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State ex rel H.H.

December 18, 2009

STATE OF NEW JERSEY IN THE INTEREST OF H.H.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FJ-04-3391-07A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2009

Before Judges Graves and J.N. Harris.

This appeal involves a fourteen year-old, defendant H.H., charged with simple assault and harassment for grabbing a classmate's sweatshirt at a bus stop. Defendant appeals the May 9, 2007, order of delinquency for offenses that, had they been committed by an adult, would have constituted disorderly persons simple assault, N.J.S.A. 2C:12-1(a)(1) and petty disorderly persons harassment, N.J.S.A. 2C:33-4(b). Defendant additionally challenges the sentence of eighteen months probation rendered by the trial court. For the reasons that follow, we affirm.

I.

On Thursday, February 8, 2007,*fn1 at approximately 3:00 p.m., four minors were all waiting at a bus stop at the end of the school day: the defendant, the victim M.M., the victim's brother T.M., and the co-defendant M.E. Defendant approached the victim, grabbed him by his hooded, zippered sweatshirt, and told him not to wear blue, the signature color of the Crips street gang. The co-defendant also threatened the victim by stating that he would give the victim a "two piece," meaning two punches. Although the individuals did not have any prior confrontations, and the victim knew defendant only as an acquaintance, M.M. was afraid for his safety when he was grabbed and harassed by H.H.

The following day, the victim's parents notified the school, and Police Officer Robert Scapicchio of the Voorhees Township Police Department was called in to talk with the adults about the incident. The victim's parents signed a witness statement as to what had allegedly occurred the previous day at the bus stop, and a juvenile complaint was also signed by the victim's father, dated February 9, 2007.

On May 9, 2007, Judge Angelo J. DiCamillo conducted the trial concerning the juvenile delinquency complaint. At the beginning of the hearing, the defense moved to exclude any testimony from the victim, alleging the prosecution failed to comply with discovery rules by not disclosing to the defense what testimony the witness was expected to give. The trial court denied the motion, finding that by supplying the names and addresses of testifying witnesses, in addition to the victim's information included in the police report, the prosecution had complied with Rule 3:13-3.*fn2

During the bench trial, Officer Scapicchio testified, using his police report prepared on Friday, February 9, 2007, to refresh his recollection. Throughout his testimony the officer repeatedly--but mistakenly--reported the events as occurring on January 8, 2007, instead of February 8, 2007. The victim and victim's brother testified, supporting each other's story that defendant grabbed and harassed the victim, but they too mistakenly referred to the date of the event as January 8, 2007, having been led by the prosecutor, "I'm going to ask you some questions. Do you recall January 8th, 2007, which was a Thursday."*fn3

After the State rested, the defense moved to dismiss the complaint, arguing that the prosecution failed to establish a prima facie case, because the officer's testimony referred to events allegedly occurring in January 2007, instead of February 2007, as noted in the juvenile complaint. The trial court denied the motion to dismiss, concluding that the discrepancy in the date was not prejudicial to the defendant, and that defendant clearly understood the date of the alleged incident.

Defendant testified on his own behalf. He did not deny being at the bus stop with the victim. However, he adamantly refuted touching the victim, denied telling him not to wear blue clothing, and rebuffed being a member of any street gang. Defendant admitted, however, that he was aware of rumors ...


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