STATE OF NEW JERSEY v. MARK HUTCHINSON

NOT FOR PUBLICATION WITHOUT THE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-1671-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARK HUTCHINSON,

     Defendant-Appellant.
______________________________

              Argued December 13, 2017 – Decided January 29, 2018

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Municipal Appeal
              No. 16-04.

              Fred J. Gelb argued the cause for appellant.

              Kevin B. Riordan argued the cause for
              respondent Borough of Point Pleasant Beach
              (Kevin   B.   Riordan,  attorney; Dina  R.
              Khajezadeh, on the brief).

PER CURIAM

        Defendant Mark Hutchinson appeals from the Law Division's

order entered after a de novo trial on the record.                        The Law
Division found him guilty of § 19-11.16 of the Ordinances of the

Borough of Point Pleasant Beach.          We affirm.

      Defendant's neighbor reported to the municipal zoning code

official that defendant was operating a business out of his

driveway and home.1    The Borough advised defendant by letter that

if he intended to operate a business from his home, he had to

register as a home occupation and apply for a mercantile license.

The letter listed the pertinent governing statutes.                 Defendant

received a second notice that continued violation of the statutes

would trigger mandatory court appearance summonses.

      After defendant failed to comply with both the registration

and licensing requirements, a zoning official went to defendant's

residence to investigate the neighbor's allegations.           The official

observed a company-owned truck parked less than half-a-block away

from defendant's home.      The driver got out and later returned to

the truck with some "equipment or material for a job."              Based on

the   neighbor's   complaints   and    her   observations,    the   official

signed   two   complaints    against      defendant    for   violations      of

Ordinance § 19-17.1,2 operating a business from a residence-single



1
   It is not disputed that defendant owns a heating and air-
conditioning company.
2
  The complaint was later amended to list a violation of Ordinance
§ 19.9, rather than § 19-17.1.

                                      2                               A-1671-16T1
family zone, and Ordinance § 19-11.16, failing to register as a

home occupation.

     Several       days    later   defendant    applied    for      a    mercantile

license.     The application listed his business and gave his home

address as its location.

     Prior    to    trial,    defendant     requested   the    zoning       official

provide    "copies    of     all   discovery   including      any       photographs,

statements[,] and names and addresses of all witnesses."                          The

official provided a witness list.           One month later, defendant sent

a second discovery request seeking "a record of statements, signed

or unsigned, by the persons on the witness list within your

possession, custody[,] or control, and any relevant record of

prior conviction of these persons."             The zoning officer advised

defendant that she did "not have any written statements from [her]

witnesses . . . [or] any information of their records."

     Defendant filed a motion to dismiss the two complaints,

arguing that the zoning officer "ha[d] not furnished a copy of any

statement[,] written or oral, nor stated that the witnesses did

or did not have a relevant criminal record."              The municipal court

judge adjourned the matter for forty-five days so that defendant

or an investigator on his behalf could take statements from the

State's witnesses.         Defendant did not retain an investigator or

procure statements from the proffered witnesses.

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     The matter proceeded to trial in municipal court on February

1, 2016.   The State presented evidence, through photographs and

the testimony of the zoning official and the       neighbor, that

defendant was running his business from his residence.    Defendant

also testified, disputing that he conducted any business out of

his home and stating that the people observed coming and going

from the premises were his friends.    In his oral decision, the

judge found defendant not credible, noting, "I don't think he has

the capability of telling me the truth."      Defendant was found

guilty of violating both ordinances, fined $500 and assessed $33

court costs on each complaint.

     Defendant appealed to the Law Division, and on October 20,

2016, Judge Rochelle Gizinski conducted a de novo trial on the

record and issued an oral decision.   In her ruling, she addressed

defendant's arguments of discovery violations and evidentiary

errors incurred during the municipal court proceedings.   Defendant

contended that he had not received the witness statements that he

had requested from the State in discovery, the photos and evidence

of the neighbor should not have been admitted because they were

not relevant, and only one summons should have been issued.

     The judge found no merit to the argument concerning witness

statements, noting that "[w]hat counsel has consistently ignored

throughout the litigation is that no statements were taken and the

                                 4                          A-1671-16T1
borough maintained they never existed.                   [The zoning officer]

consistently maintained that no statements were ever taken from

[the neighbor.]"         She also stated that defendant was given the

opportunity to take the statements of the neighbor and zoning

official, and he chose not to do so.               Under those circumstances,

there was no error in permitting the testimony of the neighbor.

Judge    Gizinski      further    determined     that   the    photographs     were

demonstrative evidence of what the neighbor had observed and were

relevant as evidence of "defendant conducting a business out of

his home."

     In addressing the validity of the summonses, the judge noted

that defense counsel did not specify which of the two summonses

should   not    have    been     issued.       Nevertheless,    she    found   that

Ordinance § 19.9 was too "broad" and "illogical" and, therefore,

it would be unfair to find defendant guilty of a violation of that

provision.

     Turning to Ordinance § 19-11.16, the judge noted the testimony

of the neighbor who had "observed trucks coming in and out of the

driveway, people cleaning air filters and carrying duct work

. . . , employees hanging out on the property, parking on side

streets and . . . taking parts in and out of trucks."                 The neighbor

described      people    leaving     defendant's        home   with    mechanical



                                           5                               A-1671-16T1
equipment and provided a series of photographs depicting these

events over the span of several months.

     Judge Gizinski found defendant "guilty of violating [§] 19-

11.16 because he operated a business from a residence in a single

family home zone and failed to register as a home occupation."

She, therefore, affirmed the municipal finding on this ordinance

and upheld the fine, but reversed the finding of guilt on § 19.9

and vacated the associated penalty.

     In this appeal, defendant reiterates the arguments made to

the Law Division, contending that the State did not comply with

his discovery requests regarding witness statements, the neighbor

should not have been permitted to testify, the photographs were

not relevant, and therefore inadmissible, and the home occupation

ordinance cannot be violated unless the resident registers.        We

are unpersuaded by these arguments.

     Our scope of review is limited to whether the conclusions of

the Law Division judge "could reasonably have been reached on

sufficient credible evidence present in the record."      State v.

Johnson, 
42 N.J. 146, 162 (1964).     We do "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."   State v. Robertson, 
228 N.J. 138, 148 (2017) (quoting

State v. Locurto, 
157 N.J. 463, 474 (1999)).

                                 6                          A-1671-16T1
       Appellate    courts    give    substantial         deference   to    a     trial

judge's findings of fact.          Cesare v. Cesare, 
154 N.J. 394, 411-12

(1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 
65 N.J. 474, 484 (1974)).            These findings should only be disturbed

when   there   is   no    doubt    that   they      are   inconsistent     with      the

relevant, credible evidence presented below, such that a manifest

denial of justice would result from their preservation.                         Id. at

412.    We owe no deference to the trial judge's legal conclusions.

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
140 N.J. 366,

378 (1995).

       Judge Gizinski properly conducted a de novo trial by reviewing

the    transcript   and    considering        the    written   briefs      and      oral

arguments of counsel.        In giving due regard to the municipal court

judge's credibility findings, Judge Gizinski found that defendant

had violated Ordinance § 19-11.16.             She determined that the State

had provided ample evidence through testimony and photographs that

defendant was conducting his business out of his home.

       We discern no basis to disturb the trial judge's decision.

She thoroughly reviewed the facts and we are satisfied there is

sufficient credible evidence in the record to substantiate her

findings.      We conclude that defendant's arguments are without

sufficient merit to warrant discussion in a written opinion, R.



                                          7                                     A-1671-16T1
2:11-3(e)(2), and affirm substantially for the thoughtful reasons

expressed by Judge Gizinski.

     Affirmed.




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