AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY VS. COUNTY PROSECUTORS ASSOCIATION OF NEW JERSEY

 

         In this appeal, plaintiff American Civil Liberties Union of New Jersey (ACLU) contended defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA) and the common law right of access.  The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions.  CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access." 

         The court held CPANJ is not a public agency subject to OPRA and is not a public entity subject to the common law right of access.  Therefore, disclosure of the requested records was properly denied.  

STATE OF NEW JERSEY VS. ERIC A. BURNHAM

 This case addresses the issue of whether sales tax should be included when calculating the "full retail value" of merchandise under New Jersey's shoplifting gradation statute.  N.J.S.A. 2C:20-11(c).  Defendant pled guilty to shoplifting an Xbox One with an advertised price of $499.99.  Shoplifting constitutes a crime of the third degree "if the full retail value of the merchandise exceeds $500 but is less than $75,000" and a crime of the fourth degree "if the full retail value of the merchandise is at least $200 but does not exceed $500."  N.J.S.A. 2C:20–11(c)(2) and (c)(3).    The State utilized sales tax in grading defendant's offense, and he was therefore charged with a third-degree offense.  

The court analyzed the theft statute, which specifically utilizes sales tax to calculate the "amount involved" in its statutory gradation scheme.  However, the court observed the shoplifting statute contains no such provision.  The court concluded because the Legislature did not determine sales tax should be included in the valuation of full retail value in enacting the shoplifting gradation statute, it was improper for sales tax to have been utilized to increase defendant's charge to a third-degree offense.  

STATE OF NEW JERSEY VS. SHAREEF O. GRAY (19-10-1681,

 STATE OF NEW JERSEY VS. SHAREEF O. GRAY (19-10-1681, MIDDLESEX COUNTY AND STATEWIDE)

Defendant's car was subjected to a warrantless search incident to an unrelated sting operation planned and carried out by New Jersey State Police.  The State Police detained defendant after a parking lot melee involving three other persons, including the target of the sting operation.  Due to the cold weather, state troopers detained defendant in his car.  After a state trooper opened defendant's car door and placed him inside, the trooper smelled the odor of marijuana.  Based on the trooper's detection of marijuana, the State Police sought defendant's consent to search the car.  After initially refusing, defendant consented, and the State Police conducted a search of the car.  The State Police found no marijuana in the car, but they recovered an illegal gun.  Defendant filed a motion to suppress the gun, arguing the initial entry into his vehicle constituted an unconstitutional search.  The trial court denied the motion, finding the State Police's justification that it was too cold to detain defendant outside was sufficient under the totality of the circumstances.

The Court held that the trial court mistakenly applied State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989), and State v. Conquest, 243 N.J. Super. 528 (App. Div. 1990), and that the opening of the car door constituted an impermissible search.

STATE OF NEW JERSEY VS. WELDER D. MORENTE-DUBON

  Defendant was charged with first-degree murder, two weapons offenses, and hindering apprehension.  Tried to a jury, defendant was convicted of the lesser-included offense of second-degree passion-provocation manslaughter, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon, and not guilty of hindering apprehension.  The trial court found aggravating factors one, three, four, and nine, N.J.S.A. 2C:44-1(a)(1), (3), (4), and (9), and mitigating factor seven N.J.S.A. 2C:44-1(b)(7), but rejected mitigating factor nine, N.J.S.A. 2C:44-1(b)(9).  Following merger of the weapons counts, he was sentenced to a nine-and-one-half-year term, subject to the parole ineligibility and parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2.  

The court addressed the judicial factfinding undertaken by the trial court as part of its sentencing analysis.  The court concluded that the trial court's findings regarding the degree of provocation and sufficient time to cool off before delivering the fatal blows were contrary to the jury's verdict and violated the doctrine of fundamental fairness.  
The court also held that aggravating factor four applies to a defendant taking "advantage of a position of trust or confidence" relating to the victim "to commit the offense," not to a minor's subsequent participation in an attempted coverup of the homicide.  

The court also addressed the need for a trial court to provide a detailed explanation of how it reconciles its application of aggravating factor three and mitigating factor seven, the weight assigned to those factors, and how those factors are balanced with respect to a defendant who had no prior juvenile or criminal history and no subsequent criminal history in the decade that elapsed before his arrest.  

 The court vacated defendant's sentence and remanded for resentencing, directing the trial court to not consider whether defendant was adequately provoked or had adequate time to cool off before inflicting the fatal blows, to not apply aggravating factor four, and to apply mitigating factor fourteen.  The court further directed that the trial court reconsider whether aggravating factor three applies and if so, the weight to be given to it.  

State Of New Jersey In The Interest Of E.S.

The Court agrees with the Appellate Division that the trial court did not abuse its discretion in deciding to hear the defendant’s waiver motion before considering his suppression motion. The Court declines, however, to adopt a preference that the Family Part hear suppression motions before waiver motions, holding instead that it is within the discretion of the Family Part to determine its schedule of proceedings and manage its calendar. The Court sets forth factors that Family Part judges should take into consideration in exercising their discretion as to the order in which to hear waiver and suppression motions. 

