September 24, 2007
STATE OF NEW JERSEY IN THE INTEREST OF J.S., A/K/A J.F.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FJ-04-4099-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Lintner and Parrillo.
J.S., also known as J.F., was adjudicated delinquent for an offense which, if committed by an adult, would constitute third-degree aggravated assault, N.J.S.A. 2C:12-1b(2). The adjudication followed a hearing before Judge Hornstine, who imposed a disposition committing J.S. to an indeterminate term of incarceration not to exceed nine months, consecutive to sentences he was serving for a violation of probation, and a drug offense.
The incident occurred during the evening hours of August 27, 2003, while the victim, I.M.,*fn1 was in front of her sister's house in Camden. According to I.M. and her sister, defendant arrived with his sisters, J.T. and B.T., and J.T. and B.T. began hitting I.M. After forcing I.M. to the ground, B.T. continued to kick and punch her. While I.M. was on the ground, J.S. stepped on her hair and struck her on the head with a beer bottle, breaking the bottle. I.M. lost consciousness and woke up the next day in Cooper Hospital where she remained for several days. The hospital record revealed that I.M. was treated by Dr. Hector Seriale for a cranial concussion.*fn2
J.S. presented two witnesses: his mother and a friend, K.O. Both defense witnesses testified that J.S. was not at the scene, I.M. and her sister started the fight, and a light-skinned man with black hair and wearing a T-shirt got out of a small white car and threw a beer bottle, which hit I.M.
Judge Hornstine found the victim and her sister credible and the resulting injury sufficiently severe to meet the "significant bodily injury" standard for third-degree aggravated assault. N.J.S.A. 2C:12-b(2). On appeal, J.S. argues:
THE ADJUDICATION OF DELINQUENCY WAS AGAINST THE WEIGHT OF THE EVIDENCE ADDUCED AT TRIAL.
THE STATE FAILED TO PROVE THE ELEMENTS OF AGGRAVATED ASSAULT AND THE ADJUDICATION OF DELINQUENCY BASED UPON CONDUCT THAT WOULD OTHERWISE CONSTITUTE SAME MUST BE VACATED.
THE COURT ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
We have considered J.S.'s contentions and supporting argument and are satisfied that the issues are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we make the following additional comments. Judge Hornstine accepted the testimony of the victim and her sister as credible. It would be improper for us "to engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). His finding on this record that J.S. was guilty of third-degree aggravated assault, beyond a reasonable doubt, was based upon competent and credible evidence and is unassailable. State v Johnson, 42 N.J. 146, 162 (1964). Certainly, the intentional breaking of a beer bottle on the head of a victim is sufficiently injurious to support a finding of an attempt to cause significant bodily injury regardless of the significance of the actual resulting injury. Likewise, we are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).