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State ex rel. D.W.

Superior Court of New Jersey, Appellate Division

October 23, 2013

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 9, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-644-11.

Joseph E. Krakora, Public Defender, attorney for appellant D.W. (Michael C. Wroblewski, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor and Kimberly Donnelly, on the brief).

Before Fasciale and Haas Judges.

PER CURIAM

Following a bench trial, D.W., a juvenile, was adjudicated delinquent for acts which, if committed by an adult, would constitute first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of imitation firearms (an Uzi replica and an Interpol .38 cap pistol) for an unlawful purpose, N.J.S.A. 2C:39-4e.[1] Both before and after trial, D.W. also pled guilty to separate charges involving different incidents in connection with six other juvenile complaints.[2]

The trial judge imposed a disposition dealing with all seven juvenile complaints. On the charges primarily involved in this appeal under Complaint No. FJ-20-644-11, the judge imposed a four-year term of incarceration on the first-degree robbery charge and a concurrent one-year term on the fourth-degree charge of unlawful possession of an imitation firearms for an unlawful purpose. The judge imposed a consecutive two-year term on Complaint No. FJ-20-2110-10; a concurrent one-year term on Complaint No. FJ-20-2298-10; and a consecutive three-year term on Complaint No. FJ-20-45-11. The judge imposed a concurrent six- month term on Complaint No. FJ-20-2259-10, and a concurrent one-year term on Complaint No. FJ-20-1195-11. Finally, on Complaint No. FJ-20-746-11, the judge imposed: a concurrent four-year term on the first-degree robbery charge; a concurrent three-year term on the second-degree possession of an assault firearm charge; a concurrent three-year term on the second-degree possession of a firearm charge; and a concurrent one-year term on the fourth-degree possession of a large-capacity ammunition magazine charge.[3] Thus, D.W.'s aggregate disposition was nine years incarceration, with a post-detention period of supervision equal to one-third of the aggregate sentence. Appropriate fines and penalties were also assessed. We affirm.

I.

The State developed the following proofs at trial concerning a robbery that occurred at a Burger King restaurant on the evening of October 11, 2010. The employee at the drive-thru window saw two masked males come in the front door of the restaurant around 10:45 p.m. He could only see their eyes, but stated they were both African-Americans. One wore a black-hooded sweatshirt and the other was wearing a gray-hooded sweatshirt. The men were also wearing gloves. The man with the black sweatshirt held what looked like "a[n] Uzi, machine gun automatic." The other robber carried what looked "like a .380 or .357, a revolver." The employee estimated that the men were each eighteen years old. He described them both as "slim[, ]" with the one wearing the gray sweatshirt being taller than the other.

The men told the employee to go to the front of the store and open the cash registers, but he was unable to do so. The employee called the manager to the front of the store. He opened the registers, but they were empty. The robbers then took him into the office at gunpoint. The manager gave the men money from the drawers he kept there and they fled the store. He estimated the robbers took approximately $400. The manager's physical description of the perpetrators was similar to that provided by the employee at the drive-thru window. Once the robbers left the store, they went across the street in the direction of Washington Avenue.

A third employee was cooking hamburgers when the robbery began. She only saw one of the men holding a gun and she was not sure as to their race. She also testified that one of the robbers was wearing a white sweatshirt and the other was wearing a black sweatshirt.

A customer was at the drive-thru window when the perpetrators entered the restaurant. He was a teacher, who was acquainted with the employee at the window. The customer saw the employee with his hands in the air and the employee winked at him. Realizing something was amiss, the customer left the restaurant and called 911. Sergeant Michael Foreman reported to the restaurant and, after speaking with the employees, broadcast a description of the suspects and the direction of their flight to other officers.

Later that evening, the police established a perimeter around a house approximately one-and-one half blocks from the restaurant. The house was about one-and-one-half blocks from the restaurant. Officer Pedro Abad was positioned near the basement windows of the house. From his vantage point, he heard an unidentified voice in the basement say, "'It went just as planned' and 'it was easy.'"

Sergeant Foreman and Officer Eric Calleja were at the house. Officer Calleja saw two adult men come out of the house. The first, Donald Givens III, was stopped and turned over to Sergeant Foreman for questioning. The second man was Givens' father, Donald Givens, Jr. The police also took him into custody for questioning.

Officer Barry Laraway was also outside the house. He testified it "was raining on and off heavily." After 1:00 a.m., he saw D.W. open the back door of the house and look around several times before he stepped out of the doorway. Officer Laraway described D.W. as between seventeen and twenty years old, African-American, slim, and wearing dark pants and a white t-shirt. The officer told D.W. to stop, but he tried to get back into the house. The officer grabbed D.W. by the wrist and took him into custody.

Shortly thereafter, the police entered the house with a search warrant. They found a juvenile, co-defendant B.B., [4] hiding in a small "cubby hole" in a corner of the basement. B.B. was wearing dark pants and a black t-shirt. After he was ...


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