Opinion
DOCKET NO. A-0604-12T4
08-13-2014
STATE OF NEW JERSEY IN THE INTEREST OF K.A.
Joseph Krakora, Public Defender, attorney for appellant K.A. (Ruth Harrigan, Designated Counsel, of counsel and on the briefs). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-771-12. Joseph Krakora, Public Defender, attorney for appellant K.A. (Ruth Harrigan, Designated Counsel, of counsel and on the briefs). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
K.A. was seventeen years old when he was charged with three acts of delinquency that, if committed by an adult, would have constituted third degree aggravated assault, N.J.S.A. 2C:12-1b(2), third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5d. An additional charge of delinquency based on second degree aggravated assault, N.J.S.A. 2C:12-1b(1), was filed nearly three months after the first three charges.
K.A. was tried before a Family Part judge over two nonsequential days, and adjudicated delinquent based on a finding of guilty beyond a reasonable doubt, on all four charges. Two weeks after this trial, K.A. pled guilty, pursuant to a negotiated agreement with the State, to two acts of delinquency based on the disorderly persons offenses of possession of marijuana under fifty grams, N.J.S.A. 2C:35-10a(4), and criminal mischief, N.J.S.A. 2C:17-3a; he also pled guilty to violation of probation, N.J.S.A. 2C:45-3. In return, the State agreed to dismiss two pending delinquency charges based on third degree aggravated assault of a juvenile detention officer, N.J.S.A. 2C:12-1b(5)(h), and a disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1).
At a dispositional hearing conducted pursuant to N.J.S.A. 2A:4A-41, the trial judge placed K.A. in the custody of the Juvenile Justice Commission to serve an aggregate term of five years at the New Jersey Training School for Boys, with a one-year period of post-incarceration supervision pursuant to N.J.S.A. 2A:4A-44(d)(5). Although the court imposed concurrent terms on all four adjudications of delinquency, the sentence consisted principally of a three-year maximum term of incarceration on the act of delinquency based on second degree aggravated assault, together with an extended term of two years as authorized by N.J.S.A. 2A:4A-44(d)(3). At the time of the dispositional hearing, K.A. had accumulated 205 days of detention-time credits at the Union County Youth Detention Center while awaiting trial. As required under Rule 5:21-3(e), the court awarded K.A. full credit for the time served in pretrial detention.
We derive the following facts from the record developed before the trial court.
The incident that gave rise to these charges occurred in September 2011. The alleged victim of the aggravated assault, Q.O., was eighteen years old at the time. He testified that he and K.A. grew up together and were friends until 2009, when Q.O. joined "The Crips" gang. From that point forward, K.A. and Q.O. began what can be fairly be described as an ongoing feud that always ended by deteriorating into fistfights.
"The Crips Street Gangs" are a form of criminal enterprise that is well-known to New Jersey's law enforcement community. They are best "described as a federation [rather] than regarded as a single organization." See N.J. Dep't of Law & Pub. Safety Div. of State Police, Intelligence Section, Gangs in New Jersey: Municipal Law Enforcement Response to the 2010 NJSP Survey 26, 80 (2010), http://www.njsp.org/info/pdf/gangs_in_nj_2010.pdf. Their nefarious activities include violent crimes such as kidnapping, homicide, sexual assaults, and aggravated assaults. The Crips are also involved in the distribution of illicit narcotics, as well as theft, and quality of life crimes. Id. at 89.
According to Q.O., however, these physical altercations between K.A. and him never involved the use of weapons. Historically, once the fight was over, the two young men would resume their peaceful, if not amicable coexistence until the next fight. In Q.O.'s own words. "we would 'piece-it-up' [sic] . . . We would fight, and forget about it." This unusually limited cycle of violence allegedly escalated when Q.O. posted a "status" on his Facebook page (a message to his friends) asking: "Who thinks I should turn Blood?" Q.O. testified that he used the term "sloek," (pronounced with a silent "k" at the end), which is "a disrespectful term" for "The Bloods Street Gang." Q.O. wrote this "Facebook status" about the Bloods in response to an earlier derogatory comment a person we identify as T.B. (who was a member of the Bloods) had written about the Crips. T.B. was also a friend of K.A.
