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State v. Sabol

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 8, 2016
DOCKET NO. A-0177-14T2 (App. Div. Dec. 8, 2016)

Opinion

DOCKET NO. A-0177-14T2

12-08-2016

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELEANOR SABOL, Defendant-Appellant.

Roberts & Teeter, LLC, attorneys for appellant (Michael B. Roberts, on the briefs). John E. Kawczynski, Municipal Prosecutor, Piscataway Township, attorney for respondent.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Higbee and Manahan. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 21-2014. Roberts & Teeter, LLC, attorneys for appellant (Michael B. Roberts, on the briefs). John E. Kawczynski, Municipal Prosecutor, Piscataway Township, attorney for respondent. PER CURIAM

Defendant Eleanor Sabol appeals from her conviction, following a trial de novo before the Law Division based upon her violation of certain ordinances. After our review of the record, we affirm.

We briefly recite the facts relative to our determination. Defendant was charged with ten violations of the Township of Piscataway (the Township) property maintenance ordinances relating to exterior property maintenance and sanitation, and the accumulation of rubbish or garbage. Prior to the trial conducted in municipal court, the prosecutor moved to dismiss four of the summonses.

The testimony commenced on April 3 2014. Concerning the issue of ownership of the properties, Charles Walker (Walker), Code Enforcement Officer for the Township, testified on behalf of the Township that the tax records list defendant as the owner of all three properties. The deeds, which were introduced and received in evidence, recite defendant as the owner and list defendant's current home address. A lease agreement relating to one of the properties was also introduced and received in evidence. The lease listed defendant as the landlord. Additionally, Walker testified that a power of attorney was prepared by defendant for the payment of taxes on one of the properties. Concerning the condition of the properties, photographs were introduced and received in evidence that depicted their general neglect.

Defendant testified on direct that she was not the owner of the properties. On cross-examination, defendant denied having any legal relationship to the subject properties and testified that the signatures on the lease and power of attorney were not her signatures. While she initially denied knowing any of the agents listed on the power of attorney, defendant admitted that one of the agents was her brother. During his examination, the prosecutor asked defendant to sign her name on a blank piece of paper in order to compare her "in-court" signature to the signatures on the power of attorney, lease agreement, and defendant's driver's license. When asked to compare the signatures on the documentary proofs against the exemplar, defendant maintained that the signatures on the documents were not the same.

At the conclusion of the trial, the municipal court judge found defendant guilty. The judge found the physical condition of the properties violated the relevant property maintenance ordinances. As to the issue of ownership, the judge found that, because of the similarities in the looping, the signatures on the lease agreement, power of attorney, defendant's driver's license, and exemplar provided in municipal court belonged to defendant. Additionally, the judge reasoned that the deeds recited defendant's home address and defendant had given the power of attorney to her brother; demonstrating her exercise of control over the properties.

Prior to imposing sentence, the judge merged the accumulation of rubbish or garbage violations into the exterior property maintenance and sanitation violations. Defendant was fined $1000 plus costs, on each of the three merged violations, for an aggregate penalty of $3099. The judge denied a request by defendant for a stay. Upon appeal to the Law Division, a stay was granted.

After conducting a trial de novo, the Law Division judge found defendant to be the owner of the properties in question and held defendant guilty of the six violations of the Township's property maintenance ordinances beyond a reasonable doubt. The judge held:

In a municipal appeal at the Superior Court, the judge is the fact finder. In my examination of the evidence as a whole, I find that the defendant is the true owner of the properties in question.

In my comparison of the various exemplars presented in the court below, [d]efendant's signature is consistent throughout the lease agreement, the power of attorney, her driver's license, and indeed the exemplar provided in [m]unicipal [c]ourt.

Furthermore, the tax records show that the defendant is the legal owner of the properties. The deed, not only lists the defendant as the grantee of the Piscataway properties, they also tie the defendant back to her current [] address.

Lastly, there is evidence that the defendant exercised dominion over the property where she executed a power of attorney to her brother and is also listed as the landlord on an apartment lease for the [] address.
Based on the review of the foregoing case law, the handwriting exemplars provided to the court below, and the record below, this court finds the defendant guilty of violating Piscataway Township [m]unicipal [o]rdinance beyond a reasonable doubt.

Accordingly, [d]efendant is sentenced to a fine of $1000, plus $33 court costs on each of the three merged violations.
After the judge denied defendant's application for a stay of the fines and penalties, defendant moved before this court for a stay which we granted. This appeal followed.

Defendant raises the following arguments on appeal:


POINT I

THE LAW DIVISION FAILED TO PROPERLY APPLY THE STANDARD OF REVIEW.


POINT II

THE DEFENDANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HER RIGHT TO COUNSEL [NOT RAISED BELOW].


POINT III

IT WAS IMPROPER FOR THE COURT TO CONSIDER A HANDWRITING EXEMPLAR CREATED DURING TRIAL [NOT RAISED BELOW].

When a defendant appeals a decision made by a municipal court to the Law Division, the court is required to conduct a de novo review of the record, giving "due regard to the municipal judge's opportunity to view the witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). Our review of a Law Division's de novo decision is limited to determining only whether there is "sufficient credible evidence present in the record" to uphold the findings made by the Law Division. State v. Locurto, 157 N.J. 463, 472 (1999) (quoting Johnson, supra, 42 N.J. at 162). We may 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, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Additionally, we accord great deference to the consistent conclusions of two other courts and "[u]nder the two-court rule, [we] 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. Stas, 212 N.J. 37, 49 n.2 (2012) (citing Locurto, supra, 157 N.J. at 474; State v. Oliver, 320 N.J. Super. 405, 421 (App. Div.), certif. denied, 161 N.J. 332 (1999)).

After reviewing the record in light of these principles, we discern no basis for disturbing the judge's determination. Contrary to defendant's assertions, there is ample credible evidence in the record to support the judge's independent factual findings and defendant's conviction.

Defendant raises for the first time on appeal that the Law Division judge's consideration of the handwriting exemplar evidence was erroneous. Although not raised at the de novo hearing, we briefly address the merits of the argument. The exemplars which were received and considered pursuant to N.J.S.A. 2A:82-1, in the absence of expert testimony, were nonetheless properly considered. N.J.S.A. 2A:82-1 (authorizing factfinders to perform handwriting comparisons to determine authenticity); State v. Carroll, 256 N.J. Super. 575. 597-98 (App. Div.) (holding that it was not error to allow a jury to make a comparison of handwriting samples without expert testimony), certif. denied, 130 N.J. 18 (1992). In regard to the manner in which the exemplars were taken and considered, N.J.S.A. 2A:82-1 "establishes a prohibition against after-produced writing specimens only when the writing is offered to disprove the handwriting of any person." Thus, the Law Division judge's reliance on the exemplars was not in error.

Defendant's remaining argument regarding her waiver of counsel is also raised for the first time on appeal. This court ordinarily will not address an issue on appeal that parties have not raised before the trial court absent concerns involving "the jurisdiction of the trial court" or "matters of great public interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Guided by this standard, and in the absence of such concerns, we need not consider defendant's waiver of counsel argument.

Defendant was initially represented by a municipal public defender. However, prior to the start of trial, she indicated that she preferred to proceed pro se. After advising defendant of the charges against her, the availability of certain defenses, and the implications of a waiver, the municipal court judge found defendant had knowingly, intelligently, and voluntarily waived her right to counsel. --------

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Sabol

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 8, 2016
DOCKET NO. A-0177-14T2 (App. Div. Dec. 8, 2016)
Case details for

State v. Sabol

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELEANOR SABOL…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 8, 2016

Citations

DOCKET NO. A-0177-14T2 (App. Div. Dec. 8, 2016)