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State ex rel C.M.

Superior Court of New Jersey, Appellate Division

July 12, 2013

STATE OF NEW JERSEY IN THE INTEREST OF C.M., A Juvenile.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 2, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-843-12, FJ-20-1127-12.

Joseph E. Krakora, Public Defender, attorney for juvenile appellant C.M. (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Melissa A. Tirone, Special Deputy Attorney General/Acing Assistant Prosecutor, of counsel and on the brief).

Before Judges Sapp-Peterson and Sabatino.

PER CURIAM

After a February 2012 bench trial, a Family Part judge found appellant C.M., a juvenile, to have committed the delinquency offense charged in Docket No. FJ-20-843-12. The offense, if committed by an adult, would comprise second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Following that disposition, C.M. pled guilty to a separate delinquency complaint (FJ-20-1127-12) charging him with the juvenile equivalent of simple assault, N.J.S.A. 2C:12-1a, which the court downgraded to a petty disorderly persons offense. The court sentenced C.M. to a three-year placement with the Juvenile Justice Commission in FJ-20-843-12, and a concurrent thirty-day placement in FJ-20-1127-12.

C.M. now appeals, alleging trial error, insufficiency of the State's proofs, and excessiveness of his sentence. For the reasons that follow, we remand this matter for the trial court to address, in the first instance, certain significant evidentiary issues raised by C.M. on appeal.

The State's proofs at trial keyed upon its central allegation that C.M. illegally possessed a .380 caliber handgun in Elizabeth on November 14, 2011. The allegation was based upon circumstantial evidence and the statements of two other youths, one of whom testified and the other who told the police prior to trial that such a handgun had been in appellant's possession that day. Notably, no such gun was ever recovered from appellant or admitted into evidence at trial.

The State presented three witnesses at trial: N.O., a juvenile who had been with C.M. on the day in question; C.M.'s minor sister, I.M.; and an Elizabeth police detective who had taken a statement from I.M. at the stationhouse. C.M. elected not to testify in his own defense, and did not call any witnesses.

N.O. testified pursuant to a plea agreement he had made with the State concerning his own involvement in this incident. According to N.O., on November 14, 2011 he walked past C.M.'s house after leaving school. He saw C.M. standing there with several girls, including C.M.'s sister I.M., and one or more other boys. After the group mingled together for several minutes, I.M. went back into her house and the other girls left. A boy then asked C.M. a question and, according to N.O., C.M. pulled a handgun out of his pants pocket. N.O. described the gun as "short, dark blue and looked black[.]" He stated that it "looked like a '380'[caliber handgun], " noting that his stepfather owned a "380." According to N.O., C.M. let him briefly hold the gun, and then took it back.

C.M. then allegedly asked the boys if they wanted to make some money. According to N.O., the boys walked to a nearby street corner, while C.M. went briefly into his house. The boys shortly thereafter returned to the house and then C.M. came back outside. In N.O.'s presence, C.M. made a call on his cell phone to an unidentified older man. C.M. then gave the gun to a third person. N.O. and that third person then walked to another location, where they were paid $100 for the gun, $20 of which was given to N.O.[1] The purchaser of the gun was not identified by name or otherwise. N.O. and C.M. were thereafter each charged with juvenile weapons offenses.

In her own testimony, I.M. acknowledged that she had been on the front porch of her house on the day in question, and that she had seen a group of boys outside in front of the house. At one point her brother C.M. came outside, but she testified that he just walked past the group and went to the store. She denied seeing her brother show the other boys anything. Moreover, I.M. stated that she had never seen C.M. with a gun. According to I.M., at some point she went back into the house to charge her cell phone. By the time that she returned outside her brother and the other boys had left. She admitted that she had gone to the police station in the latter part of November 2011, but asserted that she only remembered going to make a complaint about ...


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