On appeal from the Juvenile and Domestic Relations Court, Bergen County.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D., Retired (temporarily assigned).
The juvenile appeals from a finding of delinquency based on two offenses: assault with "an offensive weapon" (his dog) within N.J.S.A. 2A:90-3, and malicious damage. He contends: (1) it was plain error as a matter of law and on the facts of record to hold that his dog was an offensive weapon within the intent of the statute; (2) there was insufficient evidence in the record to uphold the determination that he had committed malicious damage. We affirm.
There was sufficient evidence to uphold the following findings. One afternoon Dominic Sardone took his six-year-old daughter and his German shepherd for a walk in a park near their home. The child began riding her bicycle on the basketball court while the dog ran into the nearby woods. After a while three boys, one of them the juvenile, entered the park with the juvenile's dog, Rusty. The boys and the dog sat on some bleachers about 15' to 20' away from the basketball court.
The child ran back to her father, telling him that she was "scared." He put his arms around her and said she should not worry. As he did that he heard the juvenile say, "Sic'er. Sic'er."
Rusty got up, ran toward Sardone and the child, showed his teeth, growled and began "stalking," that is, walking slowly toward the two people. He stopped about 10' away from Sardone.
Sardone called his own dog out of the woods and, never taking his eyes off Rusty, put his dog's leash on and told his daughter to go home. As he began to leave the park, he heard the juvenile say, "sic'im, sic'im." Rusty, who had been lying still, got up, showed his teeth, growled, snarled and came toward Sardone again. Sardone kept backing away until he and his dog were out of the park.
The statute alleged to have been violated, N.J.S.A. 2A:90-3, provides:
Any person who willfully or maliciously assaults another with an offensive weapon or instrument * * * is guilty of a high misdemeanor.
We know of no authority in this State for the contention advanced by the juvenile that in order for a weapon to come within the purview of that statute it must be designed to inflict death or bodily harm or, because of the manner in which it is used, be likely to produce death or great bodily harm.
In State v. Drayton , 114 N.J. Super. 490 (App. Div. 1971), defendant was charged under this statute. He had pulled a gun, put it to his victim's chest and threatened to kill him. This court held that it was not necessary for the State to prove that the gun was loaded. It was only essential to show that the ordinary victim in such circumstances would have had a well-founded fear of bodily harm or death.
In State v. Jones , 160 N.J. Super. 146 (App. Div. 1978), we upheld a conviction for assault with an offensive weapon where the defendant used a starter's pistol. Clearly such an instrument was neither designed to inflict harm nor was it, in ...