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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 18, 2011

STATE OF NEW JERSEY, IN THE INTEREST OF A.J.M., A JUVENILE.

On appeal from the Superior Court of New New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-2026-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 7, 2011

Before Judges LeWinn and Coburn.

The trial judge found A.J.M. delinquent as a juvenile for conduct which if done by an adult would be third-degree eluding, N.J.S.A. 2C:29-2(b), and for operating a motorized bike without a helmet, N.J.S.A. 39:4-14.3. The sentence imposed was thirty days detention in the Youth Detention Center, for which A.M. was given credit for time served, plus the appropriate fines and penalties.

On appeal, A.J.M. offers the following arguments:

Point I - THE JUVENILE WAS DEPRIVED [OF] HIS SIXTH AMENDMENT RIGHT TO CONFRONT A KEY WITNESS (Not Raised Below). Point II - THE JUVENILE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. Point III - THE TRIAL COURT'S FINDING OF THE JUVENILE'S GUILT ON THE CHARGE OF ELUDING WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.

After carefully considering the record and briefs, we are satisfied that all of appellant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). Nonetheless, we add the following brief comments.

A.J.M.'s first point concerns a hearsay identification of him as the operator of one of the motorized bikes driven to elude arrest by the police officer. Since his attorney introduced that hearsay evidence, he cannot validly argue that his constitutional rights were violated. See, e.g., State v. Robinson, 146 S.W. 3d 469, 492-93 (Tenn. 2004), cert. denied, sub nom. Crawford v. Robinson, 546 U.S. 1214, 126 S. Ct. 1429, 164 L. Ed. 2d 132 (2006); State v. Johnson, 905 P. 2d 94, 100 (Kan. 1995). Furthermore, the identification of A.J.M. as the operator of one of the motorized bikes was not a contested issue at trial. The defense offered was not that he was not present but that he did not know the officer was in pursuit and trying to stop him.

The second point raised by A.J.M. is that he was denied effective assistance of counsel precisely because of his attorney's decision to introduce the aforementioned hearsay evidence. To prevail on this ground, A.J.M. must show that his counsel's performance was deficient and that this deficient performance prejudiced the defense. State v. Fritz, 105 N.J. 42, 52 (1987).

Complaints based on trial strategy are generally insufficient to prove deficiency. State v. Allegro, 193 N.J. 352, 366 (2008). Here, there is no basis for questioning counsel's strategy since the testifying officer clearly identified A.J.M. at trial based on numerous observations during the chase when A.J.M. looked back at him. Moreover, since the officer's identification testimony was credible we perceive no prejudice to the defense.

On the third point, the alleged insufficiency of the evidence, we affirm substantially for the reasons expressed by Judge McGann in his thorough and well-reasoned oral opinion delivered on August 12, 2009.

Affirmed.

20110218

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