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State of New Jersey In the Interest of J.N.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2011

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket Nos. FJ-03-998-09 and FJ-03-1012-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 2, 2011

Before Judges Gilroy and Ashrafi.

On March 6, 2009, the Family Part adjudicated juvenile J.N.B. delinquent of second-degree robbery. N.J.S.A. 2C:15-1. On April 7, 2009, after finding aggravating dispositional factors, N.J.S.A. 2A:4A-44a(1)(c), (d), (g), (i), and (l), and no mitigating dispositional factors, N.J.S.A. 2A:4A-44a(2), the court committed J.N.B. to a three-year term at the New Jersey Training School for Boys, in Jamesburg, with a twelve-month period of supervision upon release.*fn1 The court also imposed all appropriate fines and penalties.

On appeal, J.N.B. argues:

POINT I.

THE TRIAL COURT'S FINDING OF THE JUVENILE'S GUILT WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.

POINT II.

THE TRIAL COURT ERRED IN ADMITTING THE SPECULATIVE TESTIMONY OF [R.H.] AND HIS IMPROPER QUASI-EXPERT, LAY OPINION TESTIMONY.

POINT III.

THE TRIAL COURT IMPROPERLY ASSESSED THE AGGRAVATING AND MITIGATING FACTORS, FAILED TO CONSIDER THE JUVENILE'S DEVELOPMENTAL DISABILITY, AND IMPOSED AN EXCESSIVE SENTENCE THAT DID NOT TAKE INTO ACCOUNT THE BEST INTERESTS OF THE JUVENILE.

A. THE TRIAL JUDGE DOUBLE-COUNTED AGGRAVATING FACTORS IN THIS CASE BY USING THE JUVENILE'S PRIOR RECORD TO SATISFY FIVE SEPARATE AND DISCRETE AGGRAVATING FACTORS.

B. THE TRIAL COURT FAILED TO FIND MITIGATING FACTORS CLEARLY SUPPORTED BY THE RECORD.

C. THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE THAT DID NOT TAKE INTO CONSIDERATION THE FACT THAT THE JUVENILE MAY BE DEVELOPMENTALLY DISABLED.

We affirm and remand to enter a corrected dispositional order.

On September 18, 2008, J.N.B., R.H., K.S., and one other male robbed Alexander Pykhtin as he walked through an alleyway to his apartment in Mapleshade. The juvenile complaint charged J.N.B. with delinquency by committing an act, which if committed by an adult, would have constituted first-degree armed robbery by threatening the use of a handgun in the course of committing the theft. N.J.S.A. 2C:15-1a(3). The matter was tried to the court on March 6, 2009.

The State presented testimony from Pykhtin and R.H. Pykhtin testified that he was robbed at gunpoint by four males wearing bandannas over their faces. One perpetrator stood in front of Pykhtin holding a handgun while the other three perpetrators stood approximately ten feet behind Pykhtin. The individual who pointed the handgun at Pykhtin's chest demanded money. When questioned by Pykhtin, the individual holding the gun told Pykhtin that he would shoot him. Pykhtin responded by giving the individual approximately $20 from his wallet.

Candidly, Pykhtin acknowledged that he could not identify J.N.B. as one of the four individuals who robbed him.

R.H. testified that although he and his friend K.S. were present when the incident occurred, he was not aware that J.N.B. and the fourth unidentified male intended to rob Pykhtin. According to R.H., he and K.S. were standing off to the side away from J.N.B. and the fourth male when the latter two confronted Pykhtin in the alleyway. Although R.H. heard J.N.B. or the unidentified male tell Pykhtin to "[g]ive it up," he could not identify which one of them had said it. Upon hearing that demand, R.H. knew that something bad was going to happen, and he and K.S. fled the scene.

The court found Pykhtin's testimony credible. It also found portions of R.H.'s testimony credible, and others not credible. Specifically, the court found R.H.'s testimony that he and J.N.B. were present at the time of the robbery credible, and found R.H.'s testimony that he did not participate in the robbery and had fled the scene after hearing one of the other individuals demanding Pykhtin to give it up not credible. Based on R.H.'s testimony that he was present with J.N.B. when the robbery occurred, and the fact that all four individuals had bandannas on their faces, the court reasoned that, although it could not find beyond a reasonable doubt that J.N.B. was the individual who possessed the handgun, the four individuals had acted in concert with each other to commit the robbery. Accordingly, the judge adjudicated J.N.B. delinquent of the lesser-included offense of second-degree robbery.

