McBride v. City of Atlantic City

370 A.2d 1, 72 N.J. 201, 1976 N.J. LEXIS 229

Opinions

Pee Ctjbiah.

The judgment against plaintiff and in favor of defendant is affirmed- essentially for the reasons set forth in the trial court’s opinion. 146 N. J. Super. 498 (Law Div. 1975). We add the following because our dissenting brethren would remand the matter for a finding as to whether plaintiff, as he testified at trial, “requested the opportunity to consult counsel before making a choice between resignation and subjection to criminal charges and was told by Commissioner Eloriani that if he made such a request he would immediately be arrested.”

As the dissent properly points out, the Commissioner denied that plaintiff had made any such request but the trial court made no specific finding as to this factual dispute. However, a finding supporting the Commissioner’s contention is necessarily implied in the trial court’s determination that plaintiff’s resignation was not in fact obtained as the result of illegal means, i. e., coercion or duress. The trial court specifically dealt with defendant’s contention that he was not informed of his Miranda rights, one of which is the right to consult counsel. The court pointed out that this was not a custodial interrogation and therefore outside the Miranda rule. This discussion, insofar as it involved a right to consult counsel, would have been irrelevant unless the trial court had first determined that plaintiff had not requested that he be allowed to consult counsel before reaching a decision.

Affirmed.