Opinion
DOCKET NO. A-4172-13T1
10-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD DIAMOND, Defendant-Appellant.
Philip D. Stern argued the cause for appellant. Raymond J. Stine, Municipal Prosecutor for the Borough of Peapack & Gladstone, argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa, and Currier. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 2009-0776. Philip D. Stern argued the cause for appellant. Raymond J. Stine, Municipal Prosecutor for the Borough of Peapack & Gladstone, argued the cause for respondent. PER CURIAM
Defendant Richard Diamond appeals from his conviction of violating a municipal ordinance which prohibits the keeping of a habitually barking dog. Diamond argues that the trial judge did not make sufficient findings to sustain a conviction. We disagree and affirm the judge's ruling.
On February 4, 2009, the Peapack-Gladstone Police Department issued a summons which charged Diamond with keeping a habitually barking dog. That evening, two Peapack-Gladstone officers had arrived at the Diamond home responding to a complaint of barking dogs. They could hear one dog barking inside the house and another was running around the yard while barking loudly. No one was at home and for the next hour the police attempted to capture the dog (Titan) who continued to bark loudly. The police left upon the Diamonds' return. Upon investigation, it was found that six previous complaints of dogs barking at this residence had been made, and a summons was issued for violating Peapack and Gladstone, New Jersey, Ordinance 661 (1993)(Ordinance).
None of the prior complaints or visits by the police to the Diamond home had resulted in the issuance of a summons.
After a two-day bench trial in the Law Division, judgment was entered against Diamond on January 15, 2014, and he was ordered to pay a monetary fine of $500 and $30 in court costs. This appeal followed.
As a result of motions for change of venue and to disqualify the municipal prosecutor, the municipal trial was transferred to Superior Court.
Section 8-8.5 of the Ordinance reads: "No person shall own, keep, harbor or maintain any dog which habitually barks or cries in such a manner as to disturb any other person, particularly between the hours of 10:00 p.m. and 6:00 a.m."
The complaining neighbor on this occasion was Daniel Verdirame. He testified at trial that either he or his wife had called the police to complain of barking dogs on Diamond's property approximately six to eight times in the preceding two years. Verdirame further testified that the dogs would bark for prolonged periods of time, "[a]n hour, an hour-and-a-half, two hours sometimes," and that these incidents occurred "four or five times a week, without question." Other neighbors provided testimony that they had not been disturbed by dogs barking at the Diamond home.
Verdirame testified that on the night of February 4, 2009, he heard dogs from Diamond's residence begin to bark "just before seven o'clock," and called the police at around 8:15 p.m. to make a complaint. Denise Diamond testified that she let Titan out into the yard at approximately 7:30 p.m.; she then left the house, leaving the dog outside and did not return until 9:15 p.m. There were electric fences in place on the property and Diamond testified that he had installed ultrasonic dog barking devices which were in use at the time of this incident.
The judge concluded that the installation of these devices was an indication of the Diamonds' difficulties in controlling a habitually barking dog. He found both officers to be "forthright, responsive, and credible and therefore, worthy of belief." He concluded that the State had proven beyond a reasonable doubt that defendant was in violation of the ordinance.
A trial judge's interpretation of a statute, including Peapack-Gladstone Municipal Ordinance No. 661, constitutes a question of law and is reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995). Under this standard, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid. (internal citations omitted).
Diamond argues that the ordinance is unconstitutional as it applies a subjective standard; it proscribes conduct that disturbs "any person." Additionally, he contends that the judge applied the wrong definition of "habitual." We reject both of those arguments.
When an ordinance purports to use an unconstitutionally vague subjective standard, the proper course of action is to substitute an objective standard in place of any subjective language in order to cure a constitutional defect, rather than striking down the ordinance. State v. Friedman, 304 N.J. Super. 1, 8 (App. Div. 1997). Thus, in applying an objective standard to the ordinance, Titan's barking must have been a "noise which affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent" and which "passes the limits of reasonable adjustment to the conditions of the locality." Benton v. Kernon, 130 N.J. Eq. 193, 198 (E & A 1941) (emphasis added); see also State v. Holland, 132 N.J. Super. 17, 25-26 (App. Div. 1975).
In his decision, the judge did not expressly comment upon the credibility of Verdirame. He did, however, note that six police reports had been prepared following calls of complaints of dogs barking on Diamond's property, presumably from the Verdirames. We discern therefore that the judge found Verdirame credible and relied on his testimony based on the numerous complaints through the years. There was no dispute as to the facts concerning Titan's barking on February 4th. The officers themselves heard Titan barking as they arrived and he continued to do so for the next hour. Finally, the fact that Diamond had installed electric fences and three dog barking devices indicated that the dogs were permitted to run outside without supervision and that the owner had trouble controlling the barking of his dogs. The judge appropriately used the Oxford Dictionary definition of "habitual" as the commonly accepted meaning.
We find this case distinguishable from Friedman, supra, 304 N.J. Super. at 8, in which the dog in question barked only a few seconds inside the neighbor's home. --------
In reviewing a determination based on evidence and testimony presented at a bench trial, we do "'not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Absent legal error, the question for us is whether "there is substantial evidence in support of the trial judge's finding and conclusions." Ibid.
We find the trial judge carefully scrutinized the testimony prior to making his factual determinations. There was sufficient evidence for him to find that Diamond had a habitually barking dog in excess of what is reasonably to be expected in a neighborhood.
We conclude that Diamond's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION