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State ex rel E.P.

April 30, 2010

STATE OF NEW JERSEY IN THE INTEREST OF E.P., A JUVENILE.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket Nos. FJ-06-1779-08 and FJ-06-2053-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2010

Before Judges Sapp-Peterson and Espinosa.

E.P., who was a seventeen-year old juvenile at the time he was charged with committing an offense, appeals from an adjudication of delinquency for committing an act which, if committed by an adult, would have constituted third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(11), use of a laser sighting device against a law enforcement officer. In a subsequent hearing, he was also adjudicated delinquent in connection with a second complaint charging him with a violation of probation (VOP) for committing the aggravated assault offense, failure to abide by the rules of probation and failure to obey school rules. On the aggravated assault adjudication, E.P. was committed to the Juvenile Detention Center for sixty days. On the violation of probation adjudication, the court terminated E.P.'s probation and committed him to the Juvenile Detention Center for sixty days, concurrent with the disposition imposed on the aggravated assault adjudication. The court stayed execution of the sentences pending appeal. We affirm.

The facts presented to the court during the bench trial disclosed that on April 3, 2008, Officer Michael Phillips of the Millville Police Department was on routine patrol in a marked police vehicle in an area of the city that the officer described as a high crime area. As he turned westbound off of Fifth Street onto Vine, his vehicle was illuminated by a red laser. Officer Phillips circled the block and returned to the location where the illumination occurred. He observed a juvenile looking westbound down Vine in the direction that he had been traveling moments earlier.

Officer Phillips stopped his vehicle and approached the juvenile, subsequently identified as E.P. At that time, E.P. put his hand in his right coat pocket. Officer Phillips testified that when he asked E.P. to remove his hand from the pocket, he observed E.P. move his right hand around to "the middle of his back area, and appeared to be digging in his... waistband." While patting E.P. down, a laser device fell out of one leg of his pants.

E.P. testified that he was using the laser pointer to try to get his dog to come home and indicated that he did not deliberately point the laser at the police vehicle. He indicated that the dog went up the stairs to his home with the police officers after he had been detained. E.P.'s sister testified that E.P. would let the dog out at night and use the laser pointer to get the dog to come home, and his mother also testified that E.P. used the laser to play with the dog. Neither his sister nor his mother was outside at the time Officer Phillips encountered E.P. Officer Phillips testified that he did not see any dog outside as he drove in the area just before his vehicle was illuminated.

In an oral opinion rendered on September 25, 2008, the court found that the State had proved the aggravated assault charge beyond a reasonable doubt. In reaching its decision, the court discounted E.P.'s testimony as lacking credibility. The court also rejected the testimony of E.P.'s family members that E.P. used the laser pointer to play with the dog or get the dog back into the house because there was nothing in the police reports to that effect. Likewise, the court was not persuaded by the laser pointer experiments performed by the defense investigators because a laser pointer other than the one police confiscated from E.P. was used for the experiments and the witnesses "could not say anything about the power of the respective lasers. They could not say anything about the wave lengths of the respective lasers. They could not say anything scientific about the lasers. They could not say anything about the weather conditions being similar in regard to the lasers." The trial judge concluded that there "was no proof whatsoever that their tests were in any way similar to what existed on the night of April [third]." The court viewed the testimony of Officer Phillips and E.P. as the critical evidence and made the following factual findings:

Officer Phillips' report had a mistake in it in regard to a turn. It has no great impact on the [c]court. Other discrepancies shown by [defense counsel] during his cross-examination [had] no big impact on the [c]court in regard to this case. On cross-examination, again... Officer Phillips said, "A sharp red light caught my eye." The report did not say, "illuminated." He said that the light had caught his eye, a sharp red light. He said it a couple of times on cross-examination. [He] [l]ooked into his rear view mirror, observed the red laser in the rear view mirror. He says although it was not in his report, his observations were a little longer [sic] other than just the rear view mirror.

The officer said that the laser was on the side of the car. That was not in his report. [The] [o]fficer admitted that his memory would be better in the days after he wrote his report than now.

That was basically the testimony of the State in regard to this case. Under the circumstances, the [c]court does, in fact, it observed... Officer Phillips' body language, facial expressions, and demeanor. It does, and did appear to the [c]court, and the [c]court does find that Officer Phillips was testifying truthfully. I place great weight on his ...


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