On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication July 9, 1997.
Before Judges Petrella and Wallace.
Defendants Marvin J. Friedman and his wife Marsha Friedman appeal from their convictions after a trial de novo in the Law Division of violations of Washington Township's anti-noise ordinance on eight separate occasions when their dog's barking awakened their neighbor between the hours of 6:12 and 6:44 a.m. The Law Division Judge imposed the same $40 fine for each violation, totaling $320, as had the Municipal Court.
On appeal, the Friedmans make the following arguments:
I. As it was applied to these defendants, Washington Township's Anti-Noise Ordinance is unconstitutionally subjective and vague.
A. Other States have held identical subjective anti-noise ordinances to be unconstitutional.
II. The municipal Judge's evidentiary rulings were plainly erroneous because they were based on an unconstitutionally subjective and vague construction of the ordinance.
Washington Township issued eight separate summonses to the Friedmans for violation of Washington Township Ordinance 147-2(E) based upon complaints by their neighbor Naomi Theisz, that the defendants' dog, a Collie named Whitney, repeatedly woke her up in the early morning hours. The case was initially tried in the Woodcliff Lake Municipal Court on July 20, 1995, because of the recusal of the Washington Township Municipal Court Judge. After hearing the testimony of the complainant, Theisz, and the defendants, the Municipal Court Judge found defendants guilty on all eight summonses.
Defendants appealed to the Law Division and moved to dismiss the Washington Township summonses on the ground that the Township's anti-noise ordinance was unconstitutional. The Law Division determined that the ordinance was constitutional and that although the barking complained of was very brief in duration, it occurred with sufficient frequency to sustain a conviction under the ordinance. We conclude that although Theisz's testimony was sufficient to establish the times when the Friedmans' dog barked, her testimony did not establish that its barking constituted an unreasonable noise as required by New Jersey law and reverse.
Theisz testified that she and her husband sleep with the windows open whenever the weather permits, and that it is when the window is open that they hear the Friedmans' dog barking. Theisz claimed that the dog became very excited when defendants let her out in the morning and that she could hear it barking in the house before being let outside and then while it was exiting the home. Theisz claimed that the barking was very brief, but very loud; loud enough to wake her and her husband.
Theisz testified that the dog woke her and her husband on each of the eight occasions for which a summons was issued between the hours of 6:12 a.m. and 6:44 a.m. She said that she normally gets up in the morning at 7:00 a.m. Theisz also said she had written letters to the Friedmans explaining the problem, but they did not respond. The parties have been to court regarding this matter on two previous occasions. According to Theisz, she has been awakened by the dog since she filed the last complaint in June of 1995. Theisz claimed that the dog's barking annoyed her and disturbed her comfort, repose, and peace.
During cross-examination of Theisz, defendants attempted to question her about her efforts to solicit other neighbors to complain about the dog, apparently in an effort to show that Theisz was the only neighbor complaining. The Municipal Court Judge prohibited this line of questioning on the ground that it was irrelevant. During cross-examination Theisz stated that the barking only lasted a couple of seconds, but was enough to awaken her. The Municipal Court Judge also restricted defendants' efforts to question Theisz regarding her husband's hearing.
Mrs. Friedman testified that she and her husband had followed the same routine with their dog for the last eight and half years, taking the dog out every morning before they go to work. She also noted that they made a good faith agreement with Mrs. Theisz following neighborhood mediation, agreeing that they would attempt to keep the dog quiet in the mornings when they let her out. Mrs. Friedman testified that the only time there is a problem is when the Theiszes open their windows. Mrs. Friedman also said that her family has a ...