Opinion
DOCKET NO. A-0780-13T2 DOCKET NO. A-1659-13T1
06-04-2015
STATE OF NEW JERSEY IN THE INTEREST OF J.P., a minor. STATE OF NEW JERSEY IN THE INTEREST OF K.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant J.P. (Karen A. Lodeserto, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant K.S. (Alison Perrone, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief in A-0780-13; Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief in A-1659-13).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket Nos. FJ-03-864-13 and FJ-03-865-13. Joseph E. Krakora, Public Defender, attorney for appellant J.P. (Karen A. Lodeserto, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant K.S. (Alison Perrone, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief in A-0780-13; Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief in A-1659-13). PER CURIAM
In these appeals, which we consolidate for the purposes of this opinion, two juveniles, J.P. and K.S., both seventeen at the time of the incident, appeal their adjudications of delinquency for an offense which, if committed by an adult, would constitute first-degree robbery. N.J.S.A. 2C:15-1(a) and (b). In the alternative, each seeks resentencing. The court imposed three years of incarceration on J.P. and four years of incarceration on K.S. We affirm the adjudication and sentencing.
"A person is guilty of robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts him in fear of immediate bodily injury . . . ." N.J.S.A. 2C:15-1(a). J.P. was adjudicated delinquent for N.J.S.A. 2C:15-1(a)(1), while K.S. was adjudicated delinquent for N.J.S.A. 2C:15-1(a)(2).
On January 25, 2013, the owner of a fast food store in Mount Holly and his wife were working at the store when it was held up. A video of the incident was captured on the store's surveillance system.
We do not identify the victims to preserve their confidentiality.
The wife testified that at around 7:40 p.m., a teenager wearing an orange jacket with the hood up, came into the store, stood in front of the cash register and looked around. He asked where the restroom was located and she informed him that it was down the hall. As indicated by the elapsed time recorded on the store's video surveillance system, the teenager went to the restroom where he remained for seven seconds.
At approximately 8:00 p.m., the wife was cleaning dishes in the back of the store when she heard the doorbell. The owner went to the front of the store; the wife stayed in the back. Two males wearing ski masks, black shoes and black coats entered. The wife heard her husband make a loud noise and then he yelled for her to run. The wife ran out of the back of the store and called 911. The wife could not identify the individuals who entered the store.
The owner testified that one of the robbers pointed a black handgun at him. At the hearing, he identified a photograph that had been taken from the surveillance video, which showed an individual pointing a gun at him. The owner testified that the other robber tried to open the cash register. He stated that this individual punched him. The robber with the gun kept the gun pointed at the owner and forced the owner to open the cash register. The owner testified that the two robbers inside of the store were African-American; he could see the hands of the individual holding the gun and the skin around the eye openings of the ski masks of both individuals.
The owner ran to the door to escape, but a third African-American male, who was standing outside of the store, not wearing a ski mask, pushed twice against the door to prevent him from exiting. At the hearing, the owner identified a photograph that had been taken from the surveillance video, which showed him trying to run out of the store. The owner finally escaped and ran out of the store yelling "robber, robber."
The following sequence of events and identifications is from sixteen-year-old Q.S's testimony, which the court subsequently found was consistent with his earlier statements to police. After school on January 25, 2013, at some point between 6:00 and 7:00 p.m., Q.S. met with his friends J.P., K.S. and A.K. at Q.S.'s home where they watched a college basketball game. They then planned to rob the fast food store by using a black BB gun to "scare the guy" before taking the money from the cash register.
A.K. went into the store first "to see if anybody was in there." He left the store and went to where his three friends were waiting by nearby steps and told them that "nobody was in there." When shown photographs taken from the surveillance footage, Q.S. identified K.S. as the individual "scaring" the owner with a BB gun. Q.S. identified J.P. as the individual trying to open the cash register. When shown a photograph of the owner trying to run out of the store, Q.S. identified himself as the lookout stationed outside of the door who pushed on the door to try to prevent the owner from leaving.
A.K. was tried together with J.P. and K.S. but is not a party to this appeal.
Officer Ricardo Fullerton of the Mount Holly Township Police Department testified that on January 25, 2013, he was dispatched to an armed robbery that had just occurred. Upon his arrival, he saw a woman on a phone who pointed around the corner to indicate the direction in which the robbers had fled. Fullerton testified that he followed multiple footprints left in the fresh snow and, with information from others in the vicinity, located the juveniles at Q.S.'s home.
