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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 28, 2011

STATE OF NEW JERSEY IN THE INTEREST OF D.L.R., JUVENILE-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-4443-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2011

Before Judges Gilroy and Nugent.

D.L.R. appeals from an adjudication of delinquency entered on September 16, 2009, following a bench trial for conduct which, if committed by an adult, would have constituted second degree eluding, N.J.S.A. 2C:29-2b. When the offense was committed, D.L.R. was sixteen years old. On October 19, 2009, the court sentenced D.L.R. to the Juvenile Justice Commission to serve a twenty-four-month term at the New Jersey Training School. On January 21, 2010, defendant appealed, raising the following points:

POINT I - THE ADJUDICATION OF DELINQUENCY

SHOULD BE REVERSED BECAUSE ADMISSION OF THE JUVENILE'S INCULPATORY OUT-OF-COURT STATEMENT MADE AT THE HOSPITAL AS SUBSTANTIVE EVIDENCE OF GUILT VIOLATED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION, HIS SIXTH AMENDMENT RIGHT TO COUNSEL, AND HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT II - THE JUVENILE'S RIGHT TO A FAIR

TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).

POINT III - IMPOSITION OF THE 24 MONTH TERM

AT THE JAMESBURG TRAINING SCHOOL FOR BOYS WAS MAINFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S SENTENCING DISCRETION.

(A)

THE JUVENILE WAS DENIED HIS RIGHT OF ALLOCUTION.

(B)

THE COURT IMPROPERLY APPLIED AN IDIOSYNCRATIC NON-CODE VICARIOUS LIABILITY AGGRAVATING FACTOR OF SENDING A MESSAGE TO THE COMMUNITY.

(C)

THE NATURE OF THE OFFENSE AND THE AGGRAVATING FACTORS PRESENT CANNOT SUPPORT A 24 MONTH CUSTODIAL TERM.

We affirm the adjudication of delinquency but remand for a new disposition hearing because D.L.R. was not afforded the opportunity to speak during his disposition proceeding.

D.L.R. was charged and tried on two acts of delinquency that if committed by an adult would constitute the crimes of auto theft and eluding. Newark Police Officer Maysa Washington was the only trial witness. She testified that on June 10, 2010, at approximately 7:30 p.m., she was patrolling the streets in a marked police car when she received a radio transmission that a stolen 1995 four-door Cadillac DeVille was being driven recklessly in the vicinity of Clinton Avenue and South Twelfth Street. Shortly after receiving the transmission, she observed the vehicle described in the radio report traveling the wrong way on Gerard Place. She activated her lights and sirens and pursued the vehicle. During the pursuit, Washington remained approximately fifteen to twenty feet directly behind the Cadillac and never lost sight of the vehicle or its driver, who was alone. During the pursuit she observed the driver disregard two traffic lights and estimated that the vehicle reached speeds of sixty to eighty miles per hour. She also observed pedestrians along the streets where the pursuit occurred.

Washington pursued the Cadillac for five to ten minutes until it struck another car. The driver, later identified as D.L.R., jumped out of the Cadillac and began to run. Washington pursued him on foot until D.L.R. ran into a parking area of a complex where he took off his jacket, threw it down, and began to run again. During the foot pursuit, Washington maintained a distance of approximately ten feet behind D.L.R. She lost sight of him only once, when D.L.R. ran around a corner, but saw him again as soon as she turned the corner. When he came to a dead end D.L.R. stopped running, sat on a curb, and while trying to catch his breath, he pretended "like he had been sitting there the whole time." Washington and another officer arrested D.L.R.

Washington and the other officer transported D.L.R. first to the police station, and then to the hospital to make sure he had not been injured when he crashed the Cadillac into the other car. According to Washington, while D.L.R. was at the hospital, she and the juvenile had the following exchange:

He specifically said to me 'cause I was teasing him and I said, You can't drive.

You know, I said 'cause he - - the car was floating all over the place. He said, You should have caught me in my prime 'cause you would have never caught me.

