BRUNSWICK ESTATES v. BERNADINE HENDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6546-04T56546-04T5

BRUNSWICK ESTATES,

Plaintiff-Respondent,

v.

BERNADINE HENDERSON,

Defendant-Appellant.

________________________________________________________________

 

Argued July 11, 2006 - Decided July 28, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County, Docket

No. LT-4464-05.

Gregory G. Diebold argued the cause for appellant

(Northeast New Jersey Legal Services, Inc.,

attorneys; Tania Garcia-Millan, of counsel and

on the brief).

Charles M. D'Amico argued the cause for respondent

(Walrod & D'Amico, attorneys; Mr. D'Amico, of

counsel and on the brief).

PER CURIAM

This appeal focuses on whether defendant, Bernadine Henderson, had knowledge of and tolerated or permitted her son's drug dealing from her home. Defendant appeals from an order entered on August 24, 2005 granting judgment of possession in favor of plaintiff Brunswick Estates. We reverse.

Since 1984, defendant has been a tenant in a home owned and managed by plaintiff. Defendant resides in the home with her two daughters, Tasha and Katrina, and two grandchildren, Emmanuel and Nakeah.

On February 7, 2004, defendant's son, Tarvis McCord, was arrested after the police observed him selling drugs from the rear door of defendant's home. A judgment of conviction was entered on September 24, 2004 after McCord pled guilty to one count of possession of a controlled dangerous substance in a school zone, N.J.S.A. 2C:35-7.

On July 29, 2004, plaintiff served a Notice of Termination of Tenancy and Demand for Possession on defendant, citing N.J.S.A. 2A:18-61.1(e)(1) and (3)(2). On October 4, 2004, plaintiff filed a landlord/tenant complaint based upon the notice. A non-jury trial was conducted on May 5 and 11, 2005. Thereafter, the trial judge rendered a written decision and entered judgment for possession in favor of plaintiff. The trial judge found the following:

[N.J.S.A. 2A:18-]61.1n provides for summary dispossession where the tenant "knowingly harbors or harbored therein a person who has been so convicted or has so pleaded [to an act which would constitute an offense under the Comprehensive Drug Reform Act of 1987], or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently." 61.1n uses the past tense for "harbor" and "permit" to corroborate that the conduct would have been done, and eliminates the defense that the person no longer lives in the unit or that no evidence exists showing that the person may return to the unit. Thus, the fact that Tarvis is no longer associated with the residence would not bar eviction under 61.1n. Evidence showing that Defendant "harbored" or "permitted" Tarvis to occupy the premises for residential purposes include observations by the police of suspected dealing from within the apartment, Tarvis stating Defendant's address on the police report as his place of residence, and that at least one article of his clothing was found within the residence. Evidence tending to show that Tarvis did not occupy the premises include that Tarvis was not listed as a tenant on the recertification form and Defendant's testimony that Tarvis had moved out ten years prior to the incident. I find that the evidence preponderates that Tarvis was, at least intermittently, permitted to occupy the premises.

The judge further found "testimony in favor of the plaintiff to be credible."

In this appeal, defendant argues:

POINT ONE

MS. HENDERSON CANNOT BE EVICTED ABSENT PROOF THAT SHE ACTUALLY KNEW AND TOLERATED HER SON'S ALLEGED DRUG ACTIVITY

POINT TWO

THE TRIAL COURT CANNOT ENTER A JUDGMENT FOR POSSESSION UNDER A SUBSECTION OF N.J.S.A. 2a:18-61.1 THAT IS NOT MENTIONED IN THE NOTICE TO QUIT. IN THE ALTERNATIVE, THE GROUNDS MENTIONED IN THE NOTICE TO QUIT ARE NOT [SIC] SUFFICIENT BASIS TO EVICT MS. HENDERSON

A. THE PROCEDURAL REQUIREMENTS OF N.J.S.A. 2a:18-61.1(e)(1) WERE NOT SATISFIED AND THUS CANNOT SERVE AS A GROUND FOR DISPOSSESSION

B. BRUNSWICK ESTATES CANNOT REMOVE MS. HENDERSON AS ALLOWED UNDER N.J.S.A. 2A:18-61.(e)(2) BECAUSE BRUNSWICK ESTATES IS NOT PUBLIC HOUSING UNDER THE CONTROL OF A PUBLIC HOUSING AUTHORITY OR REDEVELOPMENT AGENCY

Defendant argues in Point One that the trial judge did not make a finding that she knew of and tolerated her son's drug dealing.

N.J.S.A. 2A:18-61.1(n), a sub-paragraph of the Anti-Eviction Act, provides that a tenant may be evicted if she

knowingly harbors or harbored therein a person who has been so convicted [of an offense under the Comprehensive Drug Reform Act of 1987] or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, . . . .

In Housing Authority v. Alicea, 297 N.J. Super. 310, 313 (App. Div. 1997), we held under sub-paragraph (p) of N.J.S.A. 2A:18-61.1 that "to justify the ultimate sanction of eviction . . . a tenant must not only 'permit' a drug offender to occupy the leased premises, but must also tolerate the offender's occupancy of the premises knowing that such a person violated the [Comprehensive Drug Reform Act]." (emphasis added). To prevail in an eviction action under subparagraph (p), therefore, the landlord must establish "by a preponderance of the evidence that: (1) the tenant committed a drug offense within the leased premises, or (2) the tenant permits 'such a person' to occupy the premises 'continuously or ontermittently.'" Housing Authority v. Thomas, 318 N.J. Super. 191, 194 (App. Div. 1999) (quoting N.J.S.A. 2A:18-61.1p); Alicea, supra, 297 N.J. Super. at 113.

While sub-paragraphs (n) and (p) are different provisions of the Anti-Eviction Act, they both set forth the standard for evicting a tenant who "knowingly harbors . . . or otherwise permits" a person who violated the Comprehensive Drug Reform Act to occupy the premises.

Although the trial judge found plaintiff's evidence credible, he failed to make any findings with respect to defendant's knowledge of her son's drug dealing activity from the apartment. Plaintiff argues, however, that there is sufficient circumstantial evidence in the record to support such a finding. We disagree.

Plaintiff presented the testimony of two police officers to support its contention that defendant knew of her son's drug activities. Jersey City Police Officer Timothy O'Brien merely testified that when defendant was arrested, he said he lived at his mother's address. Detective Alex Bermundez testified that he set up a surveillance at Brunswick Estates "[d]ue to numerous complaints [from the managers of Brunswick Estates] for narcotics activity throughout the day and night in that location." Bermundez repeatedly testified that the surveillance target was the Brunswick Estates complex - not defendant's apartment, even when specifically asked. Bermundez further testified that after McCord was arrested, he was inside defendant's house while it was being searched and the only drugs found in the house were inside McCord's jacket, which was in a closet. Bermundez specifically testified that there were no drugs in plain view.

Defendant testified that she first learned of drug activity in her house when she was notified by the police on the day McCord was arrested. She testified that she had no reason to believe McCord was selling drugs from her house or that any drugs were stored in the house.

Our scope of review of a judgment entered in a non-jury case, such as this, is limited to a determination of whether the findings of the trial court "are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), aff'd o.b., 33 N.J. 78 (1960)). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms, supra, 65 N.J. at 484. Moreover, we are not at liberty to reverse the trial court's credibility findings when they are supported by the record. State v. Locurto, 157 N.J. 463, 472-74 (1999).

We have carefully considered the record in light of the parties' arguments and the applicable law. We are satisfied that there is insufficient evidence in the record to support a finding that defendant knew of and tolerated her son's drug dealing in her home. We accept the trial judge's finding that plaintiff's witnesses were credible, but we find nothing in their testimony from which we can infer that defendant knew of and permitted her son's drug dealing. Bermundez testified that the surveillance was set up for the Brunswick Estates complex - not specifically for defendant's apartment. There were no drugs in plain view when defendant's home was searched after McCord was arrested and the only drugs found in the apartment were inside McCord's jacket, which was in the closet that defendant testified she did not use.

In short, there is no evidence in the record from which to infer that defendant knew of and tolerated her son's drug dealing in her home. Accordingly, we reverse.

Reversed.

 

At oral argument before us, defense counsel conceded that the evidence supported a finding that defendant's son resided in defendant's home, at least intermittently, but argued that there was no evidence to support a finding that she knew of or tolerated his drug dealing.

Subparagraph (n) addresses drug offenses exclusively, while (p) provides for eviction for a variety of offenses including assault, terroristic threats against the landlord, in addition to violations of the Comprehensive Drug Reform Act.

(continued)

(continued)

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A-6546-04T5

July 28, 2006