On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 47-45.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 3, 2010
Before Judges Axelrad and Fisher.
Defendant Suleiman Mohammad appeals from the judgment of conviction entered in the Law Division after a de novo review on the record appeal from the Clifton municipal court. We affirm.
Defendant was charged with violating two Clifton ordinances pertaining to the occupancy of an attic in his home. The first, Ordinance § 210-2, requires in part, an owner of a dwelling unit within the municipality to obtain a dwelling certificate prior to any change in occupancy or change of title (hereinafter referred to as the Dwelling Certificate Ordinance). The asserted change in occupancy resulted from defendant's son beginning to occupy the attic apartment, which had previously been a storage room. The second, Ordinance § 283-2, prohibits an owner or landlord of a building to cause or permit occupancy of an attic "as a dwelling unit created by means of an illegal conversion" (hereinafter referred to as the Conversion Ordinance). Pursuant to the definitional section of the Ordinance, § 283-1, a dwelling unit is defined as any room or group of rooms "forming a single habitable unit with facilities . . . for sleeping and cooking and/or sanitary purposes," and an illegal conversion is a change in use of any space to create a dwelling unit without approval of the appropriate board or agency of the City and for which no dwelling certificate exists.
At trial in the municipal court the State presented the testimony of Mark Russomanno, a Clifton Code Enforcement Officer; Daniel Howell, the Clifton Zoning Officer; and Frank Bender, a Clifton Fire Inspector. Defendant testified, along with his brother and son. The testimony was divergent. As to the Conversion Ordinance, the municipal court judge expressly credited the testimony of Russomanno and Howell. In addition, the court considered the City's records which showed that when defendant purchased the property in September 2001, there were two units, a first floor and a second floor, and the third floor was a storage room. The court did not find credible the asserted defense that the condition of the property on October 16, 2006, the date of the two complaints, was the same as it was when defendant purchased it and thus he made no changes. Based on the competent evidence, the court found to the contrary, namely, that on the latter date defendant's son was living in the attic, which had been converted illegally from a storage space to an apartment.
As to the Dwelling Certificate Ordinance, the court found that the last dwelling certificate for the property was issued on September 6, 2001, at which time the attic was only used for storage. However, defendant subsequently changed the occupancy from a two unit to a three unit building, with the third floor converted from storage space to living quarters, without making any further application for a new dwelling certificate. The court also found the inspector did not illegally enter defendant's premises.
Based on the testimony and evidence presented at trial, the municipal court judge found the State had satisfied its burden of proof and found defendant guilty of both charges. Defendant was ordered to pay fines of $400 and $300, for illegal occupancy and conversion, and failing to obtain a dwelling certificate of occupancy, respectively. Defendant appealed.
After a trial de novo in Superior Court, Rule 3:23-8(a), defendant was again convicted of violating both ordinances. He was sentenced just as he was in the municipal court. This appeal ensued.
On appeal, defendant challenges the credibility assessments, factual findings and legal determinations of the municipal court and Law Division judges. Based on our review of the record and applicable law, we are not persuaded by defendant's arguments.
In its de novo review of a municipal court conviction, the Law Division must make independent findings of fact and conclusions of law, although it is bound by the evidentiary record created in the municipal court. State v. Thomas, 372 N.J. Super. 29, 31 (Law Div. 2002), aff'd, 372 N.J. Super. 1 (App. Div. 2004). The Law Division must also give due regard to the municipal judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). However, as with the Law Division, we are not in a position to judge credibility and do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence," State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 382 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then,  should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).
We affirm substantially for the reasons set forth by Judge Mizzone in his comprehensive opinion. We are satisfied he properly deferred to the credibility assessments of the municipal court judge and properly applied the municipal ordinances to the facts of the case. There is ample evidence in the record to support the finding that the State satisfied its burden of proof to establish that defendant ...