An appellate court's scope of review of a trial court's factual determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

We have considered J.N.B.'s arguments challenging the trial court's adjudication of delinquency in light of the record and applicable law. We determine the arguments meritless and affirm the adjudication of delinquency substantially for the reasons expressed by the trial court in its oral decision of March 6, 2009.

J.N.B. argues that the trial court erred in committing him to a three-year term at the Jamesburg Training School for Boys with a twelve-month period of supervision upon release. J.N.B. challenges each of the aggravating dispositional factors found by the court and contends that the court failed to consider mitigating dispositional factors N.J.S.A. 2A:4A-44a(2), (l), and (n). J.N.B. also contends that the court double-counted in determining the aggravating dispositional factors because the court considered his prior juvenile record in finding each of the aggravating factors.

The New Jersey Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, governs juvenile dispositions. In "determining the appropriate disposition for a juvenile adjudicated delinquent, the court shall weigh" the factors set forth in N.J.S.A. 2A:4A-43a. When considering whether a custodial sentence is appropriate, the court must weigh the aggravating and mitigating factors contained in N.J.S.A. 2A:4A-44a. At time of disposition, the court must state on the record not only the reasons for imposing the disposition, but also the factual basis supporting the findings of the particular factors affecting the disposition. R. 3:21-4(g); R. 5:1-1.

We conclude that the trial court correctly considered the appropriate aggravating and mitigating dispositional factors in ordering the disposition. Each of the aggravating dispositional factors found by the court permitted the court to consider J.N.B.'s prior juvenile record. In so doing, the court did not double-count as that term prohibits a court from using the same evidence for sentencing purposes as was used to establish an element of the offense. State v. Kromphold, 162 N.J. 345, 353 (2000). In finding five aggravating dispositional factors, the court fully stated the reasons for doing so and how J.N.B.'s prior juvenile record supported each of the findings. We find no reason to interfere with J.N.B.'s three-year commitment to the New Jersey Training School for Boys.

Citing N.J.S.A. 30:6D-3a(1), J.N.B. contends that the court failed to consider his developmental disability and, as such, cannot be committed to a State juvenile facility. We disagree.

N.J.S.A. 2A:4A-44c(2) prohibits commitment of juveniles to State juvenile facilities who "are developmentally disabled as defined in paragraph (1) of subsection a. of section 3 of P.L. 1977, c. 82. [N.J.S.A. 30:6D-3.]." That latter statute defines "[d]evelopmental disability" as meaning:

[A] severe, chronic disability of a person which:

(1) is attributable to a mental or physical impairment or combination of mental or physical impairments;

(2) is manifest before age 22;

(3) is likely to continue indefinitely;

(4) results in substantial functional limitations in three or more of the following areas of major life activity, that is, self-care, receptive and expressive language, learning, mobility, self-direction and capacity for independent living or economic self-sufficiency; and

(5) reflects the need for a combination and sequence of special inter-disciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes but is not limited to severe disabilities attributable to an intellectual disability, autism, cerebral palsy, epilepsy, spina bifida and other neurological impairments where the above criteria are met[.]

[N.J.S.A. 30:6D-3a.]

Here, although the functional equivalent to a predisposition report (PDR) indicates that J.N.B. suffers from bipolar disorder and attention deficit hyperactivity disorder, the record is devoid of any evidence that he suffers three or more of the major life activities defined in the statute. To the contrary, the PDR indicates that J.N.B. is an A-B student with math being his favorite subject and writes lyrics for music in his spare time. It also indicates that J.N.B. has an interest in joining AmeriCorps to earn funds for college where he intends to major in music. Because the record does not contain evidence that J.N.B. suffers from a "developmental disability" as defined in N.J.S.A. 30:6D-3a, the court was not prohibited from committing J.N.B. to the New Jersey Training School for Boys.

Affirmed and remanded to the Family Part to enter a corrected dispositional order to indicate that the court found aggravating dispositional factors N.J.S.A. 2A:4A-44a(1)(c), (d), (g), (i), and (l).


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