December 1, 2010
STATE OF NEW JERSEY IN THE INTEREST OF F.H, A JUVENILE.
Submitted September 29, 2010 - Decided Before Judges Fisher and Sapp-Peterson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-193-09. Yvonne Smith Segars, Public Defender, attorney for appellant F.H. (Steven J. Sloan, Designated Counsel, on the brief). Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Barbara Rosenkrans, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
F.H., following a bench trial, was adjudicated a delinquent for an offense which, if committed by an adult, would have constituted simple assault, N.J.S.A. 2C:12-1. He was sentenced to a one-year period of probation and referred for counseling in the area of "sensitivity to gender or sexual orientation differences[.]" The appropriate fines and penalties were also imposed. In this appeal the juvenile argues: (1) the court's verdict was against the weight of the evidence; (2) the police officer's reference to a non-testifying witness violated State v. Bankston, 63 N.J. 263 (1973); (3) the show-up identification violated his due process rights and right to a fair trial; and
(4) the court's refusal to grant an adjournment of the trial to permit defense counsel the opportunity to prepare a summation also violated his due process rights and right to a fair trial. We reject all of defendant's arguments and affirm.
The events from which the delinquency adjudication was reached occurred on July 6, 2008. On that date, the victim was walking along Academy Street in Newark, returning from a local convenience store. As he walked past a group of youths, some of the youths began to taunt him relative to his sexual orientation. He was subsequently followed and offered to engage in a fair fight. Once he immobilized one of the youths, two other youths ran toward him and eventually caught him. While he stood in a fetal position, he was repeatedly assaulted.
Police arrived within minutes of the incident, drove the victim around the area, and the victim identified his attackers, who were amongst a group of individuals. The victim claimed that his identification was largely based upon his observation of the attackers' faces, but he also recalled the clothing of the individuals. He described F.H. as wearing a muscle-like T- shirt. F.H. was also wearing warm-up pants, but by the time victim identified him, the juvenile was only wearing shorts.
F.H.'s claim that the verdict was against the weight of the evidence focuses upon the credibility of the victim's identification. He points out: (1) the incident occurred at night; (2) the victim testified that he was hit from the rear;
(3) the victim also testified that at one point he was struck while in a fetal position; and (4) there was no independent witness identifying defendant as one of the attackers. Under these circumstances, the juvenile urges that the evidence demonstrated that the victim's vision was obscured and therefore his identification was unreliable.
F.H. acknowledges that his challenge that the adjudication was to the weight of the evidence implicates the judge's credibility determinations. When a trial judge, in a bench trial, has had the opportunity to take testimony and evaluate the credibility of witnesses, resulting in an adjudication of delinquency, our scope of review of the judge's findings of fact is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999); see also State v. Elders, 192 N.J. 224, 243 (2007). We "limit our review of those findings and recommendations to a consideration of whether they are supported by sufficient credible evidence in the record[.]" State v. Chun, 194 N.J. 54, 88-89, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Arthur, 184 N.J. 307, 320 (2005). Such findings are entitled to our deference. See State v. Adams, 194 N.J. 186, 203 (2008); Elders, supra, 192 N.J. at 243. In other words, our role is not to "engage in an independent assessment of the evidence as if [we] were the court of first instance." Locurto, supra, 157 N.J. at 471.
Here, the victim testified that his identification was based upon not only the faces of the individuals but their clothing as well. Prior to being attacked, the victim engaged in colloquy with his attackers, offering to engage in a fair fight that turned into a three-on-one after the victim bested one of the youths. While the opportunity to observe his attackers prior to the attack may have been brief, and difficult during the attack, the court nonetheless credited the victim's testimony, and this determination is entitled to our deference. Adams, supra, 194 N.J. at 203.
F.H. next claims that the victim's identification of him was impermissibly suggestive. Whether an identification has been impermissibly suggestive is determined "by evaluating the totality of the circumstances." State v. Herrera, 187 N.J. 493, 502 (2006) (citing Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1973, 18 L. Ed. 2d 1199, 1206 (1967)). In reviewing an eyewitness' identification, the test is "whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1973) (internal quotations omitted); Herrera, supra, 187 N.J. at 503. The court should weigh the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).]
Thus, the court must first "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04.
In Herrera, we provided examples of impermissibly suggestive identifications, including when a police officer describes a suspect to the victim as the person found driving the victim's stolen vehicle, or telling a victim that police have "got him" just before presenting the suspect to the victim for identification. Id. at 505.
In the present matter, there was nothing impermissibly suggestive about the victim's identification of defendant and the other attackers. An officer merely drove the victim to the area where the incident occurred and allowed him to observe the persons who were hanging outside. They passed two individuals and the victim indicated that his attackers were not these two persons. When they drove past a group of seven individuals, the victim made his identification. These events occurred within a short period of time following the attack, and the juveniles were found in the same location where the victim first encountered them. With the exception of F.H., who had removed his warm-up pants, the juveniles identified by the victim were attired in the same clothing. Although defense counsel attacked the reliability of the victim's identification, given his fetal position during most of the attack, the court found the victim's testimony credible, and we should accord deference to that determination. Adams, supra, 194 N.J. at 203.
Defense counsel asked for a brief adjournment to review her notes in preparation for her closing argument because "[a]ll of the information that was put on the record today is brand new, 90 percent of it[.]" The court denied the request, indicating to counsel that "it's never going to be fresher in your mind or my mind than right now." F.H. does not proffer how defense counsel would have otherwise proceeded with her summation had the adjournment been granted. Nor is there any indication that defense counsel objected to the testimony of any of the State's witnesses on the basis that the evidence had not been previously disclosed during discovery.
We review the denial of the adjournment request on an abuse of discretion standard and discern no such abuse. Defense counsel incorporated the statements of her co-counsel into her summation and then addressed what she urged were inconsistencies in the victim's testimony. While a brief adjournment may have been prudent, all of the issues presented during the bench trial were properly summarized and raised before the court.
F.H.'s remaining contention that Officer William Washington's reference during testimony to a non-testifying eyewitness was contrary to Bankston*fn1 is without sufficient merit to warrant discussion beyond the following brief remarks. R. 2:11-3(e)(2). The officer's testimony was in response to a question from defense counsel regarding the officer's report,
which indicated that a passerby had called police about the assault. Defense counsel then asked the officer whether the passerby provided any information about what had been observed, to which the police officer responded, "an assault." The court then interrupted the questioning and asked whether defense counsel was aware of Bankston. Defense counsel's questioning that raised a Bankston issue cannot now be urged as a basis for reversal. State v. Jenkins, 178 N.J. 347, 359 (2004) (noting that the doctrine of invited error "is designed to prevent [a party] from manipulating the system").