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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 30, 2012

STATE OF NEW JERSEY
IN THE INTEREST OF A.W.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-690-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 6, 2011

Before Judges Axelrad and R. B. Coleman.

A.W., a juvenile, appeals from an adjudication of delinquency for an act which, if committed by an adult, would have constituted third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(h), and the disposition of a two-year term at the Jamesburg Training School for Boys (Jamesburg). On appeal, A.W. argues the following points:

POINT I IT WAS HARMFUL ERROR TO DILUTE [A.W.'S] ABILITY TO CHALLENGE THE CREDIBILITY OF THE VICTIM (Partially raised below).

POINT II IT WAS PLAIN ERROR TO CONSIDER FACTS THAT ESTABLISHED ELEMENTS OF THE CRIME CHARGED AS AGGRAVATING FACTORS IN DETERMINING THE JUVENILE'S SENTENCE (Not raised below).

POINT III THE SENTENCE IS MANIFESTLY EXCESSIVE.

From our review of the record and the applicable law, we affirm.

I.

At the time of the offense, A.W. was a resident of Jamesburg.*fn1 The State presented the testimony of three correctional facility employees, Nurse Cynthia Brown, Officer Thomas Gawron, the victim, and Officer Kevin Fox. A.W. presented the testimony of two residents, V.L. (incorrectly appearing in the transcript as M.L.) and M.C. The salient facts, gathered from the trial transcripts, are the following.

Officer Gawron testified that while performing a mandatory search of A.W.'s room on August 17, 2009, he discovered and confiscated contraband, i.e., tobacco products and bottles of ink, presumably for tattooing. When he informed A.W. that he was filing contraband charges against him, the juvenile became irate, "ranting and raving," walking around with his "fists balled up," and said "he wasn't going to have this sh[-] and that he was going to f[-]k somebody up if necessary." Officer Fox observed A.W.'s behavior and heard his comments. He filed charges against A.W. for threatening to harm Officer Gawron.

The two officers testified that the following day, as they were leading the residents to their housing unit following morning mess, they reached the lobby area where there are no cameras, and A.W. attacked Officer Gawron. The officers testified that as A.W. was walking past Officer Gawron, the juvenile bumped into the officer. Officer Gawron responded by extending his left arm to create space between himself and A.W., and he directed the juvenile to get back. Instead, A.W. punched the officer in the jaw with his fist and continued to pummel him with his fists, kicking, and flailing. Both officers testified that Officer Gawron never struck A.W. and the officer only tried to restrain the juvenile by grabbing him by his upper torso and arms. The juvenile ignored all verbal commands of the officers to cease. Officer Fox was eventually able to restrain A.W. by locking his arms around the juvenile's waist from behind, bringing him to the floor, and grabbing one of his arms. Officer Fox then activated an emergency radio response device for back-up, and continued to hold onto A.W.'s arm while the other officers handcuffed him.

Nurse Brown examined both Officer Gawron and A.W. The only injury she observed on A.W. was a small swelling on the left side of his cheek. In contrast, she observed that Officer Gawron's lips were bruised, bleeding and swollen, the left side of his cheek was red and swollen, and he was unable to open his mouth. The officer was examined at the emergency room, where he received pain medication and anti-inflammatory medication.

The two residents testified that the officer was the aggressor. According to V.L., Officer Gawron stopped A.W., started punching him ten to twenty times, and pulled his hair. A.W. did not fight back; "[A.W.] was trying to get away from [the officer] and Gawron just kept pulling him back." V.L. testified that Officer Fox then slammed A.W. to the ground and both officers beat on the juvenile, with Officer Fox kneeing A.W., pushing his face onto the ground, punching him, kicking him and stomping on his back. Again, according to V.L., A.W. did not hit or strike either officer.

On cross-examination, V.L. testified that Officer Gawron was rude to him and has treated him and all the residents unfairly. He described Officer Fox as "nice one minute, and the next minute he's breaking stuff and he's se[tting] people up [and] writing charges." He claimed neither officer liked him, and he did not like them. Defense counsel had no redirect.

M.C. testified that when A.W. entered the front door, Officer Gawron put him in a headlock and punched him in the face, body and head about ten times. He then slammed A.W.'s body against the wall and hit him two or three more times. M.C. then observed Officer Fox grab A.W.'s legs, get him to the floor, and then grab his arms. According to M.C., Officer Gawron still had A.W. in a headlock and hit him about eight more times on his body. M.C. testified that A.W. never pushed or kicked back, nor did he yell or spit at either officer.

On cross-examination, M.C. admitted that A.W. was angry when Officer Gawron found the contraband in his room. He regarded Officer Gawron as "an all right person[,]" as was Officer Fox. During redirect examination, defense counsel asked M.C. how Officer Gawron interacted with other juveniles in the facility. The court sustained the State's objection of relevance, finding the only thing that would be relevant would be the manner perhaps in which he had treated this particular resident in the past which could be brought up to suggest that because of that treatment [A.W.] was trying to [] get even with Officer Gawron, but, again, I don't think that is part of the record.

The witness has testified that he has no animosity toward Officer Gawron despite the fact[,] according to what the witness has testified to[,] Officer Gawron and Officer Fox beat [up A.W.].

At the conclusion of trial, the court found the testimony of the State's witnesses more credible, particularly in view of the significant bodily injury sustained by Officer Gawron as compared with the small swelling of the left cheek sustained by the juvenile. The court also found that the elements of the offense were satisfied beyond a reasonable doubt by the State.

The court found aggravating factors N.J.S.A. 2A:4A-44a(1)(d), (f), (g), (i) and (k),*fn2 and no mitigating factors under N.J.S.A. 2A:4A-44a(2). The court imposed the two-year disposition at Jamesburg and appropriate fines and penalties. This appeal ensued.

A.W. claims that under N.J.R.E. 404(a)(3), he was entitled to explore a pertinent trait of the victim's character to demonstrate that he, not the juvenile, was the aggressor. He contends the court's ruling denied him of his right to effective cross-examination of M.C. regarding Officer Gawron's character, constituting reversible error. We disagree.

We review a trial judge's evidentiary determinations under an abuse of discretion standard. State v. Buda, 195 N.J. 278, 294 (2008). See also State v. Carter, 9l N.J. 86, 106 (l982) ("On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted."). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (internal quotation marks and citation omitted) (alteration in original).

It is well established that the State is required to prove every element of a criminal offense beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 99 (1997). The same allocation of the burden of proof applies in juvenile delinquency proceedings. State ex rel. J.G., 151 N.J. 565, 593-94 (1997). Upon examination of a court's verdict in a non-jury case, the standard of review for determining if the State satisfied its burden is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State ex rel. R.V., 280 N.J. Super. 118, 120-21 (App. Div. 1995). Moreover, we are obliged to "give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

"[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." State ex rel. W.M., 364 N.J. Super. 155, 165 (App. Div. 2003); see also State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (noting that an appellate court will defer to the trial judge's factual findings where they are supported by "substantial, credible evidence in the record as a whole"), certif. denied, 180 N.J. 453 (2004). Such deference is appropriate because even the best and most accurate transcript of oral testimony "is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried." Locurto, supra, 157 N.J. at 472 (internal quotation marks and citation omitted).

First of all, as noted by the court, the defense was not cross-examining M.C. but, rather, the testimony was solicited on redirect. Moreover, the State did not present evidence of the officer's character on cross-examination for the defense to rebut on redirect examination. In fact, M.C. testified that Officer Gawron was an "all right person." There is thus no basis in the record to assume that on redirect M.C. would have testified that the officer had a violent temper. In addition, there is ample basis in the record, particularly the physical evidence of the injuries sustained by the officer and the juvenile, which was more consistent with the officers' versions of the events, for the court to have concluded that A.W., not Officer Gawron, was the aggressor. Accordingly, the impact of the exclusion of this inquiry on redirect was minimal. We thus discern no basis to interfere with the Family Part's discretionary ruling and disposition.

A.W. next challenges the court's finding of aggravating factor N.J.S.A. 2A:4A-44a(1)(f) as "double counting" because the victim being a correctional officer was a necessary element of the crime charged. A.W. argues this necessitates a remand for reconsideration of disposition, State v. Jarbath, 114 N.J. 394, 410-12 (1989), or our exercise of original jurisdiction to reduce A.W.'s sentence, R. 2:10-5. He also challenges the sentence as excessive.

The State concedes the incorrect inclusion of aggravating factor (f) but argues it does not provide a basis to disturb the quantum of the sentence imposed where the remaining factors clearly support the sentence. See State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002); State v. Scher, 278 N.J. Super. 249, 273 (App. Div. l994), certif. denied, 140 N.J. 276 (1995).

We agree with the State. The court thoroughly weighed the aggravating factors against the absence of any mitigating factors and expressly found that "any" of the aggravating factors "by themselves would be of such significant weight that they would justify a term of confinement."

New Jersey law prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010) (quoting State v. Roth, 95 N.J. 334, 345 (1984)). Appellate review examines whether the sentencing court followed lawful sentencing guidelines and determines if the sentence imposed could have been reasonably reached based upon the evidence presented. Roth, supra, 95 N.J. at 365-66. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).

The court stated with particularity the enumerated aggravating circumstances and explained how the ultimate disposition was determined. The record plainly demonstrates the factors were based upon competent credible evidence, the sentence was within the statutory guidelines, and it was not "clearly unreasonable so as to shock the judicial conscience." Roth, supra, 95 N.J. at 364-65. We find the court faithfully adhered to the law, did not abuse its discretion, and reached a conclusion that does not warrant our appellate intervention.

Affirmed.


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