October 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATTHEW JANSSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MA 07-080.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2008
Before Judges Carchman and Simonelli.
Defendant Matthew Jansson appeals from a judgment of conviction of the Law Division after a trial de novo. Defendant was previously convicted in the Wall Township Municipal Court of obstruction of the administration of law or other governmental function, N.J.S.A. 2C:29-1(a); one count of cruelty towards an animal, N.J.S.A. 2C:4:22-17; two counts of permitting a dog out unleashed, Twp. of Wall, N.J., Rev. Ordinances, ch. 4, art. I, §65-12 (1978); two counts of allowing a dog to run at large, Twp. of Wall, N.J., Ordinances, ch. 4, art. I, §65-11 (1978); and two counts of failing to license a dog, Twp. of Wall, N.J., Ordinances, ch. 4, art. I, §65-9 (1978). Defendant was acquitted on one count of cruelty towards an animal. Following a trial de novo in the Law Division, defendant was convicted of the same offenses. Judge Chaiet reduced the previously imposed fines to an aggregate of $750 together with costs, and imposed a two-day community service obligation. We affirm.
The relevant facts adduced at trial reveal that at 9:11 a.m. on November 5, 2006, the Wall Township police were dispatched to 3919 Belmar Boulevard in response to a complaint that two Rottweiler dogs were running loose through the neighborhood and were behaving aggressively toward area residents. Several officers participated in tracking the dogs to various properties in the vicinity. At one point, both animals were located in a neighboring backyard, 3443 Woodfield Avenue, where Wall Township Patrolman Todd Verrechia attempted to secure them. During this encounter, the large male dog attacked Officer Verrechia, biting his hand. As a defensive measure, the officer discharged his weapon, piercing the dog's ear. Both dogs escaped under the fencing and into an adjoining heavily wooded area, the larger of the two wounded and bleeding.
Defendant, who had relocated to California from New Jersey in 2004, was visiting in Wall Township. On the morning of December 5, he was hunting in Monmouth County when, at approximately 10:45 a.m., he received a phone call from a former neighbor alerting him that his dogs were running loose, and the Wall Township police were at his former residence. Defendant immediately drove to his former residence to locate and secure the dogs. When he arrived at the house, the police were not present.
Defendant then drove onto Westfield Avenue, which abuts the rear of his former property, parked his vehicle, and entered the woods to search for the dogs. He located the injured male dog, Panzer, first. He observed that the dog was soaked in blood and appeared unable to walk. Defendant, claiming to have no knowledge of the nature or extent of Panzer's injuries at this point, tethered the dog to a tree to secure him and left to get help.
Defendant then drove toward the Garden State Animal Hospital where he spotted his female dog, Gretel, on the side of the road. He stopped to secure her to a tree near where he found her, as he had done with the male dog. Defendant then received a call on his cell phone from Sergeant Greg Carpino of the Wall Police Department who explained that an officer had been bitten. The Sergeant requested immediate proof of the dogs' rabies shots, and defendant agreed to return to his former residence to meet with the officers.
Defendant met the officers at 3923 Belmar Boulevard and advised them that he did not know where the dogs were located. A short time later, he told them that he did know of their whereabouts. He then offered to find the dogs, told the officers where the dogs were and took them to their locations in the woods. After helping to load his dogs on a Monmouth County Humane Society van, defendant was arrested by Wall Township Officer Daniel Donlon. From the time defendant located and tethered the first dog in the woods, until he returned with the authorities to retrieve the dogs, approximately twenty to thirty minutes had elapsed.
As we previously noted, at the time of the incidents which gave rise to the charges, defendant was a resident of California having separated from his wife in 2004. His wife resides in Wall Township, and the dogs were maintained at the Wall Township residence.
Our standard of review of a trial de novo is one of deference to judge's findings recognizing that the trial judge has the unique opportunity to hear and see the witnesses and have a "feel" for the case. State v. Johnson, 42 N.J. 146, 161 (1964); see also State v. Locurto, 157 N.J. 463, 471 (1999). We recently restated the unique review function generated by de novo review. After first reiterating that our review is based on the findings of the Law Division judge, we observed that our deference is: more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005)(quoting Locurto, supra, 157 N.J. at 474)].
On appeal, defendant raises the following issues:
MR. JANSSON IS NOT GUILTY OF OBSTRUCTION BECAUSE HE COOPERATED WITH POLICE DURING THE ENTIRE INCIDENT, LOCATED AND SECURED THE DOGS, SWIFTLY MET WITH POLICE AT THEIR REQUEST, AND FORTHWITH TOOK THE POLICE TO THE DOGS
MR. JANSSON IS NOT GUILTY OF CRUELTY FOR TYING PANZER UP IN THE WOODS AND LEAVING TO GO GET HELP
AS A MATTER OF LAW, MR. JANSSON IS NOT GUILTY OF FAILING TO LICENSE HIS DOGS
AS A MATTER OF LAW, MR. JANSSON IS NOT GUILTY OF ALLOWING THE DOGS TO BE UNLEASHED OR ALLOWING THE DOGS TO RUN AT LARGE BECAUSE HE NO LONGER HAD CUSTODY OR CONTROL OF THE DOGS; AS A MATTER OF FACT, MR. JANSSON IS NOT GUILTY OF THE OFFENSES BECAUSE THERE WAS NO TESTIMONY THAT HE LET THEM ESCAPE
MR. JANSSON'S PRIOR ALLEGED OFFENSES SHOULD NOT HAVE BEN [Sic] USED AGAINST HIM We address defendant's arguments seriatim.
The obstruction statute provides in relevant part:
A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.
[N.J.S.A. 2C:29-1(a) (emphasis added)].
Obstruction requires: (1) a physical act; done with (2) a purposeful intent; to (3) prevent a public servant from performing an official function. N.J.S.A. 2C:29-1(a). Here, the trial judge found that the elements of physical act and purposeful intent were satisfied by defendant tethering the dogs to trees in the woods where he found them.
Defendant contends that he tied the dogs up in the woods because they were bloody, suffered from unknown injuries and were agitated and unpredictable. The judge rejected these contentions finding defendant not credible. The judge relied on "clear and concise" testimony from Jennifer Vigil, a Humane Society official, that the female dog was not covered in blood; only the male was injured and bloody. If the female was not bloody when defendant located her, "then there was no reason why he couldn't have simply taken that dog back with him and placed that dog in the car. It was his dog. He didn't have to be concerned about that particular dog." Judge Chaiet went on to explain: "I analyzed the purpose of why he acted, it seemed more logical for me that his purpose was to hide the dogs because he would be afraid that the authorities would take the dogs from him."*fn1
The third element of obstruction was satisfied since the public servant's official function was "to check on the dogs to see whether they represented a public danger" and to impound the dogs if necessary. On the obstruction charge, the municipal court judge based his decision on the defendant's tethering the dogs and not the testimony that defendant may have initially denied knowing the whereabouts of the dogs. In fact, as to this point, Judge Chaiet specifically observed: "Even if that occurred, I don't find that as part of the physical interference in this particular case."
We agree with the trial judge that defendant's act of tethering the dogs was premised on a fear that the dogs would be removed from defendant rather than a concern for the safety of these injured and agitated dogs. These unregistered but well-known dogs had run away; one had injured a police officer; and defendant recognized that secreting them might prevent police or humane society intervention. In his findings as to defendant's culpability for obstruction, Judge Chaiet established that defendant acted with purposeful intent to obstruct when he tethered the dogs in the woods and left them there, rather than putting them in his vehicle. We are satisfied that the trial judge correctly found defendant guilty of obstruction.
We reach a similar result as to the cruelty offense. The State contends that defendant violated N.J.S.A. 4:22-17, by "tying a bleeding dog up to a tree in a heavily wooded area that is not easily visible, not easily accessible." Upon credible testimony from a Humane Society official and defendant himself, the male dog, Panzer, was in dire need of medical treatment when defendant found him in the woods and left him there. Defendant observed the dog's physical state when he first found the injured dog:
I found my dog, Panzer, who was leaning up against a tree completely covered in blood.
I had no idea whether he was clubbed in the head, hit by a car. I really had no idea what happened to him. He was unable to walk. He had heavy, heavy blood all over his coat . . . I tied him to the tree there so I'd know how to locate him again.
The Humane Society official, Jennifer Vigil stated:
Q: And just - and when you got to him what condition was in [sic] he in when you actually -
A: He actually never put his head up . . . he was soaking wet. He looked real shocky as if maybe . . . I would say maybe he was hit by a car or something like that. He was real, you know, kind of shocky and boggley . . . you could tell he was weak.
N.J.S.A. 4:22-17(3) prohibits: inflicting unnecessary cruelty upon a living animal or creature . . . by any direct or indirect means, including but not limited to through the use of another living animal or creature; or unnecessarily fail[ing] to provide a living animal . . . with proper food, drink, shelter or protection from the weather; or leav[ing] it unattended in a vehicle under inhumane conditions. [N.J.S.A. 4:22-17(3) (emphasis added)].
Judge Chaiet held that it was improper of defendant to leave the injured dog in the woods and "unnecessarily fail to provide immediate aid" when defendant knew his dog was seriously injured. The judge found that defendant "was more concerned that someone would take the dog" and so he knowingly withheld medical aid because hiding the dog "was his primary concern."
