Date: 06-13-2016

Case Style: STATE OF NEW JERSEY VS. MOHAMMAD AZMAT

Case Number: A-0296-14T3

Judge: Carmen Messano

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Tangerla Mitchell Thomas, Franklin Township Municipal Prosecutor

Defendant's Attorney: Susheela Verma

Description: Defendant Mohammad Azmat appeals from a July 30, 2014 Law
Division order, following de novo review of his municipal court
conviction for failure to maintain trees in violation of
Franklin Township, Maintenance of Trees and Shrubs Ordinance §
222.17 (Ordinance § 222.17). After careful review of the record
June 13, 2016
A-0296-14T3 2
in light of the issues raised, we affirm defendant's conviction
and remand for resentencing.
I.
We derive the following facts from the record. On January
5, 2012, Anthony Gaylord filed a complaint in the Franklin
Township Municipal Court against defendant, his neighbor,
alleging violation of Ordinance § 222.17 for failure to maintain
the trees along their shared property line. Ordinance § 222.17
provides: "The owner or tenant of any lands lying within the
Township shall keep all trees . . . maintained in a safe manner
so they shall not create a hazard to the general public . . . ."
Gaylord contended that trees on defendant's property had fallen
onto his property causing harm to his property and power lines,
and feared that, in the near future, other trees that he deemed
dangerous could also fall as a result of a serious windstorm,
hurricane, or snow storm.
An attempt to resolve the dispute was unsuccessful when the
parties could not agree on which trees should be removed, so the
matter proceeded to trial on June 27, 2013. At trial, the State
presented testimony from Gaylord and its expert, Robert Wells,
an International Society of Arboriculture certified master
arborist.
A-0296-14T3 3
Gaylord generally testified about the hazardous conditions
he claimed existed on defendant's property that resulted in the
filing of his complaint against defendant. Wells testified
consistent with the report he authored regarding his April 22,
2013 visual inspection of the trees on defendant's property. He
identified two white Ash trees within proximity of the power
lines to Gaylord's property which he testified had "significant
cavities" or holes within the bodies of the trees. Wells opined
that these trees were "hazard trees" that posed a non-imminent
threat of "tree failure" and could possibly fall on the power
lines.
Wells also identified two Locust trees on defendant's
property, leaning over the power lines connected to Gaylord's
property, which he opined were "hazardous" to the power lines.
He explained that removal of the trees was the only appropriate
remedy available to overcome their structural deficiencies.
Additionally, while he could not predict with certainty when in
the future these trees would fail, he testified that the
probability of them failing was very high. Wells also
identified as "hazardous" a Sweet Gum and Red Oak tree, both of
which had dead, detached limbs or "hangers"
directly over Gaylord's power lines. However, Wells did not
recommend their removal but suggested that these trees be
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"pruned out" to alleviate their structural defects. On cross
examination, Wells further admitted that the trees he identified
as hazardous did survive two major storms: Hurricane Irene in
August 2011, and Hurricane Sandy in October 2012.
In his defense, defendant presented the testimony of Judith
Bailey, a health inspector with the Somerset County Department
of Health. She stated that upon inspection of defendant's trees
— prompted by a separate complaint filed by Gaylord against
defendant four months before the complaint in dispute was filed
— she could not determine whether the trees at issue were dead
or dying, and thus, did not issue a summons against defendant
for a violation of Franklin Township, Conditions for Required
Removal Ordinance § 88-1 (Ordinance § 88-1). The ordinance
provides:
The owner, tenant or occupant of lands lying within the Township, where it shall be determined by the Department of Health to be necessary and expedient for the preservation of public health, safety and general welfare or to eliminate a fire hazard, shall remove from such lands brush, weeds, dead and dying trees, stumps, roots, obnoxious growths, filth, garbage, trash, and debris with 10 days after notice to remove the same, which shall be conspicuously posted on said property and sent by regular mail to the last known address of the tenant, owner or occupant.
[Ordinance § 88-1 (emphasis added).]
A-0296-14T3 5
Wells explained that her sole criteria for determining
whether a tree was dead was to assess whether the tree had any
