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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...