author: Coelester, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MILTON YORMARK, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STANLEY PERWIN, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT B. J. MULVANEY, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. J. L. BRIZARD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 13, 1971
    and October 3, 1971
    Decided November 30, 1971.

      Before Judges Goldmajstit, Collestek and Mintz.

      Mr. Raymond A. Brown argued the cause for appellant Milton Yormark {Mr. Irving I. Vogelman on the brief; Messrs. Brown, Vogelman, Morris & Ashley, attorneys).

      Mr. Arthur J. Timins argued the cause for appellant Stanley Perwin {Messrs. Grinchis & Timins, attorneys).

      Mr. Richard 8. Lehrich argued the cause for appellant Robert B. J. Mulvaney {Mr. Matthew P. Boylan of counsel; {Messrs. Lowenstein, Sandler, Brochin, Kohl & Fisher, attorneys) .

      Mr. George P. Helfrich argued the cause for appellant J. L. Brizard (Messrs. Helfrich & Gallagher and Mr. George B. Sommer, attorneys).

      Mr. David 8. Baime and Mr. Alan Silber, Assistant Prosecutors, argued the cause for respondent (Mr. B. Benjamin Oohen, Assistant Prosecutor, on the brief; Mr. Joseph P. Lordi, County Prosecutor, attorney).
   The opinion of the court was delivered by

Coelester, J. A. D.

The four defendants appeal from their respective convictions, following a jury trial, of conspiracy to obtain money under false pretenses from the Maryland Casualty Company, in violation of N. J. S. A. 2A.-98-1. Yormark and Perwin also appeal from their convictions on three-count indictments charging them individually with obtaining money under false pretenses from the Maryland Casualty Company, in violation of N. J. S. A. 2A:111-1. All of the indictments were consolidated for the purpose of trial.

Following the convictions Yormark, Perwin and Mulvaney were each sentenced on the conspiracy indictment to penitentiary terms of 18 months, 12 months in custody and 6 months on probation, and fined $1,000. Brizard was sentenced to a penitentiary term of 18 months, 6 months in custody and 12 months on probation, and fined $1,000. Yormark was sentenced on the three-count indictment for obtaining money under false pretenses, as follows: on the first count to a penitentiary term of 18 months, 12 months in custody and 6 months on probation, to be served consecutive to the sentence imposed on the conspiracy indictment, and fined $1,000; on the second count to a concurrent penitentiary term of 18 months, 12 months in custody and 6 months on probation, and fined $1,000; and on the third count to a concurrent penitentiary term of 18 months, which was suspended, probation for 18 months imposed, and a $1,000 fine levied. Perwin was sentenced on the three-count indictment for obtaining money under false pretenses, as follows: on the first count to a penitentiary term of 18 months, 12 months in custody and 6 months on probation, to be served consecutive to the sentence imposed on the conspiracy indictment, and fined $1,000; and on each of the second and third counts to a concurrent penitentiary term of 18 months, 12 months in custody and 6 months on probation, and to pay a fine of $1,000. In addition to the above sentences Yormark, Mulvaney and Brizard were each ordered to pay $16,750, representing one-quarter of the costs of prosecution.

The conspiracy indictment charged that Yormark and Perwin, attorneys of this State, Mulvaney and Brizard, physicians of this State, and Yincent Morelli and Albert Albrizio conspired with Anthony Córtese, a claims supervisor of the Maryland Casualty Company, to obtain money under false pretenses from the insurance company, Córtese, although named as a co-conspirator, was not included as a defendant in the indictment. Morelli and Albrizio were severed from the indictment at the outset of the trial. Córtese and Morelli testified on behalf of the State.

• The trial extended over a period of four months. The State’s proofs revealed that in May or June 1967 Morelli, whose wife’s automobile was insured by the Maryland Casualty Company, together with Leo Jeronowitz, the owner of an automobile body repair shop, and Córtese initiated a plan to defraud the insurance companj’-. Jeronowitz was prevented from thereafter playing an active role in the conspiracy because of a serious illness which proved fatal on September 22, 1967.

The plan agreed upon was that Morelli would report a fictitious automobile accident to his wife’s insurance carrier, admitting that he had caused the accident while driving his wife’s car, with resulting property damage and personal injuries sustained by fictitious occupants of the other vehicle. Córtese would arrange for payment of the fraudulent claims submitted.

In August 1967 Morelli and Córtese decided to put their plan into operation. It was agreed that the six bogus claimants should be represented by two different attorneys, in order to make the case look more legitimate. Córtese said he would get Perwin to act as one of the attorneys; Morelli was to secure the other. Morelli concocted the following names for the claimants: Joseph Taylor as the owner and operator of the other car, and Erank Taylor, Charles Taylor, John McBride, Sr., John McBride, Jr. and Phillip Allison as the passengers.

Thereafter Córtese telephoned Perwin and arranged for him to represent the three Taylors in their claims against the company which he, Córtese, would personally supervise. Perwin agreed to secure medical bills of about $200 for each of the Taylors and to send a letter to Mrs. Morelli stating that he represented them. Perwin subsequently sent the letter and notified Córtese that Dr. Mulvaney was the "treating physician.”

Meanwhile, Morelli asked one Hy Chuven to get a lawyer to handle a "phony” accident case. That evening, or the next, Morelli received a telephone call from Yormark, who said he was a friend of Chuven’s. Morelli told Yormark he wanted him to represent three of six claimants in a bogus accident case; that the insurance carrier was the Maryland Casualty Company; that Córtese would handle the claims, and that the “accident” had not yet happened because they had not decided "where it would be.” Morelli informed Yormark that he would have to provide the necessary doctor’s bills. Yormark agreed to handle the claims, said he knew Córtese and would work it out with him, and asked Morelli to have Córtese call him. Morelli reported the conversation to Córtese, who telephoned Yormark and confirmed the arrangement. Yormark agreed to obtain medical bills for each bogus claimant in approximate amounts of $200. It was not until several weeks, later that Córtese supplied Yormark with the names and addresses of his fictitious clients and told him to send a letter of representation to Morelli. Yormark then told Córtese that Dr. Brizard would be the treating physician.

With the preliminary part of the plan completed, Morelli on August 18, 1967 reported to the insurance company that while driving his wife’s automobile on the previous day he had collided with another motor vehicle on the J Street ramp of the Manhattan Bridge in New York City. He gave the names and addresses of the fictitious occupants of the other car.

The property damage claim for the Taylor car was paid by an insurance company check issued by Córtese in the amount of $3,400 payable to “Joseph Taylor.” The check was given to Morelli, who cashed it through Albert Albrizio. The proceeds were shared by Morelli and Córtese.

After Yormark sent his letter of representation to Morelli and notified Córtese that Dr. Brizard would be the treating physician, Córtese told Morelli to arrange to have three persons go to Brizard’s office. Morelli, his brother Peter, and a third person, posing as the McBrides and Allison, went to the doctor’s office. They told Brizard they had been sent by Yormark. There was no medical examination; Brizard merely wrote down some information and said he would send reports to Yormark. Córtese subsequently received from Yormark Dr. Brizard’s medical bills for the claimants, each in the approximate amount of $200. Thereafter Córtese arranged for Morelli to have the same imposters, posing as the McBrides and Allison, examined by Dr. Jack Siega! for the insurance company. A similar arrangement was made for them, posing as the Taylors, to be examined by Dr. S. Wolfe Emmer for the company. While Morelli and his cohorts fooled Dr. Siegal completely, Dr. Emmer sent a confidential letter to Córtese reporting that he did not believe the three men he had examined. Córtese immediately destroyed the letter.

In November 1967 Córtese called Yormark and advised him of the payments that would be made to settle the McBride and Allison claims. There were no negotiations; Yormark accepted the figures. Córtese had Yormark prepare releases in blank for each claimant. The releases and Brizard’s medical bills were sent to Córtese. Córtese gave the releases and insurance company drafts, made payable to Yormark and his clients, to Morelli, who arranged to have the signatures of the claimants forged and the releases notarized. After Morelli returned the documents Córtese met Yormark at the latter’s office and gave him the checks. Yormark endorsed and deposited them in his trustee account. After deducting his fee for each case Yormark issued checks payable to his fictitious clients and gave them to Córtese. Córtese turned them over to Morelli, who had the names of the McBrides and Allison forged and deposited them in a savings and loan account opened for that purpose. The funds were later withdrawn and divided by Morelli and Córtese.

The same procedure was substantially followed in the settlement of the Taylor claims with Perwin. There were no negotiations. Córtese fixed the amount for each claim; Perwin submitted the releases drawn in blank, together with Dr. Mulvaney’s bills for the three claimants. Córtese issued company checks for each claim, payable to Perwin and the claimant, and turned them over, together with the releases, to Morelli. Morelli had the Taylor names forged thereon and the releases notarized. Córtese then took the checks to Perwin’s office and received in return checks drawn on Per-win’s office trust account payable to each of the Taylors, less Perwin’s fees. Córtese turned these checks over to Morelli, who had them forged and cashed. The proceeds were shared by Morelli and Córtese. Perwin gave a check in the amount of $300 to Dr. Mulvaney instead of the charges, totaling $685, which appeared on his bills.

Defendants denied the charges in the indictments. Yormark testified that on September 27, 1967 the two McBrides came to his office and arranged that he represent them and Phillip Allison in their personal injury claims arising out of an automobile accident which occurred on August 17. They said they were passengers in a car operated by Morelli and had been treated by Dr. Brizard. The case was settled following negotiations with Córtese on November 24, 1967, and releases for the three men were sent to McBride, Sr. at his place of business with instructions that they be signed and notarized. When the releases were returned Yormark sent them, together with Brizard’s medical bills to the insurance ■ company. Yormark said that upon receipt of the insurance company cheeks he delivered over checks, less his fees, to the McBrides and Allison at 'his office. He denied having even talked to Morelli and said that prior to negotiating the settlement he had never talked to Córtese about the case. He also denied that the McBrides and Allison were sent to him by Chuven and claimed he had” never heard of the Taylors.

Defendant Perwin claimed that he had been duped by Córtese. He testified that his first knowledge of the Taylor claims was on August 25, 1967 when Córtese telephoned that he had a case for him. Córtese gave him the names of the Taylors and said they were friends of his. As a result he wrote a letter of representation to Mrs. Morelli. He testified that Córtese told him the Taylors were being treated by Dr. Mulvaney. He admitted that he never met the Taylors and was never informed of the extent of their alleged injuries. He later received Dr. Mulvaney’s bills and negotiated a settlement of the claims with Córtese. He prepared the releases and sent them to Córtese to be executed by the Taylors, together with the medical bills. Córtese thereafter brought the company cheeks in payment of the claims to his office. The checks were deposited in a trust account and checks, made payable to the Taylors less his fees, were delivered to Córtese. He denied ever talking io Dr. Mulvaney about the claims and said he had no knowledge that Yormark represented other persons allegedly injured in the accident.

Dr. Mulvaney testified that he had no independent recollection of having treated the Taylors. He relied upon his office records, which indicated that the Taylors had first come to him for treatment on August 18, 1967 and that he had treated them thereafter. He verified the bills submitted by Perwin as his and admitted that Perwin had paid him $300, which was less than the amount of his bills. Mulvaney testified that he had not known Morelli or Dr. Brizard before the trial.

Dr. Brizard testified that he had examined and treated the McBrides and Allison but could not produce his records which, he said, had been lost or destroyed. He sent Yormark a bill for treatments rendered, but could not recall whether he had been paid. Brizard said that the only person he knew previous to the trial was Yormark.

I

Defendants claim they were unfairly prejudiced by their misjoinder in the indictment charging a single conspiracy and the trial court’s refusal to grant motions for severance made during the course of the trial. They argue that the evidence, at best, disclosed at least two separate unconnected conspiracies: (1) Córtese, Perwin and Mulvaney; (2) Morelli, Córtese, Yormark and Brizard, and probably more, and not a single overall conspiracy as charged by the State. They contend that the improper joinder subjected each to “spill-over” prejudice and transference of guilt which emanated from evidence relating to the activities of the other defendants. They argue that the evidence failed to connect Yormark with Brizard and Perwin with Mulvaney, and that there was no proof that each defendant knew the other three.

Defendants rely primarily on Kotteakos v. United States, 328 U. S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1916), where the Supreme Court reversed the convictions of several defendants on the ground that a material variance between the charge of one conspiracy in the indictment and proof of eight or more separate conspiracies at the trial was prejudicial. We conclude that Kotteakos, and other cases cited by defendants, concerning prejudice resulting from the trial of an indictment for one conspiracy where there were in fact multiple conspiracies, are factually distinguishable from the instant case and not applicable.

An agreement or combination between two or more persons to commit a crime constitutes an unlawful conspiracy if there has been an overt act in furtherance of the agreement or combination. State v. Dennis, 43 N. J. 418, 423 (1964). The gist of the offense is the criminal agreement, State v. La Fera, 35 N. J. 75, 86 (1961), which may be established by inferences drawn from the circumstances, State v. Carbone, 10 N. J. 329, 341-342 (1952). It must be shown that each defendant entered into the agreement with one or more persons, whether charged with him in the indictment or not, and whether known or unknown. It is not essential that there be direct contact between the parties, or that all enter into the conspiratorial agreement at one and the same time. It may be that they have never seen each other or heard the name of the other, and yet by law they may be parties to the same common criminal agreement. Id. at 337-338. Thus, proof of the least degree of concert of action between the parties is sufficient to establish the existence of a conspiracy. See also State v. Hutchins, 43 N. J. 85, 91-93 (1964), and cf. State v. Burgess, 97 N. J. Super. 428, 432-434 (App. Div. 1967).

Prom our review of the record we are satisfied that there was only one conspiracy — an unlawful combination to obtain money under false pretenses from the Maryland Casualty Company by concocting a fictitious automobile accident and submitting false damage claims for bogus claimants. The conspiracy was initiated by Morelli and Córtese, who brought Yormark and Perwin into the conspiracy to submit fraudulent claims to the company and who, in turn, arranged for Dr. Mulvaney and Dr. Brizard to prepare false medical reports and bills for the bogus claimants. We conclude that there was ample direct and circumstantial evidence to support the State’s charge that defendants were involved in a single overall conspiracy. The record clearly discloses that each of the four defendants played his separate role in the execution of the common criminal scheme. While each was to obtain a share of the proceeds of the fraud, separate and apart from that obtained by the others, this division of the spoils depended upon the accomplishment of the common objective.

It is also argued that defendants were prejudiced by a single trial of offenses which were in no way connected, i. e., the substantive charges against Yormark and Perwin. The consolidation of the trial of a conspiracy indictment with the substantive offense is generally proper, State v. Cromier, 46 N. J. 494, 504 (1966), and our rules permit the joinder of offenses charged against each defendant if they are of the same or similar character and also are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. R. 3 :7-6. The rules also provide for the joinder of defendants if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. B. 3:7 — 7.

The granting of a motion for severance is discretionary with the trial court. R. 3:15-2. The rule is declaratory of the long-settled practice in this State. State v. Rios, 17 N. J. 572, 584 (1955). Denial of such a motion will not result in a reversal unless it is clearly shown that the trial court’s action constituted an abuse of the court’s discretion. See State v. Sinclair, 49 N. J. 525, 550 (1967), and State v. Manney, 26 N. J. 362, 368 (1958). Here the conspiracy and the substantive offenses charged against Yormark and Perwin all arose out of the same criminal transaction. The trial court repeatedly instructed the jurors to give their separate consideration as to whether each particular defendant was guilty of the crimes charged against him, and to consider each piece of evidence only as it related to the particular defendant to whom they found it applicable. We have no cause to believe that the jury did not comply with the trial court’s instructions.

We are satisfied that there was neither a prejudicial misjoinder nor a variance between the indictment charging a single conspiracy and the proofs adduced at the trial, and that there was no error in the denial of motions for severance.

II

Defendants Perwin and Mulvaney charge that the trial court erred in denying their pretrial motions to dismiss the conspiracy indictment on the ground of double jeopardy and collateral estoppel.

Their claim is bottomed on their prior acquittals following the trial of a six-count indictment. Three counts charged these defendants with separate offenses of obtaining money by false pretenses from the Maryland Casualty Company based on nonexistent accidents (N. J. S. A. 2A:111-1), and three counts charged them with separate conspiracies to commit such crimes (N. J. S. A. 2A:98-1). More specifically, the three counts charging the substantive crimes alleged that the insurance company, based on the false representations of these defendants, paid the following bogus claims: (1) $2,050 to Joseph Vesper for injuries allegedly sustained in an accident on October 15, 1966; (2) $2,175 to Willie Lewis for injuries allegedly sustained in an accident in March 1967; and (3) $2,150 to Joseph Mozzocca for injuries allegedly sustained in an accident on April 19, 1967.

Perwin and Mulvaney allege that the essence of the conspiracies charged in the prior trial was that they conspired to defraud the insurance company over the period from September 15, 1966 to February 16, 1968, while the conspiracy charged in the present indictment allegedly occurred between August 1, 1967 and February 2, 1968 within the same time period. They argue that the State impermissibly carved an alleged single, continuous conspiracy into four separate conspiracies and that since they were acquitted of the three conspiracies charged in the prior trial the State was barred under the principles of double jeopardy and collateral estoppel from prosecuting the conspiracy charged in the present indictment.

The constitutional guarantee of double jeopardy bars the State from subjecting a defendant to the hazards of a trial and possible conviction more than once for the same alleged offense. State v. Farmer, 48 N. J. 145, 167 (1967), cert. den. 386 U. S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). The rule of collateral estoppel directs that once an issue of ultimate fact has been litigated and determined by a valid and final judgment, the issue cannot again be relitigated in a subsequent proceeding between the same parties. State v. Cormier, 46 N. J. 494, 505 (1966).

Tested by these rules we are satisfied that neither double jeopardy nor collateral estoppel is involved in this case. Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Ferrante, 111 N. J. Super. 299 (App. Div. 1970), and other cases relied upon by defendants are factually inapposite.

The agreements underlying the three conspiracies charged in the former trial were separate, distinct and different from that charged in the instant case. There was no evidence that the four agreements were tied together as stages in the formation of one larger, all-inclusive combination directed to achieving a single unlawful end result. On the contrary, each separate agreement had its own distinct illegal end — each goal was an end in itself, separate from the others. In fact, it is undenied that defendants never claimed during the prior trial that the three conspiracies charged in that indictment comprised one single conspiracy. The parties involved in the four conspiracies were different, the fictitious accidents alleged to have taken place in the prior indictment occurred prior to that charged in the instant case, and the “Taylor” conspiracy was never an ultimate fact for determination by the jury in the previous trial. There was no double jeopardy or collateral estoppel to bar the prosecution of the indictment in this ease.

Ill

Perwin, Mulvaney and Yormark allege that the court committed reversible error by permitting the State to introduce in evidence irrelevant and prejudicial collateral matters. The testimony, which was adduced on cross-examination of defendants and on rebuttal, related primarily to other transactions of defendants with Córtese and the Maryland Casualty Company, the close relationship between Per-win and Dr. Mulvaney, and a similar relationship between Yormark and Dr. Brizard. We think it appropriate to refer to some of the testimony which defendants claim was prejudicial.

Perwin was cross-examined concerning the settlement of other cases with the insurance company that had been referred to him by Córtese. He admitted he never saw the claimants in six cases and that Córtese “controlled” the claims for the company. Included were the claims of Yesper, Lewis and Mozzocca that were involved in the prior trial for conspiracy in which Perwin and Mulvaney had been acquitted. In all six cases above referred to, with the exception of the Mozzocca claim, Mulvaney was the treating physician, and while his medical bill in each case exceeded $200 the doctor accepted flat fees of $100 from Perwin.

One case involved a claim by Zeno and Prances DiBella for injuries allegedly received in an accident while passengers in an automobile operated by Steven Churlen. The treating physician was Mulvaney, who submitted bills for $250 and $150, respectively, and was paid a total of $200 by Perwin. Mulvaney testified on cross-examination that he had treated the DiBellas. The insurance company settled the claim with Perwin for $1,500 and issued checks payable jointly to Perwin and the DiBellas. Mrs. DiBella, called by the State in rebuttal, testified that neither she nor her husband were injured in the accident, had never filed a claim for damages or retained Perwin as their attorney, were never examined or treated by Mulvaney, and had received no money from the insurance company.

In another case Eose Holder, who was injured in an accident, was sent by her attorney (not Perwin) to be examined by Mulvaney. Mulvaney’s medical report and his bill for $600, which were forwarded to the insurance company, indicated Mrs. Holder had sustained a serious back injury, that he had treated her on approximately 45 occasions which included injections and physiotherapy, and had provided her with a lumbosacral belt. On rebuttal Mrs. Holder testified she saw Mulvaney on only one occasion when she was examined by the doctor. She said she had never been treated by Mulvaney and denied receiving any injections or a lumbosacral belt.

Dr. Mulvaney was also cross-examined regarding treatment he gave to Anthony Antieo and his infant son Michael for injuries received in a fall and whose claims were settled by the insurance company. Mulvaney’s records indicated that Anthony was treated on 16 occasions for injuries to the neck, arm and hip, for which the doctor charged $168. Michael was treated five times and the bill for services was $145. In rebuttal Anthony Antieo testified that neither he nor his child was injured in an accident and that he, together with Morelli and Córtese, defrauded the company with the bogus claim. Anthony said he had never been treated by Mulvaney and, in fact, had never met him before the trial.

Yormark was cross-examined about other cases against the insurance company where he represented the claimant and Brizard was the treating physician. One such case involved the settlement of a personal claim by Yormark for injuries he said he sustained in an automobile collision while driving a car. Brizard was his treating physician and submitted a bill for medical services. On rebuttal, Patricia Vroman testified that she was involved in the collision but that Yormark was not the driver of the other vehicle.

Defendants advance three reasons in support of their argument that such testimony was erroneously admitted in evidence. They claim it should have been excluded under Evidence Rule 55, which renders inadmissible evidence of other crimes or civil wrongs to show the disposition of the accused to commit the crime charged; that collateral matters adduced by the State on cross-examination may not be contradicted by extrinsic evidence on rebuttal, and that testimony concerning the Vesper, Lewis and Mozzocca claims was inadmissible because Mulvaney and Perwin had previously been acquitted of criminal conduct involving those claims.

Defendants5 reliance on Evidence Rule 55 is misplaced. The rule contains an explicit exception which states that “such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.55 This exception was followed by our courts long before Evidence Rule 55 was adopted. See State v. Sinnott, 24 N. J. 408, 413 (1957); State v. Homer, 86 N. J. Super. 351, 364 (App. Div. 1965). So, too, proof of other instances of misconduct which disclose a working relationship between the parties and a common course of dealing leading up to the crime is admissible. State v. Attanasio, 92 N. J. Super. 267, 269-270 (App. Div. 1966), certif. den. 48 N. J. 354 (1966); State v. Harris, 105 N. J. Super. 319, 322-323 (App. Div. 1969). In our opinion the testimony here complained of was relevant to show knowledge by defendants that the Taylor, McBride and Allison claims were fictitious; the existence of a common scheme or plan to defraud the insurance company, as shown by their prior relationships and course of dealing with each other, and motive and intent to commit the fraud; as well as to expose the falsity of Mulvaney’s medical records.

As to defendants5 argument that collateral matters developed on cross-examination could not be rebutted by the State, the short answer is that rebuttal testimony can be introduced if it is relevant and would be independently admissible upon a substantive issue in the case. State v. Mathis, 47 N. J. 455, 471 (1966); State v. Schuler, 28 N. J. Super. 275, 277 (App. Div. 1953).

We find no error in the admission of evidence concerning the Vesper, Lewis and Mozzocca claims. The fact that Mulvaney and Perwin had been previously tried and acquitted of other offenses involving such claims does not bar the introduction of evidence with respect to such matters where it is offered for the purpose of showing guilty knowledge, a corrupt intent, and involvement by the defendants in a common scheme or plan to defraud the insurance company in this case. See State v. Robinson, 16 N. J. L. 507, 509 (Sup. Ct. 1838). The admission of such testimony, although it relates to other alleged offenses for which the defendants had been previously acquitted, is upheld by the great weight of authority throughout the country. See Hodges v. State, 85 Ga. App. 617, 70 S. E. 2d 48, 50 (Ct. App. 1952), cert. den. 209 Ga. 283, 71 S. E. 2d 543 (Sup. Ct. 1952), cert. den. 344 U. S. 903, 73 S. Ct. 283, 97 L. Ed. 698 (1952); People v. Johnston, 328 Mich. 213, 43 N. W. 2d 334, 340 (Sup. Ct. 1950); Robinson v. State, 40 Ala. App. 101, 108 So. 2d 188 (Ct. App. 1959); People v. Massey, 196 Cal. App. 2d 230, 16 Cal. Rptr. 402, 405 (Ct. App. 1961); Koenigstein v. State, 101 Neb. 229, 162 N. W. 879, 882 (Sup. Ct. 1917); Himmelfarb v. United States, 175 F. 2d 924, 941 (9 Cir. 1949), cert. den. 338 U. S. 860, 70 S. Ct. 103, 94 L. Ed. 527 (1949); United States v. Feinberg, 383 F. 2d 60, 71 (2 Cir. 1967), cert. den. 389 U. S. 1044, 88 S. Ct. 788, 19 L. Ed. 2d 836 (1968).

Defendants rely primarily on State v. Bartell, 15 N. J. Super. 450 (App. Div. 1951), which was affirmed by an evenly divided court thereby rendering any opinion by the court impossible. 10 N. J. 9 (1952). We conclude that Bartell is inapposite. The court there held, in a prosecution for procuring illegal registration of voters, cross-examination of defendant concerning registration of other unqualified voters, with respect to which defendant had already been exonerated of unlawful intent and the charges predicated thereon dismissed, was not relevant to the issues and could not be pursued as a matter of right, and further, that permitting such cross-examination for the purpose of testing the defendant’s credibility on collateral subjects was erroneous where such proof at most could only generate a speculative inference that he had a propensity to commit the crime charged. However, it is noted that the court specifically excluded from its ruling all questions calculated to establish the criminal motive of the defendant.

We are satisfied that the challenged testimony in the instant case was relevant and properly admitted by the trial judge for the reasons we have previously expressed.

IV

We turn next to Dr. Mulvaney’s claim that he was deprived of his Sixth Amendment right to the assistance of counsel. The claim is predicated upon the court’s appointment of Dino Bliablias as Mulvaney’s attorney when Frederic Ritger, his trial attorney, was hospitalized with a suspected heart attack during the tenth week of the trial. The record shows that on November 16, 1970, Walter Van Riper advised the court that Ritger, his law partner, had suffered chest pains and been taken to a hospital. The trial court requested Van Riper to act temporarily for Mulvaney until the seriousness of Ritger’s condition could be ascertained, and said that if Ritger would be unable to return, a decision would have to be made as to whether Van Riper would be required to review the transcript and continue the trial rather than declare a mistrial as to Mulvaney. Van Riper replied that he would be unable to do so because of the other trial commitments. On the following day Van Riper informed the court that Ritger was “suspected of having a coronary” and it would be ten days before the doctor could determine whether Eitger would be able to resume with the trial. Van Eiper moved for a severance on behalf of MuL vaney which was opposed by the prosecutor who said that a state physician was then examining Eitger. The motion for a severance was denied.

On Wednesday, the next day, Bitger’s physician expressed an opinion that Eitger suffered from a pulmonary embolism and would require hospitalization for three to live weeks. The prosecutor reported that the State’s physician confirmed that Eitger’s condition was serious and that the optimum time for recovery would be about two weeks. The prosecutor opposed granting a severance as to Mulvaney because ten weeks of trial had elapsed and suggested that Van Eiper or some other attorney act for Mulvaney following a reasonable continuance for counsel to prepare his ease. Van Eiper iterated that he could not take over the case because of other commitments. At the end of the court session that day the trial court again denied the motion for a severance, ordered Mulvaney to engage new counsel, and stated that if he could not do so the court would assign counsel to represent him. Van Eiper asked for a recess until the following Monday for this purpose but the court ruled that Mulvaney would have until noon the next day to engage counsel.

