STATE OF NEW JERSEY v. VINCENT URBANK

NOT FOR PUBLICATION WITHOUT THE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-4221-16T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

VINCENT URBANK,

     Defendant-Appellant.
__________________________

                    Submitted May 31, 2018 – Decided November 15, 2018

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey,
                    Law Division, Ocean County, Municipal Appeal
                    No. 16-23.

                    Vincent Urbank, appellant pro se.

                    Joseph D. Coronato, Ocean County Prosecutor,
                    attorney for respondent (Cheryl L. Hammel,
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant, Vincent Urbank, appeals from a May 9, 2017 Law Division

order that adjudicated him guilty on trial de novo of improperly storing an

unregistered vehicle. We affirm.

      These are the facts. On June 25, 2016, Toms River Police Officer Travis

Seaman responded to defendant's home to investigate a complaint of an

emaciated dog living in the backyard. When Officer Seaman knocked on the

front door, he heard dogs barking on the property. Defendant answered the door.

The officer requested permission to check on the dog. Defendant refused, telling

Officer Seaman he needed a warrant to enter the property. Returning to his

vehicle, Officer Seaman observed two inoperable vehicles in defendant's front

yard. There were no tire marks around or near the vehicles, but tall weeds had

grown around them and they were surrounded by debris. Officer Seaman ran

their license plate numbers and learned the registration for one had expired in

2001 and the registration for the other had expired in 2013. Based on this

information and his observations, Officer Seaman issued defendant two

complaints for violating local ordinance §481-1, Garaging of inoperative

vehicles. The municipal ordinance provided:

            481-1 Garaging of inoperative vehicles; exception for
            certain licensed parties.



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              A. No person, firm or corporation shall hereafter store
              or permit or suffer to be stored upon any lands within
              the Township of Toms River any motor vehicle which
              is not capable of being used or operated or which is not
              currently registered with the State of New Jersey or
              other state, unless said motor vehicle is garaged, except
              that the foregoing shall not apply to any person, firm or
              corporation holding a valid license to carry on,
              maintain or establish any motor vehicle business, motor
              vehicle junkyard or who shall possess a state license to
              sell secondhand motor vehicles.

              B. Failure of a vehicle to bear license plates shall be
              prima facie evidence that the vehicle is not currently
              registered with the State of New Jersey or other state.

              § 481-2 Determination of inoperability.

              Any motor vehicle which is not capable of being used
              or operated shall be deemed to be a motor vehicle which
              cannot be moved under its own power from place to
              place upon any public street or highway.

          Defendant filed a Notice of Tort Claim against the Township of Toms

River, claiming that Officer Seaman and other assisting officers caused him

injury.    Defendant issued subpoenas to the following individuals: Officers

Travis Seaman, Justin Lammer, James Skripko, Chief of Police Mitchell Little,

Mayor Thomas Kelaher, and Lisa Poggiali, a guest at defendant's home on the

day in question.

      On July 11, 2016, defendant appeared in Toms River Municipal Court and

pled not guilty. On November 4, 2016, the day trial was to begin, the Township

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moved to quash the subpoenas defendant had issued to the Mayor, Chief of

Police, and Officer Lammar. 1 In opposition, defendant said he sought testimony

from these witnesses relating to his claim he was the victim of selective

enforcement. He alleged the witnesses had unspecified knowledge about how

he was treated differently from his neighbors. Although the Township had not

filed a timely motion to quash the subpoenas before trial as required by Rule

7:7-8(h), the municipal court granted the motions as to the Mayor and the Chief

of Police after determining defendant could not explain the relevancy of the

testimony he sought from these witnesses.

      Defendant next argued the municipal court judge should recuse himself in

view of the tort claim notice defendant had filed against the municipality. After

a brief recess, the court denied this request, stating recusal was not necessary

when only a tort claim notice, not a lawsuit, had been filed.

      The case proceeded to trial. Officer Seaman testified to his observations,

which we have previously recounted. After the court denied defendant's motion

to dismiss the case, defendant called Patrolman Skripko as his witness. During

nine years as an officer with the Toms River Police Department, Officer Skripko


1
  The Township also moved to quash the subpoena for Officer Skripko, but later
withdrew this request upon learning the officer had responded to defendant's
home while the complaints were being issued.
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had written no summonses for unregistered or stored vehicles. The officer

testified he does not write summonses for every violation he observes. Whether

he writes a summons depends on the circumstances of each situation and his

exercise of discretion.

      Defendant also called Lisa Poggiali, who was present the day Officer

Seaman issued defendant the summonses. She confirmed that Officer Seaman

requested to see the dogs when he first came to the house. When defendant

refused to admit the officer without a warrant, the officer left and later returned

with other officers to issue two summonses to defendant. Ms. Poggiali testified

there were "plenty of vehicles" in the neighborhood that could be seen from

defendant's property. Many such vehicles did not have license plates. Ms.

Poggiali had seen defendant drive the vehicles for which he was issued the

summonses. She did not know if they were registered.

      Defendant testified the two vehicles at issue were currently unregistered.

He could not recall if they were registered on the day he was issued the

summonses. He denied there were weeds around the vehicles. He intended to

sell the vehicles, and he had access to dealer tags to drive them to a dealer if

necessary. Defendant also testified that in 2003 he had been issued summonses

for violating the same ordinance. The summonses had been dismissed because


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the Town would not provide him with discovery he requested to demonstrate the

ordinance was being selectively enforced against him. A 2008 summons was

dismissed for the same reason. The municipal court judge pointed out that the

2008 summons did not pertain to defendant's property.

       The municipal court judge rejected defendant's argument that the

disposition of the previous summonses precluded the State from prosecuting the

present summonses. The judge "suspected" the previous summonses were for

different properties, not the one at issue. The judge found defendant guilty,

since there was no dispute as to the fact the vehicles were not registered. The

judge then denied a stay and imposed a $200 fine and $33 in court costs for each

violation.

      Defendant appealed to the Law Division.         During the trial de novo,

defendant argued the municipal court judge erred in quashing the subpoenas

relating to the Mayor and Chief of Police. Defendant asserted "those witnesses

would have shown [the] fact that there was selective enforcement,

discrimination and . . . [his] civil rights were violated." The Law Division judge

acknowledged the municipal court judge had not disregarded proper procedure

by entertaining the State's motion to quash on the day of trial without providing

defendant the opportunity to respond in writing. The Law Division analogized


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the mistake to harmless error, because defendant could not articulate why the

testimony was important to his case.

      Defendant next argued the current charges were precluded by the

dismissal with prejudice of a complaint on similar charges thirteen years earlier.

Last, defendant asserted the violation of the statute is a per property offense and

not a per vehicle offense.

      The Law Division judge found credible Office Seaman's testimony that he

found two unregistered vehicles in defendant's yard that appeared not to have

been moved for quite some time, as evidenced by the weeds growing around the

vehicles and the lack of any tire tracks.     Based on the officer's testimony,

coupled with defendant's failure to establish an exception to the ordinance, such

as a license to operate a junk yard, the Law Division judge found defendant

guilty.

      The judge rejected defendant's "res judicata" argument, explaining, among

other things, that the order from 2003 was inapplicable because the underlying

complaint was issued in 1999 and the registration for the relevant vehicles did

not expire until August 2001 and February 2013. The Law Division judge did,

however, agree with defendant's argument the ordinance was a per property

offense as opposed to a per vehicle offense. Based on that determination, the


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judge dismissed one of the complaints and ordered a refund for the related fine

and court costs already paid by defendant. On the remaining summons, the

judge left intact the municipal court fine and costs. This appeal followed.

      On appeal, defendant argues:

            POINT 1
            THE TRIAL COURT JUDGE AND SUPERIOR
            COURT JUDGE SHOULD HAVE DISMISSED THE
            CURRENT COMPLAINTS, SINCE THE SAME
            COMPLAINTS, FOR THE SAME PROPERTY WERE
            DISMISSED WITH PREJUDICE.

            POINT 2
            A SELECTIVE PROSECUTION CLAIM IS NOT A
            DEFENSE ON THE MERITS TO THE CRIMINAL
            CHARGE ITSELF, BUT AN INDEPENDENT
            ASSERTION THAT THE PROSECUTOR HAS
            BROUGHT THE CHARGE FORBIDDEN BY THE
            CONSTITUTION.

            POINT 3
            THE DEFENDANT HAS SHOWN A LONG
            HISTORY OF SELECTIVE ENFORCEMENT AND
            REQUEST FOR DISCOVERY ISSUES WITH TOMS
            RIVER TOWNSHIP.

            POINT 4
            THE SUPERIOR COURT AGREED THAT THE
            ORDINANCE IS A PER PROPERTY VIOLATION,
            NOT A VEHICLE OR PER VEHICLE VIOLATION,
            SINCE THE ORDER WRITTEN BY THE
            HONORABLE JUDGE ROTH, THERE IS NO FACTS
            SHOWING A CHANGE IN THE USE OF THE
            PROPERTY.


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             POINT 5
             THE MUNICIPAL COURT JUDGE FAILING TO
             FOLLOW COURT RULES BY ALLOWING THE
             UNTIMELY MOTION TO QUASH SUBPOENAS BY
             THE PROSECUTOR, AND NOT ALLOWING THE
             DEFENDANT TIME TO ANSWER STATE'S
             MOTION IN WRITING.

             POINT 6
             THE DEFENDANT ASSERTS THAT THE
             ORDINANCE    HAS   BEEN    SELECTIVELY
             ENFORCED    AGAINST    HIM,    THEREBY
             VIOLATING HIS FOURTEENTH AMENDMENT
             RIGHT TO EQUAL PROTECTION OF THE LAWS.

      We affirm, substantially for the reasons expressed by the Law Division judge

in his oral opinion adjudicating defendant guilty of a single violation. The judge's

determination is supported by "sufficient credible evidence . . . in the record." State

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

(1964)). Defendant's arguments are without sufficient merit to warrant further

discussion. R. 2:11-3(e)(2).

      Affirmed.




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