Before Judges Steinberg and Lefelt.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County.
L.W. appeals from an adjudication of delinquency for an act which, if committed by an adult, would have constituted second-degree robbery, N.J.S.A. 2C:15-1. At a disposition hearing, L.W. was placed into the Juvenile Intensive Supervision Program for a maximum period of eighteen months. Appropriate monetary penalties were also imposed. Without retaining jurisdiction, we reverse and remand for further findings of fact and conclusions of law.
According to the State's proofs, on January 25, 1999, the victim, A.V.R., a student at Ferris High School in Jersey City, was leaving school with his girlfriend, K.M., when he heard someone call his name. He looked back to see who had called him and noticed V.J., L.W.'s co- defendant, on his left side, and L.W. and three or four other people on his right. V.J. asked the victim if he had a dollar. The victim told V.J. that he did not have a dollar and kept on walking. The victim then heard V.J. say "cap the shit out of him." At that point, L.W. punched the victim in the mouth. According to the victim, he sustained a black eye, his eye "was broken", his lip was cut, and his teeth were "pushed back." After L.W. struck the victim, V.J. and L.W. continued walking away. On cross-examination, the victim conceded that no one attempted to "go into [his] pockets" or "backpack."
K.M. testified that she heard V.J. ask the victim for a dollar and also heard the victim say he did not have a dollar. K.M. further stated "that V.J. told the others to hit the victim, and they did." She said L.W. was the first one to hit the victim and the others then circled the victim "and they all started to hit him." She said one of them struck her on the right side of her head. After the incident, she testified that L.W., V.J. and the others walked away. *fn1
On this appeal, L.W. raises the following arguments:
POINT I THE JUVENILE'S ADJUDICATION ON THE ROBBERY CHARGE IS CONSTITUTIONALLY DEFICIENT AND MUST BE VACATED BECAUSE THE STATE FAILED TO OFFER PROOF BEYOND A REASONABLE DOUBT THAT THE JUVENILE EITHER COMMITTED A THEFT OR AN ATTEMPTED THEFT AGAINST [A.V.R.]; THEREFORE, THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947) ART. I, PAR. 10.
In finding L.W. guilty, the judge made the following findings:
The [inaudible] fact is not whether the comments with respect to the dollar are properly characterized as a request or a demand or an instruction to produce the dollar, but ... what happened in the totality of all of the circumstances.
I find that there was a request made by [V.J.] for a dollar that - - that when that request was denied by [A.V.R.], [V.J.] directed the others who were present with him and, including [L.W.], to cap [A.V.R.]. That the others, including [L.W.], then proceeded to assault [A.V.R.] to the point where his lip was broken and two of his teeth were pushed in, that he was bleeding. That the inspiration for that assault was clearly to consummate the transfer of the dollar which [A.V.R.] had indicated was not going to be coming forth voluntarily.
That that does make the force and it was used here. Force supplied in the course of a theft even though no theft was eventually consummated. And the intervention of the friend led to [A.V.R.'s] leaving the scene and first going to his house ...