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State ex rel D.A.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 30, 2006

STATE OF NEW JERSEY IN THE INTEREST OF D.A.J. (IMPROPERLY DESIGNATED A.D.J.) JUVENILE-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-1097-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2006

Before Judges Kestin and Lihotz.

We again review D.A.J.'s appeal of an adjudication of delinquency for conduct that, if committed by an adult, would constitute receiving stolen property, N.J.S.A. 2C:20-7. In his prior appeal, D.A.J. challenged the trial court's disposition after a bench trial. In State in the Interest of D.A.J. (Improperly designated A.D.J.), No. A-4585-04T4 (App. Div. January 27, 2006), we vacated the adjudication of delinquency and remanded for further fact finding on whether the State proved D.A.J. had possession or control of the stolen vehicle, a necessary element of the offense charged.

On remand, D.A.J. filed a motion to dismiss, bottomed on the claim that the State failed to prove all elements of the offense. The trial court denied D.A.J.'s motion, reciting factual findings in support of the element of possession, and reinstated the adjudication of delinquency and the previously entered disposition.

In the present appeal, D.A.J. argues there is insufficient evidence that he controlled the vehicle, negating a finding of receiving stolen property, and warranting reversal of the trial court's adjudication. We disagree and affirm.

During the bench trial in the Family Part, the evidence disclosed that on September 6, 2005, Kymberly Holland parked her 2000 Volkswagen Passat outside of a friend's house at approximately 12:30 a.m. When she awoke, her car was missing. She immediately reported the vehicle stolen and filed a police report.

That same morning, at approximately 4:30 a.m., uniformed Newark Police Department patrol officers, Antonio Tavares and Angelo Vecchione, were dispatched to the intersection of Van Buren and Clifford Streets on a report of male suspects breaking into vehicles. Upon arrival, Officers Tavares and Vecchione observed D.A.J., Z.R. and N.D. standing outside a Volkswagen Passat, which had been double-parked. As the officers approached, the three male suspects quickly entered the vehicle, the driver accelerated, rammed the police car, and fled, driving the wrong way down a one-way street. With the officers in pursuit, the juvenile's vehicle crashed into parked cars before coming to a halt.

Officer Tavares observed Z.R. exit from the driver's side door. D.A.J. and N.D. exited through the passenger side front window. Neither officer could identify where D.A.J. was seated in the vehicle. After a foot chase, D.A.J., Z.R. and N.D. were apprehended and arrested.

Officers Tavares and Vecchione observed damage to the exterior of the vehicle, as well as the ignition and the driver's side door handle and lock. The car was later proven to be the Volkswagen Passat owned by Holland.

The original adjudication fully set forth facts supporting the allegation that the car was stolen and establishing D.A.J.'s knowledge that it was stolen. On remand, the trial court enumerated only the facts relied upon to support the conclusion that D.A.J. was in possession of the automobile, as required by N.J.S.A. 2C:20-7, including: D.A.J., along with his friends Z.R. and N.D., were observed engaging in highly suspicious activity at 4:30 a.m.; when approached by the police officers, D.A.J., Z.R. and N.D. "immediately terminated the suspicious activity," and "voluntarily" entered the stolen vehicle; Z.R. drove the stolen vehicle into the police car, then continued to flee in an attempt to avoid interception or arrest; when the vehicle was disabled, D.A.J. exited through a window and fled on foot until he was apprehended and arrested. The trial court further concluded:

[F]rom the totality of the circumstances, . . . [D.A.J.], and the other two co-juveniles were on a joint or common mission on the . . . morning of September 6, 2005, i.e., burglarizing or attempting to burglarize or steal . . . the automobile . . . when accosted by Officers Tavares and Vecchione.

The court further finds that the stolen automobile, i.e., the 2000 Volkswagen Passat, was used, possessed and/or controlled by [D.A.J.], in concert with the co-juveniles to canvas the area that evening for potential targets and/or to avoid arrest when observed by the police.

On appeal, D.A.G. argues the State failed to show he was anything more than a short-term passenger in the vehicle. It is clear a defendant's mere presence in or near a stolen vehicle will not create an inference of possession if no other evidence establishes a connection between the defendant and the vehicle.

State v. McCoy, 116 N.J. 293, 300 (1989). Criminal possession must be demonstrated by "the exercise of dominion and control over the item in question," State v. Jackson, 326 N.J. Super. 276, 280 (App. Div. 1999), "accompanied by knowledge of its character." State v. Brown, 80 N.J. 587, 597 (1979).

Proof of possession of stolen property can be actual, that is, the "physical or manual control of it," ibid., or constructive, that is, a reasonable inference from all surrounding circumstances exists that a defendant has knowledge of the object's presence, and intends or has the capacity to exercise control or dominion over it. State v. Schmidt, 110 N.J. 258, 270 (1988) (citations omitted); see also State v. Morrison, 188 N.J. 2, 14-15 (2006). "A defendant's words or conduct, as well as other evidence, may sufficiently substantiate his or her relationship to the stolen property to support an inference of possession." McCoy, supra, 116 N.J. at 302.

Possession of stolen property also may be joint, so that two or more persons jointly may possess the same object, id. at 299-300; Brown, supra, 80 N.J. at 597-98, when they "share actual or constructive knowing possession of" that object. Morrison, supra, 188 N.J. at 14 (citation omitted).

We find sufficient evidence to sustain the adjudication that D.A.J.'s status in the car was not that of an innocent passenger. D.A.J.'s knew the vehicle was stolen because none of the juveniles were of driving age and there was visible indicia, including the popped ignition and the damage to the driver's side door handle and lock. McCoy, supra, 116 N.J. at 302-04; State v. Alexander, 215 N.J. Super. 523, 529 (App. Div. 1987). Additionally, D.A.G. used the vehicle to flee when approached by the police, and after the vehicle could no longer operate, attempted to escape apprehension and arrest, all of which supported the trial judge's conclusion that D.A.J. constructively possessed the automobile as a principal in the joint enterprise. See McCoy, supra, 116 N.J. at 302-03.

Affirmed.

20061030

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