That evening Mulvaney conferred with Bliablias concerning his representation in the case. On the following day Van Eiper, on behalf of Mulvaney, made an unsuccessful application to this court for a stay of the trial court’s ruling. Mulvaney thereupon requested that he be granted more time to retain an attorney of his own choice. The trial judge denied the request, indicating his belief that Mulvaney was engaging in dilatory tactics, and feigning inability to get a lawyer. The judge then appointed Bliablias to serve as Mulvaney’s trial counsel. An 11-day recess was granted in order for Bliablias to familiarize himself with the case, which period was subsequently extended for an additional day. Thereafter Bliablias served as Mulvaney’s trial counsel for the next seven weeks and to the conclusion of the trial.

Mulvaney argues that he (1) was not afforded a fair opportunity to secure counsel of his own choice, and (2) was denied the effective assistance of counsel. It is firmly established that one accused of crime has the right to the assistance of counsel for his defense, Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, (1963), and also has the right to “a fair opportunity to secure counsel of his own choice.” Crooker v. California, 357 U. S. 433, 439, 78 S. Ct. 1287, 1291, 2 L. Ed. 2d 1448 (1958). However, the right to choose counsel of his own choice is not an absolute right; reasonable diligence in securing counsel is required. State v. Longo, 133 N. J. L. 301 (E. & A. 1945). An accused’s right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in our courts. Thus, if an accused does not act expeditiously in securing counsel, the trial court may, in the exercise of its sound discretion do what is reasonably necessary to meet the situation. Releford v. United States, 288 F. 2d 298, 301 (9 Cir. 1961).

Ten weeks of trial had already elapsed when the court was informed of Ritger’s illness. The State, Perwin, Mulvaney, and Brizard had completed presentation of their eases in chief. Yormark had completed his direct examination, had been cross-examined by counsel for Perwin, Mulvaney and Brizard, and was undergoing cross-examination by the prosecutor. Although Mulvaney learned that Ritger was incapacitated on November 16, it is apparent that he did nothing with regard to obtaining a new attorney until the court directed that he do so on November 18. Thereafter he conferred with Bliablias, who is conceded to be ah able trial lawyer experienced in the trial of criminal cases. While we think the trial court should have granted Yan Riper’s request to allow Mulvaney until the following Monday to attempt to secure counsel, we are satisfied that the court’s refusal to do so does not constitute reversible error. It is apparent that during the 12-day recess following Bliablias’ appointment Mulvaney took no steps to secure counsel of 'his own choice, an avenue which was open to him if he believed Bliablias would not afford him proper representation. We arc satisfied that Mulvaney’s constitutional right to the assistance of counsel was not violated; that he was not precluded from a fair opportunity to retain counsel of his own choice if he had so desired, and that under the circumstances presented the trial court did not abuse its discretion in appointing counsel.

We find no merit in Mulvaney’s claim that he was denied the effective assistance of counsel. To warrant the reversal of a criminal conviction on the ground of inadequate legal representation there must be a showing that the defendant was prejudiced thereby •— that the representation by counsel was such as to make the trial a farce and a mockery of justice. State v. Bentley, 46 N. J. Super. 193, 203 (App. Div. 1957); and see State v. Dennis, 43 N. J. 418, 426-429 (1964); State v. Wade, 89 N. J. Super. 139, 143 (App. Div. 1965); State v. Woodard, 102 N. J. Super. 419, 429 (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). We have carefully reviewed the record and are convinced that Bliablias rendered able and efficient representation on behalf of Mulvaney. The record demonstrates that he had a knowledge of the facts developed both before and after his appointment and effectively presented the case in defense of his assigned client.

Mulvaney’s further contention that he was deprived of his constitutional right to confront witnesses presented against him because he was represented by counsel who was inadequately prepared to assist him is clearly frivolous. His reliance on Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) is misplaced.

V

After the conclusion of testimony and during summations the trial judge was informed by George Wilson, one of the 16 jurors selected to hear the case, that his wife had been approached by a Dr. Brown to speak to the juror on behalf of Mulvaney. A Dr. Brown had previously testified as a character witness for that defendant. The trial judge conducted a hearing, out of the presence of the other members of the jury, during which Wilson related in detail how Brown had spoken to his wife at the hospital where she was employed and sought to have her influence her husband on Mulvaney’s behalf, and further, how Brown had attempted to talk to the juror by telephone. Upon being questioned by the judge, Wilson said that if he were selected to serve on the jury Which would decide the case, he could base his decision entirely on the evidence and render a fair and honest verdict without the incident influencing his decision. Defendants’ motions to exclude Wilson as a member of the jury were denied, as were motions for a mistrial.

Defendants claim that their rights to a fair and impartial jury were violated because Wilson was permitted to serve on the jury. They argue that the attempt by Brown to influence the juror had the capacity to influence the verdict notwithstanding the juror’s statement that it would have no such effect.

A trial judge is vested with broad discretionary powers in deciding whether a juror should be excluded because of a wrongful attempt to influence his decision. Here the juror’s responses to the judge’s questioning indicated affirmatively that Brown’s improper act would not influence him in arriving at a verdict. We conclude that the judge’s refusal to remove the juror or to grant a mistrial was a proper exercise of discretion. Cf. State v. Boiardo, 111 N. J. Super. 319 (App. Div. 1970), certif. den. 57 N. J. 130 (1970), cert. den. 400 U. S. 859, 91 S. Ct. 13, 37 L. Ed. 3d 98 (1970).

VI

The remaining points urged by defendants as grounds for a reversal can be disposed of summarily with little comment. Motions for acquittal made by Mulvaney and Brizard were properly denied by the court. The evidence produced by the State, together with all logical inferences which could be drawn therefrom, was sufficient for a jury to find defendants guilty of the charge of conspiracy beyond a reasonable doubt. State v. Reyes, 50 N. J. 454, 458-459 (1967). Mulvaney’s motion for a new trial on the ground that the verdict was contrary to the weight of the evidence was also properly denied. R. 3 :20-l provides that the trial judge shall not set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law. A review of the record convinces us that the proofs would not have justified such a finding by the trial court.

Perwin, Mulvaney and Yormark contend that their sentences were manifestly excessive and based on improper and unconstitutional policy considerations on the part of the trial judge. They claim they were penalized for their refusals to admit guilt at the sentencing hearing. We find no illegality in the views expressed by the judge during the hearing. There was no threat of an increase in sentence if defendants refused to admit their guilt. Quite to the contrary, the record indicates that after a consideration of the backgrounds of the respective defendants, the judge said he would not impose the maximum prison terms permitted by law and instead sentenced them to lesser terms in the county penitentiary. The rule is well settled that the quantum of the sentence imposed, if within the limits fixed by law, rests within the sound discretion of the trial judge. The burden of establishing that the sentence was excessive rests upon a defendant, and he may succeed in his contention only where it clearly appears that the judge abused his judicial discretion. State v. Cox, 101 N. J. Super. 470, 475 (App. Div. 1968), certif. den. 53 N. J. 510 (1969). We have reviewed the sentences imposed in the light of the total circumstances and conclude that there was no abuse of judicial discretion, and the sentences were not excessive.

We also find no substance in Mulvaney’s charge that the trial judge erred in ordering that he pay one-fourth of the costs of the prosecution of the trial. N. J. S. A. 2A:168-2 explicitly provides that the costs of prosecution may be imposed as a condition of probation.

We have considered the other points raised by the defendants: that improper conduct by the trial court denied them the right to a fair trial; that the court unduly re>strieted their cross-examination of witnesses; that an accumulation of trial errors requires a reversal; that Morelli was permitted to testify although pages of a prosecutor’s notes of a pretrial interview of Morelli were lost or misplaced and could not be produced for use on cross-examination of the witness; that production of Perwin’s office files before the grand jury by his partner Dvorin in response to a subpoena duces tecum violated Perwin’s Fourth and Fifth Amendment rights; that the court’s charge was erroneous, and that Brizard was prejudiced by unfair comments by the prosecutor in summation. We find that none of these points has merit.

The judgments of conviction are affirmed.


source: Caselaw Access Project

author: Fritz, J. A. D.

license: Public Domain

text:
    THOMAS H. HAMILTON, BETTY J. GROSSMAN, LOUISE BACH, GLADYS WIEMAN, FRED E. BEOHMER, HERBERT E. GARVAL AND FREDERICK ORGAN, PETITIONERS, v. NEW JERSEY REAL ESTATE COMMISSION, DEPARTMENT OF INSURANCE, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 4, 1971
    Decided December 6, 1971.

      Before Judges Coneokd, Matthews and Ekitz.

      Mr. Jeffrey B. Lowe argued the cause for petitioners.

      Mr. Donald B. Seel, Deputy Attorney General, argued the cause for respondent New Jersey Real Estate Commission (Mr. George F. Eugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Fritz, J. A. D.

By Regulation No. 29, promulgated after public hearing, respondent New Jersey Real Estate Commission required all applicants for salesman, broker-salesman or broker’s licenses as well as present holders of licenses to be fingerprinted. In accordance with R. 2:2-3 (a) (2) petitioners here challenge this enactment on the grounds that (a) the Commission was without legislative authority for its action and (b) the rule is an unconstitutional invasion of privacy violative of the Eourth, Ninth and Fourteenth Amendments to the United States Constitution.

We believe both grounds lack merit.

