STATE OF NEW JERSEY v. CHARLES WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0367-04T30367-04T3

STATE OF NEW JERSEY,

Complainant-Respondent,

v.

CHARLES WILLIAMS,

Defendant-Appellant.

 

Submitted November 16, 2005 - Decided

Before Judges Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 19-2004.

Charles Williams, appellant pro se.

Philip Allan Borow, Municipal Prosecutor for the City of New Brunswick, attorney for respondent.

PER CURIAM

Defendant operates a barber shop in the City of New Brunswick. He was tried in New Brunswick Municipal Court on six summonses for violating a municipal ordinance that regulates business hours of operations. At trial, the prosecutor presented the testimony of Thomas Bogdan, employed by the City of New Brunswick as an administrative officer and principal planner. Bogdan testified, in substance, that the barber shop's hours of operation exceeded those permitted in the ordinance, and also violated the City zoning board's August 23, 1999 resolution that established a barber shop's hours of operation.

The municipal court judge found defendant guilty of the six summonses; he merged the six violations into two, imposed a $100 fine on each of the two violations, and $30 court costs on each, for a total of $260.

Defendant appealed to the Law Division. Judge Mulvihill, upon reviewing the transcripts of the municipal court proceeding, found defendant guilty. The court reduced the fine and costs to $130. It is from that decision that defendant appeals. He raises the following issue:

THE TESTIMONIAL EVIDENCE GIVEN BY THOMAS BOGDAN WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT A CONVICTION FOR OPERATING A BUSINESS AFTER HOURS IN VIOLATION OF THE ZONING BOARD'S ORDINANCE.

We have carefully considered defendant's argument in light of the record. We find his argument to be without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Municipal court decisions are appealed first to the Law Division of the Superior Court. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297 (App. Div. 1972). In the Law Division, review is de novo on the record, except for specific situations governed by Rule 3:23-8; none of which apply here. The Law Division judge should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). On appeal to the Appellate Division, the issue is whether sufficient credible evidence exists in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 157, 162 (1964). Like the Law Division, the appellate court is not in a position to judge credibility, and does not make credibility findings. Locurto, supra, 157 N.J. at 470-71.

Here, the record contains sufficient evidence to sustain the findings of the Law Division. The municipal court judge accepted Bogdan's testimony, finding him credible. The judge said:

The problem with these current tickets is that you operated in excess of the hours as authorized by the City Board. . . . The latest time you can have a business opened at that location was 7:00 p.m.

Mr. Bogdan testified, and I accept his testimony, that on July 31st you were open until 8: 30 August 4th -- these are all 2003 -- you were opened until 7:30, August 7th you were opened until eight o'clock, August 12th you were opened until 8:30, August 13th you're opened until 8:30, August 18th you're open until nine o'clock.

He further testified that once he gave you the tickets you apparently got the message and stopped doing that and you closed it on time and there were no further violations. . . . I find you guilty of each of the complaints and that you violated the hours as authorized under the Zoning Application Z41999 . . . . The days don't really matter because the latest time you can be open was 7:00 p.m. and Mr. Bogdan testified that all the times that he was there before he issued the tickets you were opened at least until 7:30 p.m. on one occasion, the rest were 8:30 and one other one was 9:30.

I mean it's pretty clear here that you operated a business in excess of the hours and apparently you felt that you couldn't operate a business and make money and remain open, that's apparently why you closed.

Judge Mulvihill, as did the municipal court judge, found that defendant on six occasions violated the hours limitations established in the ordinance. The court imposed the minimum penalty of a $100 fine and $30 in court costs.

On appeal, defendant argues that the evidence was not sufficient to support a guilty verdict. We are not persuaded by this argument. Bogdan's testimony, which was found to be credible by the municipal court, clearly established that defendant operated his barber shop beyond the permitted hours established by ordinance and by the 1999 zoning board resolution. The ordinance and resolution gave plaintiff sufficient notice of the limitations of his hours of operation. The municipal court judge believed Bogdan's testimony that defendant was conducting business activities after closing time. The Law Division judge deferred to those credibility findings. As do we.

 
Affirmed.

(continued)

(continued)

5

A-0367-04T3

November 30, 2005