SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0271-20

STATE OF NEW JERSEY, 

Plaintiff-Respondent, 

v. 

PAUL MARINACCIO, 

Defendant-Appellant. 

_______________________

Submitted February 9, 2022 – Decided February 23, 2022

Before Judges Vernoia and Firko. 

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Municipal Appeal No. 19-

026H.

Paul Marinaccio, appellant pro se. 

Durkin & Durkin, LLC, attorneys for respondent 

(Gregory F. Kotchick, of counsel and on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-0271-20

Defendant Paul Marinaccio appeals from an order, entered by the Law 

Division following a trial de novo on his appeal from the Parsippany-Troy Hills 

municipal court, finding he violated the Township of East Hanover's (Township) 

on-street overnight parking ordinance.1

 In his pro se brief on appeal, defendant 

asserts fifty-three separate arguments, including claims the ordinance was 

ineffective because the Township failed to post proper notice of its restrictions, 

there is insufficient evidence supporting the Law Division's findings, the court 

erred by failing to address and properly decide numerous discovery and 

evidentiary issues, and the ordinance is unconstitutional. Based on our review 

of the extensive record, we reverse the order finding defendant violated the 

ordinance because there is insufficient credible evidence supporting the court's 

finding the Township posted notice of its restrictions, and we therefore find it 

unnecessary to address defendant's remaining claims.

I.

In pertinent part, Township ordinance § 155-9 provides that "No person 

shall park any vehicle on the streets of the Township between 2:00 a.m. and 6:00 

a.m. . . . unless the owner thereof has previously received permission from the 

1

 The matter was transferred from the Township's municipal court to the 

Parsippany-Troy Hills municipal court. 
3 A-0271-20

Police Department of the Township to permit said motor vehicle to remain on 

the Street." East Hanover, N.J., Code § 155-9(A) and (B) (1989).

The evidence presented during the municipal court trial established that at 

2:53 a.m. on September 24, 2016, Township police officer Roberto Chiazzo 

issued a summons charging a violation of the ordinance to a vehicle registered 

to defendant. Defendant did not dispute his ownership of the vehicle or that it 

was parked on the street within the times prohibited by the ordinance. Defendant 

also conceded he did not obtain permission from the police to park on the street 

during the prohibited times.

Defendant argued that for the Township-wide parking prohibition to be 

effective and enforceable, the Township was required to post signs notifying 

motorists of the ordinance's requirements and restrictions at each of the nine 

separate roadway entrances to the Township. Defendant claimed he could not 

be properly found to have violated the ordinance because the requisite signage 

was not posted at the two roadway entrances he had used prior to parking his 

vehicle on the street, and, as a result, the Township failed to provide proper 

notice of the prohibition against on-street parking during the designated hours. 

Defendant testified he took two separate roadways into the Township prior 

to parking his vehicle on the street and later receiving the summons. He further 
4 A-0271-20

testified signs notifying motorists of the on-street overnight parking prohibition 

"definitely weren't" posted at those two roadway entrances to the Township. He 

also explained that on September 28 and 29, 2016, there were no signs detailing 

the parking prohibitions under the ordinance when he entered the Township 

from one of the entrances he utilized on the evening Chiazzo ticketed his vehicle. 

He further testified there were no signs at either entrance when, on November 

2, 2016, he filmed the routes he took into the Township prior to parking his 

vehicle and receiving the September 24, 2016 summons.

The Township presented Officer Chiazzo as its sole witness. Chiazzo 

testified on direct examination there are signs "[a]t every entrance" to the 

Township "saying no parking [on] any street" between 2:00 a.m. and 6:00 a.m. 

On cross-examination, he admitted he did not place the signs at each roadway 

entrance to the Township, but he claimed he knew they were there because he 

had seen them "[t]hroughout [his] years."

Chiazzo also testified that on September 24, 2016, the day he issued the 

summons to defendant's vehicle, he did "not know with 100-percent certainty" 

that the required signs were "present" at the roadway entrances to the Township. 

Chiazzo further explained he could not specifically recall having "ever" seen 

such a sign during the eight years preceding his issuance of the summons to 
5 A-0271-20

defendant's vehicle. He did not testify he had any personal knowledge the signs 

were extant on the day of defendant's alleged violation of the ordinance. 

In its decision from the bench, the municipal court stated that because 

defendant admitted parking his vehicle on the street during the prohibited hours, 

the issue presented was "whether or not proper notice" of the parking prohibition 

"was given" by appropriate signs at each entrance to the Township "at the time 

[defendant's] vehicle was parked there." In apparent reliance on Chiazzo's 

testimony—the Township offered no one else—the court found "the testimony" 

established "in fact that [the required] signage did exist."

The court noted defendant "attempted to prove that" the signage was not 

there, and "[s]ome of [his] . . . attempted proofs were denied based on the fact 

that they were not timely in that . . . there was nothing indicating what took 

place on the day in question other than [Chiazzo's] testimony."2

 The court 

2

 Defendant offered evidence, including photographs and a video recording, 

showing the absence of the required signage at various entrances to the 

Township, including the roadways he testified he used to enter the Township 

prior to parking his vehicle on the street. The municipal court, and later the Law 

Division, sustained objections to the evidence, in part by finding it was 

irrelevant because the recording and photographs were not taken on the day 

defendant entered the Township, parked his vehicle in the street, and was issued 

the summons. We do not address the evidence, or the Law Division's decision 

to exclude it, because, as we explain, there is insufficient evidence supporting 

the Law Division's determination there were signs providing notice of the 
6 A-0271-20

further explained defendant admitted his vehicle was parked on the street during 

the prohibited hours, and the court concluded it was "satisfied that the 

[T]ownship provided adequate notice." The court found defendant violated the 

ordinance, and it entered an order directing that defendant pay a $17 fine and 

$33 in court costs.

Defendant appealed from the municipal court order. The Law Division 

conducted a trial de novo on the municipal court record, heard argument from 

the parties, and rendered an oral opinion that it supplemented with a written 

statement of reasons. In its written statement, the court found defendant "offered 

information to support the allegation that notice to the public" about the 

ordinance "was insufficient, as a result of signage not being in the required 

locations." The court noted the municipal court rejected defendant's testimony

about the lack of signage "because the evidence submitted was not targeted to 

the date of the violation." The court found defendant violated the ordinance 

because he admitted his car was parked on the street during the prohibited hours 

and the information defendant provided at trial "did not negate Chiazzo's 

ordinance's restrictions on the date of the incident such that the ordinance was 

enforceable against defendant.
7 A-0271-20

testimony that, to the best of his experience and knowledge, required signage 

was in place on the date of the offense." 

The court entered an order "deny[ing]" defendant's appeal from the 

municipal court's determination he violated the ordinance and directed that he 

pay a $17 fine, $33 in court costs, a $75 Safe Neighborhoods Services Fund 

assessment, N.J.S.A. 2C:43-3.2, and $50 to the Violent Crimes Compensation 

Board, N.J.S.A. 2C:43-3.1. This appeal followed.

II.

We employ the "substantial evidence rule" in our review of a Law 

Division's decision on an appeal from a municipal court. State v. Heine, 424 

N.J. Super. 48, 58 (App. Div. 2012). Our review is focused on "whether there 

is 'sufficient credible evidence . . . in the record' to support the trial court's 

findings." State v. Robertson, 228 N.J. 138, 148 (2017) (alteration in original) 

(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We defer to the trial court's 

factual findings, State v. Locurto, 157 N.J. 463, 470-71 (1999), and must uphold 

the court's factual findings so long as they are supported by sufficient competent 

evidence in the record, State v. Reece, 222 N.J. 154, 166 (2015). We review the 

Law Division's interpretation of the law de novo without according any special 

deference to the court's interpretation of "the legal consequences that flow from 
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established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995).

N.J.S.A. 39:4-8(c) authorizes a municipality to regulate parking by 

ordinance, stating in relevant part: 

Subject to the provisions of [N.J.S.A.] 39:4-138, in the 

case of any street under municipal or county 

jurisdiction, a municipality or county may, without the 

approval of the commissioner, and consistent with the 

current standards prescribed by the Manual on Uniform 

Traffic Control Devices for Streets and Highways, by 

ordinance, resolution, or regulation: (1) prohibit or 

restrict general parking . . . [and] (3) designate time 

limit parking[.]

A municipal ordinance prohibiting on-street overnight parking is valid under 

N.J.S.A. 39:4-8(c) because the statute permits a municipality to "prohibit 

general parking" and "designate time limit parking." Spring Lake Hotel & Guest

House Ass'n. v. Spring Lake, 199 N.J. Super. 201, 207 (App. Div. 1985) 

(quoting N.J.S.A. 39:4-8(c)(1) and (3)). 

Enactment of a parking ordinance alone does not render it enforceable. A

municipality must give notice of an ordinance's parking requirements and 

restrictions for the ordinance to be valid. See State v. Hart, 219 N.J. Super. 278, 

281-82 (App. Div. 1987) (reversing a "conviction" for a parking violation 

because the posting of the hours of the parking meter's operation included "an 
9 A-0271-20

ambiguous term in giving notice to the public"); Teaneck v. Siegel, 83 N.J. 

Super. 475, 476-79 (Law Div. 1964) (reversing a municipal court conviction for 

violating an ordinance prohibiting on-street parking in areas that had 

accumulated three inches of snow because the municipality failed to comply 

with the statutory requirement to post signs setting forth the ordinance's parking 

prohibition). 

N.J.S.A. 39:4-198 provides that a municipal parking ordinance is not 

effective unless appropriate signage detailing the ordinance's requirements are 

properly posted. More specifically, the statute provides: 

No ordinance, . . . under any power given by this 

chapter or any supplement thereto shall be effective 

unless due notice thereof is given to the public by 

placing a sign at the places where the ordinance, 

resolution, or regulation is effective, and by briefing its 

provisions on signs according to specifications 

contained in this chapter or as specified by the current 

Manual on Uniform Traffic Control Devices for streets 

and highways.

[N.J.S.A. 39:4-198 (emphasis added).]

Where, as here, there is a township-wide prohibition barring on-street 

overnight parking, "[t]he spirit of the statutory requirement (N.J.S.A. 39:4-198) 

that signs be posted 'at the places where the ordinance . . . is effective' is 

met . . . by placing the signs at each entrance into the municipality." State v.
10 A-0271-20

Pack, 117 N.J. Super. 23, 25 (App. Div. 1971) (quoting N.J.S.A. 39:4-198). 

Thus, defendant argued before the municipal court and the Law Division, and 

argues again on appeal, he could not be properly convicted of violating the 

Township's ordinance because the lack of signage providing notice of the 

ordinance's on-street parking restrictions rendered the ordinance ineffective. 

See N.J.S.A. 39:4-198.

Violations of parking ordinances are adjudicated in accordance with the 

Parking Offenses Adjudication Act (POAA), N.J.S.A. 39:4-139.2 to -139.14, 

"which is part of the Motor Vehicle Code." Richmond & Burns, N.J. Municipal 

Court Practice, § 36:6-1 (2022). Alleged violations of municipal parking 

ordinances are tried as civil cases in the municipal court. See N.J.S.A. 39:4-

139.3 (providing in part that "[f]or purposes of this act, violations of ordinances 

or regulations will be within the civil jurisdiction of the court"). In civil 

proceedings before a municipal court, the applicable standard of proof is "by a 

preponderance of the evidence." State v. Stafford, 365 N.J. Super. 6, 11 (App. 

Div. 2003); see Dep't of Conservation, etc. v. Scipio, 88 N.J. Super. 315, 322 

(App. Div. 1965) (explaining in civil proceedings before the municipal court, 

"[t]he State satisfies the burden of proof placed upon it if it establishes 

defendant's violation by a preponderance of the evidence").
11 A-0271-20

The POAA defines a municipality's evidentiary burden in the prosecution 

of an alleged parking violation. N.J.S.A. 39:4-139.8(a). Where a defendant 

does not deny the violation occurred, "[t]he officer issuing the ticket shall not 

be required to appear at the hearing of a case." Ibid. The statute further provides 

the standard for establishing a prima facie case of a parking violation.

It shall not be required that evidence other than the 

parking ticket and information from the [Division of 

Motor Vehicles (DMV)] identifying the owner of the 

vehicle be submitted to the court, and that 

documentation in proper form shall be considered 

prima facie evidence that the registered owner of the 

vehicle was the person who committed the parking 

offense.

[N.J.S.A. 39:4-139.8(a) (emphasis added).]

Because N.J.S.A. 39:4-139.8(a) expressly requires that only the parking 

ticket and DMV vehicle ownership information is required to establish "prima 

facie evidence" of a parking violation, a challenge to the effectiveness of an 

ordinance based on a municipality's failure to post appropriate signage under 

N.J.S.A. 39:4-198 is an affirmative defense rather than an element of the offense 

the municipality must prove in the first instance. See generally Buteas v. Raritan 

Lodge #61 F. & A.M., 248 N.J. Super. 351, 364 (App. Div. 1991) (explaining 

an affirmative defense is "a matter of avoidance of liability for culpable conduct 
12 A-0271-20

for which [a] defendant would have been answerable but for the particular facts 

of the transactional relationship between the parties"). 

"[W]hen an affirmative defense is raised [in a civil case], the defendant 

normally has the burden of proving it." Cavanaugh v. Skil Corp., 164 N.J. 1, 4-

5 (2000) (second alteration in original) (quoting Roberts v. Rich Foods, 139 N.J. 

365, 378 (1995)). "A defendant relying on an affirmative defense has the burden 

of persuasion by a preponderance of the evidence standard." Vill. of Ridgefield 

Park v. N.Y., Susquehanna & W. Ry. Corp., 318 N.J. Super. 385, 395 (App. Div. 

1999); see Richmond & Burns, N.J. Municipal Court Practice, § 16:3-3(b)

(2022) ("[I]f the defendant bears the burden of persuasion with respect to an 

affirmative defense, the standard will be a preponderance of the evidence").

Applying these principles, we are convinced the Township established a 

prima facie case of defendant violated ordinance § 155-9(A) by presenting the 

summons and evidence demonstrating defendant owned the vehicle that was 

parked on the street at 2:53 a.m. on September 24, 2016. See N.J.S.A. 39:4-

139.8(a). Defendant, however, properly raised an affirmative defense the 

ordinance was not effective as to him by contesting the alleged violation in the 

first instance, and by testifying that the roadway entrances he traversed into the 

Township prior to parking his vehicle lacked the signage and notice of the 
13 A-0271-20

ordinance's prohibitions required under N.J.S.A. 39:4-198. See Pack, 117 N.J. 

Super. at 25. Defendant bore the burden of persuasion with respect to this 

defense by a preponderance of the evidence. Vill. of Ridgefield, 318 N.J. Super. 

at 395, but the Township bore the ultimate burden of proof defendant violated 

an ordinance that was effective under N.J.S.A. 39:4-198 by a preponderance of 

the evidence, Stafford, 365 N.J. Super. at 11.

"Under the preponderance standard, 'a litigant must establish that a desired 

inference is more probable than not. If the evidence is in equipoise, the burden 

has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006)

(quoting Biunno, Current N.J. Rules of Evidence, cmt. 5(a) on N.J.R.E. 

101(b)(1) (2005)).3 This standard requires more than "mere conjecture or 

surmise"; it requires "that the evidence be such as to lead a reasonably cautious 

mind to the given conclusion." Bornstein v. Metro. Bottling Co., 26 N.J. 263, 

275 (1958). "The burden of persuasion is satisfied 'if the evidence demonstrates 

the tendered hypothesis as a rational inference, that is to say, a presumption 

grounded in a preponderance of the probabilities according to the common 

3

 The version of N.J.R.E. 101(b)(1) that is the subject of the 2005 comment is 

the same version extant today. 
14 A-0271-20

experience of mankind.'" Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 

50-51 (App. Div. 1997) (quoting Bornstein, 26 N.J. at 274-75).

The Law Division recognized, as had the municipal court, that the 

ordinance was ineffective as to defendant unless there was the required signage 

providing notice of the on-street overnight parking prohibition "on the date of 

the offense." Indeed, the Township does not dispute defendant could not be 

properly found to have violated the ordinance if the required signage was not 

posted when defendant entered the Township and parked his vehicle prior to the 

issuance of summons. The Township argues only that there is substantial 

credible evidence supporting the court's finding the required signage was posted 

on the day defendant parked his vehicle on the street.

The Law Division's determination the proper signage was posted on the 

date of the offense is based on two limited findings. First, the court noted it was 

not persuaded by defendant's testimony because it concerned only the lack of 

the required signage on days other than the date of the incident. Second, the 

court found defendant's testimony "did not negate Chiazzo's testimony that, to 

the best of his experience and knowledge, required signage was in place on the 

date of the offense." Based on our review of the record, we conclude the court's 

findings are not supported by substantial credible evidence in the trial record.
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The court correctly recognized defendant offered testimony that on three 

separate days following the September 24, 2016 incident the roadway entrances 

to the Township he had taken prior to parking his car lacked any signage 

providing notice of the ordinance's restrictions. However, the court mistakenly 

suggested that was the only evidence defendant presented. In fact, defendant 

testified that on the date of the offense he drove into the Township using two 

different roadways and "definitely" neither had any signage providing notice of 

the ordinance's requirements. Thus, contrary to the court's finding, the record 

includes testimony establishing that on the day of the incident the roadway 

entrances traversed by defendant did not have the signage providing notice of 

the on-street overnight restrictions required to render the ordinance effective 

under N.J.S.A. 39:4-198.

The court also cited Chiazzo's testimony as establishing the signage was 

posted at all the roadway entrances to the Township on the date of the offense, 

but Chiazzo did not testify that was the case. Chiazzo testified he could not be 

"100 percent" sure whether the required signage was present on the date of the 

incident, and with good reason. He explained his knowledge about the signage 

was based on his experience over the prior thirteen years, but he also testified 
16 A-0271-20

he could not recall "having seen" the signage during the eight years prior to the 

date of the incident. 

In other words, Chiazzo had seen the signage at some undefined point in 

the past but no sooner than eight years prior to the date of the incident, and he 

apparently assumed the signage was still in place on the date he issued the 

summons to defendant's vehicle. Thus, although the court wholly ignored 

defendant's direct testimony there was no signage on the date of the incident, 

and found his testimony there was no signage on the days and weeks after the 

incident not pertinent, it incongruously relied on Chiazzo's vague recollection 

of seeing signage more than eight years prior to September 24, 2016, as 

dispositive of the fact the required signs were posted on that date.

In the portion of its opinion the Law Division rendered from the bench, 

the court stated that it did not base its decision on any credibility determinations. 

That is, the court did not reject defendant's testimony based on a finding he was 

not a credible witness. We therefore surmise the court found both defendant and 

Chiazzo credible witnesses, but it simply misunderstood or failed to accurately 

recall their plain testimony. In any event, the only evidence presented 

concerning the existence of the signage on the date of the incident is defendant's 

testimony the signage "definitely" was not present. The Township offered only 
17 A-0271-20

Chiazzo who did not testify he had personal knowledge the signage was posted 

on the date of the incident, candidly admitted he did not recall seeing the signage 

in over eight years, and explained he could not be sure proper signage existed 

when he issued the summons. 

The Law Division recognized defendant's culpability for violating the 

ordinance was dependent on evidence establishing the signage was properly 

posted on the date of the incident. See Pack, 117 N.J. Super. at 25; see also

N.J.S.A. 39:4-198. There is not a scintilla of credible evidence, let alone a 

preponderance of the evidence, establishing that was the case or refuting 

defendant's testimony that it was not. For that reason, the Law Division's finding 

the notice of the ordinance was properly posted on the date of the incident is not 

supported by substantial credible record evidence. Since the court's 

determination defendant violated the ordinance is founded on that essential, but 

wholly unsupported finding, we reverse the court's order finding defendant 

violated the ordinance. See Pack, 117 N.J. Super. 23, 25.

Because we reverse the court's order based on our determination the

factual findings upon which it is based are not supported by sufficient credible 

evidence, it is unnecessary to address the merits of defendant's remaining fiftytwo arguments.
18 A-0271-20

Reversed.