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State v. McGlone

September 30, 2010

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES MCGLONE, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal No. A-46-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 7, 2010

Before Judges Payne and Messano.

The State has appealed the sua sponte dismissal by a Law Division judge of its complaint against defendant, James McGlone, for violation of the zoning ordinance of Winslow Township, Camden County, as the result of failure to maintain a mandatory five-foot setback in connection with the location of an accessory shed on his property. The matter was initially tried in the Winslow Township municipal court on August 11, 2008. At the conclusion of the trial, the municipal court judge found defendant guilty of violating the setback requirement. She fined defendant $533 and ordered him to move the shed.

On August 21, 2008, the matter was appealed to the Superior Court. Following a trial de novo on the record below, the Law Division judge found defendant guilty of the offense charged and imposed a fine of $100 plus court costs. However, on February 20, 2009, the judge issued an opinion in which he found that the Winslow Township municipal court lacked jurisdiction of the matter, because defendant's address was specified on the complaint, on a May 5, 2008 letter from the Winslow Township Construction Official, and on a defense document that was admitted in evidence to be 359 S. Egg Harbor Rd. Hammonton, NJ 08037 - an adjoining municipality in a different county. As a consequence, the judge found that the Winslow Township Municipal Court had exceeded its territorial jurisdiction pursuant to N.J.S.A. 2B:12-16a. Accordingly, the judge granted the appeal and dismissed the complaint.

In response to this ruling, the State informally moved for reconsideration, noting that a survey of defendant's property, admitted in evidence without objection at trial in the municipal court, listed the property as "being part of Lot 9, now known as 9C, Block 6901 as shown on the official tax maps of Winslow Township."

In a response dated February 26, 2009, the trial judge declined to vacate his dismissal of the complaint. He stated:

If the State intended to charge that the offense occurred in Winslow Township, then the Complaint should have so specified. It did not, Instead, the Complaint specified that the location of the offense was in Hammonton, as set forth in this

[c]court's February 19, 2009 Opinion and Order. The Complaint was never amended, either in the Municipal Court or in the trial de novo proceeding, to assert that the location of the offense was in Winslow Township. If Mr. McGlone was being charged with an ordinance violation in Winslow Township, the Complaint should have so specified, or have been amended to so specify. No amendment was made.

Upon receipt of the judge's opinion, the State again moved for reconsideration. When doing so, it pointed out that the complaint against defendant, in fact, stated:

Complaining Witness: Edward McGlinchey of Winslow Twp. Zoning Office,... by certification or an oath, says that to the best of his/her knowledge or information and belief, the named defendant on or about May 29, 2008, in Winslow 0436 County of Camden N.J. did commit the following offense: SHED DOES NOT MEET SET BACK REQUIREMENTS in violation of (one charge only) Ord. 296-50.

The state argued further that, if it were assumed, contrary to fact, that the complaint failed to set forth where the offense occurred, the court's decision in State v. Vreeland, 53 N.J. Super. 169 (App. Div. 1958) established that failure to specify jurisdiction did not constitute proper grounds upon which to premise dismissal. The State then quoted the following from the Vreeland opinion:

It is readily to be granted that the record of any judicial proceedings should as a matter of good practice reflect those facts which support the jurisdiction of the court over the subject matter in order to minimize the possibility of the undue assumption of power by an unauthorized tribunal. In the present case, the magistrate or the County Court should, on objection, have amended the complaint to state the place of commission of the offense. But this is not to say that where in fact jurisdiction exists its exercise should be nullified after the ...


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