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State ex rel J.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 18, 2010

STATE OF NEW JERSEY IN THE INTEREST OF J.S.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FJ-07-3744-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 29, 2010

Before Judges Cuff and Fasciale.

J.S., a juvenile, was adjudicated delinquent on charges, which if committed by an adult, would constitute second-degree robbery, in violation of N.J.S.A. 2C:15-1; and fourth-degree criminal mischief, contrary to N.J.S.A. 2C:17-3.*fn1 He was sentenced to a term of eight months probation on the second-degree robbery offense, to be served concurrently with an existing probationary term. No sentence was imposed on the criminal mischief charge.

On April 25, 2009, J.S. accompanied his aunt, Veronica Holloway, to Sasson Youth World, a clothing store in East Orange. Holloway testified that she went to Sasson to obtain a cash refund for the amount she had previously paid for items on layaway or "to retrieve items equaling to that amount."

Both the cashier and manager explained to Holloway that Sasson's policy allowed only store credit for unwanted layaway items. Holloway adamantly refused to accept the store credit. As Holloway argued with store employees, J.S. told her "you know how we do it." Holloway grabbed a bundle of clothes from the counter and she and J.S. then attempted to leave the store with a bundle of clothes.

Sasson's security guards, Richard (whose last name is not mentioned in the transcript), and Julian France (France) stopped Holloway and J.S. from exiting through the front door with the clothes. Holloway did not give up the clothes voluntarily; a tug of war ensued before security guards retrieved the clothes from Holloway.

Sasson had several security cameras, which captured on tape most of the interaction between Holloway, J.S., and store employees, including the argument at the cash register and the altercation at the front exit. The video clearly showed J.S. assisting Holloway to leave the store and push France during the altercation.

With the front exit blocked by the security guards, J.S. and Holloway turned to flee through the rear exit. J.S. stated he was "going to get the clothes by one way or the other." No security footage captured Holloway and J.S. exit through the rear of the store. Patricia Stuffle, the store manager, testified that after the pair exited the store, J.S. turned and hurled a stone block toward the store, narrowly missing her, but shattering the store's glass rear door. Police apprehended Holloway and J.S. on the street outside the store.

The trial judge found that J.S. joined his aunt in her attempt to remove from the store clothes for which his aunt had not paid. She further found that J.S. struggled with security guard France as they attempted to leave through the front exit and threw a stone at the rear door as they fled. The judge held these actions by J.S. satisfied the elements of robbery and criminal mischief.

On appeal, the juvenile raises the following arguments:

POINT I THE RECORD BELOW DID NOT CONTAIN SUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE TRIAL JUDGE'S ADJUDICATION OF DELINQUENCY FOR SECOND-DEGREE ROBBERY.

POINT II THE RECORD BELOW DID NOT CONTAIN SUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE TRIAL JUDGE'S ADJUDICATION OF DELINQUENCY FOR FOURTH-DEGREE CRIMINAL MISCHIEF.

Having reviewed the record in its entirety, including the surveillance video, we are satisfied that the record contains more than sufficient evidence to support the adjudication of delinquency for second-degree robbery. A person is guilty of robbery if he uses force in the course of committing a theft or during flight after the theft or the attempted theft. N.J.S.A. 2C:15-1(a)(1). In addition, a person is an accomplice of another if "with the purpose of promoting or facilitating the commission of the offense . . . [he aids] or attempts to aid such other person in . . . committing it." N.J.S.A. 2C:2-6c(1)(b).

Here, the evidence clearly demonstrates that J.S. stood close to Holloway as she argued with a store manager that she wanted a cash refund for the money paid for clothing placed on layaway. Through this conversation, J.S. learned that Holloway had not paid the entire amount on the clothing. When Holloway snatched the clothing from the counter, he knew she had not paid for the clothing. When she made her second attempt to leave the store with the clothing, J.S. tried to assist her departure. He struggled with one of the security guards as Holloway tussled with another to maintain possession of the clothing. When rebuffed at the front exit, J.S. and Holloway turned and fled through the rear entrance. After they left the store, J.S. turned and threw a large stone or brick at the rear door at which the manager stood. In addition, two witnesses heard him say that he knew how to obtain the clothing.

A trier-of-fact, either a judge or a jury, often determines an accused's purpose through his actions. Here, the record clearly demonstrates that J.S. assisted Holloway to leave the store with clothing for which she had not fully paid, and the physical force used by him to assist her departure demonstrated that he did so with the purpose to facilitate the theft of the clothing.

The record also fully supports the finding that J.S. committed criminal mischief; however, the record is bereft of any evidence of the value of the door. The State concedes that N.J.S.A. 2C:17-3b(2) requires proof of pecuniary loss of $500 or more and the record contains no evidence of pecuniary loss. Therefore, we remand to amend the Juvenile Order of Disposition to reflect adjudication of criminal mischief as a disorderly persons offense rather than a fourth-degree offense.

Affirmed in part; remanded for amendment of Juvenile Order of Disposition.


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