STATE OF NEW JERSEY v. ROBERT GODMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1645-05T31645-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT GODMAN,

Defendant-Appellant.

_______________________________

 

Submitted: February 27, 2007 - Decided March 12, 2007

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, A-32-05.

Robert Godman, appellant, pro se.

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Laurie P. Cimino, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Robert Godman appeals from a conviction for defiant trespass, N.J.S.A. 2C:18-3b, a petty disorderly offense, following a trial de novo in the Law Division after being found guilty in the municipal court of Harrison Township. The Law Division judge imposed the same fines, costs and penalties as assessed in municipal court, which he stayed pending appeal.

Defendant asserts the following arguments on appeal:

POINT I

DEFENDANT'S CONDUCT CONSTITUTES A DE MINIMUS INFRACTION AND THE CHARGES SHOULD HAVE BEEN DISMISSED.

POINT II

A DEFIANT TRESPASSER HAS NOT COMMITTED A CRIMINAL TRESPASS OF THE 4TH DEGREE, NOR IS A CRIMINAL TRESPASSER JUSTIFIED IN FILING COMPLAINTS.

We affirm.

Defendant was charged with trespassing on a tract of land on April 5, 2005, owned by his uncle William Blackman and left to a trust for preservation as farmland. An attorney in the firm of Archer and Greiner, the attorneys for the estate who were also co-executors and co-trustees, testified and presented evidence in municipal court that defendant was given permission by his firm to enter decedent's property on March 7 and April 7, 2005 under special circumstances, but was expressly informed he was not authorized to enter on the property at any other time. The letters further advised defendant that he had no authority to act on behalf of the estate and if he entered the property without permission, he would be trespassing. Testimony was also presented by the person who posted "No Trespassing" signs on the property in February 2005. An eyewitness testified that he observed defendant on the property on the day in question planting two seedlings over an open septic tank.

Defendant does not dispute that he received the letters from Archer and Greiner, nor that he was on the property on April 5, 2005. His defense is that he had the implicit permission of Glen Meade Trust Company, a co-fiduciary, to go onto the property and raise the lid of the septic tank. His authority was based on a conversation with an attorney named "Jim" in that office "weeks ahead of time," during which defendant told him, "[i]f there's a problem, call me and I won't go," and not having received an objection in five days, defendant went onto the property.

N.J.S.A. 2C:18-3 provides:

b. Defiant trespasser. A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1) Actual communication to the actor; or

(2) Posting in a manner prescribed by law or

reasonably likely to come to the

attention of intruders; or

(3) Fencing or other enclosure manifestly

designed to exclude intruders.

The Law Division judge found:

[Defendant] admitted being on the property on April the 5th. He acknowledges receiving the notices which are in evidence that he was not to be on the property. I understand his defense that Archer and Greiner had no right to bar him from the property and that even if they did he had passive permission from people [at] Glen Meade Trust Company to be on the property to work on the septic system.

. . . .

The Law Firm of Archer and Greiner represents the estate and . . . Cohen on behalf of . . . Archer and Greiner did have authority to send letters to the defendant which are in evidence and bar him from the property.

He admits being on the property. Unless he had permission to be on the property the violation of the law has been made out. He asserts permission from Glen Meade Trust Company. The only proof is his testimony. The letters from Archer and Greiner were clear that he was not authorized to be on the property. Defendant does not indicate that he communicated with the person who gave the notice but rather the Glen Meade Trust [and] indicates that there's not specific permission but [he] put them on notice that he would be on the property unless he is told otherwise.

Even if this occurred, the multiple notices received were very clear and the fact that the defendant called some other executor to say that he was going to be on the property unless told otherwise is insufficient proof of permission to enter the property to override those letters.

I do not find it credible that this occurred and even if it did, it does not rise to the level of a defense.

Our scope of review is limited to determining whether the findings by the Law Division judge could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). From our review of the record we are satisfied Judge Marshall carefully scrutinized the testimony and evidence before him in making his factual findings, and his findings of fact and conclusions of law are amply supported by the record. Accordingly, we will not disturb them on appeal. Ibid. Moreover, as defendant neither filed a motion to dismiss the prosecution as a de minimis infraction under N.J.S.A. 2C:2-11, nor raised the issue of a de minimis infraction before the trial court, we will not consider this issue on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

 

(continued)

(continued)

5

A-1645-05T3

March 12, 2007