The Commission was established by legislative enactment in N. J. S. A. 45:15-5 and invested with rule-making power by N. J. S. A. 45:15-6. Adequate standards, many detailed, governing its administration of the delegated authority, including its obligation to license real estate brokers and salesmen (N. J. S. A. 45:15-9), appear in Chapter 15 of Title 45 of the New Jersey Revised Statutes. While, as petitioners correctly contend, the express authority to require fingerprinting does not appear, we have no doubt that such was necessarily intended by the Legislature in its pronouncement of such licensing standards as are to be found, for instance, in N. J. S. A. 45:15-12.1, -19.1, and -19.2. These decree that no license shall be issued to any person convicted within the past five years of specified crimes, and provide for the revocation of a license upon conviction, or the suspension of a license on indictment, for certain crimes. Less directly to the point, but still of major significance, the standards require the submission to the Commission by the applicant of evidence of good moral character. N. J. S. A. 45:15-9. The Commission’s proper concern that only those applicants of "character, competency, and integrity” should be granted licenses, and the public interest in the exclusion of "unscrupulous persons,” was recognized in Div. of the N. J. Real Estate Comm’n v. Ponsi, 39 N. J. Super. 526, 532-533 (App. Div. 1956).

The grant of such an express power — indeed, here the imposition of such a vital obligation — is “always attended by the incidental authority fairly and reasonably necessary or appropriate to make it effective.” Cammarata v. Essex County Park Comm’n, 26 N. J. 104, 411 (1958). See also Mulligan v. Wilson, 110 N. J. Super. 167, 171 (App. Div. 1970). The delegated authority should be construed so as to permit the fullest accomplishment of the legislative intent. Cammarata and Mulligan, both supra.

We do not doubt that the authority to require fingerprinting was within the intent of the Legislature in its delegation to the Commission of authority to license proper applicants.

We turn to petitioners’ complaint of an unconstitutional invasion of their right of privacy. While such a right is not to be found precisely enunciated in either the New Jersey or United States Constitutions, we acknowledge that its existence and protection has been declared as springing from the penumbra of other constitutional edict. Griswold v. Connecticut, 381 U. S. 479, 483, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). Its vitality is now beyond question. Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969).

But the right is not absolute.

Not every intrusion by government on tbe privacy of the individual is protected by tbe Fourth Amendment. The individual’s basic claim to be alone is not an absolute one. It is recognized that certain intrusions on the privacy of the individual may be justified in the public interest. [State v. Kabayama, 98 N. J. Super. 85, 87 (App. Div. 1967), aff’d o. b. 52 N. J. 507 (1968)]

Salesmen and brokers dealing in real estate have ungoverned access regularly to private homes. The nature of their business is such that they are required to hold and to handle substantial sums of money belonging to others. The fact that there are over 30,000 such licensees in the State of New Jersey, coupled with the expressed conviction of the chairman of the Commission that he “know[s] of no other way to screen applicants properly, thoroughly, and legally” — and no alternatives were offered by the otherwise vocal participants at the public hearing — conduces to the firm conviction that the intrusion on the right of privacy, if such it be, promoted by the regulation in question, is indeed justified in the public interest. The policy considerations inherent in the licensing statutes fortify such a conclusion. See Mogolefsky v. Schoem, 50 N. J. 588, 595-597 (1967).

We hold Regulation No. 29 to be a valid promulgation.


author: Fueman, J. S. C.

text:
    NEW JERSEY TURNPIKE EMPLOYEES’ UNION, LOCAL 194 OF THE AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL-CIO, PLAINTIFF, v. NEW JERSEY TURNPIKE AUTHORITY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 2, 1971.

      Mr. Thomas L. Par sonnet, for plaintiff (Messrs. Parson-net, Parsonnet & Duggan, attorneys).

      Mr. Joseph B. Postizzi, for defendant (Mr. David W. Dowd, attorney).
   Fueman, J. S. C.

The legality of an agency shop in public employment is at issue in this declaratory judgment action. The agency shop proposed for defendant authority’s employees by plaintiff union would require the monthly payment by nonmembers of the union of their respective fair share of the cost of collective negotiations, processing of grievances and other activities related to union representation, as a condition of employment. Initially the payments by nonmembers would be identical to the regular union dues and initiation fees, subject to reduction upon a determination that the pro rata cost was less.

The New Jersey Constitution (1947), Art. I, par. 19 provides :

Persons in private employment shall have the right to organize and bargain collectively. Persons in public employment shall have the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their own choosing.

Collective negotiations through a majority representative were sanctioned for persons in public employment by N. J. S. A. 34:13A-1 et seq., as amended by L. 1968, c. 303. The Supreme Court upheld the constitutionality of that statute in Lullo v. International Ass’n of Fire Fighters, 55 N. J. 409 (1970).

Lullo held further that the rule of good faith representation in processing a nonmember’s grievance applied to a majority representative in public employment, as well as to a bargaining representative in private employment, under Vaca v. Sipes, 386 U. S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967), and Donnelly v. United Fruit Co., 40 N. J. 61 (1963).

Whether an individual public employee retains the right to process his own grievance was mooted but undecided in Lullo. Defendant authority urges'that this'right is shielded constitutionally. Two specific provisions of N. J. S. A. 34:13A-5.3 warrant a construction that the Legislature intended to foreclose it:

Nothing herein shall be construed to prevent any official from meeting with an employee organization for the purpose of hearing the views and.requests of its members in such unit so long as (a) the majority representative is informed of the meeting; (b) any changes or modifications in terms and conditions of employment are made only through negotiation with the majority, representative; and (e) a minority organization shall not present or process grievances. •
When no majority representative has been selected as the bargaining agent for the unit of which an individual employee is a part, he may present his own grievance either personally or through an appropriate representative or an organization of which he is a member and have such grievance adjusted.

An affidavit by its business manager makes clear that plaintiff union holds this view of the statute but, in addition, gratuitously offers:

* * * where the grievance involved does not affect the rights of others to any substantial extent, the union is willing to pay for the cost of arbitration (other than the cost of counsel) at the request of any such individual [nonmember processing his own grievance] * * *

To interpret the constitutional language in Art. 1, par. 19, to bar individual public employees from presenting proposals as to terms and conditions of employment whenever there is a majority representative, but to safeguard their right to present grievances under all circumstances would be to create a dichotomy between “grievances” and “proposals” which has no basis in constitutional history or otherwise.

Thus plaintiff union may fairly contend that it is the exclusive representative of all employees of the unit for collective negotiations and for the processing of grievances, and that nonmembers would be unjustly enriched by its representation, unless they paid their proportionate share of the cost.

Defendant authority resists this contention on additional grounds. N. J. S. A. 34:13A-5.3 protects the right of public employees not to join or to assist any employee organization. Arguably a payroll deduction to an employee organization would be assistance to it. The Labor Management Relations Act of 1947, § 1 et seq., 61 Stat. 136, 29 U. S. C. A. § 141 et seq., which served as a model for L. 1968, c. 303 (Lullo, supra 55 N. J. at 424), authorizes a union shop and, therefore, its practical equivalent, an agency shop (N. L. R. B. v. General Motors Corp., 373 U. S. 734, 743, 83 S. Ct. 1453, 10 L. Ed. 2d 670 (1963)). L. 1968, c. 303, omits any reference to a union or agency shop and, according to defendant authority, must he construed to prohibit such forms of employee organization or, at the least, not to authorize them. Lullo, supra 55 N. J. at 424; Martin v. American Potash & Chemical Corp., 33 Del. Ch. 234, 92 A. 2d 295 (Sup. Ct. 1952); 2 Sutherland, Statutory Construction (3d ed. 1943) § 5209 at 551.

Realistically there can be minimal doubt about the consequences of an agency shop. Defendant’s employees, who are not now members of plaintiff union, would join it if faced with assessments identical to union dues and initiation fees, except, it may be, for a recalcitrant handful.

The court will not compel that result in view of the legislative declaration of the right of public employees to refrain from union activity, even assisting a union, and in the absence of legislative authorization for an agency shop in public employment.

Summary judgment declaring an agency shop invalid is granted on the cross-motion in favor of defendant authority.


author: Gelman, J. J. & D. E. Ct.

text:
    HUYLER PAPER STOCK COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF, v. INFORMATION SUPPLIES CORPORATION, A NEW JERSEY CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided November 24, 1971.

      Mr. Joseph B. Be Miglio for plaintiff (Messrs. Marotta, and Be Miglio, attorneys).

      Mr. John Bolán Harrington for defendant (Messrs. Winne & Banta, attorneys).
   Gelman, J. J. & D. E. Ct.

(temporarily assigned). This action for breach of contract was tried before the court and jury, resulting in a verdict in favor of the plaintiff in the sum of $3,264. At the conclusion of plaintiff’s case defendant moved for a dismissal of the complaint on the ground that the contract, not being in writing, was not enforceable Tinder section 2-201 of the Uniform Commercial Code, N. J. S. A. 12A:2-201. Decision on defendant’s motion was reserved and the factual issues were submitted to the jury for its determination. Pursuant to B. 4:40-2 (a) and for the reasons hereinafter set forth, the court herewith grants defendant’s motion to dismiss and directs the entry of judgment thereon.

Accepting as true the testimony of plaintiff’s witnesses and all inferences which could reasonably be drawn therefrom, the jury could have found the following facts at the conclusion of plaintiff’s case: Plaintiff is engaged in the purchase and sale of paper waste and scrap. It purchases paper waste from a variety of customers, including charitable organizations as well as industrial and commercial accounts. It maintains trucks which it employs to collect the waste and, in the case of industrial and commercial accounts, its trucks make pickups at regular intervals or when called by the account. The waste thus collected is sorted and re-baled at plaintiff’s plant and resold to others who process the paper for re-use. The business in which it is engaged is highly competitive and it is not customary in the trade to have written contracts with the accounts from whom paper waste is purchased. In the normal course of business both the seller of the waste and plaintiff are free to terminate their relationship at any time. The price which plaintiff pays to its accounts for waste is determined from time to time from quotations set forth in a trade journal, and purchase invoices are sent to the accounts at the end of each month showing the amount collected, the price and the balance due to the account.

Defendant is engaged in the business of processing data information cards. A substantial quantity of paper scrap is 'generated as a result of the processing work. In 1967 defendant moved from New York to a new plant in Oarlstadt. Plaintiff’s officers learned that defendant had relocated in New Jersey, and Anthony D’Elia called upon defendant’s plant manager, Jack Osmet, to solicit the purchase of defendant’s waste. An agreement was reached between Osmet and D’Elia whereby defendant did sell its waste to plaintiff for a few months during 1968. The agreement was oral and was terminable at any time by either party. The arrangement was, in fact, terminated by defendant, who received a more favorable price from one of plaintiff’s competitors.

In February or early March 1969 Osmet contacted D’Eiia concerning problems defendant was having in the disposition of its paper waste, and there was a preliminary discussion between them concerning the installation of a paper baling press at defendant’s plant. D’Elia reported this conversation to his brother, Emil D’Elia, who was plaintiff’s president. In early March a meeting was held at defendant’s plant, attended by Osmet, Emil D’Elia and Joseph D’Elia, the latter being an officer of plaintiff but not actively associated with the business. According to Emil and Joseph D’Elia, an oral agreement was reached at this meeting, the terms of which were as follows: plaintiff would purchase and install a paper baling press at defendant’s plant, and defendant would pay for the baler at the rate of $100 a month in the form of a credit to plaintiff against the sales price of the waste which defendant would sell to plaintiff each month. In consideration of plaintiff’s agreement to install the baler and to accept payment in monthly installments, defendant agreed to sell all of its paper waste to plaintiff for a period of two years from the time the baler was installed. The selling price for the waste was to be determined on the basis of trade journal quotations in effect at the end of each month.

On March 12, 1969 plaintiff resumed collection of defendant’s paper waste and submitted purchase invoices for the quantity collected through May 19, 1969. On or about May 19, 1969 plaintiff purchased a baler which was installed at defendant’s plant, the total purchase price and install ation charge being $1,493.50. Plaintiff continued to collect the waste thereafter and submitted purchase invoices each month. Each invoice, which covered several collections, set forth the quantities of different types of waste collected, the purchase price for each category and the total amount due from plaintiff to defendant. Erom this total $100 was deducted for the baling press, and the current balance due for the baling press appeared on each of the subsequent invoices, beginning with the invoice of June 9, 1969. Plaintiff continued the collection and payment for the waste in this manner through the end of December 1969, after which it received no communications from defendant to pick up waste.

In the early part of January Anthony D’Elia called defendant’s plant and was told by Robert Hull, who had replaced Osmet as defendant’s plant manager, that plaintiff’s “services” were no longer required. As a result of this conversation Emil and Anthony D’Elia went to defendant’s plant and met with Hull. Hull iterated that defendant would no longer sell its waste to plaintiff, that it was now selling to another dealer. Emil D’Elia pointed out that plaintiff had installed the baling press on defendant’s premises, and Hull told him that if that were the case, he could remove it. The following day Emil D’Elia went to defendant’s plant to remove the baling press but he was met by Hull, who advised him that defendant had an interest in the baling press since it had paid a part of the purchase price in the manner described above. Hull said that defendant would pay the balance due on the baling press, and Emil D’Elia left. However, defendant subsequently failed to pay the sum of $593.50, being the balance due on the baling press as disclosed by the last purchase invoice submitted by plaintiff to defendant. Plaintiff thereupon instituted this action to recover damages for defendant’s breach of the oral agreement to sell its paper waste to plaintiff for a period of two years from May 19, 1969.

In his opening to the jury defendant’s counsel admitted its liability to plaintiff for the sum of $593.50, but otherwise denied the existence of an agreement to sell waste to plaintiff for any fixed term. Defendant’s witness Osmet testified that the agreement reached in March 3969 was terminable at any time by either party, and in the event of termination before the full purchase price of the baling press had been paid, defendant’s sole responsibility was to pay in one lump sum any unpaid balance.

The section of the Uniform Commercial Code on which defendant relies, N. J. S. A. 12A:2-201, reads in pertinent part as follows:

(1) Except as otherwise provided in this section a contract for the sale of goods for the priee of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable.
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (12A:2-606).

On plaintiff’s proofs the following factual conclusions are inescapable: (1) the agreement to be enforced was wholly oral; (2) paper waste constitutes “goods” within the meaning of section 2-203 (see N. J. S. A. 12A:2-105), and (3) the agreement contemplated the sale of goods in excess of $500, inasmuch as the sales for the 32-week period totalled $8,366.50. Hence, unless the contract is otherwise excepted from the operation of section 2-201(1), it is not enforceable.

Plaintiff urges that the agreement is not governed by section 2-201 because the contract was to supply services rather than for the sale of goods. There are no New Jersey cases on point, but decisions elsewhere have held that the statute of frauds section of the Uniform Commercial Code, like its predecessor section of the Sales Act (former N. J. S. A. 46:30-10), applies only to the sale of goods and not services. See Gerber v. Weinstein, 6 N. J. Misc. 284 (Sup. Ct. 1928) (Uniform Sales Act); Stone v. Krylon, Inc., 141 F. Supp. 785 (D. C. Pa. 1956) (Uniform Commercial Code). While the contract here does contain an element of a service contract, i. e., the collection of the waste by plaintiff, the principal object of the agreement was the sale of the waste by defendant to plaintiff. No separate charge was made by plaintiff for any service which was rendered, and the collection service was but a necessary incident to the sale and not the essence of the agreement. This is further borne out by the fact that plaintiff in this action sought recovery for its loss of profit resulting from the defendant’s refusal to sell waste to it for the balance of the term of the agreement.

Next, it is contended that the requirements of the Code were met by the partial performance of the agreement over a period of 32 weeks, as well as by plaintiff’s delivery of the baling press in accordance with the terms of the agreement. See, e. g., Schnoll v. Dutt, 128 N. J. L. 475 (Sup. Ct. 1942) (Uniform Sales Act). The difficulty with this position, however, is that the Code parted company with the Sales Act statute of frauds in this respect, and partial performance of an agreement does not avoid the requirement of a writing under section 2-201 but renders the agreement enforceable only with respect to the goods which have been delivered and accepted. See Abrams, “Introduction and New Jersey History of the Uniform Commercial Code,” 17 Rutgers L. Rev. 1, 22 (1962); Williston, “The Law of Sales in the Proposed Uniform Commercial Code,” 63 Harv. L. Rev. 561, 575 (1950).

While there have been no reported New Jersey decisions to date on this point, two decisions from other jurisdictions illustrate the impact of the change made by section 2-201. In Spiering v. Fairmount Foods, Inc., 424 F. 2d 337 (7 Cir. 1970), plaintiff sued on an oral contract with defendant whereby the latter had agreed to sell milk to plaintiff at a special discount price for as long as plaintiff remained a milk vendor. The agreement had been performed by both parties for a period of approximately eight months when defendant notified plaintiff that it would no longer receive the special price. In holding that partial performance did not satisfy section 2-201, the court noted that under this section

* * a contract is taken out of the statute only as to goods ‘which have been received and accepted.’ [at 340]

In Bagby Land & Cattle Co. v. California Livestock Commission Co., 439 F. 2d 315 (5 Cir. 1971), plaintiff, a dealer in cattle, had delivered 222 head of cattle to defendant pursuant to an oral contract to sell defendant a total of 2,000 head. Defendant had not paid for 80 of the cattle delivered, and plaintiff sued for the purchase price. Defendant counterclaimed for plaintiff’s breach of the agreement to deliver the remaining 1,778 cattle. The court held that plaintiff was entitled to recover the purchase price for all cattle delivered and accepted by defendant and dismissed the counterclaim as being barred by section 2-201. The court stated:

Under § 2.201(c)(3) of the Texas Business and Commerce Code an otherwise invalid contract ‘is enforceable * * * (3) with respect to goods * * * which have been received and accepted.’ Although we have found and are cited to no Texas cases interpreting this recently adopted legislation, we have no hesitancy in holding that the effect of this statute is to validate an oral agreement only as to these goods actually received and accepted by the buyer. While the UCO Comments on this section are not final authority, we treat them as authoritative support for this holding, particularly in the absence of other precedents:
2. ‘Partial performance’ as a substitute for the required memorandum can validate the contract only for the goods which have been accepted or for which payment has been made and accepted.
Receipt and acceptance either of goods or of the price constitutes an unambiguous overt admission by both parties that a contract actually exists. If the court can make a just apportionment, therefore, the agreed price of any goods actually delivered can be recovered without a writing or, if the price has been paid, the seller can be forced to deliver an apportionable part of the goods. * * “
[Defendant’s] acceptance of 222 cattle delivered pursuant to the alleged contract does not, therefore, give rise to the right to have delivery of any other cattle for which it orally contracted. Section 2.201(c)(3) does not sustain the contention made, [at 317]

In the case at bar performance of an agreement for the sale of goods over a period of 32 weeks was admitted. Likewise, defendant admitted its agreement to purchase and pay for the baling press which was delivered by plaintiff and accepted by it. Under section 2-201 the oral contract is ■ enforceable only to the extent that performance has occurred prior to the breach, and plaintiff cannot recover damages for any goods which were to be delivered in the future but wrongfully withheld.

