July 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELLEN HEINE, DEFENDANT-APPELLANT
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-031.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2012 -
Before Judges Fuentes and J. N. Harris.
Defendant Ellen Heine appeals from the judgment of the Law Division finding her guilty of violating Township of Montclair Municipal Ordinance § 82-13 (Ordinance § 82-13), prohibiting dogs from running at large without a leash in public areas. Defendant's de novo appeal to the Law Division from the judgment of the Montclair Municipal Court also sought review of two convictions for harboring a potentially vicious and dangerous dog, in violation of N.J.S.A. 4:19-22 and -23, respectively. Although the Law Division reversed these statutory convictions, it did not vacate the kennel cost imposed on defendant in connection with these offenses.
We affirm in part and reverse in part. The Law Division's de novo review finding defendant guilty of permitting her dogs to run without a leash in public areas in violation of Ordinance § 82-13 was well-supported by the record. We also discern no reason to modify the $1000 fine imposed by the court for this offense. We reverse the Law Division's order requiring defendant to pay over $6000 in kennel fees in connection with the "boarding and housing of the dog," who was identified as "Popeye." Because the Law Division dismissed these charges against defendant, she cannot be held liable for the kennel fees. See N.J.S.A. 4:19-26(a).
We derive the following facts from the record developed before the Law Division.
On September 22, 2008, Montclair Animal Control Officers issued Ann Schildknecht a summons for permitting six dogs to run unsupervised and without a leash around the area of her residence on Undercliff Road in Montclair, in violation of Ordinance § 82-13. According to police records, Schildknecht confirmed at the scene that she was the owner of the dogs.
On October 27, 2008, Schildknecht was issued an additional summons for control and custody of a potentially dangerous dog in violation of N.J.S.A. 4:19-23 because it was later reported that one of the dogs, "Popeye," had allegedly bitten a pedestrian back on September 22, 2008. The matter proceeded thereafter in Montclair Municipal Court through a series of adjournments at which Schildknecht appeared at all times represented by private counsel. On April 3, 2009, the municipal prosecutor moved to amend the charges by removing Schildknecht as the named defendant and substituting in her place defendant Ellen Heine.
The Law Division quoted at length the colloquy between Heine and the municipal court judge that formed the basis for the municipal court's decision to grant the State's motion to amend the summons to substitute Heine as the named defendant. In this exchange, Heine acknowledged ownership of the dogs, including "Popeye." Indeed, when asked by the municipal court judge whether she was prepared to assume responsibility for her actions, Heine responded" "Yes, Your Honor, I am."
Heine was subsequently issued a third summons on April 22, 2009, charging her with control and custody of a "potentially vicious dog," in violation of N.J.S.A. 4:19-22. The matter was then tried before the municipal court on October 7, 2009. Based on the testimony of one of the police officers who responded to the report of loose dogs on September 22, 2008, and defendant's earlier admission as to the ownership of the dogs, the municipal court found defendant guilty of violating Ordinance § 82-13. Because the animal control officer who had issued the two summonses for violation of N.J.S.A. 4:19-22 and -23 was, apparently, no longer employed by the health department -- and thus, not available to testify -- the municipal court dismissed these charges.
On October 20, 2009, the municipal court granted the prosecutor's motion to reinstate the chares under N.J.S.A. 4:19-22 and -23. Defendant was tried on these charges on April 19, 2010. The municipal court found defendant guilty and imposed a $1000 fine, and court costs. The municipal court also found the dog "Popeye" to be a vicious dog under N.J.S.A. 4:19-22(c), and ordered the dog "be destroyed in a humane and expeditious manner." Ibid. Based on defendant's timely appeal, the destruction of the dog was stayed while the decision was reviewed de novo in the Law Division. Ibid.
The Law Division conducted a thorough, comprehensive de novo review of the voluminous record developed before the municipal court and found defendant guilty of violating municipal ordinance § 82-13. Based on the evidence presented, the court rejected defendant's argument seeking to repudiate her ownership of the dogs. Relying on Rule 7:8-5, the court found defendant not guilty of maintaining a potentially dangerous dog, N.J.S.A. 4:19-23, as well as maintaining a vicious dog under N.J.S.A. 4:19-22(c).
The Law Division imposed the same fines and costs for the violation of municipal ordinance § 82-13, noting that the sentence was "within the range authorized by the governing ordinance." However, despite its not guilty verdict with respect to the statutory violations, the Law Division "decline[d] to adjust the balance owed [by defendant] to the Township [and the kennel operator] in kennel fees accumulated while the matter was pending resolution." The court noted that the delay in adjudicating this case at the municipal court level was caused primarily by the initial confusion as to ownership of the dogs and the "number and variety of pre-trial motions and interlocutory appeals filed [by defendant], and the complexity which then resulted because of such extensive history."
Defendant now appeals to this court raising the following arguments.
THERE WERE ERRORS BY ANIMAL CONTROL AND THE HEALTH DEPARTMENT.
POINT TWO PROSECUTOR KENNETH STRAIT EXHIBITED POOR JUDGMENT AND PROSECUTORIAL MISCONDUCT IN THE HANDLING OF THIS CASE, AND IT CONTRIBUTED TO DELAY.
POINT THREE JUDGE BOOKER ERRED IN HANDLING THIS CASE.
POINT FOUR THERE IS PREJUDICE IN THIS CASE.
POINT FIVE THERE WERE PROCEDURES THAT CAUSED DELAY AND WERE OUTSIDE OF THE CONTROL OF THE DEFENDANT.
POINT SIX THE SENTENCE IS INHUMANE AND EXCESSIVE.
We reject defendant's arguments attacking her conviction for violation of Ordinance § 82-13. The record amply supports the court's finding that on September 22, 2008, defendant owned the dogs that were found running loose without a leash around the area of the residence owned by Ann Schildknecht in Montclair. State v. Locurto, 157 N.J. 463, 470 (1999). On this point, we are in full agreement with the Law Division and incorporate by reference the analysis and conclusions of law on this subject contained in the court's memorandum of decision dated August 25, 2010.
On the question of kennel fees, we conclude the court did not have the legal authority to hold defendant liable for the fees charged by the municipality for impounding the dog "Popeye." The court's authority to impose kennel fees is found in the following statute:
If a dog is declared vicious or potentially dangerous, and all appeals pertaining thereto have been exhausted, the owner of the dog shall be liable to the municipality in which the dog is impounded for the costs and expenses of impounding and destroying the dog. The municipality may establish by ordinance a schedule of these costs and expenses. The owner shall incur the expense of impounding the dog in a facility other than the municipal pound, regardless of whether the dog is ultimately found to be vicious or potentially dangerous. [N.J.S.A. 4:19-26(a) (emphasis added).]
Here, because the court dismissed the charges brought by the State under the potentially dangerous dog statute, N.J.S.A. 4:19-23, and the vicious dog statute, N.J.S.A. 4:19-22(c), defendant cannot be held liable for the kennel fees charged for housing and feeding the dog while the case proceeded to trial.
The only other authority for the imposition of fines and penalties is found in the ordinances of Montclair. However, the relevant portions of Montclair Municipal Ordinance § 82-19(B), titled "Violations and Penalties," does not authorize the imposition of kennel fees. That section provides in pertinent part:
Any person who violates any provision of § 82-13 or 82-18 shall, upon conviction thereof, be punished by a fine not exceeding $2,000, imprisonment in the county/municipal jail for a term not exceeding 90 days, or a period of community service not exceeding 90 days, or any combination thereof as determined by the Municipal Court Judge. Each day on which a violation of an ordinance exists shall be considered a separate and distinct violation and shall be subject to imposition of a separate penalty for each day of the violation as the Municipal Court Judge may determine. [Montclair Municipal Ordinance § 82-19(B).]
Defendant was found guilty of violating § 82-13. Under the penalty ordinance, the court had discretion to impose a fine up to $2000. Here, the court imposed a $1000 fine. Nothing in the ordinance authorizes the imposition of kennel fees as a sanction. We express no opinion as to whether a private kennel operator may have legal grounds to recover fees against defendant in a civil action.
Affirmed in part and reversed in part.
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