STATE OF NEW JERSEY v. SHEILA PETIT-JOHN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6302-06T46302-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHEILA PETIT-JOHN,

Defendant-Appellant.

_________________________________

 

Submitted July 14, 2009 - Decided

Before Judges Grall and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2006-070.

Kevin C. Watkins, attorney for appellant.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Jennifer Fetterman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant was convicted of shoplifting, N.J.S.A. 2C:20-11b(2). Defendant appeals; we affirm the conviction, but remand to the Law Division for re-sentencing.

On appeal, defendant argues:

POINT I.

THE SUPERIOR COURT FAILED TO PROPERLY SUPPLEMENT THE TRIAL COURT RECORD AND THEREBY DID NOT CONSIDER IMPORTANT EXCULPATORY EVIDENCE.

POINT II.

THE TRIAL COURT FAILED TO CONSIDER EVIDENCE WHICH REBUTTED STATUTORY PRESUMPTION AGAINST DEFENDANT.

POINT III.

THE JUDGMENT OF CONVICTION OF THE DEFENDANT IS AGAINST THE WEIGHT OF EVIDENCE AND SUSTAINING THE SAME WOULD BE A MISCARRIAGE OF JUSTICE.

On November 22, 2003, Macy's department store Detective Brooklyn Oliver charged defendant with shoplifting clothes and other items of personalty from Macy's Millburn store, after observing defendant and two other accomplices attempt to leave the store without paying for the items. Specifically, Oliver observed the three individuals remove price tickets and security sensors from the clothing before placing the merchandise in either defendant's purse or a shopping bag that defendant held open to allow the merchandise to be hidden. On stopping defendant and her cohorts outside of the store's entranceway, Oliver found store merchandise in defendant's purse and in the shopping bag she carried.

On that day, after defendant identified herself as Natasha Charles, she was charged with the indictable offense of shoplifting and released. The Essex County Prosecutor downgraded the charge to a disorderly persons offense. However, defendant failed to appear for trial in the municipal court. On March 28, 2006, after defendant was apprehended, she was charged by the Millburn Township Police Department with the disorderly persons offense of hindering her own apprehension, N.J.S.A. 2C:29-3b(4).

The matter was tried in the Millburn Township Municipal Court. On September 12, 2006, the court found defendant guilty of the shoplifting and hindering apprehension charges. On the conviction for hindering apprehension, the court imposed a $1,000 fine on defendant, together with appropriate penalties and assessments. On the conviction for shoplifting, the court sentenced defendant to ten hours of community service, a $500 fine, and restitution in the amount of $281. The court also imposed all appropriate fines and penalties. Defendant appealed.

On March 28, 2007, the Law Division conducted a trial de novo on the record, after which it reserved decision. On June 26, 2007, the Law Division issued a written decision, finding defendant not guilty on the charge of hindering apprehension, but guilty on the charge of shoplifting. In so doing, the court stated:

The [c]ourt agrees with the [M]unicipal [C]ourt's assessment of credibility, and also finds that the State had proven beyond a reasonable doubt that the evidence from the record supports a finding that [d]efendant committed the offense of shoplifting. Because the findings are supported by substantial credible evidence, the [c]ourt affirms [d]efendant's shoplifting conviction.

On the same day, the court entered an order affirming the conviction for shoplifting, impliedly affirming the sentence imposed by the Municipal Court thereon.

Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . . ." Ibid.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient[,] credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] should appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Law Division incorrectly expressed its determination as that of "affirming" the decision of the Municipal Court, whereas that court's function on a trial de novo is to make its own findings of fact and determination of guilt. Nonetheless, the record contains overwhelming evidence of defendant's guilt. However, the same cannot be said as to the Law Division implicitly affirming the Municipal Court's sentence. Pursuant to Rule 3:23-8(e), "[w]hen a Law Division judge conducts a trial de novo and finds a defendant guilty[,] the sentence imposed by the [M]unicipal [C]ourt may not be affirmed. Rather, the judge must 'exercise . . . independent judgment . . . in the matter of sentence.'" State v. Russo, 328 N.J. Super. 181, 186 n.3 (App. Div.) (quoting State v. States, 44 N.J. 285, 293 (1965)), certif. denied, 165 N.J. 134 (2000).

 
Accordingly, we affirm the conviction and remand for re-sentencing.

Although the order appealed from references this charge as having been made under N.J.S.A. 2C:29-3(7), the complaint summons indicates that the charge was made under N.J.S.A. 2C:29-3b(4).

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A-6302-06T4

August 25, 2009