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State ex rel B.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2009

STATE OF NEW JERSEY IN THE INTEREST OF B.H., A MINOR.

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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 Mr. Burgess was to, from the tape, clearly rob this individual.

At that point, with Rhett lying on the ground, . . . and his bicycle a few feet away from him on the ground, Mr. Burgess and [B.H.] come back around the building off to the west side camera and into . . . the south side camera of the 7-11, the front of the store. . . . [B.H.] gets into the driver's side of the tan Taurus. Mr. Burgess comes around, he motions to the third person, who is still in the 7-11, with rapid movements of his hand. Basically, in the Court's perception saying, "Hey get out of here, we've got to get out of here."

The tan Taurus then backs out of the . . . spot and drives past the bicycle, and [the] still barely moving Jonathan Rhett on the ground, and they exit the parking lot. . . .

In giving his decision the judge found that Patrolman Cappoli's testimony was credible. He further found that from the surveillance tape that B.H. was at the 7-Eleven with Burgess and that Burgess struck Rhett to the ground and went through his pockets, thereby committing a robbery. The judge further stated that B.H. was present while Burgess hit Rhett, went over to Rhett, looked at him while he lay on the ground, and then drove Burgess away from the 7-Eleven. The court concluded:

And, accordingly, in regard to this matter, having furthered the action by driving [Burgess] away from the scene, having been clearly in the video, and being there prior to the time that the robbery occurred, being in the scene, and on the scene, within sight of the scene, and right there when Mr.

Burgess struck Mr. Rhett, and then driving Mr. Burgess away from the scene, this Court does not have any problem whatsoever with finding, beyond a reasonable doubt, that, at the very least, [B.H.] committed conspiracy to commit a robbery.

On appeal the juvenile sets forth the following arguments for our consideration:

POINT I - AS THE SURVEILLANCE VIDEO HAD BEEN ALTERED, IT WAS NOT THE "BEST EVIDENCE" AND WAS NOT RELIABLE EVIDENCE UPON WHICH TO BASE AN ADJUDICATION, THUS DEPRIVING THE JUVENILE OF A FAIR TRIAL, A JUDGMENT OF ACQUITTAL MUST BE ENTERED.

POINT II - SHOULD THIS COURT ENTER A JUDGMENT OF ACQUITTAL, THE VIOLATION OF PROBATION MUST BE REMANDED FOR A NEW HEARING.

It is undisputed that the video on the CD-R disk shown to the court was not identical to the 7-Eleven surveillance tape in that certain angles of the store were not included. However, Patrolman Cappoli testified that it was an accurate representation of the events he viewed on the 7-Eleven recording on the night of the robbery. The argument presented on behalf of the juvenile based on the best evidence rule as stated in N.J.R.E. 1002 and N.J.R.E. 1004 fails because it does not consider the fact that the CD-R disk was a duplicate of the applicable portions of the 7-Eleven surveillance tape. N.J.R.E. 1003 specifically states that a duplicate ". . . is admissible to the same extent as the original unless (a) a genuine question is raised as to the authenticity of the original, or (b) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

While defense counsel raised an objection based on the authenticity of the CD-R duplicate, no objection was made to the authenticity of the original surveillance tape, and Patrolman Cappoli's testimony provided sufficient authentication of the edited copy as an accurate duplication of the pertinent parts of the original. Furthermore, there is no showing of unfairness in the production of the edited tape rather than the original. See N.J.R.E. 1003. Therefore, we affirm the adjudication of delinquency of B.H. for conspiracy to commit robbery.

In light of our affirmance it is unnecessary to address B.H.'s argument regarding the adjudication for violation of probation. Leaving aside the adjudication for conspiracy, the findings of a positive drug test and failure to comply with the conditions of his probation were sufficient to prove the adjudication of violation of probation.

Affirmed.

20090724

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