Opinion
DOCKET NO. A-0661-13T4
02-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALBERT J. FIELDS, JR., Defendant-Appellant.
Albert J. Fields, Jr., appellant pro se. John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 02-13. Albert J. Fields, Jr., appellant pro se. John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief). PER CURIAM
Defendant, Albert J. Fields, Jr., was convicted of defiant trespass, N.J.S.A. 2C:18-3b, in Salem City Municipal Court. Subsequent to trial, Municipal Judge Jason D. Witcher sentenced defendant to pay the requisite fines. Defendant then appealed to the Law Division, which resulted in a conviction entered by Judge Gary D. Wodlinger.
Defendant raises the following contentions on appeal:
I. WHEN THE COURT DETERMINED THAT A TENANT'S REQUEST FOR A BUSINESS SERVICE AT HIS RESIDENCE DOES NOT OVERRIDE THE PRIVATE PROPERTY OWNER'S RIGHT TO EXCLUDE CERTAIN PEOPLE FROM THE PROPERTY, HE RESTED HIS DECISION ON AN IMPERMISSIBLE BASIS AND THUS ABUSED HIS DISCRETION IN FINDING THE DEFENDANT GUILTY OF DEFIANT TRESPASS.After reviewing the record and in light of the contentions advanced on appeal, we reject defendant's arguments and affirm defendant's conviction.
II. THE COURT FAILED TO APPLY THE PROCEDURAL PROVISIONS OF N.J.S.A. 2C:1-13(B)(1) SO FAR AS APPLYING TO THE BURDEN OF PROOF OF THE DEFENDANT'S AFFIRMATIVE DEFENSE STATE V. GALIYANO, 178 N.J. SUPER. 393, 429 A.2D 385 (1981)[sic].
The prosecutor presented the following proofs at trial. Prior to the day of the trespass incident defendant was banned from the Harvest Point apartment complex for separate and unrelated incidents that occurred while he was in the complex. On February 12, 2013, defendant reported to the apartment complex in his working capacity as a Comcast employee to provide service to a Comcast customer who was a tenant. The complex's director of security and chief of records, Joseph Venello, testified that not only had defendant been previously banned, but also that he had been notified of his ban months before the date in question. The specific grounds for defendant's presence on this list were not detailed, but Mr. Venello stated that, generally, individuals who are on the "ban list" committed "conduct detrimental to the health, safety, welfare of the residents there, or any kind of other criminal activity." Mr. Venello testified that defendant had committed numerous offenses of such a nature, leading to his placement on the ban list.
The state also presented the testimony of Sergeant Richard Kent, a private security guard for Gettier Security, employed by Harvest Point as the site supervisor. Sergeant Kent testified that on February 12, 2013, defendant arrived at the complex in a Comcast vehicle. Sergeant Kent advised defendant that he was on the "Do Not Enter list," and requested that he leave the premises. Defendant objected, stating that he was there in response to a customer request for Comcast service. After arguing with Sergeant Kent, defendant backed into a parking spot and refused to leave the premises, giving cause for Sergeant Kent to call the police.
Defendant admitted that prior to February 12, 2013, he had spoken with Mr. Venello on the phone, and that Mr. Venello instructed him not to return to the Harvest Point complex, advising him of his placement on the "ban list." Defendant also stated that he was at the complex on the date in question as a Comcast employee, and that he had been instructed to provide service to a Comcast customer. Defendant did not know the customer personally, nor had he had any direct contact with the customer. Defendant did not contest that he was instructed to leave the premises.
On the above facts, defendant was convicted of defiant trespass, N.J.S.A. 2C:18-3b in both the municipal court and the Law Division.
On appeal from a Law Division de novo finding of a municipal appeal, the issue for the Appellate Division is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). Just as the Law Division is not as well situated as the municipal court to determine credibility, neither is the Appellate Division, and thus we do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470 (1999). Indeed, 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). With the above standard in mind, we reject defendant's arguments and affirm his conviction.
Defendant first argues that the trial court erred in finding that a private property owner has the right to refuse an invited guest of a tenant. Specifically, relying on State v. Shack, 58 N.J. 297 (1971), he argues that property rights are intended to serve human values, and must accommodate the rights of the property owner as well as the rights of the tenant. In that regard, he notes our Supreme Court holding in Shack that "title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises." Id. at 303. Defendant also argues that Williams v. Lubbering, 73 N.J.L. 317 (Sup.Ct. 1906), stands for the absolute rule that the tenant has a right to receive any guest or tradesman that he invites to the premises.
Williams, supra, 73 N.J.L. 317, is easily distinguished from the matter at hand. The court in Williams did hold that "the tenant is at liberty to receive whom he pleases and engage any tradesmen or deal with any merchant at his pleasure." Id. at 320. However, prior to that conclusion, the court reasoned that such a person must be "decent in character and behavior" and allowed to enter so long as their right to entry is "exercised in a proper manner." Id. at 319-320. In the instant matter, defendant had previously been banned from the complex for committing "conduct detrimental to the health, safety, welfare of the residents there, or any kind of other criminal activity." His entry onto the premises knowing he had been banned and refusing to leave when requested to leave, was not in compliance with the requirement he act in "a proper manner." Id. at 319. More importantly, defendant personally was not invited on the premises by any tenant. It was Comcast, his employer, who was invited to the premises. There never was any attempt to bar Comcast, only this one employee. Therefore, we disagree with defendant's reliance on Williams.
Defendant also relies on Shack, supra, 58 N.J. 297. In Shack, two defendants were charged with violating the trespass statute. Id. at 300. The defendants worked for two separate non-profit organizations that act in the interests of migrant workers. Ibid. Noting the plight of the migrant worker community, "Congress provided under Title III-B of the Economic Opportunities Act of 1964 (42 U.S.C.A. §2701 et seq.) for assistance for migrant and other seasonally employed farmworkers and their families." Id. at 303-304.
The defendants were summoned to provide medical and legal aid to two separate migrant workers living on the farmer-employer's land. Shack, supra, 58 N.J. 297, 300. Upon arriving at the property, the farmer-employer refused to allow them access to the migrant workers in need. Ibid. When the defendants refused to leave, the farmer-employer "summoned a State Trooper" leading to the defendants being charged. Id. at 301. The defendants were convicted in Municipal Court, as well as on appeal to the Law Division. Id. at 299. The Supreme Court "certified their further appeal before argument in the Appellate Division." Ibid. On appeal, the defendants successfully argued that "the application of the trespass statute would defeat the purpose of the federal statues, under which 'their agencies were created.'" Id. at 302.
This case is distinguishable from the case before us. First, as held below, the instant matter does not deal with migrant workers which was the thrust of the Shack opinion. The Court in Shack held that the goals set forth by Congress for the agencies that the defendants worked for "would not be gained if the intended beneficiaries could be insulated from efforts to reach them." Shack, supra, 58 N.J. 297, 304. Ultimately, the Court held that it would be
Unthinkable that the farmer-employer can assert a right to isolate the migrant worker in any respect significant for the worker's well-being. The farmer, of course, is entitled to pursue his farming activities without interference. . . . But we see no legitimate need for a right in the farmer to deny the worker the opportunity for aid available from federal, State, or local services, or from recognized charitable groups seeking to assist him.
[Id. at 307.]Thus, the primary focus of the Court in Shack is the protection of a disadvantaged class. The motive behind not allowing the defendants in Shack, supra, 58 N.J. 297, and defendant in the instant matter onto property is clearly different. The farmer-employer in Shack, was insistent on denying access to anyone wanting to provide service to his migrant workers for no legitimate reason. Id. at 307. This is distinguishable from the matter at hand as the Harvest Point complex was willing to allow other Comcast employees on the premises to assist the tenant requesting services. The exclusion was targeted and selective, singling out defendant alone and for good cause. Defendant was certainly not the only Comcast employee who could have provided service to the tenant. Defendant could have easily been replaced by another Comcast worker who had not been banned from the premises. For all of these reasons we find Shack, supra, 58 N.J. 297, distinguishable from the instant matter.
Defendant also alleges that the trial court failed to give proper weight to his raised affirmative defense. Under N.J.S.A. 2C:18-3d(3) an affirmative defense exists if "the actor reasonably believed that the owner of the structure, or other person empowered to license access thereto, would have licensed him to enter or remain."
Here, there was no credible evidence that defendant reasonably believed the owner would have agreed to his entry on the property. Defendant was given clear notice of his presence on the ban list. He was told that he was banned before February 12, 2013. He was also told he was banned, and then asked to leave on the date in question, before the police were called. There is no support for defendant's claimed affirmative defense.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION