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State v. Asitimbay


January 26, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-10-08.

Per curiam.


Submitted December 15, 2009

Before Judges Carchman and Parrillo.

Following a trial in the Municipal Court and then a trial de novo in the Law Division, defendant Luis Asitimbay was found guilty of twenty-six separate zoning violations. He was fined an aggregate amount of $20,850 together with $858 in court costs. Defendant appeals, and we affirm.

From the sparse record, we discern that defendant is the owner of a rooming house located at 331 Union Street, Hackensack. Subsequent to his acquisition of the property, which had been utilized as a rooming house, defendant made certain improvements that have now been characterized as creating a "speakeasy." The zoning officer issued a series of summons against defendant for, among other things, expanding a garage into a family room and bar without zoning approval; operating a business out of the garage; installing a toilet in a rear shed; paving the rear yard without approval; installing an illegal fence; installing lighting and fixtures in the rear yard and basement; adding an apartment in the basement without zoning approval; creating living facilities in the attic without zoning approval; and creating a public nuisance for failure to clean the yard after appropriate notice. The additional violations included failure to make all electrical wiring safe throughout the house; failure to remove lighting sensors; failure to provide proper fixture clearances in basement toilet; failure to remove overcrowding conditions; and failure to provide working CO and smoke detectors throughout the house. Some of the violations reflected a failure to comply with prior mandates for repair and correction. In sum, defendant was operating, on a continuous basis, a facility that reflected significant health and safety concerns.

In his Criminal Case Information Statement filed contemporaneously with his Notice of Appeal, defendant indicated that the issue in this appeal "involve[s] only whether the trial court imposed a proper sentence." Defendant's terse brief asserts that "[t]he court's decision in this case resulted in a fine that was excessive, duplicative, and disproportionate to the alleged offenses and therefore was an abuse of judicial discretion."

Our review of sentences is limited. State v. Natale, 184 N.J. 458, 489 (2005). "Although 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]' 'when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989), State v. Evers, 175 N.J. 355, 386 (2003) (citation, internal quotations marks and editing marks omitted)). When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court]..., they need fear no second-guessing." Id. at 181 (quoting State v. Roth, 95 N.J. 334, 365 (1984).

In imposing sentence, Judge Lipton stated:

The... Court finds that on the remaining charges that the fines are not excessive because in fact, for violations in zoning code the fine can be $1,250 for each offense. The fines in the municipal court were not in some cases seeking the maximum fines. For the property maintenance code the fine is up to $1,000 per offense and even though the situations weren't corrected, the maximum fines were not given on each violation. The summons -- there are a lot of summonses that were issued for one property, but we're talking about three different dates at least two different inspectors and I think the big point here is if someone has violations of the building code or -- or zoning, sometimes it's the right thing to do to give them time to correct it. This defendant was given time to correct and hadn't done that by the second and third inspections and I think... the reason that the fines are not lower is that this defendant operated --used the property for business for profit for a boarding house which was a permitted use, but he extended it beyond what was permitted. He also had a business which wasn't permitted which included selling liquor and there were serious laws regulating sale of liquor for good reason. The municipality is responsible for enforcing ordinances because they directly affect the health and safety of the resident. In this case, there were conditions on the property that were clearly unsanitary. The toilet situation in the shed. The electrical problems unsafe for the people, the tenants paying the rent. And for the neighborhood at large. And to do anything but impose substantial fines would be to just have these violations and have these fines on the violations be a cost of doing business. There are many people who break the law because they can continue to make money and pay their fines and just keep doing it. This had to stop. And it didn't stop after the first visit or the second visit. So, I think very frequently one of the purposes of fines when there are violations such as these are to deter the defendants and others from finding it profitable to engage in a situation or a business where they're gonna [sic] make money and hey, if they get fined a few dollars that's part of the cost of doing business.... [T]here has to be a message. And apparently here, things were corrected which is good, but apparently the only reason they were corrected was because the defendant realized that the law was gonna [sic] be enforced and well it should. Again, you're talking health, safety, there's a -- a obligation to protect.

We have carefully reviewed the record and conclude that the judge did not abuse her discretion in imposing the fines under the circumstances presented.



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