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State ex rel M.L.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2009

STATE OF NEW JERSEY IN THE INTEREST OF M.L., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FJ-21-280-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2009

Before Judges Lisa and Sapp-Peterson.

M.L., a juvenile, who was born on November 8, 1989, appeals from an adjudication of delinquency for committing an act which, if committed by an adult, would have constituted third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and third-degree theft, N.J.S.A. 2C:20-2(a). The court imposed a fourteen-day custodial disposition to Warren Acres, a one-year period of probation, and appropriate fines and penalties.

On appeal, M.L. presents the following arguments:

POINT I

THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT THE JUVENILE WAS GUILTY OF CONSPIRACY TO COMMIT BURGLARY TO SUPPORT THE ADJUDICATION OF DELINQUENCY FOR BURGLARY AND THEFT . . . .

A. THE COURT ERRED IN FAILING TO ADDRESS LESSER INCLUDED OFFENSES WHERE THE EVIDENCE DEMONSTRATED DIFFERENT STATE[S] OF MIND[] BETWEEN THE PRINCIPAL AND DEFENDANT.

B. THE EVIDENCE FAILED TO DEMONSTRATE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT AS SET FORTH IN THE SUSTANTIVE CRIMES OF BURGLARY AND THEFT.

These are the facts as found by Judge Ann B. Bartlett. M.L lived with his mother, his mother's boyfriend, and two friends, Cody Rose (Cody) and A.F., in a second-floor apartment located in Philipsburg. The first floor apartment was occupied by the Silvas, who had previously hired Cody and M.L. to clean their apartment while Mrs. Silva was recovering from knee surgery. On the morning of December 9, 2006, she noticed that approximately eighty of her DVDs and several X-Box games were missing. She checked with her husband to determine whether he had moved the items and, upon learning that he had not, Mrs. Silva called the police. She also noticed that an air conditioner, usually located in one of the windows, was outside on the ground. Both she and her husband had noticed, albeit separately, that the air conditioner was not in the window the previous day, but neither one became suspicious at that point. In addition to the DVDs and games, the Silvas' coin collection, money from a piggy bank, and rolls of coins were missing. According to Cody, who pleaded guilty to theft-related charges arising out of the incident, he, M.L. and A.F. discussed stealing valuables from the Silvas. On the morning of December 8, M.L. spoke to Mrs. Silva and learned she would be leaving for work that day. Later that day, Cody removed the air conditioner from the window. Cody, M.L. and A.F. then entered the apartment where M.L. took coins and rolled quarters, and A.F. took the DVDs. Cody denied taking anything.

The three males then left and boarded a bus to the mall where they planned to sell the DVDs and games at stores that purchased such items in used condition. Cody, because he was eighteen at the time, actually sold the items, and the receipts for the sold products, bearing his signature, were admitted into evidence. After exchanging the quarters for $30, they purchased a bottle of Coricidin to get high.

In addition to the Silvas and Cody, M.L.'s mother testified and recalled seeing her son and A.F. board a bus on the day of the incident around 2:00 p.m. She did not see either boy with any duffel bags, which Cody testified they used to stash the items taken from the Silvas' home. She also indicated that two days after Cody was questioned in her home by investigators from the Warren County Prosecutor's Office, he took full responsibility for what happened and apologized for implicating her son and A.F.

M.L. also testified and admitted that he spoke with Mrs. Silva on the morning of the theft before she departed for work. He indicated that Cody had planned to accompany him to the mall, but when he and A.F. were ready to leave, Cody told them that he was going to visit a relative. Cody later showed up at the mall with "bags" which Cody said he had received from his brother. Cody bought lunch for the three of them with a roll of quarters.

A.F. also testified and essentially corroborated M.L.'s version of the events. He recalled that he and M.L. left for the mall between noon and 2:00 p.m. and, after picking up job applications, went to Walmart where they waited for Cody, who arrived one hour later.

In a well-reasoned, written opinion, Judge Bartlett reviewed the testimony of each witness and found:

Starting with [M.L.], the court finds beyond a reasonable doubt that he is liable as a co-conspirator and as an accomplice for the acts of Cody Rose, and is therefore guilty of the offenses of burglary.

The court's conclusion is based on facts that start with [M.L.]'s frequent presence in Ms. Markle-Silva's apartment, to do cleaning while she was an invalid, and to borrow her DVD's and video games. He knew the contents of her house and the extent of her DVD and video game collections. He went downstairs to speak with her on the morning of the date of the burglary and ascertained when she was going to work. He, Cody and [A.F.] then spoke, made plans to meet up later at a place that was accessible to stores where they could sell the DVD and video game collections. They in fact met as planned. Cody brought the stolen goods with him and disposed of them with [M.L.] and [A.F.] present or nearby. [M.L.] didn't ask to see the DVD and video game collections purported to be from Cody's brother despite [M.L.]'s uncontroverted fondness for such things. Neither [M.L.] nor [A.F.] inquired about Cody's use of quarters to buy their meals at a fast food restaurant. Cody turned over some or all of the proceeds of sale of the DVD's and video games to [M.L.] and [A.F.] They returned together to [M.L.]'s home and used the money to pay for marijuana which they used that evening.

Cody was essential to this enterprise because Cody was 18 years old and had the requisite ID to sell the DVD's and video games. However[,] if Cody were acting entirely alone there was no reason why he would have met the others while he still had the stolen goods, risked [M.L.]'s asking to see the DVD's and video games from Cody's "brother's," risked questions about buying meals with quarters, or allowed the others to witness his disposition of the property. If [M.L.] were unaware of what Cody had done, there was a substantial risk that [M.L.] would recognize the collections, disapprove, become angry or turn Cody in for taking the very DVD's and games that [M.L.] used frequently due to the generosity of his friend and downstairs neighbor, Ms. MarkleSilva. Finally, if Cody had conceived of this theft alone, it is highly unlikely that he would have turned over most of the money to the others.

Based on these facts the court finds that [M.L.] planned with Cody. He facilitated the commission of the offenses by Cody by the overt acts of providing information as to the owner's schedule that day, and the location and identification of cash and saleable assets. His intent was that Cody break in the Markle-Silva apartment and steal the goods while [M.L.], who was on probation and vulnerable, would be out of the immediate vicinity with a witness, [A.F.] The plan included converting the stolen goods into cash and using the cash for their own purposes. As such [M.L.]'s actions fulfill the legal definition of both conspiracy with Cody to burglarize and steal, and accomplice liability for Cody's acts constituting those offenses.

These factual findings were reached after Judge Bartlett had the opportunity to observe the witnesses under both direct and cross-examination. She concluded that the witnesses presented by the State were credible and that the proofs presented were more than sufficient to meet the State's burden of proof beyond a reasonable doubt as to each of the charges.

These credibility determinations are entitled to our deference, Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), and Judge Bartlett's factual findings were amply supported by sufficient, credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). Consequently, we find no merit in defendant's claims that the evidence was insufficient to support the adjudications.

Likewise, defendant's claim that the court erred in failing to consider lesser included offenses because the evidence was insufficient to establish, beyond a reasonable doubt, that M.L. either aided or attempted to aid the efforts of Cody, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20090723

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