                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3685-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOAO V. RIBEIRO,

     Defendant-Appellant.
_________________________

                    Submitted April 8, 2019 – Decided May 10, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Municipal Appeal No.
                    35-17.

                    Glen L. Schemanski, attorney for appellant.

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a trial de novo in the Law Division, defendant Joao Ribeiro was

convicted of the disorderly persons offense of receiving stolen property, namely,

an iPhone 6s, N.J.S.A. 2C:20-7(a). The charge stemmed from allegations that

when defendant exchanged an iPhone 6s for $20 at an ECO ATM, 1 a crime

database reported a serial match for the iPhone, which had been reported stolen

from a high school gym approximately nine months earlier.

      During the municipal court trial, although the investigating officer did not

interview the victim or defendant, he testified that the iPhone was reportedly

valued at $700. In finding defendant guilty of receiving stolen property, both

the municipal court and the Law Division judge determined that because

defendant exchanged the $700 iPhone for only $20, the State proved beyond a

reasonable doubt that defendant believed the iPhone had probably been stolen

at the time he received it to satisfy the requisite elements of the offense.2


1
  According to defendant's merits brief, "the [ECO ATM] offers an automated
and environmentally friendly option to recycle cell phones and small electronics
for cash."
2
  "The crime of receiving stolen property . . . has three elements: (1) defendant
knowingly received movable property of another; (2) the property was stolen;
and (3) defendant either knew the property had been stolen or believed it had
probably been stolen at the time he received it." State v. Tindell, 417 N.J. Super.
530, 549-50 (App. Div. 2011) (footnote omitted).



                                                                            A-3685-17T3
                                         2
      On appeal, defendant raises the following points for our consideration:

            I. THE TRIAL COURT ERRED BY FAILING TO
            GRANT THE MOTION TO DISMISS SINCE THE
            STATE FAILED TO CARRY ITS BURDEN OF
            PRODUCTION AND PERSUASION TO PROVE THE
            ELEMENT OF KNOWLEDGE OR BELIEF THAT
            THE GOODS WERE STOLEN[.]

            II. THE MUNICIPAL COURT LACKED PROPER
            SUBJECT-MATTER JURISDICTION (NOT RAISED
            BELOW)[.]

Because we agree there was no competent evidence that the iPhone was worth

$700, a crucial fact relied upon by the court in finding the State had proven the

requisite elements of receiving stolen property beyond a reasonable doubt, we

reverse.   Additionally, we agree the municipal court lacked subject-matter

jurisdiction, and this jurisdictional defect survived in the Law Division.

      We glean the following facts from the record. On May 16, 2016, the

victim reported to the Delran Township Police Department (DTPD) that her

black iPhone 6s, serial number 353258078332936, was stolen from her son's

backpack in the Delran High School weight lifting room. The serial number of

the stolen iPhone was entered into the National Crime Information Center

(NCIC) database. Over nine months later, on February 17, 2017, defendant

deposited an iPhone matching the serial number of the stolen phone into the

ECO ATM machine located in the Moorestown Mall and received $20 in

                                                                             A-3685-17T3
                                        3
exchange. A digital photograph of defendant taken during the transaction as

well as defendant's driver's license, which was required to complete the

transaction, documented the exchange.

      On April 12, 2017, the Moorestown Police Department (MPD) received a

NCIC hit for the stolen iPhone based on the transaction and notified the DTPD.

DTPD Detective Harry Cassey attempted to contact defendant at his listed

telephone number and address but was unsuccessful. Thereafter, on April 27,

2017, Cassey filed a complaint-summons against defendant in the Moorestown

Township Municipal Court, charging him with receiving stolen property in

connection with the stolen iPhone.          The accompanying preliminary law

enforcement incident report listed the approximate value of the phone as $200.

      At the municipal court trial conducted on November 1, 2017, Cassey, the

State's sole witness, testified that he never obtained a statement from defendant

and was unsure how defendant came into possession of the iPhone. In addition,

Cassey did not take a statement from the victim or the victim's son, but

"believe[d]" that "they reported" the iPhone as valued at $700. Cassey also

testified that he never investigated whether the iPhone had been used between

the date it was reported stolen and defendant's ECO ATM transaction.




                                                                         A-3685-17T3
                                        4
        Following the trial, the municipal court judge denied defendant's motion

to dismiss the charge and found defendant guilty. The judge determined that the

State had proven beyond a reasonable doubt that defendant was properly

identified "as the individual who was in possession of the [stolen iPhone]," and

that "defendant believed that [the iPhone] was probably stolen" based on "the

totality of the circumstances," particularly the fact that defendant was

exchanging a phone valued at $700 for $20.

        The judge explained:

              [D]efendant takes the phone to a kiosk so he does [not]
              have to have an interaction with a human in order to get
              a quick $20 for a $700 phone. If somebody had
              purchased the phone for use, . . . it would be
              unreasonable for someone to take this particular phone
              as identified via the serial number reported . . . it would
              be unreasonable to take a cell phone that you own and
              turn it in for $20 when it is an iPhone 6, which is not
              exactly a very old phone. I . . . know there [is] an
              iPhone 8 that just came out, but [this phone's] history is
              such that it is a significantly valuable phone.

The judge sentenced defendant to one year of probation, imposed the statutory

fines and penalties, and ordered defendant to pay restitution in the amount of

$700.

        At the trial de novo, the Law Division judge acknowledged that he was

required to look at the facts completely anew, but also to "use the record that


                                                                            A-3685-17T3
                                          5
was established in the [municipal] [c]ourt" while giving "[due] regard to the

credibility findings that [the municipal judge] may have made." After reviewing

Cassey's testimony, the judge found defendant guilty. The judge determined

that all three elements of the offense were satisfied because, based on the

photographs taken at the ECO ATM, defendant was in possession of the iPhone,

which had been reported stolen by the victim and entered into the NCIC

database. Further, according to the judge, while the case did not support the

court finding a statutory presumption of knowledge that the phone was stolen ,

pursuant to N.J.S.A. 2C:20-7(b), the court was permitted to draw a reasonable

inference from the circumstances that defendant "either knew that the property

was stolen or believed that it had probably been stolen."

      In that regard, acknowledging that "[m]ere proof that the property was

stolen [was] not sufficient to establish this element[,]" the judge determined "[i]t

[was] unreasonable to find that one who own[ed] a $700[] cell phone would turn

it over for [$20,]" and "[i]t [was] more reasonable to believe the cell phone was

a stolen item and . . . [d]efendant knew or should have known it was stolen when




                                                                            A-3685-17T3
                                         6
he transferred it." The judge entered a memorializing judgment of conviction3

and this appeal followed.

      Our standard of review following a trial de novo in the Law Division "is

limited." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).

"The Law Division judge [is] bound to give 'due, although not necessarily

controlling, regard to the opportunity of a [municipal court judge] to judge the

credibility of the witnesses.'" Ibid. (second alteration in original) (quoting State

v. Johnson, 42 N.J. 146, 157 (1964)). In turn, "[o]ur review is limited to

determining whether there is sufficient credible evidence present in the record

to support the findings of the Law Division judge," ibid., and we will reverse

only if 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." Johnson, 42 N.J. at 162. "This involves consideration of the proofs

as a whole . . . for the question is not simply whether there was enough evidence

to withstand a defense motion at the end of the plaintiff's case or of the entire

case." Ibid. In contrast, "legal conclusions are subject to de novo review." State

v. Kuropchak, 221 N.J. 368, 383 (2015).


3
   Although unclear from the record, it appears the judge imposed the same
sentence as the municipal court judge.


                                                                            A-3685-17T3
                                         7
      Defendant first argues that the court erred in finding him guilty of

receiving stolen property despite the lack of evidence concerning how he came

into possession of the stolen iPhone and conflicting evidence of the phone's

value. The court relied heavily on the fact that defendant sold a $700 iPhone

for $20 in finding that defendant knew the phone was stolen or believed it

probably was stolen. However, there was insufficient credible evidence in the

record to support the judge's finding that the iPhone was valued at $700 . As a

result, there was insufficient credible evidence to establish beyond a reasonable

doubt the third element of receiving stolen property.

      Turning to the jurisdictional issue, the municipal court has jurisdiction

over disorderly persons offenses and other matters not pertinent to this appeal.

