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State v. Theime

March 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BERNADETTE THEIME, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY NARDIELLO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal Nos. 5816 and 5817.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 29, 2009

Before Judges Axelrad and Messano.

Defendants Bernadette Theime and Anthony Nardiello appeal from the judgments of conviction that followed the de novo trial of their municipal appeals in the Law Division.*fn1 Theime was found guilty of two counts of criminal mischief, N.J.S.A. 2C:17-3(a)(1), and one count of trespass, N.J.S.A. 2C:18-3(b).*fn2 After merger, the Law Division judge fined her $1000, ordered her to perform thirty days of community service, and imposed the appropriate statutory penalties. Nardiello was found guilty of harassment, N.J.S.A. 2C:33-4, fined $500, ordered to perform thirty days of community service, and the appropriate statutory penalties were imposed. The community service aspect of each sentence reflected a reduction from the ninety days of service the municipal court judge had imposed on each defendant.

On appeal, defendants raise the following arguments for our consideration:

POINT I

DEFENDANTS WERE NOT GUILTY OF THE CRIMES CHARGED AS THERE WAS NO EVIDENCE OF CRIMINAL INTENT.

POINT II

THE VIDEOTAPES WERE NOT ADMISSIBLE BECAUSE THEY WERE NOT AUTHENTICATED.

POINT III

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS CLEARLY EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, if evidence was improperly admitted before the municipal court, the Law Division judge has an obligation to strike the evidence and consider whether ...


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