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State ex rel A.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below).

POINT II

THE IMPOSITION OF A FOUR YEAR CUSTODIAL TERM ON THE ADJUDICATION OF SECOND DEGREE SEXUAL ASSAULT IS ILLEGALLY EXCESSIVE AND MUST BE REDUCED.

I.

A.R. contends that the State failed to prove, as required by the statute, that there was an absence of "affirmative and freely-given permission." In re M.T.S., 129 N.J. 422, 448 (1992). In order to establish the statutory elements for sexual assault, the State is required to prove not only sexual penetration but that penetration "was accomplished without the affirmative and freely-given permission of the alleged victim." Ibid.

Our review of credibility findings is highly deferential. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). The juvenile judge specifically referenced his observations of R.M.'s demeanor while testifying. There was nothing inherent in R.M.'s testimony which raised doubts about his veracity. The court's findings are unassailable and entitled to the deference we accord them.

We next consider whether the court's fact-finding was supported by adequate competent evidence in the record. A court's fact findings are not "disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)).

R.M. credibly testified that he was afraid of A.R. and had no faith in the ability of the staff at the juvenile shelter to protect him. He was afraid of being physically assaulted by A.R.; in fact, A.R. actually punched him in the face at a later point in time. When he turned to staff for medical attention, R.M.'s situation was not addressed until he assisted in the repair of a fan. We concur with the court's determination that R.M. did not give affirmative permission to the act of sexual penetration. R.M.'s recounting of the event established beyond a reasonable doubt that the act of sexual penetration was accomplished without "affirmative and freely-given permission." In re M.T.S., supra, 129 N.J. at 448. Accordingly, we affirm A.R.'s conviction.

II.

As to the sentence, the State agrees that the maximum time of incarceration for this second-degree offense was three years. The court did sentence A.R. on multiple offenses including these charges. Nothing on the record, however, indicates that the judge intended to impose consecutive terms for any other crimes. Under the circumstances, we will exercise original jurisdiction pursuant to Rule 2:10-5 and resentence defendant. The exercise of original jurisdiction is discouraged unless the sentence imposed was "clearly mistaken." State v. Thomas, 195 N.J. 431, 437 (2008) (citing State v. Kromphold, 162 N.J. 345, 355 (2000)). In this instance, we are convinced that the court was clearly mistaken in imposing a sentence that exceeded the statutory maximum term of three years. Despite the strong preference for a remand for that purpose, in this instance, we choose to simply correct the sentence by requiring that A.R. serve a maximum term of three years. A judgment to that effect is to be entered accordingly.

Affirmed as to the adjudication; sentence modified to three years.


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