author: Morgan, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RALPH X. DAVIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 21, 1974 —
    Decided December 16, 1974.

      Before Judges Michels, Morgan and Kentz.

      Mr. Kenneth N. Siegel, Assistant Prosecutor, argued the cause for respondent (Mr. Karl Asch, Prosecutor of Union County, attorney; Mr. Lawrence H. Posner, Assistant Prosecutor, on the brief).

      Mr. Stephen S. Weinstein argued the cause for appellant.
   The opinion of the court was delivered by

Morgan, J. A. D.

In January 1963 the Union County grand jury, in two separate indictments, charged Ralph X. Davis, then in custody, with the murder of two persons. Indictment No. 185-J-62 accused him of murdering one Leon Hanjian, a rug merchant in Elizabeth, on January 25, 1963, and Indictment No. 186-J-62, the one with which this appeal is concerned, charged him with the murder of one Joseph Holden, an Elizabeth taxicab driver, during the early morning hours of January 23 ox 24, 1963. The Hanjian indictment (185) was tried first and, following a conviction obtained on December 16, 1963, a sentence of death was imposed. That conviction was reversed on appeal and, following retrial which resulted in another conviction, the death sentence was again imposed in November 1965. Eor the next several years defendant fought unceasingly in both the state and federal courts against his own extinction. Nothing occurred with respect to Indictment 186 (the Holden murder and the indictment with which we are here concerned) because in 1964, during the pendency of the appeal proceedings with respect to Indictment 185, the State, upon an ex parte application, succeeded in having Indictment 186 placed on the inactive list where it apparently languished, forgotten by the State, until the case of State v. Funicello, 60 N. J. 60 (1972), cert. den. 408 U. S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972), was decided on January 17, 1972. Fumcello declared the unconstitutionality of the death penalty and mandated remission of all pending death sentences to life imprisonment to be imposed, nunc ;pro tunc, as of the date sentence was initially imposed. Accordingly, defendant’s death sentence on the Hanjian conviction was commuted to life imprisonment to run from the date of his sentence on November 18, 1965, with all credits to which he would have been entitled had he been originally so sentenced.

Even after Fumcello was decided, the State took no action with respect to the inactive Indictment 186. Rather it was defendant’s counsel, who on November 3, 1972, reactivated the case by filing a motion for discovery. On May 25, 1973 substituted counsel moved for dismissal of that indictment on the ground that a trial held approximately 11 years after return of the indictment would violate defendant’s state and federally guaranteed constitutional rights to a speedy trial. U. S. Const., Amend. VI; N. J. Const. (1947), Art. I, Par. 10. Following a hearing directed to the speedy trial issue, during which extensive testimony was taken, the trial court denied defendant’s motion to dismiss. Pursuant to leave granted, defendant appeals from this interlocutory order.

At the hearing below, the chronology of events already recited was regarded as being without any dispute. The State admitted to the trial court, as it did to this court on oral argument, that it made no effort to bring Indictment 186 to trial because it was of the view that no purpose would be served by such a trial in light of the death penalty already imposed with respect to the companion indictment. It was for this reason that the State obtained the ex parte order placing the indictment on the inactive list, where it remained until reactivated by defendant’s motion for discovery.

In an effort to establish that demands for trial were made during the years 1964, 1965, 1968 and 1969, defendant testified that he wrote several letters to the Union County Prosecutor requesting trial of Indictment 186. Although he retained copies of these letters, the copies had been lost in June of 1972 during his transfer from one institution to another, and a prison official, one Sergeant Masters, testified that defendant did make a claim for property lost during such a transfer. Several fellow inmates produced at the hearing testified that they had observed and had helped defendant write some of these letters. No letters from Davis were found on file with the prosecutor’s office. The chief clerk’s testimony as to the routine followed in handling inmate mail was offered for the purpose of discrediting defendant’s assertions that such letters had been sent.

Defendant testified that two persons, now deceased, the Eeverend and Mr. Eauntleroy, would have been able to provide him with an alibi for the Holden murder since he now claims he was in their company for most of the period of time during which the murder could have been committed. The State, however, produced a statement taken from defendant shortly afteT his arrest for both murders in which he made no mention of these two persons as possible alibi witnesses. No notice of alibi was served upon the prosecutor’s office because, as testified to by Mr. Abrams, counsel assigned for both indictments, no one cared about the fate of Indictment 186 after the death penalty had been imposed upon Indictment 185, and no steps were therefore taken to prepare the matter for a trial which all believed would never take place.

At oral argument, and upon request from this court, the State outlined in brief the evidence it intended to produce at the proposed trial of Indictment 386. The State’s ease would be circumstantial in nature. No one witnessed Holden’s murder. According to the State, the bullet which killed him came from the same gun which killed Hanjian approximately two days later and which was found in defendant’s possession after the Hanjian tnurder, and a ballistics report will be offered by the State in support of this contention. Holden was a cab driver and his change dispenser was found missing when his body was discovered. The State intends to produce an employee of a dry cleaning establishment who allegedly will testify that about the time of the murder defendant paid for dry cleaning with substantial amounts of change. Defendant lived on the same block where Holden’s body was discovered still in his cab. The State also indicated that it intends to produce evidence of the Hanjian murder and defendant’s conviction thereof as establishing a common scheme or plan because Hanjian and Holden were killed within days of each other and in the same maimer, with a bullet fired into the back of the head at point blank range.

It is undisputed' that the bullet which killed Holden is missing and has been missing for several years. Defendant contends that because the bullet is lost, he is now foreclosed from having it examined by his own ballistics expert in order to possibly dispute the fact basic to the State’s case that it was fired by the gun which killed Hanjian. The report of defendant’s expert submitted to this court suggests that the expert can utilize the photographs of the bullet taken by the State, although it emphasizes that photographs are certainly less preferable than having the bullet itself.

The trial judge denied defendant’s motion to dismiss Indictment 186. After applying the balancing test described in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), he concluded that although the delay between indictment and proposed trial was extraordinarily long, the reason given by the State in explanation for the delay was a fully sufficient and reasonable one. He declined to believe defendant’s testimony that he had demanded trial by writing letters to the prosecutor and found that no such demands had been made by defendant prior to the filing of the present motion to dismiss. The judge further disbelieved defendant’s testimony that the two deceased Eauntleroys would have testified that he was with them during the time Holden could have been murdered. No mention was made of the missing bullet.

After careful consideration of this difficult and unfortunate case, we are firmly of the view that trial of an indictment 11 or 12 years after its return constitutes, in the circumstances here presented, a clear violation of the defendant’s federally and state guaranteed right to a speedy trial. Although the speed with which a trial must follow an indictment’s return is regarded as being relative to the circumstances in which a claim of unconstitutional delay has been asserted, there comes a point at which delay extended for an extraordinary length of time so weights the scale on which several considerations are to be balanced, that time becomes the decisive factor.

In the recent case of State v. Smith, 131 N. J. Super. 354 (App. Div. 1974), this court had occasion to examine some of the changes in Hew Jersey law wrought by x-ecent decisions emanating from the United States Supreme Court. Moore v. Arizona, 414 U. S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); Strunk v. United States, 412 U. S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973); Barker v. Wingo, supra. Barker rejected a rigid approach in favor of a flexible one to the troublesome problems created by trial delays by adopting a so-called “balancing test” to determine compliance with constitutional requirements. This test, applied by the trial court below, is to be applied to each speedy trial case on an ad hoc basis, and requires the consideration and weighing of four factors in evaluating a claim that an accused’s right to a speedy trial has been violated. They are: length of delay, the reason for the delay, defendant’s assertion of his right, and prejudice to defendant. These were only some of the factors which the court in Barker was able to identify as bearing on disposition of speedy trial claims. The list of factors referred to was not intended to be an exhaustive one but only illustrative of type of factors properly considered by a court in determining the merits of any speedy trial claim. Moore v. Arizona, supra, emphasized that none of these four factors was alone to be regarded as dispositive and thus dispensed with the frequent routine adhered to by many courts of searching for possible prejudice to a defendant resulting from any particular delay. Prejudice, therefore, can no longer be regarded as a necessary basis for a finding of a speedy trial violation. Strunk v. United States, supra, merely re-emphasized the concept discussed at length in Barker that dismissal of an indictment was the only remedy available for a found violation of an accused’s right to a speedy trial

In Smith, this court rejected defendants’ claim that their rights to a speedy trial had been violated by a delay of approximately three and a half years between the return of the initial indictment and their motion to dismiss charges against them. It did so after applying the balancing test required by Barker, noting that the charges brought were complex in nature involving the conduct of several defendants in their official capacities, that some of the delay encountered resulted from attempts by the State to obtain additional evidence against these defendants and some awaiting the results of the appeal in that case. None of the defendants were hampered in defense of the charges as a result of the delay. We concluded, on balance, that the three and a half year delay complained of did not constitute violation of their right to a speedy trial. In the present case, the delay is almost three times as long, one charge against only one defendant is involved, and the reason given by the State for the delay bears no relation to the State’s case against the defendant.

In our view, a trial eleven years after an indictment’s return is, prima facie, not a speedy trial. To so characterize it is to empty of meaningful content a constitutionally guaranteed right which has been termed both fundamental and essential to all of concepts of due process and fair proceeding. Sharp differences between announced principles and actual practice are not and should not be long tolerated. In State v. Appice, 23 N. J. Super. 522 (App. Div. 1952), aff’d 13 N. J. 286 (1953), the court observed:

* * * Our courts speak of the right to a speedy trial as “one of the fundamental safeguards of the individual against the overreaching of the power of the State * * * grounded in the taproots of the common law.” * * * If declarations like this are not to become anything more than high-sounding phrases, the burden is upon the State to dispose of indictments with all reasonable dispatch. The long delay here is not consonant with constitutional safeguards and the minimum concepts of justice. It cannot be justified because of the pressure of the criminal trial calendar. [23 N. J. Super. at 530]

Notwithstanding the foregoing language, the court reluctantly refused to dismiss the indictment, then about 4J4 years old, because the accused had never made a demand for trial and failed to convince the court that his ability to defend had been impaired by the delay. The present ease involves an 11-year delay and therefore presents this court with a renewed opportunity to bring our practice into harmony with routinely announced lofty constitutional principles. Failure to do this, in our view, can only result in the perpetuation of a sharp dichotomy between principle and practice, bringing in its wake disrepute to both.