State v. Oscar Ramirez

After reviewing the relevant statutes and authorities that must be considered in balancing the competing interests and rights of a sexual assault victim and the person accused of the sexual offense, the Court sets forth a framework of procedures and considerations to apply going forward when a prosecutor seeks to withhold from discovery a sexual assault victim’s address. Because neither the ruling of the trial court nor that of the Appellate Division sufficiently addresses the competing interests explored in the Court’s opinion, the Court remands the matter for a more fulsome balancing of the competing interests. 

State v. Jamal Wade Summary - A-31-21 It was error to admit defendant’s statements after detectives failed to honor his invocation of the right to counsel, and that error was not harmless in light of the circumstantial nature of the evidence against defendant and his statements’ capacity to undermine his credibility before the jury.

State v. Jamal Wade  Summary - A-31-21 It was error to admit defendant’s statements after detectives failed to honor his invocation of the right to counsel, and that error was not harmless in light of the circumstantial nature of the evidence against defendant and his statements’ capacity to undermine his credibility before the jury.

If not charged, police could ask questions here State v. Flores Defendant appealed the denial of her motion to withdraw her guilty plea. Daily briefing September 27, 2022 A-3726-20

   If not charged, police could ask questions here State v. Flores Defendant appealed the denial of her motion to withdraw her guilty plea.  Daily briefing September 27, 2022  A-3726-20  

Defendant appealed the denial of her motion to withdraw her guilty plea. Defendant was indicted in 2005 for arson, theft and conspiracy to commit arson and theft. She pled guilty to the conspiracy charge, entered PTI, successfully completed it in 2007 and all charges were dismissed. She moved to withdraw her guilty plea in 2021 but not to vacate her PTI program completion and the dismissal of all charges. She asserted she did not understand the legal definition of "conspiracy" when she pled guilty and she now realized she did not engage in criminal activity. She was also unaware of the possible collateral consequences to a guilty plea. Trial court found there was an adequate factual basis for her plea when she admitted she agreed her brother would illegally dispose of her car and, when she learned the car had been burned, she reported it stolen. Trial court applied the post-sentence manifest injustice standard and the four-factor analytical paradigm in State v. Slater, 198 N.J. 145. Defendant argued her guilty plea was not supported by an adequate factual basis. Court affirmed trial court because defendant sought a remedy not authorized for a plea withdrawal motion, the retention of her PTI program completion and the withdrawal of all charges, and agreed her plea was supported by an adequate factual basis.

NJ recently made Magic mushroom use or possession now only a disorderly offense, was previously a 3rd degree crime.

 NJ recently made Magic mushroom use or possession now only a disorderly offense, was previously a 3rd degree crime.

This missed the newspapers articles on legal weed

New 2C :35-10 .  Possession

 

P.L. 2021, CHAPTER 9, approved February 4, 2021

Senate, No. 3256

 

An Act concerning psilocybin and amending N.J.S.2C:35-10.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2C:35-10 is amended to read as follows:

     2C:35-10.  Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.

     a.     It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).  Any person who violates this section with respect to:……

…… or

     (5)  Possession of one ounce or less of psilocybin is a disorderly persons offense.

     Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.

     b.    Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.

     In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.

     c.     Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.

(cf: P.L.1997, c.181, s.6)

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     Currently, pursuant to paragraph (1) of subsection a. of N.J.S.2C:35-10, possession of any amount of psilocybin, a Schedule I controlled dangerous substance, is a crime of the third degree.  This bill would reclassify possession of psilocybin as a disorderly persons offense, punishable by up to up to six months imprisonment, a fine of up to $1,000, or both. 

                                 

 

     Reclassifies possession of psilocybin as disorderly persons offense.

 

State v. Briggs IP Address Data Did Not Require Warrant Because It Could Not Show Person's Movements

State v. Briggs  IP Address Data Did Not Require Warrant Because It Could Not Show Person's Movements

Defendant moved to suppress IP address data proffered by the state in defendant's criminal case. Police had issued an emergency disclosure request to a cell service provider seeking information relating to a certain phone number, including the customer name, email address, and recent IP addresses. In response to the request, police received subscriber information and an IP address log for the number.
Police issued a subsequent subpoena to an ISP provider, which turned over information showing that the IP addresses in the log belonged to various casinos in Las Vegas. The state also issued grand jury subpoenas to Google seeking subscriber information and IP address data for several Gmail addresses. Google turned over information that included IP address data for several hotels and casinos in Las Vegas.
In support of his motion to suppress the IP address data, defendant argued that such data was equivalent to cell site location information, which the U.S. Supreme Court, in Carpenter v. U.S., 138 S.Ct. 2206, had ruled could only be obtained by law enforcement via a warrant. In opposition to defendant's motion, the state argued that IP address data was not analogous to CSLI and therefore did not require a warrant to request. Specifically, the state contended that a person did not have a reasonable expectation of privacy in his or her location when they shared their location information by logging into an ISP's network.
The court denied defendant's motion. The court first noted that multiple federal circuit courts had declined to extend Fourth Amendment protection to IP address data as the Supreme Court had for CSLI. The court agreed with the state that CSLI was distinct from IP address data since CSLI could provide law enforcement with information about both a person's location and their movements. Conversely, IP address data could not provide information about a person's movement, as the address data only showed the discrete locations where a person had logged into the internet. Thus, the court ruled that a warrant was not required for law enforcement to request IP address data from internet and cell data service providers.

