On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-631-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012
Before Judges Carchman, Baxter and Nugent.
Following a bench trial, S.S., a juvenile, was adjudicated delinquent for acts which, if committed by an adult, would constitute second-degree robbery, N.J.S.A. 2C:15-1. A second charge which, if committed by an adult, would constitute second-degree aggravated assault resulted in an adjudication of not guilty. The judge placed the juvenile on probation for a period of eighteen months, ordered attendance at anger management classes and mandated twenty-five hours of community service. The juvenile appeals, asserting that the alleged robbery was an "afterthought robbery" and not within the scope of N.J.S.A. 2C:15-1. We disagree and affirm.
We provide an abbreviated version of the facts relevant to the issues raised on this appeal. On September 25, 2009, at approximately 4:00 p.m., M.H. was leaving school when she observed C.R. "smirk[ing]" at her, whereupon C.R. took a swing at M.H. and a fight ensued. At the scene, the juvenile, a friend of C.R.'s, proceeded to kick M.H. in the head. The juvenile then grabbed M.H.'s hair and proceeded to kick her three more times. While M.H. was on the ground, the juvenile grabbed M.H.'s cell phone, which was on the ground, and left the scene on her bicycle.
Thereafter, M.H. and her grandmother, who had picked her up at school, reported the incident to the police and then proceeded to S.S.'s house where they found C.R. M.H. observed C.R. had M.H.'s phone and then passed it to another friend of C.R.
M.H. was taken to the hospital where, because of delays, she was not treated; however, she returned to the hospital three days later for treatment of a head injury, headaches, contusions and back pain, all attributable to the earlier incident.
At trial, the juvenile testified and denied any involvement in the fight between M.H. and C.R. She also denied stealing M.H.'s phone and claimed that she had picked up C.R.'s phone from the ground. According to S.S., she left the scene while the fight was going on because C.R. "could take care of herself."
Although the juvenile's version of events was corroborated by C.R. as well as two other defense witnesses, in his decision, the trial judge dismissed the testimony as incredible. He concluded that the juvenile's testimony was also incredible and adjudicated S.S. as a delinquent.
As we have noted, on appeal, the juvenile, relying on State v. Lopez, 187 N.J. 91 (2006), asserts that the judge erred by "failing to consider that what occurred was, at most, an afterthought robbery."
In Lopez, the State alleged that defendant lured the victim to a secluded area for the purposes of committing a robbery, attacked him with a karate chop to the throat, stole his necklace and then left him to die. Id. at 93. According to the defendant, the victim threatened defendant and a fight ensued whereupon the defendant struck the victim. Ibid. "Defendant then decided to steal [the victim's] necklace, and took it from his neck." Ibid. The Court, recognizing that robbery requires proof of a specific intent, id. at 98, concluded that the trial judge erroneously charged the jury that the intent to steal could be formed either before or after the use of force as long as the intent to steal and the force constituted a single transaction. Id. at 94, 101. The Court noted:
[O]ur statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or ...