SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY,

Plainti ff

- Respondent,

v.

GUNNAR WAHLSTROM,

Defendant

- Appellant.

Submitted May 8, 2019

– Decided June 6, 2019

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 14

- 056.

Gunnar Wahlstrom, appellant pro se.

O'Donnell Mc Cord, P C , attorneys for respondent (Jason A ndrew Cherchia, of counsel and on the brief).

PER CURIAM

Defendant Gunnar Wahlstrom appeals from the October 20, 2017 decision

by the Honorable Thomas J. Critchley, Jr., a fter a trial de novo. The four NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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separate summons es charged defendant with various offenses arising from the

Township of East Hanover's property maintenance code. We affirm.

The s ummons es charge d defendant with the following: the storage of

trailers and construction equipment on residential property , Municipal code §

119A

- 13(F)(6) (complaint no. 391) ; the park ing of an inoperable and

unregistered vehicle on residential property , Municipal code § 119A

- 13(F)(8)

(complaint no. 392) ; the failure to maintain residential property contributing to

a "blighting influence[]" because of the condition of exterior paint, gutters, and

loose wires

, Municipal code § 119A

- 13(E) (complaint no. 393) ; and the

perform ance of mechanical or body repair work on vehicles on resid ential

pr operty

- Municipal code § 119A

- 13(F)(3) (complaint no. 394 ). Each

complaint cites to the relevant sectio n of the municipal ordinance.

Without recit ing the details of the tortu ous history in this case , we note

that these complaints and summonses were issued on July 15, 2014. In the

intervening years, the complaints were first dismissed as procedurally deficient,

subsequently refiled, and defendant was convicted at the municipal court trial

. On appeal, the Law Division remanded the case for a ne w trial because the

municipal court proceedings had not been recorded.3 A

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When that second trial took place in 2015, the code enforcement officer

testified regarding the ordinance violations, and produced photographs taken of

defendant's premises

, depicting trailers , vehicles, and the dilapidated condition

of the home. T he municipal court judge convicted defendant, imposed $1432 in

fines and court costs, and ordered him to remediate the violations within thirty

days or pay a $50 per day assessment

.

On appeal to the Law Division, the judge dismissed the complaints

without prejudice , finding the y issued in a procedurally defective manner, in

violation of defendant 's due process rights. Defendant had not raised this issue,

and when the State appealed the dismissal, we remanded the matter, finding the

Law Division 's sua sponte deci sion on due process grounds was improper.

On October 20, 2017, a second judge on remand convicted defendant and

signed the order on November 9, 2017. Judge Critchley reinstated the

convictions based on the code enforcement officer's earlier testimony and the

exhibits introduced in support of the offenses. The judge further found the

charging documents were adequate in terms of due process because they

specifically alleged the vi olations depicted in the photos, and referred to the

specific subsection s of the code.4 A

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The judge detail ed the exhibits introduced in support of the violations,

describing the photographs in detail . He concluded that defendant's double

jeopardy argument had no merit since the second trial was co mpe lled by the

absence of a record of the first proceeding. The judg e also noted that although

the complaints did not specify a time for remediation, they state d that the

conditions were to be corrected immediate ly. The judge rejected defendant's

argument that the municipal court judge's initial communications with the

construction officer, requiring him to refile the complaints

, was improper

. Those conversations did not adversely affect the outcome after a full trial on

new complaints. Nor did the judge consider the proceedings to have violated

fund amental fairness or due process: defendant had a number of years in which

to correct the conditions

, and had not done so. He opined :

And so I find that the State did not violate any considerations of double

- jeopardy, due process, or fundamental fairness, and did prove the violations by proof beyond a reasonable doubt. There were trailers on the property in violation of the applicable code section, there were unreg istered and inoperable vehicles, as established by the photos and the documentation. There were general maintenance issues, particularly with respect to deteriorating painting, peeling and gutters and soffits and things of that nature, and there were a la rge number of, it appears, or certainly several, vehicles that were not in operating condition that were being stored on the property and that appeared to be perhaps subject to more than minor5 A

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-- propping open the hood of the vehicle, and all of this is intended for the protection of the community, the property values, and the neighbors. And fairness to the neighbors requires that the Town be able to remediate this. This is not something that was done overnight and in an overly

hasty manner. It appears to have gone, according to the hearing office r , over several years. Certainly the records that I have go from the year 2014 into the year 2015.

With respect to the fines , fees and penalties, in consideration of some of what I'll call the imperfections in the cases, I am going to myself remediate some of the penalties. I will leave intact the court costs, but reduce the fines for each summons to $125. I will ask the Stat e to prepare an order documenting this and, of course, Mr. Wahlstrom, you would have, again

-- and I know you're familiar with the process

-- the right to an appeal of this determination. That should be done within 45 days.

