STATE OF NEW JERSEY v. NICHOLAS COONEY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4904-04T24904-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS COONEY,

Defendant-Appellant.

__________________________________

 

Submitted March 21, 2006 - Decided April 20, 2006

Before Judges Skillman and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 8-2005.

Nicholas Cooney, appellant, pro se.

Slavin & Morse, attorneys for respondent (Kevin Morse, on the brief).

PER CURIAM

Defendant was found guilty in the Carteret Municipal Court of violating a municipal ordinance prohibiting disorderly conduct and fined $500. On a de novo appeal based on the municipal court record, the Law Division also found defendant guilty of violating the ordinance and reimposed the same sentence imposed by the municipal court.

On an initial review of defendant's appeal, this court questioned whether the municipal ordinance under which defendant had been convicted was preempted by the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9. Consequently, we invited the parties to submit supplemental briefs dealing with this issue. Both parties subsequently filed supplemental briefs.

We conclude that the Carteret municipal ordinance under which defendant was convicted is preempted by the Code. Therefore, we reverse defendant's conviction.

N.J.S.A. 2C:1-5(d) provides:

Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.

This provision reflects "a general legislative intent to exclude local legislation from areas covered by the Code of Criminal Justice." State v. Crawley, 90 N.J. 241, 251 (1982); see also State v. Paserchia, 356 N.J. Super. 461, 464-66 (App. Div. 2003); State v. Felder, 329 N.J. Super. 471, 473-75 (App. Div. 2000).

In Paserchia, we held that a municipal ordinance prohibiting disorderly conduct was preempted by the Code. The ordinance involved in that case provided:

No person shall disturb, by any violent, abusive, loud or threatening language, or disorderly or indecent behavior of any kind, any lawful congregation or assembly of any kind or description in any place or building within the Township.

[356 N.J. Super. at 464.]

In concluding that this ordinance was preempted by the provisions of N.J.S.A. 2C:33-2 dealing with disorderly conduct, we stated:

Our review of the West Orange ordinance and N.J.S.A. 2C:33-2 convinces us that both provisions address the same activity. Furthermore, an examination of Chapter 33 of the Code reveals a policy to comprehensively address street behavior and other conduct in public places which may disturb citizens and disrupt peaceful society. N.J.S.A. 2C:33-1 to -28 addresses offenses against the public order, health and decency. It proscribes rioting and failure to disperse (N.J.S.A. 2C:33-1), harassment (N.J.S.A. 2C:33-4), obstructing highways and other public passages (N.J.S.A. 2C:33-7), disrupting meetings and processions (N.J.S.A. 2C:33-8), and disorderly conduct (N.J.S.A. 2C:33-2).

[Id. at 466.]

The Carteret ordinance prohibiting rioting, breaches of the peace and disorderly conduct is substantially the same as the West Orange ordinance that we held to be preempted by the Code in Paserchia. The Carteret ordinance provides:

No person or persons shall make, aid, assign, create or cause to be created any riot, breach of peace or disturbance or be guilty of any disorderly conduct or open drunkenness or drink intoxicating liquors in the open streets or highways of the Borough of Carteret or other quasi-public open places in the borough.

[Borough of Carteret, N.J., Code 168-3(a).]

The Code contains express provisions dealing with rioting, N.J.S.A. 2C:33-1, and disorderly conduct, N.J.S.A. 2C:33-2. Therefore, the parts of the Carteret ordinance prohibiting riots, breaches of the peace and disorderly conduct that defendant was found to have violated are preempted by the Code.

Accordingly, defendant's conviction is reversed.

 

We express no opinion regarding the validity of the parts of the ordinance prohibiting public drunkenness and the consumption of alcoholic beverages in public places. See N.J.S.A. 2C:33-15 to -17.

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A-4904-04T2

April 20, 2006