STATE OF NEW JERSEY v. LIVIA PROCHNOW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2000-08T42000-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LIVIA PROCHNOW,

Defendant-Appellant.

_________________________________________

 

Submitted August 12, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-16-08.

Rem Zeller Law Group, attorneys for appellant (Scott Gorman, of counsel and on the brief).

Fierro, Fierro & Izzard, attorneys for respondent (Mark Peter Fierro, on the brief).

PER CURIAM

Following separate trials in the Municipal Court of Edgewater, Livia Prochnow was convicted of two counts of a violation of Edgewater Ordinance Number 1147-99, codified at 187.1 and titled "Feeding of Animals Prohibited." The municipal court judge imposed a $2,006 fine and $33 court costs on each conviction. The sentence was stayed pending appeal to the Law Division.

Prochnow appealed. The Law Division conducted a trial de novo on the record developed in the municipal court. Judge Donald R. Venezia found Prochnow guilty of the same charges and imposed the same penalties. The judge stayed the sentences pending disposition of this appeal.

The proofs can be summarized as follows. On May 26, 2008, Prochnow was walking in the River Walkway, a public recreation area in Edgewater alongside the Hudson River. David Raindorf, who lives in a townhouse abutting the River Walkway, saw Prochnow feeding corn kernels to about fifteen geese in the area of the River Walkway. Raindorf was upset about the frequent presence of geese "massing next to [his] house." Raindorf told Prochnow to please stop feeding the geese. According to Raindorf, Prochnow answered in coarse language that she would not stop feeding the geese and that Raindorf should be concerned about feral cats, who attacked the geese. She also told him that if he "did not like it he could call a cop."

Raindorf contacted the Edgewater Police Department and left a message. Subsequently, Raindorf complained to police that Prochnow was feeding the geese. As a result, Edgewater Summons Number 0213-SC-0003698 was issued charging Prochnow with violating the Geese Ordinance.

On June 25, 2008, Helen Ciccarelli, an Edgewater Code Official, was riding her bicycle in the River Walkway in Edgewater. She saw Prochnow surrounded by more than twenty-five geese. Prochnow was feeding the geese. Specifically, Prochnow was taking greenish-yellowish seeds from her pocket and feeding the geese.

As a result, Ciccarelli signed Edgewater Summons Number SC-2008-003881, alleging a violation of the Geese Ordinance. Prochnow denied feeding the geese. She acknowledged that she has been visiting the geese in this area for about eighteen years. She has become acquainted with three generations of the birds. As a result of this longstanding relationship, the birds recognize her. They come close to her without her feeding them. Indeed, Prochnow testified that she has never fed the geese during her visits to this area. Frequently, Prochnow will interact with the birds as one would interact with a household pet. She will touch the animals with her hands.

On appeal, Prochnow contends:

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [PROCHNOW] FED GEESE IN VIOLATION OF EDGEWATER ORDINANCE NUMBER 1147-99.

We disagree.

The testimony of Raindorf and Cicarelli, which the judge credited, was that they saw Prochnow feeding the geese. The judge did not believe Prochnow's testimony. Thus, the issue presented is the sufficiency of the State's evidence.

When error in the findings of a judge is alleged, the scope of appellate review is limited. We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proofs as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999). We give due regard to the ability of the factfinder to judge credibility. Id. at 471. The issue therefore in the Appellate Division is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). But like the Law Division, the Appellate Division is not in a good position to judge credibility and should not make new credibility findings. Locurto, supra, 157 N.J. at 470. We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We must defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Here, judged against that standard, the conviction must be affirmed.

Defendant also contends that:

THE PROPORTIONALITY OF THE NATURE OF THE OFFENSE COMMITTED TO THE PENALTIES LEVIED WAS EXCESSIVE AND UNDULY BURDENSOME GIVEN [PROCHNOW'S] LIMITED HISTORY COMMITTING THIS OFFENSE.

We disagree, noting that Prochnow was convicted for the same offense in Edgewater once before. At that time, she was warned by the same municipal court judge, that her conduct in addition to being unlawful, infringed on the rights of River Walkway neighbors. Considering the need to deter a repeat offender, we conclude that the sentence does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

 
The convictions and sentence are affirmed. Prochnow shall pay the fines to the municipal court no later than October 30, 2009.

Affirmed.

The full test is:

No person shall feed geese, fowl or any nondomesticated animals within the Municipal Recreation Area at anytime.

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A-2000-08T4

October 2, 2009