The time has come for the State to accept primary responsibility for bringing indictments to trial with all reasonable dispatch. State v. Appice, supra. As noted in Barker v. Wingo:

* * * But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. [407 U. S. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 116]

In People v. Prosser, 309 N. Y. 353, 130 N. E. 2d 891 (Ct. App. 1955), the court gave recognition to this allocation of responsibility now confirmed by Barher:

*• * *• It is the state which initiates the action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial, [at 895].

No longer can New Jersey leave it to those accused of crime to press for trial of their own guilt. While a demand for prompt trial by an accused provides one means for assuring it, R. 3:25-2, and remains au important factor in determining whether the right to a speedy trial has been violated, it is no longer the only available means by -which his constitutional right to a speedy trial will be protected.

In the present case, the State seeks to excuse its long period of inactivity by reference to the fact that defendant had been sentenced to death for a murder conviction made final in 1965, nine years ago. The State candidly admits that it obtained inactive status in 1964 for the present indictment because of its view that the open indictment would probably expire wih defendant. It was only with the demise of the death penalty announced in State v. Funicello, supra, that gears were engaged to move- this case for trial 11 years after return of the indictment. The trial court accepted this explanation for the delay as being a sensible one and sufficient to excuse the extended period of prosecutorial inactivity in this case. We disagree with this point of view.

This is not a case in which defendant’s conduct caused or even contributed to the delay. He was not a fugitive, Morland v. United States, 193 F. 2d 297 (10 Cir. 1951); Shepherd v. United States, 163 F. 2d 974 (8 Cir. 1947), and did not involve himself in a series of time consuming legal maneuvers in order to stave off trial of his guilt. Fowler v. Hunter, 164 F. 2d 668 (10 Cir. 1947). Nor is this a ease, such as Barker, where defendant had some reason to delay trial. In Barker, it will be recalled, the court suggested that Barker had been hoping for an acquittal of his accomplice whose testimony the state intended to use at trial, and that was the reason he had not objected to most of the many applications made by the state for continuances. In the present case neither the trial court nor the record suggests that defendant wished to delay his trial. The clear import of all that occurred below is that he was so preoccupied with the overriding concern of saving his own life, imperilled by the conviction on Indictment 185, that he gave no thought to the existence of Indictment 186.

The delay in this case was caused solely and exclusively by the State and represented a considered, intentional and unequivocal course of action undertaken because imposition of the death penalty was felt to be a complete vindication of the public’s interest in defendant’s future, then viewed as brief. The quest for a second death-carrying conviction was deemed superfluous, involving a needless expenditure of public money and effort. Although no one can quarrel with the sensible expedience of the State’s position in this regard, the State’s concerns were not shared by defendant and had nothing to do with its case against him. The consequences of the unilateral and ex parte action taken by the State in the service of its own interest cannot, in justice, be visited upon this defendant.

The reason given by the State for the extended delay in this case is not entirely novel. In State v. Coolack, 43 N. J. 14 (1964), the prosecution had been delayed 12 years, inferentially because Coolack had been sentenced to a life term on another charge and the State had apparently regarded the public interest as having been fully served by imposition of that lengthy sentence. The charge was nonetheless dismissed despite absence of demand by the accused for trial, primarily because of the extraordinary length of the delay and the death of a witness, although that witness’ testimony had been recorded in the other trial. While the court did not pass upon the sufficiency of the inferred reason for the delay, the dismissal of the indictment provides evidence of the court’s opinion in that regard.

Again, in United States v. Chase, 135 F. Supp. 230 (N. D. Ill. 1955), the accused on conviction for murder has been sentenced to a life term which he was serving in Alcatraz. Another indictment for murder was therefore not pressed for trial. Twenty years later, the accused moved for trial or dismissal of the indictment. In the absence of a demand and on a presumption of prejudice stemming from the inordinate delay of 20 years, the court dismissed the indictment on speedy trial grounds. While the court did not pass upon the reasons for the delay, again its decision evidences its unwillingness to accept such circumstances as a sufficient reason for so long a delay.

In People v. Prosser, supra, a case bearing remarkable similarity to the present one, the accused had been sentenced to a life term following pleas of guilty to several offenses. It was only after that sentence had been declared illegal and shortened, that the state attempted to move for trial another indictment for murder then six years old. In explaining the reason for the six-year delay, the prosecutor acknowledged that his predecessor thought there was nothing to be gained by further prosecution. Judge Puld, speaking for a unanimous Court of Appeals, viewed this excuse as demonstrating not the “slightest ‘good cause’ ” for the six year delay and dismissed the indictment on speedy trial grounds. In the present case the delay was almost twice as long and, in our view, the excuse given provides an insufficient basis to deprive an accused of his conceded right to prompt adjudication of his guilt.

Moreover, it must be borne in mind that' the State took steps, ex parie, to have defendant’s case placed on the inactive list without any notice to him or his attorney, or the consent of either. Such an action evidences service of the State’s interests only. Had the State given notice to defendant or his attorney, of the action it was taking, steps could have been taken at that time to force the matter to trial or dismissal. Since defendant was then under a sentence of death, and the State admittedly had no further interest in pursuing prosecution of Indictment 186 at that time, a dismissal would have been a distinct possibility. The ex parte action of the State in indefinitely shelving this indictment denied defendant the benefit of this possibility.

The court in United States v. Chase, supra, significantly noted a similar unilateral action taken by the prosecuting authorities in that case, and referred to Arrowsmith v. State, 131 Tenn. 480, 175 S. W. 545 (Sup. Ct. 1915), wherein it was noted:

As we have seen, the orders entered on October 24, 1912, by which the several untried cases against Arrowsmith were “retired from the docket until the expiration of said sentence,” were made in the absence and without the knowledge or consent of the accused, who was at the time an inmate of the state penitentiary, and without the knowledge or consent of his counsel * * *
The record discloses that no effort was made by the prosecution to put the accused on trial, though confessedly, there was sufficient time and opportunity therefor. The fact that the defendant was then incarcerated was no legal excuse for the delay, as has been observed.
Arrowsmith was conditioned so that he could not personally demand that his own trial be proceeded with; and without the knowledge of either himself or his counsel the court in legal effect, through the order, continued the cases for approximately two years — needlessly and vexatiously. [175 S. W. at 547],

Significantly, the State declined to move for outright dismissal of Indictment 186 although at the time of its ex parte application it had no present intention of moving that indictment for trial. Instead, its action in indefinitely shelving the indictment, thus keeping its options open, betrayed that intention by evidencing some equivocation as to future trial of this indictment. Clearly, defendant’s interest in indefinite postponement of trial was manifest, and elemental fairness dictated that he should have been notified of the attempt.

Finally, with respect to the sufficiency of the reason given for the delay, it must be emphasized that the delay which resulted was entirely unnecessary. The trial the State now wishes 11 years after indictment, could have been had at any time with promptness and due expedition. The court in Dickey v. Florida, 398 U. S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970), in setting forth guidelines for determination as to the reasonableness of a given delay noted:

* * * Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been, avoided —- whether it was necessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect- *' * *’ [Emphasis supplied]

Hence, in this case this court is faced with an indictment almost 12 years old, in which the delay in trial was caused intentionally by the State in furtherance of its own interests, without the knowledge or consent of the accused or his attorney, and without any real necessity for so long a delay. In these circumstances, without more, there should be little doubt that a trial of this matter would constitute clear violation of the accused’s right to a speedy trial.

The trial judge found as a fact that defendant had not demanded trial, discrediting defendant’s testimony that he had attempted to do so. We have no quarrel with this finding because there does exist substantial evidence in its support and we defer to the superior opportunity of the trial judge to evaluate credibility. The absence of a demand for speedy trial, although continuing to be a factor in determining speedy trial violations, no longer mandates the conclusion that the accused waived his right to one. Barker explicitly rejected the so-called demand-waiver rule permitting an inference that the accused waived his right to a speedy trial from his failure to demand one. 407 U. S. at 528, 92 S. Ct. 2191, 33 L. Ed. 2d at 115. Waivers of fundamental rights are not to be lightly inferred from mere inaction, Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), and that rule has now been made applicable by Barker to the equally fundamental right to a speedy trial. Accordingly, those cases in New Jersey which suggest or hold that an accused waives his right to a speedy trial solely by failing to press for trial or which define this right solely in terms of the right to demand trial, no longer can be viewed as consonant with federal constitutional standards. See, e. g., State v. Von Atzinger, 81 N. J. Super. 509 (App. Div. 1963). An accused can waive his right to a speedy trial, but affirmative evidence of such a waiver must be shown. Mere inaction prior to trial, without more, no longer suffices.

In the present case no evidence was produced tending to show that the accused had waived his right to a speedy trial of Indictment 186. The inference is clear that neither he nor his attorney gave it any thought, bending all efforts to the all-important objective of saving defendant’s life. Both were free to assume, and in fact his attorney testified that he did assume, that Indictment 186 would never be tried. Such an assumption was fully justified in light of the State’s candid admission that from the date the death sentence was imposed in 1963 until the Funicello decision in 1972, it had no intention of trying the case. Defendant and his counsel were therefore assuming what was in fact true, and they cannot now be faulted for not demanding a trial which all assumed would never be held. Certainly, the proofs adduced admit of no conclusion of waiver.