source Daily briefing October 03, 2022 at 12:00 AM       DOCKET  

 Case Number: 18-08-647 CASE DIGEST SUMMARY  

State v. Nazier D. Goldsmith(A-77-20

 State v. Nazier D. Goldsmith(A-77-20 

The information the officers possessed at the time of the stop did not amount to specific and particularized suspicion that defendant was engaged in criminal activity. Therefore, the officers did not have reasonable and articulable suspicion to initiate an investigatory detention of defendant, and the evidence seized must be suppressed.

State v. Nazier D. Goldsmith (A-77-20) (085636) Argued January 18, 2022 -- Decided July 5, 2022 

PIERRE-LOUIS, J., writing for the Court. 

In this case, the Court must determine whether reasonable and articulable suspicion existed when a police officer conducted an investigatory stop of defendant Nazier Goldsmith on a walkway adjacent to a vacant house. 

On the evening of January 15, 2019, Officer Joseph Goonan and another officer were on patrol in Camden in what they believed to be a “high-crime area” known for shootings and drug dealing. While approaching the vacant house, the officers observed two individuals standing in front of it. When the officers exited their vehicle, the two individuals walked away. At the same time, a third person, defendant, exited the walkway that leads to the rear of the house. 

Based on his training, 20 years of experience, and his belief that the vacant house was used for the sale of drugs and weapons, Officer Goonan found it suspicious that defendant was on the walkway next to the vacant house and believed defendant was engaged in drug dealing activity. The officers approached defendant, blocked his path at the end of the walkway, and began questioning him, asking for his name and for an explanation of his presence on that walkway. 

According to Officer Goonan, defendant became nervous and looked up and down the street; he started sweating, and his hands began to shake. Defendant provided a name and informed officers that his identification was in his jacket pocket. Because defendant’s demeanor made him nervous, Officer Goonan told defendant that he would retrieve the identification from defendant’s pocket. At that point, defendant stated, “I appreciate if you guys didn’t pat me down,” arousing Officer Goonan’s suspicions even further. 

Officer Goonan conducted a pat down for weapons. The officer felt a weapon in defendant’s jacket pocket and retrieved a handgun. Defendant was arrested, and police later recovered currency and drugs from defendant’s person. A search of the walkway revealed drugs in baggies that were the same color as the baggies of drugs found in defendant’s pockets. 

1 

Defendant was charged with weapons and drug offenses. Defendant moved to suppress the gun and drugs, arguing that both the stop and frisk were unlawful. The trial court granted the motion, finding the stop lawful but the frisk unlawful. The Appellate Division reversed. Without addressing the initial stop, the appellate court found that the frisk of defendant was objectively reasonable. The Court granted leave to appeal. 248 N.J. 3 (2021). 

HELD: The information the officers possessed at the time of the stop did not amount to specific and particularized suspicion that defendant was engaged in criminal activity. Therefore, the officers did not have reasonable and articulable suspicion to initiate an investigatory detention of defendant, and the evidence seized must be suppressed. 

1. An investigative or Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), is a relatively brief detention by police during which a person’s movement is restricted. Such a stop does not offend the Federal or State Constitution, and no warrant is needed, if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Although reasonable suspicion is a less demanding standard than probable cause, it cannot be based on inarticulate hunches or an arresting officer’s subjective good faith. Whether reasonable and articulable suspicion exists for an investigatory stop is a highly fact-intensive inquiry that demands evaluation of the totality of circumstances surrounding the police-citizen encounter, balancing the State’s interest in effective law enforcement against the individual’s right to be protected from unwarranted and/or overbearing police intrusions. The inquiry considers numerous factors, including officer experience and knowledge. It is well-settled that seemingly furtive movements by the suspect, without more, are insufficient to constitute reasonable and articulable suspicion. And although the reputation of an area may be relevant to the analysis, just because a location to which police officers are dispatched is a high-crime area does not mean that the residents in that area have lesser constitutional protection from random stops. (pp. 17-20) 

2. 

To determine whether reasonable and articulable suspicion existed here, the 

Court first considers when the investigatory stop commenced. Although officers did 

not tell defendant to “stop” when he exited the walkway, they blocked his path, and 

Officer Goonan acknowledged that defendant could not have moved forward freely 

at that point. No reasonably prudent person would have felt free to leave when 

officers stepped into the only path of egress and began asking questions, leaving 

defendant no place to go but backwards. The moment officers impeded defendant’s 

forward progress and began the questioning, the encounter became an investigatory 

detention or stop. 

(pp. 20-22) 

2 

3. Turning to whether officers had reasonable and articulable suspicion to stop defendant at that point in time, the Court stresses that Officer Goonan unequivocally testified that he did not witness defendant interact with or engage in a hand-to-hand transaction with the two men that left the scene, contrary to the trial court’s finding that the two men were with defendant. As for defendant’s presence in a high-crime area, the Court continues to view the impact of previous crimes in the same area as a police encounter as a factor to be considered in the totality of the circumstances when determining whether a stop was based on reasonable suspicion. However, the State must do more than simply invoke the buzz words “high-crime area” in a conclusory manner to justify investigative stops. Here, Officer Goonan’s vague testimony fell short of providing factual support for his conclusory statement that the area was high crime. The State must provide at least some evidence to support the assertion that a neighborhood should be considered as “high-crime.” (pp. 22-26) 

4. Here, even if Officer Goonan had provided more information regarding the prevalence of crime in the area, that would have been insufficient to justify the stop because the other factors on which the officers relied were also insufficient -- even when taken together -- to form a reasonable and articulable suspicion that defendant was engaged in criminal activity. The only information the officers possessed prior to the stop was information that could be used to justify the stop of virtually anyone, on any day, and at any time, based simply on their presence on that street. Officer Goonan had a hunch that defendant was engaged in criminal activity. That hunch, however, did not amount to objectively reasonable and articulable suspicion for an investigatory stop. Because the stop here was unlawful, the Court does not reach the lawfulness of the frisk. (pp. 26-28) 

REVERSED. REMANDED for REINSTATEMENT of the suppression order . 

State v. Nazier D. Goldsmith (A-77-20) (085636) Argued January 18, 2022 -- Decided July 5, 2022 

PIERRE-LOUIS, J., writing for the Court. 

In this case, the Court must determine whether reasonable and articulable suspicion existed when a police officer conducted an investigatory stop of defendant Nazier Goldsmith on a walkway adjacent to a vacant house. 

On the evening of January 15, 2019, Officer Joseph Goonan and another officer were on patrol in Camden in what they believed to be a “high-crime area” known for shootings and drug dealing. While approaching the vacant house, the officers observed two individuals standing in front of it. When the officers exited their vehicle, the two individuals walked away. At the same time, a third person, defendant, exited the walkway that leads to the rear of the house. 

Based on his training, 20 years of experience, and his belief that the vacant house was used for the sale of drugs and weapons, Officer Goonan found it suspicious that defendant was on the walkway next to the vacant house and believed defendant was engaged in drug dealing activity. The officers approached defendant, blocked his path at the end of the walkway, and began questioning him, asking for his name and for an explanation of his presence on that walkway. 

According to Officer Goonan, defendant became nervous and looked up and down the street; he started sweating, and his hands began to shake. Defendant provided a name and informed officers that his identification was in his jacket pocket. Because defendant’s demeanor made him nervous, Officer Goonan told defendant that he would retrieve the identification from defendant’s pocket. At that point, defendant stated, “I appreciate if you guys didn’t pat me down,” arousing Officer Goonan’s suspicions even further. 

Officer Goonan conducted a pat down for weapons. The officer felt a weapon in defendant’s jacket pocket and retrieved a handgun. Defendant was arrested, and police later recovered currency and drugs from defendant’s person. A search of the walkway revealed drugs in baggies that were the same color as the baggies of drugs found in defendant’s pockets. 

1 

Defendant was charged with weapons and drug offenses. Defendant moved to suppress the gun and drugs, arguing that both the stop and frisk were unlawful. The trial court granted the motion, finding the stop lawful but the frisk unlawful. The Appellate Division reversed. Without addressing the initial stop, the appellate court found that the frisk of defendant was objectively reasonable. The Court granted leave to appeal. 248 N.J. 3 (2021). 

HELD: The information the officers possessed at the time of the stop did not amount to specific and particularized suspicion that defendant was engaged in criminal activity. Therefore, the officers did not have reasonable and articulable suspicion to initiate an investigatory detention of defendant, and the evidence seized must be suppressed. 

1. An investigative or Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), is a relatively brief detention by police during which a person’s movement is restricted. Such a stop does not offend the Federal or State Constitution, and no warrant is needed, if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Although reasonable suspicion is a less demanding standard than probable cause, it cannot be based on inarticulate hunches or an arresting officer’s subjective good faith. Whether reasonable and articulable suspicion exists for an investigatory stop is a highly fact-intensive inquiry that demands evaluation of the totality of circumstances surrounding the police-citizen encounter, balancing the State’s interest in effective law enforcement against the individual’s right to be protected from unwarranted and/or overbearing police intrusions. The inquiry considers numerous factors, including officer experience and knowledge. It is well-settled that seemingly furtive movements by the suspect, without more, are insufficient to constitute reasonable and articulable suspicion. And although the reputation of an area may be relevant to the analysis, just because a location to which police officers are dispatched is a high-crime area does not mean that the residents in that area have lesser constitutional protection from random stops. (pp. 17-20) 

2. 

To determine whether reasonable and articulable suspicion existed here, the 

Court first considers when the investigatory stop commenced. Although officers did 

not tell defendant to “stop” when he exited the walkway, they blocked his path, and 

Officer Goonan acknowledged that defendant could not have moved forward freely 

at that point. No reasonably prudent person would have felt free to leave when 

officers stepped into the only path of egress and began asking questions, leaving 

defendant no place to go but backwards. The moment officers impeded defendant’s 

forward progress and began the questioning, the encounter became an investigatory 

detention or stop. 

(pp. 20-22) 

2 

3. Turning to whether officers had reasonable and articulable suspicion to stop defendant at that point in time, the Court stresses that Officer Goonan unequivocally testified that he did not witness defendant interact with or engage in a hand-to-hand transaction with the two men that left the scene, contrary to the trial court’s finding that the two men were with defendant. As for defendant’s presence in a high-crime area, the Court continues to view the impact of previous crimes in the same area as a police encounter as a factor to be considered in the totality of the circumstances when determining whether a stop was based on reasonable suspicion. However, the State must do more than simply invoke the buzz words “high-crime area” in a conclusory manner to justify investigative stops. Here, Officer Goonan’s vague testimony fell short of providing factual support for his conclusory statement that the area was high crime. The State must provide at least some evidence to support the assertion that a neighborhood should be considered as “high-crime.” (pp. 22-26) 

4. Here, even if Officer Goonan had provided more information regarding the prevalence of crime in the area, that would have been insufficient to justify the stop because the other factors on which the officers relied were also insufficient -- even when taken together -- to form a reasonable and articulable suspicion that defendant was engaged in criminal activity. The only information the officers possessed prior to the stop was information that could be used to justify the stop of virtually anyone, on any day, and at any time, based simply on their presence on that street. Officer Goonan had a hunch that defendant was engaged in criminal activity. That hunch, however, did not amount to objectively reasonable and articulable suspicion for an investigatory stop. Because the stop here was unlawful, the Court does not reach the lawfulness of the frisk. (pp. 26-28) 

REVERSED. REMANDED for REINSTATEMENT of the suppression order . 

 

Municipal Court Lacked Jurisdiction to Enter Judgment of Conviction Enforcing City's Notice of Unsafe Building Condition and permitting building to be torn down State v. Balani

 Municipal Court Lacked Jurisdiction to Enter Judgment of Conviction Enforcing City's Notice of Unsafe Building Condition and permitting building to be torn down

State v. Balani

 

 

Defendant appealed from his conviction for violating state building codes and from the municipal court's judgment that ordered defendant's building be demolished and a lien placed on the property. In 2007, defendant received notice that his building was an "unsafe structure" due to the lack of electrical power and ruptured water lines. By 2011, defendant had not fixed the property, resulting in the issuance of another notice. A third notice was issued in 2017, which identified other problems including holes in the roof and failure of load-bearing walls. Defendant was then charged with maintaining an unsafe structure. At trial, the municipal court heard testimony from the municipality's construction official and from a civil engineer who testified on behalf of defendant. The experts disagreed over the extent of damage and the repairs needed. Defendant's expert testified that the building needed about $12,000 in repairs, while the municipal construction officer opined that the building needed to be demolished. The municipal court found the construction officer's testimony more credible and concluded that the building needed more work than identified by defendant's expert. The municipal court ordered defendant to obtain estimates from a licensed contractor and to provide proof that he could come up with the funds necessary to repair the building. When defendant could not prove that he had the money for repairs, the municipal court ordered the building demolished, stating that the structure was unsound and at imminent risk of collapse. Defendant appealed, and during the pendency of the appeal the building was demolished. On appeal, the court first ruled that the appeal was not mooted by the building's demolition as defendant still had an interest in overturning his quasi-criminal conviction. The court vacated the conviction and dismissed the complaint, ruling that the municipal court lacked jurisdiction because it could only hear an action to enforce a fine imposed after a notice of unsafe condition, not to compel compliance with the notice

 

 

NJLJ July 19, 2022 

 

STATE OF NEW JERSEY, Plaintiff, 

v.
HINDRAJ L. BALANI, 

Defendant.

Decided: December 29, 2020 

SUPERIOR COURT OF NEW JERSEY MIDDLESEX COUNTY
LAW DIVISION, CRIMINAL PART MUNICIPAL APPEAL NO. MA-13-2019 

APPROVED FOR PUBLICATION July 19, 2022 COMMITTEE ON OPINIONS

 

R. J. JONES, J.S.C. 

Hindraj L. Balani (defendant) filed this appeal after Woodbridge Township’s municipal court found him guilty of violating state regulations prohibiting unsafe structures. N.J.A.C. 5:23-2.32(a). In sentencing Balani, the municipal court ordered the building he owned demolished, ordered that a lien be placed on his property, and ordered him to pay court costs. This appeal followed. In deciding it, the court addresses several issues, most importantly, 

whether the regulations dealing with unsafe structures allow a municipal court, and in turn this court, to order a building demolished. They do not, and this opinion explains why. 

The issues, as framed by Balani, condense to three: 1) that Woodbridge Township’s code enforcement officer failed to meet the notice requirements set out in the regulation, and thus, that he cannot be found guilty of violating it; 2) that the municipality’s construction official lacked the expertise to testify about his building’s structural integrity and should have been barred from doing so; and 3) that even if this court allows the testimony of the construction official, the court should accept the testimony of his expert, an engineer, over that of the construction official. 

As explained below, the court need not reach each of these issues. While providing the de novo review required by this appeal, concerns arose about the procedures employed below—issues that go to the heart of this court’s review. This opinion examines these issues, as well as whether the appeal should be dismissed as moot, something the State contends in its response. 

Facts
Balani owns property in Woodbridge’s Keasbey section. Starting in 2007, 

municipal officials began issuing notices warning that a building on the property was an “unsafe structure” as that term is defined in the New Jersey 

2

Administrative Code.1 The first notice was issued in 2007. It indicated that the building lacked electrical power because water lines had ruptured. From the record, it appears that officials took no further action after issuing the notice. 

As of 2011, Balani still had not fixed the problems, prompting the municipality to issue another notice. At this point, the roof and walls had begun to deteriorate. The next notice, issued in 2017, described similar problems: Holes plagued the roof, which was deteriorating, and the load-bearing walls were failing. 

Based on these continuing problems, Woodbridge Township issued a municipal-court complaint charging Balani with maintaining an unsafe structure, which violates N.J.A.C. 5:23-2.32(a). The municipality issued the complaint in February 2019, and about two months later the case went to trial. The municipal judge heard two witnesses: Thomas Kelly, the municipality’s construction official, and Md A. Huq, a civil engineer who testified for Balani. The experts disagreed about the extent of the damage and the work needed to repair it. Huq estimated the repairs at about $12,000, while Kelly believed the building would need to be demolished. 

1 The State attached copies of the notices to its appellate filings even though they were not marked into evidence at the municipal-court hearing. Because de novo review is conducted on the record below, these documents will not be considered. See R. 3:23-8. The discussion in this opinion about the contents of the notices comes from the trial testimony. 

3

The municipal court agreed with Kelly, finding that the scope of the repairs exceeded those in Huq’s estimates. As a result, the court gave Balani a week to prove he could come up with $50,000—the estimated cost to repair the building. In addition, the court ordered Balani to obtain estimates from a licensed contractor showing the scope and cost of the work. The judge warned Balani: If he did not provide these estimates and show that he had the money available, the court would order the building demolished. 

When he returned to court, Balani could not prove he had the money to repair the building, so the municipal court judge ordered it demolished. In doing so, the court said the building was unsound and in imminent danger of collapse. The court found Balani guilty of violating N.J.A.C. 5:23-2.32(a). It did not impose a fine for the violation, just court costs. The judge then stayed the decision for twenty days to allow this appeal. After Balani filed it, this court dismissed the appeal because his attorney failed to submit a timely brief. It was then reinstated several months later, after the problem was cured. In the meantime, though, Woodbridge officials demolished the building, as ordered by the municipal court. 

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Analysis
Before getting to the substance of the appeal, it is important to understand 

the lens through which it must be viewed. When considering an appeal from a municipal court, the Law Division conducts a de novo review of the record below. R. 3:23-8(a)(2). In doing so, the judge must independently review the defendant’s guilt or innocence. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). The Law Division does not affirm or reverse the court below, but rather, decides the case anew. State v. Carlson, 344 N.J. Super. 521, 525 n.2 (App. Div. 2001). This includes resentencing the defendant “as provided by law.” R. 3:23-8(e). 

A. Mootness 

The first issue is a threshold one: whether the building’s demolition moots the appeal and requires its dismissal. The court need not reach any other issues if this is the case. 

“An issue is ‘moot’ when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.” Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). According to the State, this appeal is moot because Woodbridge demolished Balani’s building. In other words, according to the State, the building’s demolition prevents this 

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court from rendering an order that has any practical effect on the parties and their controversy. 

The court agrees with the State to a point: The demolition cannot be undone. But criminal convictions do not become moot simply because the defendant served the sentence. N.J. State Parole Bd. v. Boulden, 156 N.J. Super. 494, 496-97 (App. Div. 1978). This principle extends to quasi-criminal convictions. Ibid. For these types of convictions, “service of the sentence or the payment of the fine imposed on the conviction—or even the death of the defendant himself—pending appeal, does not moot appellate review and determination of the propriety of th[e] conviction.” Id. at 497. Courts recognize that the conviction itself can lead to “collateral legal disadvantages, civil disabilities or public stigma.” Ibid. “It seriously affects [a defendant’s] reputation and economic opportunities.” Ibid. 

Courts also will hear otherwise moot appeals when they present issues of “significant public importance.” State v. McCabe, 201 N.J. 34, 44 (2010). And notably, courts hear otherwise moot appeals when the issues are “likely to recur.” State v. Gartland, 149 N.J. 456, 464 (1997). 

There are multiple reasons to hear Balani’s appeal despite the building’s demolition. For starters, the matter is quasi-criminal. Balani faces a conviction that could easily bring collateral consequences, including legal, personal, and 

 

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business consequences. A conviction like the one here affects a defendant’s business reputation and economic opportunities. So appellate review has a “real and meaningful purpose.” Boulden, 156 N.J. Super. at 497. 

The court also finds that because of the important issues raised—which deal with the municipal court’s authority and the procedures used in Woodbridge—the situation here is likely to recur. If that is the case, the parties need guidance in how to follow the procedural requirements of N.J.A.C. 5:23- 2.32(a). So, even if technically moot, the issues on appeal need to be addressed. 

B. The Regulatory Scheme 

Balani was charged with violating a regulation enacted under the State Uniform Construction Code Act (UCC), more specifically, N.J.A.C. 5:23- 2.32(a). This regulation sets out procedural steps municipalities and property owners must follow when dealing with alleged unsafe structures. In providing de novo review, it is important to understand these procedural steps, so this opinion will set them out in detail. 

When a building or structure is deemed unsafe, N.J.A.C. 5:23-2.32 requires the owner to remedy the problem: “All buildings or structures that shall become unsafe . . . shall be deemed unsafe buildings or structures, shall be taken 

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down and removed or made safe and secure.”2 N.J.A.C. 5:23-2.32(a). This regulation requires subcode officials to examine buildings and structures reported to be unsafe and to render a report that is then filed with the municipality. N.J.A.C. 5:23-2.32(a)(1). 

If deemed unsafe, the municipality must also notify the owner about the condition of the building or structure, about the required repairs, and about the time within which the required repairs (including possible demolition) must be completed: 

Notice of unsafe structure: If an unsafe or unsanitary condition is found in a building or structure, the construction official shall serve a written notice describing the building or structure deemed unsafe and specifying the required repairs or improvements to be made to render the building or structure safe and secure, or requiring the unsafe building or structure or portion thereof to be vacated or demolished within a stipulated time. Such notice shall require the person thus notified to immediately declare to the construction official his or her acceptance or rejection of the terms of the order. Such person may seek review before the Construction Board of Appeals within 15 days of receipt of the notice. 

[N.J.A.C. 5:23-2.32(a)(2).]
As the text explains, those receiving the notice (usually the owner) must either accept or reject its terms immediately. Ibid. In addition, appeals must be filed 

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definition as “unsafe.” 

For ease of reference, this opinion refers to buildings that fall under this 8 

within fifteen days. Ibid. The county’s Construction Board of Appeals hears the appeal. Ibid. 

The regulation also contains a provision that applies when an owner fails to comply. It allows the construction official to pursue the remedies contained in the remaining UCC regulations and to pursue relief through legal counsel: 

Upon refusal or neglect of the person served with a notice of unsafe structure to comply with the requirements of the order to abate the unsafe condition, the construction official shall, in addition to any other remedies herein provided, forward the matter to the legal counsel of the jurisdiction for an action to compel compliance. 

[N.J.A.C. 5:23-2.32(a)(5).]
While N.J.A.C. 5:23-2.32(a) does not contain a provision allowing for 

fines, the language quoted above incorporates all other remedies in the UCC’s regulations. Ibid. These remedies are contained in N.J.A.C. 5:23-2.31, which (among other things) allows construction officials to assess monetary penalties against those who violate the UCC or its regulations. N.J.A.C. 5:23- 2.31(b)(1)(iii). Penalties are collected under the Penalty Enforcement Law of 1999, N.J.S.A. 2A:58-10 to -12. N.J.A.C. 5:23-2.31(b)(6). Jurisdiction to enforce penalties levied by the construction official is lodged in both municipal courts and the Superior Court. Ibid. 

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C. Compliance with the Regulatory Scheme 

With this regulatory scheme in mind, the court will turn to what happened here. For a variety of reasons related to the trial below, Balani claims that the municipal-court judge should not have found him guilty of violating N.J.A.C. 5:23-2.32(a). Yet the court need not go down that path. As the regulation makes clear, if Balani disagreed with the notices served upon him, he needed to do two things: 1) immediately notify the construction official, and 2) appeal within fifteen days to the County Construction Board of Appeals. He did neither. As a result, he forfeited his right to challenge the construction official’s determination about the condition of his building. This precluded the need for a trial on this issue. 

Balani disagrees. He says the construction official failed to meet the procedural requirements of N.J.A.C. 5:23-2.32 when filling out the Notices of Unsafe Structure. More specifically, he says the notices did not include information required by the regulation. He also says the official failed to file a report with the municipality detailing the condition of the structure, as required by N.J.A.C. 5:23-2.32(a)(1). So, according to Balani, he could bypass the Construction Board of Appeals. 

This argument is unconvincing for two reasons. First, the record does not support Balani’s allegations, as he never raised them below. He did not question 

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the sufficiency of the notices or any of the related issues he raises now. In fact, the notices are not even part of the record. 

Second, if Balani took issue with the sufficiency of the notices or whether Woodbridge complied with the regulation in other ways, he could have raised these concerns with the Construction Board of Appeals—the agency the Legislature designated to hear appeals. It comes down to this: Balani failed to appeal to the Construction Board of Appeals, and that barred him from challenging the condition of his property and the need for demolition when he appeared before the municipal court. 

