text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. NAPOLEON WILLIAMS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued March 10, 1975
    Decided April 23, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Gary H. Schlyen, Assistant Prosecutor, argued the cause for the appellant (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).

      Mr. Morris Novick argued the cause for the respondent.
   Per Curiam.

The State appeals from a grant of post-conviction relief.

On March 23, 1964 defendant pleaded guilty to an indictment charging him with maintaining a gambling resort. N. J. S. A. 2A:112-3. On May 29, 1964 he was sentenced thereon to the State Prison for a term of one to two years. Execution of the sentence was suspended and he was placed on probation lor three years and required to pay a fine of $2,500. The sentence was amended on June 19, 1964 to permit defendant to pay the fine in weekly installments of $20. On July 15, 1966 a charge against him for violation of probation was dismissed and probation was continued until May 29, 1969. N. J. S. A. 2A:168-4.

On March 21, 1973 defendant pleaded guilty to a charge that he violated probation in that he (1) failed to report to the probation officer on September 23, 1966 and subsequent, dates; (2) failed to keep the probation officer advised as to his whereabouts and activities, and (3) failed to make adequate payments on the fine. He was sentenced to the State Prison for a term of one to two years. The balance of the fine previously imposed upon him ($1,408) was remitted. After his release on parole he filed a petition for post-conviction relief. At the hearing on the petition he contended that the court had no authority to revoke probation and sentence him (on March 21, 1973) to imprisonment. The basis of his claim was that at the time the five-year period of probation had expired and could not be extended since he did not “abscond while under supervision” within the meaning of that term as used in N. J. S. A. 2A:168-1.

In regard to the violation of probation proceedings, no claim is made that the due process requirements of Gagnon v. Scarpelli, 411 U. S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (May 14, 1973). were not fulfilled. The single issue here is whether at the time of revocation and imposition of the custodial sentence the trial court had jurisdiction over the defendant as a probationer.

The facts in the case are not in dispute. On September 23, 1966, with more than one-half of the five-year term of probation still remaining, defendant discontinued reporting to his probation officer and failed to keep his probation officer advised as to his whereabouts and activities. Although he was aware of his reporting obligations while on probation, he never informed his probation officer of three changes in residence and one change in employment. In 1966 he changed his residence in the City of Passaic. In 1969 or 1970 he moved to Newark. In 1972 he moved to a new address in the City of Passaic. In 1970 he changed his employment from Wyckoff Cleaners in Wyckoff to Colonial Cleaners in Paterson. Although he knew of his obligation to continue the installment payments on account of the fine imposed upon him, the last payment he made was on February 23, 1967, in the amount of $10, leaving an unpaid balance of $1,408.

On February 27, 1973 a representative of the Passaic County Probation Department noticed defendant’s name on a Passaic County trial list indicating that he was scheduled for trial on another criminal charge. He was then charged with violation of probation. When he pleaded guilty to the charge of violation of probation on March 21, 1973, he informed the court, through his attorney, that

* * * he was concerned with Ms safety and Ms life because he had testified against four defendants, and he began to move from one residence to another, although he remained in northern New Jersey, Newark and Passaic and this area, immediate area, and because of that fear he stopped reporting to the Probation Ofiice * * * *

At the conclusion of the hearing on the petition for post-conviction relief, the trial judge found that there was "no evidence from which the Court could conclude that the defendant had made any conscious effort to avoid legal process”; that "there was no effort made by the Probation Department to seek to ascertain his whereabouts and there was absolutely no evidence adduced that he was attempting to conceal himself or that he made some conscious effort to absent himself and to defeat the service of process,” and that “under the statute, there was no proof that petitioner had absconded.” The judge thereupon reversed the judgment imposing the custodial sentence; and ordered the entry of a judgment of “not guilty of violation of probation,” holding that the court, on March 21, 1973, had “lost jurisdiction of the probationer.”

The pertinent provision of N. J. S. A. 2A :168-1 reads as follows:

If any person placed on probation shall abscond while under supervision, the time during which he remains away or hidden shall not be counted as part of his term of probation.

The statute is clear. For the purpose of tolling the running of the term of probation, the phrase “remains away or hidden” is equated with the phrase “asbcond while under supervision.”

From defendant’s plea of guilty to the charge of violation of probation, and from his and his attorney’s explanation as to why he failed to comply with the conditions of probation, we are entirely satisfied that he did “abscond while under supervision” within the meaning of that phrase as set forth in N. J. S. A. 2A:168 — 1. He voluntarily remained away, absented himself, from the required supervision by the probation authority. He voluntarily remained hidden thereby avoiding such supervision. Accordingly, the time during which he remained away or hidden is to be tacked on to the term of probation imposed by the court. The court had not, on March 31, 1973, lo.st jurisdiction of the probationer. Under our interpretation of the above-quoted pertinent statutory provision, the term of probation at the time had more than 3;^ years to run.

The requirement that the probationer report periodically to the probation officer and the requirement that he keep the probation officer informed of his place of residence are designed for the benefit of the probationer in promoting a voluntary, successful plan of rehabilitation. See State v. Moretti, 50 N. J. Super. 223, 231-232 (App. Div. 1958). While a little investigatory work on the part of the probation department would probably have uncovered earlier the whereabouts of defendant, the absence of such investigation provides no sound basis for crediting defendant with time served under supervision where he has admittedly breached his obligation to report and so failed to obtain the benefits of probation supervision. Cf. Brandt v. Percich, 507 S. W. 2d 951, 957 (Mo. App. 1974).

The judgment of the Passaic County Court of June 19, 1974, reversing the judgment therein of March 31, 1973 and ordering the entry of a judgment of “not guilty of violation of probation," is reversed, and the judgment of March 31, 1973 is reinstated.

      To “abscond” is defined as, among other things, to “withdraw, flee”; “to depart secretly: withdraw and hide oneself”; “to evade the legal process of a court by hiding within or secretly leaving its jurisdiction”, Webster’s Third New International Dictionary (unabridged 1965), and also “To hide, conceal, or absent oneself clandestinely, with the intent to avoid legal process.” Black’s Law Dictionary (4th ed., 1951).


source: Caselaw Access Project

author: Greenberg, J. S. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, v. CHARLES L. MAKWINSKI, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 15, 1975.

      Mr. Thomas J. Kapsak, Assistant Prosecutor, for the State. (Mr. C. Judson Hamlin, Prosecutor of Middlesex County, attorney).

      Mr. Benedict W. Harrington for defendant.
   Greenberg, J. S. C.

The matter comes on a motion to merge two counts of a criminal verdict of guilty and to arrest the merged conviction. R. 3:21 — 9.

' ' Defendant Charles L. Makwinski was, at all times material, chief of police of the Borough of Carteret. The Middlesex County grand jury returned a three-count indictment against him arising from his direction to a Carteret policeman to do repair work at a private club in Carteret during working hours. The first count charged a conspiracy with the policeman, an unindicted co-conspirator, to provide these services, contrary to N. J. S. A. 2A:98-1 and N. J. S. A. 2A: 98-2. The second count accused defendant of the substantive crime of obtaining the services, allegedly a thing of value, as proscribed by N. J. S. A. 2A:135-3. The third count charged defendant with misconduct in office (N. J. S. A. 2A:85-1) in failing to refrain from using the policeman for the work at the club. Defendant was found not guilty of the first count but was found guilty of violation of the second and third counts. He now moves to merge the convictions into the second count and to arrest the merged verdict. He reasons that the convictions are based on the same operative facts and thus should merge and that the services of an employee are not a “thing of value” within N. J. S. A. 2A :135-3.

N. J. S. A. 2A:135-3 provides as follows:

Any person holding a public office, position or employment of this State or of a county, municipality, or school district, who willfully and knowingly obtains, or counsels, aids, assists, or procures in obtaining for any other person from the State, or from any such county, municipality, or school district, any money, notes, bonds, scrip, securities or other thing of value not lawfully and justly due to such person holding a public office, position or employment of this State or of a county, municipality, or school district or such other person at the time of obtaining the same, is guilty of a high misdemeanor.

The section is striking in its specific enumeration of five categories of intangible personal property: money, notes, bonds, scrip and securities, all being of no intrinsic value but rather being evidences of value or indebtedness and thus differing from tangible personal property or services. The specific enumeration is then followed by the broad words “other thing of value” which, standing alone, could include services or tangible personal property. But the listing by the Legislature of the five items of intangible personal property indicates intent to deal with the financial affairs of the public agency rather than its general assets. This intent is further manifested by the use of the words “not lawfully and justly due” following “other thing of value.” The implication is that the item involved might be spoken of as in fact being “justly due” either to the public officer or employee or the other person. While services or tangible personal property might be thought to be “justly due,” such language is more appropriate in a financial setting as they are connotative of an obligation. Thus the general words “thing of value” appear to be inclusive only of things of the same class or character of the specific items and not inclusive of services. See Transcontinental Gas Pipe Line Corp. v. Dept. of Conservation and Economic Development, 43 N. J. 135 (1964); Denbo v. Moorestown Tp., 23 N. J. 476 (1957); Ford Motor Co. v. N. J. Dept. of Labor and Industry, 5 N. J. 494 (1950).