Finally, it is urged that the requirement of the writing was met in this case through plaintiff’s purchase invoices which reflected all the terms of the contract with the exception of its duration. Since section 2-201 does not require that all of the terms of the agreement be in writing, it is said that the time period of the contract may be established by parol evidence and the agreement is therefore enforceable. See N. J. S. A. 12A-2-202(b). Unquestionably, the draftsman of the Code intended to and did relax the Sales Act requirement that all terms of the contract be in writing. See New Jersey Study Comment, Uniform Commercial Code, N. J. S. A. 12A:2-201. Likewise, it would appear that a purchase invoice may constitute a writing sufficient to satisfy the statute. Cf. Azevedo v. Minister, 471 P. 2d 661 (Nev. Sup. Ct. 1970). However, under section 2-201, the agreement is enforceable only to the extent of the goods shown in the writing which is relied upon to establish the contract, and hence the purchase invoices, even if they are deemed to meet the statutory requirement of a writing, cannot support a claim for damages for future goods. Beyond that, the invoices here were authored by plaintiff and none of the invoices contain the signature of defendant — the party to be charged — which still remains an essential requirement under the statute of frauds section of the Code.

An order for judgment may be submitted.

       The defense of the statute of frauds had been raised in the answer and was the subject of a motion for summary judgment made prior : to trial, which motion had been denied.


author: Muir, J. C. C.

text:
    THOMAS O’KEEFE, PETITIONER-APPELLEE, v. JOHANSEN CO., RESPONDENT-APPELLANT.
    Morris County Court Law Division
    Decided December 2, 1971.

      Mr. Ronald W. Bronstein for petitioner-respondent (Mr. Richard J. Traynor, attorney).

      Mr. Eugene G. Galvin for respondent-appellant (Messrs. Carroll <& Galvin, attorneys).
   Muir, J. C. C.

This is an appeal pursuant to N. J. S. A. 34:15-66 and R. 4:74-1 et seq. from a judgment of the Division of Workmen’s Compensation. The basis for the appeal is very narrow and one bearing on the refusal of the Division to set aside a judgment on grounds of lack of jurisdiction.

A chronology of the undisputed events leading up to the refusal is required before an elucidation of the issue at bar can be made.

The original petition for workmen’s compensation, based on an injury received August 7, 1963, resulted, on July 29, 1966, in an award of 72 weeks’ temporary disability at $45 a week; permanent disability of 25% of the left leg; 6% of total for orthopedic disability, and 7J^% of total for neurological disability. Based upon N. J. S. A. 34:15-12 the permanent disability award amounted to 143 weeks at $40 a week, or $5,720. The total weeks involved for temporary and permanent disability were 215. The award was paid by respondent-appellant. The last check to petitioner was dated September 11, 1967 and indicated it covered the period of August 31 to September 27, 1967. It is stipulated by both parties that the 215 weeks’ compensation ran out September 20, 1967 and the last check represented a seven-day overpayment.

Petitioner, on September 24, 1969, filed for review of the award under N. J. S. A. 34:15-27, exactly two years and four days after the last scheduled payment of the award but within the time set forth in the last check of respondent’s insurance company. A judgment was entered on that petition on May 6, 1971, awarding an additional 10% disability of the leg — the incapacity having increased by that amount. The increase was consented to by respondent.

The September 24, 1969 petition was contested by respondent on the ground petitioner was out of time under N. J. S. A. 34:15-27. On July 17, 1971 respondent’s motion to set aside the May 6 increased disability award, on the same ground, was denied. Respondent’s appeal is from that denial. No other issue is raised on the appeal.

The narrowly shaped issue is whether petitioner, who filed for review within two years of last payment, is out of time under N. J. S. A. 34:15-27 when the last payment by respondent errantly went beyond the award of judgment time period by one week. There is no case in point in New Jersey.

This State recognizes that statutory time limitations are jurisdictional. Riccioni v. American Cyanamid Co., 26 N. J. Super. 1, 4 (App. Div. 1953). It is also clear that the jurisdiction of the Workmen’s Compensation Division cannot be expanded by consent, waiver, estoppel or judicial inclination. Id. at 5.

3 Larson’s Workmen’s Compensation Law, § 81.20 at 324 (1971), in discussing the re-opener law states that “voluntary payments after the time limit has expired will not revive the period within which a petition for additional benefits can be filed.” Reliance for the statement is the ease B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So. 2d 647 (Sup. Ct. 1968). Alabama has a one-year time limitation on re-opening compensation claims, and the court in applying the time limitation strictly on jurisdictional grounds found that voluntary payments did not toll the statute. The analogous situation here cannot toll the statute, even for four days. The payment for the period September 21 to 27, though mistakenly made, does not toll the statute.

Petitioner asserts the court should rely on those cases where the legislative policy of extending the time period for filing is recognized to avoid a misleading of the injured party. Mangieri v. Spring Tool Co., 68 N. J. Super. 211 (Law Div. 1961). While this might be the judicial inclination, doing so here would be asserting an estoppel against the employer. There was no evidence or assertion of a fraudulent intent to mislead •— just an honest mistake. Waiver and estoppel are not grounds for tolling the statute. DeAsio v. Bayonne, 62 N. J. Super. 232 (App. Div. 1960).

The date of last payment under the award was September 20, 1967. No re-opener could be filed after September 20, 1967. The time limitation is a legislative decision, and not one for this court to set aside. Oleyar v. Swift & Co., 51 N. J. 470, 471 (1968).


author: Per Curiam. Concord, P. J. A. D.

text:
    REGINA H. MEREDITH AND CLIFFORD W. SNEDEKER, PLAINTIFFS-RESPONDENTS, v. MERCER COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT-APPELLANT, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, INTERVENOR-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 14, 1971
    Decided July 2, 1971.
    Before Judges Coneokd, Kolovsky aud Carton.

      Mr. Harvey L. Stern, County Counsel, argued the cause for appellant.

      Mr. Harvey Levine, Deputy Attorney General, argued the cause for Intervenor-Respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).
    Plaintiffs filed Statement in Lieu of Brief.
   Per Curiam.

The judgment on appeal is affirmed essentially for the reasons set forth in the opinion of Judge Moore. 117 N. J. Super. 379; 59 N. J. 530.

Concord, P. J. A. D.

(dissenting). My study of the legislative history and factual background of this matter leads me to the following conclusions:

1. The Board of Freeholders had the right to fill the vacancy in the position which arose with the resignation of Mr. Uaples as of September 1, 1970.

2. After the expiration of the full five-year Naples term resulting from his designation by the Freeholders on August 6, 1968 all succeeding holders of full five-year terms will be subject to designation only by the Governor, with the advice and consent of the Senate; and this will be true of appointees to all vacancies arising within any such terms.

In arriving at the foregoing conclusions, the first of which would dictate reversal in the instant matter, I follow the principle that if legislative language is clear and unambiguous, and the result so indicated is not absurd, totally unreasonable or plainly contrary to a manifest legislative plan or purpose, the judiciary should uphold it notwithstanding a different result might appear to the court more reasonable, logical, conventional or desirable.

In respect of the first conclusion, the amendatory statutory language in relation to the filling of vacancies unambiguously requires that vacancies shall be filled “in the same manner as the original appointment to such office was made * * *” (emphasis added). As is developed later in this opinion, for another purpose, “vacancies” are referable to the full term in the course of which the vacancy arises. Where, as here, the original appointment to the full term was in fact made by the Board of Freeholders, rather than by the Governor, the same body is to fill vacancies, but only during the five-year term first created and in relation to which the vacancy arose. That the legislature intended the literal import of the amendatory language quoted is supported by the contrasting content of the original act before amendment which called for filling of vacancies “in the same manner as original appointments are made” (emphasis added), i. e., in the same manner as original appointments are generally made.

The language of the amendment, moreover, is perfectly tailored to the scheme of the act in providing both a general and an alternate method of making a first appointment to the office after adoption of a resolution by the Board of Freeholders for the creation of the office in the county. The directive for filling the vacancy in the same manner “as the original appointment * * * was made,” in the light of the foregoing, cannot in my view be sensibly regarded as meaning anything other than that if the Governor made the original appointment for the very first term he fills the vacancy; if the Ereeholders did, they fill it. I see nothing absurd, anomalous or plainly contrary to any general scheme or plan underlying this legislation in enforcing this plain statutory expression. Doing so merely means that the Board of Ereeholders, if the original appointer, also fills all vacancies arising during the first five-year term. Thereafter all appointments, whether to regular terms or vacancies, are filled by the Governor (as is more particularly demonstrated hereinafter).

The fact that the office may be properly regarded as a state rather than a local position is not particularly, significant, as against my first conclusion hereinabove. The Legislature already discounted that consideration somewhat in giving the Ereeholders the original alternate appointive power. There is no greatly significant additional divergence therefrom in honoring the legislative direction to add thereto the power of appointment to vacancies arising during the original five-year term after creation of the post in the county.

In respect of my second conclusion — that the appointive power of the Board of Ereeholders does not survive the expiration of the initial five-year term — I point out that the act is devoid of any provision specifically giving the Ereeholders the general power to appoint to successive full terms after the expiration of the first full term. In the absence thereof the presumption should be indulged, particularly in the case of a state office such as this, that the general designation of the Governor and Senate as the normal appointive powers is applicable to appointments to all such successive full terms.

Defendant relies for a more extended power in the Ereeholders upon the language in § 1 of the 1953 amendment (Ch. 444):

* * then the said board of chosen freeholders of the county shall appoint some * *' * person to fill such office for a term of 5 years from the date of appointment and until the successor of such person is in the same manner appointed and shall have qualified. (Emphasis added.)

This does not mean that if the original term holder was appointed by the Freeholders the holder for a successive term must also be. The Legislature would not be expected to be purporting to deal generally with the subject of appointments to full terms by a passing allusion in the course of an expression describing the term of an appointee of the Board of Freeholders — particularly when the appointment is of the probably rare category of contingency upon initial gubernatorial default of appointment. The contrary argument by the defendant aptly deserves the characterization of calling for a totally unreasonable construction, contrary to the general scheme of the act as a whole.

Moreover, the most that could literally he derived from the language relied upon is that the Freeholders would have the appointment of the second full term (and only that), and only where there was a preceding vacancy in the first term to fill which the Freeholders had made an appointment. But I do not accept even that construction as sound.

Once it is accepted that the Freeholders take nothing in support of their argument for total erasure of gubernatorial power after initial default of appointment from the italicized statuiory language discussed next hereinabove, the remaining basis for their purported argument to that effect collapses. That basis is the contention that the statutory language in relation to vacancies gives permanent appointive power to the Freeholders as to any vacancy arising at any time. In the first place, the language would literally support only a power to fill vacancies in later terms, not to make appointments to full terms — itself a most anomalous result.

But beyond that, it is entirely clear to me that in saying that any vacancy "shall be filled in the same manner as the original appointment to such office was made” the Legislature meant by “original appointment” the appointment for that full five-year term in respect of which the particular vacancy arose. Thus, as indicated in Conclusion 1, above, where the first five-year term was in fact filled by the Freeholders a vacancy in that term is to be filled by the Freeholders. But in relation to subsequent five-year terms, all of which, as is above demonstrated, must be filled by the Governor, vacancies in the course of such terms are to be filled by the Governor as the maker of the “original appointments” to such terms.

I would reverse and hold the Board of Freeholders entitled to fill the vacancy here immediately involved.


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

text:
    A-1993-68
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH WILLIAMS, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 22, 1970
    Decided April 12, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Stanley R. Bright, assigned counsel, argued the cause for appellant.

      Mr. B. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. David 8. Baime, Assistant Prosecutor, of counsel; Mr. Anthony J. Fusco, Jr., legal assistant, on the brief).
   The opinion of the court was delivered by

Mintz, J. A. D.

Defendant appeals from a judgment of conviction after a jury trial for unlawful possession of heroin. On this appeal he argues that the trial court erred in denying his motion to suppress the bags of heroin found in his motor vehicle, which he claims were seized in violation of his rights under the Fourth Amendment of the Constitution of the United States.

The facts surrounding the search and seizure are not seriously disputed. As the result of complaints received by the police of “narcotics activity” in the area of Orange and Nesbitt Streets in the City of Newark, that City’s narcotics squad conducted a surveillance of the area commencing about 11:00 p.m. on August 20, 1968. The police testified that at about this time they observed defendant park his white Cadillac at the curb and engage in conversation with an individual who was a known narcotics offender. No other conduct was observed between these individuals. Defendant then drove away and left the area. Approximately 1 y¿ to hours later, he returned to the area in the same motor vehicle, this time accompanied by two females. The known narcotics user with whom he had been seen conversing earlier was no longer present. As soon as defendant parked his automobile, a police car pulled up and parked behind him. A police officer and two detectives got out of the police ear and approached defendant who was seated in his automobile.

The police officer testified that he “possibly” intended to ask defendant for his automobile registration, which he had a right to do. N. J. S. A. 39:3-29. However, before he had a chance to do so, he observed defendant look toward him as he approached the car, and make a downward furtive motion, throwing a pink package to the floor of the car. One of the detectives reached into the automobile and retrieved the pink package which contained 114 decks of heroin (seven stacks).

We find that the motion to suppress was properly-denied. Initially, we observe that one of the well-established exceptions to the general requirement that a search warrant is necessary is when the attendant circumstances are exigent or emergent. State v. Dennis, 113 N. J. Super. 292, 297 (App. Div. 1971). Clearly such circumstances here existed.

We conclude that probable cause justified the instant search. Probable cause has been defined as a reasonable basis for a belief that a crime has been or is being committed. State v. Contursi, 44 N. J. 422, 429 (1965). As observed in State v. Kasabucki, 52 N. J. 110:

Probable cause is a flexible, nontechnical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens’ constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other (at 116).

The use or sale of illegal drugs, which has reached alarming proportions, is carried on “cautiously and furtively and in as many different ways and by as many conceivable methods as human ingenuity can devise in order to escape detection and criminal consequences * * See State v. Romeo, 43 N. J. 188, 207 (1964). In this framework the total circumstances are to be assessed. State v. Contursi, supra, 44 N. J. at 431.

In appraising the factual situation we are mindful that a police officer is not a constitutional lawyer. When assessing the quality of his conduct, “the common and specialized experience and work-a-day knowledge of policemen must be taken into account” and the entire transaction considered “in a common-sense and realistic fashion.” State v. Contursi, supra, 44 N. J. at 431; State v. Dennis, 113 N. J. Super. 292 (App. Div. 1971).

In the instant situation the police officer observed the earlier conversation between defendant and a known narcotics offender, in an area known for narcotics activity. Later he observed defendant’s return to the scene where defendant parked. Especially significant was the downward, furtive dropping of the pink “package” or “object” to the floor of the car as the officer approached. Under the total circumstances there was probable cause to justify the retrieving of the pink “package” or “object.”

Although the police officer on cross-examination stated that he had seen pink tissue in supermarkets similar to that removed from defendant’s vehicle, this does not indicate a lack of probable cause. The fact that pink tissue is common does not mean that it cannot be used to “package” illegal drugs and, when appearing in this form together will all the other factors previously alluded to, give rise to probable cause.

The judgment of conviction is affirmed.

Matthews, J. A. D.

(dissenting). It is apparent that the 114 bags of heroin have obstructed the view that my brothers have of the facts of this case. The trial judge was just as myopic. Hindsight, however, is not relevant to the provisions of the Eourth Amendment to the Constitution of the United States under any construction, strict or otherwise.

I accept the facts as stated by the majority, except to observe that there was no “pink package.” The object of the seizure was described generally by the officers as a “pink object” and specifically:

Q — And what exactly did you see?

A — A pink object fall to the floor board of the car.

Q — He didn’t try and throw it out the window, did he?

A — No, sir.

Q — How big was this pink object?

A — As big as a paper or a tissue would be crumpled up with seven stacks of glassine envelopes in it.

Q — Was this paper, this pink paper crumpled up?

A — Yes, sir.

Q — It was like a napkin, wasn’t it?

A — Tissue, yeah.

Q — Tissue. Was it a napkin, or was it a tissue like you use to blow your nose, or was it like a napkin that you use when you wipe your face after you eat?

A — A tissue.

Q — Like you use to blow your nose?

A — Yes. Some people use napkins too.

Nothing confronting the officers, as they approached defendant’s car, gave rise to an “emergent” or “exigent” situation. There was no apparent threat to the safety of anyone, unless, of course, the officers feared that germs might he spread because of the discarded tissue. Compare: State v. Dennis, 113 N. J. Super. 292 (App. Div. 1971).

While I am fully cognizant of the so-called “dropsy” rule which holds that objects falling in plain view of a police officer (who has a right to be in a position to have that view) are subject to lawful seizure, see State v. Di Rienzo, 53 N. J. 360 (1959), I cannot accept that the rule dispenses with the constitutional mandate that a police officer can enter the vehicle of a private citizen only upon probable cause. That no probable cause (to believe that the pink tissue was or contained contraband) existed here is borne out by a rather amusing colloquy which took place at the hearing on the motion to suppress. Sergeant Bimbo, the police officer at the scene, was being interrogated by the Assistant Prosecutor as to his familiarity, and, I suppose, expertise, with pink tissues:

Q — Have you ever seen a pink tissue like the one you saw at 12:45 this evening before?

A — Yes, sir.

Q — Where?

ME. PACKS: Where what? I object, what is the purpose of this?

Q — Where have you seen it, or one like it?

ME. SACHS: I object to the question.

THE COURT: I will permit it.

A — The pink tissue?

Q — Yes.

A — Supermarkets.

Probable cause is said to exist when the facts and circumstances within the knowledge of the police are sufficient to warrant a man of reasonable caution to believe that an offense has been or is being committed. See e. g., Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1924); Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); State v. Burnett, 42 N. J. 377 (1964). The crucial distinction that must be made is between “probable cause” and “mere suspicion”; the latter is never sufficient to justify an intrusion into the privacy of a defendant — be it his home or his automobile. Cf. Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Whitely v. Warden, Wyoming State Penitentiary, 401 U. S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). Under the circumstances presented in this case, there was no activity of the defendant at the time that he discarded the pink tissue inside of his automobile which could possibly have given the investigating officers probable cause to believe that a crime was being committed. There is nothing in the record to show that defendant had ever been associated with narcotics offenses prior to this arrest. In short, the record plainly shows that the police “suspected” that defendant may have been engaging in narcotics traffic and decided to “shake him down.” The results may have been gratifying from the police standpoint — however, they violated defendant’s rights guaranteed to him under the Fourth Amendment.

I would reverse.