On appeal from the Superior Court, Law Division, Ocean County.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Greenberg, J.A.D.
[189 NJSuper Page 214] Defendant Lee Bernstein and plaintiff Associated Humane Societies ("Society") appeal from judgments dated October 23, 1981 entered in the Superior Court, Law Division, on appeals de novo on the record from the Municipal Court of the Township of Dover. The proceedings arose as a result of the operation by Bob Jones of a petting zoo in the Township of Dover. In general terms, it may be stated that Bernstein, executive director of the Society, questioned the legality of Jones operating such a zoo and objected to the treatment of the animals involved. Jones, in turn, asserted that Bernstein had improperly kept certain of his animals after seeking veterinary care for them. The disputes resulted in numerous municipal court charges being filed by each man against the other. One complaint against Bernstein asserted that he violated N.J.S.A.
2C:20-3(a) by "unlawfully taking and exercising unlawful control over one emu and one female goat and three kids which are owned by Bob Jones promotional attractions with the purpose of depriving the owner thereof[.]" One complaint filed by Bernstein on behalf of the Society against Jones charged he violated N.J.S.A. 4:22-26(p) in that Jones had committed "the offense of cruelty to animals while at the Petting Zoo, Ocean County Mall, Hooper Avenue in that numerous animals were used for profit making as a fee was paid to pet and feed animals."*fn1
The charge for violation of N.J.S.A. 2C:20-3(a) was indictable and thus was referred to the Ocean County prosecutor. The prosecutor returned the case to the municipal court for disposition as a disorderly persons offense. The complaint against Jones for violation of N.J.S.A. 4:22-26(p) was a civil matter within municipal court jurisdiction. N.J.S.A. 4:22-29(b). A consolidated municipal court trial was conducted on the two complaints.*fn2 The municipal judge found Bernstein guilty of violation of N.J.S.A. 2C:20-3(a) and Jones "not guilty" of violating N.J.S.A. 4:22-26(p). Counsel then presented arguments concerning appropriate punishment of Bernstein. The judge observed that the case against Bernstein had been filed as indictable and had been returned by the prosecutor for processing as a disorderly persons offense. The judge said that to find he had jurisdiction he had to rule that the property was worth less than $500. He then said that even though he was convinced that the value was in excess of $500, he would make a finding of a $499 value. He imposed a fine of $100 and $25 court costs.
The matter was then appealed to the Superior Court, Law Division. Judge Huber of that court tried the case de novo on
the record on October 23, 1981. He determined that Jones had not violated N.J.S.A. 4:22-26(p). The judge reasoned:
When we come down to [ N.J.S.A. 4:22-26] P [ sic ], it seems to me that using any animal, reptile, or fowl for the purpose of soliciting, that's the purpose, any alms, collections, contributions, subscriptions, donations, or payment of money.
Now, it seems to me that there isn't solicitation here. There was payment just like you would pay to go to Safari Park, and if Mr. Bernstein doesn't want to charge for his zoo, he doesn't have to; but I believe other zoos charge to enter, and I see nothing wrong with paying a charge to go see animals.
Why shouldn't there be some contribution to go in and some payment? But I don't -- I don't see any violation of the law and I don't see any acts of cruelty.
Judge Huber found that Bernstein had violated N.J.S.A. 2C:20-3(a) but that the value of the property involved was less than $200. Bernstein was fined $50 and $15 costs. On October 23, 1981 Judge Huber signed separate judgments reflecting his determinations under both complaints. Bernstein and the Society have appealed from those judgments.
Bernstein's conviction for violation of N.J.S.A. 2C:20-3(a) must be reversed. The complaint against him was tried in the municipal court. That court has jurisdiction of disorderly persons offenses. N.J.S.A. 2A:8-21(d). Under N.J.S.A. 2C:20-2(b)(3) a violation of N.J.S.A. 2C:20-3(a) constitutes a disorderly persons offense if the amount involved is less than $200. If the amount involved is at least $200 but does not exceed $500 the offense is a crime of the fourth degree. Here the municipal judge made a finding that the value involved was $499. Thus, though the judge attempted to dispose of the matter as a disorderly persons offense, he found that Bernstein had done an act constituting a crime of the fourth degree. A municipal court has jurisdiction of a fourth degree theft offense only if the defendant waives indictment and trial by jury in writing and the county prosecutor consents in writing. N.J.S.A. 2A:8-22. The record ...