STATE OF NEW JERSEY v. JACOB FELDMAN et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1051-05T11051-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACOB FELDMAN and

THERESA FELDMAN,

Defendants-Appellants.

__________________________________________________________

 

Argued October 24, 2006 - Decided November 29, 2006

Before Judges Kestin and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Municipal

Appeal Nos. 4560 and 4561.

Joseph S. Murphy argued the cause for appellants.

Christopher W. Hsieh, Senior Assistant Prosecutor,

argued the cause for respondent (James F. Avigliano,

Passaic County Prosecutor, attorney; Mr. Hsieh,

of counsel and on the brief).

PER CURIAM

Defendants, Jacob Feldman and Theresa Feldman, appeal from their disorderly persons convictions for making their home available to "another person with the purpose that alcoholic beverages will be made available for consumption by, or will be consumed by, persons who are under the legal age for consuming alcoholic beverages" in violation of N.J.S.A. 2C:33-17(b). We affirm.

Defendants present the following arguments for our consideration:

POINT I

THE FAILURE OF THE SUPERIOR COURT LAW DIVISION TO GRANT A PLENARY TRIAL OR A REMAND CONSTITUTED A VIOLATION OF RULE 3:23-8(a); A VIOLATION OF DUE PROCESS RIGHTS UNDER THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AS APPLIED TO THE STATES, THE DUE PROCESS CLAUSE OF THE NEW JERSEY CONSTITUTION, AND THE RIGHT TO CONFRONT WITNESSES AND MOUNT A DEFENSE UNDER BOTH CONSTITUTIONS. (RAISED BELOW)

POINT II

THE CONVICTION SHOULD BE OVERTURNED BECAUSE THE MUNICIPAL COURT HAD NO JURISDICTION TO PROSECUTE THE DEFENDANTS. (RAISED BELOW)

POINT III

THE SUPERIOR COURT CONVICTION SHOULD BE REVERSED BECAUSE NO DEFERENCE SHOULD BE GIVEN TO THE CREDIBILITY FINDINGS BY THE JUDGE OF THE MUNICIPAL COURT AND THE SUPERIOR COURT FINDINGS SANS DEFER[E]NCE ARE NOT REASONABLE OR INDEPENDENT AS IT IS CLEAR FROM THE RECORD THAT ONE COULD NOT FIND THE FELDMAN[]S GUILTY BEYOND A REASONABLE DOUBT[.] (RAISED BELOW)

After reviewing the record and the applicable law, we conclude that defendants' arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We are satisfied that the Law Division's findings of fact are amply supported by sufficient credible evidence, and its conclusions predicated on those findings are legally sound. We therefore affirm substantially for the reasons stated by the Law Division judge in his written decision on October 7, 2005, with only these brief comments.

On Saturday, May 15, 2004, following their daughter's high school junior prom, defendants held a party at their home for their daughter, Rebecca, and approximately thirty of her friends. According to defendants' testimony and the testimony of their daughter and others who attended the party, defendants did not provide or permit any alcoholic beverages at the party and none of the invited guests consumed any alcoholic beverages. That testimony, however, was contradicted by Luis Fernandez, Jacqueline Smerklo, and Patrolwoman Daniella DeHayes. The findings by the municipal court judge included the following:

I heard the testimony of [Luis] Fernandez of 25 Evergreen Avenue, Haskell, New Jersey. He testified that on the date in question, namely, May 16th, he was at a friend's house drinking. He then went to 8 Mountainside Drive at about midnight in the Borough of Ringwood. He said that he was drinking before he went to that residence and he went there because he heard that there was a party being given by Rebecca Feldman. He observed people and bottles of liquor. He testified that he brought three bottles of beer, drank some of the beer at the party, and gave some away at the party.

He testified that he saw a beer ball at the party in the basement. He testified that Rebecca Feldman's mother was at the party. He said that certain people were kicked out of the party. There were people that were not kicked out also and that the people that were kicked out were drinking. And that people that were not kicked out were drinking. He left the party and got into an accident. He testified that he was intoxicated when he got to the party and then had more to drink at the party.

. . . .

. . . Jacqueline Smerklo testified that she attended a party on the date in question at 8 Mountainside Drive. She testified that she was 17 years old. She testified that there were other people at the party and that she was a year older th[a]n most of the other people at the party. She testified that she arrived around midnight. She testified that she stayed for about two hours.

. . . She testified that most of the people were in the basement, she observed people drinking alcohol. Her testimony was that about half the people there were drinking alcohol. She testified that no one was over the age of 21, all were underage. She testified that she saw Mr. Feldman in the basement. . . . and did not know if people were drinking when he was there.

On cross-examination, she could not name people drinking, it was a long time ago. She . . . thought that certain people were thrown out before she had gotten there that were drinking.

With respect to Officer DeHayes, the court stated:

She testified that on May 16th she was on duty, that she responded to an accident at 8 Mountainside Drive in the Borough of Ringwood. She testified that there was a crash in the street . . . . And she observed that a vehicle hit a parked car. The driver was [Luis] Fernandez and he had been at 8 Mountainside Drive.