The Bloods Street Gangs are also well-known to law enforcement agencies. As described by the New Jersey State Police, the Bloods are "a franchise with numerous smaller gangs taking the 'brand name' of the gang and adopting the gang's symbols, ideology and terminology. See Gangs in New Jersey, supra, at 53.
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The trial court found, and the testimonial evidence supports, that around five o'clock in the afternoon on September 3, 2011, a neighborhood acquaintance of Q.O. called to tell him that K.A. was waiting for him in a park in the City of Rahway. K.A. wanted to resume their regular fighting ritual.
Q.O. testified that he answered the challenge and went to the park expecting to fight K.A. within the limits of their past encounters. He thus did not bring a weapon and was not expecting K.A. to be armed. Q.O. arrived at the park with his younger brother at approximately six o'clock in the evening. Despite his expectations and willingness to fight, Q.O. noticed K.A. appeared reticent. K.A. acknowledged Q.O. in an apparently innocuous manner, and made no attempt to fight.
The court found that after some time had passed, K.A. approached Q.O., and in the full view of those present, including Q.O.'s younger brother, K.A. stabbed Q.O. "twice, once in the left elbow, and once in his ribs on his left side." Q.O. testified that the stabs felt as though K.A. had "poke[d]" him. Q.O. rose from where he was seated, and asked K.A.: "[d]id I just get stabbed?" K.A. said something to Q.O. that he found incomprehensible, then turned to Q.O.'s younger brother and said: "You want to get poked up too?" K.A. then sped away on his bicycle.
Rahway Police Officer Kenneth Rengifo was one of the officers who responded to the scene. He testified to seeing "a black male sitting on a bench" holding the left side of his body. The victim "was bleeding profusely from . . . that side which he was holding." When Officer Rengifo asked Q.O. "what happened[,]" he said he's "not snitching." In fact, Officer Rengifo, testified that he and several other officers asked Q.O. "several times" to tell them what had happened, "and he refused to answer our questions."
An ambulance and emergency medical personnel eventually arrived and treated Q.O. at the scene. He was transported to University Hospital where he was admitted to the emergency room. Medical diagnostic and treatment records were admitted into evidence. Q.O. sustained a three-centimeter laceration to his left arm and suffered a theracoabdominal (an injury involving, or affecting the thorax and the abdomen) stab wound with no evidence of chest or diaphragmatic injury. He was prescribed pain medication and discharged that same day. Q.O. did not identify his assailant to the police until October 20, 2011, forty-seven days after the attack. His younger brother who witnessed the assault also cooperated with law enforcement.
K.A. called as a witness a family friend who testified she saw the entire incident from her window, which was approximately twenty-five to forty feet away from the bench where Q.O. was sitting, and had a direct, unobstructed line of sight. She initially mistook the victim as K.A., a boy she has known for six years. She called the police at approximately 6:25 p.m., and walked over to where the victim was located. When she reached the scene, she realized the victim was not K.A. She testified that she spoke to both the victim and his brother. The victim told her he did not know who had stabbed him. He described the assailant as a "Puerto Rican on a bike."
K.A. also called his grandmother as a witness who testified she picked up K.A. from a barbershop in Rahway between 5:40 and 5:44 p.m. on September 3, 2011, and took him directly to his mother's house. Then K.A. called his probation officer and received permission to shop with his grandmother. This witness testified that she took K.A. to the mall at about six o'clock that evening, and shopped with him for approximately two hours.
The State called Rudolph Davis, K.A.'s court services officer as a rebuttal witness. Mr. Davis was K.A.'s probation officer and was responsible for his direct supervision as a juvenile adjudicated delinquent by the Family Part. He explained that at that time, K.A. was electronically monitored and had an eight o'clock curfew. In response to the prosecutor's question, Mr. Davis explained that
[e]lectronic monitoring is a system that's set up into the home that's either connected through a cell unit or through the phone itself. There's an ankle transmitter that's
clipped onto the ankle. And it's connected into the home.
[PROSECUTOR]: Was the electronic monitoring working on September 3rd, 2011?
[COURT SERVICES OFFICER]: On September 3rd, 2011 he was a miss call.
[PROSECUTOR]: What does that mean?
[COURT SERVICES OFFICER]: A miss call, there are three things that can happen in a miss call. There was disconnected from -- it was the pull -- plug was pulled out -- out from the wall, there was a loss of electricity to the home.
