On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FJ-08-1153-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 22, 2010
Before Judges Axelrad and Lihotz.
S.R., a juvenile, appeals from an adjudication of delinquency for conduct that would constitute the third-degree offenses of burglary, N.J.S.A. 2C:18-2, and theft, N.J.S.A. 2C:20-3, if committed by an adult. On appeal, S.R. contends:
(1) the State failed to present any evidence of an essential element of theft, i.e., that the value of the items stolen exceeded $500 but were less than $75,000, N.J.S.A. 2C:20- 2(b)(2); (2) the defense motion for judgment of acquittal should have been granted; and (3) his sentence of an eighteen-month confinement at Jamesburg was excessive. We affirm.
During the two-day bench trial, Patrolman George Stebich, the investigating officer; Margaret Hellerman, the victim homeowner; Michael Hellerman, her son, who was S.R.'s peer; and S.R. testified.*fn1 According to the testimony of Michael, he was awakened from sleeping on the couch in his parents' converted garage by S.R. hopping in through a broken window. S.R. was an acquaintance of Michael's who had been in the garage several times and was aware the window was broken and individuals could enter and exit that way. S.R. told Michael a fabricated story that he had robbed a gas station and was being chased by the police, presumably to explain his presence there. S.R. then exited through the broken window and ran to the front of the house, where he met up with another juvenile who Michael knew, who was exiting the front door of the house carrying a computer mouse and monitor. Michael heard the other juvenile yell, "Yo, [S.], come on, come on, let's go, let's go, we got to get out of here" and observed S.R. and the other juvenile then driving away.
Michael's mother was informed of the incident. She promptly reported to the police the robbery of their new computer system and printer, which she had just purchased to replace the one that was stolen in a burglary of their home two months before this incident. Margaret supplied receipts to the officer. The officer's report, which described the items stolen and listed their value at $1,000, was moved into evidence.
Judge Mary White denied the defense motion for judgment of acquittal based on Michael's testimony, which if believed, demonstrated that S.R. and the other juvenile were acting in concert with each other - S.R. entered the Hellerman's garage through a broken window, which he had previously observed, seeking valuable items such as an Xbox and games that had previously been stored there while his cohort was in the house taking other valuable items. S.R. and the other juvenile arrived together and left together in the same vehicle.
At the conclusion of trial, the judge made credibility findings in favor of Michael and Margaret, noting, for example, that there would have been no reason for Michael to fabricate the story about the gas station robbery, which S.R. had apparently used as an excuse for his presence in the garage. As the incident occurred on a weekday, the judge surmised that S.R. had not expected Michael to be there. The judge found S.R. and the other juvenile "were working in concert," particularly evidenced by S.R.'s getting into the vehicle with his cohort "after realizing that the entry into the garage wasn't going to be fruitful because one of the owners of the home was there." She concluded that S.R.'s conduct demonstrated "a joint intent, a joint operation, [and] constructive joint possession" beyond a reasonable doubt. Accordingly, the judge found S.R. guilty of third-degree burglary and theft, and expressly found the latter was a third-degree offense by virtue of the value of the computer.
Our scope of appellate review of the factual determinations of the trial court is extremely narrow. It is limited to an evaluation of whether the trial court's findings are supported by substantial, credible evidence in the record as a whole. State v. Locurto, l57 N.J. 463, 471 (l999); State v. Johnson, 42 N.J. 146, 161 (1964). We defer to those findings that are substantially influenced by the judge's feel of the case, which we do not enjoy upon appellate review. Locurto, supra, 157 N.J. at 471; Johnson, supra, 42 N.J. at 161; State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000). We are satisfied Judge White's credibility assessments and factual findings are amply supported by the record. There was sufficient evidence in the record to sustain the adjudication on both charges beyond a reasonable doubt. The police report was sufficient to satisfy the monetary element of third-degree theft. S.R.'s arguments on appeal do not provide us with any basis to second-guess the trial judge's conclusions.
Judge White also carefully considered the relevant aggravating and mitigating factors under N.J.S.A. 2A:4A-44, concluding that incarceration was the proper disposition for S.R. We discern no abuse of discretion by the court as to the disposition, which was within statutory limits, and thus no legal basis to disturb S.R.'s sentence. See State ex rel. C.V., 201 N.J. 281, 294-96 (2010) (recognizing the flexibility and expertise of ...