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State v. Attavane

December 15, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 6-2008.

Per curiam.


Submitted October 27, 2009

Before Judges Grall and Messano.

Defendant Prabha Attavane appeals from the judgment of conviction that followed a de novo trial of her municipal appeal in the Law Division. Defendant was found guilty in municipal court of violating Woodbridge Township zoning ordinance §150-29B, and fined $500. In the Law Division, she was found guilty again, and the same sentence was imposed.

On appeal before us, defendant raises a multitude of issues, including a challenge to the constitutionality of portions of the ordinance, and a claim that those portions have been pre-empted by State law. She also contends that the State failed to prove her guilt beyond a reasonable doubt. Because we agree that the State's proofs were insufficient, we reverse the judgment of conviction, and remand the matter to the Law Division for entry of a judgment of acquittal. We decline the opportunity to address the other issues defendant raises on appeal.

The salient facts are as follows. Michael Logan, a Woodbridge housing inspector, testified that the municipality received an anonymous complaint regarding defendant's property located in Iselin. The complainant alleged that "different people [were] coming in and out" of the property, and suspected the property was being used as a boarding house. Without prior notice, Logan went to defendant's home between 9:30 and 11:30 a.m. to perform an inspection. He "rang the bell," spoke to defendant, explained why he was there, and asked defendant if he could inspect the property. She consented. Through open doors, Logan observed three rooms on the first floor. One room had a bed and a bedroll. The second room had another bed and there was a third bed[room], which the owner stated... was hers. Then there was a room in the basement. And she did state that there was [sic] people staying with her.

Defendant, who was alone at the time, told Logan that the people staying with her "were friends" who were "helping her pay the bills since her father passed away." Logan took pictures of the inside of the property which were entered into evidence at the municipal court trial.

Logan explained to defendant that "it[] [was] not permitted... to have that many people staying with her[,]" because under such circumstances, the residents of the house could not be considered "a family unit." Logan also advised defendant that she could remedy the situation by asking some people to leave, and by having only "one other person... stay with her."

On the same date, August 30, 2007, Logan sent defendant a letter notifying her that she was in violation of zoning ordinance §150-29B, "Not Permitted Rooming/Boarding House R-6 Zone." The letter also advised defendant to contact the Woodbridge Bureau of Property Maintenance/Code Enforcement "immediately so that [she could] arrange a date by which these conditions w[ould] be remedied." Instead, in September, defendant's attorney contacted Logan and "said that she wanted a summons issued because the... people were not leaving." A summons was issued to defendant that day.

On October 12, 2007, Logan returned to the property with housing inspector Ed Roberts to see if defendant had remedied the alleged violation. Defendant invited them inside, and informed Logan that only one person was living with her on that date. Logan observed a woman who defendant identified as her cousin. Logan also observed "a gentleman at the door... [who] stated he was there to pick up some bags."

Logan observed that "[t]here was also a chain lock on a door... from the first floor, [in] the kitchen, which le[d] down to the basement." A lock permitted the door to be secured from the kitchen. Logan testified that during the second inspection, "it looked like there was compliance []." He explained:

People were leaving.... Someone [was] picking bags [up] from one of the empty rooms, which looked like it was kind of vacated, because... [of] the way the bed looked, [and] the way the room looked[,]... like it wasn't lived in. Bags were being packed and they were being moved out.

In spite of this, based upon his observations, the initial complaint, and what defendant had previously told him -- "that she had people living there with her that were friends and they were there helping her pay the mortgage[,]" -- Logan concluded that defendant was running a rooming/boarding house.*fn1 Defendant did not testify. Defense counsel moved to dismiss the summons arguing that the State had failed to prove defendant guilty beyond a reasonable doubt. Specifically, she noted a failure to establish that defendant was taking ...

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