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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 19, 2012

STATE OF NEW JERSEY, IN THE INTEREST OF S.R.W., A JUVENILE.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 5, 2011

Before Judges A. A. Rodriguez and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-2485-10. Joseph E. Krakora, Public Defender, attorney for juvenile appellant S.R.W. (Dana A. Citron, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant S.R.W., a juvenile, appeals the Family Part's adjudication of delinquency for engaging in conduct that, if committed by an adult, would constitute third-degree receipt of stolen property. N.J.S.A. 2C:20-7a. The Family Part judge imposed upon appellant a twenty-four-month term at the Training School for Boys, plus applicable fees and penalties. We affirm.

I.

The property in question was a Dodge Neon that had been reported as stolen. At around 12:50 a.m. on January 30, 2010, a Newark police officer in a patrol car observed a Neon matching the description of the stolen vehicle. The police officer pursued the Neon for several blocks. The Neon was occupied by a driver and a passenger. The driver stopped the Neon and emerged from the car through the driver side door, while the passenger got out through the passenger side door. The police officer and his partner chased both individuals on foot. The driver jumped over a wall and briefly eluded the police, but was apprehended and arrested about three to five minutes later. The arresting officer recognized appellant, the apprehended individual, as the juvenile who had been driving the stolen car.

Appellant's version of events is markedly different. He contends that after leaving a party on the night in question, he saw another juvenile, Q.D.M., outside the party in a car. He asked Q.D.M. for a ride home. Appellant asserts that, after several evasive movements, Q.D.M. suddenly stopped the car and ran out. Appellant claims that he likewise got out of the car and ran from the police because he was scared and was not sure what was occurring.

At trial, the Family Part judge heard the testimony of several witnesses. The State first presented the owner of the Neon, who confirmed that his car had been stolen and that he had not given anyone other than his sister permission to drive the vehicle. The State also called the arresting officer, who confirmed that he had observed appellant driving the stolen vehicle. In his own trial testimony, appellant denied that he was the driver. Appellant also proffered testimony from Q.D.M., but Q.D.M. declined to testify substantively after being advised of his right against self-incrimination and speaking with his mother.

After hearing the witnesses, the judge issued an oral decision on April 19, 2010, finding appellant had committed the charged theft beyond a reasonable doubt. The judge credited the arresting officer's identification of appellant as the driver, noting that the officer had an ample opportunity to see the driver's face and that his description of the driver's clothing matched that of appellant. The judge described the evidence that appellant knew the car was stolen as "overwhelming," especially given the fact that the car was driven without an ignition key and that appellant had fled from the scene. The judge rejected appellant's claim of innocence, stating that "incredible is [a] mild term" for the narrative that he had presented. The judge specifically rejected appellant's claim that he had fled from the scene simply out of fear.

Three points are now raised by appellant in his brief:

POINT I

BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION BY SUBSTANTIALLY INTERFERING WITH [Q.D.M.'S] DECISION TO TESTIFY, THIS COURT SHOULD REVERSE.

POINT II

BECAUSE THE TRIAL COURT ERRED BY FINDING [APPELLANT'S] TESTIMONY NOT CREDIBLE, THIS COURT SHOULD REVERSE.

POINT III

THE IMPOSITION OF THE MAXIMUM SENTENCE WAS EXCESSIVE.

For the reasons that follow, we conclude that these arguments lack merit.

II.

A.

The main issue raised on appeal is whether the trial judge improperly interfered with appellant's effort to call Q.D.M. as a defense witness. Initially, Q.D.M., who had just turned sixteen at the time of the trial, appeared at the courthouse alone. Appellant's trial counsel proffered that Q.D.M. would testify that he, in fact, was the driver of the stolen car and not appellant. At that point, the trial judge, Judge Martin G. Cronin, questioned Q.D.M. to assure that the youth understood that he could potentially incriminate himself.

Judge Cronin pointed out to Q.D.M. that his statements could result in him being prosecuted for delinquency, being found to have committed the equivalent of a third-degree offense, and spending two years at the Training School for Boys as punishment. The judge asked Q.D.M. if he wanted an attorney, and Q.D.M. said yes. The judge then summoned Q.D.M.'s mother to the courthouse. When she arrived, she stated on the record that she did not want her son to testify and that he had not done anything wrong. At that point, the judge turned to appellant's trial counsel, who acknowledged specifically that there was nothing that could be done at that point to force Q.D.M. to testify and that Q.D.M. was "[a]bsolutely" free to leave.

Appellant contends that the trial judge was too heavy-handed in alerting Q.D.M. to the pitfalls of incriminating himself. In particular, appellant faults the manner in which the judge underscored the potential penalties that Q.D.M. faced. Appellant also criticizes the judge for summoning Q.D.M.'s mother and then not questioning Q.D.M. further after his mother's opposition to him testifying was expressed on the record. We reject these criticisms, and, in fact, commend Judge Cronin for his prudent handling of the situation.

We recognize that an accused individual's right to a fair trial, including the right to present witnesses and evidence in his own defense, is generally protected by the due process and compulsory process provisions of the United States Constitution and the New Jersey Constitution. U.S. Const. amends. V, VI, XIV, § 1; N.J. Const. art. I, ¶¶ 1, 10*fn1 ; see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, 312 (1973); State v. Feaster, 184 N.J. 235, 250 (2005).

Although fundamental, an accused's right to present a defense is not absolute: it "may, in appropriate cases, bow to accommodate other legitimate interests in the [] trial process." Chambers, supra, 410 U.S. at 295, 93 S. Ct. at 1046, 35 L. Ed. 2d at 309. At least two such legitimate and countervailing interests are present here: a witness's constitutional right against self-incrimination and a juvenile's interest in consulting with counsel and, if appropriate, his parent or guardian, before waiving a constitutional right.

