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State ex rel J.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2008

STATE OF NEW JERSEY IN THE INTEREST OF J.P., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FJ-13-06-2625.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008

Before Judges A. A. Rodríguez and C. S. Fisher.

J.P., a fifteen-year-old female student at Keansburg High School, was adjudicated a juvenile delinquent for committing conduct, which if committed by an adult, would constitute two counts of aggravated assault, N.J.S.A. 2C:12-1b(5)(d); one count of simple assault, N.J.S.A. 2C:12-1a; and one count of disorderly conduct, N.J.S.A. 2C:33-2. At a disposition hearing, the judge imposed concurrent probationary terms aggregating eighteen months; twelve hours of community service; attendance at anger management training; mandatory attendance at school with no unexcused absences; compliance with all household rules; and the customary mandatory fees and penalties.

The adjudication was based on the following proofs. At approximately 2:00 p.m. on March 6, 2006, there was a melee in the gym hallway at the high school among three female students: J.P., G.M. and A.V. J.P., a new student at the high school, was taken to the other end of the hallway. One of the school's two vice principals told J.P. to turn off her cell phone. When the vice principal told J.P. that her behavior warranted a suspension from school, J.P. responded by saying, "if I'm going to be suspended I'm going to kill the bitch." J.P. ran down the hallway towards G.M. An altercation ensued between the girls.

Drew Murray, the school security officer, attempted to intervene and was struck twice in the head by J.P. J.P. grabbed G.M.'s hair and pulled her towards the ground. Thomas Normile, the Principal of Keansburg High School, arrived on the scene and attempted to provide assistance by pulling G.M. away from J.P. Before he could do so, he was kicked in the groin by J.P. After regaining his composure, Normile managed to restrain G.M. against a locker. Murray continued to struggle to restrain J.P. and both ended up on the floor.

After J.P. was subdued, the school's Dropout Prevention Counselor, Heather DiBlasi Domalewski, moved her to the attendant's office. J.P. continued to be defiant, flipping over a table, throwing chairs, crying, screaming and kicking. Eventually, Domelewski was able to calm J.P. down. Then, J.P. overheard her mother's angry voice in the hallway. J.P. became agitated again, kneed and kicked Domalewski in the stomach and ran into the hallway towards her mother. The police were called. J.P. was arrested and charged with aggravated assault on Murray and Normile,*fn1 simple assault on G.M. and disorderly conduct. G.M. and A.V. were also charged.

At trial, the judge heard the testimony of G.M.,*fn2 Normile, Domalewski, as well as J.P. The judge concluded that J.P. was candid. He found that she had committed a simple assault on G.M., and an aggravated assault on Normile. However, the judge also found that J.P. committed an aggravated assault on Domalewski, an offense that had not been charged. A.V. was found guilty of committing disorderly conduct.

On appeal, J.P. contends that:

POINT I

THE TRIAL COURT ERRED IN ADJUDICATING [J.P.] DELINQUENT AS TO COUNT 2 OF THE COMPLAINT AS THERE WAS NO TESTIMONY FROM [MURRAY] THE ALLEGED VICTIM (Not Raised Below).

POINT II

THE TRIAL COURT ERRED IN ADJUDICATING [J.P.] DELINQUENT AS TO THE AGGRAVATED ASSAULT UPON MS. HEATHER DIBLASI DOMALEWSKI AS SUCH CRIMINAL CONDUCT WAS NOT ALLEGED IN THE COMPLAINT (Not Raised Below).

The State concedes Point II and argues that Point I is moot. We agree and vacate the adjudication based on the assault on Domalewski.

J.P. also contends:

THE TRIAL COURT ERRED IN ADJUDICATING [J.P.] DELINQUENT AS TO COUNT 3 OF THE COMPLAINT AS THERE WAS NO TESTIMONY FROM THE ALLEGED VICTIM AS TO ANY BODILY INJURY (Not Raised Below).

THE DOCTRINE OF TRANSFERRED INTENT DOES NOT ALLOW A SIMPLE ASSAULT TO BE ELEVATED TO AN AGGRAVATED ASSAULT (Not Raised Below).

VENUE AS AN ELEMENT OF THE OFFENSES WAS NOT PROVED BEYOND A REASONABLE DOUBT AS TO ALL COUNTS (Not Raised Below).

TRIAL COUNSEL'S FAILURE TO MOVE FOR A JUDGMENT OF ACQUITTAL UNDER NEW JERSEY COURT RULE 3:18-1 FOR THE STATE'S FAILURE TO PROVE THE ELEMENTS OF AGGRAVATED ASSAULT (COUNT 2 OF THE COMPLAINT) AND TO MOVE FOR A JUDGMENT OF ACQUITTAL FOR THE STATE'S FAILURE TO PROPERLY LAY VENUE (ALL COUNTS OF THE COMPLAINT) CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.

We disagree with these contentions and affirm. We determine that these arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

We merely note that "[b]odily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. According to our case law, "not much is required to show bodily injury." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). For example, a stinging sensation caused by a slap is adequate evidence to support the bodily injury requirement of simple assault. Ibid. (citing State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988)). Also, physical acts of pushing and shoving have been found sufficient to support a finding of simple assault. See N.B., supra, 297 N.J. Super. at 42-43. In fact, "[e]ven the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey law." New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995).

We are mindful that in order to be convicted of aggravated assault, the State must show that the actor's conscious object was to inflict harm on the specially protected victim. State in the Interest of S.B., 333 N.J. Super. 236, 242 (App. Div. 2000). On the other hand, if it is shown that the victim was assaulted inadvertently while defendant was attempting to cause bodily injury to another individual, the doctrine of transferred intent will not support heightening the charge from simple to aggravated assault. Id. at 244-45.

Here, there was ample proof, which the judge credited, that J.P. intentionally kicked Normile. According to Normile, when he attempted to pull G.M. away from J.P. during the fight, J.P. looked him straight in the eye and kicked him. Therefore, the judge's findings are supported by credible proof. We have no warrant to interfere. State v. Locurto, 157 N.J. 463, 470-71 (1999).

We reject J.P.'s argument concerning ineffective assistance of counsel. J.P. has failed to meet the two-pronged standard set by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which was later adopted by the New Jersey Supreme Court in interpreting our state constitutional rights. State v. Fritz, 105 N.J. 42, 58 (1987). Pursuant to the Strickland/Fritz standard, an ineffective assistance of counsel claim is made out when: (1) trial counsel's representation is deficient; and (2) such deficiency results in prejudice to the defendant. State v. Martini, 160 N.J. 248, 264 (1999) (citing Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed. 2d at 693).

Here, we find no merit in J.P.'s contention that counsel failed to note that the State did not prove the jurisdiction element of venue. The premise of the argument is unfounded. First, we note that venue for juvenile prosecution is laid in the county of the juvenile's residence. R. 5:19-1(a)(1). Here, it is undisputed that J.P. resides in Keansburg. Second, the judge can take judicial notice that Keansburg is in Monmouth County. N.J.R.E. 201(b)(1).

With respect to the allegation that trial counsel failed to move to dismiss the adjudication based on count 2, J.P. has suffered no harm. That adjudication has been reversed and vacated by this court.

The adjudication count 2 is vacated, in all other respects the Family Part's order is affirmed.


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