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State of New Jersey v. Barbara J. Hertz

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 §144-4 AND §181.8(b).

A. THE MUNICIPAL COURT IMPROPERLY FOUND DEFENDANT GUILTY OF LITTERING, DUE TO ALLEGED TRESPASS.

B. THE LAW COURT REVERSED AND VACATED RECYCLING VIOLATION, AND REJECTED TRESPASS (LOCATION) BUT DISREGARDED THE ORDINANCE VIOLATION CONDITIONS.

C. BY CREATING DISCORD BETWEEN ORDINANCE SECTIONS, THE LAW COURT'S FINDINGS ARE ARBITRARY AND CAPRICIOUS.

ARGUMENT POINT TWO:

THE STATE FAILED TO PROVE THE ELEMENTS OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT; ACCORDINGLY THE COMPLAINT AGAINST ORDINANCE §144-4 MUST BE DISMISSED[.]

A. THE DEFENDANT'S MANNER OF RUBBISH CONTAINMENT WAS COMPLIANT WITH ORDINANCE §144-6.

B. WITH NO DISBURSAL OF THE RECEPTACLE

CONTENTS, THERE WAS NO HAZARD OR

DANGER.

C. DEFENDANT MS. HERTZ UTILIZED A COMPLIANT RECEPTACLE PURSUANT TO ORDINANCE §180-2 & §181-2.

D. THERE WAS NO VIOLATION DUE TO RUBBISH STORAGE.

E. THE DEFENDANT'S COMPLIANCE WITH ORDINANCES §144-2, §144-6 AND §181-2 SHOULD HAVE RESULTED IN FINDING OF NOT GUILTY OF ORDINANCE PART §144-4, BEING VOID FOR VAGUENESS. (Not argued below.)

F. THE STATE FAILED TO PROVE THE DEFENDANT KNEW THE CONSEQUENCES OF FOLLOWING POLICE INSTRUCTION WOULD LIKELY RESULT IN A COMPLAINT ALLEGING VIOLATION OF ORDINANCE. (Not argued below.)

ARGUMENT POINT THREE:

THE LOWER COURTS FAILED TO EVALUATE THE DEFENDANT'S RIGHTS AND DEFENSES.

A. THE POLICE ENGAGED IN SELECTIVE PROSECUTION/SELECTIVE ENFORCEMENT IN VIOLATION OF DEFENDANT'S EQUAL PROTECTION RIGHTS.

B. DEFENDANT HAD PROPERLY ASSERTED DEFENSE OF NECESSITY.

C. DEFENDANT ASSERTED STATUTORY AND CONSTITUTIONAL RIGHTS.

D. THE DEFENDANT'S HIGHER COURT ORDERS WERE IMPROPERLY NOT CONSIDERED AS DEFENSES.

ARGUMENT POINT FOUR:

THE LAW COURT ERRED BY OMITTING A STATEMENT OF FACTS AND CONCLUSIONS OF LAW.

A. THE LAW COURT FAILED TO COMPLY WITH R. 1:7-4(b).

B. THE LAW COURT NEGLECTED TO COMPLY WITH

R.2:5-1(b): PROVIDE AN AMPLIFIED STATEMENT (Not argued below).

ARGUMENT POINT FIVE:

MITIGATING CIRCUMSTANCES WERE NOT PROPERLY CONSIDERED CAUSING THE PENALTY TO BE EXCESSIVE[.]

A. MITIGATING CIRCUMSTANCES.

B. THE PENALTY WAS EXCESSIVE. (Not argued below).

Our review of an appeal from the Law Division is limited. State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012). On appeal from a Law Division decision, the issue is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Ibid.

In addition, we have determined that

Reconsideration itself is a matter within the sound discretion of the [c]court, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence. [Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citations omitted) (internal quotation marks omitted).]

Notably, a party is not permitted to use a motion for reconsideration as a basis for presenting facts or arguments that could have originally been provided. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 389.

Because the Law Division judge found defendant not guilty of violating Ordinance 181-8, we will not address defendant's arguments in Point One relating to that ordinance. We also will not address defendant's arguments in Point One and Point Three relating to alleged errors by the municipal court judge. Palma, supra, 426 N.J. Super. at 514. Nor will we address defendant's arguments in Point Two E and F, and Point Three A, which she improperly raised for the first time in her motion for reconsideration. Cummings, supra, 295 N.J. Super. at 384. We are satisfied that the Law Division judge properly declined to address those issues.

We reject defendant's reliance on the definitions of "standard solid waste containers" set forth in Ordinances 180-2 and 181-2 to support her argument in Point Two C that her trash bag was an "authorized private receptacle." The definitions contained in Ordinance 144-1 are specific to the littering ordinance.*fn4 Thus, the definitions in Ordinance 180-2, the solid waste ordinance, and in Ordinance 181-2, the recycling ordinance, do not apply to the littering ordinance.

Even if Ordinances 180-2 and 181-2 applied, Ordinance 180-2 requires a plastic disposal bag to be "not less than three (3) mils thick," and both ordinances require the plastic disposal bag to be "capable of containing up to fifty (50) pounds of refuse when lifted." Although the trash bag in this case was described as a "contractor-like" bag, there is no evidence it met the specifications set forth in these ordinances. The pictures of the trash bag in defendant's appendix do not change this result.

We have considered defendant's arguments in Point One B and Point Four in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion beyond these brief comments. R. 2:11-3(e)(2). Because trespassing is not an element of Ordinance 144-4, it is irrelevant whether the municipal court judge found defendant was trespassing. The Law Division judge considered defendant's easement and properly found it was irrelevant because Ordinance 144-4 prohibits littering on occupied private property whether the violator owns it or not. The judge made sufficient factual findings, and Rule 2:5-1(b) does not mandate an amplification.

As for defendant's remaining arguments, we are satisfied that the record contains sufficient credible evidence to uphold the Law Division judge's finding that she violated Ordinance 144-4. Ordinance 144-4 prohibits the deposit of litter on occupied private property. "Deposit" is defined as "to lay down." Merriam-Webster's Collegiate Dictionary 310 (10th ed. 1997). There can be no doubt that defendant deposited a trash bag containing litter on occupied private property.

Ordinance 144-1 defines litter as "[g]arbage . . . which, if thrown or deposited . . . tends to create a danger to public health, safety and welfare." (Emphasis added.) The ordinance does not require that the litter must actually create a danger to public health, safety and welfare.

Ordinance 144-4 permits the maintenance of "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." The ordinance does not require that the receptacle's contents must actually be carried or deposited by the elements upon any street, sidewalk or other public place or upon any private property. Further, defendant did not maintain the litter in an authorized private receptacle, or place the trash bag for collection in such a manner that its contents would be prevented from being carried or deposited by the elements upon the property; rather, she left the litter in an unauthorized receptacle on the property for a week, exposing it to the elements. Accordingly, the Law Division judge correctly found defendant guilty of violating Ordinance 144-4.

We reach a different conclusion as to the amount of the fine. The judge incorrectly believed that $500 was the minimum fine he could impose for violating Ordinance 144-4; however, Ordinance 1-15A(2) provides, in relevant part, that an ordinance violation is punishable by "[a] fine not exceeding $1,250.00 or the maximum fine permitted by N.J.S.A. 40:49-5, and any amendment thereto, whichever sum is greater[.]" Pursuant to N.J.S.A. 40:49-5, the court before which any person is convicted of violating a municipal ordinance can impose a fine "not less than the minimum and not exceeding the maximum fixed in such ordinance." Here, the minimum fine is zero and the maximum fine is $1,250. Accordingly, we remand to the Law Division for reconsideration of the fine amount.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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