Finally, we arrive at consideration of whether defendant has been prejudiced by this eleven year delay in trial. Preliminarily, it must be noted that an affirmative-showing of prejudice can no longer be regarded as a sino: qua non to a finding of a speedy trial violation, Moore v. Arizona, supra, although its presence or absence continues to be a factor to be taken into account. Barker v. Wingo, supra. Moreover, where delay is as extended as it is in the present case, prejudice resulting therefrom can justifiably be presumed to exist. United States v. Simmons, 338 F. 2d 804 (2 Cir. 1964), cert. den. 380 U. S. 983, 85 S. Ct. 1352, 14 L. Ed. 2d 276 (1965); United States v. McIntyre, 271 F. Supp. 991 (S. D. N. Y. 1967); Hedgepeth v. United States, 124 U. S. App. D. C. 291, 364 F. 2d 684 (1966). The very assumption of the Sixth Amendment is that unreasonable delays are by their nature prejudicial. Hedgepeth v. United States, supra.

In the present ease, the trial judge concluded on the basis of testimony adduced that defendant was not prejudiced by the 11-year delay. In reaching this conclusion the judge apparently overlooked the fact that the bullet which constituted the essential link between defendant and ELol-den’s murder is no longer available, and that defendant’s ability to contest the source of the bullet as coming from a gun found in his possession has been seriously impaired. So crucial is this evidence that without it it is doubtful that a grand jury would have indicted. Also, without mention is the fact that defendant’s attorney’s file has been lost and whatever material favorable to his defense, if there was any, can no longer be ascertained.

Moreover, the decision below fails to appreciate the immanence of prejudice in so long a delay which can only rarely be reflected on the record. Barker v. Wingo, 407 U. S. at 532, 92 S. Ct. at 2193. As noted in the case of United States v. Chase, supra:

The thought of ordering him to trial on this charge after a lapse of twenty years shocks the imagination and the conscience. While 1 have not been informed as to how many of the witnesses are available to either side, it can almost be judicially noticed that the passage of that length of time will have made some of them inaccessible. Even if two decades have left them alive and within the jurisdiction of this ■ court, certainly their memories of those long past events are clouded. They could not be said after that length of time to be testifying to what they remember; they would be recalling something as in a dream, a kind of phantasmagoria, rather than an independent recollection. The human mind is so constructed that remembrance of even the sharpest experiences dulls with time. Witnesses, however honest, could not respond with any accuracy to cross-examination, and another important right would thus be lost to petitioner. [135 F. Supp. at 233]

The fact that the present case involves a delay of only 12 years instead of 20 does little to render these important insights inapplicable to this case.

The conclusion of the trial judge that the alleged alibi witnesses represented sheer invention on the part of defendant in order to obtain a speedy trial dismissal may indeed be a correct one. It takes not too much ingenuity on the part of one who has the rest of his life at stake to claim that a recently deceased person would have provided him with a complete alibi. Courts are alert to the possibility of contrivance of that kind. See State v. Appice, supra. The disturbing aspect of this kind of adjudication, however, is that the court may also be wrong. Ordinarily, the presence or absence of an alibi is for jury determination, and the sufficiency of all defenses, not only that of alibi, to create a reasonable doubt as to a defendant’s guilt is for jury determination after the evidence is heard and not for the court in advance of trial.

A pretrial search for evidence of prejudice frequently does involve the court in passing upon the materiality, relevance or credibility of some item of evidence, now missing, and its possible effect upon a jury’s verdict. In close cases such a procedure may not be avoidable. But where the delay is as extraordinary as it is in this case and the occasion for the search for prejudice has been created by intentional conduct on the part of the State without notice to or consent of defendant or his attorney, such pretrial incursions into the factual validity of alleged defenses are unnecessary.

For all of the reasons stated herein, we reverse the order of the trial court and dismiss the indictment. Defendant is presently serving the balance of a life term. When he becomes eligible for parole it will be up to the parole authorities to determine whether “there is reasonable probability that, if such prisoner is released, he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of society.” N. J. S. A. 30:4-123.14. Thus, the public interest can still be served by the parole board under the sentence defendant is now serving. State v. Coolack, supra.

      The indictment was returned in January of 1963. The motion to dismiss was made returnable in May of 1973, or a period of approximately 10% years. Trial of the case, however, could not have been expected before September 1973 and, with the time required for resolution of the present appeal, could not be held until early in 1975, a period of 12 years after return of the indictment.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RANDALL NUSS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 10, 1974 —
    Decided December 19, 1974.

      Before Judges Halrern, Crahay and Ackerman.

      Mr. Stanley C. Van Ness, Public Defender of Hew Jersey, attorney for appellant (Mr. Edward J. Dimon, Assistant Deputy Public Defender, of counsel and on the brief)’.

      Mr. William F. Hyland, Attorney General of Hew Jersey, attorney for respondent (Mr. Willard E. Byer, Jr., Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Defendant and a confederate, Daniel Panechelli, were indicted in Camden County and in Mercer County on separate but similar charges of breaking into cars with intent to steal. Defendant entered into a plea bargain with the Camden County Prosecutor to plead guilty to the Camden charge on the prosecutor’s promise to recommend he be given a four to six-year State Prison term. The further condition of the plea bargain agreed to was that the Camden sentence would be imposed after the Mercer sentence and would run concurrently with it.

Parenthetically, we note that Panechelli pled guilty to the same charges in both counties, he has served his time and is now on parole.

Defendant was scheduled to be sentenced in Mercer County on June 11, 1971 and in Camden on June II, 1971. Defendant failed to appear for sentencing in either county — giving the lame and unacceptable excuse that he had been confined on several occasions to hospitals for a heart condition.

He was arrested in Camden in June 1972. Because the Camden County trial judge felt that defendant’s failure to appear for sentencing abrogated the original plea bargain, he sentenced him, on his year-old guilty plea, to a State Prison term of four to six years. Thereafter, and contrary to the plea bargain, he was sentenced in Mercer County to a consecutive term of three to eight years, totalling aggregate sentences of seven to fourteen years.

No direct appeal was taken, but defendant’s application for post-conviction relief was denied. With commendable frankness, the Attorney General admits that the Camden County trial judge imposed an illegal sentence when he departed from the plea bargain without defendant’s consent and imposed the four to six-year term prior to the imposition of the Mercer County sentence. It is our view that this error exists even though defendant did not request a withdrawal of his plea.

Under the circumstances we have no alternative but to set aside the Camden County sentence and direct the trial judge to give defendant the opportunity of withdrawing his guilty plea. See Approved Draft of the American Bar Association Project on Minimum Standards for Criminal Justice, "Standards Relating to Pleas of Guilty,” § 3.3(b), and commentary thereon (1968); Santobello v. New York, 404 U. S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Thomas, 61 N. J. 314 (1972). It is the trial judge who, being dissatisfied with a proposed bargain, whatever the reason, must advise defendant of his right to withdraw his guilty plea.

In light of our determination, and the fact that this is an alleged excessive sentence appeal, we need not determine that issue. Jurisdiction is not retained.


author: Bischoff, J. A. D.

text:
    PATROLMAN’S BENEVOLENT ASSOCIATION OF MONTCLAIR, NEW JERSEY, LOCAL NO. 53, PLAINTIFF-APPELLANT, v. TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION AND THEODORE MACLACHLAN, DIRECTOR OF DEPARTMENT OF PUBLIC SAFETY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 2, 1974 —
    Decided December 20, 1974.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. James R. Zazzali argued the cause for appellant (Messrs. Zazzali & Zazzali, attorneys; Mr. Lawrence A. Whipple, Jr., on the brief).

      Mr. Frank X. McDermott argued the cause for respondents (Messrs. Apruzzese & McDermott, attorneys; Mr. Richard C. Mariani, on the brief).
   The opinion of the court was delivered by

Bischoff, J. A. D.

Plaintiff Patrolman’s Benevolent Association of Montclair, New Jersey, Local No. 53 (PBA) filed a complaint alleging that defendants Town of Montclair (Montclair) and Theodore Maclachlan, Director of the Department of Public Safety, had violated N. J. S. A. 34: 13A-5.3 by refusing to “negotiate in good faith the terms and conditions of employment of the police officers” and sought a judgment directing defendants to negotiate pursuant to the statute. In the complaint the PBA claimed to be “the designated and selected representative of all police officers employed by * * * Montclair for the purpose of collective negotiations with * * * Montclair.” An order to show cause was obtained by plaintiff. Defendants filed an answer in which they asserted that a “serious question” had been raised regarding plaintiff’s legal standing to maintain the action because of its failure to comply with the rules and regulations promulgated by the Public Employees Relations Commission (PERC) pursuant to the authority delegated to it by N. J. S. A. 34:13A-11. In their answer defendants relied on the alleged failure of plaintiff to follow the proceedings prescribed by N. J. A. G. 19:11-1.1 and N. J. A. G. 19:11-1.14, which, it is contended, establish the procedure which must be followed in determining the majority representative of police officers.

The trial judge, in an opinion reported at 128 N. J. Super. 59, dismissed the complaint for the reason that plaintiff had not exhausted available administrative remedies.

The judge stated the threshold issue for determination was “whether plaintiff’s disputed status as negotiating representative may be resolved by the court without a prior exhaustion of administrative remedies,” id. at 60, and further stated that “the relief sought is recognition of plaintiff’s representative status” through the procedure provided under PERC’s regulations, id. at 65, and since plaintiff’s status was questioned, the dispute could only be resolved by following the appropriate administrative procedure provided by N. J. A. 0. 19:11-1.1 and 1.2.

We disagree. It is not necessary that PERC intervene in the determination of the exclusive representative in all cases. On the contrary, N. J. S. A. 34:13A-5.3 provides in part that “the commission [PERC] shall not intervene in matters of recognition and unit definition except in the event of a dispute.” State v. Prof. Ass’n of New Jersey Dept. of Ed., 64 N. J. 231, 243 (1974); Bowman v. Hackensack Hospital Ass’n, 116 N. J. Super. 260, 288-290 (Ch. Div. 1971). Another provision of the same statute provides:

* * * Representatives designated or selected by public employees for the purposes of collective negotiation by the majority of the employee in a unit appropriate for such purposes or by the majority of the employees voting in an election conducted by [PERC] * * * shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such suit. [Emphasis supplied]

Furthermore, the procedure established by N. J. A. G. 19: 11 — 1.14 provides that whenever a public employer has been requested to recognize an employee organization as the exclusive representative of a majority of the employees, the public employer and the employee organization may resolve such matters without the intervention of the commission. That same regulation establishes a procedure by which the question of the identity of the representative may be resolved.

The statute establishes two methods by which the standing as “representative” of a group of employees may be obtained: either (a) by being designated or selected, or (b) by winning an election supervised by PEEC.

While the procedure outlined in regulations adopted by PEEC was not followed, it by no means follows that the parties did not, by their conduct, accept plaintiff as the exclusive designated or selected representative of the majority of the employees.

The conclusion of the trial judge was based in part upon the assumption that there existed a bona fide dispute concerning the status of plaintiff as the “designated and selected representative.” We conclude such an assumption is not justified on the record before us.

On September 17, 1973 plaintiff addressed a letter to Montclair indicating a desire to negotiate a collective bargaining agreement for 1974 and to include in the agreement a pay raise and fringe benefits. It requested some indication from Montclair of alternate dates when said meeting could be held. Defendant responded by letter of September 24, 1973, suggesting the meeting be held after elections. Again, in November 1973 plaintiff requested a meeting for the purpose of collective negotiations. On December 11 plaintiff met with.the mayor of Montclair and a commissioner. The parties at that time agreed to meet for the purpose of negotiations ■ as soon as possible. Plaintiff delivered to defendant a copy of its proposal at this meeting. This was followed by negotiating sessions occurring on January 10, January 22 and January 30. On February 13, 1974 plaintiff requested another meeting as soon as possible but received no response to this request. No’ further meetings or negotiations were held and, on February 19, 1974, defendant Montclair • — ■ without consulting the PBA — passed an ordinance establishing the salaries of police officers.

Defendants for the first time questioned the status of plaintiff to conduct the negotiations for police officers in the answer which they filed to plaintiff’s complaint. While the date of filing this answer has not been furnished to us, the affidavit verifying it was dated March 13, 1974. In support of its contention that there exists a serious question concerning plaintiff’s status, defendants cite no facts, by means of affidavit or otherwise, and simply refer to the failure of plaintiff to follow the provisions of N. J. A. G. 19: 11-1.1 and 1.2 and N. J. A. G. 19:11-1.14.

Notwithstanding these provisions of the administrative ■ codes it is clear that defendant Monclair, by its actions commencing September 1973 and continuing into February 1974, has recognized plaintiff as a designated and selected representative of all police officers and by so doing has conferred at least de facto status on plaintiff. Basic principles of fairness dictate that if Montclair was going to question- the right of plaintiff to act as the majority representative of the police officers, it should have done so promptly and not .acted so as to lull plaintiff over a period of months into a false sense of security and into thinking it had recognition.

Defendant seeks to justify its actions by reference to that section of A. J. S. A. 34 ¡13A-5.3 which provided:

* « *• when no majority representative has been selected as the bargaining agent for the unit of which an individual employee is a part, he may present his own grievance either personally or through an appropriate representative or an organization of which he is a member and have such grievance adjusted. * * *

The argument is made that if an employer talks pursuant to this statutory permission, it is not tantamount to recognition.

Defendant cannot take refuge in this section as justification for its actions: first, a majority representative had been selected; second, plaintiff is not presenting an individual grievance but, rather, has been attempting to negotiate a contract for all its members, and, third, defendant never questioned the status of plaintiff as the majority representative prior to the filing of an answer and never relied on this provision of the statute as the basis for its action.

For these reasons we conclude that the trial judge erred in holding that plaintiff lacked status to maintain this action. However, for a different reason, we hold that his action in dismissing plaintiff’s complaint must be affirmed.

A. J. S. A. 34:13A — 6(b) provides in part as follows:

Whenever negotiations between a public employer and an exclusive representative concerning the terms and conditions of employment shall reach an impasse, the commission, through the Division of Public Employment Relations shall, upon the request of either party, take such steps as it may deem expedient to effect a voluntary resolution of the impasse.

The record discloses that an impasse was reached between the parties after negotiations had been underway. There is no charge that Montclair refused to negotiate at all. In this respect the situation differs from that which existed in the ease of PBA #208 v. Camden Cty. Bd. of Freeholders, 124 N. J. Super. 119 (Law Div. 1973). f There the county, without prior negotiations, put into effect a resolution changing the designation of various employees. The union sought an injunction against the county putting such a change in effect, and further sought an order compelling the county to negotiate. The court held that since no negotiations had been carried on between the parties an impasse had not occurred and the right of access to PERC under N. J. S. A. 34:13A-6(b) did not exist. The court accordingly ordered the parties to negotiate and restrained the effective operation of the resolution. Here plaintiff does not seek to restrain the operative efEeet of the ordinance setting the salaries.

Since here there was no refusal to talk but rather a cessation of talks, an impasse occurred and there is available to the parties an administrative remedy by way of petition to PERO under the cited statute. There being such a remedy, plaintiff’s action was properly dismissed for failure to exhaust the administrative remedies before resorting to the courts. Ward v. Keenan, 3 N. J. 298-302 (1949); Harris v. Salem Cty. Planning Bd., 123 N. J. Super. 304, 308 (App. Div.), certif. den. 64 N. J. 152 (1973).

One additional item must be mentioned. Plaintiff complains of action taken by Montclair on Eebruary 23, 1974 by way of a verbal order eliminating compensatory time off for overtime hours worked. Plaintiff contends this is a new rule or modification of an existing rule governing working conditions and that it was promulgated without prior negotiations, in violation of N. J. 8. A. 34:13A-5.3.

Examination of the verified complaint discloses this subject matter was discussed in the negotiating session of January 22, 1974. On the record before us this appears as one of the items involved in the impasse. The administrative remedy available to plaintiff with respect to the impasse which developed over pay raises and fringe benefits is also available to plaintiff where the dispute concerns rules and regulations respecting working conditions.

The judgment is affirmed.

      Further support for this argument is obtained from an examination of the procedure available under the National Labor Relations Act. The New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A-5.1 et seq., parallels the National Labor Relations Act, 20 U. S. C. A. § 141 et seq., and can be interpreted in light of that act. Lullo v. Intern. Ass’n of Fire Fighters, 55 N. J. 409, 424 (1970); Toltec Metals, Inc. v. N. L. R. B., 490 F. 2d 1122 (3 Cir. 1974), holds that where an employer orally recognizes a union as the employees’ representative, it can not later withdraw recognition and refuse to bargain.


author: Milmed, J. S. C.,

text:
    LEROY JOHNSON, PLAINTIFF-RESPONDENT, v. NEW JERSEY STATE PAROLE BOARD, HONORABLE NICHOLAS D. HEIL, CHAIRMAN; NEW JERSEY STATE CORRECTION AND PAROLE DIVISION, HONORABLE WILLIAM J. FAUVER, DIRECTOR; NEW JERSEY STATE PAROLE BUREAU, HONORABLE NAT J. ARLUKE, CHIEF; AND NEW JERSEY STATE PRISON AT TRENTON, HONORABLE RICHARD SEIDL, ACTING SUPERINTENDENT, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 25, 1974 —
    Decided December 20, 1974.

      Before Judges Michels, Morgan and Milmed.

      Mr. Joseph T. Maloney, Deputy Attorney General, argued the cause for appellants (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).

      Mr. Robert J. Konzelmann, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van Ness, Public Defender, attorney).
   The opinion of the court was delivered by

Milmed, J. S. C.,

Temporarily Assigned. In his complaint in lieu of prerogative writs, also designated as “Petition For Writ Of Habeas Corpus,” filed in the Law Division, plaintiff claimed that his constitutional right to a prompt parole revocation hearing had been violated by defendant State Parole Board. On behalf of defendants the Attorney General moved to dismiss the complaint, contending that the Law Division lacked jurisdiction over the subject matter since plaintiff was seeking to collaterally challenge state administrative agency action. The motion was denied, the trial judge finding that the Law Division does have jurisdiction pursuant to R. 4:3-1 (a)(1) and that the alleged inaction of the Parole Board appeared to obviate the need for the matter to be considered by the Appellate Division pursuant to R. 2:2-3(a) (2). We granted defendants’ motion for leave to appeal from the denial, at the same time directing the Attorney General to move for the consolidation for argument of all appeals pending in this court involving the same issue.

On June 1, 1961 plaintiff was sentenced to serve concurrent terms of 30 to 35 years and 20 to 30 years on his convictions for kidn'apping and rape. He was paroled from the State Prison on September 19, 1972. On August 30, 1973, while under parole supervision, he was arrested in Essex County on charges of armed robbery and entry with intent to steal. On September 4, 1973, while in custody in the Essex County Jail, he was served with a warrant as a parole violator, N. J. 8. A. 30:4-123.22. A probable cause hearing was held on September 11, 1973. Sufficient cause was found to detain him pending a final revocation hearing. Hollowing his conviction in the Essex County Court of robbery, possession of a weapon and entering with intent to steal, he was, on March 14, 1974, sentenced to new terms totalling not less than 3 nor more than 5 years (3 to 5, 2 to 3 concurrent, and 2 to 3 concurrent). He was returned to State Prison and a final parole revocation hearing was held there, under his protest, on March 28, 1974, at which time. his. parole was revoked. He received notice of the decision on April 10, 1974. He has not filed a notice of appeal from that decision. On April 1, 1974 he filed his complaint in lieu of prerogative writs (petition for writ of habeas corpus) seeking restoration of parole.

The exclusive method for review of an action or inaction of the State Parole Board is by direct appeal to the Appellate Division. The Board is a state administrative agency established within the Department of Institutions and Agencies, a principal department in the executive branch of the State Government. Cf. N. J. S. A. 52:14B-2(a). As such its final decisions and actions (or inaction) are, reviewable as of right by appeal to the Appellate Division, R. 2:2-3 (a) (2), under our special constitutional structure (N. J. Const., Art. VI, § V, par. 4 (1947)). Beckworth v. N. J. State Parole Bd., 62 N. J. 348 (1973); Monks v. N. J. State Parole Board, 58 N. J. 238, 243 (1971); Puchalski v. N. J. State Parole Board, 104 N. J. Super. 294 (App. Div. 1969), aff'd 55 N. J. 113 (1969), cert. den. 398 U. S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970) ; In re Senior Appeals Examiners, 60 N. J. 356, 363 (1972); Central R. R. Co. v. Neeld, 26 N. J. 172, 184-185 (1958), cert. den. 357 U. S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958); State v. Dalonges, 128 N. J. Super. 140, 145 (App. Div. 1974); Princeton First Aid & Rescue Squad, Inc. v. Division on Civil Rights, 124 N. J. Super. 150 (App. Div. 1973), certif. den. 63 N. J. 555 (1973); Mathews v. Finley, 46 N. J. Super. 175, 177 (App. Div. 1957), certif. den. 25 N. J. 283 (1957); In re Adinolfi, 43 N. J. Super. 262 (Law Div. 1957); In re Mahoney, 17 N. J. Super. 99, 108 (Cty. Ct. 1951).

In Central R. R. Co. v. Neeld, supra, referring to the objective of the 1948 court rules implementing the constitutional requirement for review, hearing and relief in the Superior Court, in lieu of the superseded prerogative writs (IV. J. Const., Art. VI, § V, par. 4 (1947)), Justice Jacobs pointed out that

In 1948 this court adopted its implementing rules which sought to avoid the problems of the prerogative writ practice and to provide simple and expeditious modes of judicial review from administrative action and inaction. The rules perpetuated none of the former procedural distinctions resting on the nature of the relief sought and their wholesome design was clear; they contemplated that every proceeding to review the action or inaction of a local administrative agency would be by complaint in the Law Division * * and that every proceeding to review the actjqn or inaction of a state administrative agency would be by appeal to the Appellate Division. * * s' [26 N. j. at 184-185]

More recently, in Monks v. N. J. State Parole Board, supra, Justice Jacobs commented:

* * * When our 1947 Constitution was prepared, pains were taken to insure not only that the court’s prerogative writ jurisdiction would remain intact, but also that the manner of its exercise would he greatly simplified (art. VI, sec. 5, para. 4). See Ward v. Keenan, 3 N. J. 298, 303-308 (1949). The implementing court rules now provide an easy mode of review designed to insure procedural fairness in the administrative process and to curb administrative abuses. * * * [58 N. J. at 248-249]

The “easy mode of review” of actions or inactions of state administrative agencies, including the State Parole Board, “designed to insure procedural fairness in the administrative process and to curb administrative abuses,” is that set forth in B. 2:2-3 (a) (2), i. e., direct appeal to the Appellate Division. Referring to former B. B. 4:88-8 (appeals from administrative agencies), Judge Clapp, in his opinion for the Appellate Division in Mathews v. Finley, supra, noted:

It should be observed, in passing (though it is not a matter of any consequence now, R. R. l:27D(b)), that the Law Division had no authority in the premises. To review the action or, plaintiff claims, inaction of the state officials or agencies involved, he should have taken an appeal therefrom directly to the Appellate Division under R. R. 4:88-8. The term “action,” found in the rule, includes inaction. Over such matters the Appellate Division has exclusive cognisance. [46 N. J. Super. at 177; emphasis added]

The writ of habeas corpus ad subjiciendum, applied for by plaintiff, is a common law writ, a high prerogative writ, confirmed and regulated by statute. In re Thompson, 85 N. J. Eq. 221, 233 (Ch. 1915); In re Davis, 107 N. J. Eq. 160, 164-165 (Ch. 1930); In re Van Winkle, 3 N. J. 348, 355-356 (1950); State v. La Battaglia, 30 N. J. Super. 1, 3 (App. Div. 1954); N. J. S. A. 2A :67-1 et seq.; 39 Am. Jur. 2d, Habeas Corpus, §§ 1, 8, 9. It is preserved eo nomine in our State Constitution of 1947 (Art. I, par. 14), and is of necessity summary in nature, designed to ascertain whether the petitioner “is restrained of his liberty by due process of law.” 39 Am. Jur. 2d, Habeas Corpus, §§ 1, 9; N. J. S. A. 2A :67-3. It is “a writ of right when cause appears for its issuance, but cause must always be shown.” In re Thompson, supra, 85 N. J. Eq. at 249. See also, 3 Blackstone, Commentaries 132 (Lewis ed., 1922, at 1129-1130).

All habeas corpus applications and actions, other than those relating to custody of infants, are brought in the Law Division, R. 4:3-1 (a)(1). The writ “will not ordinarily issue when other adequate relief to correct error is available to the applicant.” In re Kershner, 9 N. J. 471, 476 (1952), cert. den. 344 U. S. 844, 73 S. Ct. 59, 97 L. Ed. 656 (1952). If “is not designed as a substitute for routine and completely adequate rules of practice. Nor is it designed to serve the office of an appeal.” In re Robilotto, 24 N. J. Super. 209, 211-212 (App. Div. 1953). It “may not be used in lieu of appeal,” and the “fact that the time for appeal has expired is of no moment.” In re Zee, 13 N. J. Super. 312, 317 (Cty. Ct. 1951), aff'd sub nom. State v. Zee, 16 N. J. Super. 171 (App. Div. 1951), cert. den. 343 U. S. 931, 72 S. Ct. 766, 96 L. Ed. 1340 (1952). See also, In re Davis, supra, 107 N. J. Eq. at 170. Eor Johnson there was another adequate remedy available • — ■ direct appeal to the Appellate Division from the action or inaction of the state administrative agency (Parole Board) in the parole revocation proceedings. B. 2:2-3 (a) (2).

Beyond this, “the function of habeas corpus is to secure the immediate release of a prisoner.” State v. Williams, 29 N. J. Super. 309, 315 (App. Div. 1954), cert. den. 348 U. S. 847, 75 S. Ct. 71, 99 L. Ed. 668 (1954). An “indispensable prerequisite to the writ in its traditional application” is that the petitioner, if he prevailed, would be entitled to immediate release — a discharge from custody. State v. Daniels, 38 N. J. 242, 246, 247, n. 1 (1963), cert. den. 374 U. S. 837, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1962); In re Kershner, supra, 9 N. J. at 476. See also, 39 Am. Jur. 2d, Habeas Corpus, § 14. In the factual setting of this ease it is immediately apparent that this “indispensable prerequisite” is missing. In view of the custodial sentences on the three new convictions, plaintiff, if he prevailed, would not be entitled to immediate release.

Plaintiff pursued the wrong remedy. His claim of delay (inaction) on the part of the State Parole Board in granting him a prompt parole revocation hearing was reviewable exclusively by direct appeal to this court. His failure to so proceed is of course of no consequence at this stage of the proceedings, B. l:13-4(b), and we, accordingly, proceed to review the matter as if brought before us by appeal under B. 2:2-3 (a) (2). We note in passing that the court rules governing appellate practice amply provide for acceleration of the time schedule on appeals “on the court’s own motion or on the motion of a party, which may be made ex parte,” B. 2:9-2, and for temporary relief both in administrative proceedings, B. 2:9-7, and in emergent matters, B. 2:9-8. The needs of justice are amply served by these orderly procedures.

Plaintiff’s parole was properly revoked in accord with the objectives set out in Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), during the transitional period between pr e-Morrissey and post-Mor- rissay parole revocation proceedings. The required preliminary (probable cause) hearing was “promptly” held on September 11, 1973, one week after he was served with a warrant as a parole violator. In regard to this preliminary hearing no claim is made that the requirements of Mor-rissey were not fulfilled. Plaintiff was not in any way prejudiced by having the final revocation hearing held within a short time (14 days) after rather than before he was sentenced on the three new convictions. If he had been acquitted rather than convicted of the three new charges, the basis for revocation would have been substantially impaired. See State v. Van Dorn, 43 N. J. Super. 406, 412-413 (App. Div. 1957).

In Morrissey both Chief Justice Burger, in his opinion for the court, and Justice Douglas, in his dissent (in part), clearly distinguish between revocations for conviction of another crime and revocations for other violations of conditions of parole. In regard to the revocation hearing Chief Justice Burger pointed out, among other things, that

*■ * The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation. * * * [408 U. S. at 488, 92 S. Ct. at 2603]

and

* * a’ Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime. [408 U. S. at 490, 92 S. Ct. at 2605]

And Justice Douglas, in his dissent in part, notes in his reference to “the due process requirements of parole revocation” that

We except of course the commission of another offense which from the initial step to the end is governed by the normal rules of criminal procedure. [408 U. S. at 499, n. 12, 92 S. Ct. at 2610]

In the circumstances of this case, no remand to the Parole Board for further hearing is required. “To now require a remand for an evidentiary hearing would be an exercise in futility.” State v. Morales, 120 N. J. Super. 197, 202 (App. Div. 1972), certif. den. 62 N. J. 77. (1972).

In light of the foregoing, the motion to dismiss the complaint (petition for writ of hateas corpus) should have been granted. The order denying that motion is reversed; plaintiff’s complaint is dismissed; and the action of the State Parole Board revoking plaintiff’s parole is affirmed.

      Three additional appeals were so consolidated. Argument was heard on November 25, 1974. Bach appeal is disposed of by separate opinion filed today. The other appeals are: James C. Johnson v. New Jersey State Parole Board et als. (A-2985-73); Norwood L. White v. U. Samuel Vukcevich, etc., et al. (A-727-73); and State of New Jersey, New Jersey State Parole Board v. Ernest McNair (A-2249-73), 131 N. J. Super. 522.

