SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0771-15T1

A-0835-15T1

SAM KHOUDARY,

Plaintiff-Appellant,

v.

CITY OF NEW BRUNSWICK,

JAMES P. HOEBICH, J.M.C.,

CHARLY GAYDEN and RONALD

BELLAFRONTE,

Defendants-Respondents.

________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAM KHOUDARY,

Defendant-Appellant.

_________________________________

Argued May 9, 2017 – Decided

Before Judges Espinosa and Grall.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L0471-15 and Municipal Appeal No. 50-2014.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

September 26, 2017
2 A-0771-15T1

Nicholas Khoudary argued the cause for 

appellant (Sam Khoudary, on the pro se 

briefs).

Joseph S. Surman, Jr. argued the cause for 

respondents in A-0771-15 (Hoagland, Longo, 

Moran, Dunst & Doukas, LLP, attorneys; Mr. 

Surman, of counsel and on the brief).

Charly Gayden, Assistant City Attorney, argued 

the cause for respondent in A-0835-15 (T.K. 

Shamy, New Brunswick City Attorney, attorney; 

Mr. Gayden, on the brief).

PER CURIAM

These two appeals, which we have calendared back-to-back, 

arise from a decades-long dispute between the City of New Brunswick 

(the City) and Sam Khoudary regarding violations of municipal 

housing ordinances. For the reasons set forth below, we dismiss 

Khoudary's appeal in A-0771-15 and reverse his conviction in A0835-15.

I.

In A-0771-15, Sam Khoudary appeals from an order dated 

September 4, 2015 granting summary judgment to the City of New 

Brunswick, dismissing his complaint with prejudice. 

Rule 2:6-1(a)(1) identifies the required contents of an 

appellant's appendix and states in pertinent part, 

If the appeal is from a summary judgment, the 

appendix shall also include a statement of all 

items submitted to the court on the summary 

judgment motion and all such items shall be 

included in the appendix . . . .
3 A-0771-15T1

Defendant's appendix does not include the items submitted to 

the trial court on the summary judgment motion or a statement of 

such items. In reviewing a summary judgment decision, we apply 

the same standard as the trial court. Murray v. Plainfield Rescue 

Squad, 210 N.J. 581, 584 (2012). Summary judgment is appropriate 

if the competent evidential materials presented, when viewed in 

the light most favorable to the non-moving party, "show that there 

is no genuine issue as to any material fact challenged and that 

the moving party is entitled to a judgment or order as a matter 

of law." R. 4:46-2(c). Without the omitted items, we cannot 

properly review this matter. Accordingly, we are constrained to 

dismiss the appeal. See Society Hill Condominium Ass'n, Inc. v. 

Society Hill Associates, 347 N.J. Super. 163, 177-78 (App. Div. 

2002).

II.

In A-0835-15, defendant Sam Khoudary appeals from orders 

entered in the Law Division following his appeal from the municipal 

court's decision convicting him of contempt and ordering his 

immediate incarceration. By order entered May 8, 2015, the Law 

Division judge convicted Khoudary of contempt of court and ordered 

his incarceration. Khoudary's motion for reconsideration was 

denied by order entered on August 28, 2015. 
4 A-0771-15T1

A.

Between 1994 and 2011, forty-four summonses were issued by 

the City of New Brunswick (the City) for violations of municipal 

housing ordinances at the property located at 377 Delevan Street 

in New Brunswick (377 Delevan). Thirty-one of the violations were 

addressed in three time payment orders (TPOs), requiring defendant 

to pay $24,780. The ownership of 377 Delevan has been transferred 

between various LLCs, all of which have the same business address 

as defendant.

On August 25, 2014, defendant appeared in New Brunswick 

Municipal Court in an effort to reach a global settlement as to 

all outstanding obligations for summonses issued against 377 

Delevan and two other properties purportedly owned and managed by 

defendant. Although defendant denied ownership of the properties, 

his attorney represented that he was "taking responsibility," as 

manager or a shareholder or a managing partner, for settling the 

obligations.

Unable to reach a settlement agreement, the parties returned 

to court on September 15, 2014, for "a contempt of court hearing 

with regard to outstanding payment obligations."

The municipal court judge determined ownership of the 

properties was no longer an issue because defendant had not 

appealed a 2000 decision. He stated the only remaining issue was 
5 A-0771-15T1

"who took responsibility for the payment of the fines and 

obligations." The municipal court judge reviewed audiotapes of 

earlier proceedings to determine if defendant had been present 

"when these fines and penalties were imposed and . . . took 

responsibility," stating:

[B]y submitting to the jurisdiction of 

the court, he assumes responsibility. . . .

If he appeared before a judge and pled 

guilty and agreed to pay a fine by way of him 

submitting to the jurisdiction of the court, 

that's it.

After taking a recess to review the audiotapes, the municipal 

court judge determined "[t]he payment obligations are directly 

[defendant's] obligations." Defendant contested this finding of 

personal liability because the summonses in the TPOs were not 

issued against him personally, and stated he was only "willing to 

assume responsibility" in the past as "part of the settlement 

negotiations." 

The municipal court judge found defendant in contempt of 

court for failing to pay the TPOs because the obligations in the 

summonses contained therein, which were issued between 1994 and 

2001, had been left unpaid by defendant for over a decade. Finding 

defendant's failure to pay the TPOs was a willing and knowing 

violation, the municipal court judge entered a commitment order 

convicting defendant of contempt for the non-payment of the TPOs, 
6 A-0771-15T1

which totaled $24,780, and sentenced him to three consecutive sixmonth terms in jail, one for each TPO. The municipal court judge 

told defendant he was either "paying . . . or going to jail for 

the next 18 months." Defendant was immediately incarcerated. The 

parties were told to return to court at a later date "to address 

the other outstanding obligations" against the properties. 

Two days later, defendant's counsel arranged for $51,023 to 

be paid to the City to "satisfy all of the outstanding claims 

violations and defaulted payment schedules outstanding against" 

defendant, his wife "and all of the entities for which [defendant] 

is now incarcerated." Defendant was released from jail that day.

Defendant appealed the commitment order to the Law Division. 

The Law Division judge rejected defendant's contention he was not 

personally liable for the TPO obligations. Defendant also 

contested the $51,023 amount he claimed the City required him to 

pay for his release from jail, equating it to "someone [having] a 

gun over [his] head." The attorney for the City explained that 

the amount was agreed upon with defense counsel to achieve a global 

settlement of all outstanding obligations. The Law Division judge 

rejected defendant's argument, stating defendant could have 

requested a stay from the municipal court, and if denied, could 

have appealed the denial to the Law Division. He concluded, 

"everything was done properly, below."
7 A-0771-15T1

By order dated May 8, 2015, the Law Division judge affirmed 

the municipal court's decision "finding Defendant to be in contempt 

for default of the Time Payment orders in the amounts of $3,175.00, 

$15,730.00 and $5,875.00." (Emphasis added). The judge also 

found the municipal court "properly exercised the discretion 

granted to the Court under N.J.S.A. 40:49-5 to incarcerate 

defendant for defaulting on time payments for ordinance 

violations," and that defendant previously appeared in municipal 

court and "entered guilty pleas on several ordinance violations." 

Defendant moved for reconsideration and for the return of 

overpaid funds. Defendant claimed he was required to pay the 

$51,023 amount for his release from jail. The City admitted that 

$51,023 exceeded the amount the municipal court had required 

defendant to pay, but claimed the amount was agreed upon as a 

settlement of all outstanding obligations. The Law Division judge 

accepted the City's argument, denied the motion for 

reconsideration and affirmed defendant's conviction and sentence. 

He stated the order required clarification, that the matter was 

"really not contempt, because it's not under the rule," and the 

matter concerned an application of N.J.S.A. 40:49-5. 

B.

Defendant presents the following issue for our consideration 

in his appeal:
8 A-0771-15T1

INCARCERATION ORDERED UNDER THE 

PREMISE OF CONTEMPT OF COURT WAS NOT 

APPROPRIATE AND EXCEEDED THE 

JURISDICTIONAL AUTHORITY OF THE 

MUNICIPAL COURT ESPECIALLY WITH NO 

FINDING OF GUILT OF ANYTHING

A trial court deciding a municipal appeal pursuant to Rule

3:23-8(a) must review the record de novo and make its own decision 

regarding a defendant's guilt or innocence. State v. Avena, 281 

N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 

42 N.J. 146, 157 (1964)). "[A]ppellate review of a municipal 

appeal to the Law Division is limited to 'the action of the Law 

Division and not that of the municipal court.'" State v. Hannah, 

448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v. Palma, 

219 N.J. 584, 591-92 (2014)). When we review "a trial court's 

decision on a municipal appeal, we determine whether sufficient 

credible evidence in the record supports the Law Division's 

decision." State v. Monaco, 444 N.J. Super. 539, 549 (App. Div.), 

certif. denied, 228 N.J. 409 (2016). "We do not weigh the 

evidence, assess the credibility of the witnesses, or make 

conclusions about the evidence." State v. Barone, 147 N.J. 599, 

615 (1998). "However, where issues on appeal turn on purely legal 

determinations, [appellate] review is plenary." Monaco, supra,

444 N.J. Super. at 549 (citing State v. Adubato, 420 N.J. Super.

167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012)).
9 A-0771-15T1

The Law Division judge rejected the label "contempt" for the 

proceeding here and considered the commitment order justified by 

N.J.S.A. 40:49-5, which states in pertinent part: 

Any person convicted of the violation of any 

ordinance may, in the discretion of the court

by which he was convicted, and in default of 

the payment of any fine imposed therefor, be 

imprisoned in the county jail or place of 

detention provided by the municipality, for 

any term not exceeding 90 days, or be required 

to perform community service for a period not 

exceeding 90 days.

[(Emphasis added).]

Although the underlined language would seem to endow a court 

with discretion to incarcerate a defendant who fails to pay a fine 

simply upon the occasion of a default, it cannot reasonably be 

construed to relieve the court of the obligation to afford the 

defendant the rights concomitant to a charge of contempt of court 

and to refrain from incarcerating a defendant unless the failure 

to pay was willful.

Notwithstanding the Law Division's characterization of the 

proceeding, defendant's failure to pay the obligations imposed by 

the TPOs was treated as a summary contempt proceeding. 

The law of contempt is derived from statutes, 

rules of court, and judicial decisions. In 

general, contempt includes disobedience of a 

court order or misbehavior in the presence of 

the court by any person or misbehavior by an 

officer of the court in his official 
10 A-0771-15T1

transactions. The essence of the offense is 

defiance of public authority.

A defendant is entitled to certain safeguards 

accorded criminal defendants. Those 

safeguards include the presumption of 

innocence, the privilege against selfincrimination, the right of crossexamination, proof of guilt beyond a 

reasonable doubt, and the admissibility of 

evidence in accordance with the rules of 

evidence.

[Amoresano v. Laufgas, 171 N.J. 532, 549 

(2002) (quoting In re Yengo, 84 N.J. 111, 119-

20 (1980)) (alterations in original).]

Apart from contempt in the face of the court, which is 

governed by Rule 1:10-1, an order to show cause is a necessary 

prerequisite to summary contempt proceedings. See R. 1:10-2 

(stating institution of summary contempt proceedings, other than 

proceedings under Rule 1:10-1, shall be on notice to the alleged 

contemnor and instituted only "by the court upon an order for 

arrest or an order to show cause specifying the acts or omissions 

alleged to have been contumacious.") It is undisputed that there 

was no order to show cause prior to the "contempt" proceeding. 

Rule 1:10-1 "authorizes a court to adjudicate contempt 

summarily, without issuing an order to show cause, under certain 

conditions," Amoresano, supra, 171 N.J. at 546. It provides:

A judge conducting a judicial proceeding may 

adjudicate contempt summarily without an order 

to show cause if:
11 A-0771-15T1

 (a) the conduct has obstructed, or if 

continued would obstruct, the proceeding;

 (b) the conduct occurred in the actual 

presence of the judge, and was actually seen 

or heard by the judge;

 (c) the character of the conduct or its 

continuation after an appropriate warning 

unmistakably demonstrates its willfulness;

 (d) immediate adjudication is necessary

to permit the proceeding to continue in an 

orderly and proper manner; and

 (e) the judge has afforded the alleged 

contemnor an immediate opportunity to respond.

 The order of contempt shall recite the 

facts and contain a certification by the judge 

that he or she saw or heard the conduct 

constituting the contempt and that the 

contemnor was willfully contumacious. 

Punishment may be determined forth with or 

deferred. Execution of sentence shall be 

stayed for five days following imposition and, 

if an appeal is taken, during the pendency of 

the appeal, provided, however, that the judge

may require bail if reasonably necessary to 

assure the contemnor's appearance. 

[(Emphasis added).]

Even if we accept the City's argument that defendant was 

provided adequate notice and an opportunity to be heard, the other 

requirements attendant to a commitment order summarily issued for 

contempt, as reflected in the underlined language above, were 

clearly not met.
12 A-0771-15T1

Because the terms of the commitment order provided for 

defendant's release upon payment of the identified TPO 

obligations, the proceeding more closely resembled a summary 

collection action pursuant to N.J.S.A. 2C:46-2(a), which provides 

the consequences for nonpayment of an obligation a defendant has 

been sentenced to pay. The statute contains similar language 

regarding a "default" in payment but also sets forth the necessary 

criteria that must be satisfied before the defaulting defendant 

may be incarcerated. When a defendant defaults in the payment of 

a court-imposed financial obligation, upon motion,

the court shall recall him, or issue a summons 

or a warrant of arrest for his appearance.

The court shall afford the person notice and 

an opportunity to be heard on the issue of 

default. Failure to make any payment when due 

shall be considered a default. The standard 

of proof shall be by a preponderance of the 

evidence, and the burden of establishing good 

cause for a default shall be on the person who 

has defaulted.

N.J.S.A. 2C:46-2(a)(1) identifies the sanctions available to the 

court "[i]f the court finds that the person has defaulted without 

good cause." A term of imprisonment may only be imposed "[i]f the 

court finds that the person defaulted on payment of a court-imposed 

financial obligation . . . without good cause and finds that the 

default was willful." N.J.S.A. 2C:46-2(a)(2) (emphasis added).
13 A-0771-15T1

For a default to be willful, the defendant must be able to 

comply with the order. This is particularly true here, where the

clear objective of the commitment order was to coerce defendant 

into paying the TPO obligations. See In re N.J.A.C. 5:96 & 5:97, 

221 N.J. 1, 18-19 (2015) (noting the "punitive or coercive relief 

under [Rule 1:10-3] cannot be used against one who is not a willful 

violator of a judgment"); Schochet v. Schochet, 435 N.J. Super.

542, 548-494 (App. Div. 2014) (noting "objective of [Rule 1:10-3] 

hearing is simply to determine whether . . . failure [to comply 

with an order] was excusable or willful").

In sum, the "contempt" proceeding here was not initiated by 

an order to show cause; it was conducted in response to defendant's 

failure to reach a global settlement with the City. There was no 

proceeding to determine whether defendant had the ability to comply 

with the $24,780 in TPO obligations that were the subject of the 

commitment order and, therefore, no credible determination that 

his failure to pay was willful. N.J.S.A. 40:49-5 did not grant 

the municipal court or the Law Division discretion to incarcerate 

defendant without satisfying these threshold requirements for 

punitive or coercive incarceration for failure to pay a fine. We 

therefore conclude the Law Division judge erred in finding 

defendant guilty and affirming his incarceration. We reverse 

defendant's conviction. 
14 A-0771-15T1

Defendant also asks the court to compel the return of the 

$51,023 paid prior to his release.1 This issue is not properly 

before us because the sum was not established as a sentence on 

this conviction.

In sum, we dismiss the appeal in A-0771-15 and reverse the 

judgment in A-0835-15.

 

1 Defendant argues the municipal court judge required him to pay 

$51,023 as a condition of his release. As he concedes, however, 

this alleged condition "was not set forth in any order." 

Nonetheless, he claims "it was advised by prosecution." Whatever 

the City attorney said in conversation with defense counsel, the 

order entered by the court controlled. In the absence of any 

order or even a transcript of such a direction by the court, this 

contention lacks merit.