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

text:
    STATE OF NEW JERSEY, RESPONDENT, v. LYNWOOD EDGE AND WALTER ROBBINS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 26, 1970
    Decided February 16, 1970.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Daniel R. Coburn, Assistant Deputy Public Defender, argued the cause for appellant, Lynwood Edge (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. John J. Urato, designated counsel, argued the cause for appellant, Walter Bobbins (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. William Mountford, Jr., Assistant Prosecutor, argued the cause for respondent (Mr. Vincent Panaro, Mercer County Prosecutor, attorney).
   Halpern, J. A. D.

Defendants appeal final judgments of conviction for rape (N. J. S. A. 2A:138-1). They were each sentenced to indeterminate terms at Bordentown Reformatory with 15 year máximums.

The principal issue confronting us is whether the in-court and pretrial identification testimony of the 13 year old victim, which was not objected to, violated defendants’ constitutional rights and should be recognized as plain error. Since our answer is in the affirmative, a summary of the relevant facts relating to the crime and identification procedures used becomes necessary.

The victim testified that on December 5, 1967 between 6:30 p.m. and 7 p.m. she was walking in the street when a ear containing three men stopped. Two men emerged, one with a gun and the other with a knife, forced her into the car, and made her lie on the floor. They drove to a wooded area where the three men raped her. She noted the license number of the car when she was let off. The police were notified and subsequently the defendants were separately picked up as suspects and taken to police headquarters.

The Yictim’s Identification of Edge

She testified, that while on the car floor, she saw defendants’ faces when they passed street lights, and when she exited from the car. She heard their voices while they talked. She described Edge to the police thusly “He was wearing like a cap, and he was kind of, oh, kind of tall, and not too tall, too, and he had on a dark jacket, dark pants.” His hair “was short and kinky.” The record does not indicate whether the description given fits Edge.

On December 6, 1967 between 9:45 p.m. and 11 p.m. (27-29 hours after the event) she was taken to the police station to. identify Edge. She viewed Edge through a one-way mirror while he was talking, to a police officer in a room, and was then brought face to face with and listened to him talk. She then identified Edge as being one of her attackers because “he looked like the man.”

It should be noted that Detective Mohr, who was in charge of the investigation, and was present at the police station confrontation, testified that the victim at first hesitated — walked away from Edge and he said to her “Is this the man that raped you?” •— again she said nothing but went back and took another look — once again he asked, her “Is this the man that raped you?”, and finally she answered “Yes, he did.” He also testified he had previously shown her a photo of one Bobert Edge, but while she thought it looked like one of her assailants she could not identify him.

At the trial, without objection, she testified to the pretrial identification, and then identified Edge in the court room.

The Victim's Identification of Bobbins

She testified that Bobbins drove the car, and she could see part of his face from her position on the floor of the car. She described him to the police thusly “He was kind of tall and between medium and slim build, and that he had a black kerchief or scarf around his head with a cap on or a hat or something like that, and that he was kind of dark in complexion.” At one point she said his skin was “very dark” although in her written statement to the police she called it “medium brown skin.” Again, the record does not indicate whether the description given fits Bobbins.

On December 6, 1967, she was shown two or three photos and identified one of them as Eobbins. On December 7, 1967, at about 2:25 p.m., (almost two days after the event), Detective Mohr took her to the police station and on the way told her they had the man she had identified. She then identified Bobbins by looking at him through the same one-way mirror. The only persons then present were Detective Mohr and her father.

At the trial, without objection, she testified to the pretrial identification, and then identified Robbins in the court room.

Admittedly, the defendants were not advised of their right to have counsel present at the pretrial confrontations,nor is it contended by the State that such right was then waived. These confrontations occurred at a critical stage of the case and the defendants should have been afforded the aid of counsel. In view of the victim’s age, her highly emotional state, the vague description of the defendants furnished to the police, her difficulty in making an effective observation while in the car, and the fact that no emergency existed, made it essential that any pretrial identification be conducted with all constitutional safeguards. Since these pretrial confrontations occurred after Wade, Gilbert, and Stovall, infra, were decided, having taken place after June 12, 1967, the exclusionary rule enunciated in those cases is applicable since defendants were not represented by counsel, nor had they intelligently and voluntarily waived their right to counsel.

[l,-2] We hold that the face to face pretrial identification procedure used in this ease was unduly suggestive and constituted a “singling out” of the defendants, making it fundamentally unfair and violative of due process and their right to counsel under the Sixth and Fourteenth Amendments as expressed in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Gilbert v. California, 388 U. S. 263, 87 S, Ct. 1951, 18 L. Ed. 2d 1178 (1967); and Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). As was aptly stated in Stovall, at page 302, 87 S. Ct. at page 1972: “The practice of showing suspects singly to persons for the purpose -of identification, and not as part of a lineup, has been widely condemned.” We recognize there may be exceptions to this standard but no proofs were offered in this ease to make such exceptions applicable. This error, in view of the weakness of the identification testimony, had a clear capacity to bring about an unjust result and should be recognized as plain error. State v. Hock, 54 N. J. 526 (1969); People v. Kelly, 12 N. Y. 2d 248, 238 N. Y. S. 2d 934, 189 N. E. 2d 477 (N. Y. Ct. App. 1963). Defendants were entitled to have counsel present even though they had not yet been indicted; and to be advised of theiT constitutional rights by appropriate warnings as delineated in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This entire subject was carefully considered and passed upon by the court in Rivers v. United States, 400 F. 2d 935 (5th Cir. 1968) where the court said:

After close examination of the record, we are compelled to conclude that fundamental error of constitutional proportions of the Wade-Gilbert-Stovall type, not raised at trial or on appeal, was committed by allowing testimony into evidence regarding an out-of-court identification of the accused while he was unrepresented by counsel. We, thus vacate and remand for further proceedings, (at page 937)
The decisions of the Supreme Court in Wade and Gilbert put it in terms of right to counsel. They held that confrontations between suspects and witnesses were a “critical stage” of the criminal proceedings against an accused and counsel must be present at these confrontations unless waived. With Miranda on the books, it is indisputable that most, perhaps all, confrontations occurring after arrest will fall within the rules announced in Wade and Gilbert, (at page 939)

The right to the aid of counsel is not a mere formality, it is the essence of justice. Kent v. United States, 383 U. S. 541, 561, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966).

The question remains whether we should reverse and order a new trial; or remand it to the trial court to determine whether the in-court identification had an independent origin so as to make it admissible, thus removing the taint oE the improper pretrial identification; or whether we can say, from the entire record, that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

The trial judge having retired from office we are unable to remand the case to him for consideration of the issues involved. Therefore, we have decided to reverse and order a new trial because evidence of the improper pretrial confrntation was adduced at the trial and we are unable to say, from the record, that it was harmless error. More importantly, since no objection was made to the identification testimony, the State did not have the opportunity of showing that such testimony may have had a source other than the police station confrontations. Thus the record is inadequate for us to make our own determinations on the problems of taint and harmless error. Finally, other trial errors were committed, which we will refer to later, that makes a new trial desirable on all issues. People v. Damon, 24 N. Y. 2d 256, 299 N. Y. S. 2d 830, 247 N. E. 2d 651 (N. Y. Ct. App. 1969).

For guidance at a new trial we suggest that before the State offers in-court proof of identity, the court hold a taint hearing out of the jury’s presence for the court to determine whether the in-court identification had an independent origin purged of the improper pretrial confrontation. Wade, supra, 388 U. S. at p. 241, 87 S. Ct. 1926, Clemons v. United States, 133 U. S. App. D. C. 27, 408 F. 2d 1230, 1237 (D. of C. Ct. App. 1968). The burden of proof will be on the State to establish, by clear and convincing evidence, that it was based upon observations of the defendants other than the improper pretrial confrontations. Gilbert v. California, supra. State v. Woodard, 102 N. J. Super. 419 (App. Div. 1968), certif. den. 53 N. J. 64 (1968), cert. den. 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1969).

If the court determines the in-court identifications are not based on an independent source, the State will be barred from offering testimony on identity which are the fruits of the improper pretrial confrontations. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

If the court determines the in-court identifications are based on an independent source and not tainted by the improper pretrial confrontations, then an in-court identification may be made. Gilbert v. California, supra, 388 U. S. at p. 273, 87 S. Ct. 1951. The ultimate issue of credibility should be left to the jury. The defendants, if they so desire, may cross-examine on all phases of the identification testimony, including the pretrial confrontations in order to attack the weight to be given the in-court identification.

We turn to other claims of error and find the court failed to charge on “alibi” even though requested to do so by defendants. We are cognizant of the holding in State v. Garvin, 44 N. J. 268 (1965) that it is not plain error not to charge on “alibi” — nevertheless, when requested, it should be charged. See Garvin, at page 275.

The court failed to charge on the “presumption of innocence.” Here again, while such may not be prejudicial error where “reasonable doubt” is charged, the presumption is so basic and fundamental that it should always be charged and not left to inference.

We make no comment concerning certain rulings on evidence (mentioned in the dissent filed herewith) since we do not know what form they may take at the new trial.

Reversed, and remanded for a new trial.

Sullivan, P. J. A. D.

(dissenting). I cannot agree that the record in this case requires a reversal of the judgments of conviction. The victim’s testimony as to the pretrial identification of the defendants and her courtroom identification of these defendants was given and made without any objection. If there had been an objection I agree that the trial court would have had an obligation to conduct a hearing and make appropriate findings. State v. Woodard, 102 N. J. Super. 419 (App. Div. 1968), certif. den. 53 N. J. 64 (1968), cert. den. 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1969). A failure to object at this critical stage of the trial was tantamount to a concession that these identifications were not unduly suggestive or tainted and, in my opinion, bars defendants from raising this issue on appeal.

The same holds for the contention that defendant Edge’s constitutional rights were violated by the testimony of his statement as to his whereabouts given to the police while in custody. There was no objection to this testimony and, for the reason above stated, I would hold that defendant may not for the first time raise the issue on appeal. Moreover, it is reasonably inferable from the proofs that the statement was given after defendant had been advised of his rights.