We reject defendant's assertion that the statute enumerates a limited number of situations amounting to cruelty to animals, and the conduct here does not fall within the scope of its terms. While the statute does set forth a series of circumstances that fall within its scope, the examples are preceded by the terms "including but not limited to," and "or," clearly not words of limitation. The section of the statute that prohibits "inflict[ing] unnecessary cruelty upon a living animal or creature, by any direct or indirect means," ibid. (emphasis added), coupled with the terms stated above, falls within the scope of "cruelty." While defendant suggests invocation of the Rule of Lenity, State v. Gelman, 195 N.J. 475, 482 (2008) (explaining that "the doctrine of lenity . . . holds that when interpreting a criminal statute, ambiguities that cannot be resolved by either the statute's text or extrinsic aids must be resolved in favor of the defendant") (citing United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed. 2d 488, 497 (1971)), and Negative Implications, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 732, 105 L.Ed. 2d 598, 624, 109 S.Ct. 2702, 2721 (1989) (noting that "whatever the limits of the judicial power to imply or create remedies, it has long been the law that such power should not be exercised in the face of an express decision by Congress concerning the scope of remedies available under a particular statute"), we are satisfied that tethering a bleeding dog to a tree, especially when the purpose is to secret, falls within any definition of cruelty. Despite defendant's argument that the trial judge was creating a duty to provide medical care in the cruelty statute, we conclude that such an argument overstates the issue and we need not reach that result. It is sufficient to conclude that the affirmative act of tethering a "shocky" and "bloody" dog to a tree is cruelty, especially when the purpose is to secret the animal from the authorities. Defendant further asserts that he is not guilty of the various municipal ordinance violations. Although the trial judge did not review the ordinances in detail, the thrust of defendant's defense was that while he was the record owner of the dogs, because he no longer resided in New Jersey, he had no responsibility regarding the licensing or keeping of the dogs. We disagree.
Section 65-9 of the Wall Township Municipal Code states:
Any person who shall bring or cause to be brought into the Township any unlicensed dog and shall keep the same in the Township for a period of more than 10 days shall immediately apply for a license and registration tag for such dog. [Twp. of Wall, N.J., Ordinances, ch. 4 art. I, §65-9 (1978) (emphasis added)].
Defendant adopted both dogs from the Humane Society. He was a resident of Wall Township at the time of the adoptions, and he was the person who caused the dogs to be brought into the Township. His voluntary absenting himself from the municipality does not relieve him of the underlying obligation imposed by the ordinance. As long as the dog remained in Wall Township under the ownership of defendant, he retained the obligation to comply with the ordinance.
The same defense is ineffective as it applies to Section 65-12 of the Wall Township Municipal Code, regulating leashing requirements. That section provides:
No dog shall be permitted off the premises of the person owning, keeping or harboring it unless accompanied by a person who is capable of controlling it and who has the dog securely confined and controlled by an adequate leash or chain not more than six feet long. [Twp. of Wall, N.J., Ordinances, ch. 4 art. I, §65-12 (1978) (emphasis added)].
The ordinance states with particularity that a dog is not permitted to leave one's premises without being leashed. Here, the retention of ownership by defendant obligated him to maintain the dogs consistent with the provisions of the ordinance.
Similarly, Section 65-11 of the Wall Township Municipal Code addressing dogs running at large states:
No person shall permit, suffer or allow any dog owned, kept or harbored by him to run at large off the premises of the person so keeping, owning or harboring the dog. [Twp. of Wall, N.J., Ordinances, ch. 4 art. I, §65-11 (1978) (emphasis added)].
The ordinance clearly applies to the owner of the dog. The issue of ownership was not contested, and defendant's obligation is clear.
Finally, we reject defendant's contention that his twenty-three or twenty-four prior dog offenses were improperly considered by the judge. N.J.R.E. 404(b). First, the issue arose in connection with defendant's motive for hiding the dogs, N.J.R.E. 404(b) ("[e]vidence of other crimes, wrongs, or acts . . . may be admitted for other purposes such as proof of motive"); see State v. Castagna, 400 N.J. Super. 164, 180 (App. Div. 2008) ("as with all 404(b) evidence, greater leeway is given when the evidence is proffered on the issue of motive, and there must be a 'very strong' showing of prejudice to exclude evidence of a defendant's motive"); and second, in connection with sentencing. Both references were appropriate and neither were used to show a propensity or disposition to commit the charged offenses. The fleeting references by Officer Donlon were not mentioned by Judge Chaiet in his opinion, and we are satisfied that they had no bearing on the ultimate findings made by the judge.