This conclusion is buttressed by the further consideration that the term “thing of value” if broad enough to encompass services, would also include the five items specifically set forth, so that their particular enumeration is not necessary. The court, of course, should construe the statute to avoid rendering any portion of it superfluous. Foy v. Dayko, 82 N. J. Super. 8 (App. Div. 1964), certif. den. 41 N. J. 602 (1964); General Roofing Co. v. Belmar, 77 N. J. Super. 469 (App. Div. 1962); Quinn v. Quinn, 118 N. J. Super. 413 (Ch. Div. 1972). It must also be noted that since N. J. S. A. 2A:135-3 is a criminal statute it should be strictly construed, although with common sense consonant with the legislative objectives. State v. N. J., 125 N. J. Super. 566 (App. Div. 1973). It thus follows that as a matter of internal interpretation and traditional construction devices N. J. S. A. 2A:135-3 does not include within its proscriptions services of a municipal employee, since they are not within the class or character of items intended to be included within the term “thing of value” — intangible personal property.

A contrary interpretation would lead to a result of remarkable and discordant harshness. N. J. S. A. 2A:135-3 places no minimum worth on a “thing of value.” Consequently, if an item of tangible personal property of nominal cost were unlawfully taken the public officer or employee would be guilty of a high misdemeanor, for if a thing of value includes services certainly it includes tangible personal property. Yet the Legislature has provided that larceny of an item of value of $200 or less is ordinarily disorderly conduct and larceny of an item of value of between $200 and $500 is a misdemeanor. N. J. S. A. 2A :170-30.1; N. J. S. 2A:119-2. Such a disparity of treatment of a petty larceny on the basis of the employment of the defendant and nature of the victim is startling. The court, therefore, in seeking a common sense construction of N. J. S. A. 2A:135-3 views that section as being addressed to a particular evil subject to reasonable delineation, defalcations in the financial affairs of the public agency. The Legislature must have conceived that special penalties were appropriate for officers or employees in such matters so directly related to the public treasury. Thus the verdict of guilty on the second count of the indictment is arrested and that count dismissed.

Defendant further argues that the conviction under the third count for misconduct in office, being a misdemeanor, must be merged into the conviction under the second count, a high misdemeanor and thus the greater offense, and that count being dismissed, the prosecution fails in its entirety. Implicit is the extraordinary premise that defendant gain an advantage by the fortuitous coupling of an otherwise valid verdict with its arrested mate. But the law is not so capricious. The court will not view a merger in these circumstances as occurring as a matter of law upon the return of the verdict. Rather the matter should be viewed realistically. A merger will be declared only of valid convictions and is not, at least in the context of this case, self-executing. Thus, while undoubtedly the convictions would have merged if valid, as the identical evidence proved both counts, there is no merger here. See State v. Bono, 128 N. J. Super. 254 (App. Div. 1974); State v. Hill, 44 N. J. Super. 110 (App. Div. 1957). Therefore the verdict is sustained on the third count.

      Of course, when the Revised Statutes were adopted larceny was dealt with criminally as either a misdemeanor or high misdemeanor, and not as disorderly conduct, the dividing line being $20. R. S. 2:145-2.


author: Larner, A. J. S. C.

text:
    ALBERTO CIRELLI, PLAINTIFF, v. THE OHIO CASUALTY INSURANCE CO., AND RICHARD C. McDONOUGH, NEW JERSEY COMMISSIONER OF INSURANCE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 7, 1975.

      Mr. Charles F. Krause, III, for plaintiff (Messrs. Riemeinschneider, Krause & Vion, attorneys).

      Mr. Elliott Abrutyn for defendant Ohio Casualty Insurance Co., (Messrs. Morgan, Melhuish, Monaghan, McCoid & Spielvogel, attorneys).

      Ms. Maureen McGrath for defendant Richard C. McDonough, New Jersey Commissioner of Insurance (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Larner, A. J. S. C.

Alberto Cirelli instituted this action seeking a declaratory judgment relating to the nature and extent of the liability of defendant Ohio Casualty Insurance Co. (hereinafter Ohio) under an insurance policy covering the automobile owned by him. The issues were submitted to the court on a stipulation which incorporates the following operative facts.

Alberto Cirelli, the assured under the policy, sustained severe personal injuries while he was a passenger in the insured vehicle operated by his son. He subsequently died as a result of the injuries, and the executrix of his estate was substituted as plaintiff. The accident took place on March 1, 1974 in Clarkestown, New York, as a result of a collision with a vehicle owned by Mary Natelli and operated by Thomas Natelli.

The policy of insurance provided for liability coverage with limits of $15,000/$30,000 and also contained the “Basic Personal Injury Protection Endorsement” (hereinafter P. I. P.) required under the New Jersey Automobile Reparation Reform Act (N. J. S. A. 39:6A-1 et seq., hereinafter referred to as the No Fault Law).

Decedent and his son were residents of New Jersey, the insured vehicle was registered in New Jersey, and the policy was written in New Jersey. The accident took place in New York with' a New York vehicle owned and operated by New York residents.

The New York vehicle of Natelli is insured by Boston Old Colony Insurance Company (hereinafter Boston) under a policy which also contains a personal injury protection endorsement required by the State of New York.

Plaintiff intends to institute an action against Natelli for decedent’s pain and suffering during his lifetime and for wrongful death.

The initial issue is whether plaintiff is entitled to recover all medical expenses (approximating $120,000) incurred by decedent under the P. I. P. endorsement of the Ohio policy, or whether the recovery is limited to $50,000 which is the P. I. P. limitation under New York law and the endorsement provision of the Boston policy covering the Natelli vehicle.

The additional issue raised hy plaintiff seeks a declaration as to the validity and extent of enforceability of a provision in the P. I. P. endorsement which impresses a lien upon any recovery from a tortfeasor to the extent of moneys paid to the assured.

I

The Ohio policy, in accord with the New Jersey No Fault Law (N. J. S. A. 39:6A-4) affords unlimited coverage to the assured for medical expenses without any caveat respecting the place of accident. This unlimited coverage represents a deliberate legislative policy which is implemented by the clear language of the insurance contract.

The carrier contends that the circumstances of the occurrence of the accident in New York brings into play a conflict of laws problem which dictates that a $50,000 P. I. P. limit under the New York no fault law should control. This contention is wholly without merit.

The insurance company is bound by the terms of its policy —terms which are enforceable against it regardless of the locus of the accident. The interposition of an issue of conflict of laws is misplaced and has no relevancy to the contractual responsibility of defendant.

It is manifest that the coverage limitation provisions of insurance statutes or regulations are but minimum requirements and that there is no legislative prohibition against an insurance company writing a policy with limits which exceed the statutory mínimums. Hence, the mere limitation contained in the New York statute (even assuming its application herein) could not relieve defendant from the consequences of its solemn agreement to provide unlimited coverage for medical expenses.

II

The P. I. P. endorsement of the policy contains the following provision:

5. Reimbursement and Trust Agreement. Subject to any applicable limitations set forth in the New Jersey Automobile Reparation Reform Act, in the event of any payment to any person under this endorsement:
(a) the Company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made; and the Company shall have a lien to the extent of such payment notice of which may be given to the person or organization causing such bodily injury, his agent, his insurer or a court having jurisdiction in the matter.
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of such bodily injury, * * *.

By virtue of this policy provision Ohio asserts that if it is obligated to pay all the medical expenses it has a right to be reimbursed to the full extent of its payment out of any recovery plaintiff may obtain from the tortfeasor or his insurance carrier. Plaintiff and the Attorney General, on the other hand, contend that the enforcement of this reimbursement agreement is in contravention of the scheme and policy of the New Jersey Ho Eault Law and is therefore invalid.

Under this statute the Legislature granted to an insurance carrier which paid P. I. P. benefits a right of subrogation which is circumscribed in two respects: (1) subrogation can only be pursued by intercompany arbitration against the insurer of the tortfeasor, and (2) the right of subrogation is inoperative in connection with a claim arising after January 1, 1975. N. J. S. A. 39:6A-9. Although Ohio’s statutory right of subrogation is preserved because the cause of action accrued prior to January 1, 1975, is the policy provision granting full reimbursement to the company enforceable so as to reduce the recovery potential of the assured against the tortfeasor?

U is clear that the statutory pattern of the Ho Eault Law does not contemplate a subrogative right’ for P. I. P. benefits through the normal channels of court processes or through the imposition of a lien or reimbursement obligation which would affect the assured’s tort recovery. The normal right of subrogation, whether equitable or contractual, is a concept which is foreign to the underlying purpose of the Ho Eault Law unless the tortfeasor has failed to obtain the coverage required by the act.

In fact, the termination of subrogation rights through intercompany arbitration two years after the effective date of the statute reflects the legislative intent to eliminate subrogation as a continuing remedy, with the interim provision inserted for rate-making purposes only. See discussion in Iavicoli, No Fault and Comparative Negligence in New Jersey, at 115 et seq. (1973).

The rationale of the act involves a plan by which each insurance carrier undertakes the payment of P. I. P. benefits to its assured regardless of fault and, as of January 1, 1975, without the cumbersome and uneconomic shifting of dollars from one insurance company to another through the means of subrogation. Hence, the pre-existing right of subrogation against a tortfeasor was totally eliminated and there was provided the two-year interim remedy limited to intercompany arbitration.

Running parallel with the projected termination of subrogation rights of the paying carrier is the caveat that the assured cannot opt for double recovery since evidence of the damage items included in P. I. P. payments is not admissible in the action brought by the assured against the tortfeasor. N. J. S. A. 39:6A-12.

As a consequence, plaintiff’s right of recovery under the survival action will be limited to the pain, suffering and disability of the decedent for the period of survival. Plaintiff’s attorney properly conceded at oral argument that his client would not be entitled to double recovery for the medical expenses in an action against the tortfeasor. However, he urges that any recovery for pain and suffering should not be subject to diminution by repayment of the P. I. P. benefits to Ohio in part or in whole by virtue of the reimbursement provision in the policy.

It may be that the introductory paragraph of the Reimbursement agreement contains a contractual understanding by Ohio that the right of reimbursement is subject and subordinate to the provisions of the No Fault Law. It provides: “Subject to any applicable limitations set forth in the New Jersey Automobile Reform Act, in the event of any payment to any person under this endorsement.”

Although this is couched in ambiguous terms characteristic of many insurance clauses, appropriate resolution against the scrivener under well settled law would be sufficient in itself to conclude that the reimbursement agreement has very limited application and creates no rights in the company beyond those granted in the statute. See Bryan Const. v. Employers, 60 N. J. 375 (1972); Kievit v. Loyal Protect. Life Ins. Co., 34 N. J. 475, 482; Mazilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1 (1961).

Nevertheless, even if the agreement is construed in its literal terms without giving weight to this introductory clause, it is unenforceable because it is repugnant to the provisions and intent of the very statute which established the right to P. I. P. benefits. Saffore v. Atlantic Cas. Ins. Co., 21 N. J. 300 (1956). The statutory pattern and policy dictates that the assured’s recovery for pain and suffering should not be invaded by any subrogative claim of the carrier paying P. I. P. benefits.

In the ultimate, this conclusion may or may not reduce the right of Ohio to recoup its P. I. P. payments in full from the tortfeasor’s insurance carrier. This depends upon the view of another tribunal, either in this jurisdiction or in the State of New York, as to the extent of liability of Boston in view of its New York P. I. P. endorsement limit of $50,000, and whether New Jersey or New York law should apply as to the limits of liability on the New York insurance contract, and whether it is enforceable by litigation or by arbitration. Undoubted^, there are many unresolved problems relating to the potential rights of Ohio against the tortfeasor and his insurance carrier.

However, these problems cannot be determined in this litigation. And, in fact, they are problems which are irrelevant to the declaration of the rights of the plaintiff vis-á-vis Ohio. Whether Ohio may or may not recoup the payments which are due to plaintiff is but a factor characteristic of any subrogation claim, depending upon the liability of the tortfeasor, the limits of his insurance and his financial stability. Regardless of these difficulties facing Ohio, they do not and cannot affect or influence the extent of recovery to which plaintiff is entitled. The No Fault Law under which the P. I. P. payments were made does not guarantee to the company an absolute right to reimbursement of moneys paid to the assured; it only grants to it a circumscribed right to assert a claim against a tortfeasor’s carrier through inter-company arbitration. This is a far cry from the creation of a lien on the cause of action which may result in a dimunition of the tort recovery by the assured.

Plaintiff is therefore entitled to pursue her tort claim without being subjected to any claim by Ohio by way of lien, reimbursement or subrogation to any portion of the recovery. This determination, however, is subject to one caveat. In the event that plaintiff, because of the institution of suit in another jurisdiction whose statute does not preclude evidence of medical expenses, succeeds in recovering all or part of the medical expenses paid by Ohio, equitable principles dictate that such recovery be reimbursed to Ohio. In this manner, the avoidance of double recovery inhibited by the New Jersey No Vault Law will be carried out.

Ill

Without attacking the constitutionality of the No Vault Law in its entirety, Ohio urges that if the No Vault Law is interpreted to compel payment of unlimited medical expenses without guaranteeing it the right to recover the same by way of subrogation and reimbursement, it is being deprived of property wtihout due process of law in violation of the federal constitution.

Although it is difficult to fathom the constitutional argument advanced, it appears that Ohio feels aggrieved because the statute and its interpretation by the court deprives it of a right which existed prior to the adoption of the statute, and that the ultimate result is “unreasonable” or “inequitable.”

It is sufficient to observe in this connection that “no person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit.” New York Central R. R. v. White, 243 U. S. 188, 198, 37 S. Ct. 247, 250, 61 L. Ed. 667 (1916). See also Pinnick v. Cleary, 360 Mass. 1, 271 N. E. 2d 592 (Mass. Sup. Jud. Ct. 1971), and Manzanares v. Bell, 214 Kan. 589, 522 P. 2d 1291 (Kans. Sup. Ct. 1974), as to constitutionality of no fault laws.

The argument that the subrogation provisions of the No Fault Law of this State, as applied to the fact situation herein, represents an unconstitutional deprivation of property without due process of law is untenable.

Judgment will be entered declaring that Ohio is obligated to pay to plaintiff all reasonable medical expenses as defined in the statute, without limitation as to amount. Ohio does not have a lien for reimbursement of any part of said payment for medical expenses out of plaintiff’s tort recovery for pain, suffering or disability of decedent. In the event, however, that plaintiff recovers any sum from the tortfeasor or his insurance carrier which represents incurred medical expenses, she is obligated to reimburse Ohio to the extent of said recovery.

      lf, perchance the choice of law were a relevant issue in this case, the result would also be contrary to the contention of defendant. The case of Buzzone v. Hartford Accident and Indemnity Co., 23 N. J. 447 (1957), is directly on point. Where the applicable law involves the insurance policy and the statutory impact thereon rather than the rights and liabilities flowing from the tort itself, the controlling law is that of the state where the contract was made, except for other considerations which are not present herein. Hence, New Jersey and not New York law would apply and Ohio would nonetheless be liable for all the medical expenses incurred by the assured.


author: Botter, J. A. D.

text:
    EDWARD D. LORD, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. MUNICIPAL UTILITIES AUTHORITY OF THE TOWNSHIP OF LOWER, CAPE MAY COUNTY, AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 15, 1975
    Decided April 29, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Lee M. Hymerling argued the cause for appellant (Messrs. Archer, Greiner & Read, attorneys).

      Mr. William M. Balliette, Jr. argued the cause for respondent Municipal .Utilities Authority of the Township of Lower, Cape May County (Messrs. Cafiero & Balliette, attorneys).

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

Botter, J. A. D.

This is a unique case in which plaintiff Edward D. Lord, Inc. (Lord) sues to recover the full amount of a contract made with defendant Municipal Utilities Authority of the Township of Lower (M. U. A.) for the construction of a sewerage treatment plant. Defendant counterclaimed for a relatively small amount representing an alleged overpayment made to plaintiff. Damages were stipulated, depending upon the resolution of the liability issue. From a judgment in favor of defendant plaintiff has taken this appeal. Although we concur in the result reached by the trial judge and in much of his reasoning (128 N. J. Super. 43), we will set forth briefly our own rationale in affirming the judgment.

The essential facts are set forth in detail in the trial court’s opinion. A synopsis may be composed based largely on plaintiff’s own assertions. Two general contractors, Lord and Edward Ellis, Inc., submitted competitive bids. Each had received quotations for the electrical work from proposed subcontractors, Audubon Electric and Anchor Electric (the successor of Martin Electric Company). Audubon and Anchor had secretly agreed to "cross” excessive estimates, so that one quoted $312,000 to Lord and $318,400 to Ellis and the other quoted $318,400 to Lord and $312,000 to Ellis. Thus, both Lord and Ellis were able to compute their total bids in reliance upon an identical low estimate of $312,000, received from Audubon in one case and from Anchor in another.