The judge’s charge to the jury is open to some criticism particularly in the light of the request made. However, taken as a whole, it was adequate and in my opinion properly instructed the jury as to the pertinent legal principles to be applied.

Defendant Eobbins’ contention that he was prejudiced by the testimony of Edge’s attorney is contradicted by the fact that the jury also found Edge guilty. Obviously this “neutralizing” testimony was not a factor in the jury’s verdict.

The other points raised by defendants lack substance.

The case against these defendants is not based entirely on the victim’s identification of them. There was strong evidence directly connecting these defendants with the motor vehicle used in the commission of the crime. Indeed, defendants, when they took the stand, verified the connection shown. I would not subject this young girl to the ordeal of a retrial of this rather revolting rape case. The record does not warrant it.


source: Caselaw Access Project

author:
Matthews, J. A. D.
      Lewis, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GORDON WILFRED BRAXTON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 4, 1970
    Decided July 16, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Barry S. Greenberger argued the cause for appellant (Messrs. Valenti Greenberger, attorneys).

      Mr. Arthur J. Timins, Assistant Prosecutor, argued the caus,e for respondent (Mr. Karl Asch, Union County Prosecutor, attorney).
   The opinion of the court was delivered by

Matthews, J. A. D.

Defendant moved to suppress certain evidence as being the fruit of an unlawful search and his motion was denied in the trial court. We granted leave to appeal, and now reverse.

On January 23, 1969 two Westfield Police officers cruising in a patrol car saw a vehicle driving at a moderate speed through the business section of town. Because, they said, the driver was wearing gloves (note it was January); and because of the slow speed, and again because the two occupants, whom they did not recognize, appeared to be looking from' side to side, the officers became "suspicious” and trailed this vehicle at a distance. A short while later, the vehicle was stopped by the police who asked the driver for identification. He produced his driver’s license and registration card. Due to the ragged condition of the registration, the police were unable, they said, to read the entire license number, although thejr could make out the three letters and the first two of the three numbers, all of which matched the license plates. Only the final digit was in doubt. Moreover, the name and address of the owner and the physical description of the vehicle completely matched defendant driver’s license and the car itself. Nonetheless, the police felt the circumstances to be suspicious and allegedly ordered the occupants out of the ear and frisked them. Defendant alleges that one of the officers ordered him to open the trunk, but the police state that the compliance with their request was wholly voluntary. A search of the trunk, however, disclosed nothing. The police than confiscated the keys to the vehicle and placed defendant and his companion in the patrol car, leaving the “suspect” motor vehicle unlocked and unattended, although they stated that another officer would be along shortly to guard the vehicle. Defendant and his passenger were taken to police headquarters where they were questioned at length as to the ownership of the vehicle. Defendant allegedly requested permission to call a lawyer, but the request was denied. After approximately hour, defendant’s ownership of such a car was confirmed through Trenton, but the police evinced a desire to check the serial number of the vehicle. Defendant objected, but was physically taken back to the vehicle. There, one of the officers opened the car door and attempted to read the serial number on the doorpost. He claims at this point he saw something protruding from under the front seat. The protrusion proved to be a sawed-off shotgun, which was immediately seized and defendant was thereupon charged with illegal possession of a weapon.

As noted, defendant moved to suppress the evidence thus seized on the ground that it was the fruit of an illegal search and seizure. The trial judge, in a rather extended oral opinion, found that the police had no probable cause to conduct a search, but further held that the gun was discovered as an incident to a lawful stopping and investigation and was therefore admissible. We might observe that there is nothing in the facts stated to be found by the trial judge which supports his conclusion.

The threshold question here is whether the “investigation” conducted by the police officer was or was not a “search” so as to require a search warrant, an attendant valid arrest, or probable cause. The State contends that the entire incident was merely an investigatory detention of limited intended scope and that the. discovery of the gun was merely a fortuitous by-product of the investigation.

It is, of course, well established that the fruits of an unconstitutional — i. e., legally “unreasonable” — search and seizure must be suppressed at any later criminal proceding. Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). However, N. J. S. A. 39:3-29 explicitly authorizes the police to stop vehicles at random and to demand the production of a driver’s license and a motor vehicle registration. Cf. N. J. S. A. 39:5-25; State v. Padavano, 81 N. J. Super. 321, 328 (App. Div. 1963). In State v. Kabayama, 98 N. J. Super. 85 (App. Div. 1967), aff’d o. b. 52 N. J. 507, the temporary stopping of automobiles for purposes of verifying ownership and driving credentials was held to be a valid and reasonable exercise of police power.

If contraband or weapons are visible from outside the vehicle, the observation of such evidence, absent a prior physical entry, does not constitute a “search” within the constitutional meaning. State v. Gosser, 50 N. J. 438, 447 (1967); State v. Griffin, 84 N. J. Super. 508, 517 (App. Div. 1964); Campbell v. United States, 110 U. S. App. D. C. 109, 289 F. Supp. 775 (D. C. Cir. 1961); United States v. Jankowski, 28 F. 2d 800, 802 (2 Cir. 1928); see also State v. Smith, 37 N. J. 481, 496 (1962); State v. Murphy, 85 N. J. Super. 391, 399 (App. Div. 1964), aff’d 45 N. J. 36 (1965); State v. Mark, 46 N. J. 262, 271-272 (1966).

Under the facts adduced below, the gun was not visible until the police further checked, out the interior of the vehicle. While N. J. S. A. 39:3-29 authorizes temporary detention to check the license and registration, it is apparent that the Westfield police exceeded a simple documentary check and were actually conducting a “search,” purportedly of limited intent. Indeed, the officer did not recognize the object as a gun until he removed it from under the seat. In State v. Taylor, 81 N. J. Super. 296 (App. Div. 1963), it was held that an officer’s opening of the car door and bending over into the vehicle to retrieve an unidentifiable object under the seat was “unquestionably” a search and seizure. Further, we might note the particular language of State v. Boykins, 50 N. J. 73, 77 (1963), where it was said that if the motor vehicle operator were unable to produce adequate proof of ownership, the investigating officer might “search” the car for proof of proper possession. See also, People v. Prochnau, 251 Cal. App. 2d 22, 59 Cal. Rptr. 265 (Ct. App. 1967); Draper v. Maryland, 265 F. Supp. 718 (D. Md. 1967). It is evident, then, that the Westfield police did conduct a “search” of defendant’s vehicle, thus requiring compliance with the constitutionally mandated safeguard of “reasonableness.”

The search of an automobile is not ipso facto lawful or unlawful, but the permissibility of such a search is grounded on a fundamental inquiry as to its constitutional “reasonableness.” Carroll v. United States, 267 U. S. 132, 147, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Henry v. United States, 361 U. S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959); see also Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964); Annotation, “Lawfulness of Search of Motor Vehicle Following Arrest for Traffic Violation,” 10 A. L. R. 3d 314, 320 (1966). Moreover, the court must apply a eommonsense analysis in scrutinizing the activities of the police and the reasonableness of searches. State v. Miller, 47 N. J. 273, 278 (1966); State v. Gosser, above, 50 N. J. at 447; State v. Fioravanti, 46 N. J. 109, 122-123 (1965), cert. den. 384 U. S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440 (1966).

As to probable cause, it is well established that the investigating officer must possess such information or suspicion as to warrant a man of reasonable caution to believe that an offense has been committed — something more than a mere incriminating inkling and less than absolute proof. State v. Taylor, above, 81 N. J. Super, at 308; Henry v. United States, above, at 361 U. S. 102, 80 S. Ct. 168; Brinegar v. United States, 338 U. S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); see also, Draper v. United States, 358 U. S. 307, 313, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). It is equally clear that, absent such probable cause, the citizen may proceed unimpeded — and unsearched. Clay v. United States, 239 F. 2d 196 (5 Cir. 1956) (fact that driver was known gambler held insufficient to support search of car); State v. Valentin, 74 N. J. Super. 502 (Law Div. 1962) (fact that police officer did not recognize driver or passenger not sufficient basis for search of car.)

Ordinarily, an apprehension for a traffic violation will not justify a search except as to related matters — i. e., search of drunken driver’s car for liquor-evidence. State v. Cusick, 110 N. J. Super. 149 (App. Div. 1970), State v. Scanlon, 84 N. J. Super. 427, 434 (App. Div. 1964); State v. Boykins, above, 50 N. J. at 77; see also United States v. Tate, 209 F. Supp. 762 (D. C. Del. 1962). However, the police may search for proof of ownership where such proof is not satisfactorily produced by the driver. State v. Boykins, above, 50 N. J. at 77. It is tangentially material, in adjudging if the police had genuine probable cause to conduct the search, whether or not the citizen is arrested or prosecuted for the initial suspected offense. See State v. Taylor, above, 81 N. J. Super. at 309.

In the instant case the trial judge found that the police had no probable cause, as such, for the search. Given the minor “discrepancy” on the ragged registration, the long period of detention, and the utter lack of indicia of guilt, it is clear that the police did, in fact, have no probable cause to suspect an offense so as to independently validate the consequent search.

It is, of course, firmly settled that the police may search a car as an incident to a valid arrest. State v. Fioravanti, above, 46 N. J. at 122; Ker v. California, 374 U. S. 23, 41, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). Moreover, as earlier noted, N. J. S. A. 39:3—29 expressly permits the police to stop a vehicle to verify the ownership thereof. See State v. Kabayama, above. Equally, law enforcement officers may properly stop and question a person found in circumstances suggestive of a possible criminal violation without making a technical arrest; such an “investigatory detention” is not an arrest and requires, as a reasonable foundation, suspicion of a lesser degree of eonelusiveness. State v. Hope, 85 N. J. Super. 551, 554 (App. Div. 1964); State v. Dilley, 49 N. J. 460, 467 (1967); United States v. Bonanno, 180 F. Supp. 71 (S. D. N. Y. 1960), rev’d on other grounds sub nom. United States v. Bufalino, 285 F. 2d 408 (2 Cir. 1960); see also State v. Taylor, above, 81 N. J. Super, at 313; State v. Smith, above, 37 N. J. at 496; State v. Bell, 89 N. J. Super. 437, 443 (App. Div. 1965); compare Busby v. United. States, 296 F. 2d 328 (9 Cir. 1961), cert. den. 369 U. S. 876, 82 S. Ct. 1147, 8 L. Ed. 2d 278 (1962) (gun visible on back seat after driver fails to produce license). Even if the prolonged detention herein was an arrest, the police are entitled, for reasons of justifiable self-protection, to make a contemporaneous search for weapons. Preston v. United States, above; State v. Griffin, above, 84 N. J. Super, at 517; see also, Annotation, 10 A. L. R. 3d 314, 328 (1966). Furthermore, the technical arrest need not necessarily precede the search, at least where the two events are so close in time as to be but facets of a single transaction “or connected units of an integrated incident.” State v. Doyle, 42 N. J. 334, 343 (1964). However, as a general caveat, the arrest must not be a mere pretext to conduct the search. See Annotation, 10 A. L. R. 2d 314, 322 (1966).

