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State of New Jersey In the Interest of V.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 11, 2011

STATE OF NEW JERSEY IN THE INTEREST OF V.B., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-209-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 21, 2011

Before Judges Carchman and Parrillo.

Following a bench trial, juvenile V.B. was adjudicated delinquent of an offense which, if committed by an adult, would constitute second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The court imposed a final disposition of twelve months probation, and ordered the juvenile to complete an anger management counseling program, perform forty hours of community service, write a letter of apology to the victim, have no contact with the victim, and pay fines of $30 to the Victims of Crime Compensation Board and $15 to the Law Enforcement Officers Training Fund. V.B. appeals, and we affirm.

According to the State's proofs, on June 29, 2009, at about 2:00 a.m., Francesca Jacobs was trying to get home by train, but missed her stop at the Secaucus station. She had just met Leslie Latorre on the train and the two women got off together at the Linden station. While walking down the street, they noticed several people on the opposite side of the street, one of whom, a young girl later identified as V.B., began shouting obscenities at Latorre, who kept walking with Jacobs.

According to Jacobs, V.B. ran up to the women and stood face-to-face with Latorre in a hostile manner. Jacobs put herself between V.B. and Latorre but did not touch V.B. or act aggressively toward her. The juvenile began pushing Jacobs and grabbing at her hair before throwing her to the ground. For five minutes, the juvenile kicked Jacobs in the head, eye, nose and neck. The police arrived shortly thereafter, and Jacobs was taken to the Robert Wood Johnson Hospital in Rahway, having sustained bodily injuries in the attack. Jacob's account was corroborated by Latorre.

At trial, V.B. testified to a different version of the incident. According to V.B., she and her older sister were walking V.B's friend home when Jacobs and Latorre crossed the street toward her and began yelling and screaming at her. Jacobs, who smelled of liquor, then bumped V.B. and followed her before tripping over garbage on the sidewalk. Jacobs tried to get up, grabbing at V.B.'s leg and pulling her pants down. V.B. kicked Jacobs in order to get Jacobs off of her.

V.B.'s sister testified similarly. According to the sister, either Jacobs or Latorre bumped into V.B. One of the women put her hand in V.B.'s face and advanced as V.B. backed up. The assailant then tripped over garbage on the sidewalk and fell to the ground. As V.B. started to laugh, the woman on the ground grabbed V.B.'s leg, causing her to lose her balance and fall. The woman maintained her hold on V.B. and V.B. kicked to free herself. As soon as she was released, V.B. stopped kicking and got up, but was punched in the chest by the other woman, whom the sister then pulled away.

At the close of evidence, the judge, crediting the testimony of both Jacobs and Latorre, and rejecting that of V.B. as "flawed and inconsistent," adjudicated V.B. delinquent of aggravated assault:

Because I accept the victim's testimony as credible, based upon the nature of that testimony, the circumstances of the event, the corroboration by an independent witness, the testimony of police which supports the different claims, and conversely I reject the testimony of the juvenile and her sister, I find proof beyond a reasonable doubt that the juvenile attacked the victim, . [and] attempted to cause significant bodily injury . . . and that her conduct was purposeful.

On appeal, the juvenile argues that the court erred in not allowing defense counsel, in cross-examining Latorre, to confront her directly by playing portions of a video recording of the eyewitness's statement to the police on July 14, 2009, in which Latorre said she had turned her back to Jacobs and did not see V.B. assault her. At trial, the State opposed defense counsel's request, arguing that it would be unfair to the witness to play only portions of the twenty-minute tape, for which no transcript had been prepared. The court agreed and denied the specific request for playing selected portions of the video recording to the witness, reasoning that while the witness's testimony might conflict with the brief portion played by the defense, it may be consistent with another portion that was not played. Instead, the court allowed admission of the video recording in evidence for its review and afforded counsel full opportunity to cross-examine Latorre about her prior statement. Under the circumstances, we find no abuse of discretion in the trial judge's evidentiary ruling. State v. Jenewicz, 193 N.J. 440, 467 (2008).

N.J.R.E. 607 provides in pertinent part:

[F]or the purpose of impairing or supporting the credibility of a witness, any party . . . may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, except that the party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) . . . . [(Emphasis added).]

Notwithstanding the disallowance of playing the video recording to the witness directly, the court otherwise permitted its admission into evidence for the court to review in its entirety, to compare with Latorre's in-court testimony, and ultimately to assess the witness's credibility. Moreover, defense counsel was allowed to confront Latorre with any contradictory statements given to the police in her post-incident recorded interview. For instance, defense counsel asked Latorre several times during cross-examination and re-cross-examination whether she recalled making certain statements to the police during her videotaped statement. This questioning was clearly designed to identify and highlight those areas in which, according to the defense, Latorre's testimony differed from that given in her statement to the police. Defense counsel also attacked Latorre's credibility on summation, focusing on these asserted inconsistencies.

Under the circumstances, we discern no prejudice to the juvenile by being denied the added ability to play selected portions of the video recording during Latorre's cross-examination. Defendant's contention that Latorre, if so confronted, may have agreed that she did not actually see the physical altercation between the juvenile and Jacobs is purely speculative and has no basis in fact or logic. To the contrary, the video recording was admitted into evidence for the court's review and comparison with Latorre's testimony, and defense counsel was afforded full opportunity to cross-examine the witness on the contents of that statement. Given the broad discretion afforded the trial court in controlling the mode and manner of cross-examination, Jenewicz, supra, 193 N.J. at 467; N.J.R.E. 611, we find no abuse thereof in this case.

Affirmed.

20110711

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