On appeal from Superior Court, Chancery Division, Somerset County.
Approved for Publication March 8, 1995.
Before Judges Petrella, Havey and Cuff. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
This is an appeal by a juvenile, R.V., *fn1 from an adjudication of delinquency for what would have been, if committed by an adult, third degree possession of a weapon (a baseball bat) for an unlawful purpose (N.J.S.A. 2C:39-4d), and second degree aggravated assault (N.J.S.A. 2C:12-1b(1)).
On appeal, the juvenile argues:
I. The adjudication of delinquency must be reversed as the judgment of the court was against the weight of the evidence. (Not raised below).
II. The summary imposition of restitution without a hearing was illegal and the amount of restitution, $2,688.16, was excessive.
Briefly stated, the events which were the subject of the delinquency complaints occurred in the evening of August 7, 1992 when R.V. went back to a Dairy Queen in Manville with a juvenile E.M., and some other friends to get even for an earlier pushing match which did not involve the victim. The victim who was present during the earlier scuffle at the Dairy Queen was hit in the head and other parts of his body with a baseball bat by a person identified that evening as R.V., resulting in the victim sustaining a broken skull, a broken jaw and other injuries, all of which required his hospitalization.
The police obtained taped statements from various witnesses identifying R.V. as the wielder of the bat, and as the brother of the juvenile against whom the charges were not sustained. At the juvenile hearing some of the juvenile witnesses who had given statements to the police either recanted, were forgetful, or evasive. The Judge found credible the statements made by the witnesses soon after the event, and disbelieved their contrary or conflicting testimony at the juvenile hearing.
We note initially that the argument that the verdict was against the weight of the evidence is not the proper standard in anon-jury case. The standard is whether there is sufficient credible evidence in the record to support the Judge's determination. See State In the Interest of J.R., 165 N.J. Super. 346, 350, 398 A.2d 150 (App. Div. 1979). The weight of the evidence argument only applies to jury trials. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406, 568 A.2d 94 (App. Div. 1989); see R. 3:20-1 and R. 5:1-1. Moreover, no weight of the evidence argument was ever raised below. Hence, if that standard applied the argument would be procedurally barred absent a clear showing that there has been a miscarriage of Justice. State v. Ross, 249 N.J. Super. 246, 253, 592 A.2d 291 (App. Div. 1991); see R. 2:10-2 and R. 2:10-1.
Here, the Judge sitting on the juvenile proceeding found that the statements given to the police shortly after the incident were credible. Those statements or portions of them were in evidence in the juvenile proceeding. The Judge could properly reject as incredible the testimony of the witnesses at trial which was inconsistent with their prior statements.
We turn next to R.V.'s contention that imposition of restitution in the amount of $2,688.16, the unchallenged amount of the victim's medical bills, was not appropriate. The issue was not raised below, and could be considered waived. There was no objection to the amount of restitution at the Disposition hearing and there is no doubt that the court had the authority to impose restitution. N.J.S.A. 2C:43-3. However, it is true that no hearing was held with respect to how this restitution would be paid, how the payment would impact on the then sixteen-year old juvenile, or his ability to pay and prospects for future employment. See N.J.S.A. 2C:44-2b(2), c(1) and (2).
As we view it, the question of restitution in criminal and juvenile proceedings need not hinge exclusively on ability to pay, if the amount of restitution ordered is otherwise appropriate. Where the court controls the victim's enforcement of restitution, and restitution is not an absolute condition of probation, restitution may be ordered even in the absence of present means to pay. See N.J.S.A. 2C:44-2d and 2C:46-2c. This is not to say, however, thatan impecunious defendant or juvenile can be made to pay what he does not have. Indeed, as recognized by our case law, such a principle would be ...