       The Parole Board found that plaintiff had violated a condition of his parole, namely, that he “failed to refrain from conduct while on parole which shall give reasonable cause to believe that you have resumed, or are about to resume, criminal conduct or associations as evidenced by your conviction for the offenses of Bobbery, Possession of a Weapon, and Entering with Intent to Steal for which you were sentenced on March 14, 1974.”

       TMs transitional period has now been over for some time. We expect close compliance with both the letter and spirit of the process that is due under Morrissey in parole revocation proceedings. Probable cause for detention having been found, any required revocation hearing —■ stage two of the proceedings • — • must accordingly be tendered to the parolee by the Parole Board within a reasonable time, in our view not more than 60 days (barring unusual circumstances), after the parolee is taken into custody as a delinquent on parole. Cf. N. J. S. A. 30:4-123.22; Morrissey v. Brewer, supra, 408 U. S. at 488, 92 S. Ct. at 2604, 33 L. Ed. 2d at 498; and see, Note, “The Supreme Court, 1971 Term,” 86 Harv. L. Rev. 1, 97-99 (1972).


author: Per Curiam.

text:
    STATE OF NEW JERSEY, NEW JERSEY STATE PAROLE BOARD, APPELLANT, v. ERNEST McNAIR, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 25, 1974 —
    Decided December 20, 1974.

      Before Judges Michels, Morgan and Milmed.

      Mr. Joseph T. Maloney, Deputy Attorney General, argued the cause for appellant (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).

      Mr. Robert J. Konzelmann, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van Ness, Public Defender, attorney).
   Per Curiam.

This is one of four appeals which were consolidated for argument.

In December 1965 respondent Ernest McNair was sentenced to imprisonment in State Prison for a term of 6-7 years for possession of narcotics. A fine of $1000 was also imposed on him. In June 1908 he was released on parole. On December 5, 1969 his parole was revoked without a hearing following his arrest in Burlington and Atlantic Counties on new separate charges of- possession of narcotics. Following his conviction on the Atlantic County charge he was sentenced on March 6, 1970, to a term of not less than 10 nor more than 12 years in State Prison. He appeared before the Parole Board in May 1970 and the previous parole revocation (of December 5, 1969) was continued in effect. On May 21, 1973, he was granted parole (effective September 18, 1973), on the subsequent (1970) sentence only, and is now serving the remainder of the 6-7 year sentence concerning which parole was revoked in December 1969. N. J. 8. A. 30:4-123.24. On June 28, 1973 he petitioned the Law Division for post-conviction relief contending that (1) since his parole was revoked prior to imposition of the 10-12-year sentence, the sentencing judge should have specified whether the new sentence was to be served concurrently with or consecutively to the time remaining on the 1965 sentence concerning which parole was revoked, citing State v. Grant, 102 N. J. Super. 164 (App. Div. 1968), certif. den. 53 N. J. 62 (1968), and (2) he was denied a proper parole revocation hearing.

The trial judge before whom the petition was initially heard ordered that the matter of the 1969 revocation of Mc-Nair’s parole be remanded to the State Parole Board for a new hearing on notice to him. The Board then sought leave to intervene as a respondent in the matter and later filed a motion to vacate the order granting McNair a new revocation hearing and to dismiss his petition and enter summary judgment in favor of the Board. The trial judge granted the Parole Board’s application for leave to intervene, denied its motion to dismiss the petition for post-conviction relief and its motion for summary judgment, and stayed the order directing the holding of a new parole revocation hearing, pending disposition of the Board’s appeal to this court.

While respondent’s first contention was apparently abandoned by him in the trial court, we note in passing that he misinterpreted the effect of this court’s holding in Stale v. Grant, supra. In that case the court specifically noted that

* * * absent a contrary direction by the sentencing judge, a sentence for a crime committed while on parole shall be deemed (e. g., by the parole and prison recordkeeping officers) to be served separately from service of the incomplete sentence on which parole was previously granted. * * * [102 N. J. Super. at 171]

See also, State v. Fudali, 113 N. J. Super. 426, 433 (App. Div. 1971), certif. den. 58 N. J. 337 (1971); and Cf. State v. DeMott, 128 N. J. Super. 395 (Law Div. 1974).

Respondent’s remaining contention in the Law Division was that he was denied a proper parole revocation hearing. He was in effect seeking review of an action of the State Parole Board, a state administrative agency. In another of the consolidated appeals, Johnson v. New Jersey State Parole Board, et als. (A-3029-73), 131 N. J. Super. 513, decided simultaneously herewith, we held that “The exclusive method for review of an action or inaction of the State Parole Board is by direct appeal to the Appellate Division,” and that by proceeding by petition for a writ of habeas corpus in the Law Division plaintiff in that ease had pursued the wrong remedy. Our determination in that matter is applicable with equal force here. It is of no moment that McNair sought a new parole revocation hearing by petition for post-conviction relief. That remedy cannot be pursued when the objective is to review the action of a state administrative agency. See Report Of Supreme Court Committee On Post-Conviction Rights Of Indigents, 85 N. J. L. J. 557 at 568 (October 25, 1962); R. 3:22; R. 2:2-3(a)(2). Nonetheless, as in Johnson we proceed to review this matter as if brought before us by appeal under R. 2:2-3 (a) (2). While respondent’s petition seeking review of the December 5, 1969 parole revocation was filed (June 28, 1973) well beyond the 45-day time limitation of R. 2:é-l(b), we allow such review, particularly in light of the claimed applicability of Morrissey due process requirements.

The parole revocation of December 5, 1969 and its continuance in effect in May 1970 following respondent’s appearance before the Parole Board were, in the circumstances, entirely proper. In May 1970 the Board had before it McNair’s conviction on the Atlantic County charge and the fact that the sentence on that conviction was for a new term in State Prison of 10 — 12 years. The revocation and its continuance were in accord with pre-Morrissey requirements and within the discretionary authority of the Parole Board. See N. J. 3. A. 30 :4^123.23.

The new requirements governing parole revocation set forth in the opinion of the court in Morrissey v. Brewer, decided June 29, 1912, have prospective application only, Chief Justice Burger pointing out that

s= * The few basic requirements set out above, which are applicable to future, revocations of parole, should not impose a great burden on any State’s parole system. * * * [408 U. S. at 490, 92 S. Ct. at 2604; emphasis added]

See also, Wolff v. McDonnell, 418 U. S. 539, 573, 94 S. Ct. 2963, 2983, 41 L. Ed. 2d 935, 961 (June 26, 1914). We note here, that even if the due process requirements of Morrissey had been in effect in 1969 and 1910, McNair could not have relitigated before the Parole Board issues determined against him in his jury trial in Atlantic County on the possession of narcotics charge on which he was convicted and thereafter sentenced to a 10-12-year term in State Prison. As pointed out by Chief Justice Burger in Morrissey, supra,

* * * Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime. [408 U. S. at 490, 92 S. Ct. at 2605]

Accordingly, the motion to dismiss the petition for post-conviction relief should have been granted. The order denying that motion is reversed, respondent’s petition for post-conviction relief is dismissed; and the action of the State Parole Board on December 5, 1969, revoking respondent’s parole and its action in May 1910 continuing that revocation in effect are affirmed.

       Each involves the same or substantially the same issue and is disposed of by separate opinion filed today. The other appeals are: Johnson v. New Jersey State Parole Board et als. (A-3029-73) ; 131 N. J. Super. 513, James C. Johnson v. New Jersey State Parole Board et als. (A-2985-73), and Norwood L. White v. U. Samuel Vukcevich, etc., et al. (A-727-73)

         Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).


text:
    SIMMIE UNDERWOOD, PLAINTIFF-APPELLANT, v. NEW JERSEY STATE PAROLE BOARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 25, 1974 —
    Decided December 20, 1974.

      Before Judges Michels, Mobgah and Milked.

      Mr. Samuel T. Craft, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney-; Mr. Arthur Penn, Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph T. Maloney, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of Hew Jersey, attorney; Mr. Lawrence J. Greenberg, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Milmed, J. S. C.,

Temporarily Assigned. Appellant Sim-mie Underwood appeals from a final decision of the State Parole Board revoking his parole. In 1955 he was convicted of murder in Mercer County and sentenced to imprisonment in the State Prison for life. He was paroled in June 1971 and permitted to reside in Atlanta, Georgia, at his sister’s residence, subject to parole supervision by Georgia, pursuant to an approved plan, under the interstate compact for the supervision of parolees and probationers.

On March 6, 1973 a hearing officer in the Hew Jersey Bureau of Parole, on the basis of reports from the Georgia parole authority and without a hearing, found probable cause that Underwood had violated his parole in four respects, i. e., that (1) he failed to abstain from excessive use of intoxicating beverages; (2) he failed to reside in a place approved by the Bureau of Parole as evidenced by his “missing status from the State of Georgia as of 9/28/72”; (3) he failed to seek employment diligently, and (4) he failed to notify his parole officer of his change of residence and changes of employment. The hearing officer recommended that Underwood be declared delinquent on parole. On March 13, 1973 the Hew Jersey State Parole Board issued its declaration of delinquency, declaring Underwood to be delinquent on parole as of September 28, 1972. A parole violator warrant was thereupon issued. Underwood was apprehended in Florida while under detention there on another charge and was returned to New Jersey on June 15, 1973.

On July 31, 1973 a hearing officer of the Parole Board conducted a final parole revocation hearing in the matter at the State Prison, at which Underwood was represented by personnel of the Public Defender’s Office. He admitted at the hearing that he had a drinking problem and that “L believe, if given the chance, I could, like you say, I would go to the A A and cease to do the drinking and get a job and make another start.” He also admitted that he failed to continue to reside in the place approved by the Bureau of Parole, i. e., his sister’s residence in Alanta, and that he left Atlanta without his parole officer’s permission in July or August of 1972. He claims that at the time he was looking for work and had been promised a construction job in Augusta, Georgia, by a contractor; that he and four other men decided to take the jobs which were so offered; that he did not notify his parole officer that ho was going to take a job in Augusta; that he and the four other men were taken by the contractor to a migrant labor camp in Trenton, South Carolina; that he was compelled to work there for about a week and then was transported to another farm in Faison, North Carolina where he was compelled to work for about a month; that from there he was transported to a farm in Pennsylvania and thereafter to another migrant labor camp in Winter Garden, Florida, from which he escaped in December 1972. He says that after his escape he did not notify his parole supervisor of his whereabouts or the circumstances of his disappearance because “I didn’t believe they would believe me * * He says that he then went to Ocala, Florida and worked there on another farm; that he was arrested there for being drunk, and that as a result of that arrest the local police discovered that he was wanted as a parole violator, and he was returned to New Jersey.

The Parole Board concluded that the evidence at the parole revocation hearing was insufficient to establish the charge that Underwood failed to abstain from excessive use of intoxicating beverages. It did, however, further conclude that the evidence was sufficient to establish the three remaining charges of violation of parole and revoked the parole. At the outset we hold that if the parole violations found by the Board did occur, the Board could reasonably make its determination to revoke parole.

On the present appeal from the revocation Underwood complains that: he was not given a preliminary (probable cause) hearing; he was entitled to a final hearing before the Parole Board itself and not before a hearing officer; he should have been given a copy of the hearing officer’s report and an opportunity to file exceptions to it, and the decision of the Parole Board to revoke his parole was unreasonable and arbitrary.

Appellant was not provided a prompt preliminary (probable cause) hearing “at or reasonably near the place of the alleged parole violation or arrest” in accord with the due process requirements set forth in Morrissey v. Brewer, 408 U. S. 471, 485, 92 S. Ct. 2593, 2602, 33 L. Ed. 2d. 484, 496 (1972). Hew Jersey is a signatory to the interstate compact for supervision of parolees and probationers of one state resident in another state, and has adopted the “uniform act for out-of-state parolee supervision,” N. J. S. A. 2A:168-14 to 17. The uniform act has also been adopted by Georgia and Elorida. Accordingly, upon his arrest in Ocala, Elorida, Underwood should 'have been promptly given the required preliminary hearing there, or more appropriately in Atlanta, Georgia, where the charges of parole violation emanated. However, in light of Underwood’s admissions of parole violations at the final revocation hearing, i. e., admissions that he failed to continue to reside in his sister’s residence in Atlanta (the place approved by the Bureau of Parole) and that he failed to notify his parole supervisor of his whereabounts after escaping from a migrant labor camp in December 1972, the failure to conduct such preliminary hearing is not reversible error. Admissions by the parolee to the Parole Board of parole violations "found to be reasonable grounds for revoking parole under state standards * * would end the matter.” Morrissey v. Brewer, supra, 408 U. S. at 490, 92 S. Ct. at 2605, 33 L. Ed. 2d at 499.

The Parole Board is not required to conduct the revocation hearing itself. It is sufficient if that hearing is conducted by "a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers * Morrissey v. Brewer, supra, 408 U. S. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d at 499. (Emphasis added). A "neutral and detached” hearing officer for the Parole Board, such as presided at the final revocation hearing in this case, meets this due process requirement.

As noted in Laba v. Newark Board of Education, 23 N. J. 364 (1957):

* * * if administrative tribunals are to be permitted to function effectively they likewise must have broad powers to adjust their procedures in furtherance of their proper objectives, [at 383]

And, as Judge (now Justice) Sullivan points out in his opinion for the Appellate Division in In re Shelton College, 109 N. J. Super. 488 (1970):

It is generally held that the requisites of an administrative fair hearing are satisfied so long as one who participates in the ultimate decision reads and considers all of the evidence presented. * * * [at 492]

While the Administrative Procedure Act, N. J. S. A. 52 :14B-1 et seq., was not intended to apply to parole release (or revocation) proceedings conducted in accordance with Title 30, see N. J. S. A. 52:14B-2(a), Beckworth v. N. J. State Parole Bd., 62 N. J. 348, 358 (1973), administrative due process requires that the report of the hearing officer who conducts a final revocation hearing be made available to the parolee and that he be given an opportunity to correct any mistakes that may appear in the report. See Winston v. So. Plainfield Bd. of Ed., 125 N. J. Super. 131, 138 (App. Div. 1973), aff’d 64 N. J. 582 (1974); cf. N. J. S. A. 52:14B-10(c). Here,.too, in light of Underwood’s admissions of parole violations, the failure to furnish him with a copy of the hearer’s report does not constitute reversible error.

While we find that these admissions alone could properly support revocation of Underwood’s parole, and that there is no showing that the Board exercised its discretion mistakenly, there.is no way of determining what role the written reports from Georgia played in the overall decision of the Board to revoke parole. Eor this reason we will remand the matter to the Parole Board with direction to provide the appellant with a new final revocation hearing in this State. This should afford Underwood ample opportunity to further contest, if he can, any of the charges of violation of parole. With regard to such hearing, conventional substitutes for live testimony are available! As the' court pointed out in Gagnon v. Scarpelli, 411 U. S. 778, 782 n. 5, 93 S. Ct. 1756, 1760 n. 5, 36 L. Ed. 2d 656, 662, n. 5 (1973) :

* * * While in some eases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.

The final decision of the Parole Board revoking plaintiff’s parole is reversed and the matter is remanded to the Board with direction to schedule a new final revocation hearing in accordance with this opinion. We do not retain jurisdiction.

       We are informed that the Parole Board’s present procedures permit the parolee access to the report of the hearing officer and an opportunity to take exceptions thereto.


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

text:
    AGNES M. JANUS AND VALENTINE JANUS, PLAINTIFFS-RESPONDENTS, v. HACKENSACK HOSPITAL, JULES C. LADENHEIM AND GEORGE B. JACOBS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 2, 1974 —
    Decided December 23, 1974.

      Before Judges Leonard, Seidman and Bischoee.

      Mr. Richard E. Brennan argued the cause for appellants Ladenheim and Jacobs (Messrs. Shanley & Fisher, attorneys) .
    A satement in lieu of brief was filed on behalf of defendant Hackensack Hospital by Mr. Edward A. Olson; Messrs. Winne & Banta, attorneys.

      Mr. Charles J. Kahwaty argued the cause for respondents.
   The opinion of he court was delivered by

Leonard, P. J. A. D.

In this malpractice case defendants appeal from a judgment following a jury trial in favor of plaintiff Agnes Janus (plaintiff) in the sum of $10,000 and in favor of her husband plaintiff Valentine Janus in the sum of $125,000.

On March 13, 1968 plaintiff fell down a flight of stairs at her home and was taken by ambulance to a hospital where she remained for two days. Thereafter she was transferred to defendant Hackensack Hospital (Hackensack). Thereat she came under the care of defendant doctors, Jules C. La-denheim and George B. Jacobs, both neurosurgeons. Upon a review of her angiogram Dr. Ladenheim immediately performed a craniotomy, removing and discarding a portion of plaintiff’s brain matter. Following surgery plaintiff was placed in the Intensive Care Unit at Hackensack. On March 22 Dr. Jacobs directed that she be transferred to a semiprivate room. Partial side rails, which extended approximately one-third of the length of the bed, were ordered and installed on her bed.

On March 25 plaintiff left her bed and was found at 2 :45 A.M. lying on her back in the hallway outside her room in a pool of blood which had seeped from the suture line on her head. Following this fall, a second craniotomy was performed by Dr. Ladenheim.

The liability and damage features of the case were closely contested and each side primarily relied upon medical expert witnesses. Plaintiff called three physicians and defendant doctors called two other physicians besides testifying themselves.

On the liability issue plaintiff’s theory was that defendants were guilty of malpractice in failing to provide full bed rails or Posey restraints after she was transferred to a semi-private room on March 22, 1974. Plaintiff’s experts, Dr. Robert Tuby and Dr. Max Tester, were of the opinion that defendants deviated from accepted standards of medical and hospital practice in failing to have one or the other of these restraints placed on plaintiff’s bed. On the other hand, defendant doctors and their two experts were of the opinion that such restraints were contraindicated and that the use of partial rails comported with standard medical practice. They further asserted that full bed rails would not prevent a patient from voluntarily getting out of bed.

As to plaintiff’s injuries, Dr. Tuby testified that following the first fall and operation plaintiff would have made a full recovery but for the fall of March 25, 1974 which caused her present permanent residual brain damage. To the contrary, defendant doctors and their experts testified that plaintiff’s present condition was caused by her original fall in her home and not by the latter hospital fall. Dr. Tesler did not testify as to her injuries.

We consider first defendants’ contention that the trial judge committed reversible error in prohibiting defense counsel from cross-examining plaintiff’s medical experts as to their experience and background in testifying in medical malpractice cases in the past.

Primarily they complain of the judge’s action with regard to the cross-examination of Dr. Tuby. On direct examination this witness, who was licensed to practice medicine in Hew York in 1930, gave his educational and medical background. lie testified to his experience as a surgeon which terminated in 1959. Since that -time he stated that

* * * my work consisted mainly of examining injured people, since that was my specialty, traumatic surgery, for lawyers, rendering medical reports of my findings and coming to court to testify when requested.
I also reviewed medical files for attorneys throughout the United States with regard to whether there was malpractice on the part of either the doctor or a hospital.
X would render these reports to the attorneys and if the case had merit and they required my services at trial, X would testify in these cases.
Also I have spent many years teaching attorneys medicine and by invitation I have addressed the medical-legal societies throughout the United States, Canada and Puerto Rico, to attorneys, and have written books on medicine for attorneys.

On cross-examination by the attorney for Hackensack he also stated that he had not been treating patients for some time and had co-authored two legal-medical articles for lawyers.

