hearing that some 32 of the signatures were of persons not registered voters, or were not genuine or were otherwise questionable, leaving some 238 unquestionably qualified signatures.

The gravamen of plaintiff’s position is that there was a violation of the requirement of N. J. 8. A. 19 :13—7 that at least five of the signatories on a nominating petition make an affidavit that they saw all the signatures made thereto and believe the signers to be qualified voters. The argument is that this failure voids the petition and renders it of no effect whatever.

Both sides concede that the requisite number of affiants, as a result of the recent decision in In re Smith v. Hayes, 59 N. J. 236 (1971), is one, not five. The petition contained 15 sheets with varying numbers of signatures on each. Plaintiff argues that the proofs show that the original affidavit on the petition, purporting to contain the oath of five signers that they saw all 270 persons sign, is untrue. This is a justified assertion on this record. After the making of the order to show cause respondent Ealph sought to remedy this defect by producing a corrective affidavit by 16 signatories to the effect that all of them saw all 270 sign. We doubt that any of the signatories literally intended to be making such an oath. In any event, the proofs demonstrate and respondent concedes that this affidavit is also not literally true.

Indeed, on the basis of the proofs, it is impossible to say with assurance that any particular signatory witnessed the signatures of any particular group of others. We believe the statute, properly construed (giving effect also to In re Smith, supra) means that each petition (or sheet if separately circulated) should contain an affidavit or affidavits clearly signifying which signatory has witnessed what signatures of any of the others, and that every signature should be specifically verified by the affidavit of at least one of the other signers who witnessed it. See In re Petition of Job, 111 N. J. Super. 170 (App. Div. 1970), certif. den. 57 N. J. 124 (1970).

However, we do not find the intent or purpose of the candidate or the carriers of the petition (or sheets) in this situation to have been fraudulent, as was the case in McCaskey v. Kirchoff, 56 N. J. Super. 178 (App. Div. 1959). True, the making of the verifications was patently careless and inattentive to the statutory requirements, and so was the procurement of some of the signatures. But there seems to be no good reason to frustrate the expressed desire of more than four times the necessary statutory minimum of Keyport citizens to have Ralph run as an Independent Party candidate for mayor. Here the underlying purpose of the verification procedure was attained, i. e., assurance of the genuineness and qualifications of a sufficient number of signatories, by the independent cheek of the signatures made pending these proceedings by the election clerk’s office, testified to in the Law Division and found credible by the trial judge. While we do not at all condone the failure faithfully to follow the statutory verification procedure, and particularly the procurement of the untrue “corrective” affidavit, nevertheless where far more than the requisite number of qualified signatories have in fact signed a petition, deficiencies not of a fraudulent character in the verification should not have the disenfranchising consequence of destroying the petition and striking the candidate’s name from the ballot. See Wene v. Meyner, 13 N. J. 185, 193, 196 (1953); Kilmurray v. Gilfert, 10 N. J. 435 (1952). As stated in Kilmurray

Election laws are to be liberally construed so as to effectuate their purpose, Carson v. Scully, 89 N. J. L. 458, 465 (Sup. Ct. 1916), affirmed, 90 N. J. L. 295 (E. & A. 1917). They should not be construed so as to deprive voters of their franchise or so as to render an election void for technical reasons, In re Stoebling, 16 N. J. Misc. 34 (Cir. Ct. 1938); Sharrock v. Keansburg, 15 N. J. Super. 11 (App. Div. 1951). [at 440]

Affirmed.


author: McGann, J. S. C.

text:
    IN THE MATTER OF THE ESTATE OF JULIA HENNING, DECEASED.
    Superior Court of New Jersey Chancery Division
    Decided October 15, 1971.

      Mr. Philip S. Garchman for plaintiff (Messrs. Garchman, Sochor & Garchman, attorneys).

      Mr. James Logan, Jr. for defendant.
   McGann, J. S. C.

On February 3, 1970 Julia Henning died leaving a last will dated January 13, 1968, wherein she appointed her nephew, Jacques Youssef Khoriaty, executor and guardian of her son. At the time of her death decedent was a resident of Antelias, Lebanon.

After probating the will in Lebanon, an exemplified copy of the same was admitted to probate in this court by an order dated August 13, 1971.

The only next of kin and heir at law of decedent was her son, Philip Ferris, who is disabled.

Before returning to her native country Mrs. Henning had lived in the United States for many years. In her business and legal affairs she was represented by John E. Queenan, Esquire, in whom apparently she had great confidence.

On December 6, 1967 decedent executed a deed of trust appointing Queenan as trustee. The trust res was made up of savings accounts and the balance due on a mortgage covering property formerly owned by her. At the time of her death the trust fund had an approximate value of $30,000 more or less.

In this order to show cause, the executor of decedent’s will seeks to have the funds held by Queenan, as trustee, turned over to him on the theory the trust "res” is an asset of the estate because the "trust agreement” was revoked in April 1968, and further urges that the language of decedent’s will appointed Jacques Khoriaty guardian of her disabled son Philip, as well as executor of her estate.

Defendant Queenan, in a verified answer to the order to show canse, alleges he held the moneys and assets of decedent under “a Trust Agreement” wherein he was to hold all her assets and pay the income to Julia Henning as requested by her, and upon her death to pay not more than the sum of $100 a month, or whatever lesser amount is earned, from the income of the trust fund to Philip Perris so long as he lives.

Queenan maintains he has been complying with the terms of the trust agreement. This claim is substantiated by the evidence.

The facts indicate that sometime in the Spring of 1968, Queenan received a call from Mrs. Henning while she was confined in a hospital in Antelias, Lebanon. At that time it appears Mrs. Henning had been talking with Khoriaty, and Queenan’s name came up somehow. Thereafter, according to Khoriaty, the settlor called Queenan and said: “I want you to send me my money.”

Thereafter a letter was typed, dated April 8, 1968 and purportedly signed by Julia Henning, asking Queenan to “take necessary steps for sending me all the money, and the deal wasn’t to put it in the bank.”

Queenan also received a call from the State Department concerning Julia Henning and the monies held by him.

Thereafter, in response, the trustee sent a letter to Mrs. Henning, enclosed in a letter addressed to the American Embassy in Beirut, Lebanon, with three checks in the total sum of $26,100.6?, with a request that the Embassy have someone from the Consulate deliver the checks to Mrs. Henning.

x\bout three weeks later the American Embassy wrote to the trustee returning the checks and indicating that Mrs. Henning had acted under the influence of her nephew “Jacques Khoriaty,” and closed by saying: “Mrs. Henning sends her best regards and asks you to continue looking after her interest.”

The letter from the Embassy returning the checks and asking Queenan to continue acting as her fiduciary was dated April 19, 1968. It is interesting to note that the last will and testament of the settlor was dated January 12, 1968.

It is claimed by the executor of decedent’s estate that the trust agreement was revoked by reason of Mrs. Henning’s communication in March 1968 and the letter to Queenan dated April 8, 1968.

There is no question that decedent had the right to revoke the inter vivos trust during her lifetime. Paragraph 4 of the deed of trust provides as follows:

The Settlor hereby reserves the right to terminate this trust or to modify or amend it at any time or from time to time, by an instrument in writing delivered to the said Trustee during the Settlor’s lifetime.

The letter of April 8, if it were written by Mrs. Henning (there is considerable doubt with respect to whether or not it was her own communication) would be sufficient to revoke the trust agreement. In fact, prior to that time there was some communication by telephone or cablegram, followed by a message from the American Embassy to Queenan which he considered as a basis for the forwarding of the trust res with letters of transmittal.

Consequently, when he sent a letter to decedent through the American Embassy on March 29, 1968, he acknowledged this fact. However, the evidence indicates that Mrs. Henning acted under the influence of her nephew Jacques Khoriaty to transfer her funds and revoke the trust. This is borne out by the language of the letter dated April 19, 1968 from the American vice-consul in which all of the funds were returned with the request that Mr. Queenan “continue looking after her interest.”

It is clear from the evidence surrounding the attempted recovation that it was never consummated and, at best, was inchoate in nature.

Therefore, there was no evidence to show that a revocation by the settlor was exercised during her lifetime.

In the leading case of Mayer v. Tucker, 102 N. J. Eq. 524 (E. & A. 1928), it was held:

If tlie right of revocation is not exercised during the lifetime of the donor or other person in whose favor it was reserved, the validity of the trust remains unaffected as though there never had been a reserved right of revocation.

The right to revoke a trust can only be exercised in the manner specified and only by the person to whom the power is given or reserved. Clark v. Freeman, 121 N. J. Eq. 35, 36 (Ch. 1936) citing other cases.

In this ease it was urged that the testatrix by her will indicated a desire to, and did by it, revoke the trust. The language of the deed of trust requires that the termination of the same be by “an instrument in writing delivered to the said Trustee during the Settlor’s lifetime.” The will could not, in the absence of language to the contrary in the deed of trust, be such an instrument in writing because it did not have any legal efficacy until after the death of the testatrix.

The exercise of a power to revoke a trust agreement should be consonant with the terms of the inter vivos trust document.

Restatement, Trusts 2d, § 330, comment (f) at 139, “Where method of revocation specified,” provides:

If tbe settlor reserves a power to revoke the trust only in a particular maimer or under particular circumstances, he can revoke the trust only in the manner ro under those circumstances.
* *
If the settlor reserves a power to revoke the trust by a transaction inter vivos, as, for example, by a notice to the trustee, he cannot revoke the trust by will. [Italics added]

The power can only be executed in the manner specified and by the person “to whom the power is given or the attempted revocation is void.” See Clark v. Freeman, supra.

Furthermore, from the evidence it is clear that if decedent had any such intention she subsequently changed her mind because the letter from the American Embassy directing Queenan to continue as trustee came after the execution of her last will and testament.

For the reasons stated, it appears the trust agreement was not revoked. A judgment will be allowed accordingly.

       As described in Schedule “A” of the trust agreement.

      The same three checks totaling $26,100.67 were returned.


author: Toscano, J. C. C.

text:
    CREDIT ALLIANCE CORPORATION, PLAINTIFF, v. INGRAM & SONS, INC., A NEW JERSEY CORPORATION, OZZIE INGRAM AND BERNICE INGRAM, HIS WIFE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 19, 1971.

      Messrs. Fox, Schackner, Neagle & Mastrangelo, attorneys for plaintiff.

      Mr. Sam Mailin, attorney for General Modular Development Corp.
   Toscano, J. C. C.

This matter was heard on the return of an order to show cause why the Sheriff of Monmouth County should not turn over the balance of a deposit made at a sheriff’s sale to the judgment creditor, after the successful bidder refused to complete the purchase pursuant to the conditions of sale it had signed.

The following facts are not in dispute. On May 13, 1971 plaintiff Credit Alliance Corp. was awarded judgment against defendant Ingram & Sons, Inc., in the sum of $7,063.53. Shortly thereafter a writ of execution was directed to the Sheriff of Monmouth County, who promptly levied on premises owned by the judgment debtors, known as •14 Bond Street, Freehold, New Jersey.

At the execution sale on June 7, 1971 a successful bid of $8,000 was offered by General Modular Development Corp. A deposit of $2800 was delivered to the sheriff and the conditions of sale were signed by the bidder.

Prior to the expiration of the time period for delivery of the deed and payment of the balance of the purchase price, General Modular Development Corp. reneged on its agreement and refused to take the deed for the property.

At a second sale held on August 9, 1971, there being no other bidders the property was struck off to Credit for $100, leaving a balance due and owing of $7,963.53 on the judgment.

The sheriff presently retains possession of $2,513.74, the balance of deposit money after deduction of his fee and expenses.

Plaintiffs application for an order directing the sheriff to turn over to it the balance of the deposit made by General Modular Development Corp. on account of the purchase of the premises at the sheriff’s sale must be granted in light of the ruling in Smith v. Cunningham, 69 N. J. Eq. 622 (Ch. 1905). The facts there were almost identical with those at hand. The contract in that case provided for (1) a deposit of 20% of the purchase price, (2) signing by the purchaser of the conditions of sale, (3) resale in the event of default by the purchaser, and (4) liability on the part of the purchaser for the difference in price should the resale result in a loss. The purchaser paid the deposit to the sheriff and then defaulted. The property was resold at less than the purchaser’s original bid. The creditor asked the court to order the sheriff to turn over the deposit moneys to him.

The court held that the resale did not rescind the first sale for all purposes, so that the original purchaser would be entitled to the return of the deposit. Although the contract provided for neither the forfeiture nor the return of the deposit, the court declared that the sheriff was both entitled and bound to hold the deposit as a credit against the purchaser’s liability for the loss upon the resale.

The only distinctive fact in Smith v. Cunningham was that the creditor was foreclosing on a mortgage rather than executing on a judgment. Since both the plaintiff in that case and the one in the instant case had an equitable interest in the property at the time of the original sale, it is immaterial that the latter was not initially a secured creditor.

Dor the foregoing reasons, plaintiff’s application is granted.


author: Yanoff, P. J. D. C.

text:
    LEONARD J. SCHLESINGER, PLAINTIFF, v. LAWRENCE BROWN, DEFENDANT.
    Essex County District Court
    Decided October 12, 1971.

      Mr. Louis J. Anmlone, attorney for plaintiff.

      Mr. Lawrence Brown pro se.

   Yanoff, P. J. D. C.

The narrow issue in this case is whether a landlord in a week-to-week tenancy may have relief by way of dispossess pursuant to the provisions of N. J. 8. A. 2A:18-53(a).

Defendant is a week-to-week tenant who was served with two weeks’ notice to vacate. There is no question that the form of notice is sufficient and that service was made in compliance with the requirements of the statute. The basic difficulty is that the District Court Act, N. J. 8. A. 2A:18-51 et seq., makes no provision for dispossess in holdover cases in tenancies of this kind. I therefore am constrained to hold in favor of the tenant for the reasons set forth hereafter.

At common law the landlord’s sole method of obtaining possession from a defaulting or holdover tenant was by action of ejectment. Den ex dem. Decker v. Adams, 12 N. J. L. 99 (Sup. Ct. 1830); Den ex dem. McEowen v. Drake, 14 N. J. L. 523 (Sup. Ct. 1835); Den v. Wade, 20 N. J. L. 291 (Sup. Ct. 1844).

Thus a landlord’s power to dispossess his tenant by summary proceedings is entirely the creation of statute. The first dispossess act in this state was L. 1847, p. 142, cited in Hopper and Broomhead ads. Chamberlain, 34 N. J. L. 220 (Sup. Ct. 1870).

23 N. J. Practice (LeWine, Landlord & Tenant Law), § 3231 at 486 (1962) states:

Summary dispossession proceedings are a special action created by statute for the purpose of enabling a landlord to recover from his tenant the possession of real estate speedily and easily. This action was intended to overcome the obstacles incident to ejectment whereby the tenant could resort to technical delays and withhold the possession of the premises for an indefinite period.

The sole purpose of the statute is to enable the landlord to recover possession in proper case and the resulting judgment is not res adjudicata. McWilliams v. King, 32 N. J. L. 21 (Sup. Ct. 1866); Hopper and Broomhead ads Chamberlain, supra; Van Vlaanderen Machine Co. v. Fox, 95 N. J. L. 40 (Sup. Ct. 1920); Academy Spires, Inc. v. Jones, 108 N. J. Super. 395 (Law Div. 1970); Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459, 462 (1961).

In the event the landlord wrongfully exercises the power to dispossess, the tenant’s remedy is by way of action against the landlord. Section 59 of the statute (N. J. S. A. 2A:18-59) explicitly provides that a landlord shall remain liable in a civil action for “unlawful proceedings.” Academy Spires, Inc. v. Jones, supra, at 400; Construction & Renting Corp. v. Stein, 6 N. J. Super. 239 (App. Div. 1950).

It has long been the rule that the District Court Act must be strictly followed if the landlord is to be given relief under it. The cases cited by the court in Marini v. Ireland, 56 N. J. 130 (1970), 137-138 make clear that the power of the County district court to dispossess is confined to the areas conferred upon it by the statute. Although that ease involved a nonpayment of rent situation, the court’s statement that

The jurisdictional issue, i. e., the statutory basis for removal, can be twice raised in a dispossess action. First, by motion directed at the complaint for failure to accurately allege the necessary facts with particularity.
Second, on trial for failure to adduce adequate proof to corroborate the allegations of the complaint, fat 138; emphasis added]

is applicable in the present context.

Examining the statute we find that the county district court’s power to remove in a holdover situation is limited. Section 56 of the statute {N. J. 8. A. BA :18-56) provides:

No judgment for possession in cases specified in paragraph “a” of Section 2A:18-53 of this title shall be ordered unless:
a. The tenancy, if a tenancy at will or from year to year, has been terminated by the giving of 3 months’ notice to quit, which notice shall be deemed to be sufficient; or
b. The tenancy, if a tenancy from month to month, has been terminated by the giving of 1 month’s notice to quit, which notice shall be deemed to be sufficient. * * *

Obviously, week-to-wcek tenancies are not comprehended within the statute. Obviously, also, if the tenancy be construed as one “at will,” which I doubt — see Grethowski v. Wojciechowski, 26 N. J. Super. 245, 248 (App. Div. 1943); Standard Realty Co. v. Gates, 99 N. J. Eq. 271, 276 (Ch. 1926) — two weeks’ notice does not satisfy the three-month requirement.

It is argued on behalf of the landlord that a periodic tenancy is terminated by the giving of notice equivalent to the period of the tenancy. This is probably the law. Steffens v. Earl, 40 N. J. L. 128, 134 (Sup. Ct. 1878); Doe on the Demise of Finlayson v. Bayley, 5 C. and P. 67 (1831); 23 N. J. Practice, supra, § 3203 at 469. However, mere termination of the tenancy does not entitle the landlord to the summary relief afforded by the dispossess proceeding. In order to exercise rights under the statute he must comply also with the jurisdictional prerequisites laid down by the District Court Act. One of the prerequisites is that he give notice as prescribed by the statute. See Standard Realty Co. v. Gates, supra; Tierney v. Tierney, 4 N. J. Misc. 241 (Sup. Ct. 1926); LeWine, New Jersey Landlord and Tenant Law (2d ed. 1942), § 53 at 123, carefully analyzes the differences among the various notices which a landlord must give a tenant in order to be entitled to possession, saying:

“Notice and demand for possession” refers to the statutory-notice and demand which must be served upon a tenant as a condition precedent to the institution of summary dispossession and unlawful detainer proceedings.

In Bhar Realty Corp. v. Becker, 49 N. J. Super. 585 (App. Div. 1958), the court said:

A “notice to quit” is required in order to terminate a tenancy whet the tenancy is at will, or from month to month or year to year. N. J. S. 2A:18-56 [citations omitted]. We emphasize the distinctions between the aforesaid “notice to quit” under N. J. S. 2A: 18-56 and the procedural requirement of a “demand * * * for delivery of possession” which is a statutory prerequisite for the institution of a summary action for possession under N. J. S. 2A :18-53.
The demand for possession must he distinguished from the notice to quit iohieh has for its purpose the termination of the tenancy. The purpose of the demand for possession is to give the tenant the opportunity to remove voluntarily when his term has expired. It is a condition precedent to the institution of the action. It must be served where the tenancy expires by its own terms and no notice to quit is required. It must also be served in cases in which a notice to quit is required to terminate the tenancy. In the last mentioned type of case, the demand for possession may be included in the notice to quit, or it may be separately served. 18 N. J. Practice District and Municipal Courts, § 1541, p. 111. * * *
This is not a dispossess action. We are therefore concerned only with the sufficiency of the “notice to quit.” * * * [at 588; emphasis added]

Notably, LeWine does not list week-to-week tenancies among those as to which summary dispossess may be maintained. 23 N. J. Practice, supra, §§ 3321-3326 at 509.

I have made diligent search for reported eases in which dispossess has been granted in week-to-week tenancy holdover situations. No such case has been cited by counsel and I have found none. Steffens v. Pari, supra, involved a month-to-month tenancy. Doe on the Demise of Finlayson v. Bayley, supra, was an action in ejectment.

This does not mean that the landlord is without remedy. Under our current rules, he may still maintain a possessory action at law. Terrill Manor, Inc. v. Kuckel, 94 N. J. Super. 25, 28 (App. Div. 1967).

The result is judgment for defendant.


author: Kolovsky, J. A. D.

text:
    IN RE: ADOPTION OF A CHILD BY M. W.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1971
    Decided October 19, 1971.

      Before Judges Lewis, Kolovskt and Halpeun.

      Mr. Michael 8. Bolear, of the Legal Aid Society of Mercer County, argued the cause for appellant.

      Mr. Ken R. Springer, Deputy Attorney General, argued the cause for respondent Bureau of Children’s Services (Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Plaintiff, a welfare recipient represented by an attorney designated by the Legal Aid Society of Mercer County, filed a complaint for the adoption of Gwendolyn, a 13-year-old child who had been in her custody for some 12)4 years. Because she was so represented, the clerk of the court waived payment of any filing fees. See R. 1:13-2.

Plaintiff has obtained the judicial relief she applied for; a judgment granting the adoption was entered on September 22, 1970.

Plaintiff’s dissatisfaction — hence this appeal — is with that part of the judgment as allows, as taxed costs to be paid by plaintiff, the sum of $240 to the Bureau of Children’s Services of the New Jersey Department of' Institutions and Agencies (Bureau). That sum, whose reasonableness is not disputed, represents the costs incurred by the Bureau in acting, pursuant to prior orders of the court (1) as the “approved agency” which made the investigation and report called for by N. J. S. A. 9:3-23, and (2) as the “next friend” which made the visits, investigations and report provided for by N. J. S. A. 9:3-25 and 26.

N. J. 8. A. 9:3-23 requires, except in circumstances not present here, that upon the filing of a complaint for adoption,

* * * the court by its order shall (a) declare that the child sought to be adopted shall be a ward of the court and that the custody of such child shall be subject to the further order of the court; (b) appoint, with due regard for the religious background of the child, an approved agency having its principal office in New Jersey to make an investigation and written report to the court concerning the circumstances under which the child was received into the home of the plaintiff, the status of the parents of the child, the potential fitness of the child for adoption, and the potential fitness of the plaintiff to adopt the child and to provide a home suitable for his rearing; (c) direct that the plaintiff shall assist to the fullest extent in the making of such investigation and report; and (d) fix a day for preliminary hearing * * *. [Emphasis added]

Tbe italicized phrase, “approved agency,” is defined by the statute, N. J. 8. A. 9:3-18:

The phrase “approved agency” means a legally constituted agency having its principal office within or without this State, which has been approved, pursuant to the provisions of this act, to place children in New Jersey for purposes of adoption.

The statute further provides in N. J. 8. A. 9:3-25 that if, upon completion of a preliminary hearing, the court is satisfied, among other things,

* * * (3) that the child is potentially fit for adoption; and (4) that the plaintiff has the potential fitness to adopt the child and to provide a home suitable for the rearing of the child, it shall fix a day for final hearing not less than one year from the date of the institution of the action and shall appoint, with due regard for the religious background of the child, an approved agency, having its principal office in New Jersey, as next friend; * * *. Except for good cause, the approved agency appointed as next friend shall be the agency which made the investigation and report pursuant to [W. J. S. A. 9:3-23].

Under N. J. 8. A. 9 :3—26, a next friend so appointed must,

A. * * * from time to time * * * visit the home of the plaintiff and * * * make such further inquiry as may be necessary to observe and determine the care being received by the child and the adjustment of the child and the plaintiff as members of a family.
B. At least fifteen days prior to the final hearing, * * *' file with the court a written report of its findings since the preliminary hearing, including a recommendation as to the adoption. * * *

Further, a next friend so appointed is

* * * a necessary party at the final hearing, * * * entitled to present testimony and to cross-examine witnesses, and * * * subject to examination with respect to its report and recommendations in the matter. [Tv. J. S. A. 9:3-27(B)]

Finally, N. J. S. A. 9:3-32 provides for reimbursement of the “approved agency” for the costs incurred by it in acting pursuant to orders of the court:

The costs of all proceedings pursuant to this act shall be borne by the plaintiff, including the costs incurred by an approved agency acting pursuant to an order or orders of the court. Unless otherwise paid or provided for, the costs of an approved agency shall be presented to and allowed by the court upon the entry of judgment. Whenever such costs are paid or allowed to an approved public agency, the moneys resulting therefrom shall be appropriated to the use of such approved public agency in the administration of this act.

Here the Bureau of Children’s Services submitted, at or about the time it filed its final report, a “Statement of Costs” reading as follows:

STATEMENT OE COSTS
Preliminary Hearing
Investigation $ 60.00
Report to Court 25.00
Final Hearing
Supervision costs $13.00 per month for 10 months supervision $130.00
Report to Court 25.00
Total expenses incurred $240.00
The amount indicated above represents the total costs incurred to date by the Bureau of Children’s Services.
Please make the check payable to the STATE OF NEW JERSEY and forward it to the Bureau of Children’s Services at 831 Parkway Avenue, Trenton, New Jersey.

The Bureau’s costs not having been theretofore paid, the trial court provided in the judgment of adoption, in accordance with what it “conceive [d] to be the mandatory nature of N. J. 8. A. 9 :3-32” for the allowance of those costs to the Bureau and the payment thereof by plaintiff. Tt rejected plaintiff’s contentions that

(1) In the case of an indigent plaintiff — where, as the court found here, the plaintiff’s “only source of income is from public funds devoted to assistance of the needy in om-direction or another” — the court has power, under the pertinent statutes and rule of court, to deny simh reimbursement to the approved agency, at least when the “approved agency” is a public agency; and, (2) — quoting from the point as set forth in plaintiff’s brief on appeal — “requiring a welfare recipient to pay to a State agency fees arising from the agency’s performance of services required by statute in connection with an adoption action brought by the recipient violates the plaintiff’s right to due process and equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.”

Plaintiff repeats the same arguments on appeal. We find them to be without merit.

N. J. 8. A. 9:3-32 mandates that the approved agency be allowed the costs incurred by it in making the court-ordered investigations and reports and that the judgment of adoption entered provide for payment thereof by plaintiff unless those costs have been theretofore “otherwise paid or provided for.” The statutory mandate applies irrespective of whether the approved agency is a private or a public agency. Express recognition of the right of a public agency to such allowance is embodied in the last sentence of N. J. 8. A. 9:3-32.

Plaintiff contends that a judicial power to deny any allowance to the “approved agency” is fairly to be implied from the opening phrases of the second and third sentences in N. J. 8. A. 9:3-32 and from B. 4:94-8(b). We perceive no substance in the contention.

Neither B. 4:94-8, which provides that an original and copy of the judgment of adoption shall be filed with the court and that “(b) If costs are allowed by the court to an approved agency, they shall be included in the judgment” nor the opening phrase of the second sentence of N. J. S. A. 9:3-32 evidences a legislative intent that the court should have a discretionary power to deny an approved agency reimbursement for its costs.

Both the quoted rule and the phrase “[ujnless otherwise paid or provided for,” which precedes the mandate in the second sentence of N. J. 8. A. 9 :3-32 that “the costs of an approved agency shall be presented to and allowed by the court upon the entry of judgment,” merely recognize that ordinarily, absent a dispute as to the reasonableness of the agency’s charges, the plaintiff in an adoption proceeding pays or arranges for payment of those charges before entry of judgment so that there is no need then- to provide for such payment in the judgment. See 19 N. J. Practice (Ackerson & Fulop, Skills and Methods), § 717 at 423 (1960). If such prior payment or arrangement therefor has not been made, then the statute and the rule call for inclusion of such allowance in the judgment.

Nor is there any merit in the suggestion that despite the statutory mandate that the approved agency is to be reimbursed for its costs, the use of the word “whenever” in the opening phrase of the third sentence of N. J. S. A. 9:3-32— “Whenever such costs are paid or allowed to an approved public agency”—implies that the court has power to deny costs in cases in which a public agency has acted as the approved agency. The quoted language merely directs the disposition to be made of the moneys received by the public agency whenever—in any case in which—the public agency has acted as an “approved agency” under the adoption act.

Plaintiff next argues that statutory and rule provisions authorizing a court to waive payment of specified fees in case a litigant is indigent should be construed to -include the power to waive or dispense with payment of the reimbursement sought by the Bureau. We find no justification for such an interpretation.

The statutory references are to sections of the Fees and Cost Act, N. J. S. A. 22A:1-1 et seq:

The payment of any fees to any court or clerk thereof may be waived or dispensed with by the court when a plaintiff, defendant, appellant, respondent, or other party, by reason of poverty, seeks relief therefrom. IN. J. S. A. 22A :l-7]
The collection of any fee provided for by this chapter may be waived in particular circumstances by general rule of the Supreme Court or by special order of the Supreme Court, or by an order of any court made pursuant to authority granted by a rule of the Supreme Court. [N. J. S. A. 22A:2-23]

It is immediately evident that neither section embodies grant of a power to deprive an approved agency, be it pub-lie or private, of the right granted it by N. J. S. A. 9:3-32 to be reimbursed for costs incurred by it in acting pursuant to court order. N. J. 8. A. 22A:l-7 refers only to fees payable “to any court or clerk thereof,” and N. J. 8. A. 22A:2—23 only to the fees in civil actions specifically provided for by Chapter 2 of Title 22.

Nor is such power to deprive the approved agency reimbursement to be found in the court rule to which plaintiff refers, R. 1:13-2. The rule, prior to its amendment effective September 13, 1971, was also limited to authority to waive “fees provided for by law which are payable to any court or clerk of court.” As amended, effective September 13, 1971, subsequent to the entry of the judgment herein, B. 1:13-2(a) now reads:

(a) Waiver oí Fees. Except when otherwise specifically provided by these rules, whenever any person by reason of poverty seeks relief from the payment of any fees provided for by law which are payable to any court or clerk of court or any public officer of this State, any court upon the verified application of such person, which application may be filed without fee, may in its discretion order the payment of such fees waived. In any case in which a person is represented by a legal aid society, an Office of Economic Opportunity legal services project, tlie Office of the Public Defender, or counsel assigned in accordance with these rules, all such fees and any charges of public officers of this State for service of process shall be waived without the necessity of a court order.

Although the first sentence of the amended rule speaks of waiver not only of “fees provided for by law which are payable to any court or clerk of court” but also of those payable to “any public officer of this State,” it is apparent from a reading of the entire amended rule that the italicized reference is only to such charges of public officers as are mentioned in the second sentence, “charges of public officers of this State for service of process.”

The amendment to Rule 1:13-2 to add “charges of public officers of this State for service of process” to the fees which may be waived in case the litigant is indigent was obviously adopted, following the decision in Boddie v. Connecticut, 401 U. S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), to insure that a litigant would not be denied access to our courts by reason of his financial inability to pay for such service of process.

The amendment goes no further than to insure an impecunious litigant access to the courts. It in nowise evidences an intent to impinge on the legislative prerogative to determine how much financial assistance shall be given to impoverished parents of infant children to meet the costs involved in their upbringing, a prerogative recognized in King v. Smith, 392 U. S. 309, 319, 334, 88 S. Ct. 2128, 2134, 2142, 20 L. Ed. 2d 1118 (1968); Dandridge v. Williams, 397 U. S. 471, 478, 90 S. Ct. 1153, 1158, 25 L. Ed. 2d 491 (1970), and Rosado v. Wyman, 397 U. S. 397, 408, 90 S. Ct. 1207, 1215-1216, 25 L. Ed. 2d 442 (1970).

It is Boddie v. Connecticut, supra, on which plaintiff relies in support of her contention that to provide in the judgment that she should pay the costs incurred by the Bureau in making its investigations and report deprives her of due process of the law and equal protection of the laws.

In Boddie, welfare recipients sought a declaratory judgment that their indigency entitled them to prosecute divorce actions without paying the court fees and costs for service of process called for by the Connecticut statute. Erom the undisputed allegations of their complaint it appeared that the plaintiffs

<• * * were unsuccessful in their attempt to bring their divorce actions in the Connecticut courts, simply by reason of their indigency. The clerk of the Superior Court returned their papers “on the ground that he could not accept them until entry fee had been paid.” * * * Subsequent efforts to obtain a judicial waiver of the fee requirement and to have the court effect service of process were to no avail. [91 8. Ct. at 783]

The Supreme Court concluded that

* * * given the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit the State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages. [91 S. Gt. at 7841

Boddie furnishes no support for plaintiff’s constitutional argument. Here, plaintiff has not been denied access to the courts, nor has she been, by reason of her indigency, in any way hindered or delayed in the prosecution of her action. On the contrary, by reason of her representation by a legal aid society, fees otherwise payable on the filing of a complaint for adoption were waived without a court order.

Grant of the adoption, the judicial relief sought, was not conditioned upon payment of the costs allowed to the Bureau. The judgment of adoption has been entered and is in full force and effect. It is of no constitutional moment that plaintiff will be required, if and when she acquires adequate assets, to pay the costs allowed by the judgment to the approved agency which made the investigation and reports called for by the adoption statute.

If relief from such legislatively mandated allowance is to be granted a welfare recipient, it must come from the* Legislature, not from the courts.

The judgment is affirmed, without costs.

      Based on the needs of her five natural children who live with her, plaintiff had been receiving welfare allotments under the Aid to Families with Dependent Children program, a program financed in substantial part by Federal funds. We are informed by plaintiff’s brief that the action for adoption was instituted so “that Gwendolyn might qualify for welfare assistance.” Following the entry of the judgment of adoption, the welfare allotment received by plaintiff was increased from $318 to $434 per month.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ULIOUS LEE GREEN AND JESSE GREEN, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1971
    Decided October 19, 1971.

      Before Judges Kilkenny, Labkecque and Lane.

      Mr. David P. Jacobs, Assistant Deputy Public Defender, argued the cause for appellants (Mr. Stanley O. Van Ness, Public Defender, attorney).

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

Kilkenny, P. J. A. D.

Defendant Ulious Green was found guilty by a jury of assault and battery on a police officer (N. J. S. A. 2A:90-4), carrying a dangerous knife (N. J. S. A. 2A:151-41(c)), and threatening life (N. J. 8. A. 2A:113-8). Defendant Jesse Green, who was tried at the same time, was found guilty of the first two charges and not guilty of the last. On February 25, 1970 Dlious was sentenced to New Jersey State Prison for terms of three to five years on each charge, all terms to run concurrently. Jesse was sentenced to Yardville Eeformatory for two concurrent indeterminate terms.

In their appeal from the judgments of conviction, defendants contend:

(1) The trial judge’s instruction to the jury with regard to the charge of carrying a dangerous Imife was erroneous (not raised below).

(2) The trial judge erred in not allowing defendants to testify as to whether or not the knives were a necessary tool in their employment.

(3) Defendant Jesse Green was unlawfully convicted of assault and battery on a police officer, under indictment 54-69. The verdict on that charge was improperly rendered and, therefore, all other verdicts rendered at the trial were thereby tainted.

(4) The judge’s charge on threatening to kill was erroneous (not raised below).

(5) Defendant Ulious Green’s sentence was illegal in that the judge considered prior arrests not followed by convictions in determining the sentence.

There was testimony and other evidence at the trial from which the jury could make the following findings:

On June 6, 1969 James Butler, a plain clothes security detective for Bamberger’s, observed defendants enter the department store and purchase two shopping bags Butler and another detective, Smith, watched from the balcony as defendants put merchandise into their bags. When the two men left the store without paying, the detective pursued them.

Outside the store Butler flagged down an “unmarked” Newark police car. There were three officers in the car. Officer Hagel was driving, Engler was in the front seat and Reid was in the back. The two store detectives got in the car and they quickly overtook the two defendants who were standing on the corner waiting for a light to change.

Officer Engler — in plain clothes — got out of the ear with his badge drawn. He approached defendants and said, “Stop. I’m a police officer, I want to talk to you.” Defendants immediately fled in opposite directions.

Engler, along with Detective Smith, pursued Jesse. As Engler reached him, that defendant turned and struck the officer in the mouth. Engler than took out his “slapper” (blackjack) and struck Jesse once or twice. He wrestled him to the ground but the handcuffs jammed and the officer needed assistance to get Jesse back to the car.

Officer Hagel apprehended defendant Ulious Green and had him handcuffed and in the car. Hagel was driving with Engler in the middle oí the front seat and Butler next to him. 'Reid was in the rear with the two prisoners. Jesse was bleeding. When ITlions saw this, he became enraged at Officer Engler. lie spat at the officer. When Engler turned around in his seat, Hlious leaned back, raised his feet and kicked him in the chest. The officers grabbed Ulious’s feet and attempted to subdue him. According to Engler, Ulious shouted that “he was going to kill me. He said that no matter how long he spent in jail when he gets out he’s going to kill me * * Engler also testified that Jesse said he was going to kill him.

At police headquarters defendants were searched and pocket knives were found in their possession. Defendant continued to threaten Engler while they were at the precinct. The knives were identified and received in evidence.

Both defendants testified. Jesse stated that he never struck Engler, but that when the officer caught him the officer immediately began to strike him with the “slapper.” He denied ever threatening Engler. Ulious also denied making the threats. He testified that when he saw Jesse he told him to press charges against Engler. Engler told him to “shut up” or he would “give him some.” Ulious challenged Engler saying that if he hit him, he would spit on the officer. Engler struck him with the “slapper” and Ulious spat. Engler then hit him a number of times. Ulious, handcuffed, put up his feet to ward off the blows.

After the usual summations, charge and submission to the jury, the jury returned its verdict. Defendants requested a poll. During the poll of the verdict of guilty as to Jesse Green for assault and battery on a police officer — the second poll — juror No. 8 made no response. The following colloquy took place:

THE COURT: What is your response?
JUROR NO. 8: No.
THE COURT: No what? That’s not your verdict?
JUROR NO. 8: No, it was not. Are we talking about the final verdict?
THE COURT: We are talking about tbe verdict that’s just been —
JUROR NO. 8: Excuse me. Wasn’t it decided this was unanimous?
THE CLERK: Yes.
THE COURT: I want to know how did you vote. Did you vote in favor of being guilty, Jesse Green, with reference to Indictment 53 of the 1969 Term?
JUROR NO. 8: This is before it became unanimous that the jury decided?
THE COURT: What is your vote? Do you vote in favor?
A JUROR: Now. Now.
JUROR NO. 8: It was yes to make it unanimous.
THE COURT: Whether it be to make it unanimous or not, did you vote to find Jesse Green guilty of assault and battery on a police officer?
JUROR NO. 8: Yes, yes.

Later the juror went and spoke with the trial judge. He told the defense attorney — who had moved for a new trial on the basis of the incident — and the prosecutor that “in view of what she told me I think that this woman ought to be interrogated by you and by Mr. Wolf to decide whether or not this .defendant had been proved guilty of the crime charged beyond a reasonable doubt.” During a hearing on the motion, the juror testified. She explained that she agreed with the guilty verdict, stating:

Yes. You see, my “no” came because I thought first you asked for a unanimous verdict and that was yes; then when the attorney said, “Poll the individual jurors,” I considered that to mean “Before the ultimate verdict how were you thinking?”

I

. The first question on appeal is this: Did the court err in its charge concerning possession of a dangerous knife?

N. J. S. A. 2A:151-41(c) provides in part that anyone-who has in his possession a “dagger, dirk, dangerous knife or knife as defined in chapter 5 of the laws of 1952 (C. 2A:151-62), stiletto * * * is guilty of a high misdemeanor.” (Emphasis added). The trial judge in his charge mentioned only the “dangerous knife.” He did not mention “dagger, dirk * * * stiletto,” words referrable to objects of the same class as “dangerous knife,” that is, sui generis. Gf. Gei-mmn v. Matñss, 55 N. J. 193, 220 (1970). He added that “dangerous knife” uses for its meaning “its common, everyday accepted connotation.” He stated that it was for the jury to decide whether the State had proven that defendants had possession of a dangerous knife. The knives found in defendants’ possession were received in evidence as exhibits and submitted to the jury for inspection. No requests to charge were made on this issue, nor were any objections made to this portion of the charge, as given.

Defendants contend that “dangerous knife” has a meaning other than its ordinary meaning, and that pocket knives cannot be included therein. They also maintain that no sufficient standard for a determination was supplied since the whole section of the statute was not read.

The determination of what is a “dangerous knife” was properly left for the jury. State v. Horton, 98 N. J. Super. 258 (App. Div. 1967), certif. den. 51 N. J. 393 (1968). Cf. Black’s Law Dictionary (4th ed. 1951) 471. In Horton the defendant attacked the statute as unconstitutional on the ground that the term “dangerous” was too vague. The knife in that case was a folding pocket knife with a 4)4" blade, and was 9" long when opened. This court stated that when the term is viewed in the context of the entire statute it is obvious that the statute contemplates “a knife dangerous to life or human safety; one by the use of which a fatal wound may probably or possibly be given.” Id. 98 N. J. Super. at 261. The trial judge had read the pertinent sections of the statute and the jury had the knife in front of them. It was for them to determine whether under the circumstances the knife was dangerous.

Defendants cite People v. Forrest, 67 Cal. 2d 478, 62 Cal. Rptr. 766, 432 P. 2d 374 (Sup. Ct. 1967). That case is not on point. The court there was called upon to determine whether an oversized pen knife was a “dagger or dirk.” Since the blade did not lock in place the majority held that it was not.

Nor is People v. Cricuoli, 157 App. Div. 201, 141 N. Y. S. 855 (App. Div. 1913), very strong authority for their contention. In that case the defendant had a razor in his possession. The statute had at the time of the offense proscribed “dagger, dirk, and dangerous knife.” Subsequently, but prior to trial, the statute was amended to include razors, stilettos, etc. The trial court had charged the new statute. The appellate court reversed. They found that the new inclusion showed a legislative intent that razors were not “dangerous knives.” Moreover, the charge of the new statute required a reversal.

The proscription of N. J. 8. A. 2A:151-41 first appeared in New Jersey in L. 1924, c. 137:

* * * Any person who shall carry any * * * dagger, dirk, dangerous knife, stiletto * * *. [Emphasis added]

In L. 1966, c. 60, this section was redefined and expanded:

* « * razor blades imbedded in wood slivers, daggers, dirk, dangerous knife or knife as defined in chapter 5 of the laws of 1952 ( O. 2A :151— 62), stiletto * * * [Emphasis added]

The statute does not intend to catalogue all the weapons but merely lists under generic terms the common designation of those prohibited. State v. Witcher, 58 N. J. Super. 464 (App. Div. 1959). There is nothing which would indicate that the. Legislature intended “dangerous knife” to mean other than its connotation in everyday parlance — a knife which could be used by the possessor as a weapon. There is nothing which would have led the jury to conclude that the knife must be other than one “dangerous to life or human safety.”

The trial judge should have read the whole statute to the jury, especially the list of other dangerous weapons, or should have elaborated more fully on the meaning of “dangerous knife” by giving some guidelines or standards to the jury for reaching a proper conclusion. But such failure did not amount to “plain error,” B. 2:10-2, which defendants were required to demonstrate where, as here, no objection was made to the charge and no request for further instruction was submitted.

No argument is made that the knives in issue were not within the rule expounded in State v. Horton, supra.

II

The next question to be answered is, Did the court err in refusing to permit defendants to testify that the knives were necessary for their work?

The determination of whether a knife is dangerous is dependent upon consideration of many factors. One of these is the instrument itself. But this cannot be taken alone; it must be viewed in light of all the circumstances, including its concealment. The fact that the instrument has been used in some lawful fashion at some other time is irrelevant to the determination. The “concealment” of the weapon at the time of the incident constitutes an important factor of the offense, rather than its mere possession at some other time and place for a lawful purpose.

III

Did the confusion of juror No. 8 and the questioning by the trial judge mandate a new trial? This is the third question raised by defendants in their appeal.

In Solar v. United States, 86 A. 2d 538 (D. C. Mun. Ct. App. 1952), a similar occurrence had taken place. There, however, the trial judge had entered the judgment of guilty and had never questioned the juror. In the instant case (although the inquiry may have been initiated by the juror or by the motion) a complete inquiry was made in accord with State v. Schmelz, 17 N. J. 227 (1955). It is clear from the final discussion that the juror concurred in the final verdict and was merely confused during the poll. Defendants were not prejudiced.

IV

Did the trial judge err in his charge on threatening to kill? Our conclusion is that there was no reversible error in this aspect of the ease.

As conceded by defendants in their supplemental brief, this court held in State v. Schultheis, 113 N. J. Super. 11 (App. Div. 1971), that intent to carry out the threat is not an element of N. J. S. A. 3A:113-8. That case also states, “It is necessary only that the threats impart the expectation of bodily harm or death, thereby inducing fear and apprehension in the person threatened.” Id. at 17, citing State v. Lizotte, 356 A. 2d 439 (Me. Sup. Jud. Ct. 1969). In Lizotte the court specifically held:

It matters not whether the defendant had or had not the intention to carry out the threat. The essence of an oral threat is that it is a verbal act and if that act is of such a nature as to convey menace to an ordinary hearer, the statute is violated. No more does it matter whether or to what degree the threat engenders fear or intimidation in the intended victim. Some men are braver than others and less easily intimidated, [at 442]

This is a sound rationale. Since Officer Engler’s actual reaction was irrelevant there was no error in excluding testimony concerning it.

V

The final question for determination is, Did the court err in considering in a presentence report information concerning “arrests which were not followed by conviction?” There is an indication that the trial judge “considered” these arrests in fixing Jesse Green’s sentence. There is no evidence that the sentence was influenced thereby. A presentenee report is submitted to the sentencing judge in order to give him as clear a picture of defendant as is possible so that a proper sentence may be fixed. Williams v. People of New York, 337 U. S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). Such reports are also “intended to benefit the individual offender and lessen the severity of the penal laws. They were incident to the penological approach which sought, and still seeks, to tailor the sentence to the background and present circumstances of the offender along with the nature of his offense.” State v. Kunz, 55 N. J. 128, 132 (1969). The judge can be aided only by being given as complete a picture as possible so long as the picture is accurate. There is no contention here that it is not. Compare State v. Pohlable, 61 N. J. Super. 242 (App. Div. 1960). Nor is there any indication that the judge was misled, mistook arrest for conviction, or this defendant was prejudiced in being given an indeterminate term. Cf. Townsend v. Burke, 334 U. S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948).

While a sentencing judge may “consider” the recital in a presentence report which refers to previous “arrests” which did not result in “convictions,” under no circumstances should the mere fact of an “arrest” influence the imposition of sentence, since the most innocent person may be arrested. We are satisfied that in the instant case the concurrent terms meted out were not made greater by reason of the notation of arrests, especially in light of the record of convictions.

We find no valid basis for a reversal of the judgments. Accordingly, the judgments of conviction are affirmed.


author: Halpern, J. A. D.

text:
    TOWN OF KEARNY, PLAINTIFF-RESPONDENT, v. MODERN TRANSPORTATION CO. AND ANTHONY MIELE, JR., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 13, 1971
    Decided October 28, 1971.

      Before Judges Lewis, Kolovsicy and Halpekn.

      Mr. Julius B. Poppinga argued the cause for appellants (Messrs. McCarter & English, attorneys; Mr. Joseph Irenas and Mr. John Drosdick, on the brief).

      Mr. Lawrence P. Brady, Jr. argued the cause for respondent.
   The opinion of the court was delivered by

Halpern, J. A. D.

Appellants were convicted in the Kearny Municipal Court of using the premises at 75 Jacobus Avenue, in Kearny, as a tank storage farm for human sewage, without first obtaining a certificate of occupancy. On their appeal to the Hudson County Court, after a trial de novo on the record below, they were again convicted of the same offense. They appeal from the judgement of conviction entered in the County Court.

The complaint, as amended, charged the appellants

* * * did on the 8th day of December, 1969, * * * at 75 Jacobus Avenue in the Town of Kearny, County of Hudson, and the State of New Jersey, violate [Article XIII] section 4 of an Ordinance of the Town of Kearny, adopted December 29, 1952 and the amendments thereof and supplements thereto, entitled “Zoning Ordinance of the Town of Kearny” and which section provides “It shall be unlawful to use or permit the use of any building or premises or part thereof, hereafter erected or converted or altered from one class to another class wholly or partly, in its use or structure, until a certificate of occupancy shall have been issued by the Building Inspector,” in that at the time and place aforesaid on or about December 8th, 1969 the defendant did use the premises at 75 Jacobus Avenue after said premises had been altered and changed from one class to another class in its use, without first having obtained a certificate of occupancy from the Building Inspector.

The undisputed testimony indicates that Modern Transportation Co. took possession of the premises in October 1968, obtained title thereto on June 12, 1969 and has since been in possession thereof. The premises are located in an M-2 District, which is designated as a general industrial district wherein “any building or premises may be used for any lawful purpose * * In 1966 the premises had been used as a tank storage farm for storing tallow, which was a permitted use. On December 8, 1969, without obtaining a certificate of occupancy, appellants used the premises as a tank storage farm for human sewage, which was also a permitted use.

Generally speaking, a tank storage farm is a place where liquids are stored in tanks, and treated if required, pending transshipment. The same method of storing and shipping is used for both tallow and human waste storage. Admittedly, some structural repairs or alterations were made to the building when the change in use took place, but it is of no consequence to our decision since it is not charged that a building permit was required for such repairs or alterations.

Respondent contends that appellants violated article XIII, section 4 of the zoning ordinance because they used the premises “after it had been altered and changed from one class to another class in its use, without first having obtained a certificate of occupancy.” It argues that a reasonable interpretation of the ordinance requires the issuance of a certificate of occupancy in order to protect the public health and welfare by ensuring compliance with the zoning ordinance, as well as fire, health and other applicable regulations. Appellants contend the ordinance does not require a certificate of occupancy where there has been a change of a permitted use within the same district. They argue that a change of class in use or structure means a change from one district classification to another rather than a change within a single such classification.

Unquestionably, a municipality has the power to require a certificate of occupancy when premises are changed to a different but permitted use, but the intent to do so must be clearly set forth in the ordinance. Honigfeld v. Byrnes, 14 N. J. 600, 609 (1954); J. D. Land Corp. v. Allen, 114 N. J. Super. 503, 510 (App. Div. 1971); 2 Anderson, American Law of Zoning, § 13.03 (1968). This is especially true when the issue is presented in a gttosi-criminali proceeding. Such ordinances must be clear and unambiguous so that men of ordinary intellect need not guess at their meaning. The standard has been clearly set forth in Maplewood v. Tannenhaus, 64 N. J. Super. 80 (App. Div. 1960), certif. den. 34 N. J. 325 (1961), wherein this court, in reversing a conviction under a zoning ordinance for alleged improper storage of material on property, said:

Penal and restrictive laws and ordinances must be strictly construed. All doubts as to their applicability must be resolved in favor of a defendant charged with violation thereof. It is offensive to fundamental concepts of justice and violative of due process of law, as a matter of substance to impose sanctions for violations of laws, whose language is doubtful, vague, and uncertain. Zoning limitations on the use of private property should be clearly and expressly imposed, and should not be left to interference. Hrycenko v. Board of Adjustment, Elizabeth, 27 N. J. Super. 376, 379 (App. Div. 1953). As stated in Jantausch v. Borough of Verona, 41 N. J. Super. 89, 104 (Law Div. 1956), affirmed 24 N. J. 326 (1957) :
“* * * the legislative power must be exercised by the municipality itself; it may not ask the courts to write a better or a different ordinance. And it should speak clearly * * * especially in view of the predicament of the citizen who seeks in good faith to utilize his property.”

See also, Schack v. Trimble, 48 N. J. Super. 45, 53 (App. Div. 1957), affirmed 28 N. J. 40, 54 (1958). [at 89].

Article XIII, section 4 does not clearly and specifically require appellants to obtain a certificate of occupancy under the facts and circumstances existing in this case. It would require a person with a legal background to examine the entire ordinance, and then by inference spell out the intent of the drafters of the ordinance. The language used in requiring a certificate of occupancy for premises “altered from one class to another class wholly ■ or partly, in its use or structure” is ambiguous to say the least. Appellants’ construction thereof, that the premises were never altered from one class to another class because the word “class” refers to “class of district,” is as logical as respondent’s construction that the word “class” refers to “class of use.” The term “class” is not defined in the ordinance.

Since we are dealing with a gwim-criminal proceeding where proof of guilt must be established beyond a reasonable doubt, we resolve the doubt in appellants’ favor and reverse. See State on Complaint of Mallet v. Loux, 76 N. J. Super. 409, 414 (App. Div. 1962). In so doing however, we express no view as to whether the building inspector was legally bound to issue a certificate of occupancy had it been applied for when the change in use occurred, or what effect the amended ordinance will have on the future use of the premises, or whether appellants had a prior nonconforming use.

We were advised at oral argument that a civil suit is pending between the parties wherein the last-mentioned issues are to be tried. Such issues are better left for determination in that suit where the trial court will have the benefit of the administrative record below and appropriate injunctive or other relief is obtainable. A gwast-criminal proceeding is a poor vehicle for a meaningful determination of these issues since only a penalty may be imposed. See 3 Ander'Son, American Law of Zoning § 25.01 (1968).

Appellants’ convictions are reversed.


author: Lane, J. A. D.

text:
    PHILIP CAMARCO, JR., A CITIZEN AND RESIDENT OF NEW JERSEY, AND RUTH SEGLIN, A CITIZEN AND RESIDENT OF THE CITY OF ORANGE, PLAINTIFFS-APPELLANTS, v. CITY OF ORANGE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, GENNARO D’ANGELIS, IN HIS CAPACITY AS DIRECTOR OF THE POLICE DEPARTMENT OF THE CITY OF ORANGE, JOSEPH MAGRINO, IN HIS CAPACITY AS CORPORATION COUNSEL OF THE CITY OF ORANGE, AND THOMAS J. FREDA, IN HIS CAPACITY AS CLERK OF THE MUNICIPAL COURT OF THE CITY OF ORANGE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 6, 1971
    Decided October 18, 1971.

      Before Judges Kilkenny, Labeecque and Lane.

      Mr. Joseph Lunin argued the cause for appellants {Mr. Mitchell MelniTcof, attorney; Mr. Lunin, of counsel and on the brief).

      Mr. Stanley L. Wang argued the cause for respondents.
   The opinion of the court was delivered by

Lane, J. A. D.

Plaintiffs sought a declaratory judgment that an ordinance of the City of Orange amended October 7, 1969, prohibiting loitering under certain conditions was “illegal and unconstitutional and in violation of the Constitutions of the United States and of New Jersey.” On cross-motions for summary judgment the trial court entered judgment dismissing the complaint. The judgment was based upon a written opinion which construed the ordinance as providing that an offense was committed under its terms only when the offender was engaging in the conduct prohibited in section 2 and refused to move along after being requested to do so by a police officer. Plaintiffs appeal.

The procedural history is set forth in the opinion of the trial court, 111 N. J. Super. 400, and will not be repeated. Defendants do not appeal from the holding that plaintiffs have standing to bring the action.

The pertinent portions of the ordinance are:

SECTION 1. Definitions. As used in this Section.
(a) “Loitering” shall mean remaining idle in essentially one location and shall include the concepts of spending time idly loafing or walking about aimlessly, and shall also include the coloquial [sic] expression “hanging around.”
SECTION 2. Certain Types of Loitering Prohibited.
No person shall loiter in a public place in such manner as to:
(a) Create or cause to be created a danger of a breach of the peace.
(b) Create or cause to be created any disturbance or annoyance to the comfort and repose of any person.
(c) Obstruct the free passage of pedestrians or vehicles.
(d) Obstruct, molest, or interfere with any person lawfully in any public place as defined in Section 1 (b). This paragraph shall include the making of unsolicited remarks of an offensive, disgusting or insulting nature or which are calculated to annoy or disturb the person to, or in whose hearing, they are made.
SECTION 3. Discretion of Police Officer.
Whenever any police officer shall, in the exex’cise of reasonable judgment, decide that the presence of any person in any public place is causing or is likely to cause any of the conditions enumerated in Section 2, he may, if he deems it necessary for the preservation of the public peace and safety, order that person to leave that place. Any person who shall refuse to leave after being ordered to do so by a police officer shall be guilty of a violation of this Section.

Plaintiffs argue that the ordinance fails to sufficiently define the proscribed conduct, that it is so broad and encompassing as to impair the freedoms of speech and expression, and that it grants excessive decision-making power to police to determine the criminality of conduct.

The municipality has the right to regulate the use of its streets and other public facilities to assure safety and convenience of citizens in their use. Cf. Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965). An ordinance which results in restriction of movement must contain standards in order to be reasonable and prevent arbitrary enforcement. State v. Caez, 81 N. J. Super. 315, 319 (App. Div. 1963).

Even though a statute [or ordinance] may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of [the] Court to so construe the statute [or ordinance] as to render it constitutional if it is reasonably susceptible to such construction. [State v. Profaci, 56 N. J. 346, 350 (1970)]

See also United States v. Harriss, 347 U. S. 612, 618, 74 S. Ct. 808, 812, 98 L. Ed. 989, 996-997; Screws v. United States, 325 U. S. 91, 98, 65 S. Ct. 1031, 1033, 89 L. Ed. 1495, 1500 (1945); Adams Newark Theatre Co. v. Newark, 22 N. J. 472, 478 (1956), aff'd 354 U. S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1957); Woodhouse v. Woodhouse, 17 N. J. 409 (1955); Silco Auto. Vending Co. v. Puma, 105 N. J. Super. 72, 92 (Law Div. 1969).

If the sole act of loitering were proscribed by the ordinance, it would be invalid. State v. Caez, 81 N. J. Super. 315, supra; People v. Diaz, 4 N. Y. 2d 469, 176 N. Y. S. 2d 313, 151 N. E. 2d 871 (Ct. App. 1958); Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E. 2d 666 (Sup. Jud. Ct. 1950); City of Akron v. Effland, 112 Ohio App. 15, 174 N. E. 2d 285 (Ct. App. 1960). The ordinance under review, however, only proscribes loitering which brings about the conditions enumerated in section 2.

Section 2(a) proscribes loitering which causes “a danger of a breach of the peace.”

Restatement of Torts 2d (1965), § 116, at 192, defines breach of the peace as “a public offense done by violence, or one causing or likely to cause an immediate disturbance of public order.”

Black’s Law Dictionary (rev. 4th ed. 1968) defines breach of the peace as:

A violation or disturbance of the public tranquillity and order. The offense of breaking or disturbing tlie public peace by any riotous, forcible, or unlawful proceeding, fcit. omit.] “Breach of the peace” is a generic term [cit. omit.] and includes all violations of public peace or order and acts tending to a disturbance thereof, [cit. omit.]. One who commits a breach of the peace is guilty of disorderly conduct, but not all disorderly conduct is necessarily a “breach of the peace.” [cit. omit.] [at 236]

In Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), defendants were Jehovah’s Witnesses who had been convicted of a violation of a statute proscribing solicitation of contributions and of the common law offense of inciting a breach of the peace. Justice Roberts for the Supreme Court held that the statute in question, as construed and applied, violated the due process clause of the Fourteenth Amendment and that the facts were not sufficient to support a conviction of inciting a breach of the peace. In deciding on the latter issue, Justice Roberts discussed the definition of “breach of the peace.” He said:

The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. * * * When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. * * * [310 V. S. at 308, 60 S. Ct. at 905]
:Js * *******
* * * One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. [Id., at 309-310, 60 S. Ct. at 906]

Section 2(a) proscribes only such loitering conduct as clearly will cause an immediate, actual, physical violent reaction from any person, which violent reaction will cause a threat to the peace and order of the public. See the following eases construing provisions of the Disorderly Persons Act, N. J. 8. A. 2A:170-1 et seq.: State v. Profaci, 56 N. J. 346, supra; State v. Smith, 46 N. J. 510, cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966); State v. Morgulis, 110 N. J. Super. 454 (App. Div. 1970); State v. Besson, 110 N. J. Super. 528 (App. Div. 1970); State v. Zito, 103 N. J. Super. 552 (App. Div. 1968), aff'd 54 N. J. 206 (1969).

Section 2(b) proscribes loitering which creates “any disturbance or annoyance to the comfort or repose of any person.” This language is very similar to the language in N. J. S. A. 2A :170-28, “any person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly * * *.” The validity of that provision has been upheld as not being void for vagueness. State v. Smith, 46 N. J. 510, supra.

In Chaplinsky v. New Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), defendant was convicted under a New Hampshire statute which provided that:

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation. [315 V. S. at 569, 62 S. Ct. at 768]

In upholding the constitutionality of the statute, Justice Murphy said:

On the authority of its earlier decisions, the state court declared that the statute’s purpose was to preserve the public peace, no words being “forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” It was further said: “The word ‘offensive’ is not to he defined in terms of what a particular addressee thinks. * * * The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. * * * The English language has a number of words and expressions which by general consent are ‘fighting words’ when said without a disarming smile. * * * Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can he taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. * * * The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker—including ‘classical fighting wTords’, words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats. [Id. at 573, 62 S. Ct. at 770]

In In re B. N., 99 N. J. Super. 30 (App. Div. 1968), the court held valid an ordinance proscribing loud, offensive, disorderly, threatening, abusive, or insulting language and offensive, disorderly, threatening, abusive or insulting manner. Judge Labrecque stated:

We are satisfied that the conduct here intended to be prohibited by the ordinance is not fairly susceptible of definition in other than the general language here used. The actions prohibited are such as would usually be considered as having a direct tendency to cause acts of violence by the persons to whom addressed. * * * [at 35-36]

Section 2(b) proscribes loitering which will so disturb a person as to cause such person to react immediately in such a way as to threaten by physical violence the peace and order of the public. Thus the ordinance differs from that before the court in Coates v. Cincinnati, 402 U. S. 611, 91 8. Ct. 1686, 29 L. Ed. 2d 214 (1971).

Section 2(c) proscribes loitering which obstructs the free passage of pedestrians or vehicles. There is nothing vague about the conduct proscribed by this portion of the ordinance. Cameron v. Johnson, 390 U. S. 611, 616, 88 S. Ct. 1335, 1338, 20 L. Ed. 2d 182, 187 (1968).

Section 2(d) proscribes loitering when it will “obstruct, molest, or interfere with any person lawfully in any public place as defined in section 1(b). This paragraph shall include the making of unsolicited remarks of an offensive, disgusting or insulting nature or which are calculated to annoy or disturb the person to, or in whose hearing, they are made.” The first sentence of that section is clear and suffers from no possible constitutional infirmity. What we have said above concerning section 2(b) applies with equal force to the second sentence of this section.

As we have construed the ordinance above and reading section 3 solely as a condition to the commission of a violation of section 2, it is a proper exercise by the City of Orange of its delegated powers and is not in violation of either the United States or the New Jersey Constitutions.

The judgment appealed from is affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LUIS MORALES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 18, 1971
    Decided October 22, 1971.

      Before Judges Goldmann, Collester and Mintz.

      Mr. Henry Bamer argued the cause for appellant (Mr. Stanley C. Van Ness, Pulbic Defender, attorney; Mr. Samuel N. Poritz, designated counsel, on the brief).

      Mr. John A. Brogan, Deputy Attorney General, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant, together with Hector Diaz and Erancisco D. Marrero, were indicted for armed robbery and tried together. The trial judge dismissed the charges against Marrero, declared a mistrial as to Diaz, and the jury found defendant guilty as charged. The judge thereafter sentenced defendant to serve consecutive State Prison terms of 10-15 years for robbery and 4^5 years for being armed. This appeal ensued.

Defendant first claims error in the method used in selecting the jury, particularly addressing himself to the omnibus questions asked by the judge. We find no error.

At the opening of the trial the judge presented the defendants, witnesses and lawyers to the jury panel. The trial judge asked detailed questions as each juror in the first panel took his place in the box. After the first peremptory challenge the judge asked each new prospective juror whether he had heard the detailed questions earlier propounded, and when the answer was in the affirmative, the judge asked, “Is there any information you want to give us now?” Where there was no response, the juror was seated. The second panel was selected in a like manner, although defense counsel objected to the manner of questioning. When the third panel was called the judge again presented to that panel all defendants, witnesses and lawyers. He also asked if anyone on the panel was related to a member of any law enforcement agency; whether anyone on the panel or member of his family or close relation had been convicted of a crime; whether there was any reason why he could not serve as a juror and render a verdict according to the evidence and the law, the charge being robbery while armed, and whether he felt he could sit and act as an impartial juror.

During the voir dire the following question was put to the third panel by the judge: “Luie [sic] Morales is represented by Kalman Geist. Are you clients of his? Or, do you know him?” There was no response. Later it developed that juror Steinforth was biased against defense counsel. He was excused by the court, defense counsel stating, “I don’t think, if I had conducted the voir dire instead of the Court that I would have illicited [sic] the information either.” After Steinforth was excused counsel stipulated that he accepted the 11-member jury. However, after the jury had retired to discuss its verdict, defense counsel moved for a mistrial on the ground that there was not a 12-mem-ber jury. The motion was denied.

Defendant claims error in the voir dire because some of the jurors were not asked a single question personally after they were seated in the jury box. Although at one time the general rule was that examination of jurors on voir dire should be made of each juror individually and not as a group, Springdale Park v. Andriotis, 30 N. J. Super. 257, 263 (App. Div. 1954), the adoption of B. 1:8-3 (a) in the 1969 revision of the rules significantly changed the former practice under B. B. 3:7-2(b) and 4:48-1, respectively dealing with the examination of jurors in criminal and civil actions.

B. 1:8-3(a) provides, in pertinent part:

For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court’s interrogation in its discretion. * * *

The omnibus questions put by the court in this non-capital case were allowed under that rule, whose purpose is to eliminate a time-consuming voir dire by giving the trial judge a greater responsibility for questioning. State v. Manley, 54 N. J. 259, 282 (1969). The court there said that not only would the preliminary questioning by the neutral judge be more likely to produce a truly impartial jury but, in. addition, it would avoid the unreasonable expanse of protracted jury examination and serve the interest of jurors by conserving their time and energy and eliminating unwarranted intrusion into their personal affairs. The interest of the public, the courts, counsel and jurors would be served. The court added that if the purpose of B. 1:8-3 (a) was to be accomplished, the trial judge would have to exercise considerable restraint over any supplementary questioning by counsel.

The burden is on the complaining party to establish that the mode of conducting a voir dire prejudiced him. Springdale Park v. Andriotis, above, 30 N. J. Super. at 265. Defendant has failed to establish prejudice.

In this connection, defendant suggests that the voir dire resulted in the temporary seating of juror Steinforth who, it was soon revealed, was biased and therefore dismissed. It is claimed that this presented an opportunity for him to communicate his bias to the other jurors, to defendant’s prejudice. There is nothing to show that Steinforth ever communicated his bias during the short time he was in the jury box; indeed, when the judge asked the jury whether there had been such communication as to the reason for the juror’s dismissal, the response was negative.

Defendant further contends that the trial judge’s failure to question members of the third panel after they were in the jury box violated B. 1:8-3(a), quoted above, and therefore constitutes reversible error. True, the procedure followed did not strictly comply with the rule, but the judge’s failure to follow the rule was no more than harmless error. All the jurors selected had earlier heard the detailed questions posed by the judge and responded that they could make an impartial judgment. Additionally, defense counsel’s objection was directed to the lack of individual questioning, not to the fact that the third panel jurors were not in the box when questioned.

Defendant’s second main point is that the trial judge erred in not granting the motion for mistrial because the jury had been reduced to 11 members. B. 1:8-2(a) provides that juries “shall consist oí 12 persons but at any time before verdict the parties may stipulate that the jury shall consist of any number less than 12,” except in the trial of a crime punishable by death where the prosecutor has not elected to waive the death penalty. The rule also provides that, “Such stipulation shall be in writing and with the approval of the court.” As noted, the trial judge discovered that a prejudiced juror had been impanelled and dismissed him. Upon inquiring of the parties whether they would continue with and accept a verdict of 11 jurors, defendant’s counsel stipulated acceptance of such a jury. It was not until two days later, after the jury had retired to deliberate its verdict, that counsel moved for a mistrial because there were less than 12 jurors.

Defendant’s claim of error is misdirected. Defendant would have it that he could waive his right to a 12-man jury but later, and at the last moment, recall that waiver and ask for a mistrial. That contention is repugnant to the very concept of waiver, namely, the intentional abandoning or relinquishing of a known right. See East Orange v. Board of Water Comm’rs, 41 N. J. 6, 17 (1963). And see State v. McKnight, 52 N. J. 35, at 48 (1968), where, in discussing the doctrine of waiver in another setting, the court observed that “there must be order in the judicial process, and constitutional rights may be lost if they are not advanced in accordance with rules which afford a fair opportunity to press them.” Defense counsel’s attempt to renege at the last moment on a stipulation made at the very start of the trial was untimely.

Defendant presses his contention relative to the ineffectiveness of the stipulation because it had not been reduced to writing pursuant to B. 1:8-2(a). In State v. Ciniglio, 57 N. J. Super. 399, 407 (1959), we held that the failure to reduce a stipulation to writing under B. B. 3 :7-l (b) did not nullify defendant’s trial and conviction so long as defendant knowingly and understaudingly participated in the oral agreement to go ahead with 11 jurors. As in that case, so here: it is clear that the purpose underlying the rule was satisfied and its spirit observed.

Defendant further contends that evidence of his identification by the robbery victim was improperly admitted because obtained in violation of his constitutional rights. The defense did not object to either the out-of-court or in-court identification. The matter is therefore raised under the plain error rule, B. 2:10-2. In State v. Edge, 57 N. J. 580, 588 (1971), the court stated that where the full trial record contains no indication of any miscarriage of justice, there is no sound reason for appellate consideration, under a claim of plain error, of defendant’s objection to identification testimony, first advanced on appeal. We find no miscarriage of justice.

Defendant claims that the out-of-court identification procedure by which the victim identified defendant was unduly suggestive and violated his due process rights under the Fifth Amendment, citing Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and State v. Edge, 111 N. J. Super. 182 (App. Div. 1970). (He does not refer to the later reversal in Edge.) The rape victim in Edge identified her assailant the day following the evening of the rape, when she observed him at police headquarters through a one-way mirror. The Appellate Division majority held that the pretrial identification violated the principles expressed in Stovall, and reversed the conviction. Our Supreme Court, in reinstating the conviction, 57 N. J. 580 (1971), said:

* * * Nor did the Supreme Court in Stovall, or in any other case to date, hold that a one-to-one pretrial confrontation and identification is without more violative of the fourteenth amendment. On the contrary, it held that the totality of the circumstances must be considered to determine whether the manner of the confrontation was so unnecessarily suggestive and unfair as to amount to a denial of due process, [at 586-587]

In this case the victim had known defendant for more than a year before the robbery. Defendant frequented Ms restaurant and he had been seen by the victim on the day of the robbery. When he saw the accused at the scene of the crime, the victim couM readily identify him by name (his nickname). He saw and identified defendant at police headquarters soon after. We find that the out-of-court identification procedure followed was not impermissibly suggestive so as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Mustacchio, 57 N. J. 265 (1970).

Defendant claims that he was entitled to a line-up at the time of the out-of-court identification. The absence of such a procedure does not in itself make the prior identification unfair or unreliable, for it is the totality of the circumstances that must be considered. State v. Matlack, 49 N. J. 491, 498 (1967). The court in that case stated that a prior identification made proximate in time to the criminal act does not require a line-up to sustain its validity. Ibid; State v. Sinclair, 49 N. J. 525, 545 (1967). The victim here identified defendant within five hours of the offense. A line-up was not necessary in the circumstances of this case.

Defendant also insists that he was entitled to be represented by counsel when the victim identified him at the police station. The matter was not raised below. We find no plain error. Cf. State v. Mustacchio, above, at 269 et seq.

Arguing on the basis of the inadmissibility of the out-of-court identification, defendant contends that the victim’s in-court identification was tainted and therefore inadmissible. There are two answers to this argument. The first is that we have held that the testimony as to the out-of-court identification was properly admitted in evidence. The second is that the in-court identification testimony was based on the victim’s independent observations. Defendant has referred us to United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Footnote 33 at page 241, 87 S. Ct. at page 1940 of that opinion should have been consulted by defense counsel. The Supreme Court majority there observed that how well the witness knew the suspect would have an important bearing upon the true basis of the witnesses’ in-court identification. As has already been indicated, the victim in our case knew defendant well enough to make an identification independent of that made at the police -station, and the trial judge so stated.

Finding no error and concluding that defendant had a completely fair trial, we affirm.