As the low bidder on the project, Lord was awarded the general contract. Lord, in turn, gave the electrical subcontract to Audubon at a reduced negotiated price. (Although Lord had received the lower estimate from Anchor, Lord decided against Anchor since it had just come out of bankruptcy and Lord’s bonding company recommended against dealing with its principal officer.)

Shortly after being awarded the contract Walter Smith, who owned and operated Audubon, was killed in an airplane crash. Thereafter Audubon came under the control of individuals who were formerly connected with Anchor, and Audubon could not furnish a performance bond. Lord rebid the electrical work and obtained substantially lower bids. This led to the discovery of the Audubon and Anchor complicity of which Lord was completely innocent. Lord had previously furnished to M. U. A. a breakdown of estimated costs for the various portions of the work, including the electrical work, which were included in its lump sum bid, so that M. U. A.’s engineers could approve periodic payments. This breakdown allocated $294,600 to the electrical work. After rebidding the electrical work Lord advised the engineers pf the new contract price and of the discovery of the collusive bidding tactics of Audubon and Anchor. The new contract price for the electrical work was approximately $113,000 less than the estimate upon which Lord’s bid to the Authority was based.

A public agency cannot change the contract price simply because the successful bidder can obtain materials or services from subcontractors at a lower cost than initially estimated. The bidder assumes the risk of an increase in costs and is entitled to the benefits of any decrease he can obtain.

In this rare case, however, a more flexible approach seems warranted, even though Lord was innocent of the fraud committed by the subcontractors who furnished the collusive estimates. The bidding statutes are designed to protect the public through fair and open competitive bidding, and to protect bidders as well. See Arthur Venneri Co. v. Paterson Housing Auth., 29 N. J. 392, 403 (1959). Here, however, the purpose of the law was undermined by two subcontractors upon whom the competing bidders relied. In this situation only the public was exposed to a loss. Neither bidder was exposed to risk of loss, nor was the disparity between the bids affected by the estimated cost of the electrical component. The only question is whether reformation of the contract can be invoked as a judicial remedy, as requested by defendant, to prevent injury to the public. In this instance we believe the ancient remedy of reformation may be employed to rectify the error resulting from a mutual mistake of a material fact on which both parties relied in determining the price of the contract award. It makes no difference that the mistake was brought about by the fraud of other parties. Both parties to this contract, Lord and the M.TI.A., assumed, as the law intended, that the bididng was fair and not “rigged.” The price that was agreed upon was believed by both parties to reflect this essential premise. But this was not the case. The bids of both competitors for the general construction contract were artificially inflated by the collusive conduct of the two electrical contractors whom they consulted. The result was an injury to M.TI.A. and the public. Denial of relief would yield a benefit to plaintiff beyond the contemplation of the parties in the formation of the contract.

This circumstance would have justified rejection of bids or rescission of the contract, had the fraud been discovered before the work commenced and before the parties had changed positions. Cf. Armaniaco v. Cresskill, 62 N. J. Super. 476, 484 (App. Div. 1960). As noted in Hillside Tp. v. Sternin, 25 N. J. 317 (1957):

The purpose [of public bidding laws] is to secure competition and to guard against favoritism, improvidence, extravagance and corruption. Statutes directed toward these ends are for the benefit of the taxpayers and not the bidders; they should be construed with sole reference to the public good * * *. [at 322]

Reformation of a contract will be granted to rectify a mutual mistake. Dover Farms, Inc. v. American Air Lines, Inc., 111 N. J. Super. 276 (App. Div. 1970), certif. den. 57 N. J. 140 (1970); Brodzinsky v. Pulek, 15 N. J. Super. 40, 47-48 (App. Div. 1962), certif. den. 38 N. J. 304 (1962); cf. Heake v. Atlantic Cas. Ins. Co., 15 N. J. 475, 481 (1954). The problem normally arises when the agreement fails to specify correctly the terms that the parties agreed upon, such as where a deed absolute on its face was actually intended as a mortgage. See Brodzinsky v. Pulek, supra. But the principle of granting relief from a mutual mistake should be applied in this ease as well to implement the legislative policy which envelopes these contracts.

Under public bidding laws a contractor may, in appropriate circumstances be relieved of his undertaking even for a unilateral mistake, if it is of a serious nature. Cataldo Construction Co. v. Essex Cty., 110 N. J. Super. 414 (Ch. Div. 1970); Conduit & Foundation Corp. v. Atlantic City, 2 N. J. Super. 433 (Ch. Div. 1949); see Annotation, “Rights and remedies of bidder for public contract who has not entered into a contract, where bid was based on his own mistake of fact or that of his employees,” 52 A. L. R. 2d 792 (1957); cf. Edelstein v. Asbury Park, 51 N. J. Super. 368, 389-392 (App. Div. 1958). It is not in the public interest to hold a bidder to a contract which would compel performance at a substantial loss due to a serious error in his bid proposal. Here, as well, where the injury would fall on the public and may be remedied without loss to the contractor, equitable relief in the form of reformation may be invoked in favor of the public authority.

Affirmed.


author: Crane, J. A. D.

text:
    STATE OF NEW JERSEY, PETITIONER-APPELLANT, v. PATRICIA SAN VITO AND JAMES SAN VITO, RESPONDENTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted April 15, 1975
    decided April 25, 1975
    revised April 30, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Joseph C. Woodcock, Jr., Bergen County Prosecutor, attorney for appellant (Mr. Craig D. Katz, Assistant Prosecutor, on the brief).
    No brief filed on behalf of respondents.
   The opinion of the court was delivered by

Crane, J. A. D.

In 1970 defendants were arrested and charged with possession of a controlled dangerous substance, in violation of the statute then in effect, N. J. S. A. 24:18-4. Defendant James San Vito was additionally charged with maintaining a narcotics nuisance under N. J. S. A. 24:18-37. The grand jury to which the case was presented returned a vote of “no bill.”

Subsequently, pursuant to N. J. S. A. 2A:85-15 et seq., defendants filed a petition seeking the expungement of the arrest records. In accordance with N. J. S. A. 2A:85-16 the Attorney General, the prosecutor and the local chief of police were given notice of the proceedings. The Attorney General indicated by letter that he would not object if defendants would stipulate never to institute civil proceedings against the law enforcement officers involved in the case. When defendants indicated that they would not enter into such a stipulation, the Attorney General formally objected to the entry of the order of expungement, nevertheless, the trial judge granted the order, expressing his reasons therefor in an opinion published at 129 N. J. Super. 185 (Law Div. 1974). The State has appealed.

In our opinion the trial judge was in error. The statute, N. J. S. A. 2A:85-17, provides that the court may grant an order of expungement “if there is no objection from those law enforcement officers notified of the hearing, and no reason appears to the contrary * * *.” N. J. S. A. 2A:85-18 provides that:

a. If an objection is made by any law enforcement agency upon which notice was served, the court shall determine whether there are grounds for denial. If the court determines there are no grounds for denial it may grant an order directing the clerk of the court and the parties upon whom notice was served to seal their records of said arrest, including evidence of detention related thereto, and specifying those records to be'sealed.

The legislation clearly distinguishes between a situation in which no law enforcement agency objects and one in which a law enforcement agency does enter an objection. In the latter case, even though it is found that there are no grounds for the denial of the application for expungement, the court is limited to an order directing that the records of the arrest be sealed and not subject to inspection except by court order. The trial judge relied on the use of the phrase “material objection” appearing in a “Committee Statement” which accompanied the bill and a message from the Governor urging amendment of previously proposed expungement legislation. Such statements are sometimes useful in interpreting ambiguous legislative language. However, in our considered judgment, no substantial weight should be accorded to the cited statements in view of the unambiguity of the legislative language. Howard Savings Inst. v. Kielb, 38 N. J. 186, 195 (1962); Lopez v. Santiago, 125 N. J. Super. 268, 270 (App. Div. 1973). In this sensitive area of law enforcement, the clearly expressed legislative policy should not be disturbed. State v. Italiano, 132 N. J. Super. 1, 4 (App. Div. 1975). Although expungement is a more desirable result from the standpoint of the defendants, an order directing that the records be sealed carries with it a mandate that the enforcement personnel inform anyone requesting information on records of the person involved that there is no record.

The judgment is reversed. The cause is remanded for the entry of an order in accordance with this opinion and the provisions of N. J. S. A. 2A:85-18.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. NICHOLAS STEFFANELLI A/K/A NICHOLAS PETER STEFFANELLI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 22, 1975
    Decided April 30, 1975.

      Before Judges Halpern, Crahay and Wood.

      Messrs. Herrmann and Blasi, attorneys for appellant.