In sum, defendant argues that the “search” was not “reasonable” in constitutional terms and that the evidence must thereby be suppressed. The State contends that the stopping was valid, that there was no “arrest,” that the finding of the weapon, in plain view, was wholly adventitious, and that, in any event, the circumstances surrounding the search were “reasonable.” Even without skeptically viewing the officers’ version of the incident, the State’s paralogistic interpretation of the powers granted under the investigatory statute (N. J. S. A. 39:3-29) is manifestly overreaching.

Certainly, the statute empowers the police to stop a vehicle and to examine the driver and ownership documents; and given some difficulties arising from such an investigation, further detention is plainly warranted without making an actual arrest. However, it cannot have been intended by the Legislature’that this detention power was to extend indefinitely, particularly where, as here, the driver’s license checked with the registration, the description of the car on the registration matched the vehicle, the serial number almost completely matched the license plate except for one unclear number, and the police had verified the ownership of the car with Trenton.

Finally, since the search was so remote from the time of the initial stopping and not coincident with any “arrest” or even palpable suspicion, the plausibility of a self-protective search is minimized.

We conclude that the original stopping was valid under the'express powers of the statute, N. J. S. A. 39:3-29, but the extended time of the detention without reasonable cause created an actual, if not technical, arrest. Thus, absent probable cause, a search incident to this invalid arrest was constitutionally unreasonable and the evidence should have been suppressed.

We do not hold that all prolonged detentions are “arrests,” but rather that, limited to the particular facts of this case, an extended stopping becomes an invalid arrest or at the very least exceeds the bounds of power granted by the detention statute. Accordingly, without passing on the relatively implausible factual reconstruction of the incident propounded by the prosecution, we find the detention and the resultant search “unreasonable” under the attendant circumstances.

Reversed.

Lewis, J. A. D.

(dissenting). My reading of the record leads to a conclusion that the denial of the motion to suppress should be affirmed.

Significantly, there had been a rash of robberies in the neighborhood wherein the instant automobile was seen by Patrol Officers Coles and Crosby at 10:45 p.m. traveling about 15 in.p.h. in a 25 m.p.h. zone. The officers testified that they became suspicious when they observed that the passenger was wearing “A hat similar to the type that’s been teletyped to our headquarters that’s been involved in many robberies that have been hitting different motels in our area.” The vehicle had stopped at one point “for about a minute,” and “Both occupants looked side to side. You could see their heads moving side to side on opposite sides of the street as they proceeded down Central Avenue.” The vehicle was followed by the officers for about five blocks through the business district, and then they halted it for a routine check and requested the operator to produce his driver’s license and registration. The registration card was “rather tattered,” and somewhat blurred by “battery acid.” All the figures thereon were not discernible; this engendered suspicion that the vehicle may have been stolen.

The entire series of events that followed, which are chronologized in the majority opinion, took about half an hour — in my view, not an unreasonable length of time.

The trial judge after observing the registration card found “some very serious discrepancies.” He not only found one number confusing, but found the second number obliterated to a degree that he could not be sure of its identity and the first letter to be quite indistinct. He concluded, “good police work required further investigation.” After examining that exhibit I agree with the trial judge.

At police headquarters defendant’s ownership of “such a ear” was verified “from Trenton,” whereupon Lieutenant Mormelo requested Officers Coles and Crosby to take defendant back to the vehicle and to make certain that the serial number on the registration corresponded with the serial number listed on the post of the car door.

This additional precaution in the circumstances, as a final measure of satisfaction before closing the matter, was competent police practice. To do anything less would have rendered the officers derelict in their duty, and for this court to suppress the evidence validly seized by a policeman in the course of performing that responsibility would “unduly hamper law enforcement.” See State v. Boykins, 50 N. J. 73, 82 (1967); State v. Kabayama, 98 N. J. Super. 85, 88 (App. Div. 1967), aff'd o.b. 52 N. J. 507 (1968). The rationale of Boykins has recently been reflected in Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).

“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U. S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067, 1069 (1968); State v. Bell, 55 N. J. 239, 248 (1970); State v. Hock, 54 N. J. 526, 533-535 (1969); State v. DiRienzo, 53 N. J. 360, 385 (1969); State v. McKnight, 52 N. J. 35, 57-58 (1968). Accord, Annotation 10 A. L. R. 3d 314, 349 (1966); United States v. Thompson, 420 F. 2d 536, 540 (3 Cir. 1970); State v. Lowry, 95 N. J. Super. 307, 325 (Law Div. 1967).

Clearly, too, the assaying of the credibility of the police officers was for the trial judge. United States v. Carlson, 359 F. 2d 592, 597 (3 Cir.), cert. den. Bonomo v. United States, 385 U. S. 879, 87 S. Ct. 161, 17 L. Ed. 2d 106 (1966); State v. Johnson, 42 N. J. 146, 161 (1964). Thus, this court should not disturb the finding that when the police officers returned to the vehicle by direction of their superior, “there was no intent to make a search other than to establish proper registration,” and while leaning over to read the serial number on the forward door post of the automobile Officer Crosby observed the barrel of a sawed-off shotgun in the car.

Accordingly, I respectfully vote to affirm.


author: Labrecque, J. A. D.

text:
    FRANCES E. NARSH, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JAMES H. NARSH, DECEASED, PLAINTIFF-CROSS APPELLANT, v. ZIRBSER BROTHERS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT - APPELLANT, ZIRBSER - GREENBRIAR, INC., A CORPORATION OF NEW JERSEY; ST. STEPHEN’S LUTHERAN CHURCH OF WOODBURY, NEW JERSEY, A CORPORATION OF NEW JERSEY; AND GEORGE G. GREEN, JR. AND CAMDEN TRUST COMPANY, A CORPORATION OF NEW JERSEY, EXECUTORS AND TRUSTEES OF THE ESTATE OF GEORGE G. GREEN, DECEASED, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 8, 1970
    Decided July 30, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Neil F. Deighan, Jr. argued the cause for defendant-appellant Zirbser Brothers, Inc. (Messrs. Kisselman, Devine, Deighan & Montano, attorneys).

      Mr. Edgar E. Moss, II argued the cause for defendant-respondent St. Stephen’s Lutheran Church of Woodbury (Messrs. Moss & Powell, attorneys).

      Mr. Martin F. Caulfield argued the cause for plaintiff-cross appellant Narsh (Messrs. Ware, Caulfield, Zamal & Cunard, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiff Frances E. Narsh, as administratrix ad prosequendum of the estate of her deceased husband, obtained a judgment for $85,000 against defendants Zirbser Brothers, Inc. (Zirbser) and Zirbser-Greenbriar, Inc. (Greenbriar), following a jury trial. Zirbser appeals from denial of its motion for a new trial. Plaintiff cross-appeals from that portion of the verdict exonerating defendant St. Stephen’s Lutheran Church of Woodbury (the church) from liability, and from the refusal of the trial judge to grant a new trial by reason of the inadequacy of the verdict.

On April 28, 1967 plaintiff’s decedent, James H. Narsh, met his death when a large tree fell upon him as he was driving his car on North Evergreen Avenue, Woodbury, New Jersey. The plot on which the tree had been standing was heavily wooded with old trees, a number of them being close to the North Evergreen Avenue sidewalk. School chil: dren used the sidewalk going to and from a nearby school. A witness who resided in an apartment across the street heard a cracking noise and saw the tree fall onto decedent’s car. He had previously noticed that the tree, which wa? very close to the road, was “sort of rotten and there was no life to it at all.” When it fell it broke into “a lot of pieces.” Many of its - branches .had come off .and there had. been no leaves on the tree since he moved there about two years before. Asked to describe the trees in the general area he said, “There was a lot of them living and a lot of them wasn’t.” A number of trees in the grove were cut down after the accident.

A police officer who investigated the accident testified that when he arrived he found the tree to be all rotted and disintegrated. There were a dozen or more stumps of trees in the vicinity and he observed a trailer on the rear of the property, as well as brush which had been piled up there. Additional portions of the testimony will be referred to infra in connection with the points to which they have relevance.

The plot on which the tree had been located had been conveyed in March 1964 from the estate of George G. Green, deceased, to defendant Zirbser Brothers, Inc., a closed family corporation. Zirbser Brothers, Inc. retained title until May 5, 1966 when it conveyed to Zirbser-Greenbriar, Inc., a closed corporation formed by the Zirbser brothers, having the same stockholders, directors and officers as Zirbser Brothers, Inc. The latter retained a portion of the tract for a convalescent and nursing home, and, on April 20, 1967, sold the remainder, on which the offending tree was located, to the church. The accident occurred eight days later. All four mentioned parties were made defendants in the action for decedent’s wrongful death.

There was a severance and the case was first heard on the issue of liability. The jury was required to pass upon the liability of each of the defendants. Tt unanimously exonerated the Green estate and the church, and, by a 10 to 2 vote, found both Zirbser Brothers, Inc. and Zirbser-Greenbriar, Inc. “guilty of negligence which was a proximate cause of the accident.” The case was then tried as to damages, the same jury returning a verdict for $85,000. Following the entry of a concomitant judgment, a motion by Zirbser Brothers, Inc. for judgment n.o.v. or a new trial as to liability was denied, as were motions by plaintiff for a new trial as to liability as against tbe cburcb and a new trial as to damages as to all. Greenbriar does not challenge tbe judgment against it.

