STATE OF NEW JERSEY v. MISAEL CLAROS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05454-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MISAEL CLAROS,

Defendant-Appellant.

_________________________

December 2, 2016

Argued October 18, 2016 Decided

Before Judges Koblitz, Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Summons Nos. 2013-21907, 2013-21908, 2013-21909, 2013-21910, 2013-21911, 2013-21912, 2013-21913, 2013-21914 and 2013-21915.

Ramon M. Gonzalez argued the cause for appellant (Gonzalez & Caride, attorneys; Mr. Gonzalez, on the brief).

Cheyne R. Scott argued the cause for respondent (Chasan Leyner & Lamparello, attorneys; Ms. Scott, of counsel and on the brief).

PER CURIAM

Defendant, landlord Misael Claros, appeals from a July 16, 2015 Law Division order finding him guilty de novo of nine counts of violating Township of North Bergen, Ordinance 38-09, Section 6 prohibiting renting cubicles and imposing a fine of $750 plus $33 court costs on each count for a total of $7047. Because as a matter of law the State produced insufficient evidence of guilt beyond a reasonable doubt, we reverse.

The State called one witness, North Bergen Building Department and Bureau of Fire Prevention Inspector James J. Corso, who testified that he inspected the two-family property in April 2013 in response to anonymous complaints. Two tenants let him into the home. He identified what he believed were five "cubicles" upstairs and four downstairs. Each had a "key lock on the door," although most were unlocked at the time of inspection. Corso distinguished a "key lock" from other indoor privacy locks in that a key lock is locked by a key from outside the door. Many of these separate rooms also contained refrigerators or microwave ovens. Each floor, or single-family-zoned apartment, had its own kitchen and bathroom. One of the kitchens had a "posting" in Spanish on the kitchen wall, a "handwritten piece of paper telling someone to clean up after themselves as, you know, everyone uses the kitchen." Neither apartment had a living room, which Corso explained contributed to the appearance of illegality. He opined that regardless of the relationship among the tenants, the rooms constituted "cubicles" because of the key locks and other indicia and were therefore illegal.

Corso also inspected the basement. The basement contained an "unmade bed, cooking utensils that were hidden in a . . . closet." Corso did not issue a violation for the basement because he thought "[he] didn't have enough evidence for it."

Corso explained that in his experience of inspecting homes for eight years a family or roommates living together would not be likely to have key locks on rooms, signs posted reminding individuals to clean up or a lack of a living room.1

Defendant raises the following issues on appeal

POINT I: ORDINANCE NO. 38-09 FAILS TO PROVE THE REQUISITE ELEMENTS TO DEFEND AGAINST A VIOLATION AND, AS SUCH, IS A VAGUE AND UNCONSTITUTIONAL ORDINANCE.

POINT II: THE ORDINANCE IS UNCONSTITUTIONAL BECAUSE, WHILE KEEPING IN MIND THE FHA'S POLICY "TO PROVIDE, WITHIN CONSTITUTIONAL LIMITATIONS, [] FAIR HOUSING THROUGHOUT THE UNITED STATES," IT ALLOWS DISCRIMINATION AGAINST THE OCCUPANTS DUE TO VAGUENESS. 42 U.S.C.A. 3601.

POINT III: ALTERNATIVELY, IF THE ORDINANCE IS CONSTITUTIONAL, THE PROSECUTION DID NOT MEET IT'S [SIC] BURDEN OF PROVING THAT THE APARTMENT CONTAINED ILLEGAL CUBICLES.

"[Appellate] review is limited to determining whether there is 'sufficient credible evidence present in the record' to support the findings of the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The Law Division judge is to give "due, although not necessarily controlling, regard to the opportunity of a [municipal court] to judge the credibility of the witnesses." State v. Johnson, supra, 42 N.J. at 157. The Appellate Division, like the Law Division, is not in as good a position to evaluate credibility, and should not make new credibility findings but should defer to the trier of facts. State v. Locurto, 157 N.J. 463, 474 (1999).

"Moreover, the rule of deference is more compelling where, . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

At a municipal level, "ordinances enacted pursuant to the police power are presumptively valid." N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 55 (2009); see also First Peoples Bank v. Twp. of Medford, 126 N.J. 413, 418 (1991) ("Generally, a reviewing court should presume the validity and reasonableness of a municipal ordinance."). "Municipal ordinances are normally liberally construed in favor of the municipality . . . with the burden of proving otherwise placed upon the party seeking to overturn the ordinance." State v. Golin, 363 N.J. Super. 474, 481-82 (App. Div. 2003). "However, because municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, penal ordinances must be strictly construed." Id. at 482 (citing Twp. of Pennsauken v. Schad, 160 N.J. 156, 171 (1999)).

"[A]n ordinance violation, commenced on municipal court summons and in which the State acknowledged its burden beyond a reasonable doubt, is a quasi-criminal matter." State v. Carlson, 344 N.J. Super. 521, 527 (App. Div. 2001), certif. denied, 171 N.J. 336, cert. denied, 536 U.S. 960, 122 S. Ct. 2665, 153 L. Ed. 2d 839 (2002). "Because municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, [the courts] should follow the rule of strict construction, interpreting the terms of the ordinance narrowly." Twp. of Pennsauken v. Schad, supra, 160 N.J. at 171 (1999) (citation omitted).

Ordinance 38- 09 Section 6 states

For purposes of this ordinance a "cubicle" is defined as one or more rooms occupied or intended for occupancy with sleeping facilities, but without one or more of the requirements of a "dwelling unit" as defined in Section 4 of this Ordinance.

Section 4 of Ordinance 38-09 states

For purposes of this ordinance, a "dwelling unit" is defined as one or more rooms occupied or intended for occupancy as separate living quarters for one family with access directly from the outside of the building or through a common hall and for which separate cooking, sleeping, and sanitary facilities are provided for the exclusive use of the occupants.

[Emphasis added.]

The Law Division judge, when finding defendant guilty beyond a reasonable doubt, made the following findings regarding guilt

The property involved in the individually secured units is clearly qualified as cubicles and as defined by the ordinance, which is not challenged, and they are maintained at this property. They very clearly do not possess the required separately divided cooking, sleeping and sanitary facilities to satisfy the definition of a dwelling unit as used in the ordinance. And it's obvious, it's clear what was going on here, the house was chopped up into cubicles in order to maximize its potential for providing rent.

The Law Division judge also opined that key-locked rooms were "unheard of in a family relationship" and proof that the people living in the apartments were strangers to each other. Although the municipal judge's findings are not before us, we find instructive his detailed findings including that "anyone with teenagers" would not find it unusual that key locks were found on bedroom doors, or refrigerators in bedrooms. The municipal judge also stated, "I find, beyond a reasonable doubt that there were nine people living in that building who really probably didn't even know each other."

While the ordinance does not define "family," case law has determined that in order for an ordinance limiting residence to one family to be valid, the interpretation of "family" must include more than a traditional familial definition. See Glassboro v. Vallorosi, 117 N.J. 421, 431 (1990). The Supreme Court in Glassboro held that a group of ten unrelated college students living together who cooked for each other, shared household chores, used a shared telephone, and paid bills from a common checking account constituted a family as defined by the Borough's statute. Id. at 424, 432-33. The Court upheld the validity of the ordinance because the definition of "family" did not impose an "explicit distinction between related and unrelated people." Id. at 431. The Court noted that it is the relationship among individuals "exhibit[ing] a kind of stability, permanency and functional lifestyle which is equivalent to that of the traditional family unit." Id. at 431 (quoting Open Door Alcoholism Program, Inc. v. Bd. of Adjustment, 200 N.J. Super. 191, 200 (App. Div. 1985)).

The only evidence introduced at trial was Corso's testimony and photographs of the front of the building, three doorknob key locks and the interiors of two rooms. Corso was not qualified as an expert witness. See N.J.R.E. 702. Even had he been qualified as an expert, "an expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper." State v. Odom, 116 N.J. 65, 77 (1989). The ordinance violations carried a possible sentence of ten days in jail. Suspicions and likelihoods are not sufficient proofs in a quasi-criminal case.

We conclude as a matter of law that insufficient evidence was produced to prove beyond a reasonable doubt that the tenants in each apartment of this two-family home did not have a relationship with each other such that they constituted a family.

Reversed.

1 Corso also testified that he spoke to a tenant who said that "[he] lived in that one by [himself]." Defendant did not object to this hearsay testimony, N.J.R.E. 802, but neither did the court rely on it. We disregard this testimony as it was inadmissible and not considered by the trial court.