The opinion was delivered by: BRAITHWAITE, P.J.Cr.
Before this court is an appeal from the Atlantic City Municipal Court which found the defendant, David Morse, guilty of defiant trespass in violation of N.J.S.A. 2C:18-3b(1). When the defendant was convicted on November 9, 1993, the municipal court imposed a $100 fine, $25 costs, and $50 Violent Crimes Compensation Board Penalty. The issue raised is whether the affirmative defenses to defiant trespass are available to the defendant who had been evicted from Trump Plaza Hotel Casino (Trump Plaza).
On March 26, 1992, Joseph Rauch, a security investigator at Trump Plaza received a phone call from Nancy Kelly, a Trump Plaza shift manager, regarding a man who was playing blackjack in the casino. As a result of the call, Mr. Rauch went to the casino floor where Ms. Kelly pointed out the man who Mr. Rauch knew to be the defendant. Mr. Rauch was familiar with the defendant because he had evicted the defendant from Trump
Plaza on two prior occasions, October 23, 1993, and February 19, 1992. Below, the State alleged that the defendant's earlier ejections were for "cheating" while playing blackjack. Conversely, the defendant declared that he was not cheating. Instead, he insisted that he was merely a skilled blackjack player. Consequently, Mr. Rauch contacted the Division of Gaming Enforcement and two detectives were sent to investigate the defendant's presence in the casino. Notably, after both of the earlier evictions, the defendant was instructed not to return to the casino until the eviction was rescinded by the casino in writing. Specifically, the eviction notices given to the defendant explained that "if you. . . return after having been ejected, you will be arrested for trespassing. This formal ejection is effective immediately and shall remain in effect, unless rescinded by the landlord in writing."
The defendant acknowledged that he had been evicted in October 1990. However, he related that he was not aware of being evicted in February 1992. The defendant testified that even after October 1990 he continued to gamble in the casino. He contended that some Trump Plaza employees allowed him to gamble without any problem while other employees gave him a very difficult time. As a result, the defendant thought that he was permitted to enter the casino at any time as long as he did not act unlawfully. It is important to note that the State has not claimed that the defendant acted unlawfully in any way except that he entered the Trump Plaza.
The State suggests that since the defendant had been notified that his privilege to enter the casino had been revoked, his returning to the Trump Plaza on March 26, 1992, constituted defiant trespass. Moreover, the State contends that the affirmative defenses to defiant trespass are not applicable in this instance, because the casino never rescinded the eviction notice in writing. However, the defense argues that since Trump Plaza is open to the public, it has the right to evict patrons for unlawful behavior only. Hence, the defense contends that the affirmative defenses can be utilized by the defendant.
The defiant trespass statute states that "a person commits a petty disorderly offense if, knowing that he is not licensed to or privileged to do so, he remains in any place as to which notice against trespass has been given by actual communication to the actor." N.J.S.A. 2C:18-3b(1). Also provided for by the statute are affirmative defenses to the offense. Specifically, the one relied on by defendant states that "it is an affirmative defense to prosecution. . . that the structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure." N.J.S.A. 2C:18-3c(2).
The resolution of this issue rests on the balancing of common and statutory law. It has been well settled that common law dictates that "when property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude people unreasonably." Uston v. Resorts Int'l Hotel, Inc,. 89 N.J. 163, 174, 445 A.2d 370 (1982). The Uston Court held that only the Casino Control Commission (Commission) has the authority to exclude patrons based upon their methods of playing licensed casino games. However, the Court recounted that when property owners make their property accessible to the public, they can only exclude patrons for cause. Sufficient cause clearly includes instances where a patron disrupts or endangers business functions, behaves unruly or becomes a danger to himself or others. "The more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public to use that property." State v. Schmid, 84 N.J. 535, 562, 423 A.2d 615 (1980).
Equally important to this court is that "the statutory and administrative controls over casino operations established by the [Casino Control] Act (Act) are extraordinarily pervasive and extensive." Knight v. Margate, 86 N.J. 374, 380-81, 431 A.2d 833 (1981). In fact, the Act provides that its provisions are controlling in instances where other laws are ...