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State v. Gilbert

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWIN O. GILBERT, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. 06-067.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 1, 2008

Before Judges Skillman and Winkelstein.

Defendant was convicted in the City of Garfield Municipal Court of violations of municipal Ordinance No. 1676, which requires a property owner to maintain his property free of litter, and municipal Ordinance No. 2382, which by incorporation of section 302.1 of the International Property Maintenance Code requires a property owner to maintain his premises in a "clean, safe and sanitary condition." The court imposed a $1,000 fine and court costs for each violation. On appeal, the Law Division convicted defendant of the same violations and reimposed the same sentence.

On appeal, defendant presents the following arguments:

I. THE VIOLATIONS STATED IN THE SUMMONS ARE UNCONSTITUTIONALLY VAGUE.

II. PART OF THE SENTENCE IS UNCONSTITUTIONALLY VAGUE.

III. THERE IS NO EXPERT TESTIMONY ABOUT DEFINITIONS OR SAFETY STANDARDS.

IV. THE PROPERTY MAINTENANCE CODE HAS NOT BEEN ENFORCED CORRECTLY.

V. THERE ARE DEFECTS IN THE EVIDENCE.

The only argument presented by appellant that requires brief discussion is his claim under Point I that "[t]he violations stated in the summons are unconstitutionally vague[.]" A statutory enactment "that is challenged facially may be voided if it is 'impermissibly vague in all its application,' that is, there is no conduct that it proscribes with sufficient certainty." State v. Cameron, 100 N.J. 586, 593 (1985) (quoting Village of Hoffman Estates v. The Flip-side, Hoffman Estates, 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed. 2d 362, 369 (1982)). The municipal ordinances that defendant was found to have violated are clearly not vague in all of their applications.

Subsection 201-16 of Ordinance No. 1676, which requires a property owner to maintain his premises free of litter, is perfectly clear, at least in most of its applications:

The owner, agent, contractor or person in control of any private property, including a construction, demolition or excavation site, shall at all times maintain the premises free of litter.

Although the term "litter" would be reasonably clear even without any definition in the ordinance, subsection 201-1 of ordinance 1676 contains a definition that eliminates any possible doubt as to this term's meaning:

Garbage, refuse and rubbish, as such are defined herein, and all other waste materials which, if thrown or deposited as herein prohibited, tend to create a danger to public health, safety and welfare or render the streets, private grounds or public places unsightly.

The requirements of subsection 302.1 of the International Property Maintenance Code, which is incorporated in Ordinance No. 2382, is also sufficiently clear in most of its applications for a property owner to understand his obligations thereunder. This subsection provides:

All exterior property and premises shall be maintained in a clean, safe and sanitary condition. The occupant shall keep that part of the exterior property which such occupant occupies or controls in a clean and sanitary condition.

Furthermore, the summonses issued to defendant gave him reasonable notice of the nature of his alleged violations of these ordinances. One summons alleged that he had violated the anti-littering ordinance by "garbage and litter (large amounts)" on his property and the other summons alleged that he had violated the ordinance requiring maintenance of his premises in a safe condition by "concrete blocks in hazardous position." These charges gave defendant sufficient notice of the alleged violations for him to be able to present a defense.

The other arguments raised in defendant's brief are without sufficient merit to warrant any discussion in addition to the discussion contained in Judge Colacino's February 22, 2007 and Judge Austin's August 6, 2007 oral opinions. See R. 2:11-3(e)(2). We only note that the photographs introduced into evidence together with the testimony of the municipal enforcement officials provided a sufficient evidential foundation for the lower court's findings of the ordinance violations.

Affirmed.

20080721

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