December 8, 2010
STATE OF NEW JERSEY IN THE INTEREST OF J.S.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FJ-13-1183-09 and FJ-13-1269-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010
Before Judges Sapp-Peterson and Simonelli.
Defendant J.S., a juvenile, appeals from an adjudication of an act of delinquency that, if committed by an adult, would constitute simple assault against a teacher, which rises to third-degree aggravated assault if bodily injury results, N.J.S.A. 2C:12-1b(5)(d). After trial, the trial judge imposed a one-year probationary term conditioned on J.S.'s attendance at and completion of an anger management program.
The charge against J.S. stems from an incident that occurred between him and a teacher, F.R., in the hallway of J.S.'s high school. The vice-principal, with the assistance of a security guard, was restraining a student. Numerous students crowded the hallway at the time. As F.R. was directing students to their classrooms, he saw J.S. moving toward the restrained student and vice-principal. F.R. repeatedly instructed J.S. to go to his classroom, but J.S. ignored him. When J.S. came within approximately ten feet of the vice-principal, F.R. stepped in front of him, put his hand on J.S.'s shoulder, and attempted to redirect J.S. to his classroom. In response, J.S. put both of his hands on F.R's shoulders, said "get out of my way," and shoved F.R. backwards causing F.R. to step back "a couple of steps to gain . . . balance." F.R. felt pressure as J.S. pushed him but sustained no injuries or pain.
J.S.'s mother viewed a videotape of what had occurred in the hallway. The mother admitted that the videotape did not show either J.S. or F.R. Nonetheless, J.S. made a Brady*fn1 motion to dismiss based on the State's failure to produce the videotape. The trial judge denied the motion, finding there was no prejudice to J.S. or denial of due process " [b]ecause there's nothing inculpatory or exculpatory in [the videotape], there's really nothing that this tape could have added."
The trial judge also found that J.S. pushed F.R., F.R. experienced pressure and "went back a couple of steps as a result of the push[,]" and the intentional physical contact alone, or the bodily sensation or physical discomfort caused by the push during the physical contact, constituted bodily injury for the purpose of simple assault. The judge adjudicated J.S. delinquent, concluding he committed an assault on a teacher in violation of N.J.S.A. 2C:12-1b(5).
On appeal, J.S. contends the evidence was insufficient to support the adjudication of delinquency. We disagree.
Our review of a judge's verdict in a non-jury case is limited. The standard is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State in the Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Moreover, "'we should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
"[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." State in the Interest of W.M., 364 N.J. Super. 155, 165 (App. Div. 2003); see also State in the Interest of J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (noting that an appellate court will defer to the trial judge's factual findings where they "are supported by substantial, credible evidence in the record as a whole"), certif. denied, 180 N.J. 453 (2004). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Applying these standards, we discern no reason to interfere with the trial judge's findings and conclusions.
"A person is guilty of aggravated assault if he commits a simple assault upon any 'teacher or other employee of a school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a member or employee of a school board'." State in the Interest of S.B., 333 N.J. Super. 236, 242 (App. Div. 2000) (quoting N.J.S.A. 2C:12-1b(5)(d)). A person is guilty of simple assault if he or she "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or . . . [n]egligently causes bodily injury to another with a deadly weapon; or . . . [a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a(1)-(3). "'Bodily injury' is defined as 'physical pain, illness or any impairment of physical condition.'" State in the Interest of S.B., supra, 333 N.J. Super. at 242 (quoting N.J.S.A. 2C:11-1a); see also N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997).
"Not much is required to show bodily injury." N.B., supra, 297 N.J. Super. at 43. "Even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey Law." New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995); see also State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988) (concluding that a stinging sensation from a purposeful and knowing slap is sufficient to establish simple assault).
Here, J.S intentionally pushed F.R., causing F.R. to feel a pressure sensation. This sufficiently established bodily injury necessary for a finding of simple assault. Accordingly, there is ample credible evidence supporting the judge's conclusion that he committed an assault on a teacher in violation of N.J.S.A. 2C:12-1b(5).
J.S. also contends the judge erred in denying his Brady motion. This contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add this brief comment.
"In order to establish a Brady violation, defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000) (citing State v. Martini, 160 N.J. 248, 268-69 (1999)). Defendant established none of these elements.