author: Per Curiam. Meanor, J. A. D.

text:
    HARRY GOLDKLANG, PETITIONER-APPELLEE, v. METROPOLITAN LIFE INSURANCE COMPANY, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 29, 1973—
    Decided February 1, 1974.

      Before Judges Handler, Meanor and Kole.

      Messrs. Haskins, Robottom and Hack, attorneys for respondent-appellant on the appeal and for appellee on the cross-appeal.

      Messrs. Dubowsky and Davis, attorneys for petitionerappellee on the appeal and for appellant on the cross-appeal.
   Per Curiam.

On October 21, 1965, Harry Goldklang (the employee) sustained a myocardial infarction. The Division of Workmen’s Compensation (the Division) determined that it was work-connected and compensable and on April 2, 1968 entered a formal award of 25% of partial permanent total disability against the employer, Metropolitan Life Insurance Company. In 1970, the employee filed an application for review or modification of the 1968 award. After a hearing, the Division dismissed the application, finding that, since he had had no new accident or infarction since 1965, his “present disability is attributable to the natural progression of his severe coronary artery disease.” On a de novo appeal, the county court reversed and awarded 100% permanent total disability. The latter included severe coronary insufficiency, an enlarged heart and congestive heart failure. The employer appeals without in any way disputing the extent of disability if the county court’s determination is correct.

The scope of our review is limited on an appeal from the county court in a workmen’s compensation case, even where the court’s fact determinations are contrary to those of the compensation judge. If the county court’s findings are reasonably supportable on the whole record before it, giving due regard to the conflicting findings of the compensation judge based on his special expertise or superior opportunity to appraise witnesses’ credibility, the county court’s judgment should he affirmed. Close v. Kordulak Bros., 44 N. J. 589, 599 (1965); Kaplowitz v. K & R Appliances, Inc., 108 N. J. Super. 54, 62 (App. Div. 1969). See also MacDonald v. Hudson Bus Transportation Co., 100 N. J. Super. 103 (App. Div. 1968); Stallone v. Schiavone-Bonomo Corp., 103 N. J. Super. 170 (App. Div. 1968), certif. den. 53 N. J. 226 (1969); Pankiewicz v. N. J. Bell Telephone Co., 105 N. J. Super. 287 (1969), aff’d. 53 N. J. 559 (1969).

Applying that principle of appellate review, we are satisfied that in this close heart case the county court’s findings and judgment as to compensability are reasonably supportable by the record and should be affirmed, substantially for the reasons given in its opinion.

Matters of credibility such as witness 'demeanor or other factors of trustworthiness uniquely available to the tribunal before which evidence is adduced in our view were not involved in the compensation judge’s decision. Even if the employee’s testimony as to his allergy or his employment in the business of selling insurance since the 1965 infarction were false, we are not persuaded that that judge’s conclusion in any way was influenced thereby. Similarly, in the light of the other evidence in the record, his continued employment since October 28, 1966 as an insurance salesman does not necessarily impugn Dr. Goodman’s testimony that he had a “straightforward downhill course” after the infarction.

Moreover, the compensation judge’s conelusory determination of lack of causation between the 1965 infarction and the present disabilities, to the extent it represents an exercise of expertise, is not supported by articulated reasons grounded in the evidence.

Dr. Goodman’s statement of the operative factors leading to his opinion on causation might have been stated with greater precision. Nevertheless, it meets the preponderance of evidence standard that the employee here must sustain to. prove the medical causal relationship, to a material and substantial degree, between his 1965 infarction and his present condition. Additionally, Dr. Goodman’s testimony, in contrast to that of Dr. York, accords with the kind of expert proofs as to such causation required in heart cases generally and in matters such as this where increased disability is claimed. Dwyer v. Ford Motor Co., 36 N. J. 487, 493-494 (1962); Close v. Kordulak Bros., supra, 44 N. J. at 600-601; Schiffres v. Kittatinny Lodge, Inc., 39 N. J. 139, 148-149 (1963); Aladits v. Simmons Co., 47 N. J. 115, 125 (1966). See Russo v. Teachers Pension and Annuity Fund, 62 N. J. 142, 147 (1973).

A court must act on the basis of the record before it, and oven a tribunal with expertise must predicate its ultimate determination on findings sustained by proofs to which it applies its special knowledge. See Szumski v. Dale Boat Yards, Inc., 48 N. J. 401, 410 (1967); Application of Howard Savings Institution of Newark, 32 N. J. 29, 52 (1960); Talocci v. Strelecki, 93 N. J. Super. 567, 572 (App. Div. 1967).

The employer contends that since Dr. Goodman did not examine Goldklang until February 2, 1971, there is a lack of the comparison between his condition in 1968 and his present condition required to prove that the compensable disability increased. It argues that Dr. Silberner, the cardiologist whose reports were used in 1968, Dr. Frank, Goldklang’s principal cardiologist, and Dr. Schneider, apparently Ms present treating physician, should have been produced to testify for this purpose. We find the contention to be without merit. Both Dr. Goodman and Dr. York agreed that Goldklang was 100% industrially disabled at the time of the hearing. A changed condition may properly be shown by the testimony oí a physician who has examined the employee and compared his findings with those of the earlier examining physicians. Yeomans v. Jersey City, 27 N. J. 496, 512 (1958).

The county court denied the employee reimbursement for $6,811.95 in expenses involving a series of hospitalizations commencing June 24, 1968. The employee cross-appeals from this portion of the judgment.

Admittedly, prior to filing the present petition for review or modification, the .employee did not notify the employer of his need for treatment or hospitalization, as required by N. J. S. A. 34:15-15. There is no evidence that such notice would have been futile, at least until the employer filed its answer denying liability, or that the hospitalizations are within any statutory exception dispensing with the notice requirement. See Benson v. Coca Cola Co., 120 N. J. Super. 60 (App. Div. 1972); Colbert v. Consolidated Laundry, 31 N. J. Super. 588 (App. Div. 1954).

However, the petition does list the hospitalizations by places and dates and the pretrial memorandum in the Compensation Division provides that medical and hospital bills since the original accident will be submitted. Hence, the employer was aware prior to the hearing that these expenses might be claimed if increased'disability were found. Yet the lack of prior notice of the employee’s need for such hospitalization was not raised by it in the answer, the pretrial memorandum or at the hearing before the compensation judge. Accordingly, that defense was waived. See Conway v. Mister Softee, Inc., 51 N. J. 254 (1968); Hinz v. Western Electric Co. Inc., 9 N. J. Super. 93 (App. Div. 1960). The part of the county court judgment denying reimbursement of hospital expenses must be reversed.

The focus of the hearing in the Division was on the issue of compensability. Dr. Goodman, over objection, testified as to the reasonableness of the hospital expenses. Although no contrary evidence was offered, the proofs as to the necessity for or reasonableness of these substantial expenses was sparse. Additionally, there was no evidence that the employee, rather than a third party, was entitled to payment from the employer of any particular hospital bill. See N. J. S. A. 34:15-15, 34:15-15.1; Stafford v. Pabco Products, Inc., 53 N. J. Super. 300 (App. Div. 1958); Bielak v. Counties Contracting & Const. Co., 95 N. J. Super. 266 (Law Div. 1967); Hunt v. Hospital Service Plan of N. J., 33 N. J. 98 (1960).

These circumstances require that a plenary hearing be held before the Division as to the hospital expenses so that an appropriate determination may be made with respect thereto.

The judgment of the county court is aiRrmed in part and reversed in part. The case is remanded to the Division of Workmen’s Compensation for further proceedings consistent with this opinion. We do not retain jurisdiction.

Meanor, J. A. D.

(dissenting). Because I believe that the majority and the County Court failed to give the required heed to the recognized expertise of the Workmen’s Compensation Court in medical matters, and have therefore decided this case on a basic misunderstanding of the relationship between myocardial infarction and arteriosclerotic heart disease, I dissent.

The relevant medical history of this petitioner begins in September 1962 when he was hospitalized in the Jersey City Medical Center for a herniorrhaphy. During this hospitalization an old, silent antero-septal myocardial infarction was discovered. There was no history consistent with coronary disease.

On October 21, 1965 petitioner, a life insurance salesman, was escorting a prospective insured to a doctor's office for a physical examination. While ascending a flight of stairs he suiTored chest pain. It seems to be agreed that he suffered another myocardial infarction at this time. A series of electrocardiograms taken during this hospitalization resulted in the following interpretations: left ventricular parietal block; prolonged intraventricular conduction; marked left axis deviation; antero-soptal myocardial infarction —• age not determined ; old myocardial infarction; intraventricular conduction disturbance; old anterior myocardial infarction with peri-infarction block; anterior myocardial infarction — age not determined. These diagnoses, taken from several EKG’s, are, of course, repetitive but consistent.

A claim petition was filed in the Workmen’s Compensation Court as a result of the attack of October 21, 1965. After a hearing on March 15, 1968 petitioner was awarded “twenty-five percent permanent partial disability.” At this hearing petitioner said of his then condition that he limited himself in his work because “if I work for any long period of time I tire” and further “But generally I feel all right now.” Early in March 1968 petitioner had retired from respondent, having returned to work in October 1966. The medical reports stipulated into evidence, one for petitioner, one for respondent, noted the old 1962 infarct and diagnosed arteriosclerotic disease, myocardial infarction (old) and left bundle branch block. The remainder of that portion of the reports set forth in the present record deals with the extent of disability.

On June 24, 1968 petitioner was confined to Christ Hospital, Jersey City, and was discharged June 28. The diagnoses were thrombophlebitis (deep) left leg and arteriosclerotic heart disease. He was further admitted to Christ Hospital on May 25, 1969 and discharged June 13. The final diagnoses: arteriosclerotic heart disease and acute bronchitis. Chest x-ray interpretation was as follows:

There is cardiac enlargement. There is prominence of the aortic knob. There is blunting at both eostophrenie angles and increased bronchovascular markings with blurring and indistinctness of these vessels are noted. I suspect the patient has pulmonary congestion, perhaps congestive failure. Arteriosclerotic disease is probably the underlying cause. [Emphasis added]
IMPRESSION: Arteriosclerotic changes. Enlarged heart. Pulmonary congestion and changes suggesting congestive failure.

