Opinion
DOCKET NO. A-5986-13T1
05-19-2016
STATE OF NEW JERSEY IN THE INTEREST OF E.D., a juvenile.
Joseph E. Krakora, Public Defender, attorney for appellant E.D. (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kathleen A. Dillon, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-873-14. Joseph E. Krakora, Public Defender, attorney for appellant E.D. (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kathleen A. Dillon, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
E.D., a juvenile, was charged with acts of delinquency which, if committed by an adult, would constitute one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and two counts of simple assault, N.J.S.A. 2C:12-1a. The charges stemmed from an incident that occurred shortly after school ended on February 7, 2014. The State alleged that, while walking home from school, another juvenile, A.S.C., committed an unprovoked assault on a classmate, M.S. A group of three other juveniles, including E.D., then joined in the attack on M.S., punching him and kicking him as he laid helpless on the ground. The State further alleged that when M.S.'s younger brother, J.S., and M.S.'s friend, E.C., attempted to help him, they too were attacked. Specifically, J.S. claimed that when he attempted to pull the attackers away, they threw him to the ground and beat him. E.C. alleged that one of the juvenile confederates held his arms behind him while E.D. punched him in the nose twice with a closed fist.
E.D. and the three other juveniles charged in the assaults, including A.S.C., were tried before a Family Part judge on June 9, 10, 12, and 13, 2014. The three victims testified, as did several other students and school employees who witnessed the altercation. We adopt and incorporate the detailed description of the trial testimony as set forth in the comprehensive twenty-four page written decision of Judge Robert Kirsch.
In his lengthy and detailed decision, Judge Kirsch acquitted E.D. of second-degree aggravated assault upon M.S., but adjudicated him delinquent of the lesser-included offense of third-degree aggravated assault and the two charges of simple assault upon J.S. and E.C. The judge made explicit credibility findings as to each of the witnesses who testified. With respect to the State's witnesses, the judge found all three victims credible and afforded their testimony substantial weight. The testimony of another student witness, I.H., was also credited as being "materially consistent with that of [the victims]." Regarding student witness J.P., the judge found that "[a]lthough her candor was indicative of truthfulness, her inability to clearly view and determine what happened during the chaotic melee detracted from her reliability."
Judge Kirsch characterized the two security guards who testified for the State as disinterested witnesses who lacked any "relationship with either the alleged perpetrators or alleged victims." The judge noted:
In material respects, both security guards credibly asserted that each had a clear, unobstructed view of the incident, for about a minute. Both acknowledged that they arrived at the scene after the incident commenced, and had no knowledge of how or by whom the fight was initiated. Both stated that they observed each of the co-juveniles participate in the beating of a victim who was on the ground. Both stated they observed A.S.C. kick the victim who was lying on the ground, and that E.D. [and the other two juveniles] punched a victim on the ground at the same time. Both confirmed that the fight ended when they, school security, arrived and instructed them to stop, and that the four [] co-juveniles fled the scene. Both confirmed the injuries at least to [M.S.]. The court found [both
security guards] to be highly credible, and accords their testimony great weight.In a footnote, the judge added that he viewed any discrepancy in the security guards' testimony as to whether there were one or two victims on the ground as "insignificant and understandable." Rather, he found "[t]he more critical aspect of their testimony was that both observed that the four [] co-juveniles were beating and kicking, in unison, a victim who was on the ground, defenseless."
In contrast, Judge Kirsch found both of A.S.C.'s eyewitnesses, who included his cousin and her girlfriend, "unpersuasive and uncompelling." He concluded that their versions, in which they claimed the victims were actually the aggressors, were "not believable, and contrary to the overwhelming weight of the more credible evidence adduced from the multitude of other witnesses who testified."
At a dispositional hearing conducted on June 30, 2014, Judge Kirsch placed E.D. in a juvenile intensive supervision program for eighteen months and directed him to attend an alternative education program and undergo anger management counseling. E.D. now appeals from the adjudication of delinquency and raises the following arguments for our consideration:
POINT I
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT E.D.'S ADJUDICATION FOR THIRD-DEGREE AGGRAVATED ASSAULT.
POINT II
THE BLANKET BAN ON JURY TRIALS FOR JUVENILES PURSUANT TO N.J.S.A. 2A:4A-40[] DEPRIVED THE [FOURTEEN]-YEAR OLD [JUVENILE] THE RIGHT TO A JURY TRIAL, DUE PROCESS OF LAW, AND EQUAL PROTECTION UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (Not Raised Below) (Sub-Points Omitted).
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 E.D.'s argument regarding the sufficiency of the evidence and affirm substantially for the reasons expressed by Judge Kirsch in his comprehensive and cogent written opinion. Defendant's second point, asserting his right to a jury trial on federal and state constitutional grounds, is not properly before us on this appeal, because he did not request a jury trial or otherwise raise the jury trial issue in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, even if we consider the issue, it is without merit. We rejected the same arguments in State ex rel. A.C., 424 N.J. Super. 252 (App. Div. 2012), affirming Judge Iadanza's lengthy and scholarly opinion on the jury trial issue, 426 N.J. Super. 81 (Ch. Div. 2012). We decline to revisit the issue here.
Judge Iadanza's opinion was approved for publication after our published opinion was issued, which is why it appears in a later New Jersey Superior Court Reports. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION