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State of New Jersey, Department of Environmental Protection, Division of Fish and Wildlife v. Joseph L. Mills

April 5, 2012

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH AND WILDLIFE, PLAINTIFF-RESPONDENT,
v.
JOSEPH L. MILLS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-29-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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