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Borough of Somerdale v. Michael T. Rigolizzo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 7, 2011

BOROUGH OF SOMERDALE, PLAINTIFF-RESPONDENT,
v.
MICHAEL T. RIGOLIZZO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 51-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2011

Before Judges Baxter and Koblitz.

Defendant Michael T. Rigolizzo appeals his sentence and argues that some of his fifty-four violations of the Somerdale Property Maintenance Code, § 197-1 to -27 (Somerdale Code), should merge. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Between May 17, 2007, and September 5, 2007, the Borough of Somerdale (Borough) issued summonses to defendant for violations of two provisions of the Somerdale Code. The provisions in question state:

(2) It shall be the duty of the owner or operator to keep the premises free of hazards, which include but are not limited to the enumerations and provisions in the following subsections.

(j) Appearance of exterior of premises and structures. The exterior of the premises, the exterior of structures and the condition of accessory structures shall be maintained so that the appearance of the premises and all buildings thereon shall reflect a level of maintenance in keeping with the standards of that particular area and such that the appearance of the premises and structures shall not constitute a depressing factor for adjoining property owners nor an element leading to the progressive deterioration and downgrading of the particular area with the accompanying diminution of property values.

(l) Landscaping. The landscaping of premises shall be maintained in an orderly state with lawns and bushes trimmed and free from becoming overgrown, littered and unsightly where such would constitute a blighting effect depreciating any adjoining and nearby property. Open areas shall be graded evenly to eliminate holes, depressions, gullies, mounds, accumulations of debris or other unsightly or unsafe conditions.

[Borough of Somerdale, N.J., Prop. Maint.

Code, § 197-9 (A)(2).]

The municipal court found defendant guilty of fifty-four violations, imposing a fine of $250 and court costs of $33 on each violation for a total of $15,282. The penalty on such violations ranges from $100 to $1000 per violation. Pursuant to Rule 3:24-1, defendant appealed to the Law Division. The Law Division judge on his de novo review found defendant guilty of the same violations as the municipal court, but imposed only a $150 fine for each violation of Somerdale Code § 197-9

(A)(2)(l), (Section L), which governs landscaping, and $200 for each violation of Somerdale Code § 197-9 (A)(2)(j), (Section J), which governs the exterior of premises, for a total of $9900 plus costs. Defendant was found guilty of simultaneously being in violation of Section L and Section J of the Somerdale Code eighteen times. He was also found guilty of an additional eighteen Section J violations, which all occurred on separate occasions. Defendant raises the following arguments on appeal:

I. THE SENTENCE BELOW IS EXCESSIVE AS IT IMPOSES A DOUBLE PENALTY FOR THE SAME VIOLATION

A. Standard of Review

B. The Violations of Section "J" and Section "L" Should Be Merged for Sentencing

II DEFENDANT SHOULD BE CHARGED WITH THE IMPOSITION OF THE MINIMUM PENALTY FOR EACH VIOLATION

Our scope of review of a de novo trial conducted by the Law Division pursuant to a municipal appeal is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We will uphold the Law Division's factual findings if they "could reasonably have been reached based on sufficient credible evidence present in the record." Oliveri, supra, 336 N.J. Super. at 252 (citing State v. Locurto, 157 N.J. 463, 470 (1999)) (citation omitted). The Law Division's "interpretation of the law and the legal consequences that flow from established facts[,]" however, "are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant argues that violations of Section J and Section L on the eighteen dates he was found to be guilty of both should merge because both sections deal with the appearance of the premises. Additionally, defendant argues that because another judge in the Law Division previously merged his convictions for the same violations in 2007, his current convictions should also be merged.

"Merger is based on the principle that 'an accused [who] has committed only one offense . . . cannot be punished as if for two.'" State v. Miller, 108 N.J. 112, 116 (1987) (quoting State v. Davis, 68 N.J. 69, 77 (1975)). "[T]he focus is on the elements of the crimes and the Legislature's intent in creating them." Miller, supra, 108 N.J. at 116. The Borough points out that defendant was found guilty of violating Section J because the structure lacked siding. After reviewing contemporaneous photographs of the property, the Law Division judge found that the windows and siding were not installed. Defendant was found guilty of violating Section L because he failed to mow the lawn. The uncontroverted evidence in the record demonstrates that the grass was at least twenty-one inches high on those dates when defendant was found guilty of this violation. Failure to keep up the exterior of a structure is a distinct violation, requiring different proofs, than failure to keep up the appearance of the lawn. Although in similar circumstances a Law Division judge merged twenty-nine Section J offenses with twenty-nine Section L offenses against defendant in August 2007, such a merger does not constitute binding precedent for future violations. The fact that a judge in a prior trial chose to merge the violations for sentencing purposes in a circumstance where such merger was not mandated does not require a judge to do the same in a second, subsequent trial.

Defendant argues that he should receive the minimum penalty of $100 per violation because he thought he was not responsible for the property after November 30, 2006, when he executed a consent judgment with his mortgage company, Singer Financial Corporation (Singer), in connection with a foreclosure action on this property. Defendant anticipated that a sheriff's sale would proceed in January 2007. He does not deny that he continued to receive the summonses in question here. In September 2007, he moved to require Singer to assume all maintenance obligations on the property. This application was ultimately granted, and Singer subsequently maintained the property. The Borough argues convincingly that defendant knew about his ongoing obligation to keep up the property because he remained the owner of the property and had been cited for these violations in the past.

The Law Division judge reduced the penalties imposed by the municipal court. We do not find the penalties imposed by the Law Division judge to be excessive. State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. Roth, 95 N.J. 334, 365 (1984).

Affirmed.

20110307

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