                        NOT FOR PUBLICATION WITHOUT THE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-0771-15T1
                                                  A-0835-15T1

SAM KHOUDARY,

        Plaintiff-Appellant,

v.

CITY OF NEW BRUNSWICK,
JAMES P. HOEBICH, J.M.C.,
CHARLY GAYDEN and RONALD
BELLAFRONTE,

     Defendants-Respondents.
________________________________

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SAM KHOUDARY,

     Defendant-Appellant.
_________________________________

              Argued May 9, 2017 – Decided September 26, 2017

              Before Judges Espinosa and Grall.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              0471-15 and Municipal Appeal No. 50-2014.
            Nicholas Khoudary argued            the cause for
            appellant (Sam Khoudary,           on the pro se
            briefs).

            Joseph S. Surman, Jr. argued the cause for
            respondents in A-0771-15 (Hoagland, Longo,
            Moran, Dunst & Doukas, LLP, attorneys; Mr.
            Surman, of counsel and on the brief).

            Charly Gayden, Assistant City Attorney, argued
            the cause for respondent in A-0835-15 (T.K.
            Shamy, New Brunswick City Attorney, attorney;
            Mr. Gayden, on the brief).

PER CURIAM

     These two appeals, which we have calendared back-to-back,

arise from a decades-long dispute between the City of New Brunswick

(the City) and Sam Khoudary regarding violations of municipal

housing ordinances.     For the reasons set forth below, we dismiss

Khoudary's appeal in A-0771-15 and reverse his conviction in A-

0835-15.

                                    I.

     In    A-0771-15,   Sam   Khoudary   appeals   from    an   order     dated

September 4, 2015 granting summary judgment to the City of New

Brunswick, dismissing his complaint with prejudice.

     Rule    2:6-1(a)(1)   identifies    the    required   contents      of    an

appellant's appendix and states in pertinent part,

            If the appeal is from a summary judgment, the
            appendix shall also include a statement of all
            items submitted to the court on the summary
            judgment motion and all such items shall be
            included in the appendix . . . .

                                    2                                   A-0771-15T1
     Defendant's appendix does not include the items submitted to

the trial court on the summary judgment motion or a statement of

such items.   In reviewing a summary judgment decision, we apply

the same standard as the trial court.      Murray v. Plainfield Rescue

Squad, 210 N.J. 581, 584 (2012).       Summary judgment is appropriate

if the competent evidential materials presented, when viewed in

the light most favorable to the non-moving party, "show that there

is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter

of law."   R. 4:46-2(c).   Without the omitted items, we cannot

properly review this matter.   Accordingly, we are constrained to

dismiss the appeal.   See Society Hill Condominium Ass'n, Inc. v.

Society Hill Associates, 347 N.J. Super. 163, 177-78 (App. Div.

2002).

                               II.

     In A-0835-15, defendant Sam Khoudary appeals from orders

entered in the Law Division following his appeal from the municipal

court's decision convicting him of contempt and ordering his

immediate incarceration.   By order entered May 8, 2015, the Law

Division judge convicted Khoudary of contempt of court and ordered

his incarceration.    Khoudary's motion for reconsideration was

denied by order entered on August 28, 2015.



                                   3                           A-0771-15T1
                                    A.

      Between 1994 and 2011, forty-four summonses were issued by

the City of New Brunswick (the City) for violations of municipal

housing ordinances at the property located at 377 Delevan Street

in New Brunswick (377 Delevan).      Thirty-one of the violations were

addressed in three time payment orders (TPOs), requiring defendant

to pay $24,780.     The ownership of 377 Delevan has been transferred

between various LLCs, all of which have the same business address

as defendant.

      On August 25, 2014, defendant appeared in New Brunswick

Municipal Court in an effort to reach a global settlement as to

all   outstanding   obligations    for   summonses    issued   against   377

Delevan and two other properties purportedly owned and managed by

defendant.   Although defendant denied ownership of the properties,

his attorney represented that he was "taking responsibility," as

manager or a shareholder or a managing partner, for settling the

obligations.

      Unable to reach a settlement agreement, the parties returned

to court on September 15, 2014, for "a contempt of court hearing

with regard to outstanding payment obligations."

