Man fights city hall in Roxbury and wins

ROXBURY – When a Roxbury police officer issued Jesse Wolosky a summons in April, he wasn't prepared to accept the $54 fine and move on.

Wolosky, an open-records activist from Sparta, was ticketed for having tinted side and rear windows under statute 39:3-75 on Sunday morning, April 13, while traveling in his 2000 gray Nissan Altima on Route 46 West in Roxbury near Cliff's Ice Cream.

Preparing to fight the charge, Wolosky made an Open Public Records Act request for every complaint- summons written under statute 39:3-75 for the past 12 months from the Roxbury Police Department.

From April 30, 2013 to May 20, 2014, a total of 223 tickets were issued under the statute.

Wolosky also analyzed the law, and found there was only one paragraph in the statute that applied to tinted windows, the fourth paragraph under the section titled "Safety Glass."

"No person shall drive any motor vehicle equipped with safety glazing material which causes undue or unsafe distortion of visibility," reads the section, which was last amended in 1949.

Wolosky was only charged with having tinted windows and in the Municipal Court transcript the officer said it was why Wolosky was pulled over.

With his case prepared, he went to Roxbury Township Municipal Court to fight the ticket in June, but the charge was upheld.

"You might have a very nice argument and an Appellate Judge might have interest in… but I don't believe that there's any reason here why I should do anything other than the $54 fine," Judge Carl Wronko said in court. "I probably, frankly think the statute can be drawn a little bit better than it probably is. But it is what it is and I'm bound by prior interpretation and usage of it. And I just can't, at my level, not follow that."

Wolosky had to pay the $54 ticket that day.

To move forward to Superior Court with his case he had to obtain the Municipal Court transcript, which he said cost $300. Wolosky encountered additional costs along the way but he represented himself, which saved money. Had he hired a lawyer, it would have cost him significantly more to fight the $54 charge.

Wolosky's appeal went to Superior Court on Oct. 23, where Judge James Demarzo found him not guilty of driving with safety glass in violation of 39:3-75.

In his finding of not guilty, Demarzo said that he could not uphold the guilty verdict because there was no mechanism to test the tint of the windows to determine if it had caused "undue or unsafe distortion of visibility" in violation of the statute.

"The appeals judge said police can't prove that I couldn't see through the tint," Wolosky said. "And there's no way to test it."

Wolosky was reimbursed the $54 charge he had been ordered to to pay in municipal court.

According to a copy of Demarzo's decision, he was prepared to address two arguments from Wolosky.

The first was whether or not the state met its burden to prove the violation beyond a reasonable doubt.

Demarzo cited the New Jersey Administrative Code, which said visible light through the vehicle windows cannot be reduced below 60 percent. Since the state must prove the offense beyond a reasonable doubt - and it failed to do so by not measuring the tint to see if it was below 60 percent visibility – Demarzo found Wolosky not guilty of the charge.

The second argument Demarzo was prepared to determine was whether or not statute 39:3-75 was "unconstitutionally vague" as applied to motor vehicles with tinted windows.

A decision finding Wolosky not guilty based on this argument could have been used by lawyers in future tinted window cases.

But since Wolosky was already found not guilty, Demarzo said it was not necessary to rule on the constitutionality of the statutes application to tinted windows.

Former Morris County Prosecutor Robert Bianchi said he hadn't seen a tinted window summons go this far, likely due to the court fees it cost to appeal.

He said he is curious to see in future tinted window cases how the state would be able to prove tinted windows were below the 60 percent threshold.

"Do you have expert testimony?" Bianchi said. "Could they tell the difference between 59 and 61 percent?"

While the summons appears to be directed at driver safety, Bianchi said a police officer's attitude toward tinted windows is understandable.

"Traffic stops are the number one danger to cops. Imagine how much that is exacerbated when an officer cannot see inside the car," Bianchi said. "But the law is for the driver, it's not a statute for the officer, which would be simpler and subjective as opposed to needing to prove 60 percent."

Wolosky said he spoke with Roxbury Police Chief James Simonetti at Town Hall the week after he was found not guilty.

"[Chief Simonetti] said he would tell his officers to stop if the judge overturned the ticket," Wolosky said. "I didn't send him a copy of the appeal decision. He can find it if he wants to. I don't cross anyone's T's and dot their I's for them."

Simonetti could not be reached for comment on the matter.

Still, Wolosky said every week since he was found not guilty, he's filed an OPRA request for the previous week's tickets in Roxbury under statute 39:3-75.

"If any officer writes a ticket for tinted windows now in Roxbury, they will have to send it to me," Wolosky said. "If they want to police tinted windows, I'm going to police them with OPRA until we get them to stop."

Wolosky said the first week, Oct. 27 through Nov. 2, there were eight tickets issued. The next week, Nov. 3 through Nov. 9, there were only two.

"We're seeing a change already," Wolosky said. "I'll do this every Monday for the rest of my life if it doesn't stop."

Wolosky said many of the tickets issued show warnings for not wearing seatbelts and speeding, indicating officers are issuing the $54 tinted window ticket as a lower charge.

"Give people the ticket they deserve and if there's no violation let them go," Wolosky said. "Why does every traffic stop have to be a money maker?"

Wolosky said he plans to keep his windows tinted.

Staff Writer Michael Izzo: 973-428-6636; mizzo@dailyrecord.com