State v. Wasserman
| Decision Date | 13 July 1962 |
| Docket Number | No. A--688,A--688 |
| Citation | 75 N.J.Super. 480,183 A.2d 467 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Faye WASSERMAN, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Aaron Marder, Newark, for appellant (Gerold Kanengiser, Jersey City, attorney, Aaron Marder, Newark, of counsel).
William A. O'Brien, Asst. Pros., for respondent (Lawrence A. Whipple, Hudson County Pros., and William A. O'Brien, Jersey City, attorneys).
Before Judges PRICE, SULLIVAN and LEWIS.
The opinion of the court was delivered by
LEWIS, J.A.D.
Defendant Faye Wasserman, 66 years of age, appeals from a judgment of the Hudson County Court, Criminal Division, entered on April 6, 1962, revoking her probation and suspended sentences and imposing new sentences. There had been 16 indictments under our criminal statutes against her involving N.J.S. 2A:87--1, N.J.S.A. (abortion), N.J.S. 2A:96--6, N.J.S.A. (placing or assisting in placing a child for the purpose of adoption without proper authority), and N.J.S. 2A:96--7, N.J.S.A. (placing of children for adoption, other than by approved agency, for a consideration). Following a plea of guilty as to one indictment and her pleas of Non vult as to the remaining 15 indictments, the sentencing court levied fines totalling $7,000 and sentenced her to the New Jersey State Reformatory for Women at Clinton for respective indeterminate terms (the maximum limit of any single term was five years), all to run concurrently. The aggregate of the several respective indeterminate terms on the 16 indictments was 28 years. At the same time, the court suspended the reformatory sentences and placed defendant on probation for five years.
Thereafter, on February 16, 1962, Mrs. Wasserman was arrested on two criminal complaints as the result of her alleged dealings with one Margaret Boyle and negotiations indirectly with a Patricia Close. The Boyle matter was referred to the grand jury, and the complaint respecting Close was withdrawn by the prosecutor. On February 24, 1962 defendant was charged with violating her probation and the notice thereof, duly served on the probationer, concluded with the specific statement that:
'(1) You have failed to avoid injurious and vicious habits.
(2) You have again become involved with the law.
(3) You have continued with your illegal behavior in that:
a. On or about Jan. 19, 1962, you negotiated with Jerome Close, husband of an expectant mother for the sale of her unborn baby (Mrs. Patricia Clark Close).
b. On or about Nov. 16, 1961, Dec. 5, 1961 and Dec. 26, 1961, you did negotiate with an expectant mother for the sale of her unborn baby (Margaret Boyle).
You may, if you so desire, retain counsel to represent you at the hearing.'
There was a full hearing on the charges. Defendant was represented by counsel and three days were consumed in the examination and cross-examination of 13 witnesses, arguments of counsel and customary trial procedure. The trial judge had a strong and abiding conviction, based upon the evidence produced, which he characterized as being 'beyond a reasonable doubt,' that defendant did violate her probation and was again involved in the for which she had been previously convicted and sentenced. Accordingly, the probationary period and the suspended sentences were revoked and, on April 6, 1962, defendant was resentenced and committed to the aforesaid Women's Reformatory for an indeterminate term not to exceed five years. Parenthetically, we note that in such a proceeding the trial judge was only required to have had reasons to believe the violation charges were true in order to justify the revocation. State v. Moretti, 50 N.J.Super. 223, 237, 141 A.2d 810 (App.Div.1958). Petition for release on bail pending appeal was denied by order of this court on May 5, 1962.
We have studied the record and have reached a determination that the judgment of the County Court should not be disturbed. No useful purpose would be served by extending this opinion with a review and an analysis of the proofs. There is ample evidence to support the termination of probation and the imposition of new sentences. Defendant was accorded an adequate hearing, as contemplated by N.J.S. 2A:168--4, N.J.S.A. and our decisional law. See State v. Zachowski, 53 N.J.Super. 431, 147 A.2d 584 (App.Div.1959); State v. Pascal, 1 N.J. 261, 62 A.2d 882 (1949); State v. Haber, 132 N.J.L. 507, 41 A.2d 326 (Sup.Ct.1945). The ultimate sentence imposed was within statutory limits and was not 'manifestly excessive.' State v. Johnson, 67 N.J.Super. 414, 432, 170 A.2d 830 (App.Div.1961); also State v. Dickerson, 72 N.J.Super. 459, 464, 179 A.2d 33 (App.Div.1962). We are not impressed with the New York precedent (People v. Slater, 304 N.Y. 896, 110 N.E.2d 503 (Ct.App. 1953)) to which we have been cited by defendant. In that case a violation of the New York adoption statute was involved, and defendant's sentence was reduced to six months. Unlike the instant case, the defendant there was sentenced to prison and, moreover, his acts of criminality were not as extensive and flagrant as those of Mrs. Wasserman.
On this appeal from a judgment in a summary statutory proceeding, defendant for the first time questions the constitutionality of two of the three statutes under which she had been convicted. Ordinarily, a Habeas corpus proceeding is the remedy pursued to collaterally challenge an alleged unconstitutional statute. In re Kelly, 123 N.J.Eq. 489, 198 A. 203 (Ch.1938), affirmed per curiam sub nom. McRell v. Kelly, 124 N.J.Eq. 350, 1 A.2d 926 (E. & A. 1938), overruled on other grounds Eggers v. Kenny, 15 N.J. 107, 104 A.2d 10 (1954); 5 Anderson, Wharton's Criminal Law & Procedure, sec. 2228, p. 463 (1957). Cf. Annotation, 32 A.L.R. 1054. To avoid 'piecemeal' litigation, which is disapproved in our modern practice, we shall here proceed to consider the merits of that issue. Note, State v. Jenkins, 32 N.J. 109, 117, 160 A.2d 25 (1960), reversing 57 N.J.Super. 93, 103, 154 A.2d 29 (App.Div.1959).
The two criminal statutes under attack are N.J.S. 2A:96--6, N.J.S.A. and N.J.S. 2A:96--7, N.J.S.A. They spell out a legislative objective which appears to be obvious from a Verbatim reading of their text. We quote:
No person, including a natural parent or parent by adoption, and no firm, corporation, association or agency, other than an agency approved to place children for adoption as provided by law, shall place, offer to place, or In any manner assist in the placement of a child in the home of any other person or persons for the purpose of adoption and, in so doing, take, receive or pay any money or Anything of value, or undertake or discharge any financial obligation, except in connection with the birth and any illness of the child. Any person, including a natural parent or parent by adoption, and any firm, corporation, association or agency, other than an agency approved to place children for adoption as provided by law, violating this section, shall be guilty of a high misdemeanor. L.1953, c. 265, p. 1779, § 2.' (Emphasis supplied)
During the 1953 session of the Legislature there was also adopted N.J.S.A. 9:3--19 (), which pertains to the civil aspects of the same subject. The pertinent provision thereof (section 19, subd. A) provides:
It is entirely appropriate for us to consider that enactment as an extrinsic aid in our search for legislative intent. Key Agency v. Continental Cas. Co., 31 N.J. 98, 103, 155 A.2d 547 (1959); Morris County Industrial Park v. Thomas Nicol Co., 35 N.J. 522, 526, 173 A.2d 414 (1961); 2 Sutherland Statutory Construction (3d ed., Horack, 1943), sec. 5201 'Statutes in pari materia--To be construed together.' The aforequoted statutory excerpts were all a part of the 1953 revision of our Child Adoption Laws, and were companion measures, consecutively numbered in the Legislature; they were sponsored by the same legislator, and were adopted into law on the same day. They culminated four years of study, incorporated in substance the recommendations of the Adoption Advisory Council and its advisory committee, and...
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