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State of New Jersey

October 28, 2011

STATE OF NEW JERSEY IN THE INTEREST OF D.B.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket Nos. FJ-10-353-09 and FJ-10-112-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2011

Before Judges Carchman, Fisher and Baxter.

The Supreme Court has held, in the criminal context, that "it is the responsibility of a defendant's counsel, not the trial court," to advise defendant about the right to testify, the right to choose not to testify, and the advantages and disadvantages of defendant's choice. State v. Savage, 120 N.J. 594, 630 (1990) (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App. Div.), certif. denied, 111 N.J. 567 (1988)). In this appeal, among other things, we consider D.B.'s contention that, notwithstanding Savage, a Family judge must inquire of counsel on the record whether a juvenile has been informed of the right to testify. We disagree and affirm.

D.B. (hereafter "the juvenile"), who was sixteen years old at the time of the incident in question, was charged with delinquency by "attempting to cause significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly causing significant bodily injury to [K.K.], specifically by punching [K.K.] in the nose causing her to suffer a broken nose, perforated eardrum and a concussion . . . [i]n violation of [N.J.S.A.] 2C:12-1b(7)." At trial, the judge heard conflicting testimony about the incident.

The State called K.K., R.S., and two other witnesses; the juvenile called three witness but did not testify on his own behalf. The judge's findings were memorialized in a written opinion dated May 12, 2010. He found that the juvenile, R.S., and K.K., attended the same high school. R.S., who was K.K.'s boyfriend, and the juvenile were not on friendly terms. On January 29, 2009, the juvenile approached R.S. and K.K. in the halls of the school. The juvenile and R.S. "threw 'dirty looks' at each other," and the juvenile "extended his middle finger at [R.S.] as they approached each other and [R.S.] responded in kind." After the juvenile had "gone approximately 10 feet past," he: turned around 180 degrees to approach [R.S., who] . . . extended his hands forward . . . as if to gesture "I do not want to fight." [The juvenile] then aggressively came towards [R.S., who] backed up. Because of [R.S.'s] movement backwards, [the juvenile] was in closer proximity to [K.K.] than he was to [R.S.].

The judge found the juvenile then threw a punch, which struck K.K. on the right side of her nose. The judge recognized the uncertainty as to whether the juvenile intended to hit K.K. or R.S., but he was satisfied beyond a reasonable doubt that the juvenile's "throwing [of the] punch was purposeful and knowingly, not in self-defense, and was intended to hit either" K.K. or R.S. As for K.K.'s injuries, the judge concluded that she suffered "nasal congestion, pain on her [nose's] right side, [and] loss of sense of smell until June 26[, 2009], when she had nasal surgery [required by] these injuries." The judge, thus, concluded that the juvenile had engaged in conduct which, if committed by an adult, would constitute aggravated assault.

An order of disposition regarding this adjudication, as well as another, was entered on June 7, 2010. The juvenile was placed on probation, subject to numerous conditions, for one year. He appealed, raising the following arguments for our consideration:

I. THE JUVENILE'S CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF WAS INFRINGED, WARRANTING VACATION OF HIS RESULTING ADJUDICATION OF DELINQUENCY.

II. THE STATE'S PROOFS SUPPORTING THE THIRD-DEGREE AGGRAVATED ASSAULT CHARGE, AND THE TRIAL JUDGE'S FINDINGS BELOW, WERE LEGALLY INSUFFICIENT.

We find insufficient merit in Point II to warrant a discussion in a written opinion. R. 2:11-3(e)(2).

We briefly observe with regard to Point II only that the judge's cogent written findings are entitled to our deference, State v. P.S., 202 N.J. 232, 250-51 (2010); State v. Locurto, 157 N.J. 463, 471 (1999), and that the specific point urged by the juvenile -- that there was insufficient evidence to support the finding that K.K. suffered significant bodily injury -- is without merit. The judge's finding in that regard was fully supported by the record. He found that the punch thrown by the juvenile fractured K.K.'s nose, caused a temporary loss of smell, and required surgery, thereby meeting the definition of significant bodily injury. See N.J.S.A. 2C:11-1(d) (defining "significant bodily injury" as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses"). The juvenile's contention that ...


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