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State v. Profaci

Decided: June 26, 1970.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SALVATORE PROFACI, JR., DEFENDANT-APPELLANT



For reversal -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.

Haneman

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 excited 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 of Englewood, 51 N.J. 108 (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 (1956). See also Russo v. Governor of State of New ...


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