The first question propounded to Dr. Tuby on cross-examination by the attorney for defendant doctors was, “How many times have you testified in malpractice cases in the last ten years?” Plaintiff’s objection was sustained and the jury instructed that they were to “ignore any implications from that question.” Defense counsel then asked “Have you ever testified as -? The court interrupted, excused the jury and requested defense counsel to make an offer of proof. Counsel replied that he desired to ask the doctor how manjr times he had testified in court in the last ten years, the number of times he testified for plaintiffs or defendants, and the various medical specialties upon which he had held himself out to be an expert during that period.

Following this colloquy between counsel and court the judge ruled that “all questioning along that line is excluded. Any further reference by you to that subject in your cross-examination will result in the imposition of sanctions by the conrt.” Defendant objected to the ruling.

Thereafter, defense counsel marked for identification five transcripts of the testimony of Dr. Tuby in other cases and advised the court that he was doing so in order that the record would disclose the proffer of the matters into which he intended to inquire had he been afforded the opportunity to fully cross-examine the witness. The judge reiterated his previous ruling, stating that he did not believe such an inquiry to be “relevant or material in terms of the evaluation of his testimony.” Excerpts of the cross-examinations contained in these transcripts have been included in appellants’ transcript as a part of that proffer. They reveal that in the last ten years Dr. Tuby has testified in malpractice cases on a great number of occasions and in various states. He has appeared exclusively for plaintiffs and has given expert opinion on numerous medical specialties.

Although defense counsel did not attempt to make such a specific inquiry of Dr. Tesler, plaintiff’s other expert witness, he now asserts that he did not do so because of the court’s previous ruling and the probability of the imposition of sanctions if. he did. Direct examination indicated that this doctor was a board-certified internist specializing in gastro-enterology. Since 1970, although continuing his practice, he also has been actively associated with a commercial testing laboratory.

Ordinarily the scope of cross-examination of a witness rests in the discretion of the trial judge, State v. Petillo, 61 N. J. 165, 169 (1972), and an appellate court will not interfere with the control thereof by him unless clear error and prejudice is shown; Graf v. Folarno, 99 N. J. Super. 173, 176 (App. Div. 1968); Mazza v. Winters, 95 N. J. Super. 71, 78 (App. Div. 1967); Lawlor v. Kolarsick, 92 N. J. Super. 309, 311 (App. Div.), certif. den. 48 N. J. 356 (1966). Stated another way, we will not interfere “absent a clear abuse of that discretion.” Cestero v. Ferrara, 110 N. J. Super. 264, 273 (App. Div. 1970), aff’d 57 N. J. 497 (1971). Specifically, it has been held that the control of a cross-examination solely tending to test the credibility and trustworthiness of a witness rests in the sound discretion of the trial judge, subject only to the consequence of its abuse. State v. Bartell, 15 N. J. Super. 450, 455 (App. Div. 1951), aff’d 10 N. J. 9 (1952).

In evaluating the issue presented herein, we must be mindful of the fact that one of the three main functions of cross-examination is to shed light on the credibility of the direct testimony. In this respect the test of relevancy is whether the examination will aid the judge or jury to a useful extent in appraising the credibility of the witness and assessing the probative value of the direct testimony. McCormick, Evidence, § 39 at 54-55 (1954), cited with approval in Lawlor v. Kolarsick, supra, 92 N. J. Super. at 314.

A medical witness’ “testimonial and experiential weakness * * * such as his status as a general practitioner, testifying as to a specialty * * * may be exposed by the usual methods of cross-examination.” Angel v. Rand Express Lines, Inc., 66 N. J. Super. 77, 86 (App. Div. 1961). The extent to which a medical expert witness may be cross-examined in an attempt to impair his credibility and establish bias is well demonstrated in Lawlor v. Kolarsick, supra. See also Mazza v. Winters, supra (which, incidentally, involved Dr. Tuby).

As previously noted, the issues of malpractice, causal connection and damages were strongly contested. Credibility of the competing medical witnesses was a paramount factor to be first determined by the jury in resolving the controversy. Under these circumstances, and in the light of the previously discussed legal principles, we conclude that the action of the trial judge in preventing the full cross-examination of Dr. Tuby, and impliedly of Dr. Tesler, constituted a mistaken exercise of his discretion which amounted to “clear error and prejudice” to defendants. It was clearly capable of producing an unjust result, R. 3:10-3, and accordingly mandates a reversal and the granting of a new trial.

In view of this conclusion, we do not find it necessary to consider any of the other contentions raised by defendants.

Reversed and remanded for a new trial in accordance herewith.

       A Posey restraint is a “cloth or canvas attachment put on a patient and fastened to the bed preventing the patient from turning in bed or sitting up.”


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LESTER CURTIS MACK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 26, 1974 —
    Decided December 23, 1974.

      Before Judges Matthews, Eritz and Botteb.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. James K. Smith,, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph, P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. David L. Rhoads, Assistant Prosecutor, of counsel; Ms. Margaret Padovano, on the brief).
   Per Curiam.

Defendant was convicted on a trial by jury of illegal possession of heroin, in violation of N. J. S. A. 24:18-4, since repealed and replaced by N. J. 8. A. 24:21-20. He asserts three grounds for this appeal, claiming error in (1) the refusal of the trial judge to suppress the search; (2) the admission of six glassine envelopes into evidence, and (3) the charge to the extent it instructed the jury that "whether or not [the substance involved] was heroin * * * is really not an issue in the case,” that that issue "is out of the ease.”

On a timely, pretrial suppression motion the trial judge found that the challenged warrantless search and seizure was justified by the reasonable — the court said "well-grounded” — belief by the police officers involved that a crime had been and was being committed in their presence. Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); State v. Waltz, 61 N. J. 83 (1972). Not only is this finding one which could reasonably have been reached on sufficient credible evidence in the record, as a result of which we shall not disturb it (State v. Johnson, 42 N. J. 146 (1964)), but our own careful review of the record conduces to the same conclusion. The warrantless search in the circumstances here present was amply justified. State v. Hannah, 125 N. J. Super. 290 (App. Div. 1973), certif. den. 64 N. J. 499 (1974).

Defendant’s objection to admission into evidence of the six glassine envelopes rests upon his claim that there were "significant gaps” in the chain of custody. This argument was made to and considered by the trial judge, who consciously exercised his discretion in favor of the admission of the envelopes.' We are satisfied from the record that this was not a mistaken exercise of discretion. State v. Brown, 99 N. J. Super. 22 (App. Div. 1968), certif. den. 51 N. J. 468 (1968). It is not inappropriate to observe that the challenge to the chain of possession was to occurrences following the analysis by the chemist who testified to their heroin content. Further, as is noted below, the real contest here was as to defendant’s possession vel non of the heroin; in his summation defense counsel isolated this issue and conceded, “The State has proven through its chemist that one of those envelopes, the one that was tested, contained a quantity of heroin.”

This latter consideration serves also to defeat defendant’s objection to the judge’s charge. While it is axiomatic that the State must boar its burden of proof beyond a reasonable doubt with respect to all material elements of the crime charged, in the matter before us defendant clearly conceded the fact of the heroin content of the glassine bags. In addition to the uncontradicted testimony of the chemist and the concession of defense counsel in his summation, defendant on his case produced a witness who testified that the bags contained heroin and that he had pleaded guilty to a charge of possession of heroin. This testimony was designed to support defendant’s only defense, to wit, that it was another, not ho, who possessed the drugs. Defense counsel isolated the sole issue for the jury when he said in his summation:

The State has proven through its chemist that one of those envelopes, the one that was tested, contained a quantity of heroin. But what the State must prove to each and every one of you beyond a reasonable doubt is that Lester Mack had that envelope in his possession, that he was exercising control over the envelope, dominion and control at a given period of time.

After urging the jury that defendant and his witness could be believed b, cause their arrest gave them reason to remember, and reminding the jury that the witness had “pleaded guilty to this charge and he has been sentenced,” the attorney for defendant concluded his summation by defining that which defendant wanted the jury to consider:

I asked you in the beginning to listen to all the testimony, and I know yon have all day today. I ask you now to listen carefully to the charge of the Court and then determine: Has the State proven to you. to each and every one of you, to an abiding conviction to a moral certainty that this defendant possessed those hags of heroin on the date in question? * * * [Emphasis added]

To fault the trial judge for his charge in these circumstances would amount to an exalting of form over substance and a triumph of tactics over truth. As long ago as Engle v. State, 50 N. J. L. 272, 274 (Sup. Ct. 1888), the duty of-the jury in a criminal case was described to be the determination of disputed questions of fact. The removal from jury consideration of undisputed questions of fact was approved in State v. Byra, 128 N. J. L. 429 (Sup. Ct. 1942), aff’d 129 N. J. L. 384 (E. & A. 1943), cert. den. 324 U. S. 884, 65 S. Ct. 1025, 89 L. Ed. 1434 (1945), where it was said:

* * * All the testimony as to the corpus delicti was in accord and undenied. The plaintiff in error testified as a witness, but wholly as to his own actions and absence from the place of the crime. The argument now made is that the plea of not guilty “was a dispute of the state’s charge.” But the judge was discussing, not the plea, but the evidence: and on the evidence, the principal dispute, if not the only one, was as to whether the plaintiff in error was a participant in the two crimes charged in the indictment, [at 433]

Contrast State v. Craig, 9 N. J. Super. 18, 24-25 (App. Div. 1950).

We see no reason why a presentation should be cluttered — and misdirection encouraged — by limiting the right of the trial judge to remove from jury consideration factual issues about which there could be no real dispute and concerning which there has been an intentional and distinct concession. While the careful exercise of discretion by the trial judge is essential in any given case, where indicated that discretion can be exercised in the direction suggested without impairment to the viable rule that the State bears the burden of proof beyond a reasonable doubt as to all material elements of the crime. The simple rationale is that with respect to conceded facts that burden has been unimpeachably borne by the time the case is submitted to the jury. In such circumstances, as here, due process for the defendant and fair play for all remain untainted.

Affirmed.