She testified that she knocked on the door at 8 Mountainside Drive and Mrs. Feldman answered the door. She testified that she asked Mrs. Feldman questions. . . . Mrs. Feldman advised that she was having a party and allowing [the children] to drink in the basement. . . . [T]he officer's testimony was that Mrs. Feldman [said] that she took all car keys so that children could not drive. Her testimony was that Mr. Feldman [said] that he would rather see children drink at his home then somewhere outside.

The municipal court judge concluded that Officer DeHayes's testimony was credible, and he specifically rejected defendants' explanation for collecting the car keys from the children who attended the party:

I do find that based on the testimony of Officer DeHayes, admissions were made by Mr. and Mrs. Feldman that . . . they were allowing their children to drink inside, that they'd rather have them drink there.

I don't buy the story about the keys. Rules were set down, yet the testimony of Mr. Feldman was that everyone voluntarily put the keys in a basket. Yeah, there might have been some problem with the neighbors, but . . . I don't buy the story, I don't find it credible that the reasons the keys were taken was because of noise. I believe the Feldman's were going to allow the children to drink. They were taking their keys so that they wouldn't drive and get hurt.

Municipal court convictions are appealed to the Law Division. R. 3:23; R. 7:13-1; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). Review in the Law Division is de novo on the record, except in limited instances. R. 3:23-8(a). The "function [of the Law Division 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 de novo court must make its "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The Law Division 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 in respect of defendant's guilt or innocence." Ibid.

After a trial de novo on the record, the Law Division judge found defendants guilty of "providing their home to another for the purpose of allowing alcohol to be served to minors in violation of N.J.S.A. 2C:33-17(b)." He set forth detailed findings of fact in a twenty-two page written decision, which included the following:

Here, most of the circumstances are not in dispute. There is no question that the [d]efendants hosted a party for a limited number of their daughter's friends following their junior prom. It is not disputed that a group of young men "crashed" the party as uninvited guests, that the group of uninvited young men had been drinking, and that [d]efendants threw them out as soon as they were alerted of their presence at the party. It is also undisputed that after the party, Luis Fernandez, who was among the group that was thrown out, was involved in a car accident as a result of drinking while intoxicated.

Thus, the only question for this [c]ourt to resolve is whether the [d]efendants provided their home to the invited group of teenagers for a party with the purpose of allowing them to consume alcohol. The record provides conflicting testimony in this regard. Several witnesses, including the [d]efendants, provided testimony denying this was the case. Therefore, this [c]ourt must make credibility determinations that will dictate the outcome of this case. Although both defendants and two of the invited guests testified that none of the invited guests were drinking, "the weight of the evidence is not determined by the number of witnesses testifying on one side as opposed to the number testifying on the other." State v. Haines, 18 N.J. 550, 565 (1955). . . . [T]his [c]ourt is satisfied that the combined credible testimony of DeHayes, Luis Fernandez, and Jacqueline Smerklo is sufficient to prove beyond a reasonable doubt that [d]efendants in fact provided their home to their daughter's teenaged guests following their junior prom for the purpose of consuming alcohol.

Mr. Fernandez testified that he saw invited party guests drinking alcohol in the basement of [d]efendants' home. This testimony was corroborated by Ms. Smerklo, who was an invited guest. Specifically, Ms. Smerklo testified that she saw about one-half of the people at the party drinking alcohol. Additionally, DeHayes testified that the [d]efendants admitted to her that they were letting their daughter's friends drink in the basement, that they would rather the children drink in their home instead of somewhere else, and that they collected the guests' car keys so they could not leave during the night. . . . [T]his [c]ourt finds that the witnesses' testimony that invited guests were drinking, along with the fact that the [d]efendants collected all of the guests' car keys, form sufficient circumstances to infer that [d]efendants had the purpose to allow the teenagers to drink alcohol in their home.

Accordingly, this [c]ourt finds both defendants guilty beyond a reasonable doubt of providing their home to persons under the legal drinking age for the purpose of consuming alcohol in violation of N.J.S.A. 2C:33-17(b).

The scope of our review is limited. When reviewing a de novo trial on the record, we consider only the action of the Law Division and not that of the municipal court. State v. Joas, 34 N.J. 179, 184 (1961). We must determine whether the Law division's findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. Of course, the Law Division's interpretation of the law and the legal consequences that flow from established facts are reviewed independently. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995); see Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999) (stating that "matters of law are subject to a de novo review").

After examining the record in light of the contentions advanced on appeal, we affirm defendants' convictions. The complaints were not defective. See R. 7:2-2(a)(2) (when a law enforcement officer makes a complaint, "[a] summons . . . may be issued by [that] officer . . . without a finding by a judicial officer of probable cause"); see also State v. Fisher, 180 N.J. 462, 470 (2004) ("Our courts generally have been reluctant to view errors in a traffic ticket, complaint, or summons as fatal to the prosecution when the alleged insufficiency did not detract from the intended purpose of the challenged instrument and did not prejudice the rights of the defendant."). The evidentiary rulings by the municipal court judge did not infringe upon defendants' ability to present their defense, nor did they deprive defendants of a fair trial. And there is sufficient credible evidence in the record to establish defendants' guilt beyond a reasonable doubt.

 
Affirmed.

(continued)

(continued)

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A-1051-05T1

November 29, 2006