Opinion
DOCKET NO. A-5104-13T3
11-13-2015
STATE OF NEW JERSEY IN THE INTEREST OF A.P., a juvenile.
Joseph E. Krakora, Public Defender, attorney for appellant A.P. (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent State of New Jersey (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FJ-04-1218-14. Joseph E. Krakora, Public Defender, attorney for appellant A.P. (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent State of New Jersey (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant A.P. (Alice), a juvenile, appeals the order adjudicating the child delinquent for committing acts which, if committed by an adult, would have constituted perjury and harassment, as well as her sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm the convictions but reverse and remand the matter for re-sentencing.
Pseudonyms have been used for the juvenile and all witnesses for the sake of anonymity and ease of reference.
While riding a bicycle through a park, C.B. (Carl) heard someone scream "little nigger" at him out of a car in a parking lot. When the vehicle drove past him, one of the occupants threw a cup of ice at him. He was able to observe people sitting in both the front and back seats. When Carl reported the incident to the police, he stated that he heard a male voice scream the epithet.
The police located and interviewed the occupants of the car that evening. It was determined that Alice was in a car being driven by H.S. (Holly) and occupied by her sister F.P. (Faye), and their friends C.J.F. (Charlie), and B.A. (Betty). Charlie gave a sworn statement to police in which he said he thought Alice made the offensive comment. Faye also gave a statement in which she said her sister, Alice, "probably" yelled the slur. Based on these statements, Alice was charged with harassment and bias intimidation. At a hearing several weeks later, Alice denied saying the epithet and instead testified under oath that it was Charlie who had yelled the offensive statement. The charges against Alice were dismissed without prejudice, and charges were brought against Charlie. At his trial, however, Charlie testified that it was indeed Alice who had yelled the slur. Consequently, a second complaint was brought against Alice charging her with harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4(a), and perjury, N.J.S.A. 2C:28-1(a).
On the first day of trial, the State asked that Alice be adjudicated guilty of the charge of fourth-degree harassment. The assistant prosecutor stated: "The harassment is a fourth degree charge because the juvenile was currently on a period of probation when the offense was alleged to have occurred." There was no objection or comment by defense counsel. Just prior to rendering his decision, the judge inquired of the State and defense counsel whether either wished to provide input on the degree of the harassment charge. The assistant prosecutor again replied that since Alice was on probation the harassment would be a fourth-degree charge. There was no objection or response by defense counsel to this statement.
At Alice's trial, the victim said he could not remember the voice of the person who yelled at him. Both Charlie and Faye retreated from their earlier identifications of Alice as the person who yelled the slur. Finally, Holly testified that she was "100 percent positive" that Alice yelled the epithet.
After weighing the evidence and making credibility findings, the trial judge found that Alice engaged in the charged conduct of fourth degree harassment and perjury. At a disposition hearing, the court imposed a suspended one-year sentence to the juvenile correction center, two consecutive three-year terms of probation, and community service.
On appeal, the juvenile raises the following arguments for our consideration:
POINT I: [ALICE]'S PERJURY CONVICTION MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE ALL THE ELEMENTS OF THE OFFENSE AND BECAUSE THE TRIAL COURT'S ERRONEOUS APPLICATION OF THE DOCTRINE OF JUDICIAL ESTOPPEL DEPRIVED [ALICE] OF HER RIGHTS OF DUE PROCESS AND A FAIR TRIAL. [(U.S. CONST. amend. XIV; N.J. Const. art. I, ¶ 1, 9 and 10)] (Not Raised Below)
POINT II: [ALICE]'S CONVICTION FOR FOURTH DEGREE HARASSMENT SHOULD BE VACATED AS SHE WAS NEVER CHARGED WITH A FOURTH-DEGREE OFFENSE. (Not Raised Below)
POINT III: [ALICE]'S SENTENCE IS CONTRARY TO NEW JERSEY LAW AND MUST BE VACATED.
A. Contrary to N.J.S.A. 2A:4A-44, the court below imposed a sentence of incarceration without considering the aggravating and mitigating circumstances.
B. Should this court find that a suspended term of incarceration and probation is not a sentence of incarceration, then the court below erred in applying N.J.S.A 2A:4A-47 to extend the court's jurisdiction over [Alice] beyond her 18th birthday.
C. The Court below did not find that [Alice] was on probation for a crime at the time of the alleged
harassment beyond a reasonable doubt, thereby denying [Alice] due process under the federal and state constitutions.
