Opinion
DOCKET NO. A-0637-10T4
02-08-2012
STATE OF NEW JERSEY IN THE INTEREST OF S.S.
Joseph E. Krakora, Public Defender, attorney for appellant S.S. (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent State of New Jersey (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Baxter and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-631-10.
Joseph E. Krakora, Public Defender, attorney for appellant S.S. (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent State of New Jersey (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a bench trial, S.S., a juvenile, was adjudicated delinquent for acts which, if committed by an adult, would constitute second-degree robbery, N.J.S.A. 2C:15-1. A second charge which, if committed by an adult, would constitute second-degree aggravated assault resulted in an adjudication of not guilty. The judge placed the juvenile on probation for a period of eighteen months, ordered attendance at anger management classes and mandated twenty-five hours of community service. The juvenile appeals, asserting that the alleged robbery was an "afterthought robbery" and not within the scope of N.J.S.A. 2C:15-1. We disagree and affirm.
We provide an abbreviated version of the facts relevant to the issues raised on this appeal. On September 25, 2009, at approximately 4:00 p.m., M.H. was leaving school when she observed C.R. "smirk[ing]" at her, whereupon C.R. took a swing at M.H. and a fight ensued. At the scene, the juvenile, a friend of C.R.'s, proceeded to kick M.H. in the head. The juvenile then grabbed M.H.'s hair and proceeded to kick her three more times. While M.H. was on the ground, the juvenile grabbed M.H.'s cell phone, which was on the ground, and left the scene on her bicycle.
Thereafter, M.H. and her grandmother, who had picked her up at school, reported the incident to the police and then proceeded to S.S.'s house where they found C.R. M.H. observed C.R. had M.H.'s phone and then passed it to another friend of C.R.
M.H. was taken to the hospital where, because of delays, she was not treated; however, she returned to the hospital three days later for treatment of a head injury, headaches, contusions and back pain, all attributable to the earlier incident.
At trial, the juvenile testified and denied any involvement in the fight between M.H. and C.R. She also denied stealing M.H.'s phone and claimed that she had picked up C.R.'s phone from the ground. According to S.S., she left the scene while the fight was going on because C.R. "could take care of herself."
Although the juvenile's version of events was corroborated by C.R. as well as two other defense witnesses, in his decision, the trial judge dismissed the testimony as incredible. He concluded that the juvenile's testimony was also incredible and adjudicated S.S. as a delinquent.
As we have noted, on appeal, the juvenile, relying on State v. Lopez, 187 N.J. 91 (2006), asserts that the judge erred by "failing to consider that what occurred was, at most, an afterthought robbery."
In Lopez, the State alleged that defendant lured the victim to a secluded area for the purposes of committing a robbery, attacked him with a karate chop to the throat, stole his necklace and then left him to die. Id. at 93. According to the defendant, the victim threatened defendant and a fight ensued whereupon the defendant struck the victim. Ibid. "Defendant then decided to steal [the victim's] necklace, and took it from his neck." Ibid. The Court, recognizing that robbery requires proof of a specific intent, id. at 98, concluded that the trial judge erroneously charged the jury that the intent to steal could be formed either before or after the use of force as long as the intent to steal and the force constituted a single transaction. Id. at 94, 101. The Court noted:
[O]ur statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force.The issue presented here is whether the State's proofs met this standard. In his decision, Judge McDaniel made a finding that is critical to the outcome of this appeal. He concluded:
[Id. at 101.]
To adjudicate the juvenile delinquent of robbery, the intent to commit a theft must precede or be coterminous with the use of force. In other words, the juvenile must have formed the intent to commit a theft before or during the use of force. And if I find the juvenile formed the intent to commit a theft after the use of force, then she cannot be found guilty of robbery. Should I find the State has failed to prove any of these elements of the crime beyond a reasonable doubt, I cannot adjudicate the juvenile delinquent. If I find the State has proved every one of the elements of the crime of robbery, then I must adjudicate the juvenile delinquent.
[(Emphasis added).]
Here, the judge then went on to find that "the juvenile did attack the victim along with [C.R.] and that as [M.H.] testified, [S.S.] committed an act of theft by stealing the victim's phone during the attack. All of the elements of robbery were proved beyond a reasonable doubt and the juvenile is therefore adjudicated delinquent of robbery, second degree." In his thorough opinion, the judge made comprehensive findings of fact as to the events that transpired as well as specific findings as to the credibility of all of the witnesses.
In considering the juvenile's argument, we restate our standard of review of factual determinations made by a trial judge. We must give deference to the "factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quotation marks omitted)). See also State v. Smith, 158 N.J. 376, 383 (1999); State v. Burno-Taylor, 400 N.J. Super. 581, 605 (App. Div. 2008). This deference is particularly appropriate when there are issues of credibility since they relate to "the trial court's feel of the case as to matters such as the demeanor and credibility of witnesses." D.G. ex rel. J.G. v. North Plainfield Bd. of Educ, 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 34 6, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172, L. Ed. 2d 756 (2008). A trial court's findings of fact will not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). See also State In re W.M., 364 N.J. Super. 155, 165 (App. Div. 2003).
We have carefully reviewed the record and conclude that the judge's factual determinations were clearly supported by credible testimony. His comments on the necessity of finding intent and the relationship between the theft and the violence demonstrated a clear understanding of the principles enunciated in Lopez. We find no basis for our intervention.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION