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State ex rel A.V.

April 24, 2008

STATE OF NEW JERSEY IN THE INTEREST OF A.V., JUVENILE-APPELLANT.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-1128-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2008

Before Judges Fuentes and Chambers.

Defendant A.V., a juvenile, was adjudicated delinquent for offenses that, if committed by an adult, would have constituted second degree robbery, N.J.S.A. 2C:15-1, (count one); fourth degree unlawful possession of a weapon (a mace canister), N.J.S.A. 2C:39-5(d), (count two); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), (count three); simple assault, N.J.S.A. 2C:12-1(a), (count four); and conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; (count five). He was sentenced to a one year term of probation and ninety hours of community service.

The charges arise out of a robbery that took place on October 14, 2006, when the victim was accosted by a group of African-American youths as he was walking down the street. The victim testified that one youth held him while another, wearing a black jacket and white bandanna, went into his pockets and took his cell phone, which he valued at $300, a Playstation Portable (PSP), valued at $200, and thirty dollars in cash. As the group of youths then continued to walk down the street, the victim followed them. Two youths,*fn1 including the youth with the black coat and white bandanna, came back and sprayed the victim with mace and punched him. The youths then headed in the direction of a nearby mall.

The police were summoned and within ten to fifteen minutes, they found a group of African-American youths at the mall, including defendant, who was wearing a black jacket. The police found a white bandanna and a canister of mace in defendant's pockets. The arresting officer testified that when he asked defendant where he got the mace, after a pause defendant responded. The officer first said that defendant said "yeah, I was there but I did not do anything." Then in response to the prosecutor's prompting, the officer testified that defendant said "I did not punch the victim." The officer then advised defendant of his rights and arrested him.

The officer testified that most of the males in the group were wearing black jackets similar to defendant's, but defendant was the only one with a white bandanna. The victim was unable to identify any of these youths as participants. At trial, the victim identified defendant's white bandanna and black jacket as similar to the one worn by one of the participants.

The defendant testified that he had been part of a group of friends heading toward the mall that evening, and that he and two others separated from the group. When they met up again, he learned that the victim had been robbed. He also stated that one of the group, Rasheem, had the PSP, but that Rasheem was not with them when they were stopped by the police. Defendant also claimed that the jacket he was wearing he had borrowed from a friend because he was cold. He acknowledged that the white bandanna was his.

The trial judge held for the State and adjudicated defendant a delinquent. Defendant now appeals, raising the following points:

POINT I

THE PROSECUTOR'S CROSS-EXAMINATION OF THE JUVENILE REGARDING HIS POST-ARREST SILENCE VIOLATED BOTH THE FIFTH AMENDMENT AND NEW JERSEY LAW, THEREBY ...


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