September 11, 2012
STATE OF NEW JERSEY IN THE INTEREST OF A.W.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-2161-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2012 -
Before Judges Cuff and Fuentes.
A.W. was fifteen years old when she and two teenage boys were charged with an act of delinquency based on allegations that, if committed by an adult, would have constituted the crime of second degree robbery, N.J.S.A. 2C:15-1. The three juveniles were tried together before the Family Part and adjudicated delinquent. A.W.'s delinquency was based on the lesser included offenses of simple assault, N.J.S.A. 2C:12-1(a), and theft, N.J.S.A. 2C:20-3. The two boys were adjudicated delinquent based on simple assault. By way of disposition, the court placed A.W. on probation for a period of twelve months and ordered her to attend school without tardiness or unexcused absences, complete twenty-five hours of community services, and write a letter of apology to the victim of the assault and theft. We affirm.
We derive the following facts from the evidence presented at trial.
Fourteen-year-old W.D. testified that he was assaulted by A.W., T.H., and S.J. as he walked home after playing basketball with his friends at Fairmont Park in Elizabeth. W.D. claimed all three juveniles followed him and eventually ran after him as he was trying to reach his house. As he "tried to go around" his house, T.H. tripped him and "called out" for A.W. and S.J., "come on, come on, I got him." At this point, W.D. was lying on the ground in front of his house. According to W.D., "I put my hands over my face . . . and then as he reacted, he started punching me. And that's when they came and started stomping on my head and kicking me and hitting me." One of the blows struck W.D. on his right eyebrow, breaking his glasses.
Despite having used his hands to cover his face from the blows, W.D. testified he was able to see where each juvenile was when they were attacking him "[b]ecause [he] recognized their shoes and their jeans." Specifically, "A.W. was to the left side of [his] shoulder. [S.J.] was on the right side of [his] shoulder, and [T.H.] was in front of [him]."
When the assault stopped, W.D. testified that T.H. told him: "[T]hat's what you get for not helping the homey." W.D. surmised T.H.'s remarks referred to an incident in which W.D. did not come to the defense of a youth identified as K.C., when K.C. was assaulted by another youth while playing basketball. W.D. also testified that as T.H. and S.J ran away after the assault, A.W. "came back . . . and she took my [cellular] phone,*fn1
and then they ran."
W.D. went inside his house after the assault and told his parents, who responded by immediately calling the police. Although W.D. knew A.W. and S.J. as summer school classmates, and T.H. as the brother of another summer school classmate, he did not identify them by name to the responding police officers. When asked on direct examination to explain, W.D. testified that he did not name his attackers "because at the time, I was scared, and I didn't remember what happened, and then it came to me." W.D.'s parents took him to a nearby hospital where he was treated for head trauma and released later that day.
Elizabeth Police Officer Yoan Belon responded to W.D.'s residence. Belon testified that W.D. "was visibly shaken and a little distraught." W.D. also complained to Belon of pain to his head and face. According to Belon, W.D. described his assailants as "three [African-American] juveniles, two males and a female . . . approximately 15, 16 years old." The girl wore her hair in dreadlocks. After broadcasting the suspects' description, Belon and other officers drove around the area in marked police cars in an effort to locate the assailants. The search was unsuccessful.
Elizabeth Detective Leon Davis was assigned to investigate the case. Approximately two weeks after the assault, Davis met with W.D. and his parents at police headquarters and obtained a sworn statement from W.D. identifying A.W., T.H., and S.J. as the three juveniles who had assaulted him.
A.W. did not call any witnesses at trial. S.J. called the triage nurse who treated W.D. at the hospital on the night of the incident. The nurse testified that W.D.'s medical chart contains a statement attributable to W.D. indicating that he was "assaulted by three unknown assailants." T.H. called his father as a witness. He testified that T.H. had no direct siblings and that T.H.'s half-siblings were adults over the age of twenty-one. On cross-examination, T.H.'s father indicated that he did not know the age or the exact number of his son's half-siblings.
Against this record, Judge Frederic R. McDaniel found sufficient evidence to adjudicate A.W. delinquent for the disorderly person offense of simple assault of W.D. and the theft of his cellular telephone. Judge McDaniel addressed and rejected the defense's argument attacking the credibility of W.D.'s testimony based on his failure to name his attackers when the police responded to his home immediately after the assault:
The matter boils down to the credibility of the victim. No other eyewitnesses are available. I find the victim's testimony to be credible. He was consistent in his testimony, and his version of the offense was detailed.
It starts with the belief that he was attacked for a specific reason, his failure to go to the aide of the friend of the assailants. He easily ID's the three assailants because they were at the basketball courts minutes before and because he is familiar with them.
Any notion that the victim decided to pick these three on a whim because he was afraid of the real assailants is not persuasive. If that were so, the victim would have done what thousands before him have done, tell the police that he didn't know who attacked him, not risk retaliation from people he falsely accused.
How is it that he can identify these three and not the other people at the basketball court? Simple. The others didn't follow him, attack him, and take his phone.
Fully accepting the testimony of the victim, I find that there is sufficient evidence to establish that these three attacked [W.D.]. However, I do not find sufficient evidence to establish that the three attacked the victim with the purpose to commit a theft which as I mentioned previously is needed to establish robbery. In this matter, I am convinced that the intent to commit the theft neither preceded the force or was coterminous with it.
A.W. now appeals, raising the following arguments:
THE JUDGE BELOW ERRED IN ADJUDICATING A.W. DELINQUENT AS THE STATE FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT.
THE JUDGE BELOW ERRED IN REFUSING TO ORDER DELAYED DISPOSITION AND IN IMPOSING A PROBATIONARY TERM OF TWELVE MONTHS.
Our review of the factual findings of the trial court in cases tried without a jury, is limited. We are bound to uphold those findings that are supported by sufficient competent evidence. State v. Locurto, 157 N.J. 463, 471 (1999). We are further bound to "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id. at 474 (citing State v. Jamerson, 153 N.J. 318, 341 (1998)). Applying these principles to the record developed here, we are unable to find any grounds to disturb Judge McDaniel's thorough, well-reasoned analysis and ultimate conclusions based thereon.
We also reject A.W.'s argument attacking the disposition ordered by the Family Part. The Juvenile Justice Code confers upon the Family Part broad authority to impose a wide variety of dispositions, including probation. N.J.S.A. 2A:4A-43(b). "Probation is a disposition that offers the court a great amount of flexibility to achieve the Code's rehabilitative goals." State in the Interest of C.V., 201 N.J. 281, 296 (2010) (citing State v. H.B., 259 N.J. Super. 603, 607 (Ch. Div. 1992)). Here, Judge McDaniel noted that this was the second time A.W. had been involved an altercation with a fellow student. This adjudication represented in an escalation of antisocial behavior by A.W. because she was also found to have taken the victim's property after the act of violence had ended.
Given our limited role on appeal, we discern no basis to interfere with the Family Part's disposition. We affirm substantially for the reasons expressed by Judge McDaniel in his detailed oral opinion delivered from the bench on January 25, 2011.