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State in Interest of L.E.W.

Decided: February 28, 1990.


On appeal from the Superior Court, Chancery Division, Family Part, Essex County.

O'Brien, Havey and Stern. The opinion of the court was delivered by O'Brien, J.A.D.


Defendant L.E.W., a 17 year old, appeals from an adjudication of juvenile delinquency under N.J.S.A. 2A:4A-23b, in that she committed the petty disorderly persons offense of defiant trespass (N.J.S.A. 2C:18-3b(1)). We affirm but remand for a hearing to determine the contents of a statement signed by the complaining witness, Hobie Heymann.

Ms. Heymann and her brother operate a "7-11" franchise at 280 South Livingston Avenue in Livingston. For some time prior to October 6, 1988, the day of L.E.W.'s arrest, they had

been having difficulty with L.E.W., and had told her on numerous occasions she was not permitted to come upon the premises. The issue in this case is whether "the premises" includes the parking lot.

At one point, Ms. Heymann had called the police, and signed a document that apparently granted the police permission to act on her property concerning L.E.W. Ms. Heymann testified she "really didn't read" this document, and that it had been signed "a few days" before October 6, 1988, yet characterized this time as a long time prior to that date.

On October 6, 1988, at 9:44 p.m., Officer Peter Glassman observed L.E.W. in the parking lot of the "7-11" store. For approximately ten minutes he observed her getting in and out of a Cadillac automobile. Ms. Heymann first observed L.E.W. on that date in the parking lot with the police officer. When she went outside, she responded affirmatively when the officer asked her if L.E.W. was the complained of juvenile. The officer had been instructed by his superiors that if L.E.W. was on the "7-11" property he was to remove and possibly arrest her. L.E.W. was subsequently arrested, taken to police headquarters, and charged with juvenile delinquency for having committed defiant trespass.

According to the officer, L.E.W. was hanging out in the parking lot talking with her boyfriend. He said he had driven into the parking lot and observed her actions for approximately ten minutes. He did this because he had been told by his superior that the operator of the "7-11" store ". . . did not wish to have [L.E.W.] on her property." When the officer approached L.E.W. and asked what she was doing, she responded, "nothing." When told she was not allowed "on the property," L.E.W. responded that Ms. Heymann had "told [her] not to be in the store." The officer told L.E.W. that includes all the property.

Testifying on her own behalf, L.E.W. conceded she had been told by Ms. Heymann a few months before October 6, 1988 that

she did not want her in her store. According to L.E.W., she had had oral surgery on the day of her arrest and was in pain. When her boyfriend picked her up they went to the "7-11" to buy cigarettes and Anbesol. She claimed they first pulled into an adjoining parking lot for the bank, and she observed the police car driven by Officer Glassman pull up behind her boyfriend's car. She said she waved because she was acquainted with the auxiliary officer, Mike Prendergast, who was in the police car.*fn1 L.E.W. then asked her boyfriend to go "get the stuff they wanted so they could leave," and he pulled into the "7-11" lot and parked.

At that point, L.E.W. claimed Officer Glassman came over and instructed her to get out of the vehicle and placed her under arrest, stating that "your feet are now on the property." He directed her to put on her shoes and come with him. According to L.E.W., Ms. Heymann drove up in her car as L.E.W. was being arrested and went into the store.

The trial judge found the testimony of Ms. Heymann credible, believable and sincere. He found the version of the event by L.E.W. and her boyfriend unbelievable. Conversely, he found the police officer to be credible. Thus he concluded that the State had borne its burden of proof and sustained the complaint. Since we conclude these findings could reasonably have been reached on sufficient credible evidence present in the record, we are bound by them. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964).

On this appeal, defendant raises the following arguments:

Point I the trial court's ruling that the affirmative defense of being in a public place embodied in N.J.S. 2C:18-3c(2) does not apply to a person charged with a violation of N.J.S. 2C:18-3b(1) was erroneous and therefore the juvenile's adjudication of delinquency must be reversed.

Point II The juvenile is entitled to a new trial because of the state's failure and the trial court's refusal to order

the state to supply defense counsel with a statement signed by the state's chief witness, Hobie Heymann.

Point III The juvenile's adjudication of delinquency must be reversed as the judgment was against the weight of the evidence (not raised below).

N.J.S.A. 2C:18-3 reads in pertinent part as follows:

a. Unlicensed entry of structures. A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any structure, or separately secured or occupied portion thereof. An offense under this subsection is a crime of the fourth degree if ...

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