NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6302-06T4
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.
August 25, 2009
A-6302-06T4
2
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.
A-6302-06T4
3
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).1
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.
1
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).
A-6302-06T4
4
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
A-6302-06T4
5
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).
A-6302-06T4
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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.
