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State ex rel M.L.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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