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State ex rel G.G.

August 3, 2009

STATE OF NEW JERSEY IN THE INTEREST OF G.G., JUVENILE-APPELLANT.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-0237-08B.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 9, 2009

Before Judges Lisa and Collester.

After a hearing, G.G., a juvenile, was adjudicated delinquent of offenses which, if committed by an adult, would constitute third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) and fourth-degree criminal trespass, N.J.S.A. 2C:18-3a. G.G. was sentenced to one-year probation. G.G. argues on appeal:

I. THE JUVENILE'S ADJUDICATION OF DELINQUENCY FOR CRIMINAL TRESPASS, CONTRARY TO N.J.S.A. 2C:18-3, MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO RECOGNIZE A HEIGHTENED BURDEN OF PROOF FOR PUBLIC PLACES.

II. TRIAL COUNSEL'S FAILURE TO RAISE AN AFFIRMATIVE DEFENSE TO THE CHARGE OF CRIMINAL TRESPASS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

III. THE STATE'S EVIDENCE ON THE CHARGE OF THIRD-DEGREE RESISTING ARREST WAS INSUFFICIENT TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT.

IV. THE TRIAL COURT ERRED BY ALLOWING THE STATE'S WITNESS, MARK ALFONE, TO REFRESH HIS RECOLLECTION WITH A POLICE REPORT.

These arguments lack sufficient merit to warrant extended discussion in a written opinion, R. 2:11-3(e)(2), and we affirm. We nevertheless set forth a summary of the facts and comment briefly on the appeal arguments.

On May 16, 2007, G.G., then fifteen years old, was a student at Neptune High School. Shortly after 2:00 p.m., G.G. was on the grounds of the Neptune Middle School, just after the students of that school had been discharged for the day. He was talking to some middle school students. The middle school principal, Mark Alfone, regularly patrolled the grounds after students were discharged to assure good order and safety for the students. Alfone noted that G.G. was not a student at the middle school. He approached G.G. and asked who he was and what he was doing there. G.G. responded by refusing to identify himself and telling Alfone to "get out of his fucking face," and that "he wasn't going to talk." As the conversation continued, G.G. continued to conduct himself in a belligerent manner and refused to leave the grounds. G.G. never made any comment as to his purpose for being on the grounds, where he was going, or what he was doing.

Using his walkie-talkie, Alfone contacted the school office and requested that the police be called. He informed G.G. that the police were on their way, but G.G. continued to refuse to leave the grounds. Two police officers arrived several minutes later. Seeing the police, G.G. walked up to Alfone, "face to face, toe to toe, and then stopped and told [him] to get out of his way." As the officers approached G.G., he spit in the direction of one of them and began to walk away. One of the officers attempted to speak to G.G., and G.G. replied, "get the fuck away from [me]." The officers advised G.G. he was under arrest for disorderly conduct, and one of the officers placed his hand on G.G.'s shoulder. G.G. pushed the officer's hand away and a physical confrontation ensued. G.G. began kicking and hitting the officers. As they continued in their attempt to subdue him, an officer told G.G. if he did not stop resisting they would use pepper spray. He continued resisting. Pepper spray was used. G.G. was then handcuffed and removed from the scene.

The facts we have described are substantially consistent with the testimony of both officers and Alfone. The judge credited the testimony of those three witnesses, and explained the ...


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