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State of New Jersey In the Interest of L.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 18, 2011

STATE OF NEW JERSEY IN THE INTEREST OF L.W., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket Nos. FJ-06-606-08 and FJ-06-980-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 5, 2011 -- Decided: Before Judges Cuff and Simonelli.

L.W., a juvenile, appeals from an adjudication of an act of delinquency that, if committed by an adult, would constitute fourth-degree unlawful possession of a weapon (a knife) on school property, N.J.S.A. 2C:39-5e(2). Following trial, L.W. pled guilty to a violation of probation. The trial judge imposed residential placement and a one-year probationary term, which would terminate upon L.W.'s successful attendance and completion of the residential program and aftercare.

We gather the following facts from the evidence presented at trial. L.W. attends a school that requires students to walk through a metal detector or be scanned in order to prevent entry of cell phones and weapons into the school. On September 21, 2007, L.W. was riding a school bus to school along with two other students and a classroom aide. She had a backpack with her that the aide did not recognize. L.W. appeared upset and told the aide that she did not want to bring the backpack into the school. The aide responded that he could not hold her backpack, and it would be searched if she left it on the bus. When L.W. was dropped off at her school, she left the backpack on the bus. A search of the backpack at another school, where the aide worked, revealed L.W.'s cell phone, a pocketknife and clothing.

H.M., L.W.'s half-brother, testified he and his sister had identical backpacks. His backpack usually contained the knife, which he used to cut fishing lines when he went fishing after school, fish hooks, and "[p]apers and stuff like that." While in school on September 21, 2007, H.M discovered he and his sister had inadvertently switched backpacks. However, H.M. did not testify he had clothing or a cell phone in his backpack, and the backpack searched contained no fishing hooks. Accordingly, the trial judge found H.M.'s testimony not credible.

The judge also found that L.W. knowingly had the backpack with the knife in it, and that the bus was an "extension or a part of" the school buildings or grounds. The judge reasoned that once a child gets on a bus, that child is under the control of the school. To say that it would be okay to have the knife on the bus where very bad things could happen with the knife and quite frankly,where often things do happen on buses or could happen on buses.

While it's illegal to carry it on the buildings or grounds and that unless you take it on the buildings and grounds off of the bus, you're not guilty, I think would be a inappropriate and dangerous interpretation of the statute.

This appeal followed.

On appeal, L.W. raises the following arguments:

POINT I:

THE COURT ERRED IN FINDING THAT THE SCHOOL BUS WAS PART OF SCHOOL GROUNDS. POINT II:

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT III:

THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM HEARING THE REMAINDER OF THE TRIAL BASED UPON OPINIONS HE GAVE REGARDING L.W.

POINT IV:

THE TRIAL JUDGE MISAPPLIED HIS DISCRETION IN SENTENCING L.W. TO A RESIDENTIAL PROGRAM WHERE THERE WERE ADEQUATE SERVICES TO PLACING HER BACK INTO THE COMMUNITY.

We decline to address L.W.'s contentions in Points II and III because she did not raise them below and they neither challenge the court's jurisdiction nor concern a matter of great public interest. State v.Robinson, 200 N.J. 1, 20 (2009); Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

As to Point I, N.J.S.A. 2C:39-5e(2) prohibits the possession of any weapon "while in or upon any part of the buildings or grounds of any school, college, university or other educational institution without the written authorization of the governing officer of the institution . . . ." The statute ostensibly protects students and school staff from dangerous weapons. Thus, we do not interpret the statute to include only students inside a school building but not those in a school bus on school grounds. The statute should extend to a school bus, especially where, as here, the bus is on school grounds when the student leaves the weapon on the bus.

Finally, we discern no abuse of discretion in the disposition. State ex rel. S.B., 333 N.J. Super. 236, 246 (App. Div. 2000). L.W. was being sentenced on her third violation of probation along with a new offense.*fn1 She had twelve prior charges with five guilty adjudications, including harassment, violation of probation and simple assault, and tested positive for drugs while on probation. She had received at-home services for over two years and was still non-complaint. No form of in-home rehabilitative service provided to L.W. has altered her conduct.

Affirmed.


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