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Kenneth Ply, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

An issue of first impression in this State is presented on this appeal, namely, whether a juvenile’s prior conviction of atrocious assault and battery, when he was tried as an adult under N. J. S. A. 2A-.4-15, may be shown to impeach his credibility under N. J. S. A. 2A:81-12 and Evid. R. 63(20) if he testifies when tried for a subsequent adult offense.

In 1958 defendant, then a 16-year-old juvenile, was tried as an adult under N. J. S. A. 2A:4-15 and convicted of atrocious assault and battery. In 1974, while being tried in the instant case for atrocious assault and battery, defense counsel inquired of the trial judge whether the 1958 conviction could be shown by the State to impeach defendant’s credibility if he testified in his own behalf. The trial judge informed counsel that he would permit the 1958 conviction to be shown, bnt that he would also instruct the jury as to its limited use — that the conviction occurred in 1958 when defendant was a juvenile and that these facts be considered by them in weighing defendant’s credibility. Allegedly, as a result of this side-bar ruling defendant did not take the stand.

We are in complete accord with the trial judge’s ruling. Having been tried in 1958 as an adult, the consequences which flow therefrom are applicable to him as though he were an adult. See Luck v. United States, 121 U. S. App. D. C. 151, 348 F. 2d 763 (1965). Any other result would fly in the face of the legislative intent and abort the philosophy behind the passage of N. J. S. A. 2A:4-15. The charge the trial judge offered to give would have served the ends of justice.

Based on the authority of N. J. S. A. 2A:81-12 and Evid. R. 63(20), we have repeatedly applied the rule that when a defendant testifies in his own behalf his prior criminal convictions may be shown to impeach his credibility. State v. Johnson, 65 N. J. 388 (1974); State v. Hawthorne, 49 N. J. 130 (1967).

Appellant suggests we closely scrutinize Justice Pashman’s concurring opinion in Johnson wherein he expressed his doubt as to whether the use of prior convictions to impeach credibility has not outlived its usefulness. While there may be much to be said for Justice Pashman’s reasoning, particularly where, as here, we deal with a conviction recorded 16 years ago when defendant was but 16 years old, we as an intermediate appellate court are bound to comply with the law established by the Supreme Court. In re Arens, 41 N. J. 364, 370 (1964); Reinauer Realty Corp. v. Paramus, 34 N. J. 406, 415 (1961).

Affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RONALD PHILLIPS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 8, 1975
    Decided April 29, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. William, E. Norris, Assistant Deputy Defender, of counsel and on the brief).

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

This appeal is grounded in defendant’s claims: first, that the trial judge erred in denying his motion to withdraw certain pleas entered in accordance with a plea bargain, and second, that the sentence he received was manifestly excessive. We find no merit in either argument.

The sentence entered on the plea bargain concluded a number of charges against this defendant. In addition to Indictment 1115-69 and Accusation 826-73 (see n. 1) defendant was charged with: atrocious assault and battery on one Paulette Watson on December 10, 1972 (Indictment 1521-72); carnal abuse, assault with intent to rape and atrocious assault and battery on one Marsha Maddox on March 8, 1973 (Indictment 1470-72); assault with a dangerous weapon, assault with intent to kill, threatening to kill, atrocious assault and battery and kidnapping involving Euth Thomas, together with illegal possession of a knife, all on August 19, 1973 (Indictment 510-73); felony murder while armed and a concomitant robbery while armed, the victim of which was one Francis Dougherty, on November 27, 1973 (Indictment 378-73), and possession of a controlled dangerous substance with intent to distribute on November 28, 1973 (Accusation 825-73).

Represented by manifestly competent counsel with whose services he was admittedly satisfied, defendant entered a non vult plea to the felony murder and guilty pleas to the charges of atrocious assault and battery on each of the three women and to possession of a controlled dangerous substance with intent to distribute. In careful compliance with the terms of the plea bargain, he was sentenced to 25 to 30 years in State Prison for the murder, 5 to 7 years consecutively for the atrocious assault and battery upon Paulette Watson, 5 to 7 years concurrent with the prior assault sentence for each of the atrocious assaults and batteries on Ruth Thomas and Marsha Maddox, and 2to 5 years concurrent with the assault sentences for the controlled dangerous substance offense. The net effect of the sentences was a minimum of 30 and a maximum of 37 years in prison.

Defendant chose the day set for his sentencing to move to be permitted to withdraw his pleas. The sentencing judge denied the motion and imposed the sentences set forth above. This denial is here challenged.

Once a plea is entered it may not be withdrawn without leave of court. A determination on such an application rests within the judge’s discretion. State v. Deutsch, 34 N. J. 190 (1961). In exercising this discretion certain policy considerations are to be weighed against each other, State v. Herman, 47 N. J. 73 (1966), and it has been said the discretion permitting a withdrawal of a guilty plea should be “liberally” exercised where the motion is made before sentence and defendant protests his innocence. State v. Deutsch, supra, 34 N. J. at 198. But such a protestation of innocence must be more than a mere assertion of non-guilt, and the apparent guilt of a defendant is a factor to be considered even when the motion precedes sentencing. State v. Johnson, 131 N. J. Super. 252 (App. Div. 1974). Where, as here, the plea or pleas are entered as a matter of plea bargaining, the burden upon defendant to demonstrate “a plausible basis” for his motion to retract is a heavy one. State v. Huntley, 129 N. J. Super. 13, 17 (App. Div. 1974), certif. den. 66 N. J. 312 (1974). In such circumstance, and providing that there has been careful and diligent regard for the requirements of R. 3:9-2, the judge below has every reason to indulge in skepticism, with respect to newly asserted defenses, particularly if they are factually unclothed. When the fact of commission of the criminal activity remains uncontested, the absence of new or additional facts which might reasonably have influenced defendant to a change of heart and his belated urging of such defenses as incompetency, self-defense, provocation or, as here, “temporary insanity,” is a factor to be considered carefully on a motion to retract.

The concision of Deutsch remains a lodestar: where there is no doubt that a plea has been entered truthfully, voluntarily and understandingly (34 N. J. at 198), its truthfulness amply implies defendant’s guilt and furnishes reason enough not to permit retraction. Cf. North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

Utilizing those scales in our balancing of the policy considerations in the matter before us, and after a thorough review of the record, we are convinced of the correctness of the determination of the trial judge on the motion to retract. Not only is defendant’s guilt glaringly apparent and confessed, but we are entirely satisfied, as was the trial judge, that the pleas were in fact entered quite “truthfully, voluntarily and understandingly.” This persuasion springs in large part from the careful questioning of the trial judge, in compliance with B. 3:9-2, with respect to the pleas, and his and our conviction that defendant is not at all unintelligent. The newly contrived “defense” of temporary insanity, a product of defendant’s “doing researches on my owns [sic]” has no basis at all in fact, and the reasons most lately said to support it were unmentioned, even on diligent interrogation, at the time of the pleas. As we have said, we not only find no mistaken exercise of discretion below but are in agreement with the determination.

Nor are we persuaded that the sentence, which is within the perimeters of the plea bargain and the statutory máximums, is excessive. The crimes extended over a period of almost a year, and were all crimes of violence except for the possession of a controlled dangerous substance with intent to distribute which, if not violent, is as detestable. In four separate events, three women were painfully injured and a man was wilfully kicked and beaten until he died. Defendant’s presentenee report, conceded to be “substantially * * * correct,” notes poor adjustment to a prior probation, a work record which includes an inability to maintain gainful employment, and economic dependence on the largesse of a “girlfriend.” We are not persuaded that the sentences imposed constitute a mistaken exercise of discretion. State v. Tyson, 43 N. J. 411 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

Affirmed.

      We note that the charges were so numerous that the prosecutor at the plea failed to mention by number one indictment (1521-72), a bit of carelessness rectified by defense counsel in his iteration of the plea bargain. We observe as well that two charges (Indictment 1115-69 and Accusation 826-73) appear to have been made, the indictment and accusation for which are not included in any appendix nor mentioned in either brief and only casually adverted to in the transcripts we have. While the indifference of counsel in their factual presentations to us (and in which each has combined his procedural statement and statement of facts in clear derogation of B. 2:6-2) raises our curiosity somewhat, the omissions are not at all significant, since both the indictment and the accusation were dismissed.

      The judge mistakenly characterized this as a guilty plea when seeking and accepting the plea directly from defendant on his inquiry of defendant pursuant to R. 3:9-2, which see. The plea entered on behalf of defendant by his counsel was one of non vult. No possibility at all of prejudice of any sort or degree inheres in this technical inadvertence.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HUGHIE JAMES McMENAMIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 22, 1975
    Decided May 2, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Robert L. Vessel, Designated Attorney, of counsel and on the brief).

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

A jury found defendant guilty of separate counts of possession of LSD and more than 25 grams of marijuana, in violation of N. J. S. A. 24:21-20 (a) (1) and (3). The tidal judge merged both counts and sentenced defendant to a 90-day county jail term, 70 days of which were suspended. Defendant was also placed on probation for a period of two years following his release from the county jail. On appeal defendant contends that (1) the court committed plain error when it failed to charge on “fleeting and shadowy” possession of the LSD, and (2) it was error to admit certain marijuana plants in evidence. Both contentions lack merit.

Defendant and his 15-year-old brother testified regarding a quantity of LSD found in a locked metal box owned by defendant and kept in a storage room closet near his bedroom. Both defendant and his brother had access to the box. Defendant testified that they stored their “stash” in the box, including “grass,” “hash” and pipes. Defendant admitted that he owned some of the marijuana in the box, but he and his brother both testified that the LSD belonged to the younger brother alone and that defendant had discovered its presence in the box only a few hours before it was seized by the police. Defendant testified that he told his brother to get rid of the LSD.

Defendant now contends that the trial judge committed error in failing to charge that defendant should be found not guilty if the jury found that his possession of the LSD was only “shadowy and fleeting,” a phrase found in State v. Brown, 67 N. J. Super. 450, 455 (App. Div. 1961). No such instruction was requested, and we would not regard its omission as plain error. R. 2:10-2. A charge phrased simply in terms of “shadowy and fleeting possession” is of doubtful utility and should not be employed.

The essential elements of actual possession are (1) knowledge of the existence and character of an object which is in one’s hand or on one’s person, and (2) intention to use or to exercise dominion and control over the object, to the temporary or permanent exclusion of others, either alone, or, in the case of joint possession, as here, in conjunction with others. See State v. Humphreys, 54 N. J. 406, 417 (1969); State v. Labato, 7 N. J. 137, 148-149 (1951). While the duration of the actual possession is unimportant if these elements are present (see State v. Thomas, 105 N. J. Super. 331 (App. Div. 1969), aff’d o.b., 57 N. J. 143 (1970)), the period of time in which a person holds an object may be relevant to the issue of his intention to exercise dominion and control over it. A person who holds an object belonging to another just long enough to discover its character and promptly divests himself of further control over it would not be guilty of possession, as that term is employed in the criminal law. A charge in these or appropriately similar terms would be proper in a case of “fleeting” possession of an object which is promptly rejected by a defendant. In any event, we cannot conclude that the charge given here should be regarded as erroneous on the facts in this case, much less as plain error.

We also find no error in the admission of six live marijuana plants found growing on the window sill of the storage room. The plants were relevant to the issue of defendant’s knowledge and intent. Evid. R. 55. That defendant admitted possession of the marijuana in the “stash” box did not preclude admission of the plants in the circumstances of this case and obviates any claim of prejudice resulting from the introduction of the plants. The identification of the plants as marijuana by a police officer who was sufficiently qualified, although a layman, and by defendant’s brother was sufficient basis for their admission.

Affirmed.


author: Horn, A. J. S. C.:

text:
    JOHN M. PILLSBURY, PLAINTIFF, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MONMOUTH AND RICHARD T. O’CONNOR, DEFENDANTS. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MONMOUTH, PLAINTIFF, v. JOHN M. PILLSBURY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 11, 1975.

      Mr. Robert V. Carton for plaintiff and defendant John M. Pillsbury (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).

      Mr. Robert I. Ansell for defendant and plaintiff Board of Chosen Freeholders of Monmouth County (Messrs. Anschelewitz, Barr, Ansell & Bonello, attorneys).

      Mr. Richard T. O’Connor, pro se (Messrs. Cerrato, O’Connor, Mehr and Saker, attorneys).
   Horn, A. J. S. C.:

Cross-actions in lieu of prerogative writs were instituted by the above-named parties, John M. Pillsbury (Pillsbury) and the Board of Chosen Freeholders of Monmouth County (board). Richard T. O’Connor is named a party defendant in the action brought by Pillsbury.

Because the actions are interrelated and involve common questions of law as well as fact, they were consolidated by consent, and also by consent the venue thereof was transferred to Atlantic County.

The primary issue which emerges from a review of each of the complaints is whether a county counsel whose three-year term of office has not expired may be compelled, without more, to terminate his services simply because a majority of the members of the freeholder board assert they have no confidence in him as county attorney.

An outgrowth of the controversy is whether the board may transfer the duties and responsibilities of the office of county counsel to another without legally terminating the term of the incumbent.

Upon the return of respective orders to show cause the arguments of counsel indicated there were no substantial factual questions. For all practical purposes the return was treated as though there were cross-motions for summary judgment.

The complaints and affidavits reveal that Pillsbury’s three-year term as county counsel will not expire, according to the resolution appointing him, until October 19, 1976. His appointment was made pursuant to N. J. S. A. 40A:9-43, which specifically directs that the term of office of the county counsel shall be three years.

On January 3, 1975 the board adopted two resolutions. By one, Richard T. O’Connor was appointed special counsel “to serve the County of Monmouth” for a term of one year. The duties of the special counsel were defined as follows:

* * to review and approve all contracts, deeds, instruments and documents prior to the execution thereof by or on behalf of the County, and to serve as legal advisor to the various departments of the County unless otherwise specified, and to perform such other legal services as directed by the Board of Chosen Freeholders from time to time.

The second resolution requested county counsel Pillsbury to report to the board in writing on or before January 20, 1975 a detailed list concerning all matters then outstanding in which the county was involved, including, but not limited to, information as to each matter. Such a report was submitted to the board on or about January 20, 1975.

On January 21, 1975 the board adopted a motion directing Pillsbury to turn over all records and files to special counsel and further requested that he submit his resignation. Pillsbury declined both requests.

On February 4, 1975 the board enacted another resolution directing Pillsbury to turn over all records, materials and files to the director of the board, in order that it could review same

* * * and assign the legal work in its discretion as it deems necessary and desirable with a view toward avoiding expensive litigation, yet providing most efficient and thorough professional legal services to the County. The Board shall assign the legal work with due regard to the status of the matter and the nature of the work to be performed.

This resolution also provided that Pillsbury “need no longer appear at the Workshop or Public meetings of this Board.”

Pillsbury countered, advising the director of the board that he would not permit actions that would relieve county counsel of all legal work and thereby result in that office becoming an empty shell. Shortly thereafter these actions were instituted.'

Pillsbury’s complaint, after recounting substantially what is stated above, asserts that Mr. O’Connor has usurped the office of county counsel, taken upon himself the privileges thereof, and since January 2, 1975 has interfered with Pillsbury’s performance of his duties as county counsel.

The relief sought by Pillsbury is: (1) a judgment determining and establishing the duties of county counsel; (2) enjoining and restraining the board from interfering with or denying the exercise by him of the full and complete duties and privileges of said office, and (3) restoring to him as such all rights, duties and privileges inherent in said office.

The complaint filed in behalf of the board asserts that Pillsbury has refused to turn over the files held by him as county counsel for review by the board and that Pillsbury has failed to supply information concerning certain particular legal matters. It seeks judgment directing Pillsbury to turn over all files and records in the county in his possession fox review by the board and ancillary relief.

It has been established that county counsel is an office (as distinguished from a position) and that a hoard of chosen freeholders is powerless to remove the occupant thereof, in the absence of cause, prior to the expiration of the statutory term for which the incumbent is appointed. Murphy v. Hudson Cty. Freeholders, 92 N. J. L. 244, 247 (E. & A. 1918). The court stated, in passing:

* * * [I]t may not be amiss to say that the resolution [of dismissal] is particularly vicious in the present case, because it is based upon the assumed power of the board of chosen freeholders to dismiss a man from office who is apparently in the possession of it for a fixed term, and that without any charges laid against him, without any opportunity afforded to him to be heard, and without any suggestion of the basis upon which the action of the board was rested.

A similar holding was made by our former Supreme Court in Gallaher v. Camden Cty., 129 N. J. L. 290 (Sup. Ct. 1942). In that case the court reviewed two resolutions adopted by the board of chosen freeholders. One of the resolutions removed plaintiff from the position of county counsel and the other resolution appointed another person to that position for a fixed term. At the time of the adoption of the resolutions plaintiff (like Pillsbury in the instant case) was an incumbent of the office of county counsel for a term of three years, which had not as yet expired.

Citing Murphy v. Hudson Cty. Freeholders, supra, the court likewise held that both resolutions were without authority — the first because there was no statutory authorization for removal, and the second because there was no vacancy in the office and no statutory provision authorizing the appointment of more than one person to the office.

Even before Murphy and Gallaher, implicit in the holding of State, Hoxey, pros., v. Paterson, 40 N. J. L. 186 (E. & A. 1878), was a similar holding. There the city charter authorized the board of aldermen to annually appoint certain officers, including city counsel, to hold their several offices for one year, unless sooner removed for cause upon a two-third vote. The ordinances prescribed the duties of city counsel.

The specific issue was whether the city had the right under its charter to employ and pay for legal services rendered by one other than the person who for the time being held the office of city counsel.

The court held that the corporate authorities would have the power under the charter provisions to employ associate counsel in defending suits brought against the corporation, or in which the city was interested; that the board of aldermen were the judges of the necessity of such employment in any particular case, and that the exercise of that discretion was not a question for review in a court of law.

However, the court went on to say:

* * * [T]he power of the corporation to employ associate counsel does not involve the right, on the part of the city authorities, under the guise of such employment, to withdraw and take out of the hands of the city counsel any particular case or class of cases and to confide their management to others, [at 180]
# s-t h* ❖ ^ >;.• *
* * * If the board of aldermen, or any committee of the board, can withdraw part of the law business of the corporation from the control of the city counsel, they can, in like manner, dispose of the whole; and if they possess this power in relation to the duties of the city counsel, they have the same power in relation to the duties of every city officer. Neither the consent of the officer nor his incompetency or neglect of duty, could form any valid excuse for the action of the city authorities; while holding the office he cannot voluntarily relieve himself of the obligations to perform all of the duties; and for incompetency or unfaithfulness, the only remedy is the amotion of the officer pursuant to the provisions of the charter.

See also, Byrne v. Wildwood, 95 N. J. L. 287 (Sup. Ct. 1920).

Essentially, the board’s contention is that the statute, N. J. S. A. 40A:9-43, providing for a mandatory term of office for county counsel, is incompatible with the rule-making power of the Supreme Court and is therefore unconstitutional, or at least must be subject to the rules of that court.

The asserted incompatibility arises from the fact that it is said that the statutory fixed-term requirement collides with the unique attorney-client relationship which traditionally permits the client to discharge his attorney at any time. This contention relies on Di?2-110(B) (4), which provides that a lawyer shall withdraw from, employment if he is discharged by his client.

The parties here do not make a point of the failure of the board to have adopted a resolution actually discharging Pillsbury. The board urges that N. J. S. A. 40A:9-43 must give way to the disciplinary rule under Winberry v. Salisbury, 5 N. J. 240 (1950). Winberry held that under the N. J. Const. (1947), Art. YI, § II, par. 3, the rule-making power of the Supreme Court is not subject to overriding legislation.

It is conceded that the courts (i. e., Supreme Court) have the inherent power to decide who shall practice law and that attorneys are officers of the court, not of the State. State v. Rush, 46 N. J. 399, 410-411 (1966).

To declare an act of the Legislature to be unconstitutional is an extreme pronouncement and should not be done unless there is no possible legal accommodation between the force of the statute and the conflicting rule. Ahto v. Weaver, 39 N. J. 418 (1963); WHYY, Inc. v Glassboro, 50 N. J. 6 (1967), rev’d o. g., 393 U. S. 117, 21 L. Ed. 2d 242, 89 S. Ct. 286; Harvey v. Essex Cty. Bd. of Chosen Freeholders, 30 N. J. 381 (1959).

I find no incompatibility between N. J. S. A. 40A:9-43 and DB2- 110(B)(4) in the context of an appropriate interpretation of the intent and purpose of the latter.

At first blush it seems that a public body should have the right to select its own counsel, who should serve at its pleasure. But N. J. S. A. 40A :9-43 evinces a specific legislative policjr. When read in the context of the other sections of the chapter it may be inferred that the Legislature sought to guarantee an appointee at least three years in office. This may possibly be an attempt to attract better-qualified attorneys to accept the position, since they would be required to curtail their practice insofar as it may conflict with their duties as county counsel.

It may also be inferred that since county counsel may be a part of the policy-making of the county (dissenting opinion of Justices Jacobs and Schettino, Ahto v. Weaver, supra, 39 N. J. at 433) it is purposefully intended to eliminate or at least diminish political considerations, as expressly stated in N. J. S. A. 40A :9-25: “No officer or employee shall be removed from his office or position for political reasons.”

Notwithstanding the vouchsafed right of clients to select other counsel, or perhaps, as put in Z>E2-110(B) (4), to discharge their attorneys, that rule did not indicate nor can it be assumed that it contemplated a situation such as is before me.

Ordinarily private clients and their counsel confer privately, with resulting protections, such as confidential communications. In such cases, except for the contravention of laws generally, the State has no interest in the advice or the representation of the attorney. But the representation by a publicly retained attorney is on a different plane. It is true he is answerable for all the derelictions that privately retained counsel are answerable for. However, he is in addition subject to special laws affecting public officers with respect to malfeasance, misfeasance or nonfeasance.

He is also subject to the Bight to Know Law, N. J. S. A. 47:1A-1 et seq., which appears to make his records open to public scrutiny unless inimical to the public interest.

As a practical matter, county counsel’s advice to the members of the board relate to public business, not their private affairs. The confidential phase of the relationship is altogether different from that between a private client and his attorney.

Nor can Perella v. Jersey City Bd. of Ed., 51 N. J. 323 (1968), be accepted as a precedent for the board’s contention on this point. The court in that case held only that under the Civil Service laws the Veterans’ Tenure Act did not apply to the chief administrative counsel and the assistant counsel to the Board of Education of Jersey City. The court merely construed the applicable statutes. No statute similar to N. J. S. A. 40A:9-43 was involved in that case. The court’s remarks as to the relationship between counsel and boards of education, though to some degree applicable to tbe instant ease, were never intended to constitute a declaration repugnant to the statutory mandate by which Pillsbury was appointed.

Accordingly, I must reject the board’s position, urging that it has the right to remove Pillsbury on the thesis that the statute authorizing his appointment, N. J. S. A. 40A:9-43, must fall before the superior right of a client to discharge his attorney. In denying the validity of the board’s position, I observe that under appropriate circumstances a board of chosen freeholders is not powerless to Temove its counsel.

N. J. S. A. 40A:9-25 authorizes county counsel’s removal for cause if written charges are preferred and a hearing is afforded. No such charges have been instituted. This is understandable in the light of the statement of Board Director Gumbs, who said at the meeting of January 2, 1975: “We are not casting aspersions on the work of Mr. Pillsbury. I feel and other members of the Board feel, that we should look into our Legal Department, and we should have confidence in our County Counsel * *

Ereeholder Kramer said: “There is no doubt Mr. Pillsbury did a good job for the previous board, and the new Board, by its resolution [requesting Pillsbury to report to the board a detailed list of outstanding legal matters] is not casting any aspersions on him.”

Yet, before having received the list — or even asking for it — at its very first organization meeting the board was taking steps calculated to remove Pillsbury or at least to turn his office into a mere name, with nothing to do but perhaps collect his salary.

This is further indicated by (1) the appointment of assistant county counsel on January 21, 1975 to serve before the Juvenile and Domestic Relations Court and “such other assignments as the Board * * * may make from time to time,” at a daily rate of compensation of $200; (2) notification on January 10, 1975 to department heads to submit to O’Connor all contracts for his review and approval; (3) notification to the prosecutor on January 16, 1975 to refer legal actions to O’Connor; (4) resolution of January 21, 1975 asking Pillsbury to resign; (5) resolution of February 4, 1975 inviting Pillsbury not to appear at the workshop or public board meetings.

The board next contends that even if it may not remove Pillsbury, it has the right, by law and by necessary implication that the duties and responsibilities of the board create, to appoint special counsel and assistants, not only in whom it has confidence and trust but through whom it may revamp the legal department for improvement.

It is conceded by Pillsbury that the board has the right to appoint assistant counsel where needed to assist in carrying out the duties of county counsel. N. J. S. A. 40A: 9-9; Ahto v. Weaver, supra 39 N. J. at 424.

It likewise cannot be disputed that under appropriate circumstances a board may even appoint special counsel for specific and probably extraordinary legal matters. But, as stated, this authority is circumscribed in that it may not be done as a guise to obscure the real intention to strip the duly and regularly appointed counsel of his powers and responsibilities as counsel. State, Hoxey, pros., v. Paterson, supra; Byrne v. Wildwood, supra.

Succinctly stated, the board urges that it has the authority to organize the office of county counsel in a manner which recognizes and effectuates the inherent dichotomy between traditional legal representation of continuous, standing, organized county institutions and agencies on the one hand, and creative, judgmental legal advice to the ultimate policy-making tribunal on the other hand. It states that this power must be found in the N. J. Const. (1947), Art. IV, § VII, par. 11, which mandates that the provisions of the Constitution and of any law concerning counties shall be liberally construed in their favor, and also in N. J. S. A. 40:20-1, which commits the property, finances and affairs of every county to the management, control and government of its board of chosen freeholders. These provisions, and also the general power to appoint such other officers, agents and employees in addition to those specifically provided for by law (N. J. S. A. 40A:9-9), are said by the board to grant the necessary power “to organize the county administration in such a way that those tasks not expressly given to statutorily mandated officers or those tasks which cannot be adequately or appropriately performed by them can nonetheless be met by the county government.”

The fact that specific duties of county counsel are not detailed by statute is said to indicate, along with the broad grant of organizational power to the board, that it has the authority to determine the interstices of the office.

I cannot agree with this rationalization. To carry it out to its ultimate spells a conclusion that it may so define the office to its destruction. That is not an acceptable thesis in the face of the statute and other factors.

Nor is the constitutional mandate for liberal construction of laws in favor of counties a license to extend the scope of a statute beyond that expressly provided or reasonably to be implied, but it calls for broad interpretation to advance the Legislature’s declared policy within prescribed limits. Fedi v. Ryan, 118 N. J. L. 516 (Sup. Ct. 1937). That mandate does not connote an extension of the boundaries delineated by the statutory phraseology as commonly used, Grogan v. DeSapio, 11 N. J. 308 (1953), and it does -not warrant illegal actions on the part of a municipality. Id. See also, Union Co. Bd. of Freeholders v. Union Cty. Park Comm'n, 41 N. J. 333 (1964).

The board urges the court to realistically appraise the situation in the light of the breadth of the statutes granting power to the board to govern and the constitutional mandate to construe laws favorably for the county, as well as the fact that the Legislature has failed to specifically define the duties of county counsel. Thus, it says that an overlapping of elections and terms of offices has left political adversaries in the unhappy position of conflict in a relationship which requires the utmost in trust and confidence. It cites the friction prevailing between the board and Pillsbury as hampering the board in performing its responsibilities.

This argument overlooks several facts. First, a fair reading of N. J. S. A. 40A:9-43 in its context with the other sections of Title 40A, chapter 9 of the Revised Statutes evidences the intention of the Legislature that county counsel’s term should continue notwithstanding political changes. As already observed, the law expressly forbids removal of county officers for political reasons. N. J. S. A. 40A:9-25. Second, if the sole basis of removal or rendering the office of count}'- counsel a sterile one is alleged mistrust, it can reasonably be anticipated that every time there is a change in the politicial complexion of the board there will be a mistrust, with consequent removal of county counsel or the stripping of his prerogatives. Third, the actions of the board from their inception, without any disclosed factual basis and even with acknowledgment of the competency of Pillsbury, were calculated to unseat him. This naturally produced a defensive reaction on his part. It may be assumed that when the present controversy terminates and the parties are aware of their legal positions they will relax their respective antagonistic stances, the frictions will disappear and they will all proceed with their respective obligations to further the interests of the public.

The board’s avowed purpose, as stated above, is to organize the legal department in a m'anner which recognizes and effectuates the inherent dichotomy between traditional legal representation of continuous, standing, organized county institutions and agencies on the one hand, and creative, judgmental legal advice to the ultimate policy-making tribunal on the other. This avowed purpose does not require the removal of present counsel. The suggestion was not even broached to him, apparently. The board, as an artisan, has attempted to use a hammer where the appropriate tool should have been one less forceful and which would be less likely to inflict damage on the subject matter.

There is nothing before me to indicate that an attempt to amicably effectuate the board’s plan would not have succeeded. • The board has suggested a method of diversion of the legal duties among the county counsel’s legal staff. Briefly, it consists of separating the everyday work of reviewing contracts, advising department heads and appearing in court in various county matters, from; the other work of meeting with the board and advising on judgment matters. Actually, the plan is nothing more than an attempt to dislodge Pillsbury from his duty to advise the board.

Unlike some instances where the duties of municipal counsel have been defined in whole or in part (State, Hoxsey, pros., v. Paterson, supra; Byrne v. Wildwood, supra; Evanko v. Duff, 63 N. J. Super. 548, 556 (Law Div. 1960)), the duties of county counsel are not defined.

N. J. S. A. 40A:9-43 also authorizes the appointment of and fixes the term of county engineers. Their duties likewise are not prescribed specifically. Cf. also, N. J. S. A. 40A:9-139, municipal attorneys, and N. J. S. A. 40A:9-140, municipal engineers, whose duties likewise are undefined. On the other hand, the duties of county treasurer, N. J. S. A. 40A:9-27; county comptroller, N. J. S. A. 40A: 9-28; county auditor, N. J. S. A. 40A:9-28; county purchasing agent, N. J. S. A. 40A:9-30; general storekeeper, N. J. S. A. 40A:9-31; county supervisor, N. J. S. A. 40A: 9-38; county administrator, N. J. S. A. 40A:9 — 42, as well as morgue keepers, N. J. S. A. 40A:9-52, are described.

The lack of statutory description of counsel’s duties is understandable. Traditionally such duties have been defined in the phrase “practice of law.” This consists generally of conducting litigation in courts, and the rendition of legal service to another or legal advice as to his rights and obligations under the law —• calling for a degree of legal knowledge or skill, usually for a fee ■ — • including the pursuit, as advocate for another, of a legal remedy within the jurisdiction of a quasi-judicial tribunal. N. J. State Bar Ass'n v. Northern N. J. Mtg. Associates, 32 N. J. 430 (1960); Tumulty v. Rosenblum, 134 N. J. L. 514 (Sup. Ct. 1946).

Thus, N. J. S. A. 2A:170-78 and 79 provide simply that any person not licensed as an attorney and who engages in the practice of law is a disorderly person. Businesses and practices excepted are stated in N. J. S. A. 2A:170-81.

I view the failure of the Legislature to define county counsel’s duties to be the result of its knowledge that the practice of law is already fairly well determined. I am obliged to hold that his duties are coincident with representing the county and advising in all matters which only a licensed attorney may do.

As county counsel the incumbent is the law officer of the county, with the power, duty and responsibility of managing all legal matters for the county. As already stated, he does not represent the members of the board individually, but only collectively when acting as a board. See Evanko v. Duff, supra.

The assistant counsel, as related, may be appointed by the board or, if authorized by the board, may be appointed by county counsel. N. J. S. A. 40A:9-9. But no matter who appoints, such assistants are subject to the supervision and direction of the law department head ■ — ■ the county counsel. Ahto v. Weaver, supra 39 N. J. at 430.

Even if the board had the power to “legislate” the office of county counsel, as contended by it, to the extent of defining its duties, it may not then usurp the function of counsel to supervise and direct assistants with respect to the matters to be entrusted to them, respectively.

But such definition does encroach upon the statutorily assigned duties of Pillsbury. He is the head of the county law department, so that question arises as to whether such direction contained in the resolution appointing O’Con-nor and later directives to department heads are valid. I do not believe that they are, since said resolution and later directives appear to be clear attempts to remove from the supervision of county counsel those duties assigned to O’Connor, none of which is justified under the theses enunciated in State, Hoxsey, pros. v. Paterson, supra; Byrne v. Wildwood, supra, or in Osborne v. Murphy, 119 N. J. L. 65 (Sup. Ct. 1937).

Certainly the board has some control over county counsel. It must have, since it is responsible for the overall county government. County counsel is responsible to the board to see to it that if given the necessary help his office properly performs its functions. As stated, county counsel, as a public officer, is subject to prosecution for malfeasance, misfeasance or nonfeasance.

Consequently, the board has a right to review the legal files for that purpose in a reasonable fashion, but not for an unlawful purpose, such as depriving county counsel of same or assigning specific .duties or files to its appointed assistants, such as was attempted in the appointment of assistant county counsel at $200 a day, “to serve before the Juvenile and Domestic Eelations Court * * * and such other assignments as the Board * * * may make from time to time.”

It causes one to wonder what expertise the board enjoys to determine that this assistant was more qualified, more knowledgeable and more experienced to serve in this particular assignment than county counsel.

      Tlie court said, inter alia, that a member of the bar as counsel to a public body has a position of trust and confidence born in the. confidence the public body, rarely of permanent status, has in the ability, honestly and personality to the individual selected. Also the relationship is simply that of attorney and client, basic to which, from time immemorial, has been the desirability of personal selection of the attorney by the client.

      See quotation from Murphy v. Hudson County Freeholders, supra.

      This theme was expressed in State, Hoxsey, pros., supra, 40 N. J. L. at p. 190, when the court said: “If the board * * *, can withdraw part of the law business of the corporation from the control of city counsel, they can, in like manner, dispose of the whole; and if they possess this power in relation to the duties of the city counsel, they have the same power in relation to the duties of every city officer.”

      Possibly it could have been accomplished by requesting a specific assistant for this purpose.

      A statute relating to admissions of certain persons to public institutions, but which is confined only to that, provides: “County counsel includes the chief legal officer or advisor of the board of chosen freeholders * *” N. J. S. A. 30:4 — 23.