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State v. Prochnow

October 2, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LIVIA PROCHNOW, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-16-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 12, 2009

Before Judges Rodríguez and LeWinn.

Following separate trials in the Municipal Court of Edgewater, Livia Prochnow was convicted of two counts of a violation of Edgewater Ordinance Number 1147-99, codified at § 187.1 and titled "Feeding of Animals Prohibited.*fn1 " The municipal court judge imposed a $2,006 fine and $33 court costs on each conviction. The sentence was stayed pending appeal to the Law Division.

Prochnow appealed. The Law Division conducted a trial de novo on the record developed in the municipal court. Judge Donald R. Venezia found Prochnow guilty of the same charges and imposed the same penalties. The judge stayed the sentences pending disposition of this appeal.

The proofs can be summarized as follows. On May 26, 2008, Prochnow was walking in the River Walkway, a public recreation area in Edgewater alongside the Hudson River. David Raindorf, who lives in a townhouse abutting the River Walkway, saw Prochnow feeding corn kernels to about fifteen geese in the area of the River Walkway. Raindorf was upset about the frequent presence of geese "massing next to [his] house." Raindorf told Prochnow to please stop feeding the geese. According to Raindorf, Prochnow answered in coarse language that she would not stop feeding the geese and that Raindorf should be concerned about feral cats, who attacked the geese. She also told him that if he "did not like it he could call a cop."

Raindorf contacted the Edgewater Police Department and left a message. Subsequently, Raindorf complained to police that Prochnow was feeding the geese. As a result, Edgewater Summons Number 0213-SC-0003698 was issued charging Prochnow with violating the Geese Ordinance.

On June 25, 2008, Helen Ciccarelli, an Edgewater Code Official, was riding her bicycle in the River Walkway in Edgewater. She saw Prochnow surrounded by more than twenty-five geese. Prochnow was feeding the geese. Specifically, Prochnow was taking greenish-yellowish seeds from her pocket and feeding the geese.

As a result, Ciccarelli signed Edgewater Summons Number SC-2008-003881, alleging a violation of the Geese Ordinance. Prochnow denied feeding the geese. She acknowledged that she has been visiting the geese in this area for about eighteen years. She has become acquainted with three generations of the birds. As a result of this longstanding relationship, the birds recognize her. They come close to her without her feeding them. Indeed, Prochnow testified that she has never fed the geese during her visits to this area. Frequently, Prochnow will interact with the birds as one would interact with a household pet. She will touch the animals with her hands.

On appeal, Prochnow contends:

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [PROCHNOW] FED GEESE IN VIOLATION OF EDGEWATER ORDINANCE NUMBER 1147-99.

We disagree.

The testimony of Raindorf and Cicarelli, which the judge credited, was that they saw Prochnow feeding the geese. The judge did not believe Prochnow's testimony. Thus, the issue ...


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