April 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IN THE INTEREST OF A.E., JUVENILE-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Complaint No. FJ 09-3041-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 7, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Evidence heard and credited by the trial judge reveals that, on April 7, 2007, A.E. (the juvenile) attacked J.M. by swinging at him and striking him multiple times about his head with a brick. The juvenile was charged with delinquency for conduct which, if committed by an adult, would have constituted aggravated assault, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose.
The factual record reveals that A.E. and J.M. had engaged in verbal disputes on a few occasions shortly before April 7, 2007. On that date, J.M. was in a stairwell in an apartment building with other friends, when A.E., garbed in a ski mask, jacket and gloves, arrived at the top of the stairs. As A.E. descended toward the group, he and J.M. exchanged words, which concluded with A.E. telling J.M., "this is the day that you're going to die." With that A.E. swung at J.M. with a brick, striking his head, face and arm multiple times. As J.M. bled heavily from these blows, A.E. dropped the brick and ran. The judge heard testimony that, as a result of this attack, J.M. suffered a "really big gash on the top of his head" and also a "gash on his cheek." J.M.'s wounds were closed and treated at a nearby hospital.
In reliance on this evidence, the trial judge adjudicated the juvenile delinquent on all five counts of the amended complaint, which the judge merged into a finding that the juvenile committed a second-degree aggravated assault as defined by N.J.S.A. 2C:12-1(b)(1). The judge directed that the juvenile be incarcerated at Jamesburg for eighteen months. Less than two months after being incarcerated, the juvenile was transferred to a minimum security facility in Voorhees.
The juvenile appealed, raising the following arguments for our consideration:
I. A.E. IS NOT GUILTY OF SECOND-DEGREE AGGRAVATED ASSAULT AS A MATTER OF LAW PURSUANT TO [THE] HOLDING [IN] STATE v. McALLISTER.
II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL DISCRETION.
III. [THE] STATE HAS NOT PROVED BEYOND A REASONABLE DOUBT AS A MATTER OF EVIDENCE AND OF LEGAL PRINCIPLES THAT A.E. IS GUILTY OF SECOND DEGREE AGGRAVATED ASSAULT.
We find insufficient merit in Points I and III to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following comments.
In this case, the judge determined that the juvenile's conduct met the requirements of N.J.S.A. 2C:12-1(b)(1), which requires proof that the actor "[a]ttempt[ed] to cause serious bodily injury to another, or cause[d] such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly cause[d] such injury." N.J.S.A. 2C:12-1(b)(1). In State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986), upon which the juvenile places considerable reliance on appeal, we explained that [w]here a person causes serious bodily injury, he is guilty whether his mental state is purposeful, knowing or reckless. However, where the person does not cause serious bodily injury but only attempts to do so, he is guilty only if the attempt to cause that result is purposeful.
In this case, the judge found that the State did not prove actual serious bodily injury but did prove "an attempt to cause serious bodily injury in the form of repeated striking about the head with a brick." The evidence the judge credited regarding this incident, which we briefly described above, fully supported his findings that:
Striking somebody about the head numerous times, at least twice, with a brick very clearly is an attempt to cause a serious bodily injury whether or not . . . serious bodily injury actually resulted . . . . And here I'm satisfied that the evidence proves beyond a reasonable doubt that it was [the juvenile's] purpose to attempt to cause a serious bodily injury to [J.M.].
These findings are fully supported by the credible evidence and the conclusion reached by the trial judge was based upon an accurate interpretation of N.J.S.A. 2C:12-1(b)(1). We, thus, affirm the adjudication of delinquency.
The juvenile also argues that the trial judge erred in the disposition. Here, the judge found that aggravated factors G and K*fn1 were applicable; the only countervailing factor he found was mitigating factor H.*fn2
The judge's findings regarding aggravating factor G were certainly appropriate and well-grounded in the evidence. The judge referred to the juvenile's conduct as "an ambush, pure and simple," which was triggered only by an "insult" or "slight" from J.M. He found that the juvenile developed a plan to lie in wait in a building where he knew that [J.M.] was likely to be found at some point, armed with a brick that did not belong to the building, wearing a mask and gloves, and when [J.M.] was located, he began to beat him about the head with the brick, causing some significant injuries in terms of the stitchings, and the scar that was still visible at the time of the trial [more than two months after the assault].
Considering these events, the judge correctly applied aggravating factors G and K.
The judge only found mitigating factor H to be applicable. We agree that it had application, but we also conclude that other mitigating factors may have warranted consideration. The record at disposition revealed that the juvenile was employed, that he was an altar boy in his church, and that his incarceration may have had an impact on his family. These circumstances, which went unmentioned in the judge's findings, suggest that mitigating factors J, K and L could have been added to those other factors considered by the judge.*fn3 We remand for a consideration of whether or to what extent these other mitigating factors bear on the disposition imposed.
We affirm the adjudication of delinquency, but we remand for further proceedings with regard to the disposition in conformity with this opinion. We do not retain jurisdiction.