                                NOT FOR PUBLICATION WITHOUT THE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.




                                                                          A-1916-17T4
                                        2
      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
                                        3
      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
                                        4
      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
                   6
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


                                          A-1916-17T4
                   7
            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
                                         8
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.


                                          A-1916-17T4
                   9
            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
                                       10
      "[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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                                       11
