On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-10-0856.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Kestin.
On October 25, 2006, a Somerset County grand jury indicted defendant, Eric T. Rowland, with the commission of a fourth-degree crime, N.J.S.A. 56:8-146, for violating N.J.S.A. 56:8-138, which requires any person in the business of making or selling home improvements to register with the Division of Consumer Affairs. See N.J.S.A. 56:8-136 to -152, the Contractors' Registration Act (the Act).
The evidence before the grand jury and in subsequent proceedings disclosed that, in August 2006, defendant was engaged to renovate a bathroom in a home. He gave the homeowner a written contract proposal and a diagram of the work to be done for a total price of $8,540. The homeowner signed the proposal and gave defendant a check for $3,750 as the initial payment. Defendant did not begin the renovation as agreed, prompting the homeowner to call the police; thereafter, he and defendant resolved their differences, agreeing that defendant could begin the work.
Defendant's application for a municipal permit allowing the work was denied, however, because he was not registered with the Division of Consumer Affairs. The homeowner requested a return of the deposit. Defendant refused, insisting that he was entitled, at least, to be compensated for preparing the plans and completing the permit application. The homeowner again called the police, who also determined that neither defendant nor his company, Mercury Woodworks and Carpentry, was a registered contractor. Defendant maintained that he had been unaware of the registration requirement until he applied for the permit. The indictment followed.
On January 31, 2007, defendant filed a motion to dismiss the indictment. The trial court granted that motion on March 20, 2007, ruling that N.J.S.A. 56:8-146 requires knowledge of the provisions of the Act before one can knowingly violate the Act and criminal liability attaches. . . . [I]n order to knowingly violate any of the provisions of N.J.S.A. 56:8-138 defendant had to know that that statute existed and had to be aware of his obligations under it.
In State v. Rowland, 396 N.J. Super. 126 (App. Div. 2007), certif. denied, 193 N.J. 587 (2008), we reversed. We held that, as a general rule, "our criminal code makes ignorance of the law irrelevant." Id. at 128; see N.J.S.A. 2C:2-2d.
[T]he elements of the offense . . . set forth in N.J.S.A. 56:8-138(a) . . . are . . . (1) engaging in the home-improvements business; and (2) not being registered with the Division of Consumer Affairs. N.J.S.A. 56:8-146 makes that conduct a fourth degree crime when it is done knowingly; it does not require proof that the defendant knew the law. [Rowland, supra, 396 N.J. Super. at 130.]
Defendant had relied on Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), as authority for his argument that his lack of knowledge of the law insulated him from prosecution for its violation. In rejecting that contention, we relied on State v. Hatch, 64 N.J. 179 (1973), for the insight that the result in Lambert was limited to offenses "of omission rather than commission" where "inquiry as to the applicable law was unlikely," [and that no insulation existed with respect to] statutes concerned "with acts of commission, in situations where regulations abound and inquiries are likely, and where the purposes are to insure the public safety . . . ." [Rowland, supra, 396 N.J. Super. at 133 (quoting Hatch, supra, 64 N.J. at 184).]
We concluded that the conduct here involved "acts of commission, not omission[,]" and we remanded for trial. Ibid.
The trial court next addressed the matter on March 7, 2008, in a pretrial intervention (PTI) context. The brief proceeding, presided over by a different judge than the one who had entered the ruling dismissing the indictment, reveals the trial court's evident perception that defendant's agreement to the terms of PTI was reluctant. The prosecutor noted that PTI had been offered initially, in 2006, but was precluded by defendant's motion to dismiss the indictment. Following the trial court's ruling on that motion, our reversal, and the Supreme Court's denial of certification, the PTI matter had been revived, with some modification, and was being presented to the court for approval. See R. 3:28. Defendant was sworn and the following colloquy ensued:
THE COURT: . . . . Good afternoon, Mr. Rowland. You've been very fortunate.
THE DEFENDANT: Have I? Yes, I have, I guess.
THE COURT: Well, to be in the [PTI] Program . . . . Not everybody gets into the [PTI] Program. But along with the entry into the [PTI] Program are a number of conditions that you must honor, and one of those is community service. And here it's 50 hours of community service, you understand that?
THE COURT: All right. There's also restitution in the amount of $3,750, do you understand that?
THE COURT: Total financial obligation imposed would be $3,875, and that would be paid at the rate of $120 per month; do you understand that?
THE COURT: The term of your [PTI] . . . will be for 36 months, or three years, ...