STATE OF NEW JERSEY v. JEFFREY ROTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JEFFREY ROTH,

Defendant-Respondent.

________________________________

February 18, 2016

Submitted December 16, 2015 Decided

Before Judges Fuentes and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0468-14.

Woolson, Sutphen, Anderson, P.C., attorneys for appellant (Jolanta Maziarz, on the brief).

Law Offices of Steven A. Varano, P.C., attorneys for respondent (Joseph P. Slawinski, on the brief).

PER CURIAM

The Township of Hillsborough (Hillsborough) issued summonses to defendant Jeffrey Roth for zoning violations. The municipal court found defendant guilty of all violations and sentenced defendant to pay $33,000 in fines. Defendant appealed and, following a trial de novo, the Law Division found defendant guilty of some violations, not guilty of other violations, and sentenced defendant to pay $12,000 in fines. The State, through designated counsel for Hillsborough, filed an appeal from the Law Division order. Because the State's appeal is barred by double jeopardy principles, we dismiss.

I.

Defendant operates a landscaping business on property he owns in Hillsborough. Defendant also rents portions of the property for use by other businesses. In 2005, Hillsborough issued three summonses to defendant for violations of zoning ordinances on his property. Defendant pled guilty to all three violations in 2006 and was sentenced to pay fines of $7500 for each violation. One of those violations, summons SC-1823, was for storage of mulch and topsoil on the property, and another violation, summons SC-1824, was for leasing space to contractors to store equipment. The 2006 municipal court order provided that defendant's fines for the two violations under summonses SC-1823 and SC-1824 "shall be subject to remission" depending on the outcome of a Zoning Board of Adjustment proceeding that the court ordered defendant to initiate.

Defendant applied to the Zoning Board for use variances to allow him to conduct non-conforming activities on the property. One of the issues in the Zoning Board proceeding was whether certain of defendant's uses of the property were shielded from zoning violations as pre-existing non-conforming uses. Ultimately, the Law Division resolved those zoning-use issues in a subsequent prerogative writ action and described the lawful uses of the property in a final order entered on March 26, 2013. Roth v. Bd. of Adjustment, No. SOM-L-487-10 (Law Div. Mar. 26, 2013).

In June and July 2013, Hillsborough issued two new summonses to defendant for zoning ordinance violations. Specifically, defendant was alleged to have (1) failed to file for a site plan approval (summons SC-4386) and (2) illegally expanded a pre-existing non-conforming use related to hours of operation (summons SC-4385). A trial was conducted on those charges in the Hillsborough Municipal Court on November 5, 2013. Although defendant was provided with notice, he failed to appear at trial. The municipal court found defendant guilty of (1) failing to file for site plan approval, and (2) expanding a non-conforming use. The municipal court fined defendant $10,000 for failure to file the site plan and $8000 for the expansion of the non-conforming use. The municipal court also determined that defendant was not entitled to remittance of the two $7500 fines imposed in connection with defendant's 2006 guilty plea under summonses SC-1823 and SC-1824. The 2006 municipal court order had not been clear in stating whether defendant was to immediately pay the $15,000 and thereafter seek remittance. The November 15, 2013 municipal court order, however, clarified that defendant had not yet paid the $15,000 because that order directed defendant to make a total payment of $33,000, consisting of $18,000 in new fines and $15,000 for the non-remitted fines.

Defendant filed a motion for a new trial, which the municipal court denied. Defendant then filed an appeal to the Law Division. In accordance with Rule 3:23-8, the Law Division conducted a trial de novo using the record developed in the municipal court. On June 19, 2014, the Law Division issued an opinion finding defendant guilty of failing to file for site plan approval under summons SC-4386 and partially guilty of expanding a non-conforming use under summons SC-4385. The Law Division sentenced defendant to pay fines of $10,000 and $2000, respectively. The Law Division also found defendant was entitled to a remittance of $15,000 for each of the two $7500 fines that had been imposed in connection with his guilty pleas under summonses SC-1823 and SC-1824. No order was issued in connection with the Law Division's opinion dated June 19, 2014. Both defendant and the State moved for reconsideration and the Law Division denied those motions in an order dated August 7, 2014. The Law Division also issued a written opinion supporting the denial of the motions for reconsideration.

On September 19, 2014, the State filed a notice of appeal of the August 7, 2014 order. On October 1, 2014, the Law Division issued a "final" order. The October 1, 2014 order (1) found defendant guilty of failing to obtain site plan approval and fined him $10,000; (2) found defendant guilty of expanding a non-conforming use related to the hours of operation and fined him $2000; (3) ordered that the fines for the violations under summonses SC-1823 and SC-1824, totaling $15,000, be remitted to defendant; and (4) denied defendant's request for a new trial in the municipal court.1 On October 20, 2014, the State filed an "amended" notice of appeal, appealing the October 1, 2014 order.

On this appeal, the State argues that the Law Division exceeded its jurisdiction in determining defendant's municipal court appeal. Specifically, the State contends

A. The Trial Court incorrectly conducted a new plenary trial without regard to the record created before the Municipal Court.

B. The Municipal Court's determination that Roth had expanded a nonconforming use should not have been disturbed.

C. Roth's guilty pleas to the violations in Summons No. 1810-SC-1823 and Summons No. 1810-SC-1824 and his failure to complete the Board of Adjustment process precludes remittance of the fines imposed by [the municipal court in 2006].

II.

The Double Jeopardy Clause of the United States Constitution "protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). This protection is extended to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969); Widmaier, supra, 157 N.J. at 490. The protections against double jeopardy under the New Jersey Constitution, N.J. Const. art. I, 11, are co-extensive with the protections afforded by the federal clause. Widmaier, supra, 157 N.J. at 490.

Double jeopardy principles are applicable to a non-indictable offense following the disposition of a trial de novo. See id. at 492; State v. Barnes, 84 N.J. 362, 367-72 (1980); State v. Carlson, 344 N.J. Super. 521, 527 (App. Div. 2001) (holding that double jeopardy principles bar the State from appealing a Law Division order following a trial de novo on a municipal appeal of a zoning ordinance violation), certif. denied and appeal dismissed, 171 N.J. 336, cert. denied, 536 U.S. 960, 122 S. Ct. 2665, 153 L. Ed. 2d 839 (2002).

Here, the State is appealing two parts of the Law Division's order: (1) the amount of the fine imposed under summons SC-4385, and (2) the remittance of the $15,000 for two fines under summonses SC-1823 and SC-1824. The appeal of the amount of the fine under SC-4385 is barred by double jeopardy principles. The Law Division found defendant partially guilty under SC-4385 for two violations of the zoning ordinance, whereas the municipal court found him guilty of eight violations. Thus, the Law Division effectively acquitted defendant of those charges. The State cannot appeal from an acquittal. Widmaier, supra, 157 N.J. at 490. In Widmaier, the Supreme Court held that a fact finding in a trial that resulted in an acquittal, even though legally incorrect, cannot be appealed by the State because of double jeopardy principles. Ibid. Here, the State's appeal of the Law Division's partial acquittal under summons SC-4385 is barred by double jeopardy principles.2

Moreover, the State is seeking to have defendant pay $8000, rather than $2000 under summons No. SC-4385. If defendant has begun to pay that fine, that would be an increase in the fine which, in turn, would violate principles of double jeopardy. State v. Schubert, 212 N.J. 295, 304-05 (2012); State v. Vaccaro, 150 N.J. Super. 410, 413 (App. Div. 1977).

The appeal of the remittance is a closer question when analyzed under double jeopardy principles. Had defendant paid the $15,000 in 2006 and then sought remittance, the subsequent proceedings could have been analogized to a post-conviction proceeding, which the State can in certain circumstances appeal. See R. 2:3-1(b). In this case, however, the November 15, 2003 municipal court order expressly required defendant to pay the $15,000 fine, thus clarifying that defendant had not previously paid the $15,000. Defendant had a right to appeal that part of the municipal court order to the Law Division. On a de novo review, the Law Division made a fact finding that defendant was entitled to a remittance. The State now seeks to appeal that order and effectively have defendant be retried on that fact finding issue. While the State contends it simply wants the municipal court ruling concerning the remittance reinstated, such relief is still a different fact finding following the trial de novo in the Law Division. Double jeopardy principles do not allow for such a second determination on the same offense. Wildmaier, supra, 157 N.J. at 490. Here, the Law Division's determination that defendant was entitled to remittance is a final adjudication on a quasi-criminal penalty. As a consequence, the State's appeal seeking to "reverse" that fact finding is barred by double jeopardy principles.

Dismissed.

1 In its order, as well as the supporting opinions, the Law Division uses terms such as "affirm," "approve" and "reverse" when discussing its ruling related to the decisions made by the municipal court. Such terminology is incorrect. On appeal from a municipal court ruling, the Law Division conducts a trial de novo. See R. 3:23-8(a)(2); State v. Kuropchak, 221 N.J. 368, 382 (2015). The Law Division does not review what the municipal court ruled. Instead, the Law Division makes independent findings of fact and conclusions of law. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

2 The State argues that the Law Division could not make its own fact findings on a trial de novo. That argument is incorrect. State v. Heine, 424 N.J. Super. 48, 58-59 (App. Div.) ("The judges in the trials de novo were obliged to make independent findings of fact since their function was not the appellate function . . ., but rather an independent fact-finding task regarding [the defendant's] guilt or innocence."), certif. denied, 211 N.J. 608 (2012); Kashi, supra, 360 N.J. Super. at 545 ("[T]he Superior Court judge reviews the transcript and makes an independent determination of the sufficiency of the evidence presented . . . .").