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Township of Chester v. Panicucci

Decided: September 29, 1971.

TOWNSHIP OF CHESTER, PLAINTIFF-RESPONDENT,
v.
MARIO PANICUCCI, DEFENDANT-APPELLANT



Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D.

Lane

The appeal in this matter is from "the final order of the Morris County Court entered in the subject action on August 25, 1970, wherein the Court denied the application of the defendant-appellant seeking an order determining the provisions of Section 46 of the Chester Township Vice and Immorality Ordinance to be invalid as being preempted by state statutes and unconstitutional." The appendix does not contain a copy of the order of August 25, 1970. R. 2:6-1(a)(3) requires that the appendix contain "the judgment, order or determination appealed from or sought to be reviewed or enforced." This rule should be scrupulously adhered to.

Defendant was served with a summons returnable before the Municipal Court of the Township of Chester alleging a violation of section 46 of the township's Vice and Immorality Ordinance in that defendant did discharge a firearm within 300 feet of a dwelling.

Section 46 provides:

No person shall discharge any firearm upon or across any State, County or Municipal road or highway, and no person except the owner or lessee of the property and persons specifically authorized by him in writing shall have in his possession a loaded gun while within 300 feet of any occupied dwelling in the Township of Chester or while within 400 feet of a school playground.

It is difficult to determine what happened before the municipal court. The notice of appeal to the County Court is "from the Judgment of the Municipal Court of Chester Township, orally entered on January 27, 1970, wherein said Court ruled that Section 46 of the Chester Township Vice and Immorality Ordinance was valid and denied the motion of the defendant to strike said Section of said Ordinance and to dismiss the charge brought thereunder against the defendant on Complaint #302-69, dated October 22, 1969. At the conclusion of said ruling, the Judge of the Municipal Court of Chester Township granted permission to the defendant to appeal such decision and to stay the proceedings under the aforementioned complaint pending a determination on appeal as to the validity of Section 46 of the Township of Chester Vice and Immorality Ordinance."

No testimony was taken before the County Court, the defendant presumably having proceeded under R. 3:10-3. During the course of the argument before that court, the township's attorney stated that the incident happened in a parking lot within 300 feet of a house. The parking lot belonged to the State Preserve. In his brief defendant stated:

It was admitted by both sides, however, that it was within the confines of the State property, whether or not it was in the open fields and woods or in the parking lot area.

Before the municipal court the only factual admission on behalf of defendant was: "I admit they were apprehended, that the apprehension was in the parking lot, but that's as far as I can go."

The County Court filed a letter-opinion affirming the "judgment" of the municipal court denying defendant's motion. In the court's view there was nothing in the ordinance which can support "the view that it was designed to control or regulate the taking of game. The ordinance as construed is designed to promote the safety and welfare of the community." Section 46 was held valid under the provisions of N.J.S.A. 40:48-1.18.

Judgments or orders must be reduced to writing. R. 4:42-1. This ...


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