. . . .
[T]here are three things that can happen. Either the plug was removed from the wall, there is a problem with the electricity to the home, or the system was faulty.
[PROSECUTOR]: And does electronic monitoring change the curfew system?
[COURT SERVICES OFFICER]: No, it does not.
[PROSECUTOR]: Okay. And specifically on that day did you come into contact with [K.A.]?
[COURT SERVICES OFFICER]: Yes.
[PROSECUTOR]: What time period was that sir?
[COURT SERVICES OFFICER]: About three o'clock.
[PROSECUTOR]: And what happened at three o'clock?
[COURT SERVICES OFFICER]: I saw [K.A.] -- I can't remember exactly. I think he was still going out with his family to go shopping.
[PROSECUTOR]: Okay. Did he ask permission to go shopping?
[COURT SERVICES OFFICER]: Yes, he did.
[PROSECUTOR]: Did you grant it?
[COURT SERVICES OFFICER]: Yes.
[PROSECUTOR]: And when was the time period that you next came in contact with him?
[COURT SERVICES OFFICER]: I believe it was about 6:58 [p.m.].
[PROSECUTOR]: Okay. And between three o'clock and 6:58 [p.m.] did you have any contact with [K.A.]?
[COURT SERVICES OFFICER]: No.
[PROSECUTOR]: Did you have any contact with his grandmother?
[COURT SERVICES OFFICER]: No.
[PROSECUTOR]: What happened at 6:58 [p.m.]?
[COURT SERVICES OFFICER]: He checked in.
[PROSECUTOR]: What does that mean?
[COURT SERVICES OFFICER]: He gave me a call on his cell phone to let me know that he was home.
[PROSECUTOR]: Did you know where he was calling from?
[COURT SERVICES OFFICER]: The phone number that is programmed in my phone is the home phone.
[PROSECUTOR]: His land line?
[COURT SERVICES OFFICER]: Yes.
Based on this record, the trial judge found the State had met its burden of establishing K.A.'s guilt beyond a reasonable doubt of the charges at issue. As a matter of credibility, the judge accepted the testimony of the State's witnesses, and rejected, as not credible, the testimony of the witnesses called by the defense. Judge Robert Kirsch carefully reviewed the testimony of each witness, and identified with particularity the basis for his credibility determinations.
K.A. now appeals raising the following arguments.
POINT I
THE EVIDENCE WAS INSUFFICIENT TO OVERCOME THE ALIBI DEFENSE OR TO SUPPORT THE FINDING OF THE TRIAL COURT THAT K.A. VIOLATED N.J.S.A. 2C:12-1b(1) OR N.J.S.A. 2C:12-1b(2). (Partially Raised Below)
A. The evidence below was insufficient to overcome K.A.'s alibi defense.
B. The evidence below was insufficient to support the finding of the trial court that K.A. violated N.J.S.A. 2C:12-1b(1) or N.J.S.A. 2C:12-1b(2). (Partially Raised Below)
POINT II
THE COURT MISAPPLIED ITS DISCRETION IN IMPOSING DISPOSITION DUE TO ITS IMPROPER FINDINGS OF AGGRAVATING FACTORS AND ITS FAILURE TO FIND APPLICABLE MITIGATING FACTORS AND BY IMPOSING AN EXTENDED SENTENCE UNDER N.J.S.A. 2A:4A-44D(4).
Our standard of review in juvenile delinquency bench trials "is narrow and is limited to evaluation of whether the trial judge's findings are supported by substantial, credible evidence in the record as a whole." State in the Interest of J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (citing State v. Locurto, 157 N.J. 463, 471, (1999); State v. Johnson, 42 N.J. 146, 161 (1964)), certif. denied, 180 N.J. 453 (2004). As an appellate court, we further owe special deference to those findings which are substantially influenced by the judge's feel of the case. State v. Elders, 192 N.J. 224, 244 (2007).
Mindful of these standards, we reject these arguments and affirm substantially for the reasons expressed by Judge Robert Kirsch in his memorandum of opinion dated April 12, 2012. With respect to the disposition of the court, which included an extended term, we discern no legal basis to interfere with the judgment of the Family Part. State ex rel. K.O., 217 N.J. 83, 92-93 (2014); N.J.S.A. 2A:4A-44(d)(3).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION