State v. Zucconi

• Decision Date: 13 January 1967
• Docket Number: No. A--786,A--786
• Citation: 93 N.J.Super. 380,226 A.2d 16
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph F. ZUCCONI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 380

93 N.J.Super. 380

226 A.2d 16

STATE of New Jersey, Plaintiff-Respondent, v. Joseph F. ZUCCONI, Defendant-Appellant.

No. A--786.

Superior Court of New Jersey Appellate Division.

Argued Oct. 17, 1966.

Decided Jan. 13, 1967.

Frank M. Lario, Camden, for appellant.

Joseph A. Hoffman, Asst. Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney, Remo M. Croce, Deputy Atty. Gen., on the brief).

Before Judges GAULKIN, LEWIS and LABRECQUE.

The opinion of the court was delivered by

GAULKIN, S.J.A.D.

Defendant was convicted in a municipal court of careless driving in violation of R.S. 39:4--97, N.J.S.A., and fined. He appealed to the County Court where, after a trial De novo, he was again convicted and fined $100. He appeals.

His principal argument is that his oral and written admissions to the police that he was the driver of the automobile in question should not have been permitted in evidence because the police did not follow the rules laid down in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) when he was questioned.

The accident which led to the charge happened on December 4, 1964. Defendant's Chevrolet, occupied by him and Anthony and Angelo Lionelli, struck a curb and swung around into the path of another car. In the resulting collision Anthony was killed and defendant seriously injured. The record does not show what happened to Angelo or why he did not testify.

Defendant was removed to the hospital by ambulance. State Trooper Townsend, assigned to investigate the crash, testified he came to the hospital several times to interview defendant but found him unable to talk until December 16. On that date, while Townsend was 'still investigating' the case, defendant told him that he was driving the car and gave Townsend his version of how the accident happened. On December 20 while defendant was at home, having been discharged from the hospital, Townsend again interviewed defendant, recorded his statement in longhand, and had defendant read, correct and sign it. Townsend then said he would have the statement typed and would be back. He returned later the same day with a typed copy of the earlier statement and asked defendant to read it, and sign it if it was correct. The statement begins with the following:

'Q. * * * Do you Mr. Joseph Zucconi voluntarily desire to make a statement regarding this accident of your own free will and accord, fully realizing the importance of such statement to the state and all concerned?

A. Yes.'

The defendant signed the statement in the presence of members of his family. The statement does not admit any wrongdoing, but it does admit that defendant drove the car.

At the trial defendant was represented by counsel. He testified that it was the deceased Anthony Lionelli who drove the car. The State admits that without defendant's admissions it could not prove that defendant drove the car. The State also admits that defendant had no counsel when he made the admissions; that he was not told that he had a right to counsel or offered one; and that he was not warned that what he said might be offered in evidence against him. On the other hand, defendant admits that he did not ask for counsel.

The trial in the County Court took place on March 7, 1966 and the trial in the municipal court even earlier. For that reason alone Miranda did not apply to the case at bar. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, 892--893 (1966). Escobedo did not apply because defendant was not in custody and did not ask for counsel. State v. Ordog, 45 N.J. 347, 361, 212 A.2d 370 (1965); State v. Vigliano, 43 N.J. 44, 50--52, 202 A.2d 657 (1964). See also State v. Ninneman, 179 Neb. 729, 140 N.W.2d 5 (Sup.Ct.1966) certiorari denied 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 72 (1966).

We hold that even though defendant was disabled, he was not under arrest, in custody, or otherwise deprived of his freedom by the authorities when he made the admissions, and that Miranda (and, A fortiori, Escobedo) would not have applied to this case even if the trial had taken place after Miranda was decided.

In Miranda the Court said:

'* * * the prosecution may not use statements, whether exculpatory or inculpatory, stemming from Custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person Has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (86 S.Ct., at p. 1612 (1966); emphasis supplied.)

'To summarize, we hold that when an individual is Taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required * * *.' (Ibid, at p. 1630; emphasis supplied.)

Footnote 46 at 86 S.Ct., page 1630 of the opinion is indicative of what the court had in mind:

'The distinction and its significance has been aptly described in the opinion of a Scottish court: 'In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice may be, it must normally create a situation very unfavourable to the suspect.' Chalmers v. H. M. Advocate, (1954) Sess.Cas. 66, 78 (J.C.).'

See also People v. Tanner, N.Y.L.J., November 15, 1966 (N.Y.Sup.Ct.); Cox, 'The Supreme Court, 1965 Term,' 80 Harv.L.Rev. 91, 201--207 (1966); Sobel, The New Confession Standards, pp. 56--63 (1966); Pope, 'Escobedo, then Miranda and now Johnson v. United States,' 40 F.R.D. 351 (1966); Note, 'Developments In the Law--Confessions,' 79 Harv.L.Rev. 935, 1007--1008 (1966); Note, 78 Harv.L.Rev. 217, 223 (1964).

However, the State argues that, in any event, Miranda, Escobedo, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and similar cases do not apply to motor vehicle violations. In view of the importance of the question, we shall consider this argument.

Defendant argues that an offense under the Motor Vehicle Act is the equivalent of a crime and therefore one accused of such an offense is entitled to all of the constitutional rights and privileges afforded defendants in criminal cases. It is true that prosecutions under the motor vehicle act have been called 'quasi-criminal' and have often been equated with criminal prosecutions. But that has always been with reference to specific issues. See State v. Laird, 25 N.J. 298, 135 A.2d 859 (1957); State v. Ring, 85 N.J.Super. 341, 204 A.2d 716, (App.Div.1964); Varlaro v. Schultz, 82 N.J.Super 142, 197 A.2d 16 (App.Div.1964); State v. Francis, 67 N.J.Super. 377, 170 A.2d 476 (App.Div.1961); State v. Witter, 33 N.J.Super. 1, 108 A.2d 862 (App.Div.1954); State v. McCarthy, 30 N.J.Super. 6, 103 A.2d 169 (App.Div.1954); Unger v. Fanwood, 69 N.J.L. 548, 55 A. 42 (Sup.Ct.1903). See also City of Newark v. Pulverman, 12 N.J. 105, 95 A.2d 889 (1953); Borough of Ramsey v. Basil, 19 N.J.Misc. 555, 21 A.2d 860 (C.P.1941).

When it has been necessary or desirable to do so, the courts have emphasized the fundamental difference between 'quasi-crimes' and crimes, and refused to apply to the former doctrines applicable to the latter. In re Garofone, 42 N.J. 244, 246, 200 A.2d 101 (1964); State v. Currie, 41 N.J. 531, 197 A.2d 678 (1964); Sawran v. Lennon, 19 N.J. 606, 118 A.2d 10 (1955); State v. Maier, 13 N.J. 235, 99 A.2d 21 (1953); State v. Shoopman, 11 N.J. 333, 94 A.2d 493 (1953); Department of Conservation and Economic Development, etc. v. Scipio, 88 N.J.Super. 315, 212 A.2d 184 (App.Div.1965); Huff v. C. W. Goddard Coal and Supply Co., 106 N.J.L. 19, 148 A. 175 (Sup.Ct.1929); cf. State v. First Criminal Judicial District Court, 10 N.J.Misc. 723, 724, 160 A. 674 (Sup.Ct.1932).

In State v. Maier, supra, defendant was charged in a municipal court with assault and battery. Prior to the enactment of N.J.S. 2A:170--26, N.J.S.A., in 1951 this was an indictable offense. He moved to dismiss the complaint on the ground that the statute was unconstitutional in that it deprived him of the rights of indictment and trial by jury. The motion was denied and he appealed. The Supreme Court affirmed in a lengthy and learned opinion which demonstrated beyond a doubt that from earliest times a distinction has been made and acted upon between petty criminal offenses and violations of police regulations and crimes, and protections, constitutional and otherwise, jealously preserved in the latter have been held not applicable or necessary in the former. The court quoted with emphasis the following from McGear v. Woodruff, 33 N.J.L. 213 (Sup.Ct.1868):

'Indeed, extensive and summary police powers are constantly exercised in all the states of the Union for the repression of breaches of the peace and petty offences, and these statutes are not supposed to conflict with the constitutional provisions securing to the citizen a trial by jury. * * *' The parallel provisions of the United States Constitution have received similar construction. Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1887); Schick v. United States, 195 U.S. 65, 70, 24 S.Ct. 826, 49 L.Ed. 99, 102 (1904); District of Columbia v. Clawans, 300 U.S. 617, 625, 57 S.Ct. 660, 81 L.Ed. 843, 846 (1936). See also United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23, rehearing denied 377 U.S. 973, 84...