State v. Profaci

• Decision Date: 26 June 1970
• Citation: 56 N.J. 346,266 A.2d 579
• Parties: STATE of New Jersey, Plaintiff-Respondent. v. Salvatore PROFACI, Jr., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 346

56 N.J. 346

266 A.2d 579

STATE of New Jersey, Plaintiff-Respondent. v. Salvatore PROFACI, Jr., Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 5, 1970.

Decided June 26, 1970.

Frank J. Palma, Bayonne, for defendant-appellant (Santo & Palma, Bayonne, attorneys; Julius Zizmor, New York City, on the brief).

William D. Danberry, Asst. County Prosecutor, for plaintiff-respondent (Edward J. Dolan, Middlesex County Prosecutor, attorney).

The opinion of the court was delivered by

HANEMAN, J.

This case involves the constitutionality of N.J.S.A. 2A:170--29(1), a section of the Disorderly Persons Act.

Defendant was convicted in the Municipal Court of the Township of Monroe of violating the above statute which reads:

1. Any person who utters loud and offensive or profane or indecent language in any public street or other public place, public conveyance, or place to which the public is invited; * * *.

Is a disorderly person.

Defendant appealed to the Middlesex County Court which after a trial De novo on the Municipal Court record, again found him guilty. Defendant appealed to the Appellate Division which affirmed in an unreported Per curiam opinion. Defendant appealed to this Court upon the ground of the existence of a substantial constitutional question. R. 2:2--1.

The facts as elicited at the trial are as follows: State Trooper Martens testified that on July 13, 1968, at approximately 7:00 P.M., he stopped defendant's vehicle on Bentley Road, Monroe Township, for a routine motor vehicle check. Upon discovering that his driver's license was unsigned, Martens informed defendant that he was going to issue a warning. Defendant allegedly exited from his car and while still on the road, in a loud voice, stated, 'what the f--- are you bothering me for.' Martens advised defendant that he was under arrest for using loud and profane language.

Martens further testified that Trooper Cavaliere who had arrived on the scene minutes after defendant's car was stopped, overheard defendant utter the objectionable language. On cross-examination it developed that there was only one house on Bentley Road and that the house was set back about 300 feet from the scene of the incident. Martens stated that besides himself and Cavaliere, no one was present when the words were uttered. Trooper Cavaliere corroborated Martens' testimony that defendant made the statement containing the objectionable language.

Defendant testified that he had not made the statement attributed to him by the State Troopers and recited a contradictory factual statement of events.

The main thrust of defendant's argument is that N.J.S.A. 2A:170--29(1) is so vague and indefinite that it violates the First Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Defendant argues that the statute neither defines the words 'loud or offensive or profane or indecent' nor states under what circumstances the language is proscribed.

Some basic guides for ascertaining the constitutionality of statutes bear repeating. It must be remembered that the presumption is that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner. The articulation of the elements which furnish that essential intent need not appear in the statutory language. Lomarch Corp. v. Mayor and Common Council of City of Englewood, 51 N.J. 108, 237 A.2d 881 (1968). The further presumption is that a statute will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or prohibition. Daly v. Daly, 21 N.J. 599, 123 A.2d 3 (1956). See also Russo v. Governor of State of New Jersey, 22 N.J. 156, 170, 123 A.2d 482 (1956); In re Loch Arbour, 25 N.J. 258, 262, 135 A.2d 663 (1957); State v. Hudson County News Co., 35 N.J. 284, 294, 173 A.2d 20 (1961); State v. Monteleone, 36 N.J. 93 99, 175 A.2d 207 (1961). Even though a statute may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of this Court to so construe the statute as to render it constitutional if it is reasonably susceptible to such interpretation. Woodhouse v. Woodhouse, 17 N.J. 409, 111 A.2d 631 (1955).

We come to a consideration of the statute Sub judice. The applicable principles for the ascertainment of whether this statute is unconstitutional because of vagueness, indefiniteness or overbreadth are so aptly and adequately stated in Landry v. Daley, 280 F.Supp. 938 (N.D.Ill.1968) appeal dismissed 393 U.S. 220, 89 S.Ct. 455, 21 L.Ed.2d 392 (1968), docketed for reargument sub nom Boyle v. Landry, 395 U.S. 955, 89 S.Ct. 2095, 23 L.Ed.2d 744 (1969), as not to require paraphrasing. The court said:

The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to appraise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.

The concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibition of certain individual freedoms. The primary issue is not reasonable notice or adequate standards, although these issues may be involved. Rather the issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution. Frequently, the resolution of this issue depends upon whether the statute permits police and other officials to wield unlimited discretionary powers in its enforcement. If the scope of the power permitted these officials is so broad that the exercise of constitutionally protected conduct depends on their own subjective views as to the propriety of the conduct, the statute is unconstitutional.

These concepts have particular relevance to statutes touching upon the areas of free speech and assembly. Although the state may regulate speech and assembly where the exercise of these rights conflicts with certain state interests, it may regulate only to the extent necessary to discharge these interests. A vague or overbroad statute, however, is likely to have a deterrent effect which is beyond that necessary to fulfill the state's interests. Rather than chance prosecution, people will tend to refrain from speech and assembly which might come within the statute's ambit.

Such a deterrent effect on the exercise of these rights is impermissible under the First Amendment. The Amendment was designed not only to protect these rights, but also to encourage their use. Consequently, the requirements of clarity, definiteness, and narrow scope are most strictly observed when a statute places a possible limitation upon First Amendment rights. Such scrutiny is necessary to provide a buffer between the valid exercise of the police power by the state and excessive restriction of the free dissemination of ideas.

A number of factors are taken into consideration in determining whether a state regulation meets these standards of clarity and narrowness. Among them are: (1) whether a substantial interest worthy of protection is identified or apparent from the language of the statute; (2) whether the terms of the regulation are susceptible to objective measurement by men of common intelligence; (3) whether those charged with its enforcement are vested only with limited discretion; (4) if penal, whether some element of knowledge or intent to obstruct a state interest is required; and (5) whether its clarity is...