D. The court below gave no reasons for imposing consecutive sentences.
The arguments raised in Points I and II are raised for the first time on appeal and therefore are subject to review for plain error. R. 2:10-2. Based upon our review of the arguments in light of the record and applicable legal principles, we conclude that neither alleged error is "clearly capable of producing an unjust result." Ibid. We further conclude that the argument raised in Point III lacks merit.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Because a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alterations in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Therefore, we should not disturb the "factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484.
I.
Alice contends that the State did not prove all of the required elements of a perjury charge, specifically that there was no corroborative evidence of her purported falsity other than Holly's testimony at trial. "No person shall be convicted of an offense under this section where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant." N.J.S.A. 2C:28-1(e). "[W]here proof of perjury consists of the testimony of a single witness, it is necessary that there be corroborating evidence of the falsity of the matter sworn to by the defendant." State v. Boratto, 80 N.J. 506, 516 (1979). As only Holly testified at the trial that Alice uttered the slur, the juvenile contends that the State has not met its burden. We disagree.
A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.
[N. J.S.A. 2C:28-1(a).]
In addition to the statement made by Holly, the trial judge correctly relied on the previous sworn testimony given by Charlie at the hearing on his charges and his assessment of the witnesses' credibility at trial. Faye and Charlie had both given statements on the night of the incident implicating Alice as the speaker of the slur. The judge looked at each witness' testimony, assessed their credibility and determined the weight to be given to the statements made before and at the time of the trial. He noted regarding Charlie:
He . . . is basically saying one thing to promote his self-interest and then later under the guise of being protected and his matter is already . . . resolved he then backs off with a thinly veiled attempt to now protect [Alice] in her perjury trial . . . . [Charlie] indicated under oath that [Alice] was responsible for the offensive — and coarse . . . language . . . then when he thinks he's free and clear, then he's going to basically cut her a break, and now he's got a foggy memory, and it's not acceptable.
The judge also found Faye's testimony not "worthy of belief" and "not credible." He observed that she had a motive to protect her sister and was argumentative but, nonetheless conceded she had told police the offensive comment was "probably" made by her sister. He concluded her attempt to exculpate her sister was weak and not persuasive. We therefore find that the trial judge appropriately used the prior sworn statements of Charlie, in conjunction with noting his demeanor and assessing his credibility at Alice's trial as well as the other witnesses, to satisfy the required element of corroboration.
II.
We find Alice's argument that she could not be found guilty of fourth-degree harassment, because it was not explicitly charged in the complaint, to be without merit. Rule 5:20-1(a)(5)(d) states:
The court may amend the complaint to correct an error in form or the description of the offense intended to be charged . . . provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in the defense on the merits.Perhaps most important, Alice has not claimed she suffered any prejudice to her defense on the merits. Thus, even if error, the amendment here was not clearly capable of producing an unjust result. R. 2:10-2.
[(Emphasis added).]
Moreover, in the complaint, Alice was put on notice of the charge of harassment. The complaint cites N.J.S.A. 2C:33-4, which includes:
A person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment or was on parole or probation as the result of a conviction of any indictable offense under the laws of this State, any other state or the United States.The juvenile, therefore, was aware of the charge and the corresponding statute advising that the degree of the charge was higher due to a current term of probation. In addition, the assistant prosecutor stated at the start of the trial that the harassment was a fourth-degree charge because Alice was currently on probation. Defense counsel did not object to this statement. Prior to making his adjudication, the trial judge inquired of both counsel as to the degree of the harassment charge. The assistant prosecutor repeated his statement from the beginning of the case to which defense counsel made no objection nor comment. We find the judge's amendment of the charge to one of fourth-degree did not constitute a different offense.
[N. J.S.A. 2C:33-4(e).]
III.
Lastly, we address the sentence. We agree with Alice's argument that in sentencing the juvenile to a period of incarceration, the trial judge did not state sufficient reasons for his sentence as required under N.J.S.A. 2A:4A-44(a)(1) and (2). In State v. O'Donnell, 117 N.J. 210 (1989), the Court detailed the scope of an appellate court's review of aggravating and mitigating factors: "[A] trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Id. at 215 (citation omitted).
We find the remainder of Alice's arguments regarding her sentence to be without merit. Therefore, we remand the matter solely on the issue of re-sentencing.
Affirmed in part, reversed and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION