On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-1024-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Collester.
B.J., age sixteen, was adjudicated delinquent for acts which, if committed by an adult, would constitute: aggravated assault, N.J.S.A. 2C:12-1b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and unlawful possession of a weapon, N.J.S.A. 2C:39-5. At a dispositional hearing, Judge Mark A. Baber imposed a three-year term at the Training School for Boys in Jamesburg. We affirm.
Charles Johnson testified that on September 21, 2006, at approximately 2:00 p.m., he was walking home from the store on Martin Luther King Drive in Jersey City. He saw Blackwell, a friend with whom he had grown up. Blackwell told Johnson that two men had just robbed him. The two began walking towards Johnson's house when they saw the two men that Blackwell identified as the ones who robbed him. Blackwell chased the two men. Johnson followed. Blackwell caught one of the two men, later identified as Tyquan Tucker, and began hitting him with a brick. Johnson assaulted Tucker, punching him with his fists.
The other man, who was wearing a black hooded sweatshirt or "hoodie," ran away. He then stopped, turned around and pulled out a gun. He pointed the gun at Johnson from about five feet away and began clicking the trigger, but the gun did not fire. Johnson identified the armed individual as B.J., whom he recognized from the neighborhood. Johnson also identified the gun.
Sometime during the confrontation, another individual, later identified as Shyquan Harrison, arrived on the scene. Harrison asked why Blackwell was hitting his cousin with a brick. Johnson replied, because "your cousin just robbed [Blackwell]." B.J. then passed the gun to Harrison, who ordered Johnson to hand over his money. Johnson said that he did not have any money. Harrison fired the gun three times, hitting Johnson each time. As a result of his injuries, Johnson was comatose for nine days.
Jersey City Police Detective Mark Palughi testified that he arrived at the scene of the shooting and his investigation led him to an apartment on Myrtle Avenue, which was the residence of Catherine Williams, Harrison's grandmother. Williams allowed Palughi and other detectives to enter her apartment and look around. One detective discovered a .40 caliber handgun equipped with a safety lock. Palughi asked Williams if anyone else was in the apartment. She responded that Harrison had been there earlier with someone else and that Harrison got changed and the two left. According to Palughi, Harrison gave him a statement and identified someone. Subsequently, B.J. was arrested.
B.J. testified that on September 21, 2006, he did not go to school and woke up around 11:00 a.m. and went to a friend's house. He played some video games at the friends house until approximately 2:55 p.m. While B.J. was walking to a nearby school, a person from the neighborhood, one "Will" or "William," told B.J. that someone had jumped Tucker and Harrison. He went to the scene with Will. They saw Tucker being put in an ambulance. The two then proceeded to Harrison's grandmother's house. Will left on the way, so B.J. went alone.
When B.J. arrived at Harrison's grandmother's house, he saw Harrison putting on his pants. B.J. asked Harrison what happened, but Harrison said he did not want to talk about it. B.J. left alone. He then took a bus to Lincoln Park where he attended football practice from 3:00 p.m. to 8:00 p.m.
According to B.J., he was wearing a red jacket, jeans, a white t-shirt and a hat on the day in question and at no point was he wearing a black hoodie. He never had or saw a gun that day. He was not present for the altercation that resulted in Johnson being shot. He did not know Johnson or Blackwell. He is "cool" with Harrison and went to see if Harrison was alright, but said that the two were not friends.
On cross-examination, the Assistant Prosecutor asked B.J. if Johnson was lying when he testified that it was him who was at the scene, attempted to shoot Johnson and eventually passed off the gun to Harrison who did shoot Johnson. B.J. replied that Johnson was either mistaken or lying because he was not at the scene at the time of the shooting.
The judge found Johnson's testimony "entirely credible." He found B.J.'s story much less credible. The judge sustained the complaints against B.J.
On appeal, B.J. contends:
BY ASKING B.J. TO CHARACTERIZE THE STATE'S WITNESS AS A LIAR, DEFENSE COUNSEL VIOLATED B.J.'S RIGHT TO A FAIR TRIAL. FURTHERMORE, THE STATE'S QUESTIONS IN THIS SAME VEIN WERE PROSECUTORIAL MISCONDUCT. DEFENSE COUNSEL'S QUESTIONING, WHICH OPENED THE DOOR TO THE STATE'S QUESTIONING WAS CLEARLY INEFFECTIVE ASSISTANCE OF COUNSEL IN DEGRADATION OF B.J.'S RIGHT TO COUNSEL NECESSITATING REVERSAL. U.S. CONST. AMENDS. XIV; V; N.J. CONST. (1947), ART. I, PAR. 10 (Not Raised Below).
Prosecutorial misconduct is only grounds for reversal of a criminal conviction if "the conduct was so egregious it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). See also State v. Bucanis, 26 N.J. 45, 56 (only conduct which "substantially prejudice[s] the defendant's fundamental right to have a jury fairly evaluate the merits of his defense . . . ." warrants reversal), cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958).
When defense counsel fails to object to a prosecutor's questions or summation during trial, it creates an inference that counsel does not perceive the remarks as prejudicial. State v. Irving, 114 N.J. 427, 444 (1989) (citing State v. Johnson, 31 N.J. 489, 511 (1960)). See also Ramseur, supra, 106 N.J. at 323 (when "no objection is made, the remarks usually will not be deemed prejudicial.").
In State v. T.C., 347 N.J. Super. 219 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003), the defendant appealed her conviction, arguing, among other things, that the prosecutor's cross-examination of her, in which she was asked "whether State's witnesses had been lying when they testified against her[,]" mandated reversal of her conviction. Id. at 237. We disagreed, and held that although such questioning was "inappropriate and should not be countenanced[,]" it was not "conduct constitute[ing] a basis ...