On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Appeal No. 44-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
Defendant John W. Jayne, III, appeals from a March 11, 2011 judgment of the Law Division, after its de novo review of the municipal court record, forfeiting his dog Pretty Penny to the Cumberland County Society for the Prevention of Cruelty to Animals (SPCA). We affirm.
By way of background, there were at least thirty-three separate municipal complaints filed against defendant, a Vineland resident, between March 2007 and September 2009, including charges that certain dogs in defendant's possession were potentially dangerous. The earliest complaints were resolved against defendant following an August 21, 2008 municipal court hearing, which resulted in a declaration of "potentially dangerous" within the meaning of N.J.S.A. 4:19-23, and the establishment of conditions for defendant's retention of the dogs under N.J.S.A. 4:19-24.
Thereafter eight separate dog-related summonses were issued against defendant stemming from an April 14, 2009 incident wherein a young boy was bitten in the face by a dog allegedly kept by defendant. These charges were all consolidated in a December 22, 2009 municipal court hearing. At issue were whether certain dogs, including Pretty Penny, were "potentially dangerous." The matter was resolved by agreement between the parties - both represented by counsel - wherein two dogs were forfeited and three others were allowed to return to defendant's home under strict conditions and a schedule of compliance set forth in the court's December 22, 2009 order. Among other things, defendant was required to erect a six-foot fence enclosing his rear yard. The order also provided that failure to comply with these conditions would result in the dogs' forfeiture under N.J.S.A. 4:19-29. Defendant never appealed this order.
A subsequent hearing before the municipal court on February 18, 2010, to determine defendant's compliance with the December 22, 2009 order, found inadequate fencing. As a result, instead of forfeiting the dogs as provided in the December 22, 2009 order, and to spare their lives, the court ordered defendant to have the three dogs, including Pretty Penny, microchipped by February 22, 2010, and removed from the State within fourteen days. The court further ordered that if these terms were not complied with, the dogs in question would be subject to surrender, confiscation, and forfeiture. The court also revoked the defendant's privilege to license a dog in the City of Vineland. Defendant failed to appeal the February 18, 2010 order as well.
On August 17, 2010, when responding to a complaint from the Millville Animal Control Officer, a representative of the Cumberland County SPCA discovered Pretty Penny at a Millville, New Jersey residence. The identity of Pretty Penny was confirmed by a reading from the microchip. At the August 27, 2010 order to show cause hearing in the municipal court, initiated by the State, the defendant admitted that he did not remove Pretty Penny from the State, and that she was one of the dogs found in the adjoining town of Millville. He also confirmed that Pretty Penny was one of the dogs he was required to have microchipped. At the subsequent municipal court hearing on September 1, 2010, Diane Starn, the Animal Control Officer for the City of Vineland, confirmed that Pretty Penny was one of the dogs subject to the court's February 18, 2010 order, and was presently being held by the SPCA. Based on the evidence, the municipal court judge found defendant to be in violation of the February 18, 2010 order and, by order of September 1, 2010, directed that Pretty Penny be forfeited to the SPCA.
Defendant filed a de novo appeal from the forfeiture order in the Law Division. R. 3:23-8(a). Following a hearing, the court found defendant to have violated the February 18, 2010 order and therefore ordered Pretty Penny to be forfeited to the SPCA. The court reasoned:
I find that it was acknowledged that the defendant had failed to meet the requirements of the December order, had failed to obtain the approval of the City of Vineland License and Inspection Department regarding the fence. Therefore when the order was entered in February requiring the microchip and the removal of the animals, that was a valid exercise of authority by the municipal judge at that time. I believe he went out of his way to try to spare the life of the dogs. I believe there was an argument that he was a dog lover. I can indicate [to] you that I am also[,] but at some point the legal requirements must be met. They were not met. There could be no misunderstanding based on a reading of the order of your attorney's acknowledgement and of the transcripts that I have reviewed.
Therefore the February order of 2010 simply enforced the provisions that had been agreed to. There was failure to comply and therefore I am denying the appeal of the order of September 1st, 2010. Pretty Penny is to be forfeited to the Cumberland County SPCA for the defendant's failure to comply with the prior court order's [sic] of the municipal court.
On appeal, defendant essentially argues there is insufficient evidence to support the Law Division's forfeiture order and that he was rendered ineffective assistance of counsel below. We disagree.
The function of the Law Division on an appeal from the municipal court is not to search the record for error by the municipal court, or to decide if there was sufficient credible evidence to support the municipal court judgment, but to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make his or her own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)). In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely, to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, ...