November 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWARD STONEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 08-058.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 5, 2009
Before Judges Axelrad and Sapp-Peterson.
Defendant, Edward Stoney, appeals from the judgment of conviction entered in the Law Division after a de novo review on the record appeal from the Freehold Township Municipal Court. We affirm.
Defendant, an owner of property in Aberdeen Township, received two summonses from Joseph McAleer, the township code enforcement officer, for failing to maintain the exterior of his property in a clean, safe and sanitary condition, free from accumulations of rubbish and trash, and for maintaining more than one commercial vehicle on his property, contrary to the requirements of Aberdeen Code § 301.1 and § 25:5-12.b.1, respectively. A third summons was issued to defendant by Aberdeen Police Officer Kathy Sisti on February 9, 2009, for the continuing violation of maintaining more than one commercial vehicle on his property.
The matter proceeded in the Aberdeen Municipal Court in April 2005 on the two summonses solely on the submission of briefs and arguments of counsel. Defendant admitted he had two tractor trailers parked at his house but argued they were not "commercial" vehicles because they were not being used for that purpose. He presented no defense as to the property maintenance violation. In December 2005, the municipal court judge found defendant guilty of violating both township ordinances.
On appeal, on May l9, 2005, the Law Division reversed defendant's convictions due to a lack of factual findings and remanded for a trial. In June 2007, the case was transferred to the Freehold Municipal Court.*fn1 After four days of hearings, Judge Foley found defendant guilty of two counts of the commercial vehicle violation and one count of the property maintenance violation. Defendant was fined $200 plus costs for each violation.
Defendant appealed to the Law Division, and following a trial de novo, Judge Kreizman found defendant guilty on all three charges and imposed the same fines as the municipal court. Specifically, the Law Division judge rejected defendant's argument that the municipal court judge erred when he refused to allow defendant to present evidence of prosecutorial vindictiveness. Defendant claimed he was issued the violation notices in retaliation for filing civil rights actions against the township and the code enforcement officer. Judge Kreizman, like the municipal court judge, found the retaliation issue to be irrelevant to the determination of the issues before him, i.e., whether defendant had more than one commercial vehicle and an unreasonable amount of trash on his property. The judge noted it was undisputed there were two big tractor trailers on defendant's property during the subject time period. He found as a matter of law that they were commercial vehicles whether or not they were currently being used for commercial purposes and were registered with the Department of Motor Vehicles as "antique" vehicles, noting defendant had not obtained an antique vehicle exemption from the township under the ordinance. The judge also deferred to the municipal court judge's crediting of McAleer as to the "tires, wood and junk" on defendant's property at the time the summons was issued, and found the photographic evidence further substantiated the condition had not been abated as of 2008. This appeal ensued.
On appeal, defendant argues the trial court committed reversible error in: (1) not allowing defendant to prove retaliation or prosecutorial vindictiveness, as his rights are protected under the federal ADA, 28 C.F.R. § 35.133, and the Law Against Discrimination, N.J.S.A. l0:5-11; (2) not granting a dismissal based on speedy trial and by declining to reverse the action of the previous court; (3) concluding defendant's antique vehicles were commercial vehicles. Defendant also argues that: (4) as the township's ordinance is being used as a quasi criminal statute, "all doubt must be resolved in defendant's favor" and (5) there is no evidence of what specific garbage defendant was cited for; McAleer promised to drop the charges if the problem was remedied, which it was; and the photograph taken four years after the incident was too remote in time to be relevant. We are not persuaded by any of defendant's arguments.
Defendant argues on appeal that the municipal court judge's rulings on defendant's requests to prove retaliation or prosecutorial vindictiveness against him and his wife who are civil rights activists for the disabled caused reversible error. We disagree. On July l5, 2004, defendant's wife filed an ADA suit against the township and in 2007 defendant filed a civil complaint against the township and McAleer alleging retaliation as a result of the subject summonses.
On February 20, 2008, Judge Foley conducted a conference with counsel on the record as a follow-up to his July 27, 2007 order directing the defense to file all motions within ten days. Based on the colloquy it was clear that although defense counsel may have noted his intention to file a motion to dismiss based on retaliation, no such motion was sent to the prosecutor or filed with the municipal court, nor had it been received by the Aberdeen municipal court.
Therefore, the court summarily denied "all motions" for failing to comply with the court order. The court also denied the prosecutor's oral motion to limit the testimony on the three summonses to the specifics of those summonses, reserving until it heard the testimony and questions raised.
At the commencement of trial on April l, 2008, defense counsel handed the prosecutor and court a trial brief. In response to Judge Foley's question of whether he was "concentrating on this area of retaliation," defense counsel responded that he was not and that the main issue concerned the "definition of commercial vehicle." On cross-examination, McAleer listed the prior law enforcement agencies he worked for; however, the court sustained the prosecutor's objections to general questions about potential problems the witness had in his jobs in the l980's and l990's. In response to defense counsel's question as to whether he "threaten[ed defendant] that [he] would retaliate against him if his wife followed through on civil rights violations against the municipality . . . shortly before the summons," McAleer stated, "[a]bsolutely not." Defense counsel had no further questions for McAleer.
On May l2, 2008, defense counsel hand delivered to the court and the prosecutor a letter brief that stated with regard to the retaliation issue:
Defendant is a homeowner who owns two vehicles. As the Court is aware the State's complaint (sic) witness Joseph McAleer wrote two tickets against Defendant including one for garbage in Defendant's yard and one for two commercial vehicles. As the Court is aware the Defendant alleges that Mr. McAleer continues to prosecute this matter as a result of Defendant's civil rights activities. As a matter of law the charges should be dismissed.
During the May l3, 2008 trial, when asked about communications with McAleer prior to receiving the summonses, defendant responded that he and his wife were "threatened quite a few times by [him]" as they do a lot of work regarding ADA access. Judge Foley sustained the prosecutor's objection to limit the case to the specific proofs regarding the commercial vehicles and trash and leave the retaliation issue to the civil forum. Defense counsel made the sole proffer that "there was intimidation prior to the tickets."
We are satisfied, as was the Law Division judge, that the municipal court judge appropriately exercised his discretion in precluding further cross-examination of McAleer regarding his previous employment as a "fishing expedition" without foundation, unrelated to the issue at hand, and remote in time. The trial judge heard testimony by defendant that he and his wife were threatened by McAleer because of their civic activities and McAleer's denial of any threat of retaliation against defendant. As further recognized by the Law Division judge, the trial judge also properly concluded that within the context of the record and the limited scope of the municipal court proceeding, the retaliation issue was not relevant to whether defendant had, in fact, violated the township ordinances with which he was charged.
As defendant never filed a speedy trial motion, he has no grounds to argue that the court erred in declining to grant a dismissal of the charges on that basis. Regardless, the record clearly demonstrates that defendant was not denied the right to a speedy trial as any delays were reasonably explained and justified, such as the remand and subsequent transfer of the municipal court trial from Aberdeen Township to Freehold Township. See State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. l999) (holding that whether a defendant has been afforded a speedy trial depends on the weighing of four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant asserted his right to a speedy trial; and (4) prejudice to the defendant); State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. l983) (delay does not include time that can be reasonably explained and justified). Moreover, defendant has failed to present a credible explanation as to how he has been prejudiced by the delay in the scheduling of the trial.
The ordinances with which defendant was charged are clear and unambiguous. Therefore, the doctrine of lenity which provides that "doubts are resolved in favor of the defendant" only "where there is ambiguity in a criminal statute" is inapplicable. United States v. Bass, 404 U.S. 336, 348, 30 L.Ed. 2d 488, 497, 92 S.Ct. 515, 524 (1971); State v. Reiner, 180 N.J. 307, 318 (2004). In enacting Section 25:5-12.b.1, it seems clear the township struck a balance by permitting a homeowner to drive a commercial vehicle home if needed for transportation purposes but prohibiting the storage of commercial vehicles in residential neighborhoods.
Our review of a de novo municipal court appeal is extremely limited; we do not re-weigh the evidence but only determine whether the findings could reasonably have been reached on sufficient credible evidence in the record, giving due deference to the credibility assessments of the fact-finder. State v. Locurto, 157 N.J. 463, 470 (l999); State v. Johnson, 42 N.J. 146, 161-62 (1964). We are satisfied the Law Division judge properly applied both municipal ordinances to the facts of the case and appropriately concluded as a matter of law that the two trailers on defendant's property were commercial vehicles and were not exempt from the requirements of the ordinance. While the township ordinance allows for an exemption for antique vehicles, the record also supports the findings that defendant did not apply for an exemption and thus he violated the ordinance by maintaining two commercial vehicles on his residential property on the specified dates.
Contrary to defendant's assertion, there was definitely detailed evidence presented as to the specifics of the property maintenance violation with which defendant was charged. McAleer expressly testified about the significant amount of tractor tires and rims and other business-related materials, trash, wood and debris he observed on defendant's property when he first inspected it, which was not abated when he returned a month later, necessitating the issuance of the summons. We are satisfied the credibility assessments of the municipal court judge and the trial record amply support the finding of trash and debris on the exterior of defendant's property at the time the summons was issued, in violation of the township's property maintenance code. Moreover, although defendant was not issued a subsequent summons for a continuing violation, as he was with respect to the commercial vehicles, the credible evidence in the record also reflects that the wood, trash and business-related debris on his property essentially went unchanged from 2004 through 2008.