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State ex rel B.H.

July 24, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FJ-06-505-08.

Per curiam.



Submitted May 19, 2009

Before Judges Skillman and Collester.

Following an adjudicatory hearing before Judge Harold U. Johnson, Jr., B.H., a juvenile, was adjudicated delinquent for committing an act which if committed by an adult would constitute conspiracy to commit robbery, N.J.S.A. 2C:5-2(a), and for violation of juvenile probation. The sentencing judge sentenced him to a sixty-day term in the juvenile detention center.

Patrolman Shane Sawyers of the Bridgeton Police Department testified at the adjudicatory hearing that at about 11:50 p.m. on September 11, 2007, he stopped a tan Ford Taurus driven by defendant after it hit a parked car. B.H. was arrested on suspicion of driving while intoxicated as a minor, and the passenger, Johann Burgess, was arrested on outstanding warrants. Both were transported to police headquarters for processing and released.

Bridgeton Patrolman Vincent Cappoli testified that at about 12:21 a.m. on September 12, 2007, he was dispatched to the residence of Jonathan Rhett. When Cappoli arrived he saw Rhett in an ambulance being treated for a head wound. Based on information he received at that time, Cappoli proceeded to the 7-Eleven convenience store on Broad Street in Bridgeton to conduct a robbery investigation. On arrival, Cappoli reviewed the 7-Eleven surveillance video, which was composed of views from several cameras on the outside of the store. The cameras were connected to a computer inside the store from which the footage could be observed. Cappoli watched the surveillance video and testified that the exterior shown on the video was an accurate depiction of the outside of the 7-Eleven. The surveillance tape was later copied onto a CD-R disk and edited by Sergeant Mike Speranza, who did not testify at the adjudicatory hearing. Cappoli testified the images on the CD-R disk were the same as the portion of the 7-Eleven video depicting the incident in question. When the CD-R disk was offered in evidence, defense counsel objected, claiming that the tape had not been authenticated since certain camera angles were edited out of the CD-R disk.

The judge viewed the CD-R disk and described for the record that it depicted two individuals getting out of a tan Taurus and meeting up with a person on a bicycle. The court further narrated that the person on the bike was assaulted and knocked to the ground and the two other individuals returned to the Taurus and drove away.

Patrolman Cappoli testified he was able to identify B.H. and Johann Burgess in the CD-R disk because he had seen them earlier that evening being processed at the police station. He said that B.H. was depicted as the person who drove the Taurus out of the 7-Eleven lot. At the conclusion of Cappoli's testimony, the CD-R disk was admitted into evidence without objection.

Judge Johnson made the following findings of fact based on his viewing of the CD-R disk:

The two people in the white shirts appear to be talking to each other, and the person on the bicycle is basically stopped there, and then very clearly on the tape, one of the people in the white shirts identified by Officer Cappoli as Mr. Burgess, clearly strikes with a significant force Jonathan Rhett, who immediately falls to the ground and does not move for quite a few seconds on the tape.

At that time . . . Johann Burgess . . . appears to, and I find he does go into the pockets of the individual . . . then the second person, identified as [B.H.] . . . gets off the bike, drops the bike on the ground. He goes over to he person who's laying motionless on the ground, identified as Jonathan Rhett. He bends down, looks at him, seems only to look at him, doesn't actually appear to touch him with his hands. He then steps back and again the second person in this case, Mr. Burgess, goes back down to the body, with his hands out, appearing to touch the body in some way.

The Court finds that those two times that Mr. Burgess went down, he was, in fact, digging into the pockets, . . . to take something from [Rhett], and as the Court sees it, using force to knock someone to the ground. . . . I find that the intention of ...

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