Opinion
DOCKET NO. A-2790-10T3
08-29-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AMY EMERY, Defendant-Appellant.
Advokat & Rosenberg, attorneys for appellant (Jeffrey M. Advokat, on the brief). Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-0106.
Advokat & Rosenberg, attorneys for appellant (Jeffrey M. Advokat, on the brief).
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Amy Emery appeals her conviction for the disorderly persons offense of theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a). We vacate the conviction and remand the matter to the Law Division.
Emery was a thirty-eight-year employee of the Shop-Rite supermarket in Lincoln Park. On February 13, 2010, she removed $84 from a soda machine at the store. Because the store managers were concerned about prior thefts and suspected Emery, the machine contained fifty one-dollar bills, the serial numbers of which had been recorded. In addition, Emery's movements and her removal of the cash from the machine were observed by agents of the store. When Emery was confronted, she removed money from her drawer and conceded that she had taken it from the soda machine. The bills with the recorded serial numbers were included in the $84 surrendered by Emery. Her defense was that she had removed the money from the machine because the bills had jammed it. She testified that she did not intend to retain the money, but was waiting to turn it over to the appropriate store personnel.
Emery was tried in the Lincoln Park Municipal Court and found guilty. She appealed to the Law Division, which conducted a trial de novo on the record on January 28, 2011. Emery was again convicted, although the judge stated that he was "troubled" and that there had been an "injustice." This appeal followed.
The sentence is not at issue.
Emery raises the following issues on appeal:
POINT I: THE STATE'S WITNESSES CONFLICT WITH EACH OTHER AND NEED NOT BE ADOPTED AS CREDIBLE; THIS SHOWS INNOCENCE NOT GUILT.
POINT II: AT THE END OF THE STATE'S CASE, THE DEFENDANT'S MOTION TO DISMISS WAS MISHANDLED.
POINT III: UNDER THE DEFINITION OF "THEFT," A CRIME WAS NOT COMMITTED IN THIS CASE.
Our role in an appeal such as this one is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). The Law Division determination is de novo on the record from the municipal court, Rule 3:23-8(a), but the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Our review of the record reveals that the Law Division judge applied the wrong standard in deciding this case. In rendering his decision, he stated: "And I -- I cannot, although I want to, I cannot in good faith and good -- and based upon the law, I cannot second guess [the judge's] findings. He made these credibility findings. I'm bound by those credibility findings. I have to defer to those findings." (Emphasis added). Although the Law Division judge is required to give "due" deference to the municipal judge's findings of fact, he is not "bound" by them, as the judge stated in rendering his decision.
In State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000) (emphasis added), we explained the difference between the standard applied by the Law Division in a de novo municipal appeal and the standard we apply in the appellate review of trial court findings:
The difference is that de novo consideration requires the reviewing judge to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to judge the credibility of the witnesses, whereas, this court on appeal does not weigh the evidence anew but merely determines whether the evidence adduced at trial supports the conviction. [Johnson, supra, 42 N.J. at 157]. Stated another way, this court is governed by the substantial evidence rule while a de novo review
contemplates an independent fact-finding function in respect of defendant's quilt or innocence. In other words, the judge in a trial de novo must make his or her own independent findings of fact since his or her function is not the appellate function governed by the substantial evidence rule, but rather an independent fact-finding function in respect of defendant's guilt or innocence. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995), citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). Nevertheless, even on de novo review, the Law Division judge must give due, although not necessarily controlling, regard to the opportunity of the trial judge to judge the credibility of the witnesses. The reviewing court must give deference to the findings of the trial judge which are substantially influenced by his or her opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy. Johnson, supra, 42 N.J. at 161-62.
Because the Law Division judge applied the wrong standard in the de novo trial on the municipal record, we remand to the judge for reconsideration and application of the appropriate standard. In the event of a conviction, the judge is directed to make complete findings of fact and conclusions of law, as required by Rule 1:7-4(a). They should include his analysis of whether the State provided each of the required elements of the offense set forth in N.J.S.A. 2C:20-3(a). We do not retain jurisdiction.
Conviction vacated, remanded for reconsideration.