NOT FOR PUBLICATION WITHOUT THE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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3
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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