STATE OF NEW JERSEY. v. DAVID M. BECKERMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3479-04T33479-04T3

STATE OF NEW JERSEY.

Plaintiff-Respondent,

v.

DAVID M. BECKERMAN,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 28, 2006 - Decided April 18, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 04-067.

David M. Beckerman, pro se appellant.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, David M. Beckerman, appeals from his conviction, after a trial de novo in the Law Division, of two counts of criminal mischief, in violation of N.J.S.A. 2C:17-3a(2). On one count, the judge imposed a fine of $300, and on the other count a $100 fine was imposed. Court costs and mandatory monetary assessments were also imposed. Defendant presents these arguments on appeal:

POINT I

DEFENDANT HAD A RIGHT TO REMOVE THE FENCE POSTS AND STAKES AS THEY INTERFERED WITH HIS PRESCRIPTIVE RIGHT.

POINT II

DEFENDANT HAD THE RIGHT TO BELIEVE HE HAD A PRESCRIPTIVE RIGHT.

POINT III

RIGHTS OF HOLDER OF PRESCRIPTIVE EASEMENT.

POINT IV

RIGHT OF [DOMINANT] OWNER TO REMOVE OBSTRUCTIONS IN CRIMINAL PROSECUTIONS.

We reject defendant's arguments and affirm.

The charges arise out of a border dispute between defendant and his backyard neighbor, Susan Gengos. Over the years, defendant planted shrubbery and installed an irrigation system on a portion of the Gengos property. When he did so, and at all times, he was fully aware that this activity was conducted on Gengos' side of the boundary line dividing the properties.

Gengos moved into her property in 1992. Defendant lived in his property since 1980. In May 2003, Gengos sent a letter to defendant informing him of her intention to install a fence around her property and giving him an opportunity to remove the sprinkler system she observed on her side of the property line while it was still accessible to him. Prior to this time, Gengos and defendant had never met and never communicated with each other.

Defendant is an attorney. On June 3, 2003, he responded to Gengos by a letter on his legal stationary directing that her fence installers not disturb the sprinkler system and commenting on her need to obtain permits and the requirements of the local fence ordinance. He made no mention in his letter of any claim of a prescriptive easement on her property. On July 25, 2003, defendant again corresponded with Gengos, this time on his personal stationary. He described the pleasant view he and his wife enjoyed in their backyard and stated, "You certainly have the right to place a chainlink [fence] on your property line, but its impact on our park-like setting and ou[r] personal pleasures would be quite disturbing." Gengos did not respond.

On July 31, 2003, surveyors placed stakes around Gengos' property in preparation for the fence installation. On August 3, 2003, Gengos noticed that the stakes placed along her rear property line had been moved about ten feet into her property. This is the location bordering defendant's property. The remaining stakes around her yard were undisturbed. She called the police. An officer responded. Defendant initially denied removing the stakes, but he later admitted that he had indeed removed and relocated them. On August 8, 2003, Gengos found on her doorstep a magnum of champagne and a note from defendant again requesting that she meet with him to discuss the fence. On August 10, 2003, she returned the champagne to defendant, stating a gift was not necessary. Defendant asked her to move her fence back ten feet onto her property. Gengos replied, "to the spot where you put -- relocated my survey stakes?" Defendant answered in the affirmative.

On August 13, 2003, employees of the fence company arrived to erect the fence. They could not begin the installation along defendant's property line until the surveyors returned to relocate the stakes in their proper location. While they were waiting, defendant said he remembered where the holes were from where he had removed the stakes and pointed out those locations. The surveyors came and repositioned the stakes, for which they charged Gengos an additional fee of $375.

The workmen then installed the fence posts around the property, setting them in cement. The workmen left the property at about 6:00 p.m. At about 8:00 p.m., in the darkness, Gengos walked around her property to inspect the work. She found two posts along defendant's property line pulled out of the ground. She again called the police. While waiting for the police to arrive, defendant came out of his residence stating that he pulled out the posts and would pull them out again if they were reinstalled. When the police officer arrived, defendant admitted that he had removed the posts and again stated that he would remove them again. At this time, the first complaint was issued, charging defendant with criminal mischief. The police officer advised defendant to refrain from entering Gengos' property and, if there was a dispute, it should be resolved in court.

The next morning, at about 8:00 a.m., Gengos observed that the remaining posts along the property line bordering defendant's property had been removed. In all, eleven posts were removed. She again called the police, and another criminal mischief complaint was issued. The fence company employees returned. They reinstalled the posts that had been removed at an additional cost of $820. They completed the fence installation that day, using a quick drying cement and working late into the evening to avoid a possible recurrence of defendant's conduct from the previous evening.

On August 18, 2003, after the fence installation was complete and after the criminal complaints had been issued, defendant filed a civil action in the Chancery Division seeking a declaration of a prescriptive easement on a portion of Gengos' property. He was unsuccessful in that action. His complaint was dismissed, and he was ordered to pay restitution to Gengos.

The facts in this case as to what defendant did have never been in dispute. Defendant's argument has been the same in the municipal court, the Law Division, and on appeal. He contends that he was under the belief that he possessed a prescriptive easement on a portion of Gengos' property, thus negating any criminal intent on his part. He contends he was acting under color of title when he removed the surveyors stakes and fence posts. Indeed, in argument before the Law Division, defendant stated: "There is no doubt, no doubt that the facts of the acts that were committed by me violated the Statute." He contended, however, that because he was acting under color of title, to remove what he believed was an obstruction to his prescriptive easement right, he could not be guilty of a criminal offense. The municipal judge and Law Division judge rejected this contention, and so do we.

A person is guilty of criminal mischief if he or she "[p]urposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property." N.J.S.A. 2C:17-3a(2). When defendant removed and relocated the surveyor's stakes and removed the fence posts, he was fully aware that they were on Gengos' side of the property line. He knew those items were placed there by contractors engaged by Gengos for the purpose of installing a fence on property to which she held legal title. He was on notice that Gengos rejected his request to move the fence line back ten feet. Defendant made that request based upon a neighborly overture to preserve the aesthetics of his property. He had not asserted any legal claim to a portion of Gengos' property.

As an attorney, defendant was certainly aware that to enforce an asserted easement on the property of another over the express objection of that party requires a court action and a declaration of rights. Indeed, defendant commenced such an action after the events giving rise to the criminal mischief complaints occurred. Defendant's self-help conduct, under the guise of a prescriptive easement right and action under color of title, does not provide a defense under the circumstances of this case. His interference with the surveyor's stakes and fence posts could not have been more deliberate, and clearly constituted purposeful, knowing or reckless conduct on his part.

Affirmed.

 

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A-3479-04T3

April 18, 2006