On appeal, defendant raises t he following nine points:

POINT 1: JUDGE CRITCHLEY MADE HARMFUL ERROR BY NOT RECOGNIZING THAT THE CONTROLLING LAW, ORDINANCE §119A, INCLUDES MANDATORY DUE PROCESS SAFEGUARDS IN §119A

- 36 THROUGH §119A

- 39 WHICH REQUIRE THAT NOTICE BE PROVIDED IDENTIFYING THE ALLEGED VIOLATIONS, WHAT CORRECTIONS ARE NEEDED, AND REASONABLE TIME TO CORRECT, AND THAT THE OPERATION OF THE ORDINANCE REQUIRES EXHAUSTION OF TIME FOR CORRECTIONS BEFORE PROPERTY OWNER IS6 A

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- 41.

POINT 2: JUDGE CRITCHLEY MADE HARMFUL ERROR AND ABUSED HIS DISCRETION BY SUBSTITUTING THE MANDATORY DUE PROCESS REQUIREMENTS OF THE ORDINANCE WITH HIS OWN ARBITRARY DEFINITIONS. HE THEREBY MISCONCEIVED AND MISAPPLIED THE APPLICABLE LAW CAUSING HIS EXERCISE OF LEGAL DISCRETION TO LACK FOUNDATION AND BECOME AN ARBITRARY ACT. IT IS THEREFORE THE DUTY OF THE COURT TO ADJUDICATE THE CONTROVERSY IN LIGHT OF THE APPLICABLE LAW IN ORDER THAT A MANIFEST DENIAL OF JUSTICE BE AVOIDED.

POINT 3: JUDGE CRI TCHLEY MADE HARMFUL ERROR BY NOT RECOGNIZING THAT THE ORDINANCE IN §119A

- 36 THROUGH §119A

- 39 PROVIDES MANDATORY PROCEDURAL DUE PROCESS SAFEGUARDS WHICH ARE IN ADDITION TO OTHER STATE AND FEDERAL DUE PROCESS REQUIREMENTS, WHICH DO NOT REPLACE THE DUE PROCES S REQUIREMENTS OF THE LOCAL ORDINANCE.

POINT 4: JUDGE CRITCHLEY MADE HARMFUL ERROR BY NOT RECOGNIZING THAT PROSECUTION OF DEFENDANT WAS INITIATED IN MUNICIPAL COURT WHILE DEFENDANT WAS NOT IN VIOLATION OF THE ORDINANCE, CAUSING DEFENDANT TO SUSTAIN EXTEN DED ABUSIVE LITIGATION INSTEAD OF BEING ABLE TO MAKE NECESSARY CORRECTIONS OF THE ALLEGED PROPERTY VIOLATIONS IN ACCORDANCE WITH THE PROVISIONS OF THE7 A

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- 17T4 ORDINANCE, IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

POINT 5: JUDGE CRITCHLEY MADE HARMFUL ERROR IN NOT RECOGNIZING THAT THE FAILURE OF ENFORCEMENT OFFICER TO ISSUE VALID NOTICE CONSTITUTED LACK OF FUNDAMENTAL FAIRNESS AND LEFT DEFENDANT WITHOUT A CLUE OF WHAT HE HAD DONE WRONG, WHAT HE WAS CHARGED WITH, HOW TO PREPARE A DEFENSE, AND MUCH LESS HOW TO REMEDY THE SITUATION, IN VIOLATION OF DEFENDANT'S PROCEDURAL DUE PROCESS RIGHTS UNDER THE 14[TH] AMENDMENT OF THE U.S. CONSTITUTION.

POINT 6: THE MUNICIPAL JUDGE FAILED DURING TRIAL TO RULE ON THE ISSUE "DEFENDANT IS CHARGED WITH VIOLATIONS OF A SPECIFIC ATION ORDINANCE" IN DEFENDANT'S MOTION, WHICH ARGUED THAT THE PENALTIES OF THE ORDINANCE ARE TRIGGERED BY §119A

- 41, AND NOT BY A SPECIFICATION SECTION UNDER §119A

- 13. JUDGE CRITCHLEY MADE HARMFUL ERROR IN NOT RECOGNIZING THAT §119A

- 41 IS TRIGGERED BY THE EXHAUSTION OF TIME GIVEN FOR CORRECTIONS IN NOTICE, AND NOT BY A SUMMONS WRITTEN ON A SPECIFICATION SECTION OF THE ORDINANCE, AND MISAPPLIED THE LAW BY SUBSTITUTING HIS OWN ARBITRARY VIEWS FOR THE DUE PROCESS REQUIREMENTS OF THE ORDINANCE. THIS CAUSED HIS ENTIRE RULING TO LACK FOUNDATION AND BECOME AN ARBITRARY ACT AND THE COURT HAS A DUTY TO ADJUDICATE THE CONTROVERSY IN LIGHT OF8 A

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POINT 7: JUDGE CRITCHLEY MADE HARMFUL ERROR BY NOT TAKING ISSUE WITH THAT DEFENDANT'S DUE PROCESS RIGHTS UNDER THE 14TH AMENDMENT WERE VIOLATED IN MANY INSTANCES THROUGHOUT THIS LITIGATION AS A RESULT OF A PERVASIVE LACK OF FUNDAMENTAL FAIRNESS.

POINT 8: JUDGE CRITCHLEY MADE HARMFUL ERROR IN NOT RECOGNIZ ING THAT CONVICTION OF DEFENDANT IS NOT SUPPORTED BY THE EVIDENCE IN THE CASE.

POINT 9: JUDGE CRITCHLEY MADE HARMFUL ERROR IN FINDING DEFENDANT GUILTY BY DISREGARDING THE MANDATORY DUE PROCESS SAFEGUARDS §119A

- 36 THROUGH §119A

- 39. THIS IS A DUE PROCESS VIOLATION THAT ALSO VIOLATES THE CONSTITUTION OF NEW JERSEY AND DEFENDANT MUST BE FOUND NOT GUILTY OF THE CHARGES.

In his reply brief, defendant, in violation of the relevant law

, 1 raised seven

more points:

POINT 1: THE RECORD SHOWS THAT JUDGE CRITCHLEY ACTED UNDER MISCONCEPTION OF THE APPLICABLE LAW RULING ON THE REMAND CAUSING HIS EXERCISE OF DISCRETION TO LACK FOUNDATION IN THE

1 A reply brief may not raise new issues. See State v. Smith , 55 N.J. 476, 488 (1970); Sholtis v. Am. Cyanamid Co. , 238 N.J. Super. 8, 13

- 14 n.3 (App. Div. 1989).9 A

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POINT 2: JUDGE CRITCHLEY ERRED IN ADJUDICATING THE REMAND BY NOT RECOGNIZING THAT HE WAS CONVICTING DEFENDANT FOR OFFENSES NOT CHARGED BY SUMMONSES #391

- 394.

POINT 3: DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED; PLAINTIFF IS MISAPPLYING THE FACTS OF THE CASE AND USES INAPPLICABLE CASE LAW IN AN ATTEMPT TO ARGUE THAT DEFENDANT'S DUE PROCESS RIGHTS WERE NOT VIOLATED.

POINT 4: JUDGE CRITCHLEY ['S ] RULING LEAVES MORE THAN REASONABLE DOUBT THAT DEFENDANT'S DUE PROCESS RIGHTS WERE NOT VIOLATED UNDER THE 14TH AMENDMENT OF THE US CONSTITUTION, AND PLAINTIFF HAS ALSO NOT CONVINCED THE COURT BEYOND REASONABLE DOUBT THAT THE ERROR(S) COMPLAINED OF HEREIN D ID NOT CONTRIBUTE TO THE CONVICTION AND THE COURT MUST THEREFORE REVERSE THE GUILTY RULING.

POINT 5: PLAINTIFF FALSELY ARGUES THAT HE SUBSTANTIALLY COMPLIED WITH THE MANDATORY DUE PROCESS SAFEGUARDS, SECTIONS 119A

- 36 THROUGH 39 WHEN THE FACT IS THAT HE DID NOT.10 A

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- 17T4 POINT 6: PLAINTIFF MISUNDERSTANDS THE STANDARDS FOR APPELLATE REVIEW AND HIS POINT IV IS IRRELEVANT AND MUST BE IGNORED.

POINT 7: PLAINTIFF MISUNDERSTANDS THE SCOPE OF APPELLATE COURT REVIEW, AND THE WAIVER ISSUE HAS ALREADY BEEN RULED ON BY TH E APPELLATE COURT. THEREFORE PLAINTIFF'S POINT V HAS NO MERIT AND MUST BE IGNORED.

For the reasons stated by Judge Critchley, we affirm the conviction

.

D efendant's claims of error are so lacking in merit as to not warrant much

discussion in a written o pinion. R. 2:11

- 3(e)(2).

"[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.

Palma , 219 N.J. 584, 591

- 92 (2014) (quoting State v. Joas , 34 N.J. 179, 1 84

(1961); State v. Oliveri , 336 N.J. Super. 244, 251 (App. Div. 2001 ) ). In a trial

de novo conducted on the record developed in the municipal court, the "Law

Division judge [is] bound to give 'due, although not necessarily controlling,

regard to the oppo rtunity of a [municipal court judge] to judge the credibility of

the witnesses.'" State v. Clarksburg Inn , 375 N.J. Super. 624, 639 (App. Div.

2005) (quoting State v. Johnson , 42 N.J. 146, 157 (1964)).11 A

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"[Appellate] review is limited to determining wheth er there is sufficient

credible evidence present in the record to support the findings of the Law

Division judge, not the municipal court. " Ibid. (cit ing Johnson , 42 N.J. at 161

-

62 ). Furthermore,

[a]ppellate courts should defer to trial courts' credibil ity findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the prese nt case, two lower courts have entered concurrent judgments on purely factual issues. Under the two

- court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts a bsent a very obvious and exceptional showing of error.

[ State v. Locurto , 157 N.J. 463, 474 (1999) (citations omitted).]

Judge Critchley's conclusion that the testimony of the code enforcement

officer was credible is supported as to each summons by th e photographs

admitted as exhibits

, which corroborated his description of the premises. Thus,

the record contained ample credible evidence to support Judge Critchley's

findings of fact. See Locurto , 157 N.J. at 474. Defendant's legal attacks on the

judg e's decision simply have no merit.

Affirmed.