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State v. Gonzalez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDUARDO GONZALEZ, STUDIO 45 DISCOTHEQUE, INC., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 45-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Reisner and Sapp-Peterson.

Defendant Eduardo Gonzalez, sole proprietor of the Studio

45 Discotheque, Inc. appeals from a November 30, 2007 order of the trial court, finding him guilty of maintaining a nuisance, N.J.S.A. 2C:33-12, as well as several violations of Union City Ordinance 10-4.6, concerning operating a music device after closing hours, and violations of Ordinance 10-4.1, concerning the legally-permitted hours of operation.*fn1 We affirm.

The November 30, 2007 order stems from defendant's Law Division appeal from a municipal court conviction. On the Law Division appeal, defendant challenged the constitutionality of the municipal ordinance concerning hours of operation. After hearing extensive oral argument on November 7, 2007, Judge Vazquez issued an oral opinion on November 30, 2007, holding that the ordinance was constitutional. Thereafter, in a separate case, we also addressed the constitutional issue in great detail, and upheld the ordinance. Studio 45 Discotheque, Inc. v. City of Union City, No. A-6386-05T3 (App. Div. March 5, 2008).

In the November 7 oral argument, defendant's counsel contended in general terms that even if Ordinance 10-4.1 was constitutional, his client did not violate the ordinance so as to be guilty of creating a nuisance. The prosecutor contended that even if the ordinance was unconstitutional, some of defendant's activities constituted a nuisance. Judge Vazquez indicated that he had not yet read the municipal transcripts but he recognized that he would need to read them to address the nuisance charge. In his oral opinion of November 30, the judge indicated that "from the review of the transcripts . . . there was music playing after closing time which testimony I found credible and that that was a violation of 10-4.6." He made additional findings based on the municipal transcript, ending with a finding that on "maintenance of a nuisance by remaining open after two a.m." defendant was guilty.

On this appeal defendant has abandoned his constitutional arguments, conceding that our prior decision in Studio 45 is controlling on the constitutional issues. Instead, he argues that the Law Division judge did not read the municipal transcripts before addressing the nuisance charges; that defendant should not have been found guilty of nuisance because he believed in good faith that the controlling ordinance was unconstitutional; and that his conduct was lawful. We find no merit in these contentions. It is clear that Judge Vazquez read the municipal transcripts. The "good faith" argument was not presented to Judge Vazquez and will not be addressed here for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973).

We likewise will not address defendant's argument concerning imposition of sanctions against him individually, an issue not raised in the trial court. Ibid. Moreover, because defendant has not provided us with the transcripts of the municipal appeal, nor with any exhibits introduced in the municipal trial, he has not perfected an appeal based on the municipal court record. In the absence of a proper record, we cannot adjudicate any of his arguments based on evidence allegedly presented in the municipal court.*fn2

Affirmed.


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