But this does not end the inquiry. After receiving the notices, Balani did nothing to remedy the unsafe condition of his property. At that point, the construction official had two methods to enforce his decision. For starters, he could have assessed a monetary penalty under N.J.A.C. 5:23.2.31 and then sought to enforce the penalty in municipal court (or Superior Court). This requires several steps. First, the construction official would need to assess the fine.3 Then, if Balani failed to pay it, the official had the ability to file in 

3 

The Department of Community Affairs (DCA) publishes a manual that contains approved forms officials use when assessing monetary penalties under the UCC. DCA, Municipal Procedures Manual, 70, 112 (2018), www.nj.gov/dca/divisions/codes/publications/muni_proc_man.html (last visited Dec. 1, 2020). The manual is referenced in the regulations. See N.J.A.C. 5:23-1.4. The manual “detail[s] the steps to be followed in completing, processing, and filling the standard forms, logs and reports required for 

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municipal court using the special form of summons and complaint for penalty enforcement proceedings. R. 7:2-1(h). If this procedure had been followed, the municipal court would have had jurisdiction to enforce the penalty via the Penalty Enforcement Law. The regulations specifically provide for this. 

The construction official also could have “forward[ed] the matter to the legal counsel of the jurisdiction for an action to compel compliance.” N.J.A.C. 5:23-2.32(a)(5). While the regulations do not say which courts have jurisdiction to hear this type of action, the proper venue would have been Superior Court. Municipal courts have limited jurisdiction. N.J.S.A. 2B:12-17. By statute, that jurisdiction is limited to 

a. Violations of county or municipal ordinances; 

b. Violations of the motor vehicle and traffic laws; 

c. Disorderly persons offenses, petty disorderly persons offenses and other non-indictable offenses except where exclusive jurisdiction is given to the Superior Court; 

d. Violations of the fish and game laws; 

e. Proceedings to collect a penalty where jurisdiction is granted by statute; 

f. Violations of laws regulating boating; and 

administration and enforcement of the State Uniform Construction Code.” Ibid. The form for assessing penalties is entitled Notice and Order of Penalty (UCC- F212). Municipal Procedures Manual at 112. 

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g. Any other proceedings where jurisdiction is granted by statute. 

[Ibid.] 

An action to compel compliance with a Notice of Unsafe Structure—here, to order demolition of a building—does not fit into any of the first six categories. It also does not qualify under subsection (g), as no statute grants jurisdiction to municipal courts to compel compliance with a Notice of Unsafe Structure. By contrast, N.J.A.C. 5:23-2.31 and N.J.S.A. 52:27D-138 grant municipal courts jurisdiction to enforce penalties imposed by municipal construction officials. 

So, while Woodbridge’s construction official could have issued a fine and then sought to enforce the fine in municipal court, the municipality could not compel compliance in municipal court. The municipal court lacked jurisdiction to order this relief, which would be available only in Superior Court. Cf., N.J.A.C. 5:23-2.31 (noting how a construction official can “request the legal counsel of the municipality . . . institute the appropriate proceedings at law or in equity to restrain, correct, or abate” when a notice of violation or order to terminate have not been complied with). 

This raises the next question: How does the lack of jurisdiction affect this appeal? On de novo review, the Law Division must resentence a defendant using its “independent judgment,” not simply determine whether the defendant is 

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guilty or not guilty. State v. States, 44 N.J. 285, 293 (1965); R. 3:23-8(e). While Balani did not raise jurisdiction to order his building demolished as an issue in his appellate brief or below, the court would be imposing an illegal sentence— that is, one outside a municipal court’s jurisdiction—if it were to impose the same penalty as the municipal court. That being the case, and because municipal officials did not follow the procedures that would allow this court to impose a fine, the complaint must be dismissed. This is true even though Balani did not appeal the Notices of Unsafe Structure and was not in a position to contest their validity when he appeared in municipal court. 

One final issue requires comment. N.J.A.C 5:23-2.32(b)(2) allows a construction official to, among other things, order a building’s demolition when “there is actual and immediate danger of failure or collapse of a building or structure . . . which would endanger life, or when any structure or part of a structure has fallen and life endangered by the occupation of the building or structure . . . .” This emergency order is effective immediately, but demolition may not begin for twenty-four hours. Ibid. After that, demolition work may begin “unless stayed by order of the Superior Court.” Ibid. The emergency order is appealable “to a court of competent jurisdiction.” N.J.A.C. 5:23- 2.32(b)(6). 

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In its findings, the municipal court said Balani’s property was in imminent danger of collapse and posed a danger to people and property if that were to happen. While the court’s language, to some extent, tracks the required findings under subsection (b)(2), that provision does not apply for two reasons. First, Balani was cited and found guilty under subsection (a), not subsection (b). Second, the regulation delegates to the construction official, not the municipal court, the authority to order emergency demolition. 

It boils down to this: Based on the facts presented, N.J.A.C. 5:23-2.32(b) did not allow the municipal court—and does not allow this court—to order demolition. This finding, though, has an important caveat: The court does not decide whether the construction official met the requirements of subsection (b)(2) and had the ability to order demolition on his own, in other words, as part of his statutorily imposed powers. That issue is beyond the scope of this appeal. 

Conclusion
Based on lack of jurisdiction to order demolition, as well as the failure of 

Woodbridge’s construction official to levy a fine that this court can enforce, the complaint is dismissed. The court will issue an order consistent with this opinion. 

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