April 5, 2012
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH AND WILDLIFE, PLAINTIFF-RESPONDENT,
JOSEPH L. MILLS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-29-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012
Before Judges Baxter and Nugent.
Following a trial de novo in the Law Division, defendant Joseph L. Mills appeals from an order imposing a $100 civil penalty based upon a finding that he violated N.J.A.C. 7:25-5.7(g) by failing to immediately tag a wild turkey upon killing it. We reject defendant's contention that because the municipal court judge dismissed, with prejudice, this tagging violation, the Division of Fish and Wildlife (Division) lacked the authority to appeal the dismissal to the Law Division. Such an argument mistakenly confuses double jeopardy in a criminal case with an involuntary dismissal in a civil case. We likewise reject defendant's contentions that the hunting regulations were selectively enforced against him, and that he was held to a "higher standard" because he held the title of president of the Bowhunters Association.
Finally, we find unpersuasive defendant's claim that because the case was dismissed with prejudice at the municipal court level before he had the opportunity to fully present a defense, the Law Division should have remanded the matter to the municipal court for the completion of the trial rather than entering a judgment against him. The record demonstrates that the Law Division judge was well aware from defendant's testimony, and from defendant's cross-examination of the Division's witness, of the defense defendant asserted, and rejected that defense as a matter of law. For that reason, no useful purpose would have been served by a remand. We affirm the order under review.
Paul Toppin is a State Conservation Officer employed by the New Jersey Department of Environmental Protection, Division of Fish and Wildlife. His principal responsibility is to enforce the hunting regulations issued by the Division. Officer Toppin was on duty on May 3, 2010, conducting enforcement activity in Mantua Township near a field consisting of ten to fifteen acres of open ground. He was assigned to this particular investigation because he lived nearby. Toppin arrived on location at approximately 7:00 a.m. and at 11:45 a.m. observed defendant emerge from his cover wearing his hunting vest, and carrying a compound bow and a dead turkey. Toppin watched as defendant walked to his vehicle and placed the turkey on the ground.
Toppin noticed that defendant had not affixed a hunting tag to the wing of the turkey, in violation of applicable Division regulations. According to Toppin, when a hunter secures a hunting license for the season, he purchases a specified number of tags, each for a different week and a different zone. When the hunter kills a turkey, he is obliged to immediately affix a tag to the turkey, and enter the date and time of the kill, and the municipality where it occurred. Toppin further explained that hunters are required to immediately place the tag on the turkey while still in the field so that the bird can be legally transported to a check-in station. He explained that although a hunter is obliged to complete and affix the tag immediately after killing the turkey, he, Toppin, typically "wait[s] and give[s] a person an opportunity when they [sic] get back to the truck" to do so. Toppin observed defendant "for approximately ten to fifteen minutes" after defendant laid the turkey on the ground after emerging from his cover, and at no time did defendant affix the tag to the turkey or make any effort to "actively look for a pen" with which to do so. Nor, according to Toppin, was there a tag "anywhere near the turkey or on [its] body."
After waiting the ten to fifteen minutes, Toppin approached defendant, identified himself as the Game Warden and asked defendant "where his tag was for the turkey." Defendant responded that the tag "was in the cab of [his] truck, [and] he hadn't gotten it out yet." When Toppin asked defendant whether he had entered the required information on the tag, defendant responded that he "didn't have a pen with [him] in the field, so [he] was going to do it at the truck." Asked on cross-examination if he was aware when he first approached defendant that defendant was president of the New Jersey Bowhunters Association, Toppin answered, "I did not know. He told me that."
After making a written notation of defendant's identifying information, Toppin returned defendant's hunting license to him, but informed defendant that he intended to seize both the permit for that day "as well as the bird" because the tag had not been properly completed. A few days later, Toppin mailed defendant a summons charging him with violating N.J.A.C. 7:25-5.7(g) and N.J.S.A. 23:4-24.2 by failing to immediately tag the turkey upon killing it, and unlawfully hunting within 300 feet of a baited area.
At the conclusion of Toppin's testimony, defendant moved for dismissal of the tagging charge. The municipal court judge granted the motion, reasoning that tagging is required for the transport of a turkey to a weigh station, but no violation had occurred. He concluded that the turkey had not yet been transported, it was still on the ground, and defendant had not yet placed it into his truck. The judge stated "[t]he ground [was] dirty, damp, wet . . . [and] [p]lacing [the turkey] on the outside of the truck means that something else is going to happen. If it had been placed in the back of the pickup truck, that would have been a different thing."
The judge denied defendant's motion to dismiss the baiting charge, and defendant testified concerning that alleged violation. For a reason not explained by the record, even though the trial was at that point limited to the baiting charge, defendant's testimony also included evidence concerning the already-dismissed tagging charge. Defendant testified that when he reached his truck, he laid the turkey on the ground because he was "looking for [his] keys to unlock [his] truck because [he] suspected [his] pen was in the truck." He explained that he normally keeps a pen in his vest, but a turkey vest has between twenty and thirty pockets, and it was while he was trying to find his keys to unlock his truck that Officer Toppin approached him. When Toppin asked him for his hunting license, defendant opened his truck, and found a pen.
When he asked Toppin whether Toppin wanted him to complete the tag, Toppin answered "[n]o, it's too late at this point." Asked how many minutes had elapsed from the time he exited the hunting area until Toppin approached him at the side of his truck, defendant answered, "I don't know, I didn't time -- it couldn't have been that long. I mean, I didn't time it." At that point, the municipal prosecutor reminded defendant's attorney that the tagging charge had already been dismissed. Defendant's attorney then ceased questioning defendant about the tagging charge, and turned his attention to the baiting charge, which, as we have already noted, the municipal court judge ultimately dismissed.
The State appealed to the Law Division from the dismissal of both the tagging and the baiting charges. At the conclusion of the trial de novo, the Law Division judge ruled that the Division's proofs were insufficient to establish a violation of the baiting charge, and the judge issued an order of dismissal. In contrast, the judge held that the Division's proofs did establish a violation of the tagging charge. In particular, the judge found that although the regulation requires a hunter to tag the turkey immediately, which the judge defined as "occurring without delay, instant[ly]," Toppin had waited an additional ten to fifteen minutes before charging defendant with the violation. Nonetheless, defendant had still not completed the tag or affixed it to the turkey.
The judge also observed that the tag itself, which was in evidence, stated:
Upon harvest[ing] a turkey, immediately complete the below information and then place [in] the license holder and affix holder to the turkey wing.
The judge noted that the regulation is designed to enforce the limits on the number of turkeys that can be harvested by any one hunter during a given time period. The judge concluded that "even giving the defendant some leeway, . . . he did violate that [section] of the Code." After finding that the Division proved defendant had committed a violation of the tagging regulation contained in N.J.A.C. 7:25-5.7(g), the judge entered judgment in favor of the Division and fined defendant $100.
On appeal, defendant maintains:
I. THE LAW DIVISION ERRED BY CONVICTING THE APPELLANT OF THE PREVIOUSLY-DISMISSED CHARGE OF FAILING TO TAG A TURKEY WHEN IT SHOULD HAVE REMANDED THE MATTER FOR FURTHER HEARING.
II. THE DISMISSED CHARGE OF FAILING TO TAG THE TURKEY AMOUNTED TO A DISMISSAL WITH PREJUDICE AND SHOULD HAVE NEVER BEEN REVIVED BY THE LAW DIVISION.
III. THE LAW DIVISION ERRED BY FINDING APPELLANT GUILTY OF FAILING TO "IMMEDIATELY" TAG THE TURKEY.
IV. THIS APPELLANT WAS UNFAIRLY HELD TO A HIGHER STANDARD OF CONDUCT AND WAS SPECIFICALLY TARGETED FOR ENFORCEMENT BECAUSE OF HIS VISIBLE STATUS AS PRESIDENT OF THE UNITED BOWHUNTERS OF NEW JERSEY.
Although we are bound by the Law Division judge's findings of fact provided those findings are supported by substantial and credible evidence in the record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), our review of the judge's legal conclusions is de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The tagging requirement for turkey bow hunting is set forth in N.J.A.C. 7:25-5.7(g), which provides as follows:
Any wild turkey killed must be tagged immediately with the completed wild turkey transportation tag. [(Emphasis supplied).]
"Transportation tag" is defined in N.J.A.C. 7:25-5.1(d)(5) as follows:
"Transportation tag" means the tag portion of the hunting license or special permit which is removed and affixed to the animal immediately upon kill or removal from the trap. It is also a tag supplied by the Division with the beaver and otter trapping license.
The turkey tagging requirement is further explained on the tag itself:
Upon harvest[ing] a turkey, immediately complete the below information in ink, place in license holder, and affix holder to turkey wing. [(Emphasis added).]
Before entering the field, a hunter must obtain a bow hunting license as well as a permit for the week and zone or area in which he wishes to hunt. N.J.A.C. 7:25-5.7(a), (f) and (h).
In Point I, defendant maintains that the Law Division judge erred by entering judgment against him on the previously-dismissed charge of failing to immediately tag the turkey rather than remanding the matter to the municipal court for the continuation of the hearing. Defendant maintains that because the tagging charge was dismissed by the municipal court, he was never afforded the opportunity to fully provide exculpatory evidence. We disagree.
As is evident from the Law Division judge's findings of fact and conclusions of law, he clearly understood the defense that defendant asserted, namely, that defendant was in the process of opening the door to his truck to search for a pen to complete the tag when Toppin approached him. The judge rejected that defense, finding that Toppin had waited ten to fifteen minutes before approaching defendant, and defendant had made no effort to complete the tag or even look for a pen during that interval. Defining the term "immediately" in N.J.A.C. 7:25-5.7(g) as "occurring without delay, instant[ly]," the Law Division judge concluded that because defendant did not immediately affix the tag, and after ten to fifteen minutes had elapsed had still not done so, defendant violated the applicable regulation. Defendant himself admitted to Officer Toppin that the turkey was not tagged. Contrary to defendant's assertions, we see nothing that would have been developed on remand that was not already fully evident from the existing record. We reject the claim defendant advances in Point I.
In Point II, defendant asserts that because the charge of failing to immediately tag the turkey was dismissed with prejudice in the municipal court, the Law Division lacked the authority to "revive" that charge. While we agree with defendant's contention that a judgment of involuntary dismissal "constitutes an adjudication on the merits," Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 243 (1998) (citation and internal quotation marks omitted), that adjudication on the merits did not deprive the Division of the prerogative of appealing that dismissal to the Law Division in the same fashion as any non-prevailing party in a civil matter is entitled to do. Defendant's argument to the contrary incorrectly confuses double jeopardy in a criminal case with an involuntary dismissal in a civil case, although defendant acknowledges that violations of the Fish and Game Code are civil actions under the Penalty Enforcement Act. See Dep't of Conservation & Econ. Dev. v. Scipio, 88 N.J. Super. 315, 321 (App. Div.), certif. denied, 45 N.J. 598 (1965). The Division had every right to challenge the dismissal in the Law Division. We reject the claim defendant advances in Point II.
In Point III, defendant asserts that the Law Division erred by finding that he violated the applicable regulation by failing to "immediately" tag the turkey. We have already addressed the substance of this claim in connection with defendant's arguments in Point I, and we will not repeat our legal conclusions here. Suffice it to say, the applicable regulation requires a hunter to immediately tag a turkey, and after ten to fifteen minutes defendant had not done so. The evidence in the record amply supported the Law Division's finding that defendant violated N.J.A.C. 7:25-5.7(g).
Defendant further argues that the "legal doctrine of impossibility presents a valid defense in these circumstances." This argument lacks sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). We are satisfied that in the ten to fifteen minutes that elapsed after defendant emerged from the field with the dead turkey, he had plenty of time in which to complete the tag. As the Law Division judge correctly found, it is reasonable to expect a hunter to be able to complete the tag in the time interval that Toppin afforded defendant before charging him with the violation. We reject defendant's assertion that it was "impossible" for him to comply with the regulation.
Finally, defendant asserts that he was unfairly held to a higher standard of conduct, and was specifically targeted for enforcement because of his status as president of the New Jersey Bowhunters Association. He further maintains that he was selectively prosecuted in violation of his right to equal protection of the law. Although defendant advanced his selective prosecution argument in the Law Division, the judge made no findings on that subject. While there might be circumstances where a remand for further findings would be appropriate, this is not such a case. Defendant presented no testimony to support the selective prosecution claim, and the only time during the municipal court trial that the subject arose was on the cross-examination of Officer Toppin, when he stated that he was not even aware of defendant's status in the Association until defendant told him. Although Toppin acknowledged hearing "someone else say that," it was Toppin who issued the citation and Toppin who concluded that defendant violated the applicable regulation. In the absence of more definitive testimony on the subject of selective enforcement, we see no benefit to remanding for findings on this subject.
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