The next admission, again to Christ Hospital, took place June 29, 19-69 with discharge on July 2. A possible neoplasm of the lung was ruled out by pathology report dated the day of discharge. The diagnoses were chronic bronchitis and multiple pulmonary emboli.

On July 27, 1969 petitioner was again confined to the same hospital, from which he was discharged August 8. The final diagnoses at this time were: pulmonary edema due to multiple pulmonary emboli; arteriosclerotic heart disease; enlarged heart; myocardial fibrosis. The discharge note reads in part as follows:

63 year old male with known coronary artery disease had recent episodes of pulmonary edema associated with cardiac arhythmia and pulmonary embolism (confirmed by lung scans). Readmitted to hospital in pulmonary edema. Evaluation — indicated jjresenee of pulmonary emboli with infarction —■ bilaterally. Responded well to rest, anticoagulants, diuretics.

Petitioner was evaluated for cardiac surgery at Deborah Hospital, Browns Mills, N. J. from April 6 to 14, 1970. He was found to be not an apt candidate for such surgery. There was no evidence of myocardial ischemia. The final diagnoses were: arteriosclerotic heart disease; coronary artery disease; congestive heart failure; left bundle branch block; chronic bronchitis with early pulmonary obstructive disease; benign prostate hypertrophy. Eeeommendations for treatment were made. Eeevalnation was sought in 12 months.

Petitioner was again confined to Christ Hospital from September 8 to 21, 1970. The final diagnoses at this time were: acute pneumonia RÜL (right upper lobe); arteriosclerotic heart disease; enlarged heart; regular sinus rhythm; multiple multifocal premature ventricular beats; left bundle branch block; previous multiple pulmonary infarctions.

Petitioner was again evaluated at Deborah Hospital in April 1971. The record of that episode contains the following:

FINAL DIAGNOSIS: Coronary artery disease with angina pectoris, probable papillary muscle dysfunction, left bundle branch block, premature beats, history of chronic congestive heart failure. 2. Chronic bronchitis with chronic obstructive pulmonary disease. 3. Benign prostatic hypertrophy.
CONCLUSIONS AND RECOMMENDATIONS: Mr. Goldklang seems to be quite stable in spite of the severity of his chronic problem. We suggest that he stay on the same medical program, except that perhaps the Lasix need not be administered as often. We would like to see him again for another evaluation in one year.
PROGNOSIS: Fair.

Petitioner sought to reopen his 1968 award resulting from the 1965 infarct. His thesis was that his medical problems since that award, set forth above, were causally related to the 1965 infarct to a sufficient degree to authorize an award for increased coronary disability. The Compensation Court dishonored his claim; the County Court reversed and I am convinced that the initial tribunal reached the correct result.

On the reopener it was the petitioner’s burden to prove by the preponderance of the evidence not only the fact that his disability had increased but that the increased disability was causally related to the original injury. Schiffres v. Kittatinny Lodge, Inc., 39 N. J. 139, 148 (1963). The prior proceeding is res judicata at the time of the judgment entered therein, subject only to application for increase or decrease in the award by employer or employee pursuant to N. J. S. A. 34:15-27. Schiffres, supra, 39 N. J. at 148; Hopler v. Hilt City Coal & Lumber Co., 5 N. J. 466, 470 (1950). With respect to the burden of proof, petitioner must establish that his prior infarct caused his increased disability to a material degree — a degree greater than de minimis. Dwyer v. Ford Motor Co., 36 N. J. 487, 493-494 (1962).

It would also be well to refer to a medical or medico-legal truism that underlies all discussion of work-connected myocardial infarctions. That is, work effort does not of itself cause coronary occlusion or myocardial infarction. Our cases have accepted the disputed medical proposition that employment effort or stress can so act upon the underlying disease of coronary arteriosclerosis as to precipitate an infarct. Thus, our cases speak of “precipitation” by the action of work effort upon the underlying disease. Dwyer, supra, 36 N. J. at 491-492; Carr v. Campbell Soup Co., 124 N. J. Super. 382, 384 (App. Div. 1973); Meines v. Hy Levine Associates, 58 N. J. 548, 554-555 (1971); Aladits v. Simmons Co., 47 N. J. 115, 125 (1966). Everywhere it is clear medically and legally that one does not have a myocardial infarction unless he also has preexisting and underlying coronary artery disease. Hence, we reach the question in this and like eases, (Schiffres, supra), whether the increased disability resulted from the progression of the disease alone, or was contributed to in a material degree by the prior injury. This issue is the one posed by this record. Implicit therein is the recognition that long before October 21, 1965 petitioner suffered from coronary artery disease, though it was asymptomatic. This is clear not only from the infarction he suffered that day but also from the fact that he had the silent coronary discovered in 1962.

The first manifestation of increased disability to be dealt with is petitioner’s claim that his deep vein thrombophlebitis, with its onset in June 1968 is, to the required degree, caused by his 1965 infarct. His expert, Dr. Rowland Goodman, an internist, never expressed more than a valueless conclusionary opinion that the 1965 infarct caused the thrombophlebitis. With reference to this subject he in fact stated:

Now, as you probably know, thrombophlebitis of and by itself is not caused by the heart attack, yet patients with myocardial infarctions are particularly prone to the development of clotting in the legs. It is for this reason that we give anticoagulants, both during the immediate treatment phase while in the hospital and many physicians give it for a long term afterwards. So that this is, in my opinion, a complication of his myocardial infarction, although in essence it wasn’t caused by it.

I cannot accept this as expressing the reasoned conclusion called for by our cases, (Dwyer, supra; Aladits v. Simmons Co., supra), as a necessary prerequisite to a finding that the deep vein thrombophlebitis was caused by the 1965 infarct. Rather, to me, it establishes the opposite. If the debtor meant to say, as I think he did, that those who have suffered a myocardial infarct are more prone than members of the general population to have thrombophlebitis because they are thus identified as more susceptible to disease of the arterial and vascular systems, then he supports respondent’s position and the Compensation Judge’s conclusion that the thrombophlebitis resulted from the progression of that disease and not the infarct. In my opinion the above testimony of Dr. Goodman does not support causal connection between the thrombophlebitis and the 1965 infarct. In fact, it denies it.

With respect to the left bundle branch block, Dr. Goodman said:

He was found at that time to have arteriosclerotic heart disease; he had a left bundle branch block, and feel that this is, in itself, a direct outcome of the heart attack for the reasons which I said; namely, a complication, if not directly caused.

I don’t know what the doctor means by a “complication.” If he means to say that people to have infarctions and who therefore have underlying coronary artery disease are more prone to have the further complication of the disease called a bundle branch block, then, again, he supports the Compensation Court’s conclusion. But I do not believe that the left bundle branch block is available as an item of increased disability. It was one of the diagnoses offered to the Compensation Court in the 1965 hearing and upon which the award was then made. The left bundle branch block was evident during the October 1965 hospitalization. It is the same thing as the left ventricular parietal block noted upon EKG’ reading at that time. Bes judicata bars this claim.

With respect to- the multiple pulmonary emboli and the disabilities resulting therefrom, they, too, can be excluded upon the basis of Dr. Goodman’s testimony alone. He said:

*•* * it was the conclusion that he was having multiple pulmonary emboli; in other words, clots breaking off from the previous thrombophlebitis and entering the lung. This is confirmed by the lung scan which was performed on 7-1-69. The impression, the picture is compatible with multiple pulmonary emboli.

Thus, it is seen that the pulmonary emboli were caused by the thrombophlebitis which, as pointed out above, did not result from the 1965 infarct. The proper conclusion is obvious. So, too, with the pulmonary edema, due coneededly to the pulmonary emboli as Dr. Goodman recited.

Dr. Goodman’s rationale that petitioner showed a “straightforward” downhill course from his 1965 infarct is belied by the record. He worked from October 1966 until his retirement in March 1968 without hospitalization ox incident unusual for an infarct patient. This circumstance lends gre.at support to the conclusion of respondent’s internist, Dr. Jack S. York, that long prior to the onset of the episodes upon which the reopener was based petitioner’s 1965 infarct had become “well stabilized.”

With respect to the enlarged heart, Dr. Goodman said:

In my opinion, the initial myocardial infarction was so extensive and so severe that instead of normal healing taking place, there was progressive weakening of the heart. This is shown by the fact that the heart got larger and larger over the years because it was unable to pump Hood adequately in its normal size.

It is obvious as the above statement implies that any muscle — and the heart is a muscle —will enlarge in an attempt to meet greater demands put upon it. But these demands did not result from the 1965 infarct. There was no heart enlargement noted in any hospital record until the admission of May 1969. From then on it appears as a consistent diagnosis. This circumstance makes it clear to me that heart enlargement did not arise from the 1965 infarct, but from the extra burden put upon his circulatory system by reason of the thrombophlebitis and its concomitants — pulmonary emboli and edema. It took a year from the onset of the circulatory burdening thrombophlebitis before the diagnosis of cardiac enlargement was made. Thus, there is ample support for the Compensation Court’s implied acceptance of Dr. York’s thesis that petitioner’s cardiac deterioration was due to the extra burdens placed upon it by the thrombophlebitis and the pulmonary emboli and edema it caused.

Dr. Goodman’s testimony also indicates that the arrhythmia resulted from the bundle branch block, which has been excluded, and the enlarged heart, which as has been shown is related to the thrombophlebitis and its pulmonary complications and not the 1965 infarct. He also related the congestive failure to the heart’s deterioration as a pump as evidenced by its enlargement. But this was due to the unrelated pulmonary disease. So, too, with the bronchitis which was said to be related to the congestive failure. He also stated that the pulmonary fibrosis resulted from the pulmonary emboli and this in turn makes it more difficult for the heart to pump blood. Dr. Goodman’s examination brought forth no other evidence pertinent on the issue of causal connection.

