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State ex rel R. S.

August 22, 2007

STATE OF NEW JERSEY IN THE INTEREST OF R.S., JUVENILE-APPELLANT.


On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. FJ-08-406-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 14, 2007

Before Judges S.L. Reisner and Lyons.

Appellant, R.S., appeals from an order entered April 5, 2006 adjudicating him to be delinquent as an accomplice to the commission of a simple assault pursuant to N.J.S.A. 2C:2-6 and 2C:12-1a. R.S. also appeals from an order entered May 10, 2006 requiring him to pay restitution in the amount of $538 with credit to be received against such sum in the event one of the co-defendants makes restitution payments. We affirm.

The pertinent facts and procedural history are as follows. At about 10:00 p.m. on July 30, 2005, two teenagers, A.B. and C.D., were walking down the street on their way to visit another friend.*fn1 They had not gotten far when they encountered a group of five local teenagers walking toward them, R.S., L.P., G.T., J.M. and S.R. There was a prior history between L.P. and A.B., one of the teenagers walking down the street. The other teenager, C.D., who was aware of L.P.'s reputation, asked R.S. whether someone was going to get beaten up. R.S. replied that it was possible and that C.D. should leave. C.D. quickly walked back, A.B. did not. L.P. ordered A.B. to turn over to him anything he had in his pockets. A.B. refused and was knocked to the ground. L.P. kicked him in the head, grabbed his chain necklace, sat on him, and then began taking items out of his pockets as A.B. screamed for help. L.P. directed G.T., J.M., S.R. and R.S. to help him, by holding the victim's arms and keeping him quiet. No one complied with this, but they encircled the victim where he lay on the ground and several of them, according to A.B., kicked him in the head, back and stomach.

L.P. took A.B.'s cigarettes, two packs of cigars and the money he had in his wallet. The five boys then dispersed.

C.D., who had gone home, called the victim's parents who then began to track down the assailants. Police arrived and began an investigation. A.B. sustained injuries to his eye, neck and back and, at the time of trial, was still receiving treatment for his injuries.

Soon thereafter, a detective interviewed L.P., G.T., J.M., S.R. and R.S. who all gave sworn statements. G.T stated that after A.B. said he would call the police during the attack, everyone started hitting him. Each of the other three boys denied that they themselves had assaulted A.B., but said the co-defendants had kicked him.

R.S. was charged in Gloucester County Juvenile Complaint No. FJ-08-406-06 with offenses that, if committed by an adult, would have constituted robbery (N.J.S.A. 2C:15-1a), second-degree aggravated assault (N.J.S.A. 2C:12-1b), conspiracy to commit robbery (N.J.S.A. 2C:5-2a), conspiracy to commit aggravated assault (N.J.S.A. 2C:5-2a), and endangering an injured victim (N.J.S.A. 2C:12-1.2a).

L.P., who was one of the five co-defendants, entered a guilty plea in December 2005. The four remaining co-defendants were tried in March 2006. At the trial, A.B. testified that R.S. had kicked him in the face, G.T. had kicked him in the head, and J.M. had kicked him in the back, but that S.R. had been standing a few feet away and had not really been involved in the assault.

Counsel for G.T. objected when A.B. testified that some of the other defendants also struck him, stating that the testimony was inconsistent with the discovery that was earlier provided. The other counsel joined in the objection. The court then reviewed the discovery that was earlier provided which, in particular, included a memorandum from a victim witness counselor who had interviewed A.B. by telephone and spoke to him once in the office prior to trial. A.B. testified that he had earlier told representatives of the prosecutor's office exactly which individuals had struck him. The memorandum, however, that memoralized this conversation (which is not included in the record provided to us) noted, according to the court, that "other boys were trying to grab [R.S.] and punch and kick him."

After an extended voir dire of the victim witness counselor and arguments by all counsel, the court, in response to the objection and a request for a new trial, found that it could not determine that the prosecutor or his staff were incredible, and that while the summary of the interview was not as detailed as it should have been, it did ...


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