N.J.S.A. 2B:12-17.4     Pertinent here, under N.J.S.A. 2C:20-2(b)(4), theft


4
   Pursuant to N.J.S.A. 2B:12-17, municipal courts have jurisdiction over the
following cases:

            a. Violations of county or municipal ordinances;

            b. Violations of the motor vehicle and traffic laws;

            c. Disorderly persons offenses, petty disorderly persons
            offenses and other non-indictable offenses except
            where exclusive jurisdiction is given to the Superior
            Court;



                                                                         A-3685-17T3
                                       8
constitutes a disorderly persons offense if "[t]he amount involved was less than

$200[.]" Theft constitutes a fourth-degree crime "if the amount involved is at

least $200[] but does not exceed $500[,]" N.J.S.A. 2C:20-2(b)(3), and a third-

degree crime if the amount "involved exceeds $500[] but is less than $75,000[,]"

N.J.S.A. 2C:20-2(b)(2). Here, both the municipal and the Law Division judge

made a finding that the value of the iPhone was $700. Thus, both judges found

that defendant had committed an act constituting a crime of the third-degree,

over which the municipal court has no jurisdiction. See N.J.S.A. 2B:12-17.

      In State v. Bernstein, 189 N.J. Super. 212, 216 (App. Div. 1983), we

reversed the defendant's conviction for theft, N.J.S.A. 2C:20-3(a), because "the

municipal court did not have jurisdiction to enter the conviction." There, the

municipal judge found that the value of the stolen property was $499, a fourth-

degree offense over which the municipal court had jurisdiction "only if the




            d. Violations of the fish and game laws;

            e. Proceedings to collect a penalty where jurisdiction is
            granted by statute;

            f. Violations of laws regulating boating; and

            g. Any other proceedings where jurisdiction is granted
            by statute.


                                                                        A-3685-17T3
                                       9
defendant waive[d] indictment and trial by jury in writing and the county

prosecutor consent[ed] in writing. N.J.S.A. 2A:8-22."5 Ibid. "The record

include[d] no such waiver by [the] defendant." Ibid.

      Following the trial de novo in the Law Division, the Law Division judge

determined that the value of the property was less than $200. Ibid. Although

we recognized that "[Rule] 3:23-8(c) provide[d] that an appeal to the Superior

Court from the municipal court operates as a waiver of all defects in the

record[,]" we held that "this general waiver does not go to the subject[-]matter

jurisdiction of the municipal court, at least in the absence of implied consent or

waiver of the jurisdictional defect." Id. at 217. "We therefore conclude[d] that

the jurisdictional defect in the municipal court survived in the Law Div ision"



5
   N.J.S.A. 2A:8-22 has since been replaced by N.J.S.A. 2B:12-18, which
provides:
           A municipal court has jurisdiction over the following
           crimes occurring within the territorial jurisdiction of
           the court, where the person charged waives indictment
           and trial by jury in writing and the county prosecutor
           consents in writing:

            a. Crimes of the fourth[-]degree enumerated in chapters
            17, 18, 20[,] and 21 of Title 2C of the New Jersey
            Statutes; or

            b. Crimes where the term of imprisonment that may be
            imposed does not exceed one year.
                                                                          A-3685-17T3
                                       10
and determined that the judgment of conviction "entered in the Law Division in

the absence of jurisdiction . . . must be reversed." Ibid.

            In reaching our result we recognize[d] that [Rule] 3:23-
            8(d) require[d] that a defense of lack of jurisdiction in
            the court must be raised by motion and determined in
            accordance with [Rule] 3:10. But this rule [did] not
            preclude a dismissal for want of jurisdiction at this
            time. [Rule] 3:10-4 provides that "[t]he court shall
            notice the defense of lack of jurisdiction in the court at
            any time during the pendency of the proceeding except
            during trial." We regard this matter on direct appeal as
            being during the "pendency" of this proceeding.

            [Ibid. (seventh alteration in original).]

      We further noted that

            [i]n reaching this result we do not suggest that if the
            judge had made a finding that the value was less than
            $200 or had made no finding at all as to value, there
            would have been a jurisdictional problem.           Our
            difficulty is that the judge made a finding that
            defendant had committed an act which could not be a
            disorderly persons offense[,] but rather was a fourth[-]
            degree offense.

            [Id. at 218.]

      Likewise, here, by finding that the stolen iPhone 6s had a $700 value, both

judges made a finding that defendant committed an act that constituted a third-

degree crime, rather than a disorderly persons offense.              Because the

jurisdictional defect in the municipal court survived in the Law Division, the


                                                                         A-3685-17T3
                                       11
judgment of conviction "entered in the Law Division in the absence of

jurisdiction . . . must be reversed." Id. at 217.

      The judgment of conviction is reversed.




                                                              A-3685-17T3
                                        12
