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State ex rel S.T.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 9, 2009

STATE OF NEW JERSEY IN THE INTEREST OF S.T.H., A JUVENILE

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FJ-07-5110-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2009

Before Judges Reisner and Alvarez.

Defendant S.T.H., a juvenile, appeals from a February 21, 2008 order adjudicating him as delinquent for offenses that would constitute second-degree robbery and conspiracy to commit robbery, if he were an adult. He also appeals from his sentence of thirty months in the Youth Correction Center at Jamesburg. We affirm.

I.

Defendant stole Maria Abreu's pocketbook, during an incident that occurred on June 8, 2007, at a bus stop in Newark.*fn1

According to David Millington, an eyewitness who observed the crime from the window seat of a commuter bus stopped at a red light, defendant snatched the victim's purse. Once defendant obtained possession of the purse, after a ten-second struggle with the victim, he ran to a silver or gray car being driven by an accomplice and climbed into the back seat of the vehicle. According to Millington, the escape appeared to be a "smooth" operation because someone inside the car opened the door for defendant before defendant even attempted to open it.

Millington testified that the victim ran after defendant and climbed onto the hood of the getaway car, which was stationary at the time. After she climbed onto the hood of the car, the driver put the vehicle in motion and began to drive away. The victim fell off the hood of the car and was severely injured. At that point, Millington got off the bus and went to aid the victim, who was lying on the street in a pool of blood.

In an oral opinion placed on the record on December 5, 2007, Judge Cronin found Millington to be one of the most credible witnesses he had ever seen. He concluded that the struggle over the purse was sufficient to elevate the crime to a second-degree robbery: "[T]hat struggling for 10 seconds distinguishes this from a mere purse snatching. This was a struggle in excess of that needed to commit a third degree theft." The judge also found defendant guilty of conspiring with the driver to commit the crime, thereby making defendant liable for the victim's having been thrown off the hood of the car:

[T]he Court will adjudicate [S.T.H.] guilty of conspiracy to commit robbery of Miss Abreu in that the Court finds a concert of action between [S.T.H.] and the unidentified individual who was operating the motor vehicle. The Court finds that circumstantially based upon the arrival of that vehicle while [S.T.H.] was making flight by foot from the scene of his robbery of Miss Abreu.

The non-coincidental opening of the rear door at the time, and then [S.T.H.'s] entry into the back, rear of that door, clearly being circumstantial evidence from which this Court does conclude that there was a concert of action and purpose between [S.T.H.] and the operator of that motor vehicle.

So [S.T.H.] will be adjudicated delinquent for conspiracy to commit robbery of Miss Abreu.

In a separate oral opinion placed on the record on February 21, 2008, Judge Cronin found, based on defendant's significant prior juvenile record, that he was likely to commit another offense. Moreover, defendant had taken no responsibility and expressed no remorse for the offense. The judge further considered defendant's poor adjustment to prior periods of probation. He therefore imposed a thirty-month sentence for the second-degree robbery, with a concurrent eighteen-month sentence for the conspiracy charge.

II.

On this appeal, defendant contends as follows:

POINT I: THE COURT ERRED IN ADJUDICATING THE DEFENDANT GUILTY OF SECOND DEGREE ROBBERY AS THE TAKING OF THE VICTIM'S PURSE WAS NOT ENOUGH TO ELEVATE THE ACT TO A SECOND DEGREE OFFENSE.

POINT II: THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We find no merit in either contention, and affirm substantially for the reasons stated by Judge Cronin in his cogent oral opinions placed on the record on December 5, 2007 and February 21, 2008. See R. 2:11-3(e)(2). We add the following comments.

Pursuant to N.J.S.A. 2C:15-1a(1), "[a] person is guilty of robbery if, in the course of committing a theft, he . . .

[i]nflicts bodily injury or uses force upon another." The use of force or infliction of injury element is satisfied "if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1a. There is no question here that defendant used force on the victim by struggling with her for possession of the purse.

The theft statute thus includes purse-snatchings from the grasp of an owner, while the robbery statute includes purse-snatchings that involve some degree of force to wrest the object from the victim. The only way to reconcile the two statutes is to hold that robbery requires more force than that necessary merely to snatch the object. [State v. Sein, 124 N.J. 209, 217 (1991).]

We are bound by the trial judge's determination so long as it is supported by substantial credible evidence and is consistent with applicable law. State v. Locurto, 157 N.J. 463, 470-74 (1999). There is sufficient credible evidence in this record to support Judge Cronin's finding that the struggle over the purse constituted the force necessary to support a robbery conviction. State v. Sein, supra, 124 N.J. at 215-16. There was also ample credible evidence to find defendant guilty of robbery based on the infliction of bodily injury on Ms. Abreu while defendant and his co-conspirators were fleeing from the scene. See State v. Lopez, 187 N.J. 91, 98-99 (2006); N.J.S.A. 2C:5-2; N.J.S.A. 2C:2-6b(4). We therefore affirm defendant's adjudication of delinquency.

We also find no abuse of discretion or other error in the sentence, which is neither shocking to the judicial conscience nor otherwise excessive in light of the factors articulated by the trial judge. See State v. Ghertler, 114 N.J. 383, 388 (1989); State v. Roth, 95 N.J. 334, 363-64 (1984). Defendant's appellate contentions warrant no further discussion. R. 2:11-3(e)(2).

Affirmed.


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