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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 25, 2012

STATE OF NEW JERSEY IN THE INTEREST OF D.F.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-2272-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2012

Before Judges Alvarez and Skillman.

D.F., a juvenile, appeals from adjudications of delinquency that would constitute disorderly persons hindering apprehension, N.J.S.A. 2C:29-3(b), and obstruction, N.J.S.A. 2C:29-1, if committed by an adult. The trial judge merged the two offenses and imposed a $250 fine. This appeal follows, and we affirm.

D.F. arranged to sell two television sets for approximately $2000 each on eBay through Maxum Rydzewski, who maintained an eBay vendor account. When the buyers did not receive the merchandise, Rydzewski was compelled to refund their money, $1959.52 and $1932.76, respectively. He then contacted D.F., who claimed the seller was a third individual, Steve Patterson, and that otherwise he knew nothing about the transactions.

Rydzewski reported the matter to police on November 24, 2009. Patrolman Kurt Robert Peins of the Old Bridge Police Department attempted to contact D.F. using the phone number supplied by Rydzewski. When Peins called the number, he spoke with an individual who identified himself as "Dan." Dan told Peins that he was the middleman in the transaction and that Patterson, who was the seller, would refund the money to Rydzewski. Dan gave Peins two phone numbers at which he could attempt to reach Patterson. The first number was never answered, and the second was disconnected.

Peins again called the number Rydzewski had given him and spoke to Dan. This time, Dan identified himself as "Dan Tores"*fn1

and gave his address as 10 Station Road in Marlboro. When Peins contacted the Marlboro Police Department, the closest name they found to Dan Tores was that of D.F.

Old Bridge Police Department Patrolman Charles Miller then attempted to contact D.F. using the phone number Rydzewski had supplied. After many calls which were disconnected by the person on the other end of the line, a male finally answered who said his name was "Chris Ortiz." He explained that D.F. was his brother and that they lived at 7 Station Road in Marlboro. The call was disconnected, and when Miller redialed the number, no one answered.

On December 1, 2009, Miller called D.F.'s home phone number and spoke to a male who said he was D.F., and that he lived at 822 Sloan Court in Matawan, D.F.'s actual address. When Miller arrived at the residence to interview him, D.F. became argumentative, cursed, claimed it "wasn't him," and that it "was his brother" who was in the house. Miller spoke with the only other person present in the home, D.F.'s sister, an adult, who provided the officer with D.F.'s cell phone number. It was the same number as the one provided by Rydzewski. In fact, when Miller dialed the number, he heard the cell phone ring in D.F.'s bedroom. This was also the same phone number that Peins called when he spoke to "Dan Tores." When D.F. was asked about the televisions, he repeated that he was only a middleman acting for Patterson.

Miller filed juvenile complaints against D.F. for theft by deception, N.J.S.A. 2C:20-4, hindering, and obstruction.

The hindering complaint issued under N.J.S.A. 2C:29-3(a), the section that makes it a crime to hinder the prosecution "of another . . . ." Accordingly, in closing, the juvenile's trial counsel pointed out that the State charged D.F. with the wrong section of the statute. The trial judge never actually ruled on the point, ultimately finding the juvenile guilty of hindering his own prosecution under the correct section of the statute, N.J.S.A. 2C:29-3(b), and of obstruction, N.J.S.A. 2C:29-1, based on D.F.'s conduct in giving both officers false names and addresses. The judge merged the two offenses and acquitted D.F. of theft by deception.

On appeal, the juvenile raises the following point for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL ON THE OBSTRUCTING ADMINISTRATION OF LAW AND HINDERING CHARGES The juvenile contends that the court erred in denying the juvenile's application for acquittal at the close of the State's case on both matters. As to the hindering, the juvenile asserts the error occurred when the court found the juvenile guilty of hindering his own prosecution when the statutory cite in the complaint was incorrect. As to the obstruction, the juvenile asserts the court should have acquitted D.F. because that statute requires the commission of an independently unlawful act, in this case, hindering one's own prosecution, and the juvenile was never charged with that offense.

But the actual conduct described in the hindering complaint, "giving this [o]fficer the wrong name[,]" was precisely that which is necessary to prove the offense of hindering one's own prosecution. Based on the evidence the State presented, it proved beyond a reasonable doubt, as the trial judge found, that D.F. claimed to be other persons when called by the authorities, and gave two false addresses. He engaged in conduct intended to hinder his own prosecution. The amendment the court made to the statute, admittedly without explanation, only changed the section cited to conform to the allegation in the complaint and the officers' trial testimony. Clearly, hindering one's own prosecution is the appropriate charge where an individual engages in this conduct.

Amendments to charges contained in a juvenile complaint are permissible where the essential necessary acts which must be proven by the State do not change. See R. 5:20-1(d); State in the Interest of W.E.C., 81 N.J. 442, 449 (1979). So long as the State relies on the same factual allegations recited in the complaint, amendments will be permitted so long as no prejudice results. Ibid.

Although the trial court did not explain the reasoning that led to the amendment, it is apparent that this occurred, and we choose to exercise original jurisdiction and address the issue as if a more expansive explanation had been proffered. There can be no doubt that it was error for the judge to amend the charges without making any factual findings and reaching conclusions of law. This was, however, harmless error because the error did not in any fashion contribute to the result. See State v. Macon, 57 N.J. 325, 340 (1971).

As to the contention that obstruction requires proof of an independently unlawful act pursuant to N.J.S.A. 2C:29-1(a), it is clear D.F.'s independently unlawful act was that of hindering his own prosecution. Contrary to his argument, however, the statute does not require a separate complaint charging the unlawful conduct as a separate offense. Obstruction convictions have historically been upheld, even where the independently unlawful act was not charged. See, e.g., State v. Perlstein, 206 N.J. Super. 246, 248, 252-53 (App. Div. 1985); State v. Kent, 173 N.J. Super. 215, 221-23 (App. Div. 1980). Therefore, no error was committed by the court in finding guilt on the charge of obstruction in the absence of a complaint for a separate independently unlawful act.

Affirmed.


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