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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 4, 2012

STATE OF NEW JERSEY IN THE INTEREST OF D.R., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-444-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 16, 2012

Before Judges Axelrad and Ostrer.

D.R., a juvenile, appeals from adjudications of delinquency for acts which, if committed by an adult, would have constituted the petty disorderly persons offenses of disorderly conduct, N.J.S.A. 2C:33-2a(1), and resisting arrest, N.J.S.A. 2C:29-2a(1); and the lesser-included offense of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a). The court imposed disposition of a six-month term of probation, a curfew every night, and twenty hours of community service.

On appeal, D.R. argues the following points:

POINT I

IT WAS PLAIN ERROR TO FIND D.R. DELINQUENT WHEN HIS 4TH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCH[ES] AND SEIZURES WAS VIOLATED (NOT RAISED BELOW).

A. OFFICER OLIVERA'S SEARCH, SEIZURE AND ARREST OF D.R. DID NOT FIT ANY OF THE EXCEPTIONS TO THE WARRANT REQUIREMENT.

B. UNDER THE TOTALITY OF THE CIRCUMSTANCES TEST THE INVESTIGATIVE STOP WAS NOT BASED ON REASONABLE ARTICULABLE SUSPICION.

C. NEITHER THE PLAIN VIEW NOR THE PLAIN FEEL EXCEPTIONS APPLIED TO THE SEARCH AND OR SEIZURE OF D.R.'S POCKET, WALLET OR BIKE.

D. D.R. WAS SUBJECTED TO AN UNREASONABLE FIELD INQUIRY AND SEARCH INCIDENT TO ARREST WITHOUT PROBABLE CAUSE.

POINT II

IT WAS PLAIN ERROR TO FIND D.R. DELINQUENT WHEN THE PROCEDURES FOR THE DETENTION OF A JUVENILE WERE VIOLATED (NOT RAISED BELOW).

A. OFFICER OLIVERA DID NOT DETAIN D.R. BASED ON A CURFEW LAW OR JUVENILE STATUS.

B. OFFICER OLIVERA DID NOT FOLLOW THE PROPER PROCEDURES FOR THE STOP, DETENTION AND ARREST OF A JUVENILE.

POINT III

IT WAS PLAIN ERROR TO DENY D.R. HIS RIGHT TO DUE PROCESS, A FAIR TRIAL AND TO THE COUNSEL OF HIS CHOICE (NOT RAISED BELOW).

POINT IV

IT WAS PLAIN ERROR TO ADJUDICATE D.R. DELINQUENT WHEN HIS RIGHT AGAINST SELF INCRIMINATION WAS VIOLATED AND HE WAS NOT GIVEN A MIRANDA WARNING (NOT RAISED BELOW).

A. D.R. WAS SUBJECTED TO A CUSTODIAL INTERROGATION.

B. D.R.'S STATEMENT WAS NOT MADE VOLUNTARILY.

POINT V

IT WAS PLAIN ERROR TO CONVICT D.R. OF PETTY DISORDERLY CONDUCT UNDER N.J.S.A. 2C:33-2a(1) WHEN THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE (NOT RAISED BELOW). POINT VI

IT WAS PLAIN ERROR TO CONVICT D.R. OF AGGRAVATED ASSAULT ON A POLICE OFFICER AND RESISTING ARREST WHEN HE ACTED IN SELF-DEFENSE (NOT RAISED BELOW).

Based on our review of the record and applicable law, we are not persuaded by any of D.R.'s arguments and affirm.

The salient facts, gathered from the trial transcript, are the following. While on patrol at 2:30 a.m. in July 2010, Hoboken Police Officer Anthony Olivera observed seventeen-year-old D.R. riding his bicycle the wrong way down a one-way street. D.R. had been with two individuals who were under surveillance. D.R. stopped at Seventh Street and Washington Street alone and Officer Olivera stopped him for the traffic violation and to seek investigative information. Officers Francisco Rosa and Adam Colon arrived as back-up.

D.R. refused to provide identification when asked by Officer Olivera, who pulled D.R.'s hands out of his pockets and took possession of his identification. When Officer Olivera asked him whose bicycle it was, D.R. said it was his friend's but refused to give his name and began yelling and cursing at the officer. While Officer Olivera was speaking with him, D.R. received a phone call or called his mother and they spoke for a short period of time, during which the officer directed him to get off the phone, and D.R. complied.

Officers Olivera and Rosa testified that D.R. refused to show identification and repeatedly cursed, yelled, and became belligerent even after he was warned to quiet down or he would be placed under arrest. When D.R. was taken into custody for disorderly conduct, he began to resist arrest by flailing his arms and preventing himself from being handcuffed. While being cuffed, D.R. swung his other arm, which scraped Officer Olivera's left hand. The officer received a small laceration that bled and he sought medical attention. At police headquarters, D.R. shoved his body against Officers Colon and Olivera, and continued to resist walking into the Processing Room.

D.R. was charged with petty disorderly persons offenses of disorderly conduct and resisting arrest, and third-degree aggravated assault on an officer. At trial, defense counsel attempted to demonstrate through cross-examination of the officers that D.R. was stopped heading in the direction of his house, which was nearby, on the pretext of the traffic violation because police assumed he had stolen the bicycle. Defense counsel also asserted a general challenge to the applicability of the motor vehicle statute, N.J.S.A. 39:4-85.1, for a non-motorized bicycle.

Judge Camille M. Kenny credited the testimony of the officers and found no pretextual reason for them stopping D.R. She noted that following a routine field inquiry, D.R. simply could have given the police his identification and explained he was on his way home. Instead, despite being warned to control his behavior, D.R. began cursing and screaming, causing the situation to escalate. The judge was thus satisfied the State had proved the two petty disorderly offenses beyond a reasonable doubt. She also found the cut to Officer Olivera's hand was accidental but reckless, supporting a guilty finding on fourth, rather than third-degree assault on a police officer.

All of defendant's challenges on appeal are asserted as plain error, R. 2:10-2, because they were not brought to the trial court's attention. D.R. has failed to demonstrate any error, let alone an error "clearly capable of producing an unjust result[.]" Ibid.; see also State v. Macon, 57 N.J. 325, 336 (1971) (holding the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the [fact-finder] to a result it otherwise might not have reached").

The record does not support D.R.'s position that he was subjected to an unreasonable search and seizure. The initial approach by Officer Olivera was a permissible field inquiry. State v. Pineiro, 181 N.J. 13, 20 (2004). A request for identification does not convert a field inquiry into an investigative stop, provided the officer is non-confrontational and non-accusatory. State v. Rodriguez, 172 N.J. 117, 126 (2002). D.R. had already stopped his bicycle when Officer Olivera approached and requested his identification. Officer Olivera, whom the court credited, denied cursing at D.R. or slapping a piece of candy from D.R.'s hand during the encounter, and testified he did not become loud with D.R. but only yelled at him to stop resisting when the officers sought to handcuff him.

The officer alternatively conducted an investigatory stop of D.R., who had committed a motor vehicle violation. Pineiro, supra, 181 N.J. at 20. It is immaterial that Officer Olivera was unaware of D.R.'s juvenile status at the scene and was not enforcing a juvenile curfew ordinance when he stopped him. D.R.'s disorderly conduct of repeatedly cursing and screaming at the officers was a sufficient basis for them to take him into custody. D.R. was not searched until he was at police headquarters as incident to him being taken into custody.

The record belies D.R.'s argument alleging a violation of the procedures for the detention of a juvenile. Officer Olivera did not act improperly when he directed D.R. to end his cell phone conversation and was not required by Rule 5:21-1 to speak to D.R.'s mother at that time. The officer explained that he did not know whether the desk had contacted D.R.'s parents or D.R. had explained the situation to his mother during their phone conversation; regardless, D.R.'s parents arrived at police headquarters shortly after he was transported there.

D.R. also was not denied his right to a fair trial, to due process, or to counsel. There was no tangible evidence to suppress. Nevertheless, D.R. has not demonstrated that he was in any way denied the right to file a suppression motion. R. 2:11-3(e)(2).

We discern no abuse of discretion by Judge Kenny in denying D.R.'s request, on the morning of the day set for trial, for a five-week adjournment to seek private counsel. The court is vested with broad discretion in balancing the need to control its calendar, with a defendant's interests in an adjournment to seek counsel of choice. State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (l985) (setting forth factors guiding exercise of discretion). The court may consider, among other factors, the defendant's diligence, the inconvenience a continuance would cause litigants and witnesses, and the impact of the delay on the court's calendar. See State v. Kates, ___ N.J. Super. ___ (App. Div. 2012) (slip op. at 17-18); State v. Reddy, 137 N.J. Super. 32, 35-36 (App. Div. 1975) (holding that reasonable diligence must be utilized in exercising the right to chose one's own counsel, and "a failure to act expeditiously in obtaining counsel will allow the trial judge the discretion to do what is reasonably necessary to meet the situation" (internal quotation marks and citations omitted)).

Judge Kenny engaged in a reasoned exercise of her discretion, articulating appropriate grounds for denying the adjournment after making fair inquiry regarding the continuance request. D.R. had a fair opportunity to seek counsel of his choice and, in fact, sought the services of the Public Defender. There were numerous court appearances in the three-month period between D.R.'s arrest and trial, yet D.R. never stated that he wanted to hire private counsel prior to the trial date. Judge Kenny expressly considered the impact of the requested adjournment on witnesses who were assembled outside the courtroom. She also considered that rescheduling the trial would be "extremely difficult" given the court's existing calendar. She was further not persuaded that private counsel would actually be retained, even if an adjournment were granted.

Moreover, D.R.'s request for an adjournment of the trial date was not outright denied by the court, who conducted an appropriate and lengthy colloquy and offered a reasonable accommodation to D.R. Based on the conversation with D.R.'s mother or stepfather, it is apparent they did not attempt to contact private counsel until the day of trial when they left him a phone message, which he had not yet returned. As an accommodation, Judge Kenny offered that if an attorney appeared after lunch who represented that he or she had been retained, even over the objection of the prosecutor, she would give D.R. a brief adjournment of the trial. The court properly concluded, however, that under the circumstances, D.R.'s request was "just not solid enough" to inconvenience the State's witnesses who appeared for trial and to interfere with the court's calendar.

We also reject as without merit D.R.'s fifth argument challenging the sufficiency of the evidence for his conviction of petty disorderly conduct. 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) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)); 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).

N.J.S.A. 2C:33-2a(1) provides that a person is guilty of this offense "if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he [e]ngages in fighting or threatening, or in violent or tumultuous behavior[.]"

We are satisfied the overall conduct of D.R. indicated an intent to cause public annoyance, considering his obscene outburst at 2:30 a.m. in a residential neighborhood. As Officer Olivera testified, D.R. was sufficiently loud that "a resident could hear him [] in the nearby buildings and apartment buildings."

We reject D.R.'s newly-raised arguments regarding self-incrimination and self-defense as without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

20120604

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