On tbe issue of liability, tbe substance of tbe argument of Zirbser is that (1) it owed no duty to decedent since it was not in possession or control of tbe premises at tbe time of the accident, and (2) as a vendor and former owner of tbe land it was not responsible for injury or death sustained, after it bad conveyed tbe land, by a person outside tbe land caused by a natural condition existing thereon at the time it convej'ed title and (3) the verdict was contrary to the weight of the evidence. Plaintiff urges that tbe verdict of no liability on the part of the church was so contrary to the weight of the evidence as to amount to a manifest denial of justice.

[lj The rule is well settled in this State that one who places or maintains in or near a. highway anything which, if neglected, will render the way unsafe for travel, is bound to exercise due care to prevent it from becoming dangerous. In Weller v. McCormick, 47 N. J. L. 397 (Sup. Ct. 1885) and Weller v. McCormick, 52 N. J. L. 470 (Sup. Ct. 1890) that doctrine was applied in the case of a pedestrian who was injured by the fall of a dead limb from a tree which had been planted in a sidewark area by a prior owner of the property. In upholding a finding of liability on the part of the owner the court held:

From the ownership and unlimited right of control thus possessed by the defendant, it must be concluded that he maintained the tree in the street, for his private purposes; and hence, as stated in our former opinion in this case (18 Vroom 397, 47 N. J. L. 397) he was bound to exercise due care to prevent its becoming dangerous. This obligation is plainly deducible from the relative rights of the public and the abutting owner in the highway. The public right is paramount, and includes the right to have the street safe for travel. That of the abutting owner is subordinate to this public right. 52 N. J. L., at 472.

In 2 Restatement, Torts 2d § 363 (2), at 258 the rule is set forth as follows: “(2) a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” 39 Am. Jur. 2d, Highways, Streets and Bridges, § 542, at 949-50 (1988) sets forth the rule as follows:

An abutting landowner, in the absence of municipal or statutory regulations placing the control of trees in or along the highway in the public authorities, is required to use due care to prevent harm from falling trees to persons lawfully using the highway, and may be held liable for injuries sustained by travelers as a result of the fall of a tree through the active intervention of the abutting owner, or because of natural decay. The view has been taken that it is the duty of the landowner to exercise reasonable care to prevent the fall of a tree into the highway even though this may entail constant and periodic inspection of the tree to determine its safe condition, but this rule has been held not to apply to owners of premises abutting rural highways.

See also Turner v. Ridley, 144 A. 2d 269 (D. C. Mun. Ct. of App. 1958); Brandywine Hundred Really Co. v. Cotillo, 55 F. 2d 231 (3 Cir. 1931), cert. den. 285 U. S. 555, 52 S. Ct. 411, 76 L. Ed. 944 (1932); Lamarche v. Les Reverends Peres Oblats, 29 Que. C. S. 138 (1905); Medeiros v. Honomu Sugar Co., 21 Hawaii 155 (1912); Plesko v. Allied Inv. Co., 12 Wis. 2d 168, 107 N. W. 2d 201 (Sup. Ct. 1961).

I

Plaintiff challenges the jury’s exoneration of the church on the ground that as the actual owner of the premises it was primarily, or, at least, equally responsible for the effects of the fall of the tree which was then growing on its property. It argues that the jury’s verdict was so contrary to the weight of the evidence as to amount to a manifest denial of justice. R. 2:10-1. As noted, the trial judge declined to disturb the verdict.

The church was not a guarantor of the safety of those using the highway. Its obligation was to exercise reasonable care to prevent the tree from falling and endangering the public. We are satisfied that its asserted liability involved an issue of fact which was properly submitted to the jury, and that the resultant verdict did not amount to a manifest denial of justice. We concur with plaintiff’s contention that the church could have been held liable even though it had not taken physical possession of the tract. The court so charged, stating that there was no special formula or procedure for possessing vacant land, that the owner thereof was deemed in law to be the possessor, and it was not necessary for him to physically enter upon the land after acquiring title in order to possess it. It further charged that possession meant the unqualified right to enter upon the land and perform any action upon it consistent with ownership. It left it to the jury to determine whether, under the circumstances, the church had exercised reasonable care during the period of its ownership. See Turner v. Ridley, supra. It was specifically directed to return an answer to the question, “Was St. Stephen’s Lutheran Church of Woodbury guilty of negligence which was a proximate cause of tire accident ?” Its answer was “Ho.”

We are satisfied that denial of the motion for a new trial did not amount to a mistaken exercise of the trial judge’s discretion. Having due regard to the factor of credibility present in the case, it does not clearly appear that the jury’s verdict amounted to a miscarriage of justice. R. 4:49-1 (a) (formerly R. R. 4:61-1 (a)); Dolson v. Anastasia, 55 N. J. 1, 7 (1969); Kulbacki v. Sobchinsky, 38 N. J. 435, 445 (1962). Here the credibility of the pastor of the church was a vital factor in resolving the issue of its asserted negligence, and the judge, who had the feel of the case, was in a better position than are we to determine whether the evidence was adequate to support the verdict. Hartpence v. Grouleff, 15 N. J. 545, 549 (1954). The church had acquired title to the vacant lot only eight days before the accident. The jury could have concluded that due to the limited time available and the difficulty, in determining the condition of the trees upon a cursory examination, the failure of the church to detect the condition of the tree in question did not amount to a negligent omission on its part. See Simmel v. N. J. Coop Co., 28 N. J. 1 (1958). Had its admittedly rotten condition been more easy to detect, or had there been more time to do so, the jury might well have reached a di fferent conclusion.

II

In passing upon Zirbser’s motion to dismiss and for judgment in its favor the court was required to consider the proofs in the light most favorable to plaintiff, and to accord her the benefit of the most favorable inferences reasonably to be drawn from them. Pirozzi v. Acme Holding Company of Paterson, 5 N. J. 178, 185 (1950). Here the testimony would have supported the conclusion that the grove of trees was from 40 to 50 years old, that the tree here involved had been dead or dying for a period of between one and tw<? years and that it was located close to the sidewalk where, if it fell, it posed a danger to pedestrians and motorists. It could also have found that it was reasonably foreseeable, from the conditions which existed in the grove, that injury might result. There was proof that one of the Zirbser brothers had had Ms attention called to dead limbs falling from trees in the area, with the idea that they “do something.” As to the subject tree, there was visual proof that its entire top was dead and rotted out; it had had no leaves on it the year before; and it had only one green branch, two to three inches thick and about 20 feet up, at the time it fell.

That the condition of the offending tree could not have differed substantially from that of other trees in the grove, is confirmed by the testimony of Howard B. Ballinger, the Building Inspector and a member of the Municipal Shade Tree Commission. He testified, when called by Zirbser, that 24 of the 25 trees, cut down on orders of the church after the accident, were found to be rotten and decayed inside. Brady, a tree surgeon, also called by Zirbser, testified that the tree in question had smashed “into a million pieces,” and that after the accident he removed about 50 trees and found all the large ones to be “in a terrible shape” because “the inside was all deteriorated.” Thus, had Zirbser been the owner at the time of the accident, a judgment against it would have been fully supportable by the proofs. Weller v. McCormick, supra; Sarnicandro v. Lake Developers, Inc., 55 N. J. Super. 475 (App. Div. 1959).

However, it is clear that Zirbser neither owned nor was in possession of the lot in question at the time of the accident. Its conveyance to Greenbriar had taken place almost a year before. Erom the testimony of Edward J. Zirbser it would appear that Zirbser was constructing the convalescent home at the time of the conveyance of Green-briar in May 1966, and construction continued thereafter until the project was completed. During the course of construction Zirbser had on the premises a construction trailer, a trailer for the storage of materials, and other materials and supplies. On April 20, 1967, when Greenbriar’s conveyance to the church took place, Zirbser’s construction trailer, as well as some other material and supplies owned by it, remained on the portion of the premises conveyed to the church. At the time of closing Zirbser agreed to remove them and other debris left on the lot. Ho time limit was fixed but they were to be removed before the formal dedication of the property.

So far as appears here, Zirbser’s right to have its equipment .and supplies remain on the lot did not have associated with it the right to control which was essential to its liability as a possessor of the property. Cf. Wolczak v. National Electric Products Corp., 66 N. J. Super. 64, 70—71 (App. Div. 1961); 2 Restatement, Torts 2d, § 328(e), at 170, § 363, at 258 (1965). Erom the time of the sale to the church, Zirbser was without right to cut down trees or otherwise police the part of the property where the subject tree was located. As of the time of the accident, Zirbser’s presence on the property purchased by the church, standing alone, would not afford an adequate basis for a present duty on its part to guard against the falling of the tree. Tt remains to be determined whether, as a prior owner or possessor, it continued liable for the effect of the dangerous condition which it had allegedly maintained and failed to correct or guard against during its ownership.

In Sarnicandro v. Lake Developers, Inc., supra, 55 N. J. Super. at 479, it was noted that, in general, once the vendee has taken possession, the vendor of real estate is not subject to liability for bodily harm caused to the vendee or others while upon the premises by any dangerous condition, whether natural or artificial, which existed at the time the vendee took possession. It was pointed out, however, that those eases in which the land is transferred in such a condition as to involve an unreasonable risk of harm to those outside the premises are an exception to the general rule. In such cases, the vendor remains liable on the theory of a public or private nuisance, at least for a reasonable time after he has parted with possession. Sarnicandro, supra, 55 N. J. Super. at 481; see also Cavanaugh v. Pappas, 91 N. J. Super. 597 (Cty. Ct. 1966); Hut v. Antonio v. Guth, 95 N. J. Super. 62 (Law. Div. 1967). The cited exception is recognized by Prosser, who writes:

* * * In nearly all of the decided cases, this [condition! has amounted to either a public or a private nuisance, but this is clearly not essential. In such a case the vendor remains subject, at least for a reasonable time, 1o any liability which he would have incurred if he had remained in possession, for injuries to persons or property outside of the land, caused by such a condition. The, reason usually given is the obviously fictitious one that by selling the land in such condition he has “authorized the continuance of the nuisance.” A more reasonable explanation would appear to be merely that the vendor's responsibility to those outside of his land is regarded as of such social importance that he is not permitted to shift it, even by an outright sale. Prosser, Torts (3d ed 1964), § 62, at 409-10.

