October 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AMY EMERY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 judge to judge the credibility of the witnesses. The reviewing court must give deference to the findings of the trial judge which are substantially influenced by his or her opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy. Johnson, supra, 42 N.J. at 161-62.
[State v. Emery, No. A-2790-10 (App. Div. Aug. 29, 2011) (slip op. at 4-5).]
On remand, the Law Division judge applied the appropriate standard in considering the municipal judge's credibility findings, that is, he gave them deference but understood that he was not bound by them. He reached the following conclusions on de novo review:
The argument below was that there was no permanent deprivation. Therefore there could be no theft. However, the judge disregarded that element. I think that the statute in question was 2C:20-3(a). Which prescribes the unlawful taking or disposition. For violating this . . . the statute provides in pertinent part. "A person is guilty of theft if he unlawfully takes or exercises unlawful control of removable property of another with a purpose to deprive him of the property thereof."
In this case Ms. Emery was an employee at the time, was prohibited from handling cash, admittedly did take cash, did take money out of the machine, and secreted it in an area of her private -- of her office, and did not tell anyone about the money. And consequently when confronted by her supervisor and the officer she admitted to the theft.
Clearly there is no reasonable doubt that I can determine, not withstanding my feeling, that it's an unfortunate situation and an injustice that a woman of . . . her tenure in maturity and . . . having been an employee for over 38 years. . . .
[N]onetheless my feelings have to be put aside in favor of the law. And the law . . . prohibits theft. And that's what happened here. And consequently I am satisfied that the State has sustained the burden of proof beyond a reasonable doubt.
This appeal followed.
Emery raises the following issues on appeal:
POINT I: THE LAW DIVISION AGAIN FAILS TO PROPERLY USE THE CORRECT STANDARD OF REVIEW AND FAILS TO ANALYZE THE STATE'S
SATISFACTION OF EACH OF THE REQUIRED ELEMENTS OF THE OFFENSE. POINT II: THE STATE'S WITNESSES CONFLICT WITH EACH OTHER AND NEED NOT BE ADOPTED AS CREDIBLE; THIS SHOWS INNOCENCE NOT GUILT.
POINT III: AT THE END OF THE STATE'S CASE, THE DEFENDANT'S MOTION TO DISMISS WAS MISHANDLED.
POINT IV: UNDER THE DEFINITION OF "THEFT," A CRIME WAS NOT COMMITTED IN THIS CASE.
Our role in an appeal such as this 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. R. 3:23-8(a). 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." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Although the judge's findings of fact and conclusions of law were not as detailed as they could have been, we are satisfied that they were sufficient. The judge acknowledged that he was not bound by the municipal judge's credibility findings, but that he was required to "give [them] due but not controlling regard," citing State v. Johnson, supra, 42 N.J. at 157, as well as State v. Locurto, 157 N.J. 463 (1999) and State v. Cerefice, 335 N.J. Super. 374 (App. Div. 2000). He then "reiterated the facts" in light of that standard. He found that Emery was the subject of an ongoing investigation by her employer; that "bait money" had been put in the soda machine; that she had been told not to handle money; that she was observed removing money, including the "bait money," from the machine; that she put the money "in her personal drawer, . . . under some paper"; that she did not tell anyone about it at the time; and that she admitted she had taken it when confronted by her supervisor.
N.J.S.A. 2C:20-3(a) defines theft by unlawful taking as follows: "A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." Emery does not deny that she took the money out of the machine and put it in her office drawer. The fact that (1) she did so after having been told not to handle money belonging to the store, (2) she put it in her personal drawer and covered it with paper, and (3) she did not immediately report the problem to her employer, but only produced the money when she was confronted, provided a sufficient factual basis for a finding, beyond a reasonable doubt, that she acted with the required "purpose to deprive."
The statute does not require that Emery actually have left the store with the money.
Emery's remaining arguments are without merit and do not warrant extended discussion in a written opinion. R. 2:11- 3(e)(2). We add only the following.
The fact that the testimony of some witnesses may have been inconsistent or contradictory does not prevent a finder of fact from relying on the testimony of those witnesses. The evidence of guilt in this case was overwhelming.
Because we review the action of the Law Division rather than that of the municipal court, Oliveri, supra, 336 N.J. Super. at 251, we need not consider the issue raised with respect to whether the municipal judge mishandled the motion to dismiss at the end of the State's case. In any event, we are satisfied that the State presented sufficient evidence to withstand a motion for a judgment of acquittal at the end of its case.
Finally, we note Emery's reliance on the judge's statement in delivering his remand decision that he felt that there was "an injustice" involved in the case. We interpret that statement as an expression of the judge's private view that, because Emery had been an employee for thirty-eight years, her employer ought not to have brought criminal charges against her. Despite that personal view, the judge appropriately acknowledged that his "feelings [had] to be put aside in favor of the law" and that "the law prohibits theft." The judge concluded by stating that he was "satisfied that the State has sustained the burden of proof beyond a reasonable doubt."
Our review of the record convinces us that the judge's conclusion in that regard was correct. Consequently, we affirm the conviction on appeal.
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