STATE OF NEW JERSEY v. JAMES McGLONE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3776-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAMES McGLONE,

Defendant-Respondent.

_________________________________________________

September 30, 2010

 

Submitted September 7, 2010 - Decided

 

Before Judges Payne and Messano.

 

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Municipal

No. A-46-08.

 

Marrazzo & Platt, P.C., attorneys for

appellant (Eric J. Riso, on the brief).

 

James McGlone, respondent pro se, has not filed a brief.

PER CURIAM

The State has appealed the sua sponte dismissal by a Law Division judge of its complaint against defendant, James McGlone, for violation of the zoning ordinance of Winslow Township, Camden County, as the result of failure to maintain a mandatory five-foot setback in connection with the location of an accessory shed on his property. The matter was initially tried in the Winslow Township municipal court on August 11, 2008. At the conclusion of the trial, the municipal court judge found defendant guilty of violating the setback requirement. She fined defendant $533 and ordered him to move the shed.

On August 21, 2008, the matter was appealed to the Superior Court. Following a trial de novo on the record below, the Law Division judge found defendant guilty of the offense charged and imposed a fine of $100 plus court costs. However, on February 20, 2009, the judge issued an opinion in which he found that the Winslow Township municipal court lacked jurisdiction of the matter, because defendant's address was specified on the complaint, on a May 5, 2008 letter from the Winslow Township Construction Official, and on a defense document that was admitted in evidence to be 359 S. Egg Harbor Rd. Hammonton, NJ 08037 an adjoining municipality in a different county. As a consequence, the judge found that the Winslow Township Municipal Court had exceeded its territorial jurisdiction pursuant to N.J.S.A. 2B:12-16a. Accordingly, the judge granted the appeal and dismissed the complaint.

In response to this ruling, the State informally moved for reconsideration, noting that a survey of defendant's property, admitted in evidence without objection at trial in the municipal court, listed the property as "being part of Lot 9, now known as 9C, Block 6901 as shown on the official tax maps of Winslow Township."

In a response dated February 26, 2009, the trial judge declined to vacate his dismissal of the complaint. He stated:

If the State intended to charge that the offense occurred in Winslow Township, then the Complaint should have so specified. It did not, Instead, the Complaint specified that the location of the offense was in Hammonton, as set forth in this [c]ourt's February 19, 2009 Opinion and Order. The Complaint was never amended, either in the Municipal Court or in the trial de novo proceeding, to assert that the location of the offense was in Winslow Township. If Mr. McGlone was being charged with an ordinance violation in Winslow Township, the Complaint should have so specified, or have been amended to so specify. No amendment was made.

 

Upon receipt of the judge's opinion, the State again moved for reconsideration. When doing so, it pointed out that the complaint against defendant, in fact, stated:

Complaining Witness: Edward McGlinchey of Winslow Twp. Zoning Office, . . . by certification or an oath, says that to the best of his/her knowledge or information and belief, the named defendant on or about May 29, 2008, in Winslow 0436 County of Camden N.J. did commit the following offense:

 

SHED DOES NOT MEET SET BACK REQUIREMENTS in violation of (one charge only) Ord. 296-50.

 

The state argued further that, if it were assumed, contrary to fact, that the complaint failed to set forth where the offense occurred, the court's decision in State v. Vreeland, 53 N.J. Super. 169 (App. Div. 1958) established that failure to specify jurisdiction did not constitute proper grounds upon which to premise dismissal. The State then quoted the following from the Vreeland opinion:

It is readily to be granted that the record of any judicial proceedings should as a matter of good practice reflect those facts which support the jurisdiction of the court over the subject matter in order to minimize the possibility of the undue assumption of power by an unauthorized tribunal. In the present case, the magistrate or the County Court should, on objection, have amended the complaint to state the place of commission of the offense. But this is not to say that where in fact jurisdiction exists its exercise should be nullified after the event because of the technical omission in a complaint of the recital of a jurisdictional fact the absence of which has not harmed the defendant.

 

Just as a court's jurisdiction over subject matter will not be defeated by the technical insufficiency of a complaint in pleading the facts which substantively operate to invoke that jurisdiction, . . . so should it not be defeated by a technical insufficiency in pleading such a jurisdictional fact as is here involved where the record shows that the fact exists. In the enlightened concepts which are entertained today in respect to the subordination of form to substance, the fact of jurisdiction should be controlling.

 

[Id. at 173 (emphasis supplied by the State; text reformatted to conform to published decision).]

 

In response, the Law Division judge conceded that the complaint described the location of the offense to be Winslow, although he complained of the small print. Further, the judge noted that the complaint listed the "location of the offense" as "359 S. Egg Harbor," which, when given as defendant's mailing address, was stated to be in Hammonton. The judge also distinguished Vreeland on the ground that it concerned a moving violation, whereas the violation in this case was stationary.1 As a final matter, the judge listed several exhibits in evidence that gave defendant's address as "359 S. Egg Harbor Road, Hammonton N.J." including two Work Site Permits listing both the work site location and defendant's address as Hammonton, a letter dated May 5, 2008 to defendant and his wife bearing a Hammonton address and a letter from defendant again listing the Hammonton address. The judge found on this basis that the State had failed to prove that jurisdiction existed. Accordingly, the judge denied the State's motion.

The State has appealed; we reverse.

Rule 7:7-1 provides:

Pleadings in municipal court actions shall consist only of the complaint. A defense or objection capable of determination without trial of the general issue shall be raised before trial by motion to dismiss or for other appropriate relief, except that a motion to dismiss based upon lack of jurisdiction or the unconstitutionality of a municipal ordinance may be made at any time.

 

As the comments to the rule note: "This requirement follows R. 3:10-2." Pressler, Current N.J. Court Rules, comment 1.2.1 on R. 7:7-1 (2010). In this case, neither party contested jurisdiction in the municipal or Superior Court proceedings. It was raised sua sponte by the Superior Court judge.

In the closely analogous case of State v. Barnes, 84 N.J. 362 (1980), the Court considered whether the State could appeal a sua sponte ruling by a county court judge, on appeal from a municipal court conviction, that the governing statute was unconstitutional. Ruling that an appeal was proper, the Court stated that, since the issue did not turn on defendant's guilt or innocence, an appeal was proper.

[T]he county court reversal of the convictions here on the basis of the unconstitutionality of the ordinance was unrelated to the guilt or innocence of the defendant Barnes. Indeed, scrutiny for facial invalidity and vagueness in a statute, as was performed here, necessarily eschews consideration of factual guilt or innocence. Accordingly, we hold that the State may appeal the constitutional issue raised in the county court without offending established principles of double jeopardy.

 

[Id. at 372.]

 

That reasoning is equally applicable here.

On appeal, the State argues that the fact that defendant had a Hammonton address is not dispositive of the location of defendant's property. In support of that contention, the State properly cites another instance in which the location of a building did not correspond with its mailing address. See Drugstore.Com, Inc. v. Director, Division of Taxation, 23 N.J. Tax 624, 628 (Tax Ct. 2008) ("DS Distribution leased from an unrelated third party a building that was located at 407 Heron Drive in Bridgeport, New Jersey, with a mailing address in Swedesboro, New Jersey."). We notice another instance of such divergence in the Passaic County municipality of Clifton, some residents of which list an Essex County mailing address of Upper Montclair.

In this regard, we note that the only evidence to support the Superior Court's theory of lack of jurisdiction consisted of documents bearing defendant's mailing address.2 The property survey listed the property's location as the Township of Winslow, and defendant, to the present time, has not raised the argument that his property was located in Hammonton or that Winslow improperly sought to impose its zoning ordinance on him. Indeed, all zoning and other applications concerning property made by defendant were to Winslow Township, not Hammonton.

In the circumstances presented, we find that the Superior Court judge made a mistake of fact and law in assuming that the location of property invariably coincides with that property's mailing address and did so in this case. As a consequence, we reverse and reinstate the judgment of conviction entered against defendant on or about February 19, 2009.

Reversed.

1 We find this distinction to be illusory.

2 Although the two Work Site Permits cited by the judge also listed defendant's mailing address as the work site location, we regard as significant their issuance by Winslow Township, not Hammonton. We are unaware of any precedent, and the judge has cited to none for the proposition that Winslow Township could issue permits for work in another municipality.