Opinion
DOCKET NO. A-2193-12T2
02-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NADEEM SHAHIDI, Defendant-Appellant.
Nadeem Shahidi, appellant pro se. Mason, Griffin & Pierson, attorneys for respondent Borough of Highland Park (Victoria D. Britton, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal Nos. 47-2012 and 48-2012. Nadeem Shahidi, appellant pro se. Mason, Griffin & Pierson, attorneys for respondent Borough of Highland Park (Victoria D. Britton, on the brief). PER CURIAM
The December 6, 2012 order incorrectly identifies the appeal number as 47-2011, instead of appeal number 47-2012.
Defendant Nadeem Shahidi appeals from a December 6, 2012 Law Division order, which denied municipal appeal number 48-2012 ("Appeal 48-12") and remanded municipal appeal number 47-2012 ("Appeal 47-12") "for consideration on the merits." Appeal 48- 12 concerned defendant's failure to obtain a certificate of lease occupancy ("CLO") for an apartment in the Borough of Highland Park ("Highland Park"). Appeal 47-12 arose out of a notice of violation of the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141 ("UCC") for the same apartment. Despite the December 6, 2012 order remanding Appeal 47-12, there is no record that a remand occurred. For the reasons that follow, we dismiss the denial of Appeal 48-12, and dismiss Appeal 47-12 as interlocutory.
Defendant is the co-owner of a duplex, with defendant residing in one of the two residential apartments. Because defendant rents the second apartment, he is required to obtain a CLO for the apartment "before any change in occupancy shall take place." Highland Park, N.J. Borough Code § 135-25. During November and December 2011, Tim Coyle, a Highland Park zoning officer and housing official, issued three complaints and summonses regarding defendant's failure to obtain a CLO.
On the morning of January 17, 2012, defendant, with his attorney present, finally granted Coyle access to defendant's rental unit for the CLO inspection. At that time, Coyle was accompanied by Scott Luthman, the construction code enforcement official for Highland Park. During this inspection, Luthman observed violations of the UCC relating to defendant's failure to obtain a construction permit for alterations made for the installation of a washer and dryer. At that time, Luthman issued a notice of violation and assessed a penalty of $1000 for failing to obtain a construction permit. The notice included a statement advising that the order could be contested by requesting "a hearing before the Construction Board of Appeals . . . within 15 days of receipt of this [order] as provided by N.J.A.C. 5:23A-2.1." Defendant did not request a hearing or otherwise move before the Construction Board of Appeals to challenge the UCC violation and penalty.
Later in the morning of January 17, 2012, defendant appeared with counsel in the Highland Park Municipal Court and pled guilty to two of the three CLO summonses, while the third one was dismissed. Defendant was sworn and provided a factual basis acknowledging that he did not have a CLO for his rental unit. The judge imposed a fine of $406 and costs of $33 on each summons, which defendant later paid.
In June 2012, defendant sent a letter to the Highland Park Municipal Court and requested the court vacate his guilty pleas to the two CLO summonses. In the letter, defendant stated:
Your Honor I am "Not Guilty" of [these] tickets . . . . I own a [two-]family home in which I reside in and therefor[e] [I am] exempt of needing a C of O in my home. I did get a C of O when I purchased my home.
. . . . Please vacate my Guilty Plea[.] I was misguided by my attorney and Inspector Coyle.
The municipal court treated the letter as a motion to vacate defendant's guilty pleas and scheduled the matter for June 13, 2012. On that date, defendant appeared before the same judge who accepted his guilty pleas at the January 17, 2012 hearing. Defendant argued the court should set aside his guilty pleas because he had been "misinformed" when he entered them. The court denied defendant's application, finding that defendant voluntarily entered his guilty pleas after waiving his right to a trial.
Defendant appealed to the Law Division, docketed as Appeal 48-12, but this appeal was dismissed on August 30, 2012, for procedural deficiencies. Defendant moved for reconsideration, which the court denied, on November 8, 2012.
The record does not contain a copy of the November 8, 2012 order.
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Regarding the defendant's UCC violation, a complaint and summons was issued to defendant on March 5, 2012 when he failed to pay the $1000 penalty for the UCC violation, or file a timely appeal with the Construction Board of Appeals. This summons was transferred to the South Brunswick Municipal Court because, in the interim, defendant had asserted a tort claim against Highland Park. On June 14, 2012, a hearing was held in South Brunswick Municipal Court. Defendant was found guilty of not paying the assessed fine and the judge imposed a $1000 fine plus court costs. Defendant appealed this decision, docketed as Appeal 47-12.
On November 14, 2012, a Law Division judge heard oral argument on Appeal 47-12, the UCC violation, and remanded "the matter . . . to the [m]unicipal [c]ourt for an appropriate record to be made[.]" The judge also reiterated that Appeal 48-12 was previously dismissed for procedural deficiencies. The judge who presided at the November 14, 2012 hearing then retired before entering orders memorializing his decisions on defendant's appeals.
On December 6, 2012, another Law Division judge entered one confirming order for both appeals, listing the docket numbers for both appeals in the caption. This order stated:
1. Appeal Number 48-2012 is hereby [denied] for the reasons set forth on the record.As previously noted, the record contains no evidence that Appeal 47-12 was ever remanded to the Highland Park Municipal Court, as required by the December 6, 2012 order.
2. With respect to Appeal Number [47-2012], the matter is remanded to the Municipal Court of Highland Park for consideration on the merits of a) the Notice and Order of Penalty issued on January 12, 2012 by the Borough of Highland Park for failure to obtain a construction permit and b) Complaint Number 2819 issued on March 5, 2012 for failure to pay for [UCC] violations in violation UCC 5:23-2.31(b)[.]
On appeal, defendant primarily contends he should have been granted permission to withdraw his guilty plea, which is the focus of Appeal 48-12. However, the discussion of Appeal 48-12 in the court's decision on Appeal 47-12 caused unfortunate confusion, with plaintiff acknowledging in its brief that "it is unclear . . . which matters are on appeal before this Court." Because the two appeals were not consolidated by the Law Division, we discern no reason for not treating each appeal separately, addressing Appeal 48-12 because it constitutes an appeal from a final order, and remanding Appeal 47-12, because the order for remand is not a final order.
The relief sought by defendant in Appeal 48-12 was to withdraw his guilty pleas post-sentence. A court may grant such relief to "correct a manifest injustice." R. 7:6-2(b). However, Appeal 48-12 was dismissed by the Law Division for procedural deficiencies on August 30, 2012. Defendant claims to have sought reconsideration, which was denied on November 8, 2012. Rule 2:4-1(a) requires appeals from final judgments "be taken within 45 days of their entry." Because defendant did not file his appeal until January 18, 2013, he failed to file a timely appeal of the Law Division judge's dismissal of Appeal 48-12, regardless of whether the August 30, 2012 order or November 8, 2012 denial of reconsideration controls. We therefore dismiss 48-12 as untimely.
Because we conclude that Appeal 47-12 is interlocutory, we decline to consider the appeal, and dismiss it, without prejudice, and remand that matter to the Highland Park Municipal Court, pursuant to the Law Division's December 6, 2012 order. See Grover v. Universal Underwriters Ins. Co., 151 N.J. Super. 403, 412 (App. Div. 1977) (noting that a remand order is "interlocutory and hence appealable only by leave of this court"), rev'd on other grounds, 80 N.J. 221 (1979).
Dismissed, in part, and dismissed and remanded, in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION