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State v. Cremens

Decided: May 1, 1970.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JOSEPH CREMENS, THOMAS CHYBINSKI AND FRANK MANNO, DEFENDANTS



Kapp, J.c.c.

Kapp

Defendants stand charged on separate complaints in the Irvington Municipal Court wherein it is alleged that on September 26, 1969, at Civic Square in Irvington, defendant was a disorderly person "in that when apprehended he was consorting with [seven named persons] each bearing a bad reputation and each consorting with the other for an unlawful purpose contrary to the provisions of N.J.S.A. 2A:170-1."

Defendants moved for a dismissal of the complaints pursuant to R. 7:4-2(e) for the reason that the "consorting" presumption in the statute was not within the competency of the Legislature to enact, and thereby unconstitutional. The motion was denied; however, a stay of the trial was granted pending an interlocutory appeal to this court.

An affidavit filed in support of the motion alleges that defendants were arrested on September 26, 1969 in Civic Park, together with approximately 80 persons, charged with "consorting" in violation of N.J.S.A. 2A:170-1.

A consideration of defendants' contention leads us to State v. Salerno , 27 N.J. 289 (1958), where Chief Justice Weintraub expressed the view that the purpose of the challenged statute was to "nip crime in the beginning" by proscribing conduct that is indicative of a purpose to violate the law. It was also intended to prevent persons of bad

reputation from consorting for an unlawful purpose with other such persons and thereby to disrupt and scatter the breeding spot, such as an Appalachia.

N.J.S.A. 2A:170-1 provides that:

Any person who is apprehended and cannot give a good account of himself, or who is engaged in an illegal occupation and who is in this state for an unlawful purpose, is a disorderly person. In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation is prima facie evidence that he is present in this state for an unlawful purpose.

Any person who is apprehended and proven to the satisfaction of the magistrate before whom he is brought to be a person who is engaged in an illegal occupation or who bears a bad reputation, and consorts for an unlawful purpose with thieves, burglars, pickpockets, swindlers, confidence men or other criminals or persons who bear a bad reputation, is a disorderly person. In any prosecution under this section the fact that the person apprehended is engaged in an illegal occupation or bears a bad reputation and is found consorting with thieves, burglars, pickpockets, swindlers, confidence men or other criminals or persons who bear a bad reputation, is prima facie evidence that such consorting was for an unlawful purpose.

The first half of the statute was designed to control loitering. In the present case defendants challenge the validity of the proscription set forth in the latter part of the act, upon which the complaints are predicated. The provision of the statute under attack may be thus summarized:

Any person who is apprehended and proven to the satisfaction of the magistrate before whom he is brought to be a person * * * who bears a bad reputation, and consorts for an unlawful purpose with * * * persons who bear a bad reputation, is a disorderly person. In any prosecution under this section the fact that the person apprehended * * * bears a bad reputation and is found consorting with * * * persons who bear a bad reputation, is prima facie evidence that such consorting was for an unlawful purpose.

The defendants contend that the presumption created by the statute violates the constitutional requirement of due process of law for the reason that there is no rational connection between ...


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