In Harper and James the discussion as to the vendor’s liability for conditions on the land at the time of sale includes the following:

If one negligently creates a condition on land which is unreasonably dangerous to outsiders, there is no particularly good reason why his potential liability should stop either when he transfers possession of that land or when his successor in occupancy becomes liable either because of his possession or because of his fault in negligently omitting to repair the danger. In such a case, the vendor’s wrong is not the breach of a duty imposed upon him by reason of possession, as such— if he had created the same condition as a trespasser on the land he would be just as liable. The gist of the wrong is simply affirmative unreasonably dangerous conduct and his liability should have no limits except those which are generally imposed in such cases. And these limits do not include either the parting with the possession or the negligent omission of another to avert the threatened harm. If there is such omission, he who is guilty of it becomes concurrently liable with the one who created the danger. The reasoning set forth here reflects the view of the Restatement and the weight of judicial authority. Harper and James, Law of Torts, § 27.21, at 1531-32 (1956).

See also 2 Restatement, Torts 2d, § 373, at 276 (1965).

Zirbser argues that the exception in question extends only to artificial or man-made conditions on property, citing Salmon v. Delaware, Lackawanna & Western R. R. Co., 38 N. J. L. 5 (Sup. Ct. 1875); Brownsey v. General Printing Ink Corp., 118 N. J. L. 505 (Sup. Ct. 1937), and Ettl v. The Land, and Loan Co., 122 N. J. L. 401 (Sup. Ct. 1939).

We find none of the cited eases to be apposite. Salmon involved liability for fire which started in an accumulation of leaves on a railroad right-of-way; Brownsey involved ice falling from a roof, and Bttl, sand being blown from defendant’s property onto- that of plaintiff. All were decided before the promulgation of subsection (2) of § 363 of the Restatement, by which a possessor was held subject to liability for the condition of trees which presented an unreasonable risk of harm to those using the adjacent public highway. 2 Restatement, Torts 2d, 258.

We see no reason why an owner who would be liable to a member of the public under the rule now firmly imbedded in subsection (2) above, should be absolved from liability by the simple act of the sale of his property. As we noted in Sarnicandro, supra, the boundaries of tort liability for dangerous conditions on the land have gradually been extended by our courts in recent years. Justice Jacobs pointed in Schipper v. Levitt & Sons, Inc., 44 N. J. 70 (1965) that:

The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping iis common law principles abreast of the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected as they were step by step in Henningsen [Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358,] and Santor [Santor v. A. & M. Karagheusian, Inc., 43 N. J. 52]. We consider that there are no meaningful distinctions between Levitt’s mass production and sale of homes and the mass production and sale of automobiles and that the pertinent overriding policy considerations are the same. (44 N. J. at 90)

We find no support in reason and logic for any distinction between the liability of a vendor of land in an urban area who erects a tower on his land which later fails into the highway and injures a pedestrian, and one who maintains a rotten tree on his land which later falls with the same-result. The rationale which underlies his continued liability for a structure oil his land would apply equally to a tree which is so close to a highway as to endanger traffic thereon should it fall. In this day and age, with its attendant increase in population, greater use of automobiles and more intense use of land, the presence of a rotten tree along a busy highway poses dangers greatly in excess of those with which the courts were confronted in the cases on which appellant relies. The obligation of reasonable inspection which may be involved if a vendor is to be held liable for dangerous conditions existing on his property at the time of its conveyance, is small when compared with the danger posed by a rotten tree poised over a busy highway. The fact that the vendor may have lost the right to go on the property and make repairs is beside the point — the rule is aimed at inducing him to make inspections and guard against dangers before conveyance. Pirozzi v. Acme Holding Company of Paterson, supra, 5 N. J. at 188.

We accordingly hold that where an owner of land adjacent to a highway in an urban area, conveys his land, on which is located a tree which he knows, or should know, presents an unreasonable risk of injury to the public, he remains subject to liability for physical harm caused by such condition after his vendee has taken possession. If he has actively concealed the condition from the vendee his liability continues until the vendee discovers it and has reasonable opportunity to take effective measures against it, otherwise it continues until the vendee has had reasonable opportunity to discover the condition and to take such precautions. See 2 Restatement, Torts 2d, supra. §§ 363, 373, at 258, 276. In so holding we do not suggest that a tree planted or preserved by an owner may not constitute a nonnatural or artificial condition on land. Id. § 363, comment (b), at 258.

It was substantially on the foregoing basis that the trial judge, apparently relying upon the Restatement, Sarnicandro and Cavanaugh v. Pappas, submitted the issue of the: liability of each of the prior owners to the jury. As noted above, the jury could have found that the church had not owned the property for a sufficient length of time to discover the danger posed by the tree and take precautions against it. Such a finding would have been consistent with its verdict against Greenbriar, the church’s vendor.

Zirbser argues that, even under the law as charged by the court, the jury’s verdict against it was so contrary to the weight of the evidence as to mandate the granting of its motion for a new trial. We agree. The jury was instructed that the vendor’s liability continued for a reasonable time only. The conclusion, implicit in the jury’s verdict, that a reasonable time had not elapsed is belied by the facts. The active management of Zirbser was in the hands of the two brothers, Edward and Paul Zirbser. In the absence of direct proof that either had actual knowledge of the condition of the tree, Zirbser’s liability depended upon its being chargeable, through them, with knowledge that at the time of the conveyance, the tree posed an unreasonable risk of injury to persons on the adjacent highway. In such ease its liability would have continued for a reasonable time, i. &., until its vendee had a reasonable opportunity to discover the condition and take effective precautions against it. Implicit in the jury’s verdict against Greenbriar was a finding that its officers (who were also the two brothers) knew or should have known of the condition during the 11 months of its ownership of the property. Once they knew of it, and a reasonable time to guard against it had passed, Zirbser’s liability would have come to an end. It follows that Zirbser’s motion for a new trial should have been granted.

Ill

By her cross-appeal plaintiff challenges the trial judge’s denial of her motion for a new trial as to damages, contending that, on the undisputed testimony, the amount awarded by the jury is so inadequate as to amount to a manifest denial of justice. R. 2:10—1. Greenbriar has filed no brief in opposition. Zirbser argues that the verdict, although on the low side, is not so inadequate as to mandate a new trial as to damages. It reasons that the jury could have found that decedent was contributing from four to five thousand dollars to the support of his family and that $5,000 annually, capitalized at 5% for the period of his work (as distinguished from his life) expectancy, would sustain a verdict of $85,000.

"We are satisfied that the amount of the verdict clearly and unequivocally evidenced a miscarriage of justice which mandated that the motion for a new trial be granted. Dolson v. Anastasia, supra, 55 N. J., at 7. Decedent was a 22-year-old chemical engineer, had graduated from Clarkson College of Technology eight months before, and was employed by Texaco at its Westville refinery at an annual salary of $9,300. He left a 24-year-old wife and a son seven months old. All were in good health.

Considered in the light most favorable to defendants, the amount awarded indicates that the jury found that decedent’s total contributions to his wife and child out of his $9,300 salary would not have exceeded $5,000 annually for the 43 year period of his work expectancy ■— and would have ceased for the remaining four years of his 47 year life expectancy. Of necessity, this finding would be sustainable only on the assumption that his salary remained at $9,300 during that period. It is inconceivable under the proofs that the annual salary of a chemical engineer, employed by a large corporation such as Texaco, would never exceed his first year’s salary.

We find nothing in the record to sustain the suggestion that the verdict was a compromise. On the contrary, the finding as to liability was well supported and the separate trial as to damages would indicate the contrary.

The judgment in favor of plaintiff and against defendant Zirbser Brothers, Inc. is accordingly reversed and the ease remanded for a new trial as to all issues, including damages, subject to such motions for judgment in its favor as may be made by that defendant at the close of the evidence. The judgment in favor of plaintiff and against defendant Zirbser-Greenbriar, Inc. is set aside as to damages only, and the case remanded for a new trial as to that issue. The judgment in favor of defendant St. Stephen’s Lutheran Church of Woodbury and against plaintiff is affirmed.

      Cross-appellant’s brief was filed December 24, 1969. By an order dated March 11, 1970 Zirbser-Greenbriar, Inc. was directed to have its brief filed by March 25, 1970. It failed to file any brief thereafter.


author: Collester, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RUGGERIO BOIARDO, ANGELO SICA, ANDREW GERARDO, LOUIS DI BENEDETTO, CESAR CERATO, JOSEPH CIPRIANO, TOBY BOYD, JULIA ORSI, BENJAMIN THOMAS, NINO MACCIOLI, CARMINE LIQUORI, NUNZIO SICA, JOHN MALANGA, THOMAS SPERDUTO, MICHAEL DEL GUERCIO, MICHAEL RUSSOMANO, GERALDINO CUSTODI, MICHAEL MAIRONINO, AND JOSEPH SARRECCHIA, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 11, 1970
    Decided July 30, 1970.

      Before Judges Conford, Collester and Kolovsky.

      Mr. Patrick M. Wall (of the New York Bar) argued the cause for appellant Ruggerio Boiardo (Messrs. Michael Querques and Harvey Weissbard on the brief; Messrs. Querques, Isles & Weissbard, and Wadden & Dyson, attorneys).

      Mr. Samuel D. Bozza argued the cause for appellants Andrew Gerardo, Toby Boyd, Louis Di Benedetto, Joseph Cipriano, Joseph Sarrecchia and Angelo Sica.

      Mr. Anthony Ditri argued the cause for appellants Thomas Sperduto, John Malanga, Julia Orsi, Michael Maironino, Carmine Liquori, Michael Del Guercio, Michael Russomano, Geraldino Custodi, Nina Maecioli and Nunzio Sica.

      Mr. Michael Salandra argued the cause for appellant Cesar Cerato.

      Mr. Myron P. Maurer argued the cause for appellant Benjamin Thomas.

