On appeal from the Superior Court of New Jersey, Law Division, Essex County, MA-01- 060.
Before Judges Skillman, Cuff and Lefelt.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 3, 2002
Following a trial de novo in the Law Division, defendant Carl Paserchia was convicted of violating a municipal ordinance banning disorderly conduct. Defendant was fined $500 plus $30 court costs. The fine has been stayed pending appeal. In this appeal, we must determine whether the municipal ordinance is preempted by N.J.S.A. 2C:33-2. We hold that it is and reverse the conviction founded on the municipal ordinance.
The events giving rise to the criminal complaint occurred on December 16, 2000, following an office Christmas party. After leaving the party, defendant and a group of co-workers went to a bar in West Orange. After consuming several alcoholic beverages at the bar, defendant was asked to leave the premises at about 12:15 a.m. Witnesses testified that defendant had an alcohol smell on his breath, swayed as he walked, waved his arms, cursed, argued with the bouncer and other patrons, and yelled at the parking attendants. An off-duty West Orange police officer working as a security guard that evening approached defendant and informed defendant that he would be arrested if he did not change his behavior. A back-up officer was called in case defendant's conduct deteriorated.
After some discussion with the officers, defendant's friends agreed to put defendant in a taxi and send him home. A taxi arrived and defendant was placed in the taxi; however, twenty minutes later the taxi returned with defendant. Defendant exited the vehicle and tried to re-enter the bar. When he was barred, defendant began arguing with the police officers, cursing and speaking loudly. He yelled "go f--k yourself, f--k you, f--k the police, if you lock me up, you don't know who you're messing with, I'm a police officer." He repeatedly insisted that he had paid to get into the bar and paid for his drinks and the bar could not restrict his re-entry. When defendant ignored the efforts by both officers to calm him, he was arrested. He was charged with violating West Orange Ordinance 4-12.3. No charge against N.J.S.A. 2C:33-2 was filed.
Defendant was convicted of violating the ordinance in the municipal court. His argument that the ordinance was preempted by N.J.S.A. 2C:33-2 was rejected by the municipal court. The judge reasoned that N.J.S.A. 2C:33-2 covers different behavior and requires purposeful behavior. In defendant's appeal to the Superior Court, his preemption argument was also rejected. The Law Division judge held that the ordinance is neither in conflict with nor preempted by N.J.S.A. 2C:33-2 because the statute does not explicitly state that it intends to occupy the field of disorderly conduct, the ordinance does not conflict with the State penal code, and disorderly conduct does not require a uniform State-wide approach.
On appeal, defendant raises the following arguments:
POINT I. THE MUNICIPAL ORDINANCE IS PREEMPTED BY N.J.S.A. 2C:33-2.
A. The West Orange Ordinance 4-12.3 Is Preempted Because It Overlaps and Conflicts with N.J.S.A. 2C:33- 2.
B. The West Orange Ordinance 4-12.3
Is Preempted Because The Subject Matter Reflects A Need ...