On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-0106.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 16, 2011
Before Judges Waugh and Koblitz.
Defendant Amy Emery appeals her conviction for the disorderly persons offense of theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a). We vacate the conviction and remand the matter to the Law Division.
Emery was a thirty-eight-year employee of the Shop-Rite supermarket in Lincoln Park. On February 13, 2010, she removed $84 from a soda machine at the store. Because the store managers were concerned about prior thefts and suspected Emery, the machine contained fifty one-dollar bills, the serial numbers of which had been recorded. In addition, Emery's movements and her removal of the cash from the machine were observed by agents of the store. When Emery was confronted, she removed money from her drawer and conceded that she had taken it from the soda machine. The bills with the recorded serial numbers were included in the $84 surrendered by Emery. Her defense was that she had removed the money from the machine because the bills had jammed it. She testified that she did not intend to retain the money, but was waiting to turn it over to the appropriate store personnel.
Emery was tried in the Lincoln Park Municipal Court and found guilty.*fn1 She appealed to the Law Division, which conducted a trial de novo on the record on January 28, 2011. Emery was again convicted, although the judge stated that he was "troubled" and that there had been an "injustice." This appeal followed.
Emery raises the following issues on appeal:
POINT I: THE STATE'S WITNESSES CONFLICT WITH EACH OTHER AND NEED NOT BE ADOPTED AS CREDIBLE; THIS SHOWS INNOCENCE NOT GUILT.
POINT II: AT THE END OF THE STATE'S CASE, THE DEFENDANT'S MOTION TO DISMISS WAS MISHANDLED.
POINT III: UNDER THE DEFINITION OF "THEFT," A CRIME WAS NOT COMMITTED IN THIS CASE.
Our role in an appeal such as this one is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). The Law Division determination is de novo on the record from the municipal court, Rule 3:23-8(a), but the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Our review of the record reveals that the Law Division judge applied the wrong standard in deciding this case. In rendering his decision, he stated: "And I -- I cannot, although I want to, I cannot in good faith and good -- and based upon the law, I cannot second guess [the judge's] findings. He made these credibility findings. I'm bound by those credibility findings. I have to defer to those findings." (Emphasis added). Although the Law Division judge is required to give "due" deference to the municipal judge's findings of fact, he is not "bound" by them, as the judge stated in rendering his decision.
In State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000) (emphasis added), we explained the difference between the standard applied by the Law Division in a de novo municipal appeal and the standard we ...