March 23, 2010
STATE IN THE INTEREST OF T.S., JUVENILE-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-298-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2010
Before Judges Carchman and Lihotz.
T.S., a juvenile, appeals from an adjudication of delinquency for what would have been, if committed by an adult, second-degree attempted robbery, N.J.S.A. 2C:5-1a(1) and N.J.S.A. 2C:15-1a(1). The trial judge sentenced the juvenile to a probationary sentence of two years together with mandated penalties and assessments. We affirm.
These are the facts adduced at the one-day trial of this offense.
On July 24, 2008, Hackensack Police Detectives Thomas Aletta, Kevin O'Boyle and Detective Smith were on robbery detail at various Hackensack locations, as a number of restaurant employees in the area had recently been robbed in the city while walking home from work at night.
Officer Aletta was working undercover. He was unshaven and dressed in disheveled street garb to appear drunk and homeless. After noticing a group of young males gathered on Central Avenue, he staggered past them onto Railroad Avenue. Officer Aletta then heard a group of males rapidly approaching him from behind. Officer Aletta heard someone shout, "Get that guy, let's take his shit, let's get that guy" and "[l]et's get that mother fucker, he's drunk. Let's take his shit." At this time, Officer O'Boyle, who had been parked nearby in an unmarked car, intercepted the impending confrontation and shouted "Stop, police!" The group fled across the nearby railroad tracks and the officers pursued them. Having observed the assailants, Officer Aletta positively identified T.S. as one of the three juveniles involved in the incident.
Officer O'Boyle corroborated Detective Aletta's observations and added that he observed three males running full speed behind Detective Aletta. He heard T.S., the "lead guy" or "ringleader" shout "[g]et that mother fucker, he's drunk."
Although another juvenile, M.C., indicated that he had intended to rob Officer Aletta, he claimed that he changed his mind prior to committing the act. M.C. was confronted with the statements he made at his plea hearing. These statements confirmed that the three juveniles, including T.S., all intended to rob Officer Aletta. At trial, M.C., who did not know the officer, also offered that the three juveniles were not "running up" on Officer Aletta, but rather, were "walking fast." M.C. also denied hearing any threats being shouted at Officer Aletta.
A.S., the third juvenile involved in the incident, denied any intention of committing a robbery and claimed that he had perjured himself at the August 27, 2008 guilty plea hearing. At his plea hearing, A.S. also confirmed that all three juveniles intended to rob Officer Aletta on the evening in question.
T.S. testified on his own behalf. He claimed that he recognized Officer Aletta's cover, and that one friend even said, "[c]ut that shit out, Aletta." He also indicated that he was pursuing a female friend and two children - not Officer Aletta - down Railroad Avenue; however, he was unable to identify or name the female friend he claimed to be following.
In an extensive and thorough twenty-two page oral opinion, Judge Guida determined that the State had established the elements of attempted robbery beyond a reasonable doubt. Critical to his decision were his findings as to the credibility of the witnesses including the juvenile. In that regard, the judge found that the officers were credible while M.C. and A.S.'s recantation of their earlier plea agreement testimony was incredible. In assessing credibility, the judge noted that he "takes into account several factors including the demeanor of the witnesses, including a witness' prior testimony if there was any and including the witness' body language as such, [and] any motives that the witnesses may have to not tell the truth." He adjudicated T.S. a delinquent and thereafter, imposed sentence. This appeal followed.
On appeal, T.S. asserts:
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE JUVENILE WAS GUILTY OF ATTEMPTED ROBBERY BEYOND A REASONABLE DOUBT, THE ADJUDICATION OF THE DELINQUENCY WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE VACATED.
A. The Evidence Failed To Demonstrate That The Juvenile "Attempted" A Robbery
B. The Evidence Failed To Demonstrate Beyond A Reasonable Doubt The Element of Intent As Set Forth In The Substantive Crimes Of Attempted Burglary
To establish an "attempt" to commit a criminal offense, the State must prove beyond a reasonable doubt that the act was a substantial step in the course of conduct planned to accomplish the criminal result, and the act is strongly corroborative of criminal purpose.*fn1
The "substantial step" requirement in the "attempt" statute, N.J.S.A. 2C:5-1a(3), is satisfied if a defendant acts in a way that is "strongly corroborative of the firmness of his purpose" to carry out the crime. State v. Fornino, 223 N.J. Super. 531, 538 (App. Div.), certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109 S.Ct. 152, 102 L.Ed. 2d 123 (1988) (quoting 1971 New Jersey Penal Code Commentary, Vol. II, at 117-18); N.J.S.A. 2C:5-1b.
Defendant claims that the State failed to establish that the juvenile took a "substantial step" in the commission of a robbery. N.J.S.A. 2C:5-1.
As we have noted, the "substantial step" requirement of N.J.S.A. 2C:5-1 is satisfied when a defendant acts in a way that is "strongly corroborative" of his or her alleged criminal purpose. State v. Farrad, 164 N.J. 247, 258 (2000); Fornino, supra, 223 N.J. Super. at 538.
Here T.S, with M.C. and A.S., ran up to Officer Aletta from behind declaring their stated intent to "Get that guy, let's take his shit . . . [l]et's get that mother fucker, he's drunk. Let's take his shit." Combined with the plea statements of M.C. and A.S. that the three acted in concert and as a group, the judge properly concluded that the State had established the elements of an attempt. Most significantly, Officer O'Boyle was able to identify T.S. as the individual shouting the comments to his compatriots as they moved forward towards Officer Aletta.
We are satisfied that considered within the totality of the circumstances, the "aggressive" movements of the juveniles, the shouted statements of purpose and intent and the running towards Officer Aletta, all supported a finding of an attempt to commit a robbery.
In addition, T.S. asserts that the verdict was against the weight of the evidence. Our standard of review is relevant when considering a claim that the verdict was against the weight of the evidence. "Appellate review of a judge's decision in a criminal trial is limited to 'determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' given the burden of proof, which is proof beyond a reasonable doubt." State v. Castagna, 387 N.J. Super. 598, 604 (App. Div.) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)), certif. denied, 188 N.J. 577 (2006). We shall not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" State v. Morgan, 393 N.J. Super. 411, 422 (App. Div. 2007) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We shall give deference to the trial court's findings which "'are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" Ibid. (quoting Locurto, supra, 157 N.J. at 474).
Here Judge Guida focused directly on the factors enunciated in Morgan and Locurto. His credibility determinations were precise and his additional findings more than sufficient to support the adjudication. In fact, once the credibility determinations were made, the weight of the evidence becomes overwhelming as two of the juveniles previously admitted their actions, and Officers Aletta and O'Boyle provided a sufficient factual and evidential basis to support the adjudication.
We have carefully reviewed the entire record and conclude that T.S's additional arguments are without merit.