leaves; specifically, she stated, "[i]f it's the middle of
summer, and there aren’t any leaves, [then] I think it could be
dead." For that reason, she believed there were no violations
concerning the trees in dispute when she inspected defendant's
property. Notably, however, she admitted that she was not a
tree expert and did not investigate or enforce complaints in
violation of Ordinance § 222.17.
On September 9, 2013, the municipal court judge — in a
letter that was not in the form of an order or decision but with
the judge's signature affixed — found that "[c]ertain trees of
defendant's property pose a clear and present danger to
complainant . . . , his house and to utility lines that
transverse both parties['] property." Thus, in crediting Wells'
and Gaylord's testimony, the municipal court ordered defendant
to cut down and remove the trees identified in Wells' report
within sixty days, or be fined and/or incarcerated.
Thereafter, defendant appealed to the Law Division, and a
trial de novo was held on May 7, 2014. Defendant argued that
Ordinance § 222.17 was unconstitutionally vague as it contained
"no clear definition for what constitute[d] maintaining a tree
. . . in a safe manner." He also asserted that the complaint
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was improperly pled, in violation of Rule 7:2-1, as it "fail[ed]
to inform [him] which specific tree[s], the location of the
tree[s], or the manner in which he has failed to maintain the
tree[s]." Moreover, defendant alleged the State prosecuted the
complaint against him with evidence that did not exist on the
date of the alleged violation, and thus, was subject to
spoliation. In particular, defendant pointed out that the
complaint was filed on January 5, 2012, but the evidence used
against him arose from Wells' inspection of the trees on April
22, 2013. Therefore, he contended, "the expert report and
testimony cannot be relied upon to support a condition that
existed [fifteen] months ago and was subject to naturally
occurring changes." Lastly, defendant argued the State failed
to prove he violated Ordinance § 222.17 beyond a reasonable
doubt, and so his conviction should be overturned.
Following trial, the Law Division judge issued a written
decision rejecting all of defendant's arguments and affirming
the municipal court's conviction. With respect to defendant's
contention that Ordinance § 222.17 was unconstitutionally vague,
the court found "that in light of a plain reading of the statute
coupled with the expert's testimony, there has been a clear
violation of the ordinance." The court further found that "the
impetus [sic] of the ordinance at issue was satisfied by the
A-0296-14T3 7
testimony of expert arborist, [] Wells[,]" as he "clearly
identified six trees that he believed to be hazardous, and
opined that they should be cut down." The court further
explained that Bailey's testimony should not be afforded as much
weight as Wells' testimony since by her "own admission . . . she
is not an expert in the area, and merely sees no dead trees
which are within her jurisdiction." The court indicated that,
though defendant "would have this [c]ourt believe that the State
has failed to set forth sufficient evidence to meet its
evidentiary burden," defendant was "misguided." In conclusion
the Law Division held that, "[i]n light of this [c]ourt's
findings based upon a [de novo] review of the evidence before
it[,]" a violation of . . . Ordinance [§] 222.17 has been proven
by the State beyond a reasonable doubt," and "the tangential
arguments set forth by [d]efendant [were] clearly and
fundamentally without merit." A corresponding order was issued
on July 30, 2014, which provided for a stay pending the instant
appeal. The present appeal followed.
II.
On an appeal from municipal court to the Law Division, the
review is de novo on the record. R. 3:23-8(a). The Law
Division judge must make independent findings of fact and
conclusions of law based upon the evidentiary record of the
A-0296-14T3 8
municipal court, and must give due regard to the opportunity of
the municipal court judge to assess the witnesses' credibility.
State v. Johnson, 42 N.J. 146, 157 (1964) (citing State v.
Ronnie, 41 N.J. Super. 339, 343 (Law Div. 1956)). In reviewing
a trial court's decision on a municipal appeal, we determine
whether sufficient credible evidence in the record supports the
Law Division's decision. Id. at 162. Unlike the Law Division,
which conducts a trial de novo on the record, we do not
independently assess the evidence. State v. Locurto, 157 N.J.
463, 471 (1999). In addition, under the two-court rule, only "a
very obvious and exceptional showing of error" will support
setting aside the Law Division and municipal court's "concurrent
findings of facts." Id. at 474 (citing Midler v. Heinowitz, 10
N.J. 123, 128-29 (1952)). However, where issues on appeal turn
on purely legal determinations, our review is plenary. State v.
Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)), certif. denied, 209 N.J. 430 (2012).
Defendant contends Ordinance § 222-17 is unconstitutionally
vague with respect to the standard for determining when a
"hazard" triggers a violation. He asserts this leads to several
plausible interpretations, including the one employed by the
Somerset County Department of Health for its enforcement of
A-0296-14T3 9
Ordinance § 88-1. As such, defendant relies on Bailey's
testimony that he did not violate Ordinance § 88-1 as the trees
on his property were not dead. This raises the question,
asserts defendant, "as to why there should be differing
standards for determining when it is necessary for a tree to be
removed 'for the preservation of public health, safety and
general welfare or to eliminate a fire hazard[,]'" as required
by Ordinance § 88-1, and "for determining when the failure to
maintain a tree has 'create[d] a hazard to the general
public[,]'" as required by Ordinance § 222-17. Thus, defendant
maintains that the ordinance's ambiguity subjects citizens to
"arbitrary and discriminatory enforcement." We disagree.
To determine the constitutionality of a municipal ordinance
we look to this court's decisions in Guidi v. Atlantic City, 286
N.J. Super. 243 (App. Div. 1996), and State v. Golin, 363 N.J.
Super. 474 (App. Div. 2003). Guidi was charged with violating
Atlantic City Code 190-1 for feeding pigeons, causing an
accumulation of bird feces on building roof tops and amassing of
vehicles on a residential street. Guidi, supra, 286 N.J. Super.
at 244. In response, she filed a complaint against the
municipality challenging the constitutionally of Sections 2.1(a)
and 2.1(b) of Ordinance 190-1, which provided:
The following matters, things, conditions or acts and each of them are hereby declared to
A-0296-14T3 10
be a nuisance and injurious to the health of the inhabitants of this municipality:
(a) Any matter, thing, condition or act which is or may become detrimental or a menace to the health of the inhabitants of this municipality.
(b) Any matter, thing, condition or act which is or may become an annoyance, or interfere with the comfort or general wellbeing of the inhabitants of this municipality.
[Id. at 245.]
On appeal, Guidi limited her challenge to Section 2.1(b). Ibid.
In analyzing the ordinance in Guidi, we were concerned that
an enforcement officer would not be able to point to objective
facts that would lead a reasonable person to realize his or her
conduct was a violation. Id. at 246 (citing State v. Lashinsky,
81 N.J. 1 (1979)). We concluded that a municipality acting
through its police power must direct ordinances with "reasonable
specificity toward the conduct to be prohibited." Ibid.
(quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S. Ct.
1686, 1688, 29 L. Ed. 2d 214, 217 (1971)). Applying that
standard to the municipal ordinance, we struck down the
ordinance, concluding that pigeons were a "common enough
problem" in a coastal town for Atlantic City to address with an
ordinance specifically directed at prohibiting that conduct.
Ibid.
A-0296-14T3 11
In Golin, we struck down as unconstitutionally vague, the
same Sections 2.1(a) and (b) at issue in Guidi, that were
adopted by the East Windsor municipal code. Golin, supra, 363
N.J. Super. at 477, 480, 484-85. The defendant was fined for
violating the ordinance by allowing tree branches on her
property to become overgrown and hang over a public sidewalk.
Id. at 479. We applied Guidi, and found the ordinance was
"unconstitutionally vague and unenforceable." Id. at 484. We
determined there was no "discernable difference" between
Sections 2.1(a) and 2.1(b). Ibid. Again, we noted there was
"no reason that the municipality cannot enact a more specific
ordinance to proscribe the objectionable conduct. Sidewalks and
tree branches are at least as common in East Windsor as pigeons
are in Atlantic City." Ibid.
Applying the principles of Guidi and Golin, the ordinance
here passes constitutional muster largely because it is more
tailored and satisfies the concerns we identified there. Unlike
in those cases, where the Code sections referenced "[a]ny
matter, thing, condition or act," the ordinance here is more
specific; Ordinance § 222-17 plainly states that "all trees .
. . [shall be] maintained in a safe manner so they shall not
create a hazard to the general public." (Emphasis added).
Thus, the Law Division was correct in finding that the ordinance
A-0296-14T3 12
is clear that a tree that is dying or likely to fall must be
removed by its owner if it can cause a hazard to others.
