On appeal from Superior Court of New Jersey, Law Division, Sussex County, Mun. Appeal No. 43-9-99.
Before Judges King, Coburn and Axelrad.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Anwar Qarmout filed a citizen complaint in municipal court on August 17, 1999, alleging that the defendants had committed the petty disorderly persons offense of criminal trespass, N.J.S.A. 2C:18-3b. On August 26, the complaint was dismissed because of the absence of probable cause pursuant to R. 7:2-2(a)(1). Mr. Qarmout appealed to the Law Division, which affirmed the ruling of the municipal court in an order dated March 20, 2000, accompanied by a written statement of reasons. This appeal ensued. We reverse and remand with the direction that the defendants be summoned to answer the charge.
The affidavit submitted to the municipal court by Mr. Qarmout on the issue of probable cause indicated that he was the owner of real property in Newton and that during the period August 18, 1998 through November 12, 1998, the defendants had improperly deposited solid waste materials on the property. The affidavit included these statements:
I GAVE PERMISSION TO [THESE DEFENDANTS] TO USE MY ABOVE PROPERTY TO DUMP CLEAN FILL. I SPECIFICALLY PROHIBITED ANY ENTRANCE UPON MY PROPERTY EXCEPT FOR DUMPING CLEAN FILL. . . . ON OR ABOUT OCTOBER 27, 1998, THE SUSSEX COUNTY HEALTH DEPARTMENT WROTE ME THAT PROHIBITED SOLID WASTE WAS DUMPED ON MY PROPERTY.
N.J.S.A. 2C:18-3b, entitled "Defiant Trespasser," provides as follows:
A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(1) Actual communication to the actor; or
(2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(3) Fencing or other enclosure manifestly designed to exclude intruders.
The Law Division judge reasoned that probable cause did not appear because the complainant admitted that he had given defendants permission to enter his land, thereby licensing them to be on the property. In reaching that conclusion, the judge erred by disregarding the limited nature of the license involved.
Prior to adoption of the Criminal Code, N.J.S.A. 2C:1-1 to 98- 2, this action would have been governed by N.J.S.A. ...