Opinion
DOCKET NO. A-5371-09T4
10-28-2011
STATE OF NEW JERSEY IN THE INTEREST OF D.B.
Michael Confusione argued the cause for appellant D.B. (Hegge & Confusione, attorneys; Mr. Confusione, on the brief). Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Marie G. McGovern, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Baxter.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket Nos. FJ-10-353-09 and FJ-10-112-09.
Michael Confusione argued the cause for appellant D.B. (Hegge & Confusione, attorneys; Mr. Confusione, on the brief).
Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Marie G. McGovern, Assistant Prosecutor, on the brief). PER CURIAM
The Supreme Court has held, in the criminal context, that "it is the responsibility of a defendant's counsel, not the trial court," to advise defendant about the right to testify, the right to choose not to testify, and the advantages and disadvantages of defendant's choice. State v. Savage, 120 N.J. 594, 630 (1990) (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App. Div.), certif. denied, 111 N.J. 567 (1988)). In this appeal, among other things, we consider D.B.'s contention that, notwithstanding Savage, a Family judge must inquire of counsel on the record whether a juvenile has been informed of the right to testify. We disagree and affirm.
D.B. (hereafter "the juvenile"), who was sixteen years old at the time of the incident in question, was charged with delinquency by "attempting to cause significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly causing significant bodily injury to [K.K.], specifically by punching [K.K.] in the nose causing her to suffer a broken nose, perforated eardrum and a concussion . . . [i]n violation of [N.J.S.A.] 2C:12-1b(7)." At trial, the judge heard conflicting testimony about the incident.
The State called K.K., R.S., and two other witnesses; the juvenile called three witness but did not testify on his own behalf. The judge's findings were memorialized in a written opinion dated May 12, 2010. He found that the juvenile, R.S., and K.K., attended the same high school. R.S., who was K.K.'s boyfriend, and the juvenile were not on friendly terms. On January 29, 2009, the juvenile approached R.S. and K.K. in the halls of the school. The juvenile and R.S. "threw 'dirty looks' at each other," and the juvenile "extended his middle finger at [R.S.] as they approached each other and [R.S.] responded in kind." After the juvenile had "gone approximately 10 feet past," he:
turned around 180 degrees to approach [R.S., who] . . . extended his hands forward . . . as if to gesture "I do not want to fight." [The juvenile] then aggressively came towards [R.S., who] backed up. Because of [R.S.'s] movement backwards, [the juvenile] was in closer proximity to [K.K.] than he was to [R.S.].The judge found the juvenile then threw a punch, which struck K.K. on the right side of her nose. The judge recognized the uncertainty as to whether the juvenile intended to hit K.K. or R.S., but he was satisfied beyond a reasonable doubt that the juvenile's "throwing [of the] punch was purposeful and knowingly, not in self-defense, and was intended to hit either" K.K. or R.S. As for K.K.'s injuries, the judge concluded that she suffered "nasal congestion, pain on her [nose's] right side, [and] loss of sense of smell until June 26[, 2009], when she had nasal surgery [required by] these injuries." The judge, thus, concluded that the juvenile had engaged in conduct which, if committed by an adult, would constitute aggravated assault.
An order of disposition regarding this adjudication, as well as another, was entered on June 7, 2010. The juvenile was placed on probation, subject to numerous conditions, for one year. He appealed, raising the following arguments for our consideration:
I. THE JUVENILE'S CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF WAS INFRINGED, WARRANTING VACATION OF HIS RESULTING ADJUDICATION OF DELINQUENCY.We find insufficient merit in Point II to warrant a discussion in a written opinion. R. 2:11-3(e)(2).
II. THE STATE'S PROOFS SUPPORTING THE THIRD-DEGREE AGGRAVATED ASSAULT CHARGE, AND THE TRIAL JUDGE'S FINDINGS BELOW, WERE LEGALLY INSUFFICIENT.
We briefly observe with regard to Point II only that the judge's cogent written findings are entitled to our deference, State v. P.S., 202 N.J. 232, 250-51 (2010); State v. Locurto, 157 N.J. 463, 471 (1999), and that the specific point urged by the juvenile -- that there was insufficient evidence to support the finding that K.K. suffered significant bodily injury -- is without merit. The judge's finding in that regard was fully supported by the record. He found that the punch thrown by the juvenile fractured K.K.'s nose, caused a temporary loss of smell, and required surgery, thereby meeting the definition of significant bodily injury. See N.J.S.A. 2C:11-1(d) (defining "significant bodily injury" as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses"). The juvenile's contention that fights that occur in high school are "typically associated with a charge of simple, not aggravated, assault" -- more an opinion of counsel than a legal contention -- is utterly without merit and requires no further discussion.
We also reject the argument contained in Point I. To be sure, a juvenile has the constitutional right to testify on his or her own behalf. N.J.S.A. 2A:4A-40; State v. Ferguson, 255 N.J. Super. 530, 537 (App. Div. 1992). But the trial judge is not obligated to inquire of counsel whether the juvenile was informed of that right.
In Ferguson, we applied the Court's holding in Savage in defining the extent of a trial judge's obligations in a juvenile matter. Judge King observed, in speaking for the court, as similarly recognized in Savage, supra, 120 N.J. at 631, that "[t]he best practice is for the judge to inquire of counsel on the point," but concluded that the inquiry is not required. We have been presented with no principled reason to change course and will continue to adhere to Ferguson, supra, 255 N.J. Super. at 539. Accordingly, we reject the juvenile's contention that the trial judge's failure to conform to this "best practice" warrants a reversal of the adjudication. See also State v. Cusumano, 369 N.J. Super. 305, 314 (App. Div. 2004); Bogus, supra, 223 N.J. Super. at 424.
The record also convinces us that counsel was not deficient in informing the juvenile of his right to testify. At the dispositional hearing, the juvenile's attorney represented that he "told [the juvenile] not to testify," in urging the court not to hold that decision against the juvenile. Indeed, when the juvenile addressed the judge at the same hearing, and expressed a desire to explain his "side of the story," he stated that he "wanted to testify" but his attorney "did not want [him] to."
In short, the trial judge did not err in failing to inquire of counsel whether he had advised the juvenile of the right to testify, and the record amply supports a conclusion that such a discussion between counsel and the juvenile prior to or during the course of the trial actually occurred.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION