STATE OF NEW JERSEY VS. KIMBERLY YOUNG (18-024, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3091-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KIMBERLY YOUNG,
Defendant-Appellant.
Submitted December 17, 2019 – Decided February 3, 2020
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal No.
18-024.
Falcon Law Firm, LLC, attorneys for appellant
(Alexander R. DeSevo, on the brief).
Joseph A. Clark, Howell Township Attorney, attorney
for respondent.
PER CURIAM
Defendant appeals from a February 8, 2019 conviction after a trial de novo
on the record for the municipal ordinance violation of constructing a building
on her property without obtaining the required permits. We affirm.
When defendant decided to build a children's playhouse as a second
structure on her residential property, she provided the Township of Howell with
a handwritten drawing depicting the structure. Township officials recalled
speaking with defendant and explaining the land use process to her and
specifically the need for certain permits. Although a land use permit was issued,
defendant still needed a building permit. In addition, when the as-built height
of the structure was greater than depicted in the original application, officials
told defendant she needed a variance. When defendant failed to obtain the
permit and variance, she was issued a violation letter and numerous summonses.
After a two-day trial during which nine witnesses testified, the municipal
court found defendant guilty of violating Howell Municipal Ordinance § 188-
50.1 The court merged a number of the summonses and imposed a fine of $6105.
1
No land, lot or premises and no building or structure
shall be used for any purpose other than those permitted
by Articles VIII through XI for the zone in which it is
located. No building or structure may be erected, razed,
moved, extended, enlarged or altered unless such action
is in conformity with the regulations provided for the
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Deferring to the municipal court's credibility findings, the Law Division
found defendant and her witnesses – her contractor and a neighbor – were not
credible. He determined that the Township officials – zoning and code
enforcement officers – were credible.
The Law Division also found that the children's playhouse design had
evolved into "a cabana house or pool house for an in-ground pool." Defendant
did not submit any applications for a building permit and no permit had been
issued. The Law Division affirmed the findings of the municipal court and the
assessed penalty.
Defendant raises the following issues on appeal:
I. THE TRIAL COURT ERRED IN ITS CONVICTION
OF DEFENDANT, KIM YOUNG, AS THEY HAVE
NOT PROVED THE DEFENDANT’S INTENT
BEYOND A REASONABLE DOUBT.
II. DEFENDANT, KIM YOUNG’S CONVICTION
GOES AGAINST THE WEIGHT OF EVIDENCE.
III. DEFENDANT, KIM YOUNG’S TICKETS
SHOULD HAVE BEEN CONSOLIDATED INTO A
zone in which the said building or structure is located.
Any deviation proposed from the use and bulk
requirements of this chapter shall require a variance
pursuant to N.J.S.A. [40:55D-1 to -163].
[Howell Municipal Ordinance § 188-50.]
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SINGLE CHARGE PURSUANT TO THE CONCEPT
OF MERGER.
When a defendant appeals a municipal court conviction, the Law Division
is "to determine the case completely anew on the record made in the municipal
court, giving due, although not necessarily controlling, regard to the opportunity
of the magistrate to judge the credibility of the witnesses." State v. Powers, 448
N.J. Super. 69, 72 (App. Div. 2016) (quoting State v. Johnson, 42 N.J. 146, 157
(1964)).
"Our review of the factual record is also limited to determining whether
there is sufficient credible evidence in the record to support the Law Division
judge's findings." Ibid. (citing Johnson, 42 N.J. at 161-62; State v. Clarksburg
Inn, 375 N.J. Super. 624, 639 (App. Div. 2005)). We will "defer to those
findings made in the Law Division that are supported by credible evidence, but
we owe no deference to the legal conclusions drawn from those findings." Ibid.
(citing State v. Handy, 206 N.J. 39, 45 (2011)); see also State v. Morgan, 393
N.J. Super. 411, 422 (App. Div. 2007) ("It is well-recognized that it is 'improper
for [an appellate court] to engage in an independent assessment of the evidence
as if it were the court of first instance.' . . . Rather, '[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
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experience that are not transmitted by the record.'") (alterations in original)
(quoting State v. Locurto, 157 N.J. 463, 471, 474 (1999)).
It is "more compelling" to defer to the Law Division where both the Law
Division and municipal court "have entered concurrent judgments on purely
factual issues." State v. Reece, 222 N.J. 154, 166 (2015) (quoting Locurto, 157
N.J. at 474). "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." Ibid. (quoting Locurto, 157 N.J. at 474).
Defendant contends that the municipal court failed to find she had the
appropriate mens rea – knowledge, purpose, or intent – to violate the statute.
This argument lacks merit. Intent is not an element of the violations at issue.
As we stated in State v. Kiejdan, 181 N.J. Super. 254, 257 (App. Div. 1981), "a
'culpable mental state' is [not] a prerequisite to conviction of an ordinance
violation."
We are satisfied there was ample evidence in the record to support the
municipal court and Law Division's factual findings and the conviction.
Defendant could not produce an application for a building permit or any
evidence that a building permit was issued. She was apprised by numerous
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township officials of the need for the permit and variance. In addition, she
received more than fifty summonses, also notifying her of the deficiencies and
violation.
In addressing the penalty, the Township's ordinance provided that each
day that defendant was in violation of § 188-50 constituted a separate violation.
See Howell Municipal Ordinance § 1-4(d).2 The Township was permitted to
fine defendant for each day that she was in violation of the ordinance. That the
municipal court merged a number of the violations was a voluntary act; a
"showing [of] mercy" to defendant as described by the Law Division.
Affirmed.
2
Except as otherwise provided, each and every day for
which a violation of any provision of the aforesaid
codified ordinances or this Code, or any other
ordinance of the Township, exists shall constitute a
separate violation.
[Howell Municipal Ordinance § 1-4(d).]
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