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State of New Jersey In the Interest of K.K.

June 29, 2012

STATE OF NEW JERSEY IN THE INTEREST OF K.K., JUVENILE-APPELLANT.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-703-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 19, 2012

Before Judges Fisher and Grall.

Based on his role in an incident involving an attempt to steal a tire and its rim and the successful taking of the lug nuts, K.K. was charged with juvenile delinquency on allegations that he engaged in conduct that would, if he were an adult, constitute attempted third-degree theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:5-1, and three disorderly persons offenses - theft, N.J.S.A. 2C:20-3a, possession of burglary tools, N.J.S.A. 2C:5-5, and possession of marijuana, N.J.S.A. 2C:35-10a(4).

K.K. was tried to the court, and the judge adjudicated him delinquent of attempted theft and theft but acquitted him of the other charges. The judge then entered an order of disposition placing K.K. on probation for five months and requiring him to perform twenty-five hours of community service, refrain from contacting the victim, attend school and write a book report. In addition, the court imposed two $30 VCCB assessments and a $15 LEOTEF assessment. Although the complaint alleged attempted theft in the third-degree, the order of disposition indicates the judge adjudicated him delinquent for attempted theft in the fourth-degree.

On appeal K.K. presents one argument:

THE JUVENILE'S ADJUDICATION OF DELINQUENCY IS CONSTITUTIONALLY DEFICIENT AND MUST BE VACATED BECAUSE THE STATE FAILED TO OFFER PROOF BEYOND A REASONABLE DOUBT THAT THE JUVENILE EITHER COMMITTED A CRIME OR WAS AN ACCOMPLICE TO ANY CRIME.

We agree that the evidence was inadequate to support these adjudications, and vacate the order of disposition. The evidence is described below.

At about 9:00 p.m. on an early October evening, the resident of a home in Linden, Jorge Suarez, saw a Ford Expedition enter his driveway. Suarez watched while one male got out of the Expedition and used a jack to elevate his Nissan Pathfinder and then work to loosen the lug nuts on one of the tires. Suarez went outside and confronted the thief, who told him to take it easy. Another man got out of the front passenger-side door of the Expedition. The intruders removed the jack and left in the Expedition with three of the five lug nuts.

Heriberto Rodriguez, a neighbor of Suarez who was walking his dog, saw the incident and called the police. While Rodriguez was still on the phone with the dispatcher, the Expedition was stopped by Officer Javier Perez of the Linden Police Department. Upon hearing a dispatch about the incident, Perez saw an Expedition matching the description turn off Park Avenue and onto St. George/Rahway Avenue. Reporting his intention to follow the Expedition, Officer Perez did so for about a minute and then stopped it. At that point, the Expedition was seven to eight blocks from the street where the incident occurred. When Perez stopped the car, K.K. was seated in the front passenger seat. K.K.'s cousin, A.K., was driving, and another young man, J.G., and K.K.'s brother, W.K., were in the backseat. While removing the occupants, Perez saw a "blunt" on the backseat floor and lug nuts on the backseat.

Suarez and Rodriguez were driven separately to the site of the stop, which was about one block away from a Wendy's on St. George/Rahway Avenue. The Wendy's was further up the avenue than the place where the Expedition was stopped. Suarez identified A.K. and J.G. as the men he had seen in his driveway, and Rodriguez identified J.G. Neither could identify K.K. or W.K.

The State did not present any evidence to establish the value of the tire or rim on Suarez's Pathfinder ...


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