      Mr. Robert L. Podvey, Assistant Prosecutor, argued the cause for respondent (Messrs. Richard M. Altman, David S. Baime, Seymour Wishman, Assistant Prosecutors, on the brief; Mr. Joseph P. Lordi, County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal by defendants from their convictions, following a jury trial, of violating the lottery laws of this State and for conspiracy. All 19 defendants were, convicted under an indictment charging them with conspiracy to operate a lottery and violate the laws pertaining to the business of lottery between August 5, 1966 and February 3, 1967 in Newark, Bloomfield, Belleville, East Orange and North Arlington, contrary to the provisions of N. J. S. A. 2A:98-1. In addition thereto, 12 of the 19 were convicted on one or more indictments charging them with violations of either N. J. S. A. 2A:112-3 (keeping a place to which persons might resort for gambling in any form) or N. J. S. A. 2A:121-3 (possession of lottery paraphernalia), or both. All of the indictments were consolidated for the purpose of trial.

The evidence presented by the State clearly established that during the period referred to in the conspiracy indictment defendants were engaged in a massive lottery business. The operation terminated on February 2 and 3, 1967 when special agents of the Intelligence! Division of the Internal Eevenue Service conducted a series of raids at places used as lottery “offices” or meeting places of the conspirators.

At the trial federal agents testified to the activities of defendants during the many weeks they were, under surveillance. The testimony revealed that some of the defendants would pick up paper bags (allegedly containing lottery slips and money received from bettors) daily, at various locations or “drops,” and take them to one of several lottery offices used in the operation. The bags often were transferred from one car to another, and the cars would be driven over eircuitons routes to avoid detection before the betting records and money were delivered to the lottery office.

The agents also testified of their surveillance of some of the defendants in the vicinity of the Ben Thomas Luncheonette and the Altruist Club, both located in Newark, which served as bases of operation and meeting places for the conspirators. The State presented testimony of the details of the raids conducted by the federal officers and introduced in evidence the lottery paraphernalia seized, including lottery slips, numerous adding machines, pads, envelopes, coin wrappers, “cut cards,” and cash.

Federal agent Dominic Germano served as an undercover agent during the six-month period before the raids and arrests ended the lottery operation. Pretending to be a waiter employed at a Catskill Mountain resort, he became an habitué of the Ben Thomas Luncheonette, a favorite meeting place for several of the conspirators, wmch was operated by the defendant Thomas. He testified that he visited the luncheonette on 68 days, often placed bets with defendant Cipriano, and gradually worked his way into the confidence of both Cipriano and Thomas. During his visits he overheard conversations between several of the defendants that referred to the lottery operation. On 42 days he saw defendant Ruggerio Boiardo meet with defendants Andrew Gerardo, Toby Boyd, Angelo Sica, Louis DiBenedetto and others unknown to him, singly -or in groups, inside the luncheonette or in the immediate vicinity thereof. On various occasions he witnessed wrapped packages, inferentially containing money, being passed directly to Boiardo or being placed in Boiardo’s c ar by one of the defendants. Agent Germano often drove Cipriano to a service station in Newark which Cipriano used as a base of operation for his lottery book. He said that after he became well known to Thomas and Cipriano they disclosed details of the organized lottery business which was being conducted.

Thomas told Germano that “Boiardo was the boss of the eastern seaboard and that nobody makes a move without his approval,” and that Gerardo, DiBenedetto, Angelo Sica and a man named Farina were his lieutenants. Cipriano was more talkative. He too said Boiardo was the “chief” or “boss,” and was “the biggest man in the rackets in New Jersey and controls all New Jersey [and] part of New York.” He described the organization as being made np of “soldiers, lieutenants and captains” headed by Boiardo; that it had over 400 runners plus pickup men and controllers. He said the “chain of command” was Boiardo, Farina, Gerardo and Boyd, in that order; that Gerardo controlled all the lottery offices and prepared the envelopes for money to be paid out for “hits” (successful plays) ; that Boyd ran one of the lottery offices; and that DiBenedetto was active in the organization. Cipriano further told Germano that Angelo Sica operated his own book and had over 20 men working for him, was more or less independent but needed Boiardo’s permission to operate, and probably paid for the privilege. He also said the “chief” had the power to “get all books together on odds and cut numbers” and insisted that all “hits” be paid off promptly.

None of the defendants testified at the trial or called witnesses in their defense. All defendants except Nunzio Sica and Cesar Oerato concede on this appeal that the evidence presented by the State was sufficient, if believed, to establish the fact that during the period covered by the indictment a conspiracy to operate a lottery and to violate N. J. S. A. 2A:121—3 and N. J. S. A. 2A:112-3 existed. Moreover, all of the defendants with the exception of Nunzio Sica, Joseph Sarrecchia and Benjamin Thomas, who were convicted of one or more of the indictments charging them with violations of the substantive crimes, viz., N. J. S. A. 2A:112-3 and N. J. S. A. 2A:121-3, concede on this appeal that there was sufficient evidence as a result of the searches and seizures which followed the raids and arrests on February 2, 1967 to establish their guilt of the crimes charged.

The Appeal oe Rhggerio Boiardo

Although Boiardo concedes the State’s proofs established that a conspiracy existed he asserts the evidence did not show that be was a part of it. H'e raises seven points in his brief as grounds for a reversal of his conviction.

Point I.

Boiardo first contends that the trial court erred in permitting Germano to testify as to statements made to him by Thomas and Cipriano concerning Boiardo’s connection with the conspiracy. The statements were admitted by the court under the traditional hearsay exception for statements made in furtherance of the conspiracy. Evidence Rule 63 (9) (b). The rule provides:

A statement which would be admissible if made by the declarant at the hearing is admissible against a party if * * * (b) at the time the statement was made the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.

Boiardo asserts that the admission of such testimony constituted reversible error because (A) it violated his Sixth Amendment right to be confronted with witnesses against him, (B) there was no independent proof that he was a member of the conspiracy, and (C) the statements were not made in furtherance of the conspiracy.

A.

Defendant argues that his constitutional right of confrontation was violated because Thomas and Cipriano elected not to take the stand and testify in their own defense and he therefore was unable to cross-examine them as to the truth of such statements. He relies on Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and Evans v. Dutton, 400 F. 2d 826 (5 Cir. 1968), probable jurisdiction noted, 393 U. S. 1079, 89 8. Ct. 862, 21 L. Ed. 2d 770 (1969), appeal pending 397 U. S. 1060, 90 S. Ct. 1494, 25 L. Ed. 682 (1970). Bruton does not support Boiardo’s position. The court there stated that no recognized exception to the hearsay rule was involved in that case and said, “We intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.” 391 U. S. 128, 88 S. Ct. 1623, n. 3. Evans v. Dutton is inapposite on its facts because it involved the admission of a hearsay declaration of a co-conspirator made more than a year after the crime was committed. 400 F. 2d at 831.

Boiardo would have us equate the right of confrontation with the opportunity for cross-examination. To adopt such a rigid formula would altogether eliminate the use of much hearsay evidence permitted in criminal trials at a time when the judicial trend has been toward a salutary liberalization of hearsay exceptions.

Hearsay exceptions that dispense altogether with the opportunity for cross-examination have long been accepted and utilized in criminal trials without unduly compromising the accused’s ability to present a defense. See Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892) and State v. O’Leary, 25 N. J. 104, 113 (1957) (dying declarations); State v. Reddick, 53 N. J. 66, 68 (1968) (business records). Moreover, the particular hearsay exception challenged here has been considered by the United States Supreme Court and our State courts without having been found constitutionally infirm. Lutwak v. United States, 344 U. S. 604, 617-619, 73 S. Ct. 481, 97 L. Ed. 593 (1953); State v. Carbone, 10 N. J. 329, 340 (1952); State v. Yedwab, 43 N. J. Super. 367 (App. Div. 1957), certif. den. 23 N. J. 550 (1957); State v. Cavanna, 70 N. J. Super. 176 (App. Div. 1961), certif. den. 36 N. J. 298 (1962). We cannot be unmindful of this history of judicial approval. Cf. California v. Green, 399 U. S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489, decided June 23, 1970.

There being no authoritative decision requiring us to find that the Confrontation Clause invalidates our Evidence Rule 63 (9j (b), we decline to so hold. We conclude that the introduction in evidence of hearsay statements made by the co-defendants in furtherance of a conspiracy in which Boiardo was a participant did not violate his Sixth Amendment right to be confronted by witnesses against him.

B.

Boiardo’s contention that there was no evidence, independent of the co-conspirators’ statements to Germano, which showed that he participated in tne conspiracy, is totally without merit. The evidence clearly indicated that the Ben Thomas Luncheonette was a base of operation for the conspirators. Lottery bets were taken there daily by some of the defendants between 9 and 11 a.m. Boiardo was a regular visitor during those hours where he met and spoke with Boyd, DiBenedetto, Gerardo, Angelo Sica, Cerato, and others. He was often referred to by the conspirators as the “boss.” Boyd, undisputably a key figure in the conspiracy, often drove to Boiardo’s home in Livingston between 8 and 8:30 a.m. On one occasion Gennano heard Boiardo tell Boyd to pick him up at his home at 8a.m. the following morning. On another occasion Boyd told Boiardo, “I finish my run at 5:30.” He also heard Boiardo direct Cipriano to make a telephone call for him, and Gerardo inform Boiardo, “They’re going to give you the raid treatment * * * the heat is on.”

On a number of occasions Germano observed conspirators hand Boiardo slips of papers although Germano was unable to see what they contained. On approximately 20 separate days conspirators placed bags, boxes, and packages in Boiardo’s automobile. While Germano and other agents who had the luncheonette under surveillance were unable to determine the contents thereof they were of the type generally found in a lottery operation. When Boiardo was arrested on Eebruary 3, 1967 while driving away from the luncheonette a search of his person produced a paper bag from one of his pockets which contained six packets of money, wrapped separately, totaling $2,036. The paper bag was similar in size and shape to one which had been placed in his car earlier that day by one of the conspirators. In another of Boiardo’s pockets the agents found a roll of bills wrapped in a rubber band containing $418.

