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In re State ex rel K.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 3, 2008

STATE OF NEW JERSEY IN THE INTEREST OF K.M.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FJ-07-1624-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 3, 2007

Before Judges A.A. Rodríguez and C.L. Miniman.

This is an appeal from an adjudication of delinquency by a judge of the Family Part predicated upon the judge's finding that the defendant committed an offense equivalent to the adult offenses of third-degree aggravated assault and third-degree conspiracy to commit third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7) and 2C:5-2, respectively. Defendant was sentenced to one year of probation conditioned on no contact with the victim and certain other requirements.

On October 20, 2005, the victim, M.E., a tenth-grade student, left the cafeteria during his lunch break to go to the restroom, which was located down the hall on the left side of the cafeteria. No one was in the restroom when M.E. arrived. While M.E. was washing his hands after using the restroom, he was assaulted from the rear. He turned to defend himself and the assault by a group of juveniles continued. M.E. was hit on his head, face and other places, but could not say how many times he was hit. Other than the juveniles assaulting M.E., no one else was in the restroom during the assault. The assailants left the restroom before the victim.

As the victim emerged from the restroom with his face bleeding, he was met by Police Officer Derrick Moses, who was assigned to the school and who had been summoned by a custodian because of the disturbance. M.E. was moaning and complaining of pain and dizziness. The officer escorted M.E. to the nurse's office and M.E. was then taken to the hospital and diagnosed with a fractured jaw. At the hospital M.E.'s jaw was wired top and bottom.

The school in question has a substantial number of surveillance cameras installed throughout the building. School officials and the police reviewed the surveillance tapes and were able to identify the juveniles who entered the restroom after the victim and departed from it before the victim emerged. Four juveniles were arrested and charged with assault and conspiracy to commit assault. The school promptly prepared for the police a composite tape of the three surveillance cameras showing the hallway between the cafeteria and the bathroom. The original recordings were purged after thirty days as part of the school's regular practice.

None of the assailants were known to the victim, but he recognized three of the four juveniles who had been charged in connection with the assault upon him. He could not testify specifically as to which of those three juveniles actually assaulted him. At trial the Family Part judge dismissed the charges against the one juvenile whom the victim could not identify at all. The remaining juveniles were all adjudicated delinquent.

Defendant raises two issues on appeal:

POINT I

THERE WAS INSUFFICIENT EVIDENCE TO FIND THE DEFENDANT GUILTY OF AGGRAVATED ASSAULT.

A. THERE WAS NO COMPETENT EVIDENCE OF THE ALLEGED VICTIM'S INJURIES. (NOT RAISED BELOW)

B. OTHER THAN THE DEFENDANT'S MERE PRESENCE IN THE MEN'S REST ROOM AT THE TIME OF THE ALLEGED ASSAULT, THERE IS NO EVIDENCE THAT THE DEFENDANT ACTUALLY STRUCK THE ALLEGED VICTIME [SIC] OR THAT [HE] WAS COMPLICIT WITH OTHERS WHO MAY HAVE IN FACT STRUCK THE ALLEGED VICTIM.

POINT II

THE TRIAL COURT ERRED IN ADMITTING THE VIDEO TAPE INTO EVIDENCE IN LIGHT OF THE STATE'S DISCOVERY VIOLATION.

The scope of our review is well established. We must defer to the findings of fact and credibility determinations made by the trial court during a bench trial so long as those findings are supported by substantial, credible evidence in the record as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); State v. Johnson, 42 N.J. 146, 162 (1964). In reviewing the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560, 573 (1979); State v. Reyes, 50 N.J. 454, 459 (1967).

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that K.M.'s arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Michael A.

Petrolle in his pretrial rulings on May 3, 2006, and his final oral opinion delivered on May 22, 2006. The latter findings and conclusions of the judge are supported by substantial, credible evidence in the record. Locurto, supra, 157 N.J. at 471.

We add only the following comments. The evidence offered by the State's witnesses was more than sufficient to support an adjudication of delinquency in connection with this assault. The victim's ability to testify that this defendant actually punched him is not required to find a violation of N.J.S.A. 2C:12-1(b)(7) beyond a reasonable doubt. The tape from the surveillance cameras showed the defendant going into the restroom with the other juveniles after the victim and it then showed defendant with the other assailants leaving the restroom followed shortly thereafter by the victim, who was bleeding from the face. Furthermore, M.E. identified defendant as one of the youths in the group who assaulted him. This evidence is sufficient to find concerted action among the group of juveniles that assaulted the victim. State v. Newell, 152 N.J. Super. 460, 469 (1977) ("presence at the commission of a crime without disapproving or opposing it is evidence which, in connection with other circumstances, permits the inference that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same").

As to the injuries suffered by M.E., defendant complains that there was no competent medical evidence that a significant injury was sustained as required by N.J.S.A. 2C:12-(b)(7). Although expert testimony is required to prove causation and permanency as a general proposition, the fact of an injury can be proven by a lay witness without the aid of expert testimony. N.J.R.E. 602. Here the victim testified that he was punched in the face and head, the officer observed him bleeding from the face, he was taken to the hospital and, by the time he left the hospital, his jaw had been wired shut. Those facts are sufficient to permit an inference of a significant bodily injury. Common sense and human experience teach us that M.E. would not have had his jaw wired top to bottom if he did not have a significant injury.

With respect to defendant's concern about the surveillance tape, the original tapes were erased by the school, not by the prosecution or the police. There is no evidence that the State acted in bad faith, and thus the "failure to preserve potentially useful evidence does not constitute denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed. 2d 281-289 (1998). There is no showing here that the tapes from other surveillance cameras were material to the issue of guilt or punishment; there is no showing of prejudice to the defendant from the destruction of the other tapes; and as mentioned, there is no showing that the government acted in bad faith. State v. Casele, 198 N.J. Super. 462, 470 (App. Div. 1985). As a consequence, we find no due process violation.

Affirmed.

20080103

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