      The   municipal   court   judge    determined    ownership   of    the

properties was no longer an issue           because defendant had not

appealed a 2000 decision.       He stated the only remaining issue was

                                     4                              A-0771-15T1
"who    took    responsibility    for   the    payment   of    the   fines   and

obligations."       The municipal court judge reviewed audiotapes of

earlier proceedings to determine if defendant had been present

"when   these     fines   and   penalties     were   imposed   and . . .     took

responsibility," stating:

                    [B]y submitting to the jurisdiction of
               the court, he assumes responsibility. . . .

                    If he appeared before a judge and pled
               guilty and agreed to pay a fine by way of him
               submitting to the jurisdiction of the court,
               that's it.

       After taking a recess to review the audiotapes, the municipal

court judge determined "[t]he payment obligations are directly

[defendant's] obligations."         Defendant contested this finding of

personal liability because the summonses in the TPOs were not

issued against him personally, and stated he was only "willing to

assume responsibility" in the past as "part of the settlement

negotiations."

       The municipal court judge found defendant in contempt of

court for failing to pay the TPOs because the obligations in the

summonses contained therein, which were issued between 1994 and

2001, had been left unpaid by defendant for over a decade. Finding

defendant's failure to pay the TPOs was a willing and knowing

violation, the municipal court judge entered a commitment order

convicting defendant of contempt for the non-payment of the TPOs,

                                        5                               A-0771-15T1
which totaled $24,780, and sentenced him to three consecutive six-

month terms in jail, one for each TPO.         The municipal court judge

told defendant he was either "paying . . . or going to jail for

the next 18 months."     Defendant was immediately incarcerated.         The

parties were told to return to court at a later date "to address

the other outstanding obligations" against the properties.

     Two days later, defendant's counsel arranged for $51,023 to

be paid to the City to "satisfy all of the outstanding claims

violations and defaulted payment schedules outstanding against"

defendant, his wife "and all of the entities for which [defendant]

is now incarcerated."        Defendant was released from jail that day.

     Defendant appealed the commitment order to the Law Division.

The Law Division judge rejected defendant's contention he was not

personally   liable    for    the   TPO   obligations.     Defendant    also

contested the $51,023 amount he claimed the City required him to

pay for his release from jail, equating it to "someone [having] a

gun over [his] head."        The attorney for the City explained that

the amount was agreed upon with defense counsel to achieve a global

settlement of all outstanding obligations.          The Law Division judge

rejected   defendant's       argument,    stating   defendant   could   have

requested a stay from the municipal court, and if denied, could

have appealed the denial to the Law Division.               He concluded,

"everything was done properly, below."

                                      6                             A-0771-15T1
     By order dated May 8, 2015, the Law Division judge affirmed

the municipal court's decision "finding Defendant to be in contempt

for default of the Time Payment orders in the amounts of $3,175.00,

$15,730.00 and $5,875.00."              (Emphasis added).           The judge also

found   the     municipal   court   "properly         exercised     the   discretion

granted    to    the   Court    under    N.J.S.A.       40:49-5     to    incarcerate

defendant       for    defaulting   on        time     payments     for    ordinance

violations," and that defendant previously appeared in municipal

court and "entered guilty pleas on several ordinance violations."

     Defendant moved for reconsideration and for the return of

overpaid funds.         Defendant claimed he was required to pay the

$51,023 amount for his release from jail.                The City admitted that

$51,023 exceeded the amount the municipal court had required

defendant to pay, but claimed the amount was agreed upon as a

settlement of all outstanding obligations.                The Law Division judge

accepted        the    City's    argument,           denied   the        motion    for

reconsideration and affirmed defendant's conviction and sentence.

He stated the order required clarification, that the matter was

"really not contempt, because it's not under the rule," and the

matter concerned an application of N.J.S.A. 40:49-5.

                                         B.

     Defendant presents the following issue for our consideration

in his appeal:

                                          7                                   A-0771-15T1
                 INCARCERATION ORDERED UNDER THE
                 PREMISE OF CONTEMPT OF COURT WAS NOT
                 APPROPRIATE    AND   EXCEEDED    THE
                 JURISDICTIONAL AUTHORITY OF THE
                 MUNICIPAL COURT ESPECIALLY WITH NO
                 FINDING OF GUILT OF ANYTHING

     A trial court deciding a municipal appeal pursuant to Rule

3:23-8(a) must review the record de novo and make its own decision

regarding a defendant's guilt or innocence.             State v. Avena, 281

N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson,

42 N.J. 146, 157 (1964)).           "[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. Hannah,

448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v. Palma,

219 N.J. 584, 591-92 (2014)).          When we review "a trial court's

decision on a municipal appeal, we determine whether sufficient

credible    evidence   in    the   record    supports   the    Law   Division's

decision."    State v. Monaco, 444 N.J. Super. 539, 549 (App. Div.),

certif. denied, 228 N.J. 409 (2016).                "We do not weigh the

evidence,    assess    the   credibility     of   the   witnesses,     or   make

conclusions about the evidence."            State v. Barone, 147 N.J. 599,

615 (1998).   "However, where issues on appeal turn on purely legal

determinations, [appellate] review is plenary."                Monaco, supra,

444 N.J. Super. at 549 (citing State v. Adubato, 420 N.J. Super.

167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012)).


                                       8                                A-0771-15T1
     The Law Division judge rejected the label "contempt" for the

proceeding here and considered the commitment order justified by

N.J.S.A. 40:49-5, which states in pertinent part:

          Any person convicted of the violation of any
          ordinance may, in the discretion of the court
          by which he was convicted, and in default of
          the payment of any fine imposed therefor, be
          imprisoned in the county jail or place of
          detention provided by the municipality, for
          any term not exceeding 90 days, or be required
          to perform community service for a period not
          exceeding 90 days.

          [(Emphasis added).]

     Although the underlined language would seem to endow a court

with discretion to incarcerate a defendant who fails to pay a fine

simply upon the occasion of a default, it cannot reasonably be

construed to relieve the court of the obligation to afford the

defendant the rights concomitant to a charge of contempt of court

and to refrain from incarcerating a defendant unless the failure

to pay was willful.

     Notwithstanding the Law Division's characterization of the

proceeding, defendant's failure to pay the obligations imposed by

the TPOs was treated as a summary contempt proceeding.

          The law of contempt is derived from statutes,
          rules of court, and judicial decisions.    In
          general, contempt includes disobedience of a
          court order or misbehavior in the presence of
          the court by any person or misbehavior by an
          officer of the court in his official


                                9                          A-0771-15T1
            transactions. The essence of the offense is
            defiance of public authority.

            A defendant is entitled to certain safeguards
            accorded   criminal    defendants.        Those
            safeguards   include    the    presumption   of
            innocence,   the   privilege    against   self-
            incrimination,    the     right    of    cross-
            examination,   proof   of    guilt   beyond   a
            reasonable doubt, and the admissibility of
            evidence in accordance with the rules of
            evidence.

            [Amoresano v. Laufgas, 171 N.J. 532, 549
            (2002) (quoting In re Yengo, 84 N.J. 111, 119-
            20 (1980)) (alterations in original).]

     Apart from contempt in the face of the court, which is

governed by Rule 1:10-1, an order to show cause is a necessary

prerequisite to summary contempt proceedings.             See R. 1:10-2

(stating institution of summary contempt proceedings, other than

proceedings under Rule 1:10-1, shall be on notice to the alleged

contemnor and instituted only "by the court upon an order for

arrest or an order to show cause specifying the acts or omissions

alleged to have been contumacious.") It is undisputed that there

was no order to show cause prior to the "contempt" proceeding.

     Rule   1:10-1   "authorizes   a    court   to   adjudicate   contempt

summarily, without issuing an order to show cause, under certain

conditions," Amoresano, supra, 171 N.J. at 546.          It provides:

            A judge conducting a judicial proceeding may
            adjudicate contempt summarily without an order
            to show cause if:


                                   10                              A-0771-15T1
                (a) the conduct has obstructed, or if
          continued would obstruct, the proceeding;

                (b) the conduct occurred in the actual
          presence of the judge, and was actually seen
          or heard by the judge;

                (c) the character of the conduct or its
          continuation after an appropriate warning
          unmistakably demonstrates its willfulness;

                (d) immediate adjudication is necessary
          to permit the proceeding to continue in an
          orderly and proper manner; and

                (e) the judge has afforded the alleged
          contemnor an immediate opportunity to respond.

                The order of contempt shall recite the
          facts and contain a certification by the judge
          that he or she saw or heard the conduct
          constituting the contempt and that the
          contemnor    was    willfully    contumacious.
          Punishment may be determined forth with or
          deferred.    Execution of sentence shall be
          stayed for five days following imposition and,
          if an appeal is taken, during the pendency of
          the appeal, provided, however, that the judge
          may require bail if reasonably necessary to
          assure the contemnor's appearance.

          [(Emphasis added).]

     Even if we accept the City's argument that defendant was

provided adequate notice and an opportunity to be heard, the other

requirements attendant to a commitment order summarily issued for

contempt, as reflected in the underlined language above, were

clearly not met.




                                11                         A-0771-15T1
     Because   the   terms   of   the    commitment    order   provided    for

defendant's    release    upon    payment     of      the   identified     TPO

obligations,   the   proceeding    more    closely    resembled   a   summary

collection action pursuant to N.J.S.A. 2C:46-2(a), which provides

the consequences for nonpayment of an obligation a defendant has

been sentenced to pay.       The statute contains similar language

regarding a "default" in payment but also sets forth the necessary

criteria that must be satisfied before the defaulting defendant

may be incarcerated.     When a defendant defaults in the payment of

a court-imposed financial obligation, upon motion,

          the court shall recall him, or issue a summons
          or a warrant of arrest for his appearance.
          The court shall afford the person notice and
          an opportunity to be heard on the issue of
          default. Failure to make any payment when due
          shall be considered a default. The standard
          of proof shall be by a preponderance of the
          evidence, and the burden of establishing good
          cause for a default shall be on the person who
          has defaulted.

N.J.S.A. 2C:46-2(a)(1) identifies the sanctions available to the

court "[i]f the court finds that the person has defaulted without

good cause."   A term of imprisonment may only be imposed "[i]f the

court finds that the person defaulted on payment of a court-imposed

financial obligation . . . without good cause and finds that the

default was willful."     N.J.S.A. 2C:46-2(a)(2) (emphasis added).




                                    12                                A-0771-15T1
     For a default to be willful, the defendant must be able to

comply with the order.       This is particularly true here, where the

clear objective of the commitment order was to coerce defendant

into paying the TPO obligations.         See In re N.J.A.C. 5:96 & 5:97,

221 N.J. 1, 18-19 (2015) (noting the "punitive or coercive relief

under [Rule 1:10-3] cannot be used against one who is not a willful

violator of a judgment"); Schochet v. Schochet, 435 N.J. Super.

542, 548-494 (App. Div. 2014) (noting "objective of [Rule 1:10-3]

hearing is simply to determine whether . . . failure [to comply

with an order] was excusable or willful").

     In sum, the "contempt" proceeding here was not initiated by

an order to show cause; it was conducted in response to defendant's

failure to reach a global settlement with the City.            There was no

proceeding to determine whether defendant had the ability to comply

with the $24,780 in TPO obligations that were the subject of the

commitment order and, therefore, no credible determination that

his failure to pay was willful.          N.J.S.A. 40:49-5 did not grant

the municipal court or the Law Division discretion to incarcerate

defendant without satisfying these threshold requirements for

punitive or coercive incarceration for failure to pay a fine.               We

therefore   conclude   the    Law   Division   judge   erred    in   finding

defendant guilty and affirming his incarceration.               We reverse

defendant's conviction.

                                    13                               A-0771-15T1
     Defendant also asks the court to compel the return of the

$51,023 paid prior to his release.1   This issue is not properly

before us because the sum was not established as a sentence on

this conviction.

     In sum, we dismiss the appeal in A-0771-15 and reverse the

judgment in A-0835-15.




1
   Defendant argues the municipal court judge required him to pay
$51,023 as a condition of his release. As he concedes, however,
this alleged condition "was not set forth in any order."
Nonetheless, he claims "it was advised by prosecution." Whatever
the City attorney said in conversation with defense counsel, the
order entered by the court controlled.     In the absence of any
order or even a transcript of such a direction by the court, this
contention lacks merit.

                               14                         A-0771-15T1
