# State of New Jersey v. Deepa Rao

> New Jersey Superior Court Appellate Division · January 9, 2025

URL: https://www.frixlaw.com/law-library/cases/10777701

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** January 9, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION WITHOUT THE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-0061-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEEPA RAO,

Defendant-Appellant.
_______________________

Argued November 7, 2024 – Decided January 9, 2025

Before Judges Paganelli and Torregrossa-O'Connor.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Municipal Appeal No.
MA-23-11.

Gina A. Calogero argued the cause for appellant.

Christopher R. Lyons, Assistant Prosecutor, argued the
cause for respondent (John P. McDonald, Somerset
County Prosecutor, attorney; Christopher R. Lyons, on
the brief).

PER CURIAM
Defendant Deepa Rao appeals from an August 21, 2023 Law Division

order denying her municipal court appeal after de novo review. Both the

municipal court and Law Division found defendant's dog, Koda, potentially

dangerous under N.J.S.A. 4:19-23 and imposed the required mandatory penalties

and safeguards to mitigate any future attacks, including ordering that Koda

receive a tattoo to reflect his status. We affirm.

I.

A.

The following facts are derived from the records before the Warren

Township Municipal Court and Law Division. Defendant was charged on

September 15, 2022, with possessing a potentially dangerous dog following a

series of events that occurred several days earlier for which the dog was

impounded. Specifically, it is undisputed that on September 12, 2022, Koda, a

German Shepherd, first attacked a delivery person, Kilen Roche, on defendant's

driveway before he ran onto a neighbor's property and fatally attacked their

small dog, Bella. It is also undisputed that Koda previously bit Saifullah Siddiqi,

a serviceperson working on defendant's property, in July 2022 and, in a separate

incident in August 2020, a leashed dog, Coco, as its owner walked Coco in the

street by defendant's residence.

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Roche testified he was making a delivery at defendant's home1 and

encountered two German Shepherds barking at him from the backyard.

Defendant, also in the backyard, directed Roche to leave the box by the garage

door. As he did so, he heard the back gate open and saw Koda, a "fully grown"

dog, unleashed, "charging at [him]." He recounted Koda, bit his thigh causing

"bad" pain and "a bit of a struggle" as defendant "tr[ied] to hit the dog with a

toy and . . . sa[id s]top," before the dog ran away "across the street."

Roche got into his delivery van and proceeded to stop across the street .

He saw "[Koda] with [Bella] in [his] mouth," on the front lawn of her owners',

Kelly and James Palaia's home. James testified that he heard screaming and

went outside to find defendant "kneeling four feet off [his] patio with . . . both

hands bloody, [and] her right hand stopping two German Shepherds ." He

testified Koda "lunged at him" and he observed "blood just spitting out [of Bella]

every time she . . . took a breath." The Palaias both testified that they attempted

to summon medical attention for Bella and applied pressure to Bella's wounds

as she bled profusely while "still breathing." The Palaias rushed Bella to the

animal hospital where she eventually died.

1
Apparently, Roche mistakenly delivered this package, intended for a neighbor,
to defendant's address.
A-0061-23
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Responding police and paramedics cleaned Roche's wound, and Roche

explained that he later went to the hospital in "excruciating pain." Defendant

told police she did not know how Koda got through her backyard gate.

Defendant sustained a puncture wound on her hand and a laceration on her arm

attempting to stop the attack.

Roche described walking with a cane in the aftermath of the incident and

experiencing lingering daily shooting pain and weakness in his injured leg.

Roche explained he no longer "ha[d] the same power in [his] leg as [he] used to

before the incident," and he "used to play soccer" but he did not "believe that

[he] ha[d] the power in [his] leg to play" anymore.

Defendant claimed that Koda "chased [Roche] because . . . [Koda] was

feeling threatened and . . . anxious" and defendant "checked if [Roche] was

okay" before running after Koda. Defendant testified that Bella had a history of

coming onto defendant's property in which she "pee[d] on [defendant's]

mailbox" between five and ten times and "poop[ed] on [defendant's] lawn . . . in

front of Koda," also "nip[ping] Koda's feet" and coming onto defendant's

property "three or four times." She claimed Bella tried to "bite back" during the

attack and defendant injured herself when she "put [her] hand in Koda's mouth

to pry it open."

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The State presented testimony regarding prior incidents involving Koda.

Siddiqi testified that in July 2022, he was providing pest control services at

defendant's property. When no one responded at the door, Siddiqi saw defendant

and then, without defendant's direction, entered the rear yard to begin the

treatment as is protocol. While starting to "spray . . . pesticide[] on the bushes

and the grass," Siddiqi testified he "s[aw] the dogs" "just take off and start

running towards [him]." Siddiqi stated one of the dogs barked at him while the

other barked and "went for [his] . . . right leg[,] and [the dog] started to bite at

it." Siddiqi testified he "scream[ed] under attack" and "ripped [his] leg from

[the dog's] mouth and . . . hopped on the HVAC system and . . . [over] the

fence." Siddiqi recalled defendant was "screaming at [him], telling [him] . . . it

was [his] fault," and she had "no sympathy for [him]."

After the incident, Siddiqi testified he "called Animal Control . . . and the

police" to report what happened and sought medical treatment at New Jersey

Medical Center where he received "rabies shots and one or two stitches."

Siddiqi testified that "[his] ligament was hurting, . . . [his] muscle was hurting,"

and "to [that] day . . . it still hurt[s him]," especially in "bad weather" or if he's

"standing too long."

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Defendant disputed Siddiqi's account and indicated she "yelled at

[Siddiqi] to stop," to prevent him from coming into her yard.

Another witness, Shilpa Solanki, testified she was walking her

"[sixteen-] pound dog" Coco on a leash in August 2020 on the street in front of

defendant's home one morning when Koda, again unleashed, "attac[k]ed [her]

dog from behind." She tried to pull Coco away but Koda "attacked one more

time." Solanki explained she "held [her] dog in [her] hands and [Koda] again

attacked and bit [her] dog." Coco was treated for eight to ten bite marks and

administered a rabies shot. Defendant was apologetic and offered to pay the

costs of Coco's care, which Solanki declined.

Defendant did not dispute that Koda bit Coco twice, but claimed Coco

first growled at Koda.

Defendant and her husband, Sriram Ramanathan, each testified that Koda

was well trained, performed "extremely well" in temperament testing, walked

well on a leash, and was well behaved with other dogs. They also stated Koda

had received training and good behavior certificates.

Defendant presented several witnesses regarding Koda's temperament.

The animal control officer who issued the summonses testified that Koda was

impounded without incident, and she did not recall "anything catastrophic

A-0061-23
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happening." A neighbor testified that she consistently saw defendant and her

husband "playing and training with the dogs." Another witness familiar with

canine behavior testified he observed Koda did not exhibit a prey drive and was

"very good" with other dogs and cats. An animal rescue volunteer acquainted

with defendant and her husband described Koda as "very sweet" and "very well

trained."

B.

The municipal court judge found the State established by clear and

convincing evidence that Koda was potentially dangerous "under the

statute . . . for a number of reasons." The judge recounted the testimony, finding

Roche's testimony "highly credible" and stated "that instance

alone . . . constitute[d] an unprovoked attack." He similarly credited Roche's

description of his lasting pain and physical limitations on movement.

The judge also determined the State proved Koda's attack of Bella was

unprovoked. The judge found the credible testimony of Roche and the Palaias

established that Koda attacked and killed Bella on the Palaias' property and

regarded defendant's testimony that Bella's past conduct provoked Koda as "not

very strong" and "obviously for self-preservation purposes." The judge cited

the testimony of Solanki finding her account credible regarding the earlier

A-0061-23
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"unprovoked" attack on Coco, although recognizing the incident was remote in

time.

Describing Siddiqi's testimony as that of someone with "zero motive to

lie," the judge found he too "was attacked, that he did everything that he could

possibly have done, [and] thought the property was clear." The judge deemed

defendant's testimony regarding the Siddiqi incident not in "any way credible."

Although the judge accepted testimony from defense witnesses to

conclude that Koda "was a trained dog for the most part," the judge found the

future risk too great given the proven repeated incidents of uncontrolled

behavior. The judge concluded that the State met its burden of proof under both

alternative sections of N.J.S.A. 4:19-23(a), requiring proof that Koda was

"potentially dangerous" either because he (1) "caused bodily injury to a person

during an unprovoked attack, and pose[d] a serious threat of serious bodily

injury or death to a person," N.J.S.A. 4:19-23(a)(1), or (2) "caused serious

bodily injury to another domestic animal or killed another domestic animal," and

"(a) pose[d] a serious threat of serious bodily injury or death to a person, or (b)

pose[d] a serious threat of death to another domestic animal," N.J.S.A. 4:19-

23(a)(1) and (2).

A-0061-23
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The judge then imposed the mandatory protective provisions of the

statute, including required signage, fencing, locked enclosures, insurance,

registration, and other identifiers. Those conditions include that defendant have

a "registration number tattooed upon the dog in a prominent location." N.J.S.A.

4:19-24(a)(1).