Dr. Goodman conceded, as he must, that petitioner had arteriosclerotic cardiovascular disease at least as early as 1962 when he was age 56 and his silent antero-septal infarction was discovered. On cross-examination he admitted that this disease is progressive with age. Since Dr. Goodman did not mention several of the diagnoses of conditions that beset petitioner on and after June 1968, I can only conclude that there is no proof of their causal relationship and, therefore, in all probability, they resulted from the progressive nature of his coronary artery disease.

In my opinion Dr. Goodman chose his words carefully, calling the various conditions “complications” or “sequlae” of the infarct so as to seem to be asserting causal connection when in fact he was not. Our cases, Dwyer and Aladits, both supra, in order to establish causal connection, call for some reasoned explanation of the physiological mechanisms involved.

It is obvious that the crux of this case involves the issue of causal relationship between the 1965 infarct and the onset in 1968 of deep vein thrombophlebitis. A myocardial infarction is by definition death or necrosis of heart muscle tissue arising from circulatory impairment. The evidence in this case is bereft of any explanation of how this 1965 event affected petitioner’s circulator system so as to lead to the development in 1968 of the thrombophlebitis from which ensued the later major diagnoses of pulmonary emboli and edema, congestive failure and cardiac enlargement. To me, petitioner did not prove his case, and I must come to the conclusion that there is no competent, credible evidence in this record to support the County Court’s judgment that petitioner’s increased disability was causally related to the 1965 myocardial infarct. Schiffres, supra. Accordingly, I would reverse the judgment below and reinstate that of the Workmen’s Compensation Court.

       Dr. Goodman, the employee’s medical expert, gave as his diagnosis: “arteriosclerotic heart disease with the residuals of acute myocardial infarction, aortic stenosis, severe coronary and myocardial insufficiency, cardiac panarrahythmia with the residuals of a post myocardial infarction pulmonary embolism.” Dr. York, the employer’s expert, diagnosed the present condition as “arterioscierotic cardiovascular disease, with an enlarged heart, and he also had chronic bronchitis with pulmonary emphysema.”

       We note an apparent error in the opinion as to the first hospitalization in Christ Hospital. The period should be from June 24 to June 28, 1968, rather than June 24 to July 28, 1968.

       The causal relation between a compensable infarction and subsequent increased coronary or heart disability is not precluded automatically merely because a substantial period of time has elapsed since the infarction, even though the employee has an underlying heart condition or sclerotic disease of the coronary arteries which is progressive in nature. The matter is still one of proof of medical causation. Schiffres, supra, 39 N. J. at 150; Close, supra, 44 N. J. at 601.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. INTERPACE CORPORATION, A CORPORATION OF DELAWARE, ETC., DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 30, 1974—
    Decided May 31, 1974.

      Before Judges Halpekn, Matthews and Bischoee.

      Mr. Clifford W. Starrett argued the cause for appellant (Messrs. Schenck, Price, Smith & King, attorneys; Mr. Willard Bergman, Jr., on the brief).

      Mr. Richard L. Rudin, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, First Assistant Attorney General, of counsel).
   Per Curiam.

The complaint in this partial taking condemnation suit was filed on June 5, 1969. The declaration of taking was filed on March 12, 1971, and a deposit of $103,650 was then made by the State. The commissioners’ award was appealed and a jury returned a verdict in favor of defendant for $130,000, that amount representing the value of the property taken and the damage to the remainder. A motion for new trial or additur was denied. Interest was allowed by the trial judge on $130,000 from the filing of the complaint to March 12, 1971 at 6%, and interest at 6% on $26,350 (being the difference between the amount of deposit and the ultimate award) was awarded from March 12, 1971 to April 18, 1973.

Defendant appeals from the judgment entered on the jury’s verdict and from the denial of its new trial motion. The State cross-appeals from the allowance of interest as aforesaid.

Defendant’s property consisted of approximately 184 acres of land. The premises were zoned for research office and laboratory use for the initial 1000 feet of depth from Cherry Hill Road, and the interior from said road was placed in a specialized economic development zone.

The experts approached the problem of valuation on different theories, leading to a divergence of their views on valuations. Defendant’s experts assigned higher values for the lands which ran to a depth of 1000 feet off the highway as against the lands in the rear. They were of • the opinion that the front lands were worth between $32,000 and $35,000 an acre, and the rear lands $22,000 to $18,500 an acre. The State’s experts treated the 184-acre tract as a single piece of property and took no cognizance of the fact it was located in two different zones.

Defendant challenged some of the comparable sales used by the State as being too distant from the condemned premises, and insisted upon using sales of land made by itself just prior to the commencement of this suit. The State’s experts challenged these sales on the theory that the land sold was the best land of the entire tract, whereas the approximately seven acres of land being taken on this condemnation was the poorest. Resolution of the conflict was properly left to the jury.

Defendant offered Clifford Johnson, a consulting engineer, as an expert who would have testified that the taking deprived the remaining acreage of reasonable access. Three factors influenced his opinion: (1) the construction of a third traffic lane to service the Route 80 entrance ramp, (2) the projected traffic flow as of 1990, and (3) the projected number of employees within the complex in ten years. The trial court rejected the proffer. Belying on Mueller v. N. J. Highway Authority, 59 N. J. Super. 583, 595 (App. Div. 1960), Interpace contends that the issue of reasonable access was a question of fact which should have been submitted to the jury.

In the case of a partial taking, the owner is entitled not only to the value of the land taken but also to the amount of any diminution in the value of the remainder attributable to the taking. Ridgewood v. Sreel Investment Corp., 28 N. J. 121, 125 (1958). The denial of access is compensable, but a property owner is not entitled to access to his land at every point along its frontage. The property owner is entitled to free and convenient or reasonable access to the property and its improvements. Mueller v. N. J. Highway Authority, above; State Highway Comm’r. v. Kendall, 107 N. J. Super. 248, 252 (App. Div. 1969); 2A Nichols on Eminent Domain, § 6.4442. However, even though traffic regulations may affect ingress and egress, the resulting inconvenience is not compensable. State Highway Comm’r v. Kendall, above; State v. Monmouth Hills, Inc., 110 N. J. Super. 449, 452 (App. Div. 1970), certif. den. 57 N. J. 133 (1970) ; Tubular Service Corp. v. Comm’r, State Highway Dep’t, 77 N. J. Super. 556 (App. Div. 1963), aff’d 40 N. J. 331 (1963) ; 2A Nichols on Eminent Domain, § 6.4113(4) and 4A Nichols, § 14.2431. See Annotation, 73 A. L. R. 2d 689, 692-698 (1960).

In Mueller this court stated, “What constitutes reasonable access is a question of fact.” 59 N. J. Super. at 595. Tnterpace argues that Mueller requires submission of the access question to the jury. However, in Mueller the court was reviewing the grant of a motion for summary judgment. In that case the factual record was so obscure that a decision was virtually impossible and inappropriate. Interpace ignores the distinction between conclusions to be drawn from the facts and the facts themselves. Mueller should not be read to preclude a court from making a decision on undisputed facts or upon a factually complete record, provided only one reasonable legal conclusion is possible. Tubular Service Corp., above, 77 N. J. Super. at 561; State Highway Comm’r v. Kendall, above. See also, Kryscnski v. Shenkin, 53 N. J. Super. 590, 597 (App. Div. 1959), certif. den. 29 N. J. 465 (1959)

In State Highway Comm’r v. Kendall this court affirmed a judgment n.o.v. which denied recovery for impairment of access. In Kendall the curb cuts on the property in question were concentrated in one portion and curbing and a guardrail were constructed along the remaining highway frontage. As a matter of law, the property owner was not denied access to such an extent to be entitled to compensation.

. In the present case the three preexisting access roads remained intact after the taking. Persons using Interpace Road as an exit would be required to cross the lane constructed to feed traffic on to Route 80. Ingress and egress in some instances will be made more difficult but is not denied. State v. Monmouth Hills, Inc., above, 110 N. J. Super. at 452.

Interpace argues, however, that traffic and developer projections indicate that traffic volume would prevent access via Interpace Road. This argument, however, introduces an element of speculation. It is generally agreed that a landowner is entitled to receive a price which reflects the commercial value at the time of taking or that which is a reasonable probability in the near future. Manda v. Orange, 82 N. J. L. 686, 689 (E. & A. 1912); see also, State v. Gorga, 26 N. J. 113, 116 (1958); cf. Ridgewood v. Sreel Investment above, 28 N. J. at 129-131.

The traffic volume argument principally relied on the completion of the developer’s ten-year plan and the Transportation Department’s projection as of 1990. Therefore, impairment of access is neither a present reality nor a reasonable certainty -in .the near future. Although it is certainly possible .that traffic volume could render this access road ineffective, the Interpaee theory is dependent on several contingencies, e. g., completion of tract development on schedule, continued growth in area, unaltered corporate relocation trends, continued reliance on the automobile for commutation purposes, which render the present offer of proof too speculative. Accordingly, we will not disturb the trial judge’s ruling excluding the testimony.

In order to properly valúate the seven condemned acres Interpaee argues that evidence of comparable sales must be restricted to small acreage parcels (7-30 acres). Therefore, the property owner argues, the State’s assessment based on large acreage parcels (100-300 acres) was misleading, erroneous and requires a reversal.

There are two generally accepted measures of damages : the per se value of the taken property and the before- and-after value of the property. Although theoretically both methods should lead to the same result, in practice this is not always the case. 4A Nichols on Eminent Domain, §§ 14.23, 14.232(1). The per se rule is the value of the land taken plus any diminution in the value of the remaining laud attributable to the taking. Ridgewood v. Sreel Investment Corp., above, 28 N. J. at 125 (1958); Sterner v. Nixon, 116 N. J. L. 418 (E. & A. 1936). The alternative rule, the before-and-after rule, measures compensation by the difference between the value before and the value after the taking of the landowner’s entire estate. Port of New York Authority v. Howell, 59 N. J. Super. 343, 348 (Law Div. 1960), aff’d 68 N. J. Super. 559 (App. Div. 1961); State v. Speare, 86 N. J. Super. 565, 572-573 (App. Div. 1965), certif. den. 45 N. J. 589 (1965). Although State v. Azzolina Land Corp., 101 N. J. Super. 103 (App. Div. 1968), argues persuasively the merits of the per se or Ridgewood rule in highway frontage condemnation eases, it does not hold that it is the only available measure in such circumstances. On the contrary, the court stated:

It was defendant’s position — clearly a correct one — that the measure of damages is either that just stated [before-and-after], or, alternatively, the value of the piece taken plus the diminution of the value of the remainder as a result of the taking, [at 106]

In Azzolina the trial judge’s failure to ¡allow evidence of the alternative was reversible error.

The parcel in the present case contained 184 acres before condemnation. The State was clearly able to assess the value of the condemned portion by the before-and-after rule which would require resort of large acreage parcels. Similarly, Interpaee was also able to rebut the State’s valuation by use of the method which would stress the increased value of a small acreage parcel. In this situation the question of the comparables is one of weight, not of admissibility.

Interpaee objects to the following portion of the charge in which the trial judge referred to general and special benefits:

That is, the rule is that the proper basis of compensation is the value of the property as it would be at the time of taking, but disregarding either the depreciating threat of, or the inflationary reaction to, the proposed taking.

Interpaee contends that the charge eliminated from the jury’s consideration .the value of the general benefits from the proximity to Route 80. However, in another portion of the charge, the trial judge stated:

At the same time, you are instructed that the State is not entitled to any credit, nor should the award of just compensation to Interpaee be reduced by any general benefit which it may receive by reason of the construction of Route 80. * * *
So, to the extent that general benefits are reflected in market value, the owner is entitled to them.

General benefits are those produced by the improvement which a property owner may enjoy in the future in common with all other property owners in the area. The question of benefits usually arises when a statutory right to set off for benefits exists. See Ridgewood v. Sreel Investment Corp., above, 28 N. J. at 131; 3 Nichols on Eminent Do main, § 8.62. General benefits may not be considered to reduce the compensation. The applicable rule in the ordinary condemnation case is that the proper basis of compensation is the value of the property as it would be at the time of the taking disregarding depreciation or inflation attributable to the proposed improvement. See Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374, 379 (1971); Housing Authority, Atlantic City v. Atlantic City Expo., 62 N. J. 322, 330 (1973).

The land cannot be considered in isolation. As we read it, the instruction attempted to prevent reductions or credits attributable to an intangible benefit. It did not prevent compensating the property owner at the current market value of similarly situated property. A review of the charge in its entirety satisfies us that the jury was not misled.

Finally, Interpace argues that the verdict was against the weight of the evidence because properties were sold at prices per acre in excess of the average price per acre reflected in the jury’s award. Essentially, Interpace’s argument is another version of its argument concerning method of valuation.

The State’s expert, Steinberg, explained that his method of evaluation — the before-and-after method — required that his appraisal refer to large acreage tracts of comparably situated and zoned land. He testified that only two such com-parables existed. Both involved land comparably zoned and situated along or in close proximity to two major state highways — Boutes 10 and 202. The first tract of 100 acres sold for $10,000 an acre; the second tract of 338 acres sold for $12,000 an acre. Steinberg did refer to two tracts located in close proximity to the Interpace property; in fact, one tract of 26)^ acres was sold by Interpace to a realty company. The 26^2-acre tract brought $37,700 an acre; the smaller two-acre tract brought $26,400 an acre. However, Steinberg rejected these sales as comparables because of their small size, which factor Steinberg concluded commanded a higher sales price than similarly situated but larger tracts.

B. 4:49-1 (a) provides that a new trial may be granted if, 'having given due regard to the jury’s opportunity to evaluate the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law. See Dolson v. Anastasia, 55 N. J. 2, 6-8 (1969). The award of $130,000 does not mean that the jury disregarded evidence; rather, it indicates that it chose to adopt Steinberg’s conclusion that small tracts are not truly comparable. In determining valuation the jury is under no obligation to accept an expert’s opinion; it may accept such testimony as appears reasonable, reject all of it or accept all of it. State, Comm’r of Transportation v. Vacation Lands, Inc., 92 N. J. Super. 471, 478 (App. Div. 1966). In any case which requires an appraisal of real property, differences of opinion may be expected. An expert’s selection of comparable property is not always confined to location. The essential criterion in an expert’s decision to use a sale as a comparable is a substantial similarity of conditions. State v. Probasco, 114 N. J. Super. 546, 551-552 (App. Div. 1970), aff’d 58 N. J. 372 (1971). Here, the State’s expert concluded the primary characteristic of comparables was large acreage. It was within the power of the jury to accept or reject his thesis. Accordingly, the verdict is not against the weight of the evidence.

In its cross-appeal the State attacks the allowance of interest on the judgment from the date of the filing of the complaint.

The State never questioned the propriety of the allowance of interest commencing from the date of the filing of the complaint. It conceded that fact below both in oral argument and in its brief.

Here, the State argues that the delay in obtaining an award was caused by defendant’s appeal and for that reason interest should not be allowed. The exercise of the right to appeal should not deprive a party of rights to which he is otherwise entitled.

Affirmed.


text:
    PIERRE SZAMEK, PLAINTIFF-APPELLANT, v. SECRETARY OF STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted September 9, 1974—
    Decided October 7, 1974.

      Before Judges Coneoed, Michels and Mobgan.

      Mr. John Cervase and Mr. Peter A. Buchsbaum, attorneys for Appellant.

      Mr. William F. Hyland, Attorney General, attorney for Respondent (Mr. Stephen Skillman, Assistant Attorney General, of counsel, Joyce Usiskin, on the brief).
   Per Curiam.

Plaintiff purportedly aspired to be an independent candidate for governor at the November 1973 general election. Instead of filing a petition to that end as required by N. J. S. A. 19 13-5, and taking the position that the qualifying provisions of the statute were invalid, plaintiff' filed a complaint in Superior Court asserting the act was unconstitutional as violative of his First Amendment and Due Process rights. The nub of his grievance is the combined statutory requirements of a filing date 40 days before the primary election, N. J. S. A. 19 :13-9, and that the petition must be signed by 800 signatories who assert, “I pledge myself to support and vote for the person named in this petition for governor.” N. J. S. A. 19 :13—4. The contention is that the exaction of such a pledge violates the right of the signatory to change his mind and vote for another candidate at the election — a deprivation which plaintiff has the right to assert as impairing his ability to qualify as a candidate for election. Accordingly, plaintiff sought judgment permitting the placement of his name on the ballot of the general election without the filing of a petition.

The Law Division dismissed tile complaint July 25, 1913. Plaintiff filed a notice of appeal August 16, 1913 but made no effort to bring on the submission or argument of the appeal to this court before the general election. Indeed his appellate brief was not filed until January 3, 1914. We have determined that the appeal should be dismissed as moot a¿nd because plaintiff lacked standing to bring the action.

Moritt v. Rockefeller, 346 F. Supp. 34 (S. D. N. Y. 1912), affkl mem. 409 U. S. 1020, 93 S. Ct. 465, 34 L. Ed. 2d 312 (1912), seems to be in point. There a candidate for nomination in the Democratic primary for judge of the Yew York Court of Appeals complained of the unconstitutionality of the procedure for getting on the ballot. Because be bad been denied nomination by the Democratic State Committee the statute called upon Mm to obtain 20,000 signatures ot 5% of the enrolled voters of the party, whichever was less, including a certain number in each of one half of the congressional districts of the state. Although his substantive argument of unconstitutionality of the procedure had merit, under Moore v. Ogilvie, 394 U. S. 814, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969), his petition was dismissed as moot by a majority of the three-judge District Court on the ground that he never filed any petition whatsoever. The court indicated that since his petition conceded that 12,000 signatures selected from anywhere in the state would have been a reasouable and valid statutory requirement, he should have filed a petition containing such signatures. Failing to do so, he lacked standing.

The reasoning of the Moriti case is pertinent here as well. Plaintiff should have filed a petition in such form as would have met his concession as to a proper constitutional requirement for signatories, see Jenness v. Fortness, 403 U. S. 431, 442, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971), and then expeditiously challenged in court any rejection thereof by the election authorities. There is nothing before us justifying any view that plaintiff was a serious candidate for the 1973 election.

That the appeal is moot is obvious. The 1973 election for governor is over. Plaintiff made no bona 'fide effort to get this litigation resolved by a -date which would have permitted him to be a candidate in the 1973 election. Further, this case does not present such a situation of “sufficient stake” of \ plaintiff in the litigation and “real adverseness” of interests of the parties as to w'arrant rendering a declaratory judgment on the meritorious issues. See Crescent Park Tenants Ass’n v. Realty Eq. Corp. of New York, 58 N. J. 98, 107 (1971).

Accordingly we need, not delve into the merits of the constitutional arguments made by plaintiff.

The appeal is dismissed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. KARL HEINZE KLUBER, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 15, 1973—Resubmitted April 14, 1974—
    Decided October 8, 1974.

      Before Judges Collestek, Lynch and Michels.

      Mr. Richard W. Berg, Deputy Attorney General, argued the cause for appellant (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey; Mr. John J. De Cicco, Deputy Attorney General, of counsel and on the brief).

      Mr. William E. Norris, 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

Collester, P. J. A. D.

Defendant was indicted for breaking and entering with intent to steal and larceny. At the conclusion of his trial the jury was unable to agree upon a verdict and was discharged by the trial judge. Thereafter, defendant moved pursuant to B. 3:18-2 for a judgment of acquittal, which was granted by the court. The State appeals. We withheld our decision to await the opinion rendered by our Supreme Court in State v. Sims, 65 N. J. 359 (1974). See discussion infra.

The State charged that at about 2 a.m. on January 10, 1972 defendant broke a window and entered the office of the Somerset Hotel in Somerville where he pried open a cash box and escaped with $132.70. The testimony of the State’s witnesses can be summarized as follows.

Bobert Badcliff, the hotel night watchman, testified that while making his rounds he heard the window being broken in. the hotel office. When Badcliff reached the lobby he saw defendant come out of the office with his face covered by a blue pea jacket he was wearing. The witness said he attempted to grab the jacket but was pushed aside and defendant ran out of the hotel. Badcliff telephoned the police and told them defendant was wearing a blue pea jacket, striped trousers, and a “sort of white tassel cap with little red rings around it.”

Badcliff further testified that a short time before the crime was committed he saw defendant talking with a police officer outside of the hotel and thereafter observed him staring into one of the hotel windows. Ho said he knew defendant, who was nicknamed “Woody,” because defendant had formerly lived at the hotel.

When Badcliff reported the crime to police headquarters three police officers were directed by radio to investigate. Officers Apgar and Tocci went to the hotel where they questioned Radcliff. Apgar left in his patrol car to search the area. He was joined by Officer Jones in another car. The two officers apprehended defendant six blocks from the hotel. Jones testified that defendant’s trouser pockets bulged with money and a search revealed that he had $144.65 on his person. The money consisted of $17.65 in coins and $127 in bills of various denominations. Defendant told Jones, “Some of this money is mine.” The officers took defendant to the hotel where he was identified by Radcliff as the man who had committed the break-in.

Officer Jones further testified that while on patrol at about 1 a.mv prior to the commission of the crime, he observed defendant near the rear of the hotel building. Since the hotel was closed the officer ordered defendant to come over to the patrol car. Jones said defendant, who wore glasses and had a beard, was wearing a blue pea jacket, a dark-colored knitted cap with a tassel, and dark trousers. The officer patted down defendant for weapons and found nothing on his person but a wallet. After questioning defendant and checking his driver’s license for identification Jones released him and told defendant not'to hang aroung the hotel.

Officer Tocci testified that when he and Officer Apgar arrived, at the hotel to begin their investigation Radcliff gave them a description of the clothes the man who committed the crime was wearing, and said that he saw the man’s face. None of the officers could recall whether defendant wore striped or solid colored pants — only that they were dark-colored.

Defendant did not testify or ’call any witnesses in his defense. At the conclusion of the testimony the trial judge denied a motion’ for acquittal “without prejudice to assert' a,,similar motion, under i?. 3:18-2.” The case was then submitted to the jury. After deliberating three hours the jury informed the" court it could not agree upon a verdict, whereupon it was discharged.- ' '

Eight days thereafter defendant moved for a judgment of acquittal under authority of B. 3:18-2. The motion was granted by the trial judge on the ground that there was insufficient evidence upon which to base a conviction. In so ruling the judge said that the watchman’s statement to the police that he had seen defendant’s face should not be given any weight in view of his contrary testimony; that if the watchman’s testimony was true, the individual whom he saw coming out of the hotel office could not have been defendant because he would not have had an opportunity to change his pants and hat before he was arrested by the police; that if the watchman’s testimony was false, it had to be discounted, and the remaining evidence presented by the State was insufficient to support a conviction.

R. 3:18 -2, which was the basis for the trial judge’s action, provides that if the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for an acquittal may be made within ten days after the jury is discharged and the judge on such a motion may order the entry of a judgment of acquittal. The rule was promulgated by our Supreme Court in the 1969 Revision of Rules Governing the Courts. The tentative draft comment referring to the rule states that the provision permitting a motion for acquittal after trial is equivalent to a motion for a judgment n.o.v. See Pressler, Current N. J. Court Rules, Comment to R. 3 :18-2.

The standard to be applied by the trial judge in deciding a motion for an acquittal under R. 3 :18-2 is the same as that which applies when a motion for acquittal is made at the close of the State’s case or at the end of the entire ease. The trial judge must decide whether the evidence is sufficient to warrant a conviction. More specifically, the trial judge must determine whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State’s charge has been established beyond a reasonable doubt. State v. Mayberry, 52 N. J. 413, 436-437 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); State v. Reyes, 50 N. J. 454, 458-459 (1967). On such a motion the trial judge is not concerned with the' worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State. Cf. Dolson v. Anastasia, 55 N. J. 2, 5 (1969).

Here the trial judge did not apply the proper standard. It is apparent that the judge improperly weighed the evidence and disregarded the logical inferences which reasonably could be drawn therefrom. We are satisfied that the judge erroneously granted the judgment of acquittal n.o.v.

Defendant contends that the State has no right of appeal where a judgment of acquittal has been entered by the court in accordance with R. 3 :18—2. He argues that to allow the State to appeal would violate the prohibition against double jeopardy embodied in the Pifth Amendment of the United States Constitution and Article I, Pargraph 11 of our State Constitution. We disagree.

The State’s right to appeal in this case is governed by R. 2:3-l which provides, in pertinent part,

In any criminal action tbe State may appeal *■ * * (b) to the appropriate appellate court from: * * * (3) a judgment of acquittal entered in accordance with R. 3:18-2 (judgment n.o.v.) * * *

Roth R.-2 :3—1 (b) (3) and R. 3:18-2 were adopted by the Supreme Court in the 1969 Revision of Court Rules. It is clear that in permitting the trial court to enter a judgment of acquittal n.o.v. in accordance with R. 3 :18-2 the Supreme Court concluded it would better serve the interests of justice and would, not prejudice the legitimate interests of the State, which could appeal such a judgment. See Pressler, Current N. J. Court Rules, Comments to R. 2:3-1 (b)(3) and R. 3:18-2.

The argument that the State’s right to appeal is barred under the constitutional prohibition of double jeopardy was raised recently in State v. Sims, 65 N. J. 359 (1974). In that case the State appealed from an order granting a new trial to defendant following a guilty verdict by the jury. The basis of the appeal was that an error of law had been committed by the trial judge in granting the motion for the new trial. The Supreme Court upheld the State’s right to appeal, reversed the new trial order, and reinstated the judgment of conviction.

In discussing the issue of double jeopardy raised by the defendant the court stated:

[Tjhe modern view, on which commentators appear to agree, is that double jeopardy bars only a completely new prosecution after a final judgment has been rendered. The jeopardy begins when the jury is sworn and does not end until all the facts and law are decided, however many appeals and new trials it takes. See Kepner v. United States, 195 U. S. 100, 134, 24 S. Ct. 797, 49 L. Ed. 114, 126 (1904) (Holmes, J. dissenting) ; United States v. Tateo, 377 U. S. 463, 84 S. C. 1587, 12 L. Ed. 2d 448 (1964) ; Moreland, Modern Criminal Procedure 277 (1950) ; Kronenberg, “Right of a State to Appeal in Criminal Cases,” 49 J. Crim. L. & P. S. 473, 476 (1959) ; Miller, “Appeals by the State in Criminal Cases,” 36 Yale L. J. 486, 496 (1927) ; Comment, “State Appeals in Criminal Cases,” 32 Tenn. L. Rev. 449, 458 (1965) ; Note, ‘The State Right to Appeal: Has Maine been too Cautious?” 21 Maine L. Rev. 221, 233 (1969). As one commentator has inquired, if there is no double jeopardy when the defendant appeals, why should it attach when the state appeals? Miller, “Appeals by the State in Criminal Cases,” 36 Yale L. J., supra at 496. [at 370)

We think the rationale of Sims with respect to the issue of double jeopardy is applicable to the instant case. There is a distinction between a judgment of acquittal entered at the conclusion of a trial and a judgment n.o.v. entered pursuant to R. 3:18-2. In the first situation defendant has been afforded his right to have his trial completed before a judge and jury, or the judge sitting as a trier of the facts. The judgment of acquittal in such a case is based on the law as applied to the facts which were presented. It assumes the attributes of a general verdict and is a bar to a second trial for. the same offense because of the constitutional prohibition against double jeopardy. On the other hand, a judgment of acquittal n.o.v. entered under B. 3:18—2 involves no issues of fact raised during the trial. The sole issue before the court is a question of law. We do not conceive that our Constitution contemplated that such a judgment of acquittal should be accorded the same nonappealable status as either a verdict of acquittal entered by a jury or a directed verdict entered by a judge during or at the conclusion of the trial.

It is well settled that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. Wade v. Hunter, 336 U. S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974, 978 (1949); Illinois v. Somerville, 410 U. S. 458, 470, 93 S. Ct. 1066, 35 L. Ed. 2d 425, 434 (1973). In the instant case defendant’s trial was completed upon the discharge of the jury and a retrial of the indictment was not barred under the principle of double jeopardy. United States v. Perez, 22 U. S. (9 Wheat.) 579, 6 L. Ed. 165 (1824). To hold that a judgment n.o.v. erroneously entered by the trial court would bar a second trial would be contrary “to the public’s interest in fair trials designed to end in just judgments.”

The constitutionality of the State’s right to appeal from errors of law has been upheld in other jurisdictions. See State v. Witte, 243 Wis. 423, 10 N.W. 2d 117 (Sup. Ct. 1943); State v. Evjue, 254 Wis. 581, 37 N.W. 2d 50 (Sup. Ct. 1949); State v. Brunn, 22 Wash. 2d 120, 154 P. 2d 826 (Sup. Ct. 1945); State v. Portee, 25 Wash. 2d 246, 170 P. 2d 326 (Sup. Ct. 1946). Cf. In re Gaskins, 430 Pa. 298, 244 A. 2d 662 (Sup. Ct. 1968).

In our view the State’s appeal is not barred under the constitutional prohibitions against double jeopardy because jeopardy does not end with the trial court’s ruling under B. 3:18-2. Rather, the issue of defendant’s guilt is still unresolved “until all the facts and law are decided, however many appeals and new trials it takes.” State v. Sims, supra, 65 N. J. at 370. Moreover, there is nothing fundamentally unfair in granting to the State the right to appeal from such a judgment of acquittal. Ordinarily, it would be anticipated that the prosecutor would move the indictment for retrial, and defendant’s reasonable expectations are not to the contrary. The result of permitting appellate review of such a judgment of acquittal under the circumstances present here is to either affirm the action of the trial judge, in which case defendant would not be subject to retrial, or to reverse the judgment. In the latter instance defendant will not be placed in jeopardy a second time by a reversal of the trial court’s ruling — he is in the same position he was when the jury disagreed upon its verdict and was discharged.

Accordingly, the judgment of acquittal entered by the trial judge is reversed and the ease is remanded for a new trial.


author: Milmed, J. S. C.,

text:
    COUNTY OF MONMOUTH, PLAINTIFF-RESPONDENT, v. ROBERT J. WISSELL AND BARBARA J. WISSELL, HIS WIFE, AND EDGAR ROGERS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 24, 1974—
    Decided October 8, 1974.

      Before Judges Lynch, Allcokn and Milmed.

      Mr. Richard J. Doyle argued the cause for appellants (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).

      Mr. Robert E. McLeod argued the cause for respondent (Messrs. Pillsbury, Russell and Ashbey, attorneys).
   The opinion of the court was delivered by

Milmed, J. S. C.,

Temporarily Assigned. Plaintiff County of Monmouth instituted this condemnation action for the acquisition of property owned by defendants. Robert J. Wis-sell and Barbara J. Wissell, his wife, as part of "the Acquisition Program of Shark River Park,” in the Township of Ueptune, the park being a facility of the Monmouth County Park System. Commissioners were appointed to fix the compensation to be paid for the taking. However, instead of awaiting the report of the commissioners and payment of such award as they may fix (N. J. S. A. 20:3-21 (b)), plaintiff, with a view to early vesting in it of title to the property (N. J. S. A. 20:3-18, 20:3-19 and 20:3-21 (a)), filed a declaration of taking and deposited with the clerk of the court $53,000 as estimated just compensation. Defendants’ motion to strike the declaration and restrain plaintiff from exercising any rights of possession as to the property was denied. Leave to appeal from that denial was granted.

Plaintiff’s declaration of taking can be permitted to stand only if plaintiff has been empowered by law to file it. We find no grant of such authority. The action was instituted under the Eminent Domain Act of 1971 (L. 1971, c. 361, N. J. S. A. 20 :3—l et seq.). Section 17 of that statute (N. J. S. A. 20:3—17) provides in pertinent part, in regard to a public entity condemnor, that

At auy time contemporaneous with or after the institution of an action and service of process, the condemnor may file in the action, when empowered to do so l)y law, and if so filed, shall also file in the recording office, a declaration of taking, duly executed by an executive official of the condemnor, in form and content specified by the rules, including the following:
(b) a specific reference to the statute, article and section thereof, under which the action and declaration of taking is authorized;
■c V V V v' v V
FEmphasis added]

Plaintiff suggests that its authority to take early possession of the property by the filing of a declaration of taking and deposit of the estimated compensation stems from (1) the general power of condemnation contained in the Local Lands and Buildings Law, L. 1971, c. 199, N. J. S. A. 40A :12-1 et seq.; (2) the authorization set forth in N. J. S. A. 13:8A-26, part of the New Jersey Green Acres Land Acquisition Act of 1971, L. 1971, c. 419, N. J. S. A. 13:8A-19 et seq., and (3) the “specific” authorization for it to cause lands, for whose purchase no agreement can he made, “to he condemned and taken” on behalf of the county for recreational purposes, found in N. J. S. A. 40:12-4. However, nowhere in. any of these statutes referred to by plaintiff is the county empowered to file a declaration of taking, make a deposit of the estimated compensation, and take early.possession of the property. We note that the New Jersey Green Acres Land Acquisition Act of 1971, in section 6 (N. J. S. A. 13:8A-24), specifically grants the right of early possession to the State upon the filing by the Commissioner of Environmental Protection or his designated representative, in the action by the State to acquire the lands, of a declaration of taking and deposit of the estimated compensation. Section 8 of the same act (N. J. S. A. 13.-8A-26), however, specifically defines the method of acquisition by a county in the following terms:

Lands approved by the commissioner for acquisition by a local unit with State assistance shall be acquired by and in the name of the local unit and may be acquired in any manner authorized by law for the acquisition of lands for such purposes by the local unit. [Emphasis provided]

The statutory construction suggested by plaintiff would render meaningless the phrase “when empowered to do so by law” contained in section 17 (N. J. S. A. 20:3-17) of the Eminent Domain Act of 1971. This could not have been the intention of the Legislature. The presumption is against useless legislation. Alexander v. Cunningham, Roofing Co., Inc., 124 N. J. L. 390, 394 (Sup. Ct. 1940), aff’d 125 N. J. L. 277 (E. & A. 1940); Lanning v. Hudson Cty. Ct. of Common Pleas, 127 N. J. L. 10, 16 (Sup. Ct. 1941), aff’d o.b. 127 N. J. L. 604, 605 (E. & A. 1942). “It is a cardinal rule of statutory construction that full effect should be given, if possible, to every word of 'a. statute. We cannot assume that the Legislature used meaningless language.” Gabin v. Skyline Cabana Club, 54 N. J. 550, 555 (1969). See also, 2A Sutherland, Statutory Construction (4 ed. Sands, 1973), § 46.06 at 63.

Assembly Bill No. 504 as finally adopted with a substantial number of amendments became chapter 361 of the Laws of 1971, known and cited as the Eminent Domain Act of 1971. As initially passed by the Legislature, section 17 did not include the words “'when empowered to do so by law.” Inclusion of the phrase in that section was one of the specific amendments recommended by the Governor in his conditional veto of the bill on December 2, 1971. The Legislature amended the bill, incorporating this and other amendments recommended by the Governor, and re-enacted the measure. The amended bill as re-enacted was approved by the Governor December 21, 1971. The process by which the phrase under review became part of the Eminent Domain Act of 1971 discloses a firm legislative intent to limit the taking of early possession by the public entity condemnor only to those specific cases where express legislative authority to do so has been granted. See e.g., N. J. S. A. 27:23-5 (j), relating to the New Jersey Turnpike Authority; N. J. S. A. 27:12B-7, relating to the New Jersey Highway Authority; N. J. S. A. 27:7—22, relating to the Department of Transportation; N. J. S. A. 20:3-39, relating to housing authorities or redevelopment agencies; N. J. S. A. 20:3-41, relating to lands needed for defense or for airports, and N. J. S. A. 13 :8A-24, relating to early possession by the State under the New Jersey Green Acres Land Acquisition Act of 1971. And see, Brown v. Murphy, 136 N. J. L. 183 (1947), wherein the former Court of Errors and Appeals pointed up the need for legislative authority therefor as a prerequisite to the early taking of possession of lands by a condemnor, stating

While R. S. 40:8-5 authorizes the city to acquire the lands by purchase or condemnation, it does not empower the city to take the lands in advance of making compensation therefor. Therefore, the taking in this case was unlawful and in this respect differs from such cases as Haycock v. Jannarone, 99 N. J. L. 183; Gould v. State Highway Commission, 112 N. J. Eq. 389; Goodavage v. State Highway Commission, 96 N. J. Eq. 424, and Miller v. Port of New York Authority, 18 N. J. Mis. R. 601. [at 185]

See also, Abbott v. Beth Israel Cemetery Ass’n of Woodbridge, 13 N. J. 528, 551 (1953).

Not being “empowered to do so by law,” plaintiff may not accelerate the taking of defendants’ property in this condemnation action by the filing of a declaration of taking and proceeding thereon in accordance with N. J. S. A. 20: 3-17 e-t seq. The motion to strike the declaration which was filed should have been granted.

The order denying that motion is reversed.

       We are informed hy counsel that no meeting of the commissioners has been held.


text:
    DONNA L. HOWELL, PLAINTIFF-APPELLANT, v. THE OHIO CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 10, 1974—
    Decided October 10, 1974.

      Before Judges Caeton, Ceane and Kolb.

      Mr. John E. Harrington argued the cause for the appellant (Messrs. Hartman, Schlesinger, Schlosser and Faxon, attorneys).

      Mr. Ernest F. Picknally argued the cause for the respondent-cross appellant (Messrs. Schuenemann and Picknally, attorneys).
   Per Curiam.

Plaintiff and her husband owned the house here involved as tenants by the entirety. Defendant had issued them a homeowners insurance policy providing coverage for fire loss or damage to the “dwelling building” and personal property “usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the described premises [the house].” If the property loss rendered the premises untenantable, the policy covered additional living expense, that is, “the necessary increase in living expense incurred by the Named Insured to continue as - nearly as practicable the normal standard of living of the Named. Insured’s household” until the repairs to the premises are completed or such household has become settled in permanent quarters, whichever period is less. The policy designated the named insured as “Gene K. Howell and/or Donna L. h/w.” The term “Insured” was defined therein as meaning the “Named Insured” and the named insured’s spouse if a resident of the named insured’s household.

Gene Howell, plaintiff’s husband, intentionally set fire to the house and took his own life while it was in flames. The house was rendered uninhabitable and the personal property therein, including household furnishings, was destroyed or severely damaged. Apparently since there was an innocent mortgagee involved, defendant paid for the repairs to the house. It refused to pay plaintiff for the personal property or for her living expenses. It contended that her husband’s arson constituted fraud by the “Insured” voiding the policy.

Cross-motions for summary judgment were made. In an opinion reported at 124 N. J. Super. 414 (Law Div. 1973), the court below granted summary judgment in favor of plaintiff in the amount of one-half of the damages within the policy limits. A jury trial thereafter on the issue of damages resulted in a verdict for plaintiff of $15,000 for personal property loss and $3,000 for additional living expenses. The policy limit was $13,500 for personal property loss and $5,400 for additional living expenses. The court accordingly molded the verdict to conform with its determination on the summary judgment motions to one-half of $13,500 ($6,750) and $3,000 ($1,500), respectively, and judgment was entered in favor of plaintiff for $8,250.

Both parties have appealed.

In the reported opinion the trial court properly held that the intentional burning of one’s own house is fraud voiding the policy. It phrased the issue before it as to whether the intentional burning by one spouse of a homestead held by tenancy in the entirety will bar recovery under a fire insurance policy by the innocent spouse. It concluded that the fraud of the husband in this respect was no bar to recovery under the policy by the innocent wife. It held that the interest of the wife in the real estate held as tenants by the entirety or, in the alternative, in the contract rights under the policy, was several, not joint, and thus not subject to forfeiture by the unilateral acts of her husband. As indicated, it then found that since the interest was several, recovery should be had to the extent of the wife’s interest, which it concluded amounted to one-half of the damages within the limits of the policy.

