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State v. Spano

February 24, 2000

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH SPANO, DEFENDANT-APPELLANT.



Before Judges P.G. Levy, Carchman and Lefelt.

The opinion of the court was delivered by: Carchman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2000

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.

While deer hunting during the early evening of January 28, 1998, defendant Joseph Spano shot and killed two dogs - a golden retriever mix and an Australian shepherd mix. The two dogs were observed by defendant as they were standing over a deer carcass approximately 118 feet away. Defendant asserted that the shepherd aggressively began running toward him and in an act of self-defense, he shot the dog, apparently wounding him. He then looked in the direction of the retriever and observed the dog growling; whereupon, he shot that dog as well. After defendant reloaded his weapon, he heard the shepherd whimpering, and possibly suffering, so he proceeded to fire a second shot at that dog killing it. Defendant claimed that he did not know the dogs were pets but thought they were coyotes or wild dogs. He further claimed that he felt that his life and safety were in jeopardy.

After receiving a call from the caretaker of the hunting property and initially denying any knowledge of the dead dogs, defendant contacted the Branchburg Police Department where he voluntarily gave a statement setting forth his version of the facts. Thereafter, defendant was charged with six separate offenses: two counts of the disorderly persons offense of needlessly killing an animal, N.J.S.A. 4:22-17(a); two counts of injury to property while hunting, N.J.S.A. 23:7-3; and two counts of the penalty offense of needlessly killing an animal, N.J.S.A. 4:22-26(a). He was convicted of all offenses in the Union Township Municipal Court, and after a trial de novo was again convicted in the Superior Court, Law Division. As to the disorderly persons offenses, N.J.S.A. 4:22-17(a), defendant was sentenced on each count to a fine of $500, a fifteen day suspended county jail sentence and thirty days of community service together with court costs. Under the penalty provisions of N.J.S.A. 4:22-26(a), defendant was sentenced on each count to a civil penalty of $250 together with court costs. Finally, under the penalty provisions of N.J.S.A. 23:7-3, defendant was sentenced on each count to a penalty of $1,000, court costs and a revocation of his hunting license for a period of five years. Defendant appeals, and we affirm.

On appeal, defendant raises the following issues:

POINT I THE LAW DIVISION ERRED UPON [sic] THE CREDIBILITY DETERMINATIONS OF THE MUNICIPAL COURT JUDGE, AND THIS COURT SHOULD THEREFORE MAKE INDEPENDENT FINDINGS OF FACT.

POINT II FACTUAL FINDINGS BELOW ON THE SEQUENCE AND MANNER OF THE SHOOTINGS WERE ERRONEOUS AND CLEARLY AGAINST THE EVIDENCE, AND MUST BE SET ASIDE.

POINT III THE LOWER COURTS APPLIED THE WRONG STANDARD IN DETERMINING WHETHER DEFENDANT'S CONDUCT FELL WITHIN THE STATUTORY PROVISIONS.

POINT IV THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V THE MUNICIPAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO ADMIT DEFENDANT'S PROFFER OF EXPERT TESTIMONY ON "WORRYING."

POINT VI THE SENTENCES IMPOSED WERE EXCESSIVE.

We have carefully reviewed the record and conclude that defendant's arguments are without merit. We note that Points I, II, and IV all address the judge's consideration of the evidence, credibility findings and weight of the evidence. Our review of such issues is limited to determining if the findings of fact "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We find that this ...


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