Defendant requested the judge to "stay [the tattoo requirement] so that

[defendant could] appeal it and . . . that part might be overturned." In requesting

the stay, defense counsel stated only that "it's hard to find a veterinarian [who

would] tattoo [a] dog" and "there [were] other ways of identifying the dog"

including a "microchip." When the court inquired further, counsel indicated that

"tattoo artists" tattoo dogs without anesthesia. The court cited the mandatory

language of the statute stating the court "shall" order the tattoo; thus, the court

imposed the tattoo requirement and denied the request for a stay. The court

ordered a temperament evaluation of the dog before release.

C.

Defendant appealed to the Law Division. Prior to the hearing, the Law

Division granted a stay of the tattoo requirement. No record of that order to

show cause hearing or the court's findings beyond the order was provided on

appeal. Defendant's appendix includes a certification of defendant dated March

A-0061-23
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17, 2023, with no corresponding filing date or accompanying brief, which states

a tattoo is "(a) cruel, (b) irreparable, (c) impossible to implement since . . . no

veterinarian [would] perform the procedure[,] and (d) unnecessary" as Koda

already had a microchip as a "means of identification."

Before the Law Division, defendant asserted that the municipal court

judge erred in finding Koda to be potentially dangerous. Defendant emphasized

the post-disposition temperament assessment found Koda had no reaction to

other dogs in the shelter when tested. Defendant argued: (1) the Law Division

owed no deference to the municipal court judge's flawed credibility

determinations; (2) the municipal court judge failed to consider Koda's

"character, training, [and] condition" and was guided by emotion over the death

of Bella, improperly disregarding years of "provocation" by Bella; (3) the

summons lacked sufficient detail regarding the specific allegations; and (4) the

evidence was insufficient to demonstrate a serious threat of serious bodily injury

or death to a human or domestic animal.

The State argued that the municipal court judge's credibility findings were

rooted in the record as was the finding of potential dangerousness given Koda's

"escalating pattern of violence which eventually reached the level of the death

of a companion animal."

A-0061-23
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The court affirmed the conviction in an August 21, 2023 order and written

decision. The court gave deference to and accepted the municipal court judge's

findings that:

(1) . . . Roche was the most reliable witness[;] (2)
[defendant]'s testimony was disingenuous[;]
(3) . . . Solanki's testimony regarding [C]oco was more
remotely relied upon while still credible[;] (4) the
Pa[]laia[]s' testimony regarding Bella was credible and
provided context[;] (5) the defense demonstrated that
Koda was trained, and certified as a "good boy"[;] and
(6) that despite training and certifications, Koda still
acted in a dangerous manner based on the credible
testimony of victims and eyewitnesses.

The court concurred Koda, unprovoked, caused bodily injury to Roche

and attacked and killed Bella. The court rejected defendant's claims that Bella

had provoked Koda in the past and "d[id] not accept the argument that Koda

believed Roche to be a trespasser," because he was "lawfully present [on

defendant's property] at the time of Koda's attack on him." The court found

Koda also attacked Coco without provocation and "caused bodily injury

to . . . Siddiqi while he was merely doing his job on [defendant]'s property,"

agreeing that "Siddiqi . . . ha[d] zero motive to lie in this matter."

The court also found "ample evidence of bodily injury to the victims from

the incident on September 12[], 2022," citing Roche's treatment by paramedics

and his hospital visits and "continued pain which required the involvement of

A-0061-23
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'pain and bone doctors'" due to "shooting pains" "[o]n a daily basis" and "his left

[leg giving] out on [him] sometimes."

Finally, the Law Division agreed with the municipal court that "there

[wa]s a threat of future bodily injury to people and future serious bodily injury

to domestic animals/pets" based "on the prior acts involving . . . Siddiqi and

Coco."

Defendant filed a timely appeal. 2

II.

Defendant advances the following arguments on appeal:

POINT I

SUMMARY OF STATUTES, STANDARD OF
REVIEW, AND CREDIBILITY

POINT II

THE STATE DID NOT PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT KODA IS
POTENTIALLY DANGEROUS

2
We note that defendant's appendix reflects that defendant subsequently filed
a "motion to vacate" and sought to stay the imposition of the tattoo requirement
pending this appeal. No record has been provided of these proceedings below,
but included in defendant's appendix is a September 21, 2023 order granting the
stay pending the motion to vacate, and a November 16, 2023 order denying the
motion to vacate "as exclusive jurisdiction remains with the Appellate
Division."
A-0061-23
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A. The State did not prove by clear and convincing
evidence that Koda pose[d] a serious threat of serious
bodily injury or death to human[s] or a serious threat of
death to another domestic animal.

B. The State did not prove that Roche's injury was
unprovoked.

C. The State did not prove the elements of [N.J.S.A.]
4:19-23(a)(2).

D. Temperament evidence urges the opposite result of
State v[.] Herold[, No. A-4329-17 (App. Div. Feb. 27,
2019) (slip op. at 11)].

POINT III

THE TATTOO REQUIREMENT IS
UNCONSTITUTIONALLY VAGUE, ANTIQUATED,
IMPOSSIBLE AND UNNECESSARY

Defendant raises the following additional points in her reply brief:

POINT I

NEITHER OF THE LOWER COURTS FOUND A
"SERIOUS THREAT."

A. Mischaracterizations of the courts' decisions below.

POINT II

THE STATE MISREPRESENTED FACTS IN THE
RECORD.

A-0061-23
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POINT III

THE PRIOR INCIDENTS WITH SIDDIQI AND
COCO ARE NOT PROBATIVE OF A "SERIOUS
RISK."

POINT IV

IT IS THE STATE'S BURDEN TO SHOW KODA
POSES A SERIOUS THREAT, NOT THE
DEFENDANT'S BURDEN TO PROVE THE
OPPOSITE.

III.

On appeal after de novo review by the Law Division of a municipal court

decision, this court "consider[s] only the action of the Law Division and not that

of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div.

2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)); see also R. 3:23-8(a)(2).

This court's review is therefore "exceedingly narrow," State v. Locurto, 157 N.J.

463, 470 (1999), and deferential to "the factual findings of the Law Division and

the municipal court," and considers whether the Law Division's de novo factual

findings "could reasonably have been reached on sufficient credible evidence

present in the record," State v. Stas, 212 N.J. 37, 48-49 (2012) (quoting Locurto,

157 N.J. at 471). "When the reviewing court is satisfied that the findings and

result meet this criterion, its task is complete and it should not disturb the

result . . . ." State v. Johnson, 42 N.J. 146, 162 (1964).

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This court "owes 'deference to those findings of the trial judge which are

substantially influenced by his opportunity to hear and see the witnesses and to

have the "feel" of the case, which a reviewing court cannot enjoy.'" Stas, 212

N.J. at 49 (quoting Locurto, 157 N.J. at 471). "However, no such deference is

owed to the Law Division or the municipal court with respect to legal

determinations or conclusions reached on the basis of the facts." Ibid.

IV.

A.

We first address defendant's claims that there was insufficient evidence to

support the finding that Koda is a potentially dangerous dog. N.J.S.A. 4:19-

23(a) provides, in pertinent part, that the trial court

shall declare a dog to be potentially dangerous if it finds
by clear and convincing evidence that the dog:

(1) caused bodily injury to a person during
an unprovoked attack, and poses a serious
threat of serious bodily injury or death to a
person; [or]

(2) caused serious bodily injury to another
domestic animal or killed another domestic
animal, and

(a) poses a serious threat of serious
bodily injury or death to a person, or

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(b) poses a serious threat of death to
another domestic animal.

Here, we conclude there was ample evidence in the record to support the

Law Division's findings that Koda satisfied both alternative statutory bases. See

N.J.S.A. 4:19-23(a)(1) and (2).

First, the record supports the court's finding that Koda, unprovoked,

caused both bodily injury to Roche and killed Bella. As to Roche, it was

undisputed that Roche never entered the gate into the backyard of defendant's

residence and instead placed the package he was delivering, as directed by

defendant, near the garage when Koda "charg[ed]" at Roche and bit him.

Defendant then struck Koda who eventually released his grip on Roche, turning

his attention to Bella.

Bodily injury is defined as "physical pain, illness, or any impairment of

physical condition." N.J.S.A. 2C:11-1(a). The record supports the court's

finding Roche suffered acute "excruciating pain" at the time and in the aftermath

of the attack endured residual injury that lingers today. We are unpersuaded by

defendant's argument that the degree of injury required expert testimony.

We also conclude that the court's finding that Koda killed Bella—who was

on the Palaia's property and did not provoke the aggression—was sufficiently

anchored in the record. Although Bella may have in the past wandered off the

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property, we perceive no reasonable argument on this record that Bella caused

or provoked Koda's fatal attack.

Next, we reject defendant's argument that the record did not sufficiently

support a finding that Koda "poses a serious threat of serious bodily injury or

death to a person," or "a serious threat of death to another domestic animal."

The Law Division found the history of prior attacks of Siddiqi and Coco,

together with the September 2022 attacks, sufficient to satisfy both these

alternative requirements.

Affording appropriate deference to the Law Division's findings we are

satisfied the court's determinations were sufficiently supported by the evidence.

Here, the court reviewed the record and agreed "there is a threat of future bodily

injury to people and future serious bodily injury to domestic animals/pets ."

Again, based on Koda's prior attacks, we are unpersuaded expert opinion

was needed to conclude that a serious future threat of serious bodily injury to

persons existed. See N.J.S.A. 2C:11-1(b) (defining serious bodily injury as

"bodily injury which creates a substantial risk of death[,] or which causes

serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ"). In four separate attacks spanning

less than three years, two humans and one dog were injured, and another dog

A-0061-23
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was killed. Defendant herself was also injured when she attempted to restrain

Koda. This court will not disturb the Law Division's finding by clear and

convincing evidence that the requisite risk of future harm was present.

In addition, the record supports the alternative finding that Koda killed

Bella and posed "a serious threat of death to another domestic animal." The

attacks on both Coco and Bella reflect that Koda attacked those animals and did

not release his grasp until a person intervened. The court did not err in finding

Koda, regardless of training and other periods of controlled behavior, posed a

risk of future similar uncontrolled behavior creating a serious threat of death to

a domestic animal.

Although the Law Division did not use the term "serious" to qualify the

level of threat, that does not alter our conclusion because the serious threat is

readily drawn from the record as discussed in detail in the court's findings. We

similarly disagree with defendant's claim that the court ignored Koda's prior

history of training and his satisfactory temperament assessments. The court

identified and addressed this mitigating information and nevertheless

determined Koda persisted in dangerous conduct threatening and injuring

persons and animals.

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B.

Defendant's constitutional challenge to the tattoo requirement was never

formally raised or explored before either the municipal court judge or the Law

Division beyond the requests for a stay pending appeal. Thus, we conclude both

the municipal court and the Law Division properly relied on the plain language

of the statute in declining to depart from the mandated tattoo provision.

The statute provides in pertinent part:

If the municipal court declares the dog to be potentially
dangerous, it shall issue an order and a schedule for
compliance which, in part:

(a) shall require the owner to comply with
the following conditions:

(1) . . . The owner shall, at his own
expense, have the registration number
tattooed upon the dog in a prominent
location.

[N.J.S.A. 4:19-24(a)(1) (emphases added).]

Clearly, the provision makes this safeguard mandatory, and neither the

municipal court nor the Law Division erred in imposing the condition.

Defendant now asserts on appeal that the statute is "unconstitutionally

vague, antiquated, impossible and unnecessary," but briefed only the vagueness

argument, which we address and reject.

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"Appellate courts apply a de novo standard when determining the

constitutionality of a statute." State v. Dalal, 467 N.J. Super. 261, 280 (App.

Div. 2021) (citing State v. Hemenway, 239 N.J. 111, 125 (2019)). Every statute

contains "a presumption of validity." State v. Lenihan, 219 N.J. 251, 266 (2014).

This deference means "any act of the Legislature will not be ruled void unless

its repugnancy to the Constitution is clear beyond a reasonable doubt." Ibid.

(quoting State v. Muhammed, 145 N.J. 23, 41 (1996)). A law will be upheld

"[e]ven where a statute's constitutionality is 'fairly debatable.'" Ibid. (quoting

Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 227 (1985)).

"A statute 'is void if it is so vague that persons of "common intelligence

must necessarily guess at its meaning and differ as to its application. "'" Id. at

267 (quoting Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 279-80

(1998)). Vagueness in a statute poses a constitutional issue in that it "may create

a denial of due process due to a failure to provide adequate and fair notice or

warning." Ibid.

Here, applying these principles to the sparse record before us related to

the tattoo process, we are not persuaded that the statute's failure to identify the

precise "prominent location" for the tattoo rises to a level of constitutionally

impermissible uncertainty.

A-0061-23
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The remaining challenges regarding "cruelty," "antiquity," and

"impossibility" were not sufficiently raised before the municipal court or Law

Division nor are they properly raised here. Therefore, we will not address them.

From the record, it appears defendant merely asked for a stay of the tattoo

provision at the time of sentencing and later before the Law Division so that

defendant could "appeal it and . . . that part might be overturned." As such,

there is no record before us to review these issues. See State v. Robinson, 200

N.J. 1, 20 (2009) ("[I]t is a well-settled principle that . . . appellate courts will

decline to consider questions or issues not properly presented to the trial court

when an opportunity for such a presentation [wa]s available." (quoting Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))). Accordingly, on this limited

record, we affirm the imposition of the tattoo safeguard.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10777701. Public record. Not legal advice.