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State of New Jersey

March 1, 2012

STATE OF NEW JERSEY, IN THE INTEREST OF K.O., A MINOR.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-2079-09.

The opinion of the court was delivered by: Waugh, J.A.D.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 8, 2012

Before Judges Lihotz, Waugh, and St. John.

The opinion of the court was delivered by WAUGH, J.A.D.

K.O. (a juvenile to whom we refer by the fictitious name Kyle) appeals from the Family Part's order of disposition adjudicating him a delinquent and committing him to the custody of the New Jersey Juvenile Justice Commission (JJC) for an aggregate of five years, including an extended term of two years. We affirm both the adjudication and the disposition.

I.

We discern the following facts and procedural history from the record on appeal.

The charges against Kyle arose from a robbery in Willingboro on the evening of August 28, 2009. The teenage victim testified that she was walking home when she was tackled from behind and knocked down. She observed three male attackers. One of the males punched her in the face. As two of the males were attempting to remove her sneakers, the third told her that she would be shot if she did not give up her sneakers and her cell phone. She did not see a gun, and did not believe that the males had one. The victim took a folding knife out of her pocket and slashed the leg of one of the males. Her attackers then ran from the scene with the victim's sneakers.

Kyle was identified as a suspect on the following day, after he sought treatment at Lourdes Medical Center for a "two-inch laceration on the rear of his right leg above the knee." He told police that he had been attacked by three males the prior evening. Kyle was charged with conduct that, had it been committed by an adult, would have constituted first-degree robbery, contrary to N.J.S.A. 2C:15-1. Further investigation revealed that DNA taken from blood traces on the victim's knife matched Kyle's DNA.

Kyle was tried on July 17 and 20, 2009. The judge adjudicated him delinquent. However, because the judge concluded that the State had not met its burden to prove that there was a gun, the finding was based on conduct that would constitute second-degree robbery if committed by an adult.

In 2009, Kyle had been adjudicated delinquent on the basis of conduct that would have been second-degree aggravated assault had it been committed by an adult, and had been committed to a juvenile facility. The State moved for an extended term pursuant to N.J.S.A. 2A:4A-44(d)(3), which allows the judge to impose an extended term for a juvenile "if [the judge] finds that the juvenile was adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would constitute a crime of the first or second degree, and was previously committed to an adult or juvenile facility." Kyle opposed the motion, arguing that the statute should be interpreted as requiring two such adjudications prior to the matter on which the extended term was to be imposed.

The judge granted the State's motion, determining that the statute allowed the pending offense to count as one of the "two separate occasions" required for imposition of an extended term.

He committed Kyle to the custody of the JJC for three years for the offense and an additional two years for the ...


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