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State ex rel D.T.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 23, 2010

STATE IN THE INTEREST OF D.T.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FJ-16-1249-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 3, 2010

Before Judges Axelrad and Fisher.

D.T., a juvenile, appeals from an adjudication of delinquency for an offense that would constitute simple assault under N.J.S.A. 2C:12-1a(1) if committed as an adult. On appeal D.T. contends the court erred in crediting the testimony of the victim, M.V., and thus its finding that D.T. kicked M.V. is not supported by sufficient credible evidence. We affirm.

D.T. was charged with causing bodily injury to M.V., another juvenile, by kicking him on the left side of his body, causing pain to his ribs. Judge de la Carrera heard testimony about consensual wrestling matches and a subsequent altercation among middle school students outside of the library after school hours. It is undisputed that M.V. agreed to wrestle G.C., who was on the wrestling team, and did so and won. M.V. then wrestled S.L. What occurred next is disputed.

The judge made credibility assessments in favor of S.L. and M.V., and found that D.T. and his friends decided to jump in and escalate the wrestling match into a fight. The court implicitly discounted D.T.'s testimony in which he denied any participation in the events. Specifically, the judge found that D.T. kicked M.V. in the right shoulder while M.V. was down, causing a stinging sensation. The judge also found the evidence established the victim was kicked in the ribs by several of the boys, but there was no specific evidence D.T. had kicked him there.

Citing State v. Lamb, 125 N.J. Super. 209, 216-17 (App. Div. 1973), the judge found that the proofs presented substantially adhered to those contained in the complaint and that D.T. was aware of the actual charge against him, namely a simple assault resulting from the fight. Accordingly, the judge amended the complaint and found D.T. guilty of simple assault, specifically for kicking M.V. in the shoulder and causing a stinging sensation.

Our scope of appellate review of the factual determinations of the trial court is extremely narrow. It is limited to an evaluation of whether the trial court's findings are supported by substantial, credible evidence in the record as a whole. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161 (1964). We defer to those findings, which are substantially influenced by the judge's feel of the case, which we do not enjoy upon appellate review. Ibid.; see also State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000). We are satisfied Judge de la Carrera's credibility assessments and factual findings are amply supported by the record, and D.T.'s arguments on appeal do not provide us with any basis to second-guess them.

Affirmed.

20100223

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