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State of New Jersey v. Barbara J. Hertz

October 16, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARBARA J. HERTZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-118.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2012

Before Judges Simonelli and Koblitz.

Defendant Barbara Hertz appeals from her conviction following a trial de novo in the Law Division for violating Borough of Lincoln Park Municipal Ordinance 144-4, and from the amount of the fine imposed. We affirm the conviction, and reverse and remand for reconsideration of the fine amount.

The record reveals the following. On March 19, 2010, Lynn Travers reported to the Lincoln Park Police Department that defendant was on her property cutting dead trees with a chain saw.*fn1 When Police Officer Mark Bosland arrived at the property at approximately 11:43 a.m., Travers gave him a copy of an August 16, 2004 Chancery court order, which granted defendant an implied easement on an unpaved dirt path on Travers's property; however, the order also prohibited defendant from improving the path unless she obtained a survey and staked the area to be improved, and required her to provide twenty days advanced notice of her intent to commence work to improve the path.

Defendant had neither obtained the survey, staked the area, nor provided Travers with advance notice of cutting the trees. As a result, Officer Bosland instructed defendant's helper, Gerald Hicks, to cease cutting the trees. Hicks put down the chain saw, stumbled and fell to the ground, and requested medical treatment. Officer Bosland sought out defendant, who agreed to accompany him to Hicks. Defendant brought with her a plastic contractor-like trash bag that contained rubbish consisting of "decomposing plastic" smeared with sludge. According to Officer Bosland, defendant threw the trash bag in his direction and told him to take it to the recycling center, but he refused. When he returned to the property the next day, he saw that defendant had not removed the trash bag. He, thus, issued her a summons for violating Ordinance 144-4, the littering ordinance, and Ordinance 181-8, the recycling ordinance. A week passed before defendant finally put the trash bag in her car and "took it to the dump."

Ordinance 144-4 states that

No person shall throw or deposit litter, refuse or rubbish on any occupied private property within the Borough, whether owned by such person or not, except that the owner or person in control of private property may maintain authorized private receptacles for collection in such a manner that litter will be prevented from being carried or deposited by the elements upon any street, sidewalk or other public place or upon any private property.*fn2

Ordinance 144-1 defines an "authorized private receptacle" as "[a] litter storage and [c]ollection receptacle as required by Borough regulations[,]" and "litter" as "[g]arbage, vegetation, refuse and rubbish and all other waste material which, if thrown or deposited as prohibited in this Chapter, tends to create a danger to public health, safety and welfare."

At trial before the municipal court, defendant admitted that the trash bag contained litter and the bag remained on the property for a week. However, she argued that that she did not violate Ordinance 144-4 because the police prevented her from putting the trash bag out for collection; there was nothing in the bag of danger to the public health or safety; she had placed, not thrown or deposited, the bag on her easement; the bag did not contain recyclables; she could not remove the bag because she had to carry the chain saw; the bag was an authorized receptacle; and the bag's contents could not be carried or deposited by the elements because it was securely tied.

The municipal court judge found that defendant deposited the trash bag on Travers's property outside the easement; the bag contained recyclable materials; and defendant left the bag on the property overnight. The judge found defendant guilty of violating Ordinances 144-4 and 181-8, and imposed a fine of $500 for each violation, plus court costs.

On appeal to the Law Division, defendant raised the same arguments she raised to the municipal court judge, and she also argued that the municipal court judge erred in finding her guilty of littering due to a trespass because she left the trash bag on her easement. The Law Division judge reviewed the record, and found defendant guilty of violating Ordinance 144-4, and not guilty of violating Ordinance 181-8. The judge found it was irrelevant where defendant placed the trash bag because Ordinance 144-4 prohibited littering on occupied private property whether the violator owned the property or not. The judge also found that defendant did not place the trash bag in a location where it would be collected, the bag was not in an authorized receptacle, and defendant left it on the property for a week. The judge imposed a $500 fine based on his belief that it was the minimum mandatory fine he could impose.

Defendant filed a motion for reconsideration, which the judge denied. The judge found that defendant merely repeated the arguments he had already addressed, and improperly raised new arguments -- that the police had selectively prosecuted her, she acted out of necessity because the path was obstructed, her constitutional rights were violated, and the judge failed to consider this court's prior unpublished opinion, which reversed her conviction for defiant trespass. State v. Hertz, Docket No. A-7646-95 (App. Div. 1997).*fn3 This appeal followed.

On appeal, defendant raises the following contentions:

ARGUMENT POINT ONE:

BOTH COURTS BELOW ERRED BY FAILING TO CORRECTLY IDENTIFY THE ELEMENTS OF THE ALLEGED VIOLATIONS OF ORDINANCES ...


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