We hold that the trial court correctly determined that the fraud of the husband was no bar to recovery under the policy by the innocent wife. However, we reach this result irrespective of whether the interests of the wife and husband in the tenancy by the entirety, in the personal property, or in the contract rights under the policy are deemed to be joint or several. The significant factor is that the responsibility or liability for the fraud — here, the arson — is several and separate rather than joint, and the husband’s fraud cannot be attributed or imputed to the wife who is not implicated therein. Accordingly, the fraud of the co-insured husband does not void the policy as to plaintiff wife. N. J. S. A. 37:2-1 ef seq. See Patusco v. Prince Macaroni, Inc., 50 N. J. 365 (1967); Immer v. Risko, 56 N. J. 482, 488 (1970); Long v. Landy, 35 N. J. 44, 50 (1961); Simon v. Security Ins. Co., 390 Mich. 72, 210 N. W. 2d 322 (Sup. Ct. 1973). See also Hoyt v. New Hampshire Fire Ins. Co., 92 N.H. 242, 29 A. 2d 121 (Sup. Ct. 1942); Mercantile Trust Co. v. New York Underwriters Ins. Co., 376 F. 2d 502 (7 Cir. 1967), 24 A.L.R. 2d 443 (1969). Cf. Jackson v. Prudential Ins. Co. of America, 106 N. J. Super. 61, 69, 75 (Law Div. 1969); In re Kalfus, 81 N. J. Super. 435 (Ch. Div. 1963); Campbell v. Bay, 102 N. J. Super. 235 (Ch. Div. 1968), aff’d o.b. 107 N. J. Super. 509 (App. Div. 1969).

This conclusion is supported by the policy provisions prepared by defendant carrier, even though we do not deem them necessarily controlling here. The “Named Insured” is the husband “and/or” plaintiff wife. Although the term “Insured” means the named insured, the use of the ambiguous phrase “and/or” and the reasonable expectations of the insureds by reason thereof compel a determination that the fraudulent conduct by one insured should not void tho policy as to the other who is completely innocent thereof. See Bryan Const. Co. Inc. v. Employers' Surplus Lines Ins. Co., 60 N. J. 375, 378 (1972); Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1, 7—8 (1961); Cooper v. Government Employees Ins. Co., 51 N. J. 86, 93 (1968); 12 Appleman, Ins. Law & Practice, § 7006 at 22 (1943); Fisher v. Healy’s Special Tours, Inc., 121 N. J. L. 198 (E. & A. 1938); Annotation “And/or,” 154 A.L.R. 866 (1945).

We are not concerned here with the question of whether the rule should be different where the incendiary is a person in control of a corporation or a partnership or is an agent for an innocent principal, and express no opinion with respect thereto. See Charles Stores, Inc. v. Aetna Ins. Co., 428 F. 2d 989 (5 Cir. 1970); Miller & Dobrin Furniture Co. v. Camden Fire Ins. Ass'n., 55 N. J. Super. 205 (Law Div. 1959). See also, Hoyt v. New Hampshire Fire Ins. Co., supra; Arcnson v. National Automobile & Cas. Ins. Co., 45 Cal. 2d 81, 286 P. 2d 816 (Sup. Ct. 1955); Walker v. Lumbermens Mutual Cas. Co., 491 S.W. 2d 696 (Tex. Civ. App. 1973); Annotation, “Eire insurance on corporate property as affected by its intentional destruction by a corporate officer, employee or stockholder,” 37 A.L.R. 3d 1385 (1971). With respect to a fire insurance policy covering the interests of more than one insured, however, there is much to commend the view that, unless the terms thereof are plainly to the contrary and in some fashion clearly called to the attention of the insureds, the obligation of the carrier should be considered several as to each person insured, and the fraud or misconduct of one insured should not bar recovery by the innocent co-insureds to the extent of their respective interests in the property involved.

Since, as indicated, defendant has repaired the house held as tenants by the entirety, the discussion by the court below with respect to the nature of plaintiff’s interest therein was not necessary to its decision. We, therefore, do not pass on the correctness of its apparent determination that plaintiff would have been entitled to only one-half of the cost of repairs. .Assuming that the plaintiff’s rights are to be determined as of the time the fire started rather than soon thereafter when her husband committed suicide, the question remains as to the then extent of her interest in the real estate. Did she have a vested right in the entire property subject to defeasance on her husband’s surviving her, thus being entitled to the entire cost of repairs, or did a “voluntary” conversion of the realty into personalty occur for fire insurance purposes entitling her only to one-half of such cost? See King v. Greene, 30 N. J. 395, 407 (1959); dissenting opinion in Fort Lee S. & L. Ass’n v. Li Butti, 106 N. J. Super. 211, 214 (App. Div. 1969), adopted by the Supreme Court, 55 N. J. 532 (1970). Considerations of policy applicable to surplus moneys on mortgage foreclosures or to judgment execution sales involving tenants by the entirety, or to the rights of a tenant by the entirety in fire insurance proceeds where both spouses are alive (see Hawthorne v. Hawthorne, 13 N. Y. 2d 82, 242 N. Y. S. 2d 50, 192 N.E. 2d 20 (Ct. of App. 1963)), may or may not be pertinent to the question we pose.

We turn now to the remaining issues. To what extent is plaintiff entitled to recover the value of the personal property damage and living expenses within the policy limits? As indicated, the court below held she could recover one-half 'of that value.

After the court’s determination of the summary judgment motion, plaintiff moved to modify the judgment solely as to its ruling on the amount recoverable for living expenses. She indicated her agreement with the ruling as to the personal property. The motion to modify was denied.

On this appeal, plaintiff now claims that she is entitled to the entire value of the personal property. We doubt that she can thus shift her position on appeal. See Domestic Fuel Co. v. American Petroleum Corp., 6 N. J. 538 (1951). However, we need not pursue that issue further.

Our review of plaintiff’s deposition testimony, which is part of the record, satisfies us that the personal property here involved, — in the language of the policy, “furniture and furnishings usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the described premises”, — even though the husband’s funds were used for their purchase during the marriage, were actually intended by him to be owned by both spouses equally as tenants in common. Accordingly, plaintiff had a one-half interest in the personal property and the court below properly awarded her $6,750 to cover her share in the loss thereof. Cf. Eberhard v. Eberhard, 4 N. J. 535, 555 (1950); Ostrow v. Ostrow, 59 N. J. Super. 299, 304 (App. Div. 1960).

Defendant relies on N. J. S. A. 37:2-14 providing that the “paraphernalia of a married woman, being the suitable ornaments and wearing apparel of a married woman, which have come to her through her husband during marriage, shall be her separate property.” But that does not bar heT right to other personal property purchased during marriage, where, as hero, the evidence shows that she has an interest therein.

The additional living expenses payable, in the policy language, “covers the necessary increase in living expense incurred by the Named Insured to continue as nearly as practicable the normal standard of living of the Named Insured’s household for not exceeding the period of time required: 1. To repair or replace such damaged or destroyed property as soon as possible; or 2. for the Named Insured’s household to become settled in permanent quarters, whichever is less.”

This policy provision 'alone, 'and certainly in. tandem with the designation of the Named Insured as the husband “and/or” the plaintiff wife, contemplates payment of the complete loss suffered, within policy limits, for additional living expenses by an insured required to continue the normal standard of living of the insured’s household until the dwelling became habitable or the household became settled in permanent quarters, as indicated. The basic focus of the provision is on the deprivation of the use by an insured of the house as a dwelling by reason of fire. This construction represents a fair interpretation of what we deem to be rather clear policy language in favor of full coverage of the insured in this respect and accords with the latter’s reasonable expectations. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, supra; Bryan Const. Co., Inc. v. Employers’ Surplus Lines Ins. Co., supra; Cooper v. Government Employees Ins. Co., supra.

The court below, therefore, erred in allowing plaintiff only one-half of the value of the living expenses. She was entitled to the full amount thereof.

Accordingly, the judgment is modified so as to award plaintiff $3,000 for additional living expenses, or a total judgment in favor of plaintiff and against defendant of $9,750.

       The opinion stated that the house was destroyed. It is of no significance, but there are indications in the abbreviated record before us that it was damaged rather than destroyed.


author: Lora, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ENOCH DAVID SLOCUM, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 23, 1974—
    Decided October 7, 1974.

      Before Judges Collestee, Loea and Handler.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Robert T. Norton, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Ms. Lois De Julio, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Lora, J. A. D.

Defendant was found guilty by a jury of robbery and atrocious assault and battery. He was sentenced to a prison term of 10-15 years for the robbery, to run consecutively to any sentence then being served, and a consecutive term of 5-7 years for atrocious assault and battery.

Emily Marie Cobb, the victim, who operated a confectionary store and who was also a registered nurse, testified that defendant entered her store during the evening of January 12, 1973. When she stepped from behind the. counter to get an article for which ho had asked, defendant struck her on the neck and shoulders with a club. As Miss Cobb lost her balance, defendant grabbed her by the hair, dragged her behind the counter where ho dropped her to the floor, then lacked and stomped her on the back, shoulders and face. He said, “I am going to kill you, but where is your money first.” Defendant fled with about $50. Miss Cobb said she had known defendant since he was a small child who lived in her community.

As a result of the beating the victim sustained bruises and lacerations of her entire face and head, swelling of her right ear, a, concussion of the brain, a fracture of ¡he lower left mandible jaw, a fracture of the right molar arch of the upper jaw and a blow-out fracture of the right orbit of the right eye.

During direct examination Miss Cobb was asked if she had had any past experiences with defendant and if she had been the victim of a previous incident involving defendant. Over objection, she was permitted to testify that in 1968 defendant broke into and robbed her store and that she had testified against 'him in a trial which resulted in his conviction.

On cross-examination it was developed that defendant had not then been charged with robbery but with breaking and entering and larceny; that he had been convicted of breaking and entering; that the larceny charge had been dismissed; that Miss Cobb had not identified defendant at the 1968 trial but had testified as to what had been taken from her unattended store. It was also collaterally established that the conviction had been reversed on appeal, and on retrial defendant was acquitted.

Defendant moved for a mistrial which was denied on the ground that testimony of the prior incident was relevant to show defendant’s motive for the atrocious assault and battery and robbery regardless of whether or not the prior conviction had been reversed. It is defendant’s contention the admission of the testimony was prejudicial error and, in any event, such evidence should have been excluded pursuant to Evid. B. 4.

Under Evid. B. 55, evidence of prior crimes or civil wrongs is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity or absence of mistake or accident. Here the disputed testimony was admissible to show possible malice or revenge engendered by Miss Cobb’s. 1968 testimony against the defendant, as motive and intent, particularly in view of the outrageous battery committed upon the victim. State v. Baldwin 47 N. J. 379, 391 (1966), cert. den. 385 U. S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966); State v. Smith, 55 N. J. 476 (1970), cert. den. 400 U. S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970). Moreover, the trial judge specifically and fully cautioned the jury as to the limited purpose of such testimony and that such evidence was not to be considered as proof of guilt of the offense charged but only to show some possible motive. He also clarified the nature of the previous charges against the defendant and detailed the course of those proceedings leading to defendant’s acquittal on the breaking and entering charge and dismissal of the larceny count.

Additionally, there is no merit to defendant’s further assertion that receiving evidence of prior crimes of which the accused was not convicted constitutes reversible error. While it is true that under Evid. R. 47 only criminal convictions may be admitted to impeach credibility, evidence of “other crimes” which never resulted in a conviction is properly admissible where it tends, as here, to demonstrate motive, intent, identity, absence of mistake or plan. Evid. R. 55, State v. Smith, supra; State v. Baldwin, supra; State v. Donohue, 2 N. J. 381, 388 (1949); State v. Schuyler, 75 N. J. L. 487, 488 (E. & A. 1907); State v. Zicarelli, 122 N. J. Super. 225, 241 (App. Div. 1973), certif. den. 63 N. J. 252 (1973), cert. den. 414 U. S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973); State v. Ascolese, 59 N. J. Super. 393, 397 (App. Div. 1960); State v. Nagy, 27 N. J. Super. 1, 11 (App. Div. 1953).

Likewise, evidence of criminal acts for which a defendant had been previously acquitted is admissible for the same purpose. State v. Schlue, 129 N. J. Super. 351, 355 (App. Div. 1974) ; State v. Yormark, 117 N. J. Super. 315, 337 (App. Div. 1971), certif. den. 60 N. J. 138, 139 (1972), cert. den. Mulvaney v. New Jersey, 407 U. S. 925, 92 S. Ct. 2459, 32 L. Ed. 2d 812 (1972), vacated and remanded in part as to eo-deiendant Mulvaney, 61 N. J. 202, cert. den. 407 U. S. 925, 92 S. Ct. 2459, 32 L. Ed. 2d 812, Perwin v. New Jersey, 409 U. S. 862, 93 S. Ct. 151, 34 L. Ed. 2d 109 (1972); State v. Robinson and Chittenden, 16 N. J. L. 507 (Sup. Ct. 1838), Annotation, “Evidence — Other Offense — Acquittal,” 86 A. L. R. 2d 1132, 1144 (1962, Supp. 1968, 1974).

The probative value of the testimony on the issue of motive for the savage attack on the victim far outweighed any potential for prejudieialitv. Evid. R. 4. Nor do we agree with defendant that the five-year interval between the prior incident and the present offense rendered nugatory any allegation of revenge or motive. State v. Donohue, supra 2 N. J. at 388; State v. Schuyler, supra 75 N. J. L. at 488.

Defendant next argues the State failed to demonstrate that he knowingly and intelligently waived his Miranda rights prior to making an oral, inculpatory statement to a detective. We find no merit in defendant’s contention. Following his arrest and after the Miranda warnings had been read to him, defendant acknowledged that he understood his rights and said he wanted to discuss the matter with the police and indicated he wanted his mother to leave the room. Defendant then merely stated, in answer to questions posed to him, that he needed help and had known Miss Cobb since he was a baby. On the following day, at the county jail, defendant was again read the Miranda warnings and he again acknowledged that he understood them, following which, he answered the detective’s questions regarding the incident.

A waiver need not take on any particular form or utilize any designated legal terminology; any clear manifestation of a desire to waive is sufficient. State v. Graham, 59 N. J. 366, 376 (1971); State v. McKnight, 52 N. J. 35 (1968); State v. Kremens, 52 N. J. 303, 311 (1968); State v. Yough, 49 N. J. 587, 596 (1967). Our review of the record establishes that defendant did in fact waive his constitutional rights notwithstanding he did not specifically state that he was doing so.

Defendant also asserts plain error in that the trial judge’s charge directed a verdict of guilty against him when he instructed the jury that an atrocious assault and battery had been committed, thereby withdrawing from its consideration the fact issue of whether the assault and battery was “atrocious.”

The portion of the charge now objected to reads as follows:

Ladies and Gentlemen of the jury, I charge you that there is no evidence in this Court other than the fact that the attack upon Miss Cobb itself, and I’m merely making reference to the attack itself, was a brutal and vicious attack falling totally and completely within the purview of the law as I have read it to you. You need not concern yourselves with any determination as to whether the act itself was an atrocious assault and battery, but I charge you that it was. Your concern and deliberation will be whether or not the State has proved beyond a reasonable doubt that this defendant is the one who committed that offense which was described by the defendant and demonstrated by the medical records.

Later on in his charge, the trial judge further instructed the jury that the assault "was atrocious within the purview of the law —

A reading of the charge in its entirety satisfies us that the trial judge did not preempt the jury from determining the ultimate issues in the case. Cf. State v. Schneiderman, 20 N. J. 422 (1966), and State v. Hanly, 127 N. J. Super. 436, 450 (App. Div. 1974), certif. den. 65 N. J. 578 (1974), indicate that where the evidence is undisputed with respect to an issue of fact — even where the fact constitutes an element of the crime charged —- it is not error for the trial judge to so instruct the jury and in effect withdraw that determination from the jury’s consideration.

Consideration of defendant’s presentence report and record of criminal offenses encompassing armed robbery and breaking and entering and larceny, in the light of the circumstances of this case, leads us to conclude the sentences imposed are not manifestly excessive or unduly punitive.

Affirmed.


text:
    IN THE MATTER OF CARL E. KRAH, PETITIONER-APPELLANT, v. STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, DIVISION OF PENSIONS, PUBLIC EMPLOYEES’ REIREMENT SYSTEM, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 19, 1974—
    Decided October 10, 1974.
    Before Judges Halpern, Crahay and Ackerman.

      Mr. Garl L. Falkin argued the cause for appellant (Messrs. Franzblau, Cohen & Falkin, attorneys; Mr. E. A. Cohen, of counsel; Mr. Carl L. Falkin, on the brief).

      Mr. Samuel J. Halpern, Deputy Attorney General, argued the cause for respondent (Mr. William, F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Deputy Attorney General, of counsel; Mr. Samuel J. Halpern, on the brief).
   Per Curiam.

Petitioner appeals from an administrative determination of the Department of the Treasury, Division of Pensions, denying him the opportunity to purchase credit in the Public Employees’ Retirement System (PERS) for prior temporary service.

Appellant undertook temporary employment with the Newark Housing Authority on July 7, 1958. On October 1, 1961 he received his permanent appointment and thereupon was enrolled in PERS. Pursuant to N. J. S. A. 43:15A-11 (L. 1954, c. 84, § Jl) he could have applied at any time to purchase the prior temporary credit. He did not.

On June 17, 1971 N. J. S. A. 43 :15A—11 was amended by L. 1971, c. 213, § 3 — the essential pertinent change being that

* í. <’ rpjle member must agree to make such contributions -within X pear after the effective date of this act or during his first year of membership in the retirement system. [Emphasis supplied]

On October 1, 1972, three months after the expiration of the newly impoesd statutory limitation, appellant filed.

On appeal he contends that (1) PEES was required to notify his certifying agent in the Housing Authority of the amendatory legislation and failed to do so, and (2) he is entitled to purchase the sought credit under N. J. S. A. 43: 15A-54. The latter point was not made below. We affirm.

The hearing officer in the proceedings below found that the Newark Housing Authority in fact had been notified of the amendment. Appellant’s principal argument on this appeal is a challenge of that finding. We need not reach it since we are satisfied that there was no requirement that PERS notify employers of amendatory legislation.

N. J. S. A. 43 :15A-6 et seq. (Public Employees’ Retirement System of New Jersey) imposes the primary obligation to enroll employees in the system on the employer through its certifying agent. Bahrle v. Mirabelli, 107 N. J. Super. 361, 365 (Law Div. 1969).

PERS is mandated to issue a copy of the Employee Benefit Manual to each certifying agent. N. J. A. C. 17:1-1.18(a) and (b). The duty of administering each employing unit resides in its certifying agent. N. J. A. C. 17:2-1.5; N. J. S. A. 43 :15A-67. Nowhere do we find, expressed or implicit, any continuing statutory obligation on PERS to disseminate to certifying agents amendatory legislation concerning the retirement system at the time of its enactment.

We may not create judicially a difficult and onerous obligation (we deal here with hundreds of thousands of employees and thousands of certifying agents) where the Legislature chose not so to do. If the Legislature deemed the limitation on credit purchase contingent on such notice, it could have so stated. Illustratively, we note that is has, in treating of substantive rights under another pension system (Teachers’ Pension and Annuity Eund, N. J. S. A. 18A :66-l et seq.) mandated written notice by that fund to employers. N. J. S. A. 18A:66-7. Here, it simply did not. Meyer v. Board of Teachers’ Pens. & Annuity Fund, 49 N. J. Super. 255, 259 (App. Div. 1958).

Lastly, defendant’s contention (not raised below) that he is entitled to the sought credit by virtue of N. J. S. A. 43: 15A-54 (correction of errors; approval of application for prior service credit) is without merit and does not warrant discussion.

Affirmed.