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State ex rel C.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2010

STATE OF NEW JERSEY, IN THE INTEREST OF C.H., JR., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket Nos. FJ-06-1270-08; FJ-06-1852-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 29, 2010

Before Judges Stern and Wefing.

C.H., Jr., was adjudicated a delinquent for conduct which, if committed by an adult, would have constituted fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(d). He was sentenced to sixty days in the county's detention center as a condition of six months probation, and participation in anger management counseling. Fifty days of that detention was suspended. C.H., Jr., had earlier entered a plea of guilty to a downgraded charge of harassment, a petty disorderly persons offense, in return for a delayed disposition. With the adjudication of the aggravated assault charge, he was sentenced to a concurrent thirty days in the county's detention center. C.H., Jr., appeals from the adjudication and the disposition. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The aggravated assault occurred at the cafeteria of Bridgeton High School, where C.H., Jr., was a student. He entered the cafeteria at a time when he was supposed to be in class. Richard Shemp, a science teacher at the high school, was on cafeteria duty. He knew C.H., Jr., and that he was not supposed to be in the cafeteria at that time. He gestured to the boy to leave, but he did not. Shemp testified that, instead, C.H., Jr., made an obscene gesture and continued toward a table where he began to speak with a friend. Shemp approached him and told him to leave. C.H., Jr., did not but continued to talk. Shemp asked if he had a pass, and C.H., Jr., produced a pass which permitted him to go to the lavatory but not the cafeteria. After inspecting it, Shemp again told C.H., Jr., to leave. Shemp took the boy's arm as if to guide him out of the cafeteria, and the boy threw it off. Again Shemp took the boy's arm and C.H., Jr., grabbed Shemp with both hands on his shirt and would not let go. Shemp grabbed the boy's shirt, and the two struggled briefly. Another student came up and told C.H., Jr., to release Shemp, but he would not. He was pushed into the hall where he finally released Shemp. Security arrived and C.H., Jr., proceeded to the school office.

On appeal, C.H., Jr., raises the following arguments:

POINT I

THE COURT SHOULD NOT HAVE CONSIDERED SHEMP'S TESTIMONY THAT HE SUFFERED BODILY INJURY IN DETERMINING WHETHER THE JUVENILE COMMITTED SIMPLE ASSAULT DUE TO THE STATE'S FAILURE TO PROVIDE THE INFORMATION THAT SHEMP SUFFERED BODILY INJURY TO THE DEFENSE IN DISCOVERY.

POINT II

THE VERDICT ON THE AGGRAVATED ASSAULT CHARGE WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT III

CUMULATIVE ERRORS WARRANT A NEW TRIAL (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).

In his testimony, Shemp said that his fingers hurt after the incident, and he had them X-rayed, but no damage was found. Defense counsel made no objection to this testimony at the time but cross-examined Shemp extensively about the fact that he did not mention this in the two reports he had prepared. After the luncheon recess, defense counsel asked the court to strike this testimony because he had not been alerted to a claim of bodily injury. The trial court refused to do so, noting that C.H., Jr., was charged with simple assault and that an attempt to cause bodily injury is an element of that offense. It noted further that the offense of simple assault had been elevated to aggravated assault in light of Shemp's status as a teacher. It agreed that it would not consider the testimony to elevate the offense to one of the third degree. It offered defense counsel a continuance if he felt he had been placed at a disadvantage. After consulting with his client, he declined the continuance. The trial court's handling of the issue was entirely appropriate; we can perceive no error.

Having reviewed the transcript of the hearing before the trial court, there is no merit to defendant's second contention. The trial court found Shemp a credible witness but rejected the testimony of defendant and his friend R.M. Shemp's testimony contains ample support for a finding of simple assault. State v. Locurto, 157 N.J. 463, 470-71 (1999). Because we are satisfied there was no error in the trial, the claim of cumulative error must fail.

Finally, we turn to the disposition. We recognize that this was defendant's first adjudication as a delinquent.

Nonetheless, we decline to interfere with the trial court's dispositional discretion.

The court carefully reviewed each of the applicable aggravating and mitigating factors, N.J.S.A. 2A:4A-44, explaining its reasons for including that a period of detention was required. A physical assault upon a teacher cannot be tolerated. The trial court's disposition was a recognition that punishment is as integral to the treatment of juvenile offenders as rehabilitation. State in re J.D.H., 171 N.J. 475, 483 (2002). The recent decision, State ex rel T.S., ___ N.J. Super. ___ (App. Div. 2010), is distinguishable and does not warrant a remand of this matter.

Affirmed.

20100802

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