STATE OF NEW JERSEY v. CHERISUE CUBOL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2436-05T12436-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHERISUE CUBOL,

Defendant-Appellant.

___________________________________

 

Argued February 5, 2007 - Decided March 5, 2007

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Atlantic County,

L-7502-05.

Michael J. Pender argued the cause for

appellant (Targan & Pender, attorneys;

Mr. Pender, on the brief).

Dana A. Citron, Deputy Attorney General,

argued the cause for respondent (Stuart Rabner, Attorney General; Ian Clement, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was convicted in the Atlantic City Municipal Court of violating N.J.S.A. 5:12-119a. The judge imposed the minimum mandatory fine of $500 together with a six month loss of her New Jersey driving privileges and associated fines and penalties. After the conviction, defendant sought to dismiss the charge as a de minimis infraction. See N.J.S.A. 2C:2-11a. While that application was pending before Assignment Judge Valerie Armstrong, defendant appealed the conviction to the Law Division. A Law Division judge heard argument on November 3, 2005, and deferred his decision until after Judge Armstrong disposed of the application to dismiss. She denied that application on December 12, 2005, and, on January 11, 2006, the Law Division judge issued a written opinion that found "[t]he evidence . . . sufficient for the municipal court to convict defendant." Consequently, the judge "AFFIRM[ED] the lower court's decision finding the defendant guilty of violating N.J.S.A. 5:12-119." The judge executed an order on January 11, 2006, that imposed a fine of $500, a six-month loss of driving privileges, and court costs of $30. The order recited that the municipal court conviction is "affirmed." Defendant appeals from both the conviction and the refusal to dismiss the charge as de minimis. We affirm.

Preliminarily, we note that an appeal from the judgment of a court of limited jurisdiction is de novo on the record. R. 3:23-8(a). Accordingly, the Law Division judge was required to make his own factual findings, although deference must be given to the municipal court's credibility determinations. See Pressler, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2007). Rather than remand to allow an application of the proper standard, we have independently reviewed the record and have concluded that, in this case, it would not be possible to reach a contrary conclusion respecting the violation of the statute. Accordingly, no remand is necessary. See R. 2:10-5; Ladenheim v. Klein, 330 N.J. Super. 219, 224 (App. Div. 2000) (noting that a remand is unnecessary when record admits of only one conclusion). The judge's legal conclusions, of course, are reviewed by us de novo. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999).

The facts are relatively simple. The testimony revealed that on May 20, 2005, James Malia, a Table Games Supervisor at the Borgata Casino, saw defendant sitting at a slot machine. He testified that when he saw her "[s]he was playing the slot machines," an impression he received because "[s]he was sitting at the slot machine, [and] the wheels were turning." The State also produced testimony from Ron Repko, a security officer, who testified that defendant showed him a Virginia driver's license identifying her as nineteen years of age. Repko further testified that he "asked her if she knew the legal age to gamble. She told me no. She figured if you could buy a lottery ticket at the age of 18 you could gamble." Finally, the State produced testimony that after defendant had been approached, "another gentleman came over and asked [Malia] what was going on."

Based on that testimony, defendant was found guilty of violating N.J.S.A. 5:12-119a, which provides that: "[n]o person under the age [of twenty-one] shall enter, or wager in, a licensed casino . . .; provided, however, that such a person may enter a casino . . . by way of passage to another room . . . ." On appeal, defendant argues

POINT I.

THE STATE FAILED TO PROVE BEYOND A

REASONABLE DOUBT THAT DEFENDANT

"WAGERED" IN THE CASINO IN VIOLATION

OF N.J.S.A. 5:12-119(a).

POINT II.

N.J.S.A. 5:12-119 IS NOT A STRICT LIABILITY

STATUTE.

POINT III.

DEFENDANT'S IGNORANCE OF THE LAW

CONCERNING UNDERAGE GAMBLING IS A

DEFENSE IN THIS MATTER.

POINT IV.

THE CHARGE VIOLATING N.J.S.A. 5:12-119

MUST BE DISMISSED AS THE CONDUCT IS

DE MINIMIS IN NATURE.

POINT V.

THE PROSECUTION OF DEFENDANT VIOLATES

THE EQUAL PROTECTION CLAUSE.

Our independent review of the record convinces us that none of the arguments raised by defendant justify interference with the orders from which defendant appeals.

The State has argued that the motion for dismissal before Judge Armstrong was untimely, having been made after the municipal court conviction. Indeed, State v. Zahl, 259 N.J. Super. 372, 377 (Law Div. 1992) so holds. We need not determine if Zahl was decided correctly because we are satisfied that Judge Armstrong properly identified the strong public interest implicated by the regulation of casino gaming and properly concluded that defendant's conduct posed a threat to that interest. Accordingly, the judge's finding that the violation was not de minimis was well within her discretion. See State v. Evans, 340 N.J. Super 244, 253 (App. Div. 2001). We agree with both Judge Armstrong's analysis and the result she reached. Consequently, we affirm her refusal to dismiss the complaint as de minimis for the reasons set out by her in her comprehensive written opinion of December 12, 2005.

The proof of the statutory violation was overwhelming. Defendant was found sitting at a slot machine, the wheels of which were turning. This supports a conclusion, beyond any reasonable doubt, that she had operated the machine. Similarly, her presence at the machine required a finding that she was not in transit. Her suggestion that she was watching her grandfather operate the machine, which would not excuse her presence in the casino in any event, is belied by his approaching from some other location to inquire as to "what was going on."

Defendant's principal defense relates to her claim either that she did not know that her age disqualified her from wagering or remaining in the casino or, alternatively, that she affirmatively believed she was legally permitted to do so. Initially, the parties dispute whether N.J.S.A. 5:12-119a requires some mental state of the defendant. The State argues that N.J.S.A. 5:12-119a imposes liability strictly and without regard to defendant's mental state. Defendant asserts that, because the statute neither contains a mental element, nor specifically excludes such an element, N.J.S.A. 2C:2-2c(3) imports a requirement that defendant act "knowingly." We need not decide that question because even if the statute is, for criminal purposes, one that requires a defendant to act knowingly, there is no basis for disturbing the verdict.

"A person acts knowingly with respect to the nature of his conduct . . . if he is aware that his conduct is of that nature . . . . A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result." N.J.S.A. 2C:2-2b(2). The requirement of a knowing action relates to the fact of defendant's conduct, not whether that conduct is criminalized. It requires that defendants must "be aware that [they] performed" the act charged. State v. Overton, 357 N.J. Super. 387, 393 (App. Div.), certif. denied, 177 N.J. 219 (2003). Accordingly, the requirement of "knowing" action may be defeated by a showing that the defendant did not appreciate the action undertaken. For that reason, it is a defense that the act was committed, for example, while defendant was sleepwalking. Id. at 394-95. Here, there is no suggestion that defendant was unaware either that she was sitting in a casino rather than traversing it or that she had operated a slot machine.

Defendant really asserts that she either was unaware of the law prohibiting a nineteen-year-old from gambling or affirmatively believed that people of the age of eighteen could gamble. N.J.S.A. 2C:2-4(a) and (c) deal with those defenses. N.J.S.A. 2C:2-4(a)(1) permits the defense of mistake of law if it "negatives the culpable mental state required to establish the offense." We have previously noted that "subsection (a) does not really create a separate defense; rather it serves to emphasize that a mistake may negate the culpability element required for conviction of an offense." State v. Wickliff, 378 N.J. Super. 328, 334 (App. Div. 2005). In Wickliff, the question was whether a mistake with respect to a right of entry is a defense to a trespass charge which requires knowledge that entry is unauthorized. N.J.S.A. 5:12-119a, however, does not impose any requirement respecting knowledge of a right to gamble. At most, it requires only a knowledge that defendant did gamble. Accordingly, there is no mental state that can be negated by a failure to understand the illegal nature of the act. N.J.S.A. 2C:2-4(a) cannot benefit defendant.

N.J.S.A. 2C:2-4(c) provides: "A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (1) [t]he statute defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged[.]" Defendant was required to prove the defense by clear and convincing evidence. N.J.S.A. 2C:2-4. Defendant appropriately conceded at oral argument that there was no evidence produced relating to whether the statute was "made reasonably available" to her. There is no question, therefore, that she has failed to meet her burden, and N.J.S.A. 2C:2-4c was unavailable to her.

Affirmed.

 

The order incorrectly indicates that it was executed on November 11, 2005.

(continued)

(continued)

9

A-2436-05T1

March 5, 2007