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State ex rel E.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 4, 2009

STATE OF NEW JERSEY IN THE INTEREST OF E.S., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, FJ-13-2338-08A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 28, 2009

Before Judges Cuff and Waugh.

E.S., a juvenile, appeals from an adjudication of delinquency entered on July 9, 2008, following a bench trial for conduct that, if committed by an adult, would constitute aggravated assault in violation of N.J.S.A. 2C:12-1b(5). The judge sentenced the juvenile to the Juvenile Justice Commission for a term of sixteen months consecutive to the term he was then serving.

The charge arises from a fight between E.S. and another juvenile resident, T.B., at the Monmouth County Youth Detention Center. E.S. and T.B. and several other juveniles were playing basketball. Two uniformed juvenile detention officers, Patrick Pendleton and Amos Osborne, supervised the activity.

During the game, a fight erupted between E.S. and T.B. It is undisputed that T.B. was the aggressor. As soon as the first punch landed, the supervising officers ran to separate T.B. and E.S. T.B. struck E.S. twice, a laceration over E.S.'s eye started bleeding, and E.S. started swinging in defense. During the melee, Officer Pendleton was struck several times by E.S.

Judge Robert A. Coogan found that T.B. was the aggressor and that the two officers separated the juveniles but not before T.B. struck E.S. twice. He also found that after the officers separated the juveniles, Officer Pendleton slipped to the floor and E.S. struck him several times. Judge Coogan's findings were based on the testimony of several witnesses and a surveillance video which captured the entire episode.

On appeal, the juvenile raises the following arguments:

POINT ONE

THE COURT BELOW ERRED BY FAILING TO CONSIDER SELF DEFENSE WHEN IT APPLIED THE FACTS TO THE LAW AND RENDERED ITS VERDICT.

POINT TWO

THE COURT ERRED WHEN IT FAILED TO GRANT THE JUVENILE'S MOTIONS FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE, AT THE END OF THE DEFENSE CASE, AND FOR A NEW TRIAL AND JUDGMENT OF ACQUITTAL PRIOR TO SENTENCING.

POINT THREE

THE TRIAL COURT ERRED BY SENTENCING THE JUVENILE TO A SIXTEEN MONTH TERM OF INCARCERATION, CONSECUTIVE TO THE SENTENCE HE WAS CURRENTLY SERVING AT THE TIME.

We have reviewed the record in its entirety, including the surveillance video, and are satisfied that Judge Coogan's findings are fully supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). As such, the blows suffered by Officer Pendleton cannot be considered as acts taken by E.S. to defend himself from an aggressor. His aggressor, T.B., had been restrained and was out of reach.

We also discern no basis to disturb the sentence. A judge is permitted to impose a consecutive term for a juvenile, State in the Interest of J.L.A., 136 N.J. 370, 380-83 (1994), and a consecutive term is required when the victim of an assault is a law enforcement officer, N.J.S.A. 2C:44-5i.

Affirmed.

20091104

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