Q.S.'s fourteen year old sister, Qa.S., testified that several months later, while she was in math class at school, A.K. told her that her brother "snitched on [him] and [his] brothers [about] what happened. . . ." Qa.S. testified:
He said how . . . my brother was the one in the store with the gun and . . . he said that my brother said that his brother had [it], that his brother said that my brother had the gun while they were in the store and that if he snitched then he was, they were going to kill him and they were going to be in jail and my brother was going to be dead somewhere.
The court found the owner and his wife's testimony "wholly credible," and "wholly consistent with the photographs marked into evidence." The court noted that Q.S. gave three statements concerning the robbery. The first, given to Detective Pallante, took place approximately one-half hour after the robbery, which the court concluded was "before [Q.S.] had time to consider his options or sufficient guile to fabricate the involvement of others to his own advantage." Q.S.'s second statement was taped at the police station later that evening. The third was his testimony during the trial. The court stated: "[Q.S's] statements were consistent with his testimony and more importantly[,] consistent with the photographic evidence specifically describing what occurred in the [store] . . . ." The court found that Q.S.'s testimony concerning "the scout" wearing an orange hooded jacket was corroborated by the photograph from the surveillance video and A.K.'s attire when he was arrested. The court found that Q.S.'s testimony concerning their flight from the incident was corroborated by Fullerton who "describe[d] following the footprints in the snow down the steps, across the field and into the area . . ." where the juveniles were located.
After making findings of fact consistent with Q.S's testimony and the surveillance video, the court found beyond a reasonable doubt that J.P., K.S. and A.K. were "accomplices aiding each other in the commission of the armed robbery." The court entered adjudications of delinquency for each juvenile for first-degree armed robbery, and adjudicated K.S. delinquent for two weapon-related charges.
A.K. had also been found delinquent for witness tampering, N.J.S.A. 2C:28-5(a)(5).
J.P. raises the following issues on appeal:
POINT I: THE ADJUDICATION OF DELINQUENCY MUST BE REVERSED BECAUSE THE EVIDENCE DOES NOT SUPPORT A FINDING THAT J.P. WAS A PARTICIPANT IN THE ROBBERY.
POINT II: A CORRECT WEIGHING OF ALL FACTORS DOES NOT SUPPORT THE IMPOSITION OF A THREE-YEAR TERM OF INCARCERATION.
K.S. raises the following issues on his appeal:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE JUVENILE'S MOTION TO SEVER.
POINT II: THE ADJUDICATION OF DELINQUENCY MUST BE REVERSED BECAUSE THE EVIDENCE DOES NOT SUPPORT A FINDING THAT THE JUVENILE WAS A PARTICIPANT IN THE ROBBERY.
POINT III: A CORRECT WEIGHING OF ALL FACTORS DOES NOT SUPPORT THE IMPOSITION OF A FOUR-YEAR TERM OF INCARCERTAION.
We first address the juveniles' argument that the finding was not supported by the evidence. Both juveniles cite to In re Winship, 397 U.S. 358, 365, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 376 (1970), which states: "The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child." "[T]he constitutional safeguard of proof beyond a reasonable doubt is . . . required during the adjudicatory stage of a delinquency proceeding . . . . ." Id. at 368, 90 S. Ct. at 1075, 25 L. Ed. 2d at 377.
The appropriate review "standard [in a non-jury case] is whether there is sufficient credible evidence in the record to support the judge's determination." State ex rel. R.V., 280 N.J. Super. 118, 120-21 (App. Div. 1995) (citing State ex rel. J.R., 165 N.J. Super. 346, 350 (App. Div. 1979)). That standard of review is "narrow." State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (citations omitted), certif. denied, 180 N.J. 453 (2004). "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." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks and citations omitted). A trial court "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (internal quotation marks omitted)).
The trial court clearly found Q.S.'s testimony linking the juveniles to the robbery absolutely credible. The court based its finding on the correct standard of proof beyond a reasonable doubt and we do not disturb such a finding when the record contains sufficient credible evidence.
Both juveniles also challenge the sentences imposed. The State sought a four-year term of incarceration for J.P. The court instead imposed a three-year term followed by one year of supervised release.
Having watched the surveillance tape, the court found beyond a reasonable doubt that J.P. had "for no apparent reason gratuitously assaulted . . . a helpless victim." The court noted that J.P. had just turned seventeen when the offense was committed, noting that if the incident occurred one year later, J.P. could have been sentenced to twenty years in prison.
