NOT FOR PUBLICATION WITHOUT THE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-1916-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GUNNAR WAHLSTROM,
Defendant-Appellant.
Submitted May 8, 2019 – Decided June 6, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Municipal Appeal No.
14-056.
Gunnar Wahlstrom, appellant pro se.
O'Donnell Mc Cord, PC, attorneys for respondent
(Jason Andrew Cherchia, of counsel and on the brief).
PER CURIAM
Defendant Gunnar Wahlstrom appeals from the October 20, 2017 decision
by the Honorable Thomas J. Critchley, Jr., after a trial de novo. The four
separate summonses charged defendant with various offenses arising from the
Township of East Hanover's property maintenance code. We affirm.
The summonses charged defendant with the following: the storage of
trailers and construction equipment on residential property, Municipal code §
119A-13(F)(6) (complaint no. 391); the parking of an inoperable and
unregistered vehicle on residential property, Municipal code § 119A-13(F)(8)
(complaint no. 392); the failure to maintain residential property contributing to
a "blighting influence[]" because of the condition of exterior paint, gutters, and
loose wires, Municipal code § 119A-13(E) (complaint no. 393); and the
performance of mechanical or body repair work on vehicles on residential
property - Municipal code § 119A-13(F)(3) (complaint no. 394). Each
complaint cites to the relevant section of the municipal ordinance.
Without reciting the details of the tortuous history in this case, we note
that these complaints and summonses were issued on July 15, 2014. In the
intervening years, the complaints were first dismissed as procedurally deficient,
subsequently refiled, and defendant was convicted at the municipal court trial.
On appeal, the Law Division remanded the case for a new trial because the
municipal court proceedings had not been recorded.
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When that second trial took place in 2015, the code enforcement officer
testified regarding the ordinance violations, and produced photographs taken of
defendant's premises, depicting trailers, vehicles, and the dilapidated condition
of the home. The municipal court judge convicted defendant, imposed $1432 in
fines and court costs, and ordered him to remediate the violations within thirty
days or pay a $50 per day assessment.
On appeal to the Law Division, the judge dismissed the complaints
without prejudice, finding they issued in a procedurally defective manner, in
violation of defendant's due process rights. Defendant had not raised this issue,
and when the State appealed the dismissal, we remanded the matter, finding the
Law Division's sua sponte decision on due process grounds was improper.
On October 20, 2017, a second judge on remand convicted defendant and
signed the order on November 9, 2017. Judge Critchley reinstated the
convictions based on the code enforcement officer's earlier testimony and the
exhibits introduced in support of the offenses. The judge further found the
charging documents were adequate in terms of due process because they
specifically alleged the violations depicted in the photos, and referred to the
specific subsections of the code.
A-1916-17T4
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The judge detailed the exhibits introduced in support of the violations,
describing the photographs in detail. He concluded that defendant's double
jeopardy argument had no merit since the second trial was compelled by the
absence of a record of the first proceeding. The judge also noted that although
the complaints did not specify a time for remediation, they stated that the
conditions were to be corrected immediately. The judge rejected defendant's
argument that the municipal court judge's initial communications with the
construction officer, requiring him to refile the complaints, was improper.
Those conversations did not adversely affect the outcome after a full trial on
new complaints. Nor did the judge consider the proceedings to have violated
fundamental fairness or due process: defendant had a number of years in which
to correct the conditions, and had not done so. He opined:
And so I find that the State did not violate any
considerations of double-jeopardy, due process, or
fundamental fairness, and did prove the violations by
proof beyond a reasonable doubt. There were trailers
on the property in violation of the applicable code
section, there were unregistered and inoperable
vehicles, as established by the photos and the
documentation. There were general maintenance
issues, particularly with respect to deteriorating
painting, peeling and gutters and soffits and things of
that nature, and there were a large number of, it appears,
or certainly several, vehicles that were not in operating
condition that were being stored on the property and
that appeared to be perhaps subject to more than minor
A-1916-17T4
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repair works. One photo showed a tire in front of a car
and a piece of wood opening -- propping open the hood
of the vehicle, and all of this is intended for the
protection of the community, the property values, and
the neighbors. And fairness to the neighbors requires
that the Town be able to remediate this. This is not
something that was done overnight and in an overly-
hasty manner. It appears to have gone, according to the
hearing officer, over several years. Certainly the
records that I have go from the year 2014 into the year
2015.
With respect to the fines, fees and penalties, in
consideration of some of what I'll call the imperfections
in the cases, I am going to myself remediate some of
the penalties. I will leave intact the court costs, but
reduce the fines for each summons to $125. I will ask
the State to prepare an order documenting this and, of
course, Mr. Wahlstrom, you would have, again -- and I
know you're familiar with the process -- the right to an
appeal of this determination. That should be done
within 45 days.
On appeal, defendant raises the following nine points:
POINT 1: JUDGE CRITCHLEY MADE HARMFUL
ERROR BY NOT RECOGNIZING THAT THE
CONTROLLING LAW, ORDINANCE §119A,
INCLUDES MANDATORY DUE PROCESS
SAFEGUARDS IN §119A-36 THROUGH §119A-39
WHICH REQUIRE THAT NOTICE BE PROVIDED
IDENTIFYING THE ALLEGED VIOLATIONS,
WHAT CORRECTIONS ARE NEEDED, AND
REASONABLE TIME TO CORRECT, AND THAT
THE OPERATION OF THE ORDINANCE
REQUIRES EXHAUSTION OF TIME FOR
CORRECTIONS BEFORE PROPERTY OWNER IS
A-1916-17T4
5
IN VIOLATION OF THE ORDINANCE AND
PENALTIES ARE TRIGGERED BY §119A-41.
POINT 2: JUDGE CRITCHLEY MADE HARMFUL
ERROR AND ABUSED HIS DISCRETION BY
SUBSTITUTING THE MANDATORY DUE
PROCESS REQUIREMENTS OF THE ORDINANCE
WITH HIS OWN ARBITRARY DEFINITIONS. HE
THEREBY MISCONCEIVED AND MISAPPLIED
THE APPLICABLE LAW CAUSING HIS EXERCISE
OF LEGAL DISCRETION TO LACK FOUNDATION
AND BECOME AN ARBITRARY ACT. IT IS
THEREFORE THE DUTY OF THE COURT TO
ADJUDICATE THE CONTROVERSY IN LIGHT OF
THE APPLICABLE LAW IN ORDER THAT A
MANIFEST DENIAL OF JUSTICE BE AVOIDED.
POINT 3: JUDGE CRITCHLEY MADE HARMFUL
ERROR BY NOT RECOGNIZING THAT THE
ORDINANCE IN §119A-36 THROUGH §119A-39
PROVIDES MANDATORY PROCEDURAL DUE
PROCESS SAFEGUARDS WHICH ARE IN
ADDITION TO OTHER STATE AND FEDERAL
DUE PROCESS REQUIREMENTS, WHICH DO NOT
REPLACE THE DUE PROCESS REQUIREMENTS
OF THE LOCAL ORDINANCE.
POINT 4: JUDGE CRITCHLEY MADE HARMFUL
ERROR BY NOT RECOGNIZING THAT
PROSECUTION OF DEFENDANT WAS INITIATED
IN MUNICIPAL COURT WHILE DEFENDANT
WAS NOT IN VIOLATION OF THE ORDINANCE,
CAUSING DEFENDANT TO SUSTAIN EXTENDED
ABUSIVE LITIGATION INSTEAD OF BEING ABLE
TO MAKE NECESSARY CORRECTIONS OF THE
ALLEGED PROPERTY VIOLATIONS IN
ACCORDANCE WITH THE PROVISIONS OF THE
A-1916-17T4
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ORDINANCE, IN VIOLATION OF DEFENDANT'S
DUE PROCESS RIGHTS.
POINT 5: JUDGE CRITCHLEY MADE HARMFUL
ERROR IN NOT RECOGNIZING THAT THE
FAILURE OF ENFORCEMENT OFFICER TO ISSUE
VALID NOTICE CONSTITUTED LACK OF
FUNDAMENTAL FAIRNESS AND LEFT
DEFENDANT WITHOUT A CLUE OF WHAT HE
HAD DONE WRONG, WHAT HE WAS CHARGED
WITH, HOW TO PREPARE A DEFENSE, AND
MUCH LESS HOW TO REMEDY THE SITUATION,
IN VIOLATION OF DEFENDANT'S PROCEDURAL
DUE PROCESS RIGHTS UNDER THE 14[TH]
AMENDMENT OF THE U.S. CONSTITUTION.
POINT 6: THE MUNICIPAL JUDGE FAILED
DURING TRIAL TO RULE ON THE ISSUE
"DEFENDANT IS CHARGED WITH VIOLATIONS
OF A SPECIFICATION ORDINANCE" IN
DEFENDANT'S MOTION, WHICH ARGUED THAT
THE PENALTIES OF THE ORDINANCE ARE
TRIGGERED BY §119A-41, AND NOT BY A
SPECIFICATION SECTION UNDER §119A-13.
JUDGE CRITCHLEY MADE HARMFUL ERROR IN
NOT RECOGNIZING THAT §119A-41 IS
TRIGGERED BY THE EXHAUSTION OF TIME
GIVEN FOR CORRECTIONS IN NOTICE, AND
NOT BY A SUMMONS WRITTEN ON A
SPECIFICATION SECTION OF THE ORDINANCE,
AND MISAPPLIED THE LAW BY SUBSTITUTING
HIS OWN ARBITRARY VIEWS FOR THE DUE
PROCESS REQUIREMENTS OF THE ORDINANCE.
THIS CAUSED HIS ENTIRE RULING TO LACK
FOUNDATION AND BECOME AN ARBITRARY
ACT AND THE COURT HAS A DUTY TO
ADJUDICATE THE CONTROVERSY IN LIGHT OF
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THE APPLICABLE LAW IN ORDER THAT A
MANIFEST DENIAL OF JUSTICE BE AVOIDED.
POINT 7: JUDGE CRITCHLEY MADE HARMFUL
ERROR BY NOT TAKING ISSUE WITH THAT
DEFENDANT'S DUE PROCESS RIGHTS UNDER
THE 14TH AMENDMENT WERE VIOLATED IN
MANY INSTANCES THROUGHOUT THIS
LITIGATION AS A RESULT OF A PERVASIVE
LACK OF FUNDAMENTAL FAIRNESS.
POINT 8: JUDGE CRITCHLEY MADE HARMFUL
ERROR IN NOT RECOGNIZING THAT
CONVICTION OF DEFENDANT IS NOT
SUPPORTED BY THE EVIDENCE IN THE CASE.
POINT 9: JUDGE CRITCHLEY MADE HARMFUL
ERROR IN FINDING DEFENDANT GUILTY BY
DISREGARDING THE MANDATORY DUE
PROCESS SAFEGUARDS §119A-36 THROUGH
§119A-39. THIS IS A DUE PROCESS VIOLATION
THAT ALSO VIOLATES THE CONSTITUTION OF
NEW JERSEY AND DEFENDANT MUST BE
FOUND NOT GUILTY OF THE CHARGES.
In his reply brief, defendant, in violation of the relevant law,1 raised seven
more points:
POINT 1: THE RECORD SHOWS THAT JUDGE
CRITCHLEY ACTED UNDER MISCONCEPTION
OF THE APPLICABLE LAW RULING ON THE
REMAND CAUSING HIS EXERCISE OF
DISCRETION TO LACK FOUNDATION IN THE
1
A reply brief may not raise new issues. See State v. Smith, 55 N.J. 476, 488
(1970); Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 13-14 n.3 (App. Div.
1989).
A-1916-17T4
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APPLICABLE LAW AND BECOME AN
ARBITRARY ACT. THE COURT INSTEAD MUST
ADJUDICATE THE CONTROVERSY IN THE
LIGHT OF THE APPLICABLE LAW IN ORDER
THAT A MANIFEST DENIAL OF JUSTICE BE
AVOIDED.
POINT 2: JUDGE CRITCHLEY ERRED IN
ADJUDICATING THE REMAND BY NOT
RECOGNIZING THAT HE WAS CONVICTING
DEFENDANT FOR OFFENSES NOT CHARGED BY
SUMMONSES #391-394.
POINT 3: DEFENDANT'S DUE PROCESS RIGHTS
WERE VIOLATED; PLAINTIFF IS MISAPPLYING
THE FACTS OF THE CASE AND USES
INAPPLICABLE CASE LAW IN AN ATTEMPT TO
ARGUE THAT DEFENDANT'S DUE PROCESS
RIGHTS WERE NOT VIOLATED.
POINT 4: JUDGE CRITCHLEY['S] RULING
LEAVES MORE THAN REASONABLE DOUBT
THAT DEFENDANT'S DUE PROCESS RIGHTS
WERE NOT VIOLATED UNDER THE 14TH
AMENDMENT OF THE US CONSTITUTION, AND
PLAINTIFF HAS ALSO NOT CONVINCED THE
COURT BEYOND REASONABLE DOUBT THAT
THE ERROR(S) COMPLAINED OF HEREIN DID
NOT CONTRIBUTE TO THE CONVICTION AND
THE COURT MUST THEREFORE REVERSE THE
GUILTY RULING.
POINT 5: PLAINTIFF FALSELY ARGUES THAT
HE SUBSTANTIALLY COMPLIED WITH THE
MANDATORY DUE PROCESS SAFEGUARDS,
SECTIONS 119A-36 THROUGH 39 WHEN THE
FACT IS THAT HE DID NOT.
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POINT 6: PLAINTIFF MISUNDERSTANDS THE
STANDARDS FOR APPELLATE REVIEW AND HIS
POINT IV IS IRRELEVANT AND MUST BE
IGNORED.
POINT 7: PLAINTIFF MISUNDERSTANDS THE
SCOPE OF APPELLATE COURT REVIEW, AND
THE WAIVER ISSUE HAS ALREADY BEEN
RULED ON BY THE APPELLATE COURT.
THEREFORE PLAINTIFF'S POINT V HAS NO
MERIT AND MUST BE IGNORED.
For the reasons stated by Judge Critchley, we affirm the conviction.
Defendant's claims of error are so lacking in merit as to not warrant much
discussion in a written opinion. R. 2:11-3(e)(2).
"[A]ppellate review of a municipal appeal to the Law Division is limited
to 'the action of the Law Division and not that of the municipal court.'" State v.
Palma, 219 N.J. 584, 591-92 (2014) (quoting State v. Joas, 34 N.J. 179, 184
(1961); State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). In a trial
de novo conducted on the record developed in the municipal court, the "Law
Division judge [is] bound to give 'due, although not necessarily controlling,
regard to the opportunity of a [municipal court judge] to judge the credibility of
the witnesses.'" State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div.
2005) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)).
A-1916-17T4
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"[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." Ibid. (citing Johnson, 42 N.J. at 161-
62). Furthermore,
[a]ppellate courts should defer to trial courts' credibility
findings that are often influenced by matters such as
observations of the character and demeanor of
witnesses and common human experience that are not
transmitted by the record. Moreover, the rule of
deference is more compelling where, as in the present
case, 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.
[State v. Locurto, 157 N.J. 463, 474 (1999) (citations
omitted).]
Judge Critchley's conclusion that the testimony of the code enforcement
officer was credible is supported as to each summons by the photographs
admitted as exhibits, which corroborated his description of the premises. Thus,
the record contained ample credible evidence to support Judge Critchley's
findings of fact. See Locurto, 157 N.J. at 474. Defendant's legal attacks on the
judge's decision simply have no merit.
Affirmed.
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