Opinion
DOCKET NO. A-0235-13T4
03-24-2015
STATE OF NEW JERSEY IN THE INTEREST OF R.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant R.S. (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kimberly L. Donnelly, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-872-13. Joseph E. Krakora, Public Defender, attorney for appellant R.S. (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
R.S., a seventeen-year-old juvenile at the time the offense was committed, appeals from an adjudication of one act of delinquency that, if committed by an adult, would constitute a disorderly-persons offense of simple assault, N.J.S.A. 2C:12-1a(1). We affirm.
Judge Robert A. Kirsch conducted a one-day bench trial. He took testimony from the fifteen-year-old victim; a sergeant who interviewed the victim several days after the incident (the "Sergeant"); the victim's grandmother (the "grandmother"); an eyewitness to the incident (the "eyewitness"); and R.S. We discern the following facts from the evidence adduced at trial.
On the date of the incident, the victim walked home from school and noticed that the eyewitness and another individual were following her. The eyewitness testified that he saw R.S. punch the victim in her face. The grandmother then arrived at the crime scene and had a verbal altercation with R.S. At trial, the victim was unable to identify R.S. as the assailant, but she acknowledged that she identified him to the police. The Sergeant verified that the victim told him within days of the assault that R.S. punched her. R.S. admitted that he was there but claimed that he did not assault the victim.
At the end of the trial, Judge Kirsch rendered a comprehensive oral opinion and adjudicated R.S. a delinquent for committing the simple assault. The judge sentenced R.S. to a six-month term at the Training School for Boys, imposed the proper fines and penalties, and entered a no-contact order with the victim.
On appeal, R.S. argues that the adjudication was "against the weight of the evidence." As a result, R.S. urges us to vacate the adjudication.
The "weight of the evidence" standard is not used in non-jury trials. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). When reviewing the outcome of a bench trial, we are obliged to "'give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Therefore, "[f]indings by the [bench] trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We have no reason to disturb the judge's extensive findings.
It is undisputed that the victim was assaulted and sustained bodily injury as a result of the attack. The primary question during the trial was whether defendant was the assailant.
The judge indicated that he "carefully assessed and evaluated each witness' credibility, their body language, [and] any motive [that] they may have [had] to embellish or fabricate and the like." The judge emphasized that the victim's statement to police was "overwhelmingly" consistent with her trial testimony, except that she testified that she was unsure who struck her. The judge found, however, that the victim was "fearful to testify [at trial]." He determined that the victim "did not want to testify [at trial] to that which she knew." The judge stated that the victim "seemed visibly to cower and shrink on the witness stand" when certain questions were asked of her, and that "her testimony was riddled with pregnant pauses and hesitancy on the critical material aspects[.]"
The judge also found the Sergeant's testimony credible. According to the judge, the Sergeant questioned the victim in "a most non-coercive manner[,]" with "no indication that [the victim] was under any duress" or "improper[] influence[] . . . ." The court noted the lack of evidence indicating that the grandmother had attempted to "corrupt [the victim] to have her falsely inculpate [R.S.,]" and he found that the victim's statement to police, which "repeatedly stated that [R.S.] was the assailant," was credible.
The judge also noted that the eyewitness's testimony was largely corroborative of the victim's statement to police, as well as much of the victim's trial testimony, and that of the grandmother. Finally, the court found "the testimony of [R.S.] to be self[-]serving, uncorroborated, and in the end not credible."
Using the applicable standard of review, we conclude that substantial credible evidence supports Judge Kirsch's findings and that the State proved each and every element of simple assault beyond a reasonable doubt.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION