author: Crane, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. VICTOR VINEGRA, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 18, 1975
    Decided May 28, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause on behalf of appellant (Mr. Karl Asch, Union County Prosecutor, attorney).

      Mr. Michael D. Schottland argued the cause on behalf of respondent (Messrs. Chamlin, Schottland & Rosen, attorneys; Mr. Thomas W. Cavanagh, Jr., on the brief).
   The opinion of the court was delivered by

Crane, J. A. D.

The issue to be resolved in this case is wheiher the trial judge properly dismissed the first seven counts of the indictment against defendant on the ground that his Fifth Amendment rights were violated by his being interrogated before the grand jury which indicted him.

The information which led to defendant’s indictment first came to light during the course of a civil trial in the Law Division in Union County. The litigation concerned a claim for work and materials allegedly furnished in connection with a road and sewer project in the City of Elizabeth. During the trial Victor Vinegra, the Assistant City Engineer for the City of Elizabeth, was called as a witness. After the comp^tion of his direct testimony one of the attorneys informed the trial judge in chambers that an officer of one of the defendant corporations had been asked by Vinegra for a political contribution of $500 prior to the start of the construction work on the project and that the officer had given Vinegra the money. The trial judge immediately informed the prosecutor, who joined the discussion in the judge’s chambers.

On the following day Vinegra was called before the grand jury then sitting in the county. Prior to his giving testimony he was told that penalties for perjury or obstruction of justice would be invoked for failure io give complete and truthful testimony. He was not warned, however, that anything he said might be used against him, nor was he advised of his privilege against self-incrimination or of his right to counsel. Vinegra was questioned about his role in the road and sewer project. Ho was asked whether he had recommended a contractor for the project, whether ho made personal inspections of the projeci, how often he visited (he project site, whether additional stone was used on the project, the methods of financing (lie project and the procedures for paying the ooniwtcioiv. lie was also asked io explain his supervision of the record keeping for the stones delivered and the $500 political contribution. Vinegra appeared before the grand jury on Hires' subsequent occasions. Ultimately a nine-count indictment was returned by the grand jury charging defendant Vinegra individually with two counts of misconduct in office and one of false swearing. Together with one llarrv 34 All (ill he was charged with three counts of conspiracy, one count of false pretenses and one count of attempted faDo pretenses. The ninth count charged Allen with false swearing.

On motion of defendant 'Vinegra to dismiss the trial judge made findings of fad. Ifo found that de fado criminal charges had been made against Vinegra, that the grand jury was conducting an investigation directed against him and that calling him as a witness was a ruse to induce him to give evidence against himself. The judge concluded that Vinegra was a larger of the grand jury proceedings and that the failure io inform him of the scope of the investigation and the failure io warn him oí his privilege' against self-incrimination required a dismissal as to Vinegra of all counis of the indictment in which he was named as a defendant except the eighth count charging him with false swearing. The trial judge relied essentially on the dictum in State v. Fary, 19 N. J. 431, 437-438 (1955); State v. Sarcone, 96 N. J. Super. 501 (Law Div. 1967), and State v. Rosania, 96 N. J. Super. 515 (Law Div. 1967). State v. Sibilia, 88 N. J. Super. 546 (Law Div. 1965), is to the same effect although it was not cited by the trial judge.

The State filed a notice of appeal from the order of dismissal. Although no motion to dismiss the State’s appeal was made, we note that the order dismissing some, but not all, of the counts against defendant was not a final judgment and was thus not appealable as of right. B. 2:3 — 1. Because of the importance of the issues raised we have determined on our own motion to grant leave to appeal in order to reach the merits. However, we do point out that in instances such as appear here leave to appeal should be sought under B. 2: 5-6 (a) and application made for a stay of the remaining counts to avoid multiplicitous trials. See State v. Mullen, 67 N. J. 134 (1975).

Defendant sought leave to appeal from the denial of his motion to dismiss the eighth count charging false swearing. He contended that the public employee immunity statute, N. J. S. A. 2A:81-17.2a2, prohibits the prosecution of a public employee who has testified before a grand jury on a charge of false swearing as distinguished from perjury. His motion for leave to appeal was denied. That issue has since been decided adversely to his contention in State v. Mullen, supra.

Our review of the record indicates that there was sufficient evidence to justify the factual conclusions of the trial judge that Vinegra was a target of the grand jury investigation; that he was not informed of the scope of the investigation or of his privilege against self-incrimination, and that calling him before the grand jury was a ruse to obtain evidence against him. Accordingly, we shall not disturb them. State v. Johnson, 42 N. J. 146 (1964).

We disagree, however, with the determination of the trial court that dismissal of the counts of the indictment other than the one charging false swearing is required. The fundamental principle involved is the privilege against self-incrimination which is set forth in the Eifth Amendment of the United States Constitution and, although not embodied in our Constitution, has long been recognized in New Jersey. State v. Wary, supra, 19 N. J. at 434. The Supreme Court in Wary apparently assumed that failure to warn a target witness of his right to assert the privilege against self-incrimination would necessarily require dismissal of the indictment. 19 N. J. at 438. Sibilia, Sarcone and Rosania, supra, made that same assumption as did the trial judge.

We are not aware of any decision of our Supreme Court or of any decision of the United States Supreme Court which requires us to accede to the result reached below. The target doctrine was discussed in State v. Williams, 59 N. J. 493, 503 (1971), but it was neither approved nor disapproved. The court found the doctrine inapplicable since Williams was not called before the grand jury which indicted him. Subsequent decisions of the United States Supreme Court have cast doubt upon the validity of the assumption in Wary. In United States v. Blue, 384 U. S. 251, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966), the Supreme Court reversed the dismissal of an indictment which was allegedly based on testimony of the defendant obtained in violation of his rights against self-incrimination. The court stated:

Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.
tf'sh******
Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book, [at 255, 86 S. Ct. at 1419]

Recently, in United States v. Calandra, 414 U. S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974), it was held that a witness' before a grand jury could not refuse to answer questions on the ground that they were based on information obtained from an unlawful search and seizure. The court said that

.The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, Costello v. United States, supra [350 U. S. 359, 76 S. Ct. 406, 100 L. Ed. 397]; Holt v. United States, 218 U. S. 245, 31 S. Ct. 2, 54 L. Ed. 1021 (1910) ; or even on the basis of information obtained in violation of the defendant’s Eifth Amendment privilege against self-incrimination. Lawn v. United States, 355 U. S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958). [at 344-345, 94 S. Ct. at 618]

The District of Columbia Court of Appeals was presented with a question similar to that in this ease in United States v. Washington, 328 A. 2d 98 (D. C. Ct. App. 1974). Defendant Washington had been called to testify before a grand jury investigating the theft of a motorcycle found in a van owned by him. Relying on United Slates v. Blue, supra, the Court of Appeals reversed the order of the trial court dismissing the indictment. It did, however, sustain the ruling of the trial court that Washington’s testimony could not be used against him because adequate warnings had not been given to him.

We have considered cases decided by courts of other jurisdictions, such as United States v. Pepe, 367 F. Supp. 1365 (D. Conn. 1973); United States v. Kreps, 349 F. Supp. 1049 (W. D. Wis. 1972), and People v. Leto, 70 Misc. 2d 218, 334 N. Y. S. 2d 303 (Cty. Ct. 1972), aff’d 41 A. D. 2d 877, 342 N. Y. S. 2d 901 (App. Div. 1973). They do not persuade us. We hold, for the reasons expressed in United States v. Blue, supra, that dismissal of the charges contained in the indictment is too drastic a remedy. See also, In re Zicarelli, Occhipinti, Russo, 55 N. J. 249, 267 (1970), aff’d 406 U. S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972); State v. Spindel, 24 N. J. 395, 405 (1957). To the extent that Sarcone, Rosania and Sibilia are inconsistent with our holding they are overruled.

Defendant’s rights under the Fifth Amendment are adequately protected. N. J. S. A. 2A:Sl-17.2a2 provides as follows:

If any public employee testifies before any court, grand jury or the State Commission of Investigation, such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury committed while so testifying.

Thus, defendant’s testimony before the grand jury may not be introduced in evidence against him in any subsequent criminal proceeding, Kugler v. Tiller, 127 N. J. Super. 468, 473 (App. Div. 1974), except as it might be relevant in a prosecution for perjury or false swearing. State v. Mullen, supra; State v. Falco, 60 N. J. 570, 585 (1972). Since defendant’s Fifth Amendment protection is derived from the statute we need not consider the effect of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct 1602, 16 L. Ed. 2d 694 (1966). Not, in the circumstances of this case, need wo decide the nature and extent of warnings required to be given to a target witness who is not a public employee. See State v. Williams, supra, 59 N. J. at 502; State v. De Cola, 33 N. J. 335, 342 (1960); State v. Browning, 19 N. J. 424 (1955); State v. Stavola, 118 N. J. Super. 393 (App. Div. 1972); State v. Sibilia, supra, 88 N. J. Super. at 550; Gollaher v. United Slates, 419 F. 2d 520 (9 Cir. 1969), cert. den. 396 U. S. 960, 90 S. Ct. 434, 24 L. Ed. 2d 424 (1969); United States v. Mandujano, 496 F. 2d 1050 (5 Cir. 1974), reh. den. 503 F. 2d 568 (5 Cir. 1974); Mattox v. Carson, 424 F. 2d 202 (5 Cir. 1970), cert. den. 400 U. S. 822, 91 S. Ct. 43, 27 L. Ed. 2d 51 (1970); Commonwealth v. Columbia Investment Corp., 457 Pa. 353, 325 A. 2d 289 (Sup. Ct. 1974).

We do not understand the opinion oí the trial judge to indicate, as the State contends, that defendant in his status as a public employee was entitled to transactional immunity. The judge said:

The statute provides for a self-executing immunity from the use of a public employee’s testimony or any evidence derived therefrom in a subsequent criminal proceeding. Thus the state must he barred from using the defendant’s testimony or evidence derived therefrom at a subsequent criminal proceeding including the trial on the indictment.

As we read the opinion, the trial judge held that the use immunity provided by the statute is self-executing, and that it requires no assertion of privilege by the witness and no confirmatory action by the court or by the State. We agree with that holding. It accords with the plain language of the statute.

The statement in State v. Cattaneo, 123 N. J. Super. 167, 171 (App. Div. 1973), certif. den. 63 N. J. 324 (1973), to the effect that “any public employee testifying before a grand jury is immune from prosecution” appears to be an inadvertence. The statement was not necessary to the determination; the ease turned on whether defendant’s waiver of immunity was fully understood and voluntarily made. In any event, we decline to follow it. An immunity statute is not required to afford transactional immunity in order to be compatible with the Fifth Amendment. Kastigar v. United States, 406 U. S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972); Lefkowitz v. Turley, 414 U. S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973).

For the guidance of the trial judge we note that the State will be encumbered with the burden of demonstrating that the evidence it proposes to introduce against Yinegra is “derived from a legitimate source wholly independent” of his grand jury testimony. Kastigar, supra, 406 U. S. at 460, 92 S. Ct. at 1665. Because of the probability that defendant’s grand jury testimony will be introduced against him in the trial of the false swearing charge, that count must be tried separately from those under discussion in this opinion.

The order dismissing counts one through seven is xeversed.


source: Caselaw Access Project

author: Bischoff, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN H. LATIF, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 19, 1975
    Decided May 30, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Maurice J. Molyneaux, of counsel and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Ms. Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).
   The Opinion of the Court was delivered by

Bischoff, J. A. D.

Defendant was indicted by the Essex County Grand Jury on September 3, 1970 for robbery of $280 from an employee of Seaboard Finance Company in violation of N. J. 8. A. 2A:143-1, and he was indicted on September 10, 1970 for robbery of $100 from an employee of Western Union Telegraph Company in violation of the same statute by the same grand jury.

Ho was tried and convicted by a jury in January 1974 for both crimes in separate trials. Defendant appeals from both convictions and the sentences imposed, raising (with but one exception) the same issues in both appeals. We will dispose of both appeals in this opinion.

Defendant contends:

(a) lie was denied his constitutional right to a speedy trial. (This issue was not raised in the trial court.) ;

(b) it was plain error for the trial court to fail to conduct a voir dire on the issue of identification;

(c) he was not given the “Miranda” warnings when apprehended and subsequent statements made by him were in violation of his constitutional privilege against self-incrimination;

(d) he was ineffectively represented and, thus, denied adequate assistance of counsel; and,

(e) as to the trial of the indictment relating to the robbery of the Seaboard Finance Company, defendant also contends the admission of evidence of other acts or offenses allegedly committed by him was error.

We are satisfied from our review of the records and the arguments that these issues are clearly without merit. R. 2:11-3 (e)(2).

In addition thereto, the defendant contends there was error in that:

(1) he did not possess the requisite mental capacity to waive his constitutional right against self-incrimination and the admission of statements made by him constituted reversible error; and,

(2) the sentences imposed are excessive.

We defer determination- of these two issues to another time.

The serious issue presented by the records of these two trials has not been raised or briefed by either of the parties. It is: “Was defendant competent to stand trial?”

That issue is presented by the following facts.

Eollowing his indictment for both robberies, defendant was tried and convicted of one in November 1970 and the other in December 1970. Defendant appealed both convictions and while the appeals were pending, on motion by the defendant, the trial court held a hearing July 7, 1972 on the separate issues of insanity at the time the crimes were committed and competency of the defendant to stand trial. The trial judge found:

(1) defendant was sane at the time the crimes were committed;

(2) defendant was so incompetent at the time of both trials as to be unable to adequately defend himself; and,

(3) defendant was sufficiently recovered and was now able to defend himself.

/

New trials were ordered by the trial judge. Defendant filed a supplementary notice of appeal, and this Court affirmed the order for a new trial leaving open the issue of insanity.

One week prior to the scheduled start of the retrials, the prosecutor stated in open court that he had conferred with a psychiatrist engaged on behalf of the State and “the initial findings, however, he hasn’t completed his findings, is that he may not be capable of standing trial at this time.” Defense counsel, on the other hand, indicated that the psychiatrist examining the defendant on behalf of the defense had found defendant competent to stand trial.

The issue of defendant’s mental capacity arose one week later at the outset of trial when defense counsel stated one of the defenses to be interposed was that defendant was insane at the time the crimes were committed. Defendant then personally engaged the court in a lengthy colloquy on the procedure to be used in submitting the issue of his insanity at the time the crimes were committed to the jury. Counsel for both sides informed the court that medical experts for both the State and the defense had rendered opinions that defendant did not know the nature or quality of his acts at the time he committed the crimes.

Defense counsel then informed the court that the expert for the defense, who would support the defense of insanity, had been taken ill and he requested a three to four week adjournment of the trial. Defendant personally opposed this, stating that he was willing to forego the defense of insanity in order to have his case promptly tried. The court questioned defendant closely and concluded that defendant understood the consequences of waiving the defense of insanity. Defense counsel indicated his strong objections to proceeding to trial, waiving the defense of insanity, but felt compelled to follow his client’s wishes. The prosecutor informed the court that the State’s medical expert did not consider defendant presently competent to either stand trial or waive his defenses, and he requested a hearing on the competency of the defendant to stand trial. Defendant’s counsel countered, stating his defense expert felt defendant was competent to stand trial but also suggested that the court determine defendant’s competency before proceeding to trial. The court refused to do so for the following reasons:

(1) the issue was not placed before him pursuant to the procedure established in the statute, N. J. 8. A. 2A :163-2;

(2) defendant personally wished to proceed to trial;

(3) the presumption of competency continues; and,

(4) the ruling of the prior trial court in 1972 that defendant was competent to proceed to trial was affirmed by the Appellate Division.

Trial proceeded with, counsel appearing for defendant.

It has long been accepted that a defendant whose mental condition is such that he lacks the capacity to comprehend his position, to consult intelligently with counsel and plan his defense, cannot be put to trial. Drope v. Missouri, 420 U. S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103, 112 (1975); State v. Auld, 2 N. J. 426, 435 (1949); State v. Spivey, 65 N. J. 21, 36 (1974). It follows that where there exists a bona fide doubt as to defendant’s competence to stand trial, the court must conduct a hearing to resolve that issue. Pate v. Robinson, 383 U. S. 375, 385, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); State v. Spivey, supra at 37; State v. Pugh, 117 N. J. Super. 26, 30-31 (App. Div. 1971), certif. den. 60 N. J. 22 (1972). The authority to resolve this preliminary inquiry is within the inherent power of the court. State v. Spivey, supra at 36, independent of statutory procedures.

We are not here concerned with the necessity of deciding whether there were sufficient indicia of incompetence to call upon the court to act sua sponte. There was a request by both counsel for such a hearing. While the request was not contained in any formal pleading and came during the course of a discussion of preliminary matters, it was sufficient — when considered in conjunction with other facts then before the court ■— to alert the trial judge to the necessity for a hearing 'to determine the competence of the defendant to stand trial. State v. Spivey, supra; Pate v. Robinson, supra. An indirect reference to the issue in a motion for adjournment has been held sufficient to require the court to act. Drope v. Missouri, supra, 420 U. S. at 176, 95 S. Ct. 896, 43 L. Ed. 2d at 116.

The fact that there had been an adjudication by the trial court in 1972, affirmed by the Appellate Division, that defendant was then competent to stand trial is not determinative of that issue. The responsibility of the court to prevent the trial of one incompetent to stand trial is an ongoing responsibility. State v. Spivey, supra at 40—43; cf. United States v. Cook, 418 F. 2d 321 (9 Cir. 1969).

In this case the court had before it a prior finding of incompetence. Insanity was a defense. There were varying opinions of psychiatrists as to the insanity of defendant at the time of the commission of the offenses, as well as his competency to stand trial. Further, defendant’s willingness to relinquish what appears on the surface to be a viable defense (insanity), his unwillingness to heed counsel’s advice, as well as counsel’s request for a hearing, all create a composite of circumstances requiring the trial judge to granteounstTs request for a hearing to determine the competency of defendant to stand trial. Drope v. Missouri, supra at 420 U. S. at 180, 95 S. Ct. 896, 43 L. Ed. 2d at 118.

What wo have said is applicable to both trials for it appears that the first trial was concluded on Thursday, January 24-, 1974 and the second trial commenced before the same trial judge on Monday, January 28, 1974. Prior to commencement of the second [rial, counsel for both the Stale and the defendant, as well as the defendant personally, restated on the record their positions in substantially the same language as that preceding the first trial.

We conclude that both eases must be remanded for the limited purpose of having the trial judge conduct a hearing to determine whether or not, at the time defendant was tried in January 1974, lie was competent to stand trial. It appears from the record before us that there was then available contemporaneous medical and other evidence on that issue.

In the event the trial judge determines that there is insufficient contemporaneous evidence available to determine if defendant was then competent to stand trial, the matter should be promptly returned to us with that certification.

Consequently, this matter is remanded to the trial court to hold a plenary hearing forthwith into the competency of the defendant to stand trial at the time he was tried in January 1974. The remand judge shall make and file detailed findings and conclusions. In the interim, we retain jurisdiction.

Within 15 days of the filing of the remand judge’s conclusions, counsel for each party may file a supplemental letter brief with the Clerk of this Court.

Remanded-and jurisdiction retained.

      In Pate v. Robinson, supra at 387, 86 S. Ct. 836, and Drope v. Missouri, supra, 420 U. S. at 183, 95 S. Ct. at 909. 43 L. Ed. 2d at 119-120, it was held that a remand was not appropriate hut the court,, instead, reversed the conviction, leaving the State iree to retry defendant assuming that at the time of such retrial he was competent to be tried. However, in both those cases it was clear there was no contemporaneous medical evidence available and the action of the court was predicated upon “tlie inherent difficulties of such a nune pro tunc determination under the most favorable circumstances.” Cf. Conner v. Wingo, 429 F. 2d 630, 639-640 (6 Cir. 1970), cert. den. 406 U. S. 921, 92 S. Ct. 1779, 32 L. Ed. 2d 121 (1972).


author: Allcorn, J. A. D.

text:
    TOWNSHIP OF SANDYSTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. PAUL ANGERMAN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted May 6, 1975
    Decided June 4, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Morris, Downing & Sherred, attorneys for the appellant (David L. Jubanowsky, on the brief).
    No brief was filed on behalf of the respondent.
   The opinion of the court was delivered by

Allcorn, J. A. D.

Erom our review of the record, including the terms and provisions of the agreement between-defendant, and the United States Department of the Interior, we conclude that the agreement is a lease rather than a license, and created the relationship of landlord and tenant between the parties; that the lease is for private purposes, and consequently that the interest of defendant is subject to taxation by the municipality by virtue of the Leasehold Taxing Act, N. J. 8. A. 54:4-2.3.

The determination of whether a given agreement is a lease or a license depends not upon “what the parties to it choose to call it nor the language, but [upon] the legal effect of its provisions.” 3 Thompson on Beal Property (1959 replacement), § 1032 at 102. On the one hand, an “instrument is not a demise or lease, although it contains the usual words of demise, if its contents show that such was not the intention of the parties”; on the other hand, the “relation of landlord and tenant may exist * * * although certain collateral matters are contained in the contract of letting.” Id. at 102-103.

A license is simply a personal privilege to use the land of another in some specific way or for some particular purpose or act. Id., § 1032; 49 Am. Jur. 2d, Landlord and Tenant, § 5. Describing it as a “very tenuous” interest, Professor Powell likens a license to an “easement at will” whose “ephemeral character * * * precludes any protections of the licensee as against interferences with his use by the licensor.” 3 Powell on Real Property, § 404.1 at 382; § 428 at 526.66; 5 Restatement, Property, “Licenses”, introductory note at 3113 (1944). In contradistinction, a lease is a grant of exclusive possession to use the land for any lawful purpose, subject to reservation of a right of possession in the landlord for any purpose or purposes “not inconsistent with the privileges granted the tenant.” 3 Thompson, supra, § 1032 at 107; Thiokol Chem. Corp. v. Morris Cty. Bd. of Taxation, 41 N. J. 405, 417 (1964).

By the terms of the agreement here under consideration defendant is “authorized * * * to use” a single-family dwelling, and approximately two acres of land adjoining, situated within the confines of the Delaware Water Gap National Recreation Area and owned by the United States of America, for the period commencing September 15, 1971 and terminating September 1, 1976. According to the testimony of Mrs. Angerman, upon the execution of the agreement she and her husband moved into the dwelling and have been occupying the property as their private residence ever since.

The agreement waived the payment of any cash consideration by defendant. The purpose for which such use and occupancy was granted was stated to be the “rehabilitating, restoring, and the continued maintenance and protection of the improvements.” In light of the waiver of cash consideration, it is a necessary and proper inference that the performance by the Angermans of the latter services constitutes the consi deraton — otherwise the agreement would be invalid as an ultra vires gift of public property for private use or benefit. This inference draws further support from paragraph 1(f) of the rules and regulations forming part of the agreement, requiring “an annual work program defining rehabilitation and restoration projects” to be outlined which, initially, is to be directed toward “rendering the residence useable on a year round basis and protecting all the improvements from further deterioration”. By the terms of paragraph 11(e) all resulting improvements “become the property of the” government.

In addition to the repair and restoration work on the dwelling defendant agreed to “assist park personnel in the detection and immediate reporting of building, forest or grass fires which may occur on the land in the vicinity,” and to “make frequent checks of the other National Park Service property in the vicinity and immediately report any incidents, violations or apparent damage to a representative of the National Park Service.” Both undertakings are in the nature of responsibilities of scant burden, representing little more than the verbalization of the customary vigilance and awareness of conditions in his neighborhood employed by any householder while in occupancy and during his comings and goings. No penalty is provided for nonperformance.

However this may be, it is plain that the agreement granted to defendant the exclusive possession of the residence and the surrounding area. The grant is made “to use” the premises as a private residence, without any words or provisions in derogation of the right to use and occupy exclusively, other than the right of the public to use any existing and newly established roads and trails on the land. Were the grant not one of exclusive possession, there would have been no need for the government to expressly reserve to itself “the right to enter the premises at any time for inspection * * * in cooperation with” defendant.

The circumstance that the agreement, though for a fixed term, is terminable “at the discretion of the Director, National Park Service”, does not constitute the agreement a license. At most, such right of termination would convert the tenancy from one for a fixed term to a tenancy at will. 3 Thompson, supra, §§ 1020, 1021; 49 Am. Jur. 2d Landlord and Tenant, § 75. It in no way affects the exclusivity of the tenants’ possession during the continuance of the term, and does not operate to transform a lease into a license.

In light of the foregoing there can be no doubt that the agreement is a lease and that it created the relationship of landlord and tenant between the parties to it. Equally without question is the fact that the lease is one for a private use, as distinguished from a lease in furtherance of a public purpose or a lease incidental to achieving that public purpose for which tax exemption is granted. Todd Shipyards Corp. v. Weehawken, 45 N. J. 336 (1965).

In short, the sole purpose of the agreement was to provide a private dwelling for defendant and his family, in consideration of the undertaking to repair and restore the house. In the words of Mrs. Angerman, the house “was in a very bad condition”, and she and her husband “fixed it up to live in it.” There is nothing in the record to indicate that either Mr. Angerman or Mrs. Angerman was employed by the National Park Service in any capacity, let alone in a position the duties of which compelled on-site residence. Certainly it was not necessary for defendant and his family to reside in the house in order to repair and restore it, any more than it is essential for a building contractor and his employees to reside in any residential building which he has contracted to repair and restore. Compare, Thiokol Chem. Corp. v. Morris Cty. Bd. of Taxation, supra, 41 N. J. 405.

This disposition makes it unnecessary to pass upon the question of defendant’s failure to exhaust his administrative remedies by appeal of the assessments to the county tax board — an issue not raised by the plaintiff at the trial level.

Accordingly, the judgment of the Sussex County District Court is reversed and the cause remanded with directions to enter judgment in favor of plaintiff and against defendant in the amounts demanded.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JUSTIN KENNEDY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 18, 1975
    Decided June 9, 1975.

      Before Judges Collester, Lora, and Handler.

      Mr. Rollin S. Neal argued the cause for appellant (Messrs. Bloom, Biener & Neal, attorneys).

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

Collester, P. J. A. D.

Defendant was convicted by the trial judge sitting without a jury of possession of a firearm without a permit (N. J. 8. A. 2A:151-41) and was sentenced to pay a fine of $300.

The sole ground of appeal is that the trial judge erred in denying defendant’s motion to suppress evidence seized by a state trooper without a warrant.

At the hearing on the motion to suppress State Trooper Piatras testified as follows. On April 11, 1973, at approximately 11:40 a.m. while stationed on U. S. Highway 40 near the Delaware Memorial Bridge, he observed an automobile with a Washington, D. C. registration being operated in an easterly direction at 70 m.p.h. in a 50 m.p.h. zone. The trooper turned on the red lights of his patrol ear and took up pursuit. He observed defendant, who was driving the ear in the passing lane, ‘lean down to his right as if he was doing something on the floor by his right side.” The driver continued to lean down as he turned the car from the passing lane into the slow-bound land where he drove some distance before he pulled onto the shoulder of the road and stopped. When the trooper stopped his ear behind the other vehicle and alighted, defendant came back np into an upright position “in a very fast manner.”

Trooper Piatras testified that at this point he believed there was something wrong in the way defendant had leaned down; that based on his experience as a police officer people do not lean down as defendant did unless they have something to hide. As the trooper walked towards the car he observed through the rear window that there was a passenger seated beside the driver. He approached the driver’s side of the vehicle and asked for defendant’s driver’s license and motor vehicle registration. Before taking the documents from a wallet which was on his lap defendant reached over and quickly opened and closed the glove compartment. The officer then noticed a bulge under the floor mat near the driver’s right foot. Trooper Piatras said he believed that the bulge was a gun; he was suspicious because of the manner in which defendant had opened and closed the glove compartment, and he believed that his safety was in danger.

Piatras next walked to the passenger side of the ear and asked the passenger, MacDaniels, an army sergeant, to open the glove compartment. MacDaniels complied and the trooper saw inside a torn paper bag containing a box bearing the numerals 22. Piatras suspected it was a box of bullets. He asked the passenger what was in the box, whereupon MacDaniels took the bag out of the glove compartment and opened it. The trooper saw that the box contained .22-caliber shells.

The trooper thereupon directed both men to remove themselves from the vehicle and they complied. He next asked where the gun was and defendant said it was under the floor mat on his side of the car. He placed defendant under arrest, searched both men, and then secured the gun which he found was loaded with two .22-caliber shells. On cross-examination the officer denied that he had drawn his own revolver at any time.

Kennedy and MacDaniels both testified that when they observed the flashing lights of the police car defendant pulled the car to his right in a normal manner and geared the ear down with his right hand. They said when the trooper asked for Kennedy’s driver license and registration defendant opened the door of the glove compartment, removed his wallet which contained the documents and then slammed the door shut. They further testified that the trooper went around to the passenger side of the car with his gun drawn and ordered MacDaniels to open the glove compartment and to remove the contents of the bag which was inside. Neither MacDaniels nor Kennedy denied that the bag contained a box of .22-caliber shells or that a gun was concealed under the floor mat.

. In denying the motion to suppress the trial judge indicated that he believed the trooper’s version of the facts. He concluded it was reasonable for the officer to believe that he was in danger and that he was justified in conducting a search to assure his own safety.

On appeal defendant argues the testimony of the state trooper was incredible and that the trial judge misapplied the law relating to a protective search.

We disagree. The credibility of the police officer was a matter for determination by the trial judge. Considering the proofs as a whole, we are satisfied there is no reason to conclude that the judge erred in accepting as true the trooper’s version of the facts. State v. Johnson, 42 N. J. 146, 161-162 (1964).

The crux of this case is whether a reasonably prudent police officer in the circumstances presented would be warranted in the belief that his safety was in danger. Terry v. Ohio, 392 U. S. 1, 27, 88 S. C.t. 1868, 20 L. Ed. 2d 889 (1968). In the situation which existed in this case the reasonable care exercised by the state trooper must be measured by the temper and tempo of the times, including such matters of common knowledge that troopers patrolling our highways in similar situations have been the victims of criminal assaults, some of which have resulted in death suffered in the line of duty. See State v. Wausnock, 303 A. 2d 636 (Del. Sup. Ct. 1973).

From our review of the testimony we conclude that under the totality of the circumstances the state trooper had reasonable cause to believe that his safety was endangered and that the protective search he conducted was permissible under the Fourth Amendment.

Accordingly, we hold that the trial judge properly denied the motion to suppress evidence.

Affirmed.


author: Per Curiam.

text:
    SNYDER-WESTERLIND CORPORATION, PLAINTIFF-APPELLANT, v. MAYOR & COUNCIL OF THE BOROUGH OF ATLANTIC HIGHLANDS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 28, 1975
    Decided June 10, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Robert S. Greenbaum argued the cause for appellant (Messrs. Greenbaum, Greenbaum, Rowe & Smith, attorneys; Mr. David S. Gordon, on the brief).

      Mr. John C. Manna argued the cause for respondent (Messrs. Manna & Kreizman, attorneys).
   Per Curiam.

Plaintiff appeals a judgment of the Law Division upholding the denial of a requested variance to use certain property overlooking Raritan Bay for high-rise condominiums. The board of adjustment of defendant borough had originally recommended that the use variance be granted. Defendant mayor and council refused to act on the recommendation for no apparent purpose and thus in effect “pocket vetoed” the recommendations under N. J. 8. A. 40:55 — 39.1. In reaching his conclusion the Law Division judge determined that the inaction of defendants under the aforementioned statute was entitled to a presumption of validity, just as if the governing body had acted and denied by resolution. His authority for this conclusion was his prior opinion in Wickatunk Village, Inc. v. Marlboro Tp., 118 N. J. Super. 445 (Law Div. 1972).

The property in question is presently the subject matter of condemnation proceedings instituted by Monmouth County. However, those proceedings in nowise affect this case.

The trial judge, in rendering his oral opinion, chastised defendant officials for their failure to act on the recommendations of the board of adjustment, and after stating that ho probably should remand the case to defendant, proceeded to decide the issue himself. We agree with the trial judge in his criticism of defendant officials who effectively abdicated their duties and responsibilities to the citizens of the Borough of Atlantic Highlands in acting in the manner that they did. If they acted in accordance with legal advice, that advice was incorrect. We disagree, however, with the procedure followed by the trial judge in deciding the case without remand to defendants.

We also disagree with the conclusion of the trial judge here and in his prior opinion in Wickatunk Village, Inc. v. Marlboro Tp., above, that a presumption of reasonableness attaches to a statutory denial by official inaction, pursuant to N. J. 8. A. 40:55-39.1, in the same manner as though the governing body had acted and denied the request by resolution. First, the statute was enacted for the benefit of applicants who sought relief pursuant to N. J. 8. A. 40: 55-39 (d). It seeks to prevent such an applicant from being subjected to intolerable delays by municipal officials in the hope that the passage of time will discourage or effectively defeat an application. The provisions of section 39.1 may be waived by an applicant if that is his desire. If the applicant insists that the provision be waived and the municipal officials act, they aTe bound to act. The statute itself provides:

* * * the governing body • * * shall take action upon such recommendation within 60 days * * or within such further time as the applicant may agree to * * !>. [Emphasis supplied]

We do not believe that the failure of municipal officials to act on an application for unworthy reasons — for example, that an application presents a politically unpopular atmosphere —• should redound to the benefit of the municipality just as if proper action had been taken. Here, appellant expressly stated in writing that it waived the statutory time period and requested an adjournment of the hearing on the application for a variance. If the governing body was disinclined to grant an adjournment, it should have decided the matter on the merits. Both the applicant and the citizens of the municipality are entitled to the benefit of official action.

We reverse the judgment of the Law Division and remand the proceedings to defendant mayor and council for appropriate action under the provisions of N. J. 8. A. 40:55-39 (d). We express no opinion as to the merits as they have been presented to us on this appeal. However, since the judgment of the Law Division is vacated, we caution defendant not to place reliance on its opinion.

Reversed and-remanded.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. PEDRO RAMON TELADA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 28, 1975
    Decided June 10, 1975.

      Before Judges Halpern, Crahay and Wood.

      Messrs. Hornstein & Hornstein, attorneys for appellant (Mr. J. Leonard Hornstein, on the brief).

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

Defendant was charged in the Jersey City Municipal Court with the high misdemeanor of unlawfully possessing a stolen motor vehicle, in violation of N. J. S. A. 2A:139-3, an offense not within the municipal court’s jurisdiction. Despite defendant’s argument to the contrary, the municipal court’s records indicate that the complaint was amended (B. 7:10-2) and he was convicted of being a disorderly person under N. J. S. A. 2A:170-38, an offense within the municipal court’s jurisdiction. The latter statute proscribes the unlawful taking or using of any means of conveyance, or being an accessory thereto. This was not a case of the municipal court judge attempting to downgrade the original offense without the prosecutor’s permission. See State v. States, 44 N. J. 285 (1965). Defendant appealed to the County Court and sought a de novo hearing on the record below, as provided for under B. 3:23-8(a).

We note at the outset that the transcript of the municipal court hearing leaves much to be desired. Other than the notation on the complaint and the municipal court judge’s finding of guilt, the record fails to reveal when or under what circumstances the original complaint was amended. However, a strong presumption arises from the notations on the original record that the amendment was made prior to the hearing and conviction. In addition, much of the transcript contains gaps concerning questions and answers — we have many notations in the transcript such as “inaudible,” “obliterated,” “machine turned off temporarily,” “obliterated by Mr. Saportin speaking” and “obliterated by counsel speaking.” In short, it would be pure speculation to review this inadequate record.

When the appeal came before the County Court judge he recognized the deficiencies in the record above outlined and stated, “1 am still in a quandary exactly what the defendant was charged with. Therefore, 1 am going to reverse and remand this matter for a new trial * * By so doing, he erred.

The County Court’s jurisdiction and power to hear appeals from the municipal court is circumscribed by B. 3 :23-8. Section (e) of the rule permits the County Court judge to convict or acquit the defendant — no power is given, nor can it be implied that he has the inherent power, to reverse and remand for a new trial. Under the circumstances existing here, he should have utilized sections (a) and (c) of the rule and afforded defendant a plenary trial de novo, permitting both sides to produce their witnesses, and then determine the guilt or innocence of defendant. See State v. Higgins, 132 N. J. Super. 67 (App. Div. 1975). So too, if he deemed it essential, he could have amended the complaint to charge a violation of N. J. S. A. 2A:170-38. B. 3:23-8(c); State v. Joas, 34 N. J. 179, 188-189 (1961).

The judgment below is reversed and the matter remanded to the Hudson County Court for a plenary hearing on the amended complaint charging a violation of N. J. 8. A. 2A: 170-38.


text:
    JANIS E. HIRSCH AND CAROL E. HIRSCH BIDWELL, PLAINTIFFS-APPELLANTS, v. TRAVELERS INSURANCE COMPANY, ET ALS., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 9, 1975
    Decided June 17, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. Samuel Leventhal, attorney for appellants.

      Messrs. Markowitz and Zindler, attorneys for respondent Doris Hirsch (Mr. Joseph Markowitz on the brief).
   Per Curiam.

Plaintiffs appeal from a judgment dismissing their complaint as to defendant Doris Hirsch, upon whose property they attempt to impose a constructive trust.

Jack M. Hirsch and Shirley Hirsch, the natural parents of plaintiffs, were divorced on March 10, 1967. The property settlement agreement, incorporated into a judgment nisi, provided that Jack Hirsch would designate plaintiffs as irrevocable beneficiaries of seven life insurance policies having a total face value of $98,000, pay the premiums thereon and direct the insurance companies to notify plaintiffs if any premiums were in default. The agreement further provided that Jack Hirsch would place certain securities in trust for plaintiffs’ education, and an appropriate trust instrument was executed.

After his divorce from Shirley Hirsch, Jack Hirsch married defendant Doris Hirsch, He died testate on January 18, 1973. Plaintiffs allege that shortly thereafter they discovered that Jack Hirsch violated the property settlement agreement by (1) depriving plaintiffs, by various means, of their rights as beneficiaries under the insurance policies, and (2) selling the securities held in trust for plaintiffs and converting the proceeds to another use. Plaintiffs allege that Jack Hirsch used the proceeds of these wrongful acts to finance the purchase of land and the construction of a $200,000 house on it, title of the land and property being placed in the names of decedent and Doris Hirsch as tenants by the entireties.

Plaintiffs filed a complaint naming as defendants: (1) the insurance companies (2) the executors of Jack Hirsch’s estate and (3) Doris Hirsch. As to defendant Doris Hirsch, plaintiffs sought to impose a constructive trust on the above-mentioned real property for their benefit.

Doris Hirsch filed a motion to dismiss the complaint as to her for failure to state a claim upon which relief could be granted. The trial judge held that Doris Hirsch had not been unjustly enriched by Jaek Hirsch’s wrongful actions and that a constructive trust was not available to plaintiffs. The motion of Doris Hirsch to dismiss was accordingly granted.

We reverse.

On a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, all facts alleged in the complaint and legitimate inferences drawn therefrom are deemed admitted. See Heavner v. Uniroyal, Inc., 63 N. J. 130, 133 (1973); J. H. Becker, Inc. v. Marlboro Tp., 82 N. J. Super. 519, 524 (App. Div. 1964).

The following facts and legitimate inferences appear from an examination of the complaint: (1) funds were wrongfully diverted from the insurance policies and from trust funds by decedent; (2) monies thus diverted were used in the purchase of land and construction of -the home in question, and (3) Doris Hirsch paid no consideration for her tenancy by the entirety which has now, by the death of her husband, resulted in her sole ownership of the -property.

It is fundamental -that • a constructive trust should be impressed in any case where failure to do so would result in unjust enrichment. D’Ippolito v. Castoro, 51 N. J. 584, 588 (1968). All that is required to establish a constructive trust is a finding that there was a wrongful act resulting in the transfer of property and consequent unjust enrichment of another. Id. at 589. See also In re Mid-Center Redevelopment Corp., 383 F. Supp. 954, 971-973 (D. N. J. 1974); Restatement, Restitution, § 160 at 640 (1937).

The complaint alleges a wrongful diversion of trust funds resulting in the unjust enrichment of Doris Hirsch. It is clear that the facts alleged, if proven, establish her enrichment. The troublesome issue is whether this enrichment may be considered unjust so as to- give rise to a causo of action against her.

One receiving a benefit is liable to make restitution only if the circumstances of its receipt or retention are such that, as between two contestants, it would be unjust for the recipient to retain the benefit. Restatement, Restitution, § 1 at 12 (1937); cf. Brick Tp. v. Vannell, 55 N. J. Super. 583, 595 (App. Div. 1959).

Where two innocent parties are involved and the recipient of a wrongful transfer is a bona fide purchaser for value, the recipient will prevail over one seeking to impose a constructive trust. Restatement, Restitution, § 172 at 691 (1937); 5 Scott, Trusts (3 ed. 1967), § 474 at 3454; cf. Bajek v. Polack, 120 N. J. Eq. 104, 107-108 (Ch. 1936). On the other hand, where the recipient is a gratuitous transferee, she holds the property subject to the equitable rights of the wronged party and a constructive trust can be impressed. Restatement, Restitution, § 168 at 684 (1937); 5 Scott, op. cit., §§ 470, 510 at 3444, 3595.

Where a wrongdoer obtains funds at the expense of another and acquires other property with those funds, and then transfers the other property gratuitously to a third person, if the wronged party can “trace” the funds, he is entitled to reach the property and impose a constructive trust or an equitable lien on the property. Restatement, Restitution, § 202, comment (f) at 822 (1973); 5 Scott, op. cit., § 514.1 at 3605. In Golden v. Glens Falls Indemnity Co., 148 F. Supp. 41 (D. D. C. 1957), aff'd 250 F. 2d 769 (D. C. Cir. 1957), the court held that where a husband used funds, wrongfully obtained to purchase real estate, the funds could be traced to and a lien placed on the real estate now held by the wife where it had been held as tenants by the entireties and the wife obtained full title when her husband died.

Application of these principles to the complaint leads to the conclusion that plaintiffs have stated a cause of action against Doris Plirsch and that the complaint against her was wrongfully dismissed. Plaintiffs were beneficiaries of the insurance policies and the trust and had an equitable interest in the trust property and in the proceeds of the insurance policies. The complaint alleges that plaintiffs have an equitable interest in the real estate purchased with the wrongfully diverted funds. Giving plaintiffs the benefit of all favorable inferences it cannot be said, as a matter of law, that defendant Doris Hirsch is a bona fide purchaser; she may be a gratuitous transferee and may have taken title to the property subject to the equitable interest of plaintiffs. Marriage itself has been considered value, so as to make the wife a bona fide purchaser, only where the marriage is in consideration of the transfer of the property. 4 Scott, op. cit., § 298.2 at 2431. In the limited record before us there is no indication that this is the case here.

^Reversed and remanded. We do not retain jurisdiction.

      Jack Hirsch allegedly manipulated the insurance policies as follows : changed the beneficiary to Doris Hirsch on some policies; borrowed money on several of the policies; reduced the face amount of several policies to paid-up policies and discontinued paying premiums on them.


author: Lynch, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HIRAM GONZALEZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 20, 1975
    Decided June 18, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Lloyd N. Simon, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Wilbur H. Mathesius, Acting Prosecutor of Mercer County, attorney for respondent (Mr. Neil J. Casey, III, Assistant Prosecutor, of counsel and on the brief).

      Ms. Susan W. Sciacca, Deputy Attorney General, submitted a brief as amicus curiae for the State of New Jersey (Mr. William F. Hyland, Attorney General, attorney).
   The opinion of the court was delivered by

Lynch, J. A. D.

Defendant appeals from a conviction for receiving stolen property and from two convictions for contempt of court. He was sentenced to two consecutive six-month sentences on each of the contempt charges and to an indeterminate term at Yardville on the criminal charge, the latter sentence to be served consecutively to the contempt sentences.

On appeal toe -first contends that, since the contempt sen-i tences aggregate more than six months, he was entitled to a jury trial and the summary findings and imposition of sentences by the-judge; below were therefore illegal. Secondly, defendant contends that he was-denied effective assistance.of counsel .by the failure of. his defense counsel to assist him during the contempt citations. - Lastly, he -contends .that.the sentences were manifestly excessive, unduly punitive and an abuse of the sentencing court’s discretion.

On September 9, 1974 defendant entered a plea of guilty to a chargeYf receiving stolen property, which plea was accepted by the trial judge ¿nee the factual basis therefor had been established. The alleged contempts occurred during a subsequent, sentencing proceeding. Defendant asked the judge that he be placed “in some kind of program,” rather than being confined to Yardville. He claimed that it had been his understanding that by pleading guilty he would be placed on probation. The judge neverthéless sentenced deféndant to an indeterminate term at Yardville. When the judge advised defendant that he had a right to appeal, defendant uttered certain vulgarities concerning “all” involved but particularly concerning his'defense counsel. The judge immediately held-him in contempt of court for his actions and sentenced him to the Mercer County Workhouse for a period of six months. Defendant then directed additional scurrilous remarks'to the court, to which the judge responded: “That is another contempt.- You are sentenced to the Workhouse for a period of an additional six months.” Defendant continued to' direct obscenities and implied threats to the courts and’ the matter was concluded.

On this appeal the acting prosecutor filed a brief in which it was conceded that the imposition of the sentencestotalling more than six months was in error. Thereafter, the Attorney General of New Jersey filed another brief which, contrary to the prosecutor’s position, contended that the separate six-month sentences were not improper. Since two briefs had been filed on behalf of the State, the Attorney General requested that his brief be withdrawn, unless this court deemed it appropriate that it be considered on an amicus curiae basis. We conclude that the latter is the appropriate procedure and it is ordered that the Attorney General’s brief be. accepted as that of amicus curiae. ■

There is no question that a defendant may be convicted for contempt of court for disrupting proceedings by the use of improper language directed to the court or to an attorney. Mayberry v. Pennsylvania, 400 U. S. 455, 466, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971); State v. Fisher, 115 N. J. Super. 373, 377 (App. Div. 1971).

In In re Callan, 122 N. J. Super. 479 (Ch. Div.), aff’d 126 N. J. Super. 103 (App. Div. 1973), rev'd on other grounds 66 N. J. 401 (1975), it was said:

A contempt is a disobedience of the court by acting in opposition to its authority, justice and dignity. It comprehends any act which is calculated to or tends to embarrass, hinder, impede, frustrate or obstruct the court in the administration of justice, or which is calculated to or has the effect of lessening its authority or its dignity; or which interferes with or prejudices parties during the course of litigation, or which otherwise tends to bring the authority and administration of the law into disrepute or disregard. In short, any conduct is contemptible which bespeaks of scorn or disdain for a court or its authority. In re Bozorth, 38 N. J. Super. 184, 188 (Ch. Div. 1955) ; In re Clamans, 69 N. J. Super. 373 (App. Div. 1961), cert. den. 36 N. J. 296 (1962) ; 17 Am. Jur. 2d, Contempt, § 3 at 6 (1964) ; 17 C. J. S. Contempt § 2 at 5, § 25 at 66 (1963). [at 494],

Moreover, it has been held that a court may summarily convict and impose punishment for contempt, without any provision for notice or an opportunity to be heard, provided that the contemptuous conduct occurred in the immediate presence of the judge and was personally witnessed by him, and that the conduct created “an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the jndge before the public” that if “not instantly suppressed and punished, demoralization of the court’s authority would follow.” Cooke v. United States, 267 U. S. 517, 536, 45 S. Ct. 390, 395, 69 L. Ed. 767 (1925); In re Oliver, 333 U. S. 257, 275, 68 S. Ct. 499, 92 L. Ed. 682 (1947); see also Taylor v. Hayes, 418 U. S. 488, 497, 94 S. Ct. 2697, 2702, 41 L. Ed. 2d 897, 907 (1974); Groppi v. Leslie, 404 U. S. 496, 503-504, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972); Mayberry v. Pennsylvania., supra, 400 U. S. at 463, 91 S. Ct. 499 (1971); Ex Parte Terry, 128 U. S. 289, 308-310, 9 S. Ct. 77, 52 L. Ed. 405 (1888).

In addressing itself to the power of a judge to deal summarily with contumacious conduct in his courtroom, the United States Supreme Court recently said in Codispoti v. Pennsylvania, 418 U. S. 506, 513-514, 94 S. Ct. 2687, 2692-2693, 41 L. Ed. 2d 912, 920-921 (1974) :

There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process' in the face of an “actual obstruction of justice,” In re McConnell, 370 U. S. 230, 236, 82 S. Ct. 1288, 1292, 8 L. Ed. 2d 434, (1962) ; see also In re Little, 404 U. S. 553, 555, 92 S. Ct. 659, 660, 30 L. Ed. 2d 708, (1972), convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur. Undoubtedly, where the necessity of circumstances warrants, a eontemnor may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the punishment imposed for separate contemptuous acts during trial equals or exceeds six months. Cf. United States v. Seale, 461 F. 2d 345, 355 (CA 7 1972).
Bloom v. Illinois, supra, recognized, as cases in this Court have consistently done, “the need to maintain order and a deliberative atmosphere in the courtroom. The power to quell disturbance cannot attend upon the impaneling of a jury.” 391 U. S., at 210, 88 S. Ct. 1477, at 1486. [20 L. Ed. 2d 522],
“[A] criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam. 4" * * A courtroom is a hallowed placed where trials must proceed with dignity. * * *” Illinois v. Allen, 397 U. S. 337, 351, 90 S. Ct. 1057, 1064, 25 L. Ed. 2d 353 (1970) (Douglas, J., separate opinion) ; see also Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 10-23 (1973) ; Burger, The Necessity for Civility, 52 F.R.D. 211, 214-215 (1971).
“To allow the disruptive activities of a defendant * * * to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the process that the Constitution itself prescribes.” Illinois v. Allen, supra, 397 U. S., at 350, 90 S. Ct. [1057] at 1064. [25 L. Ed. 2d 353] (Brennan, J., concurring).
More recently, in Mayberry v. Pennsylvania, supra, we again noted that a judge, when faced with the kind of conduct there at issue, “could, with propriety, have instantly acted, holding petitioner in contempt * * *.” 400 U. S., at 463, 91 S. Ct. 1499], at 504 [27 L. Ed. 2d 532]. That the total punishment meted out during trial exceeds six months in jail or prison would not invalidate any of the convictions or sentences, for each contempt has been dealt with as a discrete and separate matter at a different point during the trial.

We are satisfied here that defendant’s convictions for contempt rest upon separate incidents, though occurring over a short period of time. Upon the pronouncement of the first six-month sentence it may well have been anticipated, or at least hoped, that defendant would not again offend. But he continued to express his scorn for the court in vulgar terms. The second contempt conviction and sentence were entirely appropriate under the circumstances, and there was no denial of defendant’s right to a trial by jury.

We recognize that defendant’s actions here did not occur during "trial,” as in Codispoti v. Pennsylvania, supra, but rather during sentencing. That is a distinction without a difference. All the conditions which justify summary convictions for contempt during a trial were present here. Defendant’s contemptuous conduct occurred in open court and was directly witnessed by the judge. Immediate treatment was necessary to preserve order and a deliberate atmosphere in the courtroom.

We find no merit in defendant’s claim of ineffective assistance of counsel. B. 2:11 — 3(e) (2).

And finally, there was no abuse of discretion in the consecutive sentences imposed for the separate contempts committed and for receiving stolen property. The convictions and sentences are affirmed.


author: McKenzie, J. C. C.,

text:
    SPARTY J. NARDONE, A/K/A SPARTICUS JOHN NARDONE, PLAINTIFF, v. LUCILLE NARDONE, A/K/A LUCIA ANN NARDONE, DEFENDANT.
    Superior Court of New Jersey Chancery Division.
    Decided June 10, 1975.

      Mr. Charles B. Thatcher, Jr., for plaintiff.
   McKenzie, J. C. C.,

Temporarily Assigned. The parties were married July 2, 1949. In June 1971 defendant wife advised plaintiff husband that she was involved in an adulterous relationship with the co-respondent. The relationship continued until June 1972, when plaintiff joined defendant in inviting the co-respondent to reside with them. The corespondent and defendant occupied the master bedroom while plaintiff slept in another bedroom in the house. About January 1974 plaintiff moved from the marital home to Pennsylvania after accepting employment in that state. At no time did plaintiff object to the relationship between defendant and the co-respondent, and in fact it is clear that he consented to it impliedly, if not expressly.

Is plaintiff entitled to a judgment for divorce on the grounds of adultery based on the above circumstances?

The 1971 revision of our Divorce Law was based primarily on the present-day concept that the viability of the marriage, rather than the assessment of fault, should be the principal factor to be considered in determining whether a marriage should be dissolved. See Divorce Law Study Commission, Final Report to the Governor and Legislature (1970) at 6-8. Accordingly, in addition to the introduction of the nonfault ground for divorce based on separation (N. J. S. A. 2A:34A2(d)), the Legislature abolished the defenses of con-donation, recrimination and unclean hands in divorce cases. N. J. S. A. 2A :34-7.

Previously, connivance in or consent to the adulterous conduct of the wife was a bar to the right of the husband to obtain a divorce on adultery grounds. This rule was grounded on the premise that it was the duty of a husband “to protect his wife’s fair name, and to see that she was not improperly led into temptation.” Atha v. Atha, 94 N. J. Eq. 692 (Ch. 1923); aff’d 95 N. J. Eq. 275 (E. & A. 1923). A husband who failed to perform his duty to so protect his wife was held to have unclean hands, barring him from the relief to which he would otherwise be entitled. See Bingenheimer v. Bingenheimer, 2 N. J. 284 (1949).

In abolishing the unclean hands doctrine, the Legislature has adopted the view that to withhold relief in such circumstances is simply the infliction of punishment by the State. Final Report to the Governor and Legislature, supra at 6. Clearly the marriage is not “less dead” because the husband does not object to the wife’s adultery. Volenti non fit injuria is now substantially inapplicable in the field of divorce law.

Plaintiff is granted a judgment for divorce.