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State of New Jersey v. Ellen Heine

January 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELLEN HEINE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-08-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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