The existence of a conspiracy and a defendant’s participation in it must be shown by “proof aliunde” before statements made by co-conspirators out of his presence are admissible against him. Glasser v. United States, 315 U. S. 60, 74-75, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Plata, 361 F. 2d 958, 961 (1 Cir. 1966), cert. denied, 385 U. S. 841, 87 S. Ct. 94, 17 L. Ed. 2d 74 (1966). We are satisfied that the evidence adduced by the State in this case, excluding the damaging declarations of Thomas and Cipriano, was sufficient to prove that Boiardo was not only a participant in but the leader of the conspiracy.

C.

Boiardo’s argument that the statements made by Cipriano and Thomas to Germano were inadmissible because they were not made in furtherance of the conspiracy is also without merit. The basis of his argument is that Germano was a stranger to the conspiracy and not considered by either Cipriano or Thomas as one who might be of help to it, that neither conspirator could have thought that his declarations to Germano advanced the goals of the conspiracy, and that at best their statements were merely gossip. We do not agree.

The life blood of a lottery operation is the regular small bettor, and Germano became such a bettor. We think it was inferable by a jury that the statements were made to Germano to instill in him confidence in the lottery operation and its businesslike efficiency so that he would continue to place his bets with the organization. He was told that there was a “chain of command,” that the organization “pays oil hits right away, and this is what the chief wants and demands,” that “the chief had the power to get all the books together on odds and cut numbers,” that independents “can’t operate without the chief’s approval,” and that Boiardo “controls all of New Jersey, part of New York.”

The trial court did not err in its conclusion that there was a fact issue as to whether statements by Cipriano and Thomas were made in furtherance of the conspiracy.

Point II

Boiardo contends that the admission of the hearsay statements discussed in Point I, above, deprived him of his right to a fair trial because they indicated he was a man of bad character who was engaged in other criminal activities. He alleges that they did more than portray him as the prime mover of the conspiracy because they depicted him as the “boss of the eastern seaboard,” the “big boy” in the “organization,” one who had numerous “exploits in the rackets,” the biggest man in the rackets in this State controlling not only all of New Jersey but parts of New York as well, and that he was a man “whose word could get a guy knocked off.” He argues that such references to his character were irrelevant and so grossly prejudicial as to compel a reversal.

Evidence of other offenses, wholly independent of the one charged, is generally inadmissible. However, here the statements were evidence of Boiardo’s position in the conspiracy for which he was being tried and indicated the power that he wielded therein. It was permissible for the State to show that Boiardo was the leader of the conspiracy, that he controlled the “rackets,” including lottery, and that the conspiracy involved an organization made up of “soldiers, lieutenants and captains” headed by this defendant. Such was the very structure of the conspiracy.

While it may be arguable that some of the references to this defendant were unduly damaging to him as against their weight in evidencing the conspiracy, we do not consider them sufficiently prejudicial to warrant a reversal because the record fairly shrieks of defendant’s guilt. A defendant is entitled to a fair trial but not a perfect one. At most the admission of such statements was harmless error. See Lutwak v. United States, supra, 344 U. S. at 619, 73 S. Ct. 481.

Point III

Boiardo argues that his motion for a judgment of acquittal should have been granted by the trial court. He concedes that this argument can prevail only if we agree with his contention, urged in Point I, above, that there was no independent evidence of his participation in the conspiracy other than the challenged statements of Thomas and Cipriano. Since we have concluded that there was sufficient independent proof of Boiardo’s participation in the conspiracy, it follows that the motion for a judgment of acquittal was properly denied.

Point IV

Under this point Boiardo asserts that the trial court erred in denying his motion for a severance since the joint trial with the other defendants made it impossible for him to call co-defendants Thomas and Cipriano as witnesses. He argues that his motion should have been granted because (1) the statements of Thomas and Cipriano testified to by Germano were inadmissible and a severance was essential to avoid his being prejudiced thereby, and (2) the rights of these co-defendants to remain silent and not testify prevented him from cross-examining them as to the truth of their statements. As to the premise of (1) we have held to the contrary above.

The issue here raised was considered and decided adversely to Boiardo’s contention in State v. Manney, 26 N. J. 362 (1968), where the court said:

[T]kere is a division of authority elsewhere on the question whether a severance should be ordered if one defendant plans to call another as his witness. * * * Although a defendant is a competent witness, yet if called by a co-defendant at the latter’s separate trial, he could decline to risk incrimination. It is difficult to conceive of a situation in which an accused would be willing to testify at such separate trial but not at a joint one. * * * We hesitate to say that in no situation will a separate trial be ordered, but surely the case would be a rare one. At any rate, there is nothing before us to suggest that either defendant takes the unlikely position that he will testify only upon a separate trial of the other, (at p. 369)

Tho cases cited by this defendant are not to the contrary. They contemplate a severance where evidence against one defendant implicates, but is not admissible against, a co-defendant. Such is not the situation here. Moreover, there is no indication in the record that Thomas and Cipriano would be willing to testify at a separate trial of Boiardo without declining to risk self-incrimination. We find no mistaken exercise of discretion in the trial court’s denial of the motion for a severance.

Point Y

Defendant claims his right to be tried by an impartial jury was violated when the trial judge permitted two jurors upon whom bribe attempts had been made to remain on the jury. During the course of this six-week trial three of the 16 jurors impaneled to hear lire case were approached by persons in attempts to influence their verdict. In each instance the juror immediately reported the incident to the judge who questioned each juror in camera and instructed him not to mention the matter to other jurors. In each case a hearing was conducted in open court, out of the presence of the other members of the jury, during which the juror related what had happened. In response to questions propounded by the judge each juror said that he could still sit on the jury and render a fair decision based on the law and evidence in the case. Defense counsel moved for a mistrial which was denied. After the charge to the jury and before 12 jurors were chosen to decide the case defense counsel moved to exclude the three jurors who had been approached. The motion was denied, and two of the three jurors were selected to serve on the 12-member jury which thereafter deliberated and rendered the verdict.

Defendant contends that the trial judge failed to make a sufficient inquiry as to the impartiality of the three jurors and erred in refusing to exclude the jurors from the final jury of 12.

We are satisfied that the procedure followed by the trial judge was proper and that the defendants’ right to a fair and impartial trial was fully protected. The jurors’ responses to the court’s questioning indicated affirmatively that the irregularity would not influence the verdict. See State v. Sachs, 69 N. J. Super. 566, 588 (App. Div. 1961). We conclude that the court’s refusal to grant a mistrial or to remove the three jurors in question from the panel was not an erroneous exercise of discretion.

Point VI

Boiardo argues that the court below erred in refusing to give a requested charge regarding evidence essential to proof of a conspiracy. The requested charge provided:

In determining whether or not a defendant was a member of a conspiracy, the jury are not to consider what others may have said or done. That is to say, the membership of a defendant in a conspiracy must be established by evidence as to his own acts and conduct, what he himself said or did.

The trial court did charge, in effect, that the declarations of any defendant could be considered against the others provided the jury found the conspiracy existed and they were all parties to it. This, we think, sufficiently implied that the jury should find the proviso to be a fact apart from the declarations before considering such declarations as evidential (assuming that as a matter of law the jury is required to make such a finding). It could therefore be fairly deemed that the intent of the requested charge was included in the court’s charge to the jury.

In any event, as séen above, under Point I-B, it is necessary for the State to submit proof independent of declarations of alleged co-conspirators of the existence of a conspiracy inclusive of defendant before such declarations are admissible against him. No New Jersey case has heretofore expressly considered the question whether, after the ruling of the trial judge admitting such declarations, the jury is required to reconsider the competency of the declarations, as, in effect, the charge sought by defendant here would require. The question is not free from difficulty. Consider Evidence Rule 8(1) and (2), dealing with the functions of judge and jury where admissibilty of evidence is dependent on a condition of fact, in the light of Evidence Rule 63(9) which deals with admissibility of declarations of co-conspirators. See also the extended dictum on the point by Judge Learned Hand in United States v. Dennis, 183 F. 2d 201, 230-231 (2 Cir. 1950).

We conclude that the sound and practical rule to be followed in relation to this particular problem is that adopted by the United States Second Circuit Court of Appeals. United States v. Stadter, 336 F. 2d 326, 329-330 (1964); United States v. Stromberg, 268 F. 2d 256, 265-266 (1959); and see United States v. Corallo, 413 F. 2d 1306, 1324—1327 (2 Cir. 1969).

The necessary preliminary findings, clearly justified by the proofs, having implicitly been made by the trial judge here, the denial of the charge sought by defendant was not error.

Point VII

Finally, this defendant contends that the indictment should have been dismissed since his privilege against self-incrimination was violated when the federal agents were permitted to testify as to the results of their investigation of his alleged violations of the federal wagering tax laws or, in the alternative, that the evidence so obtained should have been suppressed.

The point is clearly without merit. Our Supreme Court specifically considered the issues raised and decided them adversely to the defendant’s position in State v. Gerardo, et al., 53 N. J. 261 (1969).

The Appeals op Andrew Geeaedo, Toby Boyd, Louis Di Benedetto, Joseph Cipbiano, J OSEPH SaBREOCHIA AND ANGELO SlCA

Point I

The defendants repeat the same grounds urged for reversal in Points I-VII of the brief submitted by Euggerio Boiardo which we have fully discussed above.

Point II

Defendants Gerardo, DiBenedetto, Sarrecchia and Angelo Sica allege that the court erred in denying their motions for a judgment of acquittal at the close of the case. They argue that if Germano’s testimony about the statements made by Cipriano and Thomas is inadmissible the remaining evidence against them was insufficient to withstand their motions for acquittal. We have concluded that such testimony was admissible. (See Point I, Boiardo’s appeal.) Moreover, from our view of the record there was sufficient evidence independent of such testimony to support the trial court’s ruling.

Point III

The defendants urge that we find reversible error in a lengthy hypothetical question propounded by the State to its gambling expert, Agent Siddall. The question is attacked as improper because it permitted the State to summarize its entire case in the presence of the jury and also because the answers invaded the jury’s province as the ultimate finder of facts.

We see no merit in either contention. The hypothetical question was long of necessity. “An expert cannot give an opinion without considering all the data, facts and circumstances pertinent to the inquiry being made.” Rempfer v. Deerfield Packing Corp., 4 N. J. 135, 144-145 (1950). Had it been less complete defendants would undoubtedly have objected to it as not embracing all the facts in evidence. See Evidence Buie 56(2).

Uor is expert opinion objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact. Evidence Rule 56(3). Siddall was not asked his opinion of defendants’ guilt, cf. State v. Landeros, 20 N. J. 69, 74 (1955), but was merely asked to characterize various activities based upon facts in evidence and his expertise in lottery operations. Those questions were properly the subject of expert opinion. See State v. Smith, 21 N. J. 326, 334 (1956); State v. Rucker, 46 N. J. Super. 162, 166 (App. Div. 1957); State v. Sachs, 69 N. J. Super. 566 (App. Div. 1961).

Defendants’ reliance on State v. Sachs, supra, and State v. Vigliano, 50 N. J. 51 (1967) is misplaced. In Sachs the objectionable opinion concerned the defendants’ phjrsical control of football pool slips, a conclusion not dependent on peculiar knowledge or experience. In Vigliano the expert admitted that his opinion was “not probable,” and thus merely speculative. Here Siddall’s testimony cannot be dismissed as mere conjecture.

Point IY

Defendants claim that the trial court erred in commenting favorably on the credibility of Germano as a witness both during summations and in its charge to the jury and thus denied defendants a fair trial.

In his summation to the jury Boiardo’s attorney sought to attack Germano as being untrustworthy because he obtained the information to which he testified while serving as an undercover agent. When the prosecutor objected the court said Germano "was doing Ms job as he was ordered to do and that was part of his job to detect violations of the law.” Defendants moved for a mistrial which was denied. In its charge to the jury the court said:

Now, there was some comment about the propriety of the actions taken by the Federal officers, particularly about the propriety of the ac-(ion taken by the agent, Germano. I might indicate to you that the actions that he took were lawful actions and under the direction of the authority of his government to become friendly and to learn what he could about this operation. So that you do not have for your consideration the propriety of his action but you do have for your consideration his ability to observe, his ability to recollect, the accuracy with which he observed and recollected, his ability and accuracy of testifying and the truth or accuracy of that with which he testified. That is your domain, but what he was doing was a lawful action and any comment of counsel to the contrary is not to be considered by you as motivating your decision. You only will consider, as I say. the truth or falsity of what he said, not the propriety of the action he took because he was performing his job.

We find no prejudicial error in either the comments of the court during counsel’s summation or the charge to the jury. The court clearly left to the jury the issue of Germano’s credibility as a witness.

Point V

Defendants allege the court committed reversible error in its supplemental charge to the jury after the jury had been deliberating for over 18 hours during a period of three days. They argue that the charge was coercive and prejudicial, particularly in mentioning the obligation of a juror to give consideration to the views of his fellows and that a dissenting juror should reconsider whether Ms position is a reasonable one.

The charge given by the court was in essence the same as that approved in State v. Williams, 39 N. J. 471 (1963), cert. den. 374 U. S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), which was based on the charge upheld by the United States Supreme Court in Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). It clearly instructed the jurors that they should not compromise, divide, or yield their personal convictions for the purpose of arriving at an agreement. See State v. Williams, supra, 39 N. J. at 484.

There was no error in the supplemental charge. Moreover, the fact that the jury continued its deliberations for two more days after the charge was given bespeaks the absence of any coercion or prejudice.

Point VI

Lastly, these defendants contend they were denied the effective assistance of counsel because of the trial court’s comment to their attorneys, made out of the presence of the jury, that the attorneys were suspect in the jury tampering incidents which had occurred and would be subjected to an investigation at the conclusion of the trial. They argue that the statements were of such a serious nature as would unnerve counsel and prevent them from rendering effective assistance to the defendants.

We deem the argument to be frivolous. While the court’s remarks may be criticized because of the absence of tangible evidence in the record of involvement by defense counsel, we are satisfied that defendants were not prejudiced thereby. All defense counsel were experienced in the trial of criminal eases. The record belies the argument that they were unnerved and thereafter rendered ineffective representation. Indeed, their continued combativeness throughout the trial, following the incident, completely negates the argument.

THE APPEALS OE THOMAS SPERDUTO, JOHN MALANGA, JULIA ORSI, MICHAEL MAIRONINO, CARMINE LIQUORI, MICHAEL DEL GUERCIO, MICHAEL RUSSOMANO, GERALDINO CUSTODI, NINO MACCIOLI AND NUNZIO SICA

These defendants raise the same grounds urged for reversal in Points I, II, V and VI in the Boiardo appeal and Points III-VI referred to above in the appeal of Andrew Gerardo, el <ü., which we have already discussed.

In addition thereto Nunzio Sica contends the trial court erred in dismissing his motion for a judgment of acquittal of the three indictments charging him with conspiracy, keeping a place to which persons might resort for gambling, and possession of lottery paraphernalia. Although he concedes that the jury could find that the premises in question were being used as an office in which daily lottery bets were being tabulated, he argues that there was insufficient evidence to connect him to the lottery operation. We disagree.

The testimony by federal agents revealed that on numerous occasions several of the defendants were seen entering and leaving a one-family house at 15 Pershing Place in North Arlington carrying paper bags. A raid on the premises was conducted on Eehruary 3, 1969, and numerous items described as lottery paraphernalia were seized. Agent Anthracite testified that when he arrived on the premises he met Mrs. Pearl Gladys Sica, “who described herself to me as the owner of the residence and the wife of Nunzio Sica.” See Evidence Rule 63(1) (b).

We think that from the declarations of marital status and ownership made by Mrs. Sica the jury could reasonably infer that Nunzio Sica had possession and control of the premises and of the contraband seized therein, State v. Puryear, 94 N. J. Super. 125, 132 (App. Div. 1967), rov’d, on other grounds, 52 N. J. 81 (1968), and that he must have known and approved of the lottery activities regularly conducted there. Consequently there was no error in the court’s refusal to grant Nunzio Sica’s motions for a judgment of acquittal.

We also see no merit to Nunzio Sica’s contention that the prosecutor in summation unfairly attempted to link him to Angelo Sica and Louis DiBenedetto through a reference to their common defense counsel. It is apparent that the prosecutor was simply identifying the defendants fox the benefit of the jury. The remark was not prejudicial.

The Appeal oe Cesar Cerato

Point I

This defendant also relies on Points I, IV, V, VI and VII urged for a reversal in Boiardo’s appeal which we have already discussed in this opinion.

Point II

He also contends that his motion for a judgment of acquittal should have been granted because there was insufficient evidence that he was a party to the conspiracy and, further, that the verdict of the jury was contrary to the weight of the evidence.

The undisputed evidence shows that on ten separate occasions between November 14, 1966 and January 30, 1967 Cerato was present in the Ben Thomas Luncheonette in the company of other conspirators. On one occasion he was observed giving Toby Boyd a sum of money. Germano himself placed a lottery bet with Cerato, and saw Thomas place bets with him.

Defendant attempts to exculpate himself by claiming the evidence showed that he was not involved in the Newark conspiracy but was a member of a "Jersey City outfit,” a "renegade” who did not work for the Newark organization. However, as stated above, it is undisputed that he took lottery bets at the luncheonette, that he needed Boiardo’s permission to operate, and that Boiardo "gets a percentage of this action.”

We are satisfied that the evidence and the logical inferences to be drawn therefrom required a denial of his motion for acquittal and that there was sufficient proof for the jury to find that Cerato conspired with the other defendants to violate the lottery laws of this State.

The Appeal op Benjamin Thomas

Thomas contends there was erroneous exercise of discretion when the trial court refused to grant a severance following his hospitalization at the outset of the trial. We agree and reverse his conviction.

During the jury selection process Thomas collapsed and was taken by ambulance to a Newark hospital. The trial court was informed of his illness and hospitalization but refused to grant a severance or continuance. Thereafter Thomas’ counsel called Dr. Frederick Cohen, who testified that Thomas was very ill from a urinary infection, that he may have had a heart attack, and that he could not safely attend the trial for at least four weeks. The State admitted that it had no evidence to counter the testimony of Dr. Cohen, and it offered the medical report and affidavit of Dr. Martin Jassie, who had examined Thomas at the State’s request. While doubting that Thomas had suffered a heart attack, Dr. Jassie concluded that “Mr. Thomas is currently too ill to stand trial, * * *” and that “postponement of his trial is necessary and it may easily require a month or more.” The trial court still refused to grant a severance, ruling that Thomas’ absence was voluntary and that his trial would continue without him. Thomas remained absent throughout the trial, appearing only on one occasion at the end of the case following a court order threatening bail forefeiture.

The granting of a continuance for health reasons is a matter ordinarily within the discretion of the trial court. State v. Kaiser, 74 N. J. Super. 257, 271 (App. Div. 1962), certif. den. 38 N. J. 310 (1962), cert. den. 376 U. S. 950, 84 S. Ct. 966, 11 L. Ed. 2d 970 (1963). Among the factors to be evaluated by the court in the exercise of its discretion are (1) medical reports, (2) personal observations of the accused, (3) the effect of a continuance upon the State’s ability to present evidence, and (4) whether or not the accused will be better able to stand trial at a later date. Id. The trial court must always be mindful of the accused’s constitutional right to be present in the court room at every stage of his trial. See Illinois v. Allen, 397 U. 8. 337, 90 S. Ct. 1057 25 L. Ed. 2d 353 (1970).

Here there was uncontroverted expert medical opinion that Thomas was too ill to stand trial. Clearly his absence could not be considered voluntary. Moreover, there was no reason to believe that he would not subsequently be available for trial; nor was there any indication that a delay in his trial would be prejudicial to the State in producing evidence. We conclude that the trial court’s refusal to grant Thomas’ motion for a severance was a mistaken exercise of its discretion.

Conclusion

Eor the reasons expressed above the convictions of all defendants, with the exception of Benjamin Thomas, are affirmed. The conviction of Thomas is reversed, and his case is remanded for a new trial.