"[I]n determining whether incarceration is an appropriate disposition, the court shall consider the [enumerated] aggravating circumstances . . . ." N.J.S.A. 2A:4A-44(a)(1). The court stated, "At age [seventeen], almost out of his minority, [J.P.] chose to participate in an armed robbery, [and] physically assaulted the male owner of the [fast food store] . . . ." The court found aggravating factors N.J.S.A. 2A:4A-44(a)(1)(c),(d),(g),(j) and (l).
Pursuant to N.J.S.A. 2A:4A-44(a)(1), the court found that the following aggravating factors applied to J.P., but only (c), (g),(j) and (l) applied to K.S.:
(c) The character and attitude of the juvenile indicate that the juvenile is likely to commit another delinquent or criminal act;
(d) The juvenile's prior record and the seriousness of any acts for which the juvenile has been adjudicated delinquent;
(g) The need for deterring the juvenile and others from violating the law;
(j) The impact of the offense on the victim or victims;
(l) The threat to the safety of the public or any individual posed by the child.
The court found mitigating factor (h), "[t]he juvenile has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present act[,]" because J.P. "has led generally a law-abiding life" noting, that the elapsed time between a delinquent act committed in 2009 and the present one "is a substantial period of time" for a seventeen-year-old. The court found that the multiple aggravating factors outweighed the single mitigating factor.
In determining the sentence for K.S., the court noted that K.S. had been on probation on three separate occasions. On January 22, 2013, three days before this robbery, K.S. received probation from the same court for "two disorderly persons offenses and [an] adjudication for a fourth-degree obstruction . . . ." The court found that the commission of the serious offense so soon after being placed on probation was indicative "of the character and attitude of the juvenile." The court determined that aggravating factors (c), (g), (j) and (l) applied to K.S.
The court found that none of the mitigating factors applied. Concluding that the aggravating factors "overwhelmingly outweigh[ed]" the non-existent mitigating factors, the court imposed a four-year term. The court dismissed the weapon-related adjudications for the purposes of sentencing.
"A judge's sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing." State v. Jaffe, 220 N.J. 114, 116 (2014). "When the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced, [a reviewing court] must affirm the sentence and not second-guess the sentencing court, provided that the sentence does not shock the judicial conscience[.]" State v. Case, 220 N.J. 49, 65 (2014). (internal quotation marks and citations omitted). "Appellate review of a sentence is generally guided by the abuse of discretion standard." State v. Robinson, 217 N.J. 594, 603 (2014) (citing State v. Roth, 95 N.J. 334 (1984)). We discern no such abuse here, nor does the record provide factual support for those mitigating factors sought by the juveniles that were not granted by the court.
The juveniles asked the court to consider the following mitigating factors, pursuant to N.J.S.A. 2A:4A-44(a)(2):
(b) The juvenile's conduct neither caused nor threatened serious harm;In addition to mitigating factor (h), which the court granted, J.P. sought mitigating factors (g), (i), (j) and (k). K.S. sought mitigating factors (b), (c), (g), (h), (i), (j), (k) and (l).
(c) The juvenile did not contemplate that the juvenile's conduct would cause or threaten serious harm;
(g) The juvenile has compensated or will compensate the victim for the damage or injury that the victim has sustained, or will participate in a program of community service;
(h) The juvenile has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present act;
(i) The juvenile's conduct was the result of circumstances unlikely to recur;
(j) The character and attitude of the juvenile indicate that the juvenile is unlikely to commit another delinquent or criminal act;
(k) The juvenile is particularly likely to respond affirmatively to noncustodial treatment;
(l) The separation of the juvenile from the juvenile's family by incarceration of the juvenile would entail excessive hardship to the juvenile or the juvenile's family[.]
K.S. also argues that the judge erred by refusing to sever his trial from that of A.K. K.S. feared that the testimony of Qa.S, the cooperating witness Q.S.'s sister, could have prejudiced the court against K.S. Qa.S. testified that A.K. threatened her brother, Q.S., because he assisted the State. This testimony was not considered by the court against K.S. The argument that the non-jury trials should have been severed is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2). We note only the following:
"A judge sitting as the factfinder is certainly capable of sorting through admissible and inadmissible evidence without resultant detriment to the decisionmaking process . . . ." Trained judges have the ability "to exclude from their consideration irrelevant or improper evidence and
materials which have come to their attention."
[State v. Medina, 349 N.J. Super. 108, 130 (App. Div. 2002), certif. denied, 174 N.J. 193 (2002) (citations omitted).]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION