Opinion
DOCKET NO. A-0138-14T4
06-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STANLEY WEISS, Defendant-Appellant.
Stanley Weiss, appellant, argued the cause pro se. Gracia Robert Montilus, Municipal Prosecutor, argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2014-006. Stanley Weiss, appellant, argued the cause pro se. Gracia Robert Montilus, Municipal Prosecutor, argued the cause for respondent. PER CURIAM
Defendant Stanley Weiss appeals from an August 8, 2014 order finding him guilty following a trial de novo of failing to remove a hazardous dead or dying tree from his property in violation of the Township of South Orange Village Code, § 56-3. He challenges the constitutionality of the municipal ordinance, which allows the Code Enforcement Officer (CEO) to inspect his property without a warrant to determine if there is a code violation. Defendant raises the following points on appeal:
POINT I - THE GUILTY VERDICT SHOULD BE REVERSED BECAUSE THE RULE AND CHAPTER 56 OF THE SOUTH ORANGE CODE PERMIT UNCONSTITUTIONAL SEARCHES AND SEIZURES; AND ALSO BECAUSE PLAINTIFF FAILED TO PROVE THAT NONE OF ITS REPRESENTATIVES TRESPASSED ON THE CURTILAGE OF THE HOME OF THE DEFENDANT AND HIS WIFE.
POINT II - THE MUNICIPAL COURT AND THE LOWER COURT LACKED THE POWER TO DECIDE WHETHER THE RULE WAS CONSTITUTIONAL; AND THEY BOTH ERRED IN CONVICTING DEFENDANT AND VIOLATING HIS DUE PROCESS RIGHTS TO HAVE HIS DEFENSES DECIDED BEFORE HE WAS CONVICTED.
POINT III - DEFENDANT'S WIFE IS AN INDISPENSABLE PARTY TO THIS LITIGATION; AND THE $830 PENALTY IMPOSED ON DEFENDANT UNDER SECTION 56-5 IS BOTH UNCONSTITUTIONAL AND NOT PROVIDED FOR IN THE SOUTH ORANGE CODE.
In an August 8, 2014 written opinion, Judge Sherry Hutchins-Henderson concisely explained the case's relevant facts, procedural history, and her findings. We determine there is no need to recite the same in detail. After carefully reviewing the record, we affirm substantially for the reasons expressed by Judge Hutchins-Henderson in her written opinion. We add only the following brief comments.
The record supports the judge's finding the CEO did not enter defendant's property to inspect the tree. The CEO testified he observed the dying tree, which was in the rear of defendant's property, while standing in the yard of defendant's neighbor. It was the neighbor who reported the hazardous condition of the tree to the CEO. Since there was no entry or search on defendant's property, as the dead tree was in plain view from the neighbor's property, the question of whether it would be unconstitutional for the CEO to enter defendant's property without a warrant is not properly before us. Generally, "a litigant only has standing to vindicate his own constitutional rights." Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S. Ct. 2118, 2124, 80 L. Ed. 2d 772, 781 (1984). Since defendant lacks standing because his rights were not violated, we decline to rule on the constitutionality of the ordinance. Defendant's other arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION