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State of New Jersey In

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 27, 2012

STATE OF NEW JERSEY IN THE INTEREST OF G.M.P., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket Nos. FJ-01-1946-10 and FJ-01-1928-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2012

Before Judges Alvarez and Skillman.

The juvenile appeals from adjudications of delinquency for what would be, if he were an adult, harassment, in violation of N.J.S.A. 2C:33-4(c), and trespass, in violation of N.J.S.A. 2C:18-3(a).

The trial court sentenced the juvenile to a one-year probationary term, subject to thirty hours of community service, a prohibition against any contact with the victim of the harassment, and a restraint against his entry into the Buena Regional High School.

The juvenile has not presented any argument regarding his adjudication of delinquency for harassment. Therefore, we affirm that adjudication and only address his adjudication of delinquency for trespass.

The juvenile was a student at the Atlantic County Alternative High School. He was transported to this school by bus. One bus would pick him up at his home and drive him to Buena Regional High School, where he would get a second bus to take him to the Alternative High School. He would be transported home the same way; one bus would take him from the Alternative High School to Buena Regional and a second bus would take him from Buena Regional back to his home.

On April 15, 2010, the juvenile was involved in a disciplinary incident at the Alternative High School and was sent home. The Alternative High School placed the juvenile on a bus to Buena Regional with students who went to school part of the day at the Alternative High School and part of the day at Buena Regional.

According to the juvenile, the Alternative High School did not make any arrangements before he left that school to transport him from Buena Regional back to his home. Moreover, the juvenile had no additional minutes on his cell phone, so he was unable to call his mother for her to pick him up at Buena Regional. As a result, when the bus dropped off the juvenile at Buena Regional, there was no available means of transportation to take him home. The State did not present any evidence to contest the juvenile's testimony regarding the unavailability of a school bus or other transportation from Buena Regional to his home after his early dismissal from the Alternative High School.

After the school bus dropped off the juvenile at Buena Regional, he entered the school. However, instead of going to the school office to make arrangements for a ride home, he went to the school cafeteria and got into the lunch line. He said that he did this because he was hungry. When the juvenile was unable to produce a "pin code" required to pay for his lunch, he was identified as a non-student and brought to the school office. This series of events was the basis for the trespass charge against the juvenile.

N.J.S.A. 2C:18-3(a) provides in pertinent part:

A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any . . . structure, or separately secured or occupied portion thereof . . . .

Thus, the State was required to show that the juvenile "knew" he was not licensed or privileged to enter the Buena Regional High School. See State in the Interest of L.E.W., 239 N.J. Super. 65, 70 (App. Div. 1990). Moreover, the State was required to make this showing beyond a reasonable doubt. See State in the Interest of J.G., 151 N.J. 565, 594 (1997).

The State's evidence was insufficient to prove this element of the offense of trespass. Although the Vice-Principal of Buena Regional testified on direct examination that the juvenile had been informed he was not allowed in Buena Regional, she acknowledged on cross-examination that she had not herself communicated this information to the juvenile. Nor did she testify that she was present when someone else informed him of this restriction. Thus, the State's only evidence regarding this element of the offense was hearsay. Moreover, even if the juvenile had been shown to be aware that he was not generally allowed to enter Buena Regional, he could reasonably have believed that this prohibition did not apply when a bus driver had dropped him off at the school without an available ride home, thus justifying his entry into the school to call his mother or make other arrangements for a ride home. Therefore, the juvenile's adjudication of delinquency for trespass must be reversed.

Because we have reversed one of the juvenile's adjudications of delinquency, the case must be remanded to the trial court for resentencing, which makes it unnecessary to address the juvenile's argument that his sentence was excessive.

Accordingly, the juvenile's adjudication of delinquency for harassment is affirmed, his adjudication of delinquency for trespass is reversed, and the case is remanded to the trial court for resentencing.

20120327

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