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State ex rel J.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 14, 2008

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

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, No. FJ-09-2130-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 18, 2008

Before Judges Wefing and Collester.

The trial court adjudicated J.W. a delinquent for committing an act which, if committed by an adult, would constitute the crime of robbery. N.J.S.A. 2C:15-1. The trial court sentenced J.W. to six months on probation. J.W. has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In the early evening of December 30, 2005, two cousins, Jordan and Kevin Mackiewicz walked to a store near to Jordan's home in Bayonne to purchase some video games. On their return trip, four youths approached them under an overpass just beyond a Burger King. While two watched, another pushed Jordan against the wall of the overpass and grabbed the bag he was holding which contained the games he had just bought. The fourth took an iPod from Jordan's pocket. All four then returned to the Burger King. Kevin called his mother on his cell phone, who, in turn, called the police.

The police responded promptly, including an officer who happened to be on duty at the Burger King. A patrol car located two boys nearby who were detained. Jordan was driven over and a flashlight was used to illuminate the faces of the two. He immediately identified the two as the perpetrators. Two other boys were also detained; those he identified as the two who had watched the robbery.

The four boys were taken to police headquarters, as were Jordan and Kevin. Jordan and Kevin testified that at police headquarters, they each separately identified the same two boys as having been involved in the robbery. Based upon that, the other two boys were released. At trial, Jordan and Kevin each identified J.W. as the boy who had pushed Jordan up against the wall.

J.W. and his co-defendant each testified, and each denied any involvement in the robbery. They both said that the other two boys had committed it. J.W. said he had remained in the Burger King eating his food while his co-defendant said he went outside to watch but took no part in what happened. Both J.W. and his co-defendant denied that there had been any further identification of them at the police station.

On appeal, J.W. raises the following issues:

POINT I DEFENDANT IS INNOCENT OF THE CHARGES AND WAS MISIDENTIFIED AS THE PERPETRATOR

POINT II THE DEFENDANT WAS DENIED AN OPPORTUNITY TO CONFRONT A CRUCIAL WITNESS

POINT III THE LOWER COURT'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE POINT

IV THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

Defendant maintains on appeal his position below, that he is the victim of a misidentification. The trial court carefully listened to the witnesses presented during the course of the proceeding and accepted the testimony of Jordan and Kevin that defendant was the individual who forcefully pushed Jordan back against the wall of the overpass. The trial court, in the course of its oral opinion, noted those factors which led it to accept that identification testimony. We are not at liberty to reject the trial court's factual findings, which find ample support in the record. State v. Locurto, 157 N.J. 463, 474 (1999).

We also reject defendant's second point, which does not accurately reflect the record in the trial court. After the State rested, and both defendants had testified, J.W. said he wanted the opportunity to call one of the police officers who had responded. The trial adjourned for more than one week to give the defense the opportunity to have the officer appear. When the trial resumed, the officer was not present. Defendant voluntarily indicated his willingness to continue in the absence of the officer, and the matter proceeded to summation and the trial court's determination on the merits.

We also reject defendant's third point, that the verdict was against the weight of the evidence. The critical question in the case was the identification testimony of the two victims, and the trial court accepted that testimony. As we have noted, we cannot go behind that finding. Locurto, supra.

Finally, we can perceive no substantive merit to the assertion that defendant received ineffective assistance of counsel. First, the issue is more properly raised on a petition for post-conviction relief, rather than on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). Defendant cites three instances in which he asserts the performance of his trial attorney was deficient: failure to arrange for the testimony of the police officer, failure to arrange for the testimony of "Jasper," who both J.W. and his co-defendant identified as the robber, and a failure to move for a directed verdict. There is no showing, by way of affidavit or otherwise, how the testimony of the police officer or "Jasper" would have led to a different result. Thus, the second prong of the test enunciated in Strickland v. Washington, 466 U.S. 668, 687-88, 694 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984), and adopted by the New Jersey Supreme Court, State v. Fritz, 105 N.J. 42, 58 (1987), has not been met. Finally, the rule to which J.W. refers, Rule 2:10-1, refers to verdicts returned by a jury, not a bench trial.

Affirmed.

20080714

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