November 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-001362-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges Parrillo and Alvarez.
Appellant L.W. appeals from a June 15, 2010 adjudication of juvenile delinquency for which she received twelve months probation. L.W. contends that: (1) there was insufficient evidence to uphold the finding that she committed a simple assault, a disorderly persons offense; (2) the year's probation imposed was excessive; and (3) the judge erred in imposing probation without having a pre-disposition report. We conclude that the determination of delinquency was supported by sufficient credible evidence in the record, but remand, as the State concedes, for a new disposition hearing, to allow for the submission of a pre-disposition report.
According to the State's proofs, A.D., a tenth-grader, was walking home from school when two students, L.W. and K.H., both freshmen, approached her from behind and one of them pushed her. When she turned around, L.W. was the closest to her. L.W. said they had heard that A.D. had been talking about them. K.H. then tried to "swing" at A.D. but missed. While trying to fight back, A.D. fell to the ground and felt and saw both L.W. and K.H. kick her several times. They ran when a van approached and a man yelled at them. The only contrary evidence was from L.W., who testified that it was the other girl alone who attacked A.D. As a result of the incident, A.D. suffered a "knot" on her head, which caused substantial pain and dizziness, and "a lot of bruises on [her] arm and near [her] rib cage."
On appeal, in challenging the sufficiency of the evidence, L.W. attacks A.D.'s credibility, arguing she had a motive to lie. However, credibility was for the trial judge to determine and we defer to his finding. State v. Locurto, 157 N.J. 463, 470-71 (1999). Since there was sufficient credible evidence in the record to support the adjudication of delinquency, we affirm the judgment. Ibid.
However, the matter must be remanded for a disposition hearing because the trial court proceeded to impose a probationary disposition without the requisite pre-disposition report. As the State itself acknowledges, "absent an express waiver, a pre-disposition report is required as a prerequisite to a delinquency disposition, and that the trial court should not have proceeded in this matter without one." See State in the Interest of T.A., 386 N.J. Super. 642, 644 (App. Div. 2006) (citing N.J.S.A. 2A:4A-42). Since there was no express waiver, the matter must be remanded to allow for preparation of a predisposition report, with a disposition hearing to follow.
The adjudication of delinquency is affirmed and the matter is remanded for a disposition hearing with a pre-disposition report.
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