Having concluded the ordinance is constitutionally firm, we
turn to defendant's attack on the State's evidence relied upon
at the trial de novo to uphold the conviction. Defendant argues
Wells' expert opinion is an inadmissible net opinion. He
asserts Wells' testimony, based upon visually inspecting the
trees from twelve to fifteen feet away, is not an acceptable
methodology within the arboriculture profession. Defendant also
contends that the fact that the "hazardous" trees did not fall
during Hurricane Sandy, which occurred after the complaint was
filed, further shows that Wells' opinion is unreliable and
speculative.
In addition, defendant contends there are three "glaring
inconsistencies" between Wells' testimony and his expert report
that undermine his credibility. First, defendant notes that at
trial, for the first time, Wells testified that there were two
Locust trees that threatened Gaylord's property and should be
removed. He asserts there was no mention of these trees in his
report. Second, defendant contends Wells' report recommended
that Sweetgum and Red Oak trees be removed because they were
vulnerable from new winds as a result of the County's removal of
a large tree nearby; however, at trial Wells testified that the
A-0296-14T3 13
trees are hazardous because they both have dead, detached limbs,
or "hangers." Lastly, defendant points out that in Wells'
report he recommended that two white Ash trees be removed as
soon as possible, but at trial, he testified that he did not
think the threat was imminent. In sum, defendant contends the
State failed to prove that he violated Ordinance § 222-17 beyond
a reasonable doubt.
Based upon our review of the record, we conclude there was
sufficient credible evidence to support the Law Division's
decision. We find no merit to defendant's contention that
Wells' testimony was inadmissible net opinion. "The net opinion
rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the
admission into evidence of an expert's conclusions that are not
supported by factual evidence or other data.'" Townsend v.
Pierre, 221 N.J. 36, 53-54 (2015) (alteration in original)
(quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
N.J.R.E. 703 requires expert opinion to be "grounded in 'facts
or data derived from (1) the expert's personal observations, or
(2) evidence admitted at the trial, or (3) data relied upon by
the expert which is not necessarily admissible in evidence but
which is the type of data normally relied upon by experts.'"
Id. at 53 (citation omitted) (quoting Polzo, supra, 196 N.J. at
583).
A-0296-14T3 14
Wells based his expert opinion on more than forty years of
experience as a certified master arborist that, based upon his
personal observations, certain trees on defendant's property
were hazardous and should be removed. Moreover, defendant
failed to rebut Wells' methodology of citing dead and detached
limbs to conclude that the trees were a threat to Gaylord's
power lines. Instead, defendant relied upon the testimony of
Bailey, who plainly admitted she was not a tree expert and did
not investigate or enforce complaints concerning Ordinance §
222.17. Further, the cited inconsistencies between Wells'
report and his testimony do not cause us to take issue with the
trial court's reliance on Wells' opinion to find that defendant
violated the ordinance.
Finally, defendant argues the municipal court lacked the
jurisdiction to order defendant to remove the trees from his
property. Citing Franklin Township, Violations and Penalties
Ordinance § 1-3(A) (Ordinance § 1-3(A)), defendant contends the
municipal court only has jurisdiction to impose a penalty in the
form of a fine and/or incarceration for violation of Ordinance §
222.17. Ordinance § 1-3(A) allows for a fine or up to ninety
days imprisonment or community service for a violation of any
township ordinance. Based upon the record on appeal, the
municipal court cannot compel defendant to cut down trees not
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maintained in a safe manner that create a hazard to the general
public in violation of Ordinance § 222.17. Moreover, defendant
was not charged with violating Ordinance § 88-1, which permits
the court to order a property owner to remove "dead or dying
trees." Additionally, the State has not cited provisions of the
township municipal code which require the abatement of hazardous
trees.

Outcome: For these reasons, we affirm the Law Division's finding
that defendant violated Ordinance § 222.17, but reverse the
order compelling defendant to remove specific trees determined
to be hazardous and remand for resentencing.
Affirmed and remanded for resentencing, consistent with
this opinion. We do not retain jurisdiction.

Plaintiff's Experts:

Defendant's Experts:

Comments: