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State ex rel A.R.

April 15, 2010

STATE OF NEW JERSEY IN THE INTEREST OF A.R.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FJ-16-0176-08, FJ-16-0825-08, FJ-16-1547-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 8, 2010

Before Judges Lisa and Alvarez.

A.R., a juvenile, appeals from the February 26, 2008 adjudication finding him guilty of acts of delinquency which, if committed by an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2c, and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a. A.R. was committed to the Jamesburg Training School for Boys for a custodial term of four years for the sexual assault and a concurrent six-month term for the simple assault. This appeal followed. We affirm, except that we exercise original jurisdiction pursuant to Rule 2:10-5, and correct the sentence to the permissible maximum length of commitment of three years. N.J.S.A. 2A:4A-44d(1)(d).*fn1

The only witness presented by the State was R.M. He testified that on July 20, 2007, he lived in Newark in a juvenile shelter, as did A.R. That evening, R.M. was alone in his bedroom when A.R. came to the doorway, ordered R.M. to perform fellatio, and pulled his penis out of his pants. When R.M. initially refused to comply, A.R. became louder and "more aggressive." A.R. grabbed R.M.'s head and forced it down onto his genitals. R.M. acceded to A.R.'s demand because he was "too scared" to do otherwise. R.M. testified that after the act of oral sex was completed, A.R. left the room. R.M. did not report the assault because he did not believe that the staff at the shelter would be responsive.

On cross-examination, R.M. explained that at the time of the incident he did not even move towards his bedroom doorway because he was afraid of A.R., who was bigger and stronger, and whom he had heard talking earlier in the day about fighting. R.M. said he was afraid to report the occurrence for fear he "would end up getting beat up later or something."

The next day, while R.M. was sleeping, he awakened to find A.R. looming over him with his penis near his face. R.M. told A.R. to leave him alone and tried to roll away. A.R. began to insist, but when he heard someone approaching, he fled.

Three days later, R.M. was in the juvenile shelter library when he was accosted by A.R., who began to shove him and laugh at him. R.M. asked a staff member to intercede; she instructed A.R. to stop. After she was no longer present, however, R.M. was accosted a second time by A.R. R.M. returned to the main shelter building, at which point A.R. confronted him again. A.R. laughed and punched R.M. in the face, chipping R.M.'s tooth. Although R.M. asked one of the counselors for medical attention, he was not taken to the hospital until after he helped her fix a fan. R.M. told a friend about the incidents and eventually made a statement to Newark police, who filed the complaint against A.R.

In his findings of fact, the juvenile judge stated that there was no doubt in his mind that the events in question occurred as R.M. described them. He found him to be "utterly credible" given his demeanor and level of candor. He further found R.M. "credible in his acknowledgment of being fearful of" A.R., "fearful that he would be assaulted by him." As a result, the court adjudicated A.R. delinquent on both charges.

A.R. claims as error the following:

POINT I

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE JUVENILE HAD COMMITTED A SEXUAL PENETRATION WITHOUT THE REQUISITE CONSENT OF THE VICTIM, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL. MOREOVER, THE ...


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