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State of New Jersey In the

August 24, 2011

STATE OF NEW JERSEY IN THE INTEREST OF J.S.J.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-999-09; FJ-20-1070-09 and FJ-20-1124-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2010

Before Judges Fuentes and Gilroy.

Following a bench trial, J.S.J. was adjudicated delinquent of charges which, if committed by an adult, would have constituted second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and the petty disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-3(b). J.S.J. was fifteen years old at the time he allegedly committed these acts of delinquency. The court entered a dispositional order placing J.S.J. in the Juvenile Intensive Supervision Program for eighteen months.

J.S.J. now appeals, arguing, inter alia, that the State failed to produce sufficient evidence at trial to prove he committed these offenses beyond a reasonable doubt. We agree and reverse. We gather the following facts from the evidence presented at trial.

On December 5, 2008, Osner Dorcely walked down from the second-floor apartment at Maple Avenue in Hillside, to the first-floor foyer, intending to exit the building and proceed home. As he entered the foyer, Dorcely saw "a lot of people were beating on two minors." When asked to elaborate, he testified the victims were being "kicked" and "punched." When he made a comment*fn1 to the crowd, an unknown person or persons pulled him, punched him in the head, and stabbed him. The group of assailants left the scene immediately thereafter. Dorcely was on the ground for two to three minutes when he was assaulted and did not see who attacked him.

At the time Dorcely was attacked, his brother Steven Exantus was across the street from the building where the assault occurred. Exantus saw a group of about twenty people running out of the building. Exantus also heard noises of the commotion. When Exantus entered the building, he saw his injured brother on the floor and called the police. Dorcely was taken to a nearby hospital. Because the juvenile does not challenge the severity of Dorcely's injuries, we will not recite the evidence presented by the State in this respect.

Exantus told the responding police officers the direction he saw the group running. Exantus then accompanied several police officers as they canvassed the area looking for members of the group who had attacked Dorcely. The officers eventually came upon a group of youths approximately two blocks away from the building. The officers stopped them after the group began to walk faster as the officers approached. Exantus indicated these juveniles looked like some of the same youths he saw run from the building where his brother was stabbed. K.S.*fn2 and J.S.J. were among the youths detained by the police.

K.S. testified he was inside the building at the time Dorcely was attacked and he witnessed the assault. Although K.S. testified that J.S.J. was present at the time of the assault, he did not see him do "anything in particular with respect to any individual." K.S. also indicated there were as many as twenty to thirty juveniles fighting in the building at the time Dorcely walked down to the foyer.

When J.S.J. was taken to the police station for processing, Officer Jesse Gregorio seized the juvenile's jeans and white T-shirt. The jeans were stained with blood on the knee area, and there was "a small speck" of blood at the bottom of the T-shirt. Monica Ghannam, who is employed by the Union County Prosecutor's Office as a "forensic scientist two," and "assigned to the biology section of the laboratory as a DNA technical leader," was admitted by the court as an expert witness on DNA analysis. Ghannam testified that DNA testing performed on the two items of clothing seized from the juvenile indicated the victim's blood could not be excluded as a major contributor to the blood found on the juvenile's clothing.

Hillside Detective Steven Costa testified that a photograph of the building where the assault occurred depicted a sign on the side of the property that read: "Private Property, No Loitering, No Trespassing, Tenants Only." Although admitted in evidence, the appellate record does not include a copy of this photograph. The police also recovered a knife found behind a green bush to the right of the staircase, in front of the building's entrance. The knife had traces of Dorcely's blood on the blade.

Against this evidence, the trial judge found that J.S.J. was a primary actor in the assault against [Osner] Dorcely. None of the other juveniles arrested with him had blood on them belonging to the victim. I find it unlikely that one of the other individuals on the scene, who did not flee with [J.S.J] was the perpetrator with ...


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