On appeal from the 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 October 2, 2012
Before Judges Waugh and St. John.
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 affirm.
We discern the following facts and procedural history from the record on appeal.
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 thirty 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. 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."
Emery filed an appeal from the Law Division's decision. We determined that the Law Division judge had applied the wrong standard in considering the case de novo. We explained our reasons as follows:
In rendering his decision, [the Law Division judge] 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 apply in the appellate review of trial court findings:
The difference is that de novo consideration requires the reviewing judge 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 judge the credibility of the witnesses, whereas, this court on appeal does not weigh the evidence anew but merely determines whether the evidence adduced at trial supports the conviction. [State v. Johnson, 42 N.J. 146, 157 (1964)]. Stated another way, this court is governed by the substantial evidence rule while a de novo review contemplates an independent fact-finding function in respect of defendant's guilt or innocence. In other words, the judge in a trial de novo must make his or her own independent findings of fact since his or her function is not the appellate function governed by the substantial evidence rule, but rather an independent fact-finding function in respect of defendant's guilt or innocence. 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). Nevertheless, even on de novo review, the Law Division judge must give due, although not necessarily controlling, regard to the opportunity of the trial ...