In her summation, the prosecutor argued that Washington's testimony was credible. The prosecutor stated:

In concluding, the State contends that the testimony of the police officer is credible. There's no motivation, no reason for her to fabricate what she observed that day, what her observations were that day and the reason resulting in her arrest and her reporting of the incident. And for those reasons the State urges this court to find that there's proof beyond a reasonable doubt to find the juvenile guilty of eluding police in this instance.

The court believed Washington's testimony. The court found that, except for one occasion when D.L.R. turned a corner, Washington had him in sight the entire time. The court found credible Washington's "clear identification" of D.L.R. The court adjudicated D.L.R. delinquent for eluding, but acquitted him of auto theft.

At D.L.R.'s disposition hearing the court found three aggravating factors under N.J.S.A. 2A:4A-44a(1): (c) the character and attitude of the juvenile indicate that the juvenile is likely to commit another delinquent or criminal act; (d) the juvenile's prior record and the seriousness of any acts for which the juvenile had been adjudicated delinquent; and (g) the need for deterring the juvenile and others from violating the law. Finding no mitigating factors under N.J.S.A. 2A:4A-44a(2), the court committed D.L.R. to the custody of the Juvenile Justice Commission for a period of twenty-four months, with a credit of 133 days. It is undisputed that the court did not ask D.L.R. if he wanted to speak at the disposition hearing.

D.L.R. argues, for the first time on appeal, that his delinquency adjudication should be reversed for two reasons:

(1) the admission of the statement he made to Washington at the hospital violated his Fifth, Sixth and Fourteenth Amendment rights; and (2) his right to a fair trial was prejudiced by prosecutorial comments concerning the credibility of Washington.

Issues not raised at the trial level generally will not be considered by an appellate tribunal. State v. Arthur, 184 N.J. 307, 327 (2005). Nevertheless, an issue not raised before the trial court may be considered by this court if a defendant can demonstrate plain error, that is, that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted).

We conclude that the admission of D.L.R.'s statement was not plain error. The trial court found that after Washington first saw the Cadillac and its sole occupant, the driver, she never lost sight of it, and only briefly lost sight of D.L.R. when he ran around a corner. Findings of a trial judge sitting without a jury will not be disturbed on appeal when supported by substantial credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999). Considering the trial court's findings, there was overwhelming evidence that D.L.R. eluded the police. Moreover, the trial court never mentioned D.L.R.'s hospital statement in its findings of fact and conclusions of law. The trial court did not rely upon D.L.R.'s statement, but instead reached its decision based upon the testimony of Washington. In light of those considerations, it cannot be said that the admission of D.L.R.'s statement was clearly capable of producing an unjust result.

Similarly, the prosecutor's "contention" in her summation that the police officer was credible, and her statement that the officer had no motivation to lie, did not constitute plain error. The prosecutor did not express a personal opinion about the officer's credibility, but instead based the comments on evidence presented during trial. More significantly, because the comments were made during a bench trial, the concerns of prejudice associated with lay jurors are inapplicable; a professionally trained jurist is expected to disregard any inappropriate comments made by counsel and base his or her factual findings exclusively on the competent evidence admitted in the course of the trial. Thus, it is indeed unlikely the trial court's decision would have been influenced by two fleeting remarks in a summation. Nothing in the record suggests that the trial court's decision was based on anything other than its own evaluation of the evidence.

D.L.R. also argues that the denial of his right to allocution at the disposition hearing requires a remand. We agree. A juvenile has the right of allocution and failure to comply with the allocution requirement warrants a remand for re-sentencing. In re J.R., 244 N.J. Super. 630, 632, 639 (App. Div. 1990); see also, State v. Cerce, 46 N.J. 387, 397 (1966); In re A.H., 115 N.J. Super. 268, 272 (App. Div. 1971). We therefore remand for a new disposition hearing. In view of the remand for a new disposition hearing, we need not address D.L.R.'s other arguments concerning his sentence.

The adjudication of delinquency is affirmed. The matter is remanded for re-sentencing.

20110128

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