In New Jersey, an individual's right against self-incrimination, as guaranteed under the Fifth Amendment of the United States Constitution, is also protected by statute, N.J.S.A. 2A:84A-19, as well as by the rules of evidence, N.J.R.E. 503. The privilege against self-incrimination is a personal one, which must be invoked by the witness himself, on the stand and under oath, after hearing questions posed to him about the invocation. See State v. Jamison, 64 N.J. 363, 375 (1974). It is well-established that constitutional rights, including due process and the privilege against self-incrimination, apply to juvenile proceedings. See In re Gault, 387 U.S. 1, 55, 87 S. Ct. 1428, 1458, 18 L. Ed. 2d 527, 561 (1967). Hence, Q.D.M. unquestionably had a legitimate, constitutionally-based right to not incriminate himself at appellant's trial by stating under oath that he, not appellant, was the car thief.

The second important interest involved is Q.D.M.'s interest, particularly as a minor, in having the advice of counsel, potentially with the involvement of his parent or guardian, before waiving a constitutional right and exposing himself to a delinquency prosecution.

A juvenile has a right to be represented by counsel at "every critical stage in the proceeding which, in the opinion of the court may result in the institutional commitment of the juvenile." N.J.S.A. 2A:4A-39(a). See also State ex rel. P.M.P., 200 N.J. 166, 178 (2009). A competent juvenile may waive his rights only "in the presence of and after consultation with counsel[.]" N.J.S.A. 2A:4A-39(b)(1). To guard against inadvertent waivers, it sometimes can be helpful to involve the juvenile's parent or guardian. In that regard, the Supreme Court has recognized that a parent's absence during an interrogation or confession is a "highly significant" factor in determining whether a juvenile's waiver of rights is voluntary or intelligently informed. State v. Presha, 163 N.J. 304, 308 (2000). At the same time, a parent may not waive a competent juvenile's right on his behalf. Ibid.

Judge Cronin displayed appropriate sensitivity to these constitutional and other important interests by assuring that Q.D.M. did not unwittingly incriminate himself without appropriate consultation and reflection. It would have been improvident for the judge to plunge ahead and allow Q.D.M. to admit to the theft of a car under oath without being assured that Q.D.M. knew what he was doing and had access to appropriate advice. We discern nothing excessive in the manner in which the judge addressed Q.D.M. about this subject. Cf. State v. Johnson, 223 N.J. Super. 122, 128, 133-34 (App. Div. 1988) (finding that a trial judge erred where he gave an adult witness a lengthy admonition against testifying), certif. denied, 115 N.J. 75 (1989). Nor can we fault the judge for assuring that Q.D.M.'s mother was notified and summoned to court. The judge had a legitimate reason to ask the mother to appear in court even though Q.D.M. had indicated that she knew he was there.

To be sure, these protective measures ultimately resulted in Q.D.M. not testifying for appellant as an exculpatory witness. The loss of his anticipated testimony was justifiable, however, under the circumstances.

Appellant contends that the judge should have interviewed Q.D.M. again to confirm his continued reluctance toward testifying after his mother expressed to the court her own resistance to him taking the stand. That was unnecessary under the circumstances. Q.D.M. had made clear, even before his mother arrived, that he no longer wished to testify for appellant without first speaking with an attorney. Appellant's trial counsel expressly acquiesced to Q.D.M.'s departure from the courthouse after the mother spoke with the judge. If any error occurred by allowing Q.D.M. to leave at that point, it was invited by appellant. See N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 340 (2010).

In sum, the trial court did not improperly interfere with appellant's desire to call Q.D.M. as a defense witness. No new trial is warranted on that basis.

B.

Appellant next argues that the adjudication of delinquency is manifestly against the weight of the evidence. This argument requires little comment.

It is well-established that a trial court's fact-finding should be afforded great deference, especially in matters requiring determination of witness credibility. State v. Locurto, 157 N.J. 463, 474 (1999). The judge's findings on appeal should be sustained, so long as there is substantial proof in the record to support them. Id. at 472. Such substantial proof is present here.

The arresting officer unwaveringly testified that appellant was the driver of the stolen vehicle. The officer viewed appellant's face multiple times: when appellant ran past him after exiting the car, during the pursuit when appellant looked back over his shoulder, and three to five minutes after appellant jumped over the wall just before he was apprehended and arrested. In addition, the officer made a positive in-court identification of appellant as the person whom he saw get out of the driver's seat. When the officer viewed the appellant's face during the pursuit, the streets were "well lit by various street lamps" and the officer had his patrol car's headlights turned on.

No cross-examination called the officer's testimony into serious question. By comparison, appellant's narrative -- including his uncorroborated claim that both he and Q.D.M. emerged through the driver side door -- strained credulity.

The record has ample support for the trial judge's conclusion that appellant's guilt was "overwhelming" and that appellant's testimony was incredible.

C.

Appellant's final point is that the terms of his juvenile sentence were excessive. This contention has no merit and is not worthy of comment. See R. 2:11-3(e)(1)(E). The judge plainly acted within his sentencing discretion, considering the pertinent aggravating factors and the absence of mitigating factors. See State v. Bieniek, 200 N.J. 601, 612 (2010). In particular, the judge appropriately took into account appellant's multiple prior adjudications for robbery, hindering apprehension, and eluding. The twenty-four month sentence, although it was the maximum, was clearly not excessive.

Affirmed.


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