January 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELLEN HEINE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-08-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 25, 2011
Before Judges R. B. Coleman and Harris.
Defendant Ellen Heine is appealing from a judgment of the Law Division, Bergen County, entered on a de novo review of her conviction in the Garfield Municipal Court for a violation of an ordinance that requires occupants to maintain exterior property and premises under their control in a clean, safe and sanitary condition. In a written opinion, Judge Edward A. Jerejian set forth the factual and legal basis for his determination that the State had established beyond a reasonable doubt that defendant had violated the ordinance. Because we are satisfied from our consideration of the proofs as a whole that Judge Jerejian's findings and the result he reached could reasonably have been reached on sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964), we affirm. Underlying our affirmance is our agreement with the Law Division's conclusions that the ordinance is not unconstitutionally vague and that the municipal court judge was not required to order a change of venue.
Prior to the trial, defendant filed a motion to change the venue, asserting a conflict of interest existed because she had joined the City of Garfield as a third-party defendant in a quiet title action between herself and the previous owner, Dr. Edwin Gilbert. She argued that the municipal court judge could not entertain the matter without being affected by an appearance of impropriety or bias. The court rejected these arguments and denied the request to change the venue, without stating the reasons for the denial.
The trial in the Garfield Municipal Court took place on February 9, 2010. The only witness was Frederick Krowl, the building inspector of the City of Garfield. Krowl testified that on August 5, 2009, he posted a notice on the front entrance of the subject property informing the occupants that they were in violation of the municipal ordinance because of a large accumulation of garbage on the premises, and they had forty-eight hours to take care of the problem. He took photographs on that date and on August 8, 10 and 11 to document the condition of the property. Some of the photographs were taken from the landing at the front door of the premises and others were taken from the property of a neighbor, with the consent of that neighbor. When the alleged violations had not been corrected by August 13, 2009, Krowl issued two summonses, based on records of ownership in the municipal tax office. One of the summonses was issued to defendant and the other to Dr. Gilbert.
After considering Krowl's testimony and the photographs depicting the condition of the property, the municipal court judge found defendant guilty of failing to maintain the property in a clean and sanitary manner.*fn1 It imposed a fine of $1,000 and $33 in costs.
On defendant's de novo appeal, the Law Division judge acknowledged that the municipal court judge had not placed on the record his reasons for denying defendant's motion to change the venue. In spite of that shortcoming, the judge concluded there was no prejudice, noting "the function of this court is to determine the case completely anew[.]" In his subsequent written opinion, the judge reiterated that ruling, stating "[w]ithout reaching the issue of whether the [d]efendant was indeed entitled to a change of venue at the municipal level, this [c]court has the jurisdiction to hear this matter de novo, and as such, the dangers of a conflict of interest between the municipal judge and the municipality are no longer present."
The court further determined that defendant was not entitled to an order suppressing the photographs taken by Krowl. The court also rejected defendant's argument that the photographs were taken "beyond the curtilage," which includes walkways, driveways, porches and land adjacent to a home that may be protected areas of privacy. Recognizing that various factors determine whether the Fourth Amendment safeguards an area of curtilage, such as whether the area is within an enclosure surrounding the home, the nature of the uses to which an area is put and the steps taken by the resident to protect the area from observation by people passing by, the judge concluded there was no infringement of defendant's Fourth Amendment right to privacy. Rather, he observed that "it is clear from the pictures that no steps have been taken to protect this area from public observation." He noted further that "it appears the area is not used for any particular personal or private purpose."
Judge Jerejian also rejected defendant's arguments that there was insufficient evidence to establish that there was, in fact, an accumulation of garbage on the property because the photographs admitted into evidence were taken on dates other than the date of the summons.*fn2 Krowl testified, however, that the bags contained rotting garbage and other debris, and that the photographs accurately depicted the conditions he personally observed on the dates the pictures were taken and on the date the summons was issued. As to defendant's challenge that the ordinance is void for vagueness, the court found defendant had failed to overcome the presumptive validity of the ordinance, and he concluded the ordinance was reasonably related to a legitimate governmental objective, attempting to regulate the accumulation of garbage and rubbish.
On this appeal, defendant reiterates the arguments advanced before the Law Division. More particularly, she raises the following points of argument in her brief in chief:
POINT I: THERE SHOULD HAVE BEEN A CHANGE OF VENUE DUE TO CONFLICT OF INTEREST.
POINT II: THE DENIAL OF THE MOTION TO SUPPRESS LEAVES UNRESOLVED CONSTITUTIONAL PROBLEMS.
POINT III: THE EVIDENCE PRESENTED RAISES QUESTIONS.
POINT IV: THE STATE CRITERIA IS VOID FOR VAGUENESS AND DEPRIVES THE DEFENDANT OF DUE PROCESS, BECAUSE AN AVERAGE PERSON OF AVERAGE INTELLIGENCE DOES NOT HAVE A CLEAR INDICATION OF ALL THE OFFENSES THAT VIOLATE THE ORDINANCE.
POINT V: THE MUNICIPAL JUDGE ABUSED DISCRETION. THIS WAS NOT CORRECTED ON APPEAL.
POINT VI: THE STATE DID NOT MEET ITS BURDEN. THE JUDGE'S DECISION EXHIBITS BIAS.
We affirm the judgment of the Law Division substantially for the reasons expressed by Judge Jerejian in his written decision. We add only a few brief remarks.
First, the scope of our review is "exceedingly narrow." Locurto, supra, 157 N.J. at 470. Our function in reviewing appeals of convictions that originate in municipal court is to determine "'whether the findings made [by the trial court] could have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1998) (quoting Johnson, supra, 42 N.J. at 162). We are satisfied the testimony of the building inspector provided a sufficient basis for the decision of the Law Division.
Next, defendant's principal argument is that her motion to change venue should have been granted because of a conflict of interest that arose when she named the municipality as a third-party defendant in a civil action between herself and the previous owner of the property. The Law Division assumed such a conflict existed, but found it to be of no consequence since its mandate on the de novo review was "to determine the case completely anew." See Rule 3:23-8(a), which provides, in pertinent part, that "the trial of the appeal [from a municipal court] shall be heard de novo [in the Law Division] on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of the defendant were prejudiced below[.]"
Defendant does not claim that her rights were prejudiced by a substantially unintelligible record, and the Law Division concluded she was not prejudiced by the municipal court's refusal of the request for a change of venue. However, "'it is not necessary to prove actual prejudice on the part of the court[;] . . . the mere appearance of bias may require disqualification. . . . [T]he belief that the proceedings were unfair must be objectively reasonable." State v. McCabe, 201 N.J. 34, 43 (2010) (quoting State v. Marshall, 148 N.J. 89, 279), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The test is whether a reasonable, fully informed person would have doubts about the judge's impartiality. Id. at 44.
Ordinarily, the Law Division and we are bound by credibility assessments made by the municipal court judge that are "substantially influenced by the judge's opportunity to hear and see the witnesses and to have a 'feel' of the case, which a reviewing court cannot enjoy[,]" Johnson, supra, 42 N.J. at 161, however, that circumstance is only nominally presented in this case, as only one witness testified, and there was no competing testimony to weigh. Though the building inspector was cross-examined on his vantage point to observe the garbage bags on defendant's property and on his perception of the contents of the bags, his testimony was not refuted. There was no evidence contradicting his testimony, and acceptance of his testimony did not depend upon the trial judge's "feel" of the case. Moreover, while we do not have the benefit of the photographs, the Law Division judge found the photographic evidence corroborated Krowl's testimony.
In addition, we reject defendant's assertion that the municipal court judge had a conflict of interest. While it is plain that a municipal court judge should disqualify himself or herself whenever the judge and a lawyer for a party are adversaries in another open, unresolved case, see McCabe, supra, 201 N.J. at 38, or where the judge had, while serving as an assistant county prosecutor, presented evidence against the defendant to the grand jury, see State v. Kettles, 345 N.J. Super. 466, 471 (App. Div. 2001), the circumstances alleged here are far more attenuated. Defendant asserts there is an appearance of impropriety by virtue of defendant's filing of a third--party complaint against the municipality in a civil action pending between herself and Dr. Gilbert. If defendant's position were to prevail, a litigant could cause the disqualification of the municipal court judge in all cases concerning the litigant by the simple expedient of naming and joining the municipality in a pending civil action concerning a dispute between successive owners.
"One of the primary functions of the rules governing judicial disqualification 'is to maintain public confidence in the integrity of the judicial process, which in turn depends on a belief in the impartiality of judicial decision making.'" Kettles, supra, 345 N.J. Super. at 469-70 (quoting United States v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982), cert. denied, 462, U.S. 1118, 103 S. Ct. 3086, 77 L. Ed. 2d 1348 (1983)). "The rule recognizes that the fairness and integrity of the judgment is as important as the correctness of the judgment." Id. at 470. Ultimately, our rules of court place the onus upon the judge to determine whether there is "any reason which might preclude a fair and unbiased hearing and judgment or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). Other than making the bald assertion that the municipal judge might be biased by virtue of the pending civil litigation in which the municipality was named as a third-party defendant, there is no basis for anyone to believe that the municipal court judge would favor either litigant or that he should be personally disqualified.
Defendant also alleges in her reply brief that the municipal court judge was a prosecutor in an earlier property maintenance case against Dr. Gilbert. Notably, she does not allege that the judge prosecuted her. Hence, we do not understand how that earlier property maintenance case could cause an informed person to believe it would result in bias or prejudice against defendant.*fn3 Similarly, we fail to see how an appearance of impropriety would arise because the current municipal prosecutor prosecuted an earlier case involving the property before defendant acquired or claimed any ownership interest. See also R. 1:15-3(b) (precluding a municipal prosecutor from simultaneously serving as defense counsel in the same county in which he or she serves as a municipal prosecutor). In this case, we do not perceive an appearance of impropriety.
Defendant also argues the ordinance is unconstitutionally vague. In general, "a reviewing court should presume the validity and reasonableness of a municipal ordinance." First Peoples Bank v. Twp. of Medford, 126 N.J. 413, 418 (1991) (citation omitted). "Anyone challenging an ordinance as arbitrary or unreasonable bears a heavy burden." Ibid. (citations omitted). "Accordingly, a court will sustain an ordinance if it is supported by a rational basis." Id. at 418-19. We recognize, however, that the rule of lenity dictates that ambiguities in penal ordinances are resolved in favor of a defendant charged with a violation. State v. Golin, 363 N.J. Super. 474, 482 (App. Div. 2003). Thus, "under federal constitutional law, a 'statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'" Ibid. (quoting Betancourt v. Town of W. New York, 338 N.J. Super. 415, 422 (App. Div. 2001)).
The Law Division judge applied this standard and concluded that the challenged ordinance appropriately regulates the accumulation of garbage in exterior areas of residential properties and that a person of reasonable intelligence would understand what was permitted or prohibited. On the facts of this case, we have no reason to disturb the Law Division's ruling.
Next, defendant challenges evidentiary rulings that resulted in the admission into evidence of photographs that she contends were taken from constitutionally protected areas and on dates other than the date of the summons. These were discretionary rulings of the court, as to which we find no mistaken exercise of discretion. Where the trial judge makes a determination concerning the admissibility of evidence, our review of that action is gauged against the palpable abuse of discretion standard. Brennan v. Demello, 191 N.J. 18, 31 (2007). According to that standard, the evidentiary determinations "'should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Here, no such showing has been made. The trial judge appropriately considered the building inspector's testimony that he had personally observed the conditions depicted in the photographs and that the photographs accurately reflected what he observed on each of the dates he visited the property.
With regard to defendant's argument that the bags observed by the building inspector were within the curtilage of her home and therefore protected by the Fourth Amendment right to privacy, that right does not attach to items seen from vantage points such as semi-private areas where visitors may be expected to go. State v. Lane, 393 N.J. Super. 132, 146 (App. Div. 2007). Here, the observations were made from the landing at defendant's entrance and from a neighbor's property. The trial court appropriately concluded that defendant had no legitimate expectation of privacy at those locations. See State v. Johnson, 171 N.J. 192, 209 (2002).
Finally, we have considered all of defendant's remaining arguments in light of the facts and applicable law, and we find they lack sufficient merit to warrant discussion in a written opinion beyond the discussion contained in the opinion of the judge of the Law Division. R. 2:11-3(e)(2). We decline to disturb the decision of the Law Division.