STATE OF NEW JERSEY IN THE INTEREST OF Q.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0052-04T40052-04T4

STATE OF NEW JERSEY IN THE INTEREST

OF Q.M.,

Juvenile-Appellant.

________________________________

 

Submitted September 26, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FJ-09-2596-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent, State of New Jersey (Allysa Gambarella, Assistant Prosecutor, on the brief).

PER CURIAM

Q.M. was adjudicated delinquent following a hearing for offenses, which if committed by an adult would constitute disorderly persons, simple assault, N.J.S.A. 2C:12-1a, disorderly persons rioting, N.J.S.A. 2C:33-1a(1), second-degree robbery, N.J.S.A. 2C:15-1a, and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a. The judge merged the simple assault and conspiracy adjudications with the robbery adjudication, and sentenced Q.M. to a fifteen-month period of confinement. He also imposed a concurrent three-month term on the disorderly persons rioting adjudication and a concurrent twelve-month term for violation of probation. Appropriate fines and penalties were also imposed. Q.M. appeals and we affirm.

On February 3, 2004, at about 10:30 p.m., Celeste Montesimo was taking the escalator to the street level at the Journal Square Path Station in Jersey City after exiting her train on the lower level. As she reached a middle level, she witnessed a woman surrounded and being beaten by a group of five women, while one of the five, a tall, heavyset woman, pinned the victim down.

Montesimo reached for her cell phone to call 911, but before doing so, saw two men who appeared to be police officers approach the victim. The five women began to walk away as a group. As Montesimo began to leave the scene, she felt someone pull the back of her hair, causing her to fall backwards to the ground where she hit her head on the concrete floor. Montesimo was initially stunned. However, in a matter of seconds she realized that she did not have her purse. She sat up and as she reached for it, one of the women from the group of five kicked the purse from under her hand. The five women then began kicking the purse to each other in a direction toward the street, saying, "purse over here, purse over here." Montesimo identified Q.M. as of one of the five women. According to Montesimo, the five women stayed together the entire time.

The police stopped the five women outside the train station near the taxi stand. Montesimo approached the police and told them that the women had taken her purse. After the police conducted a safety pat down of the five women, the purse fell from underneath the jacket of one of the women. Q.M. was not the woman who pulled Montesimo's hair and kicked the purse from under Montesimo's hand or the one who concealed the purse under her jacket.

Q.M. raises the following point on appeal:

THE ADJUDICATION OF DELINQUENCY MUST BE REVERSED BECAUSE THE EVIDENCE DOES NOT SUPPORT A FINDING THAT THE JUVENILE COMMITTED OR CONSPIRED TO COMMIT ROBBERY.

Q.M. contends that the judge erred in finding her guilty of the offenses of robbery as an accomplice and criminal conspiracy, if committed by an adult. Pointing to the facts that she was not the one who assaulted Montesimo or the one who initially took her purse or possessed it at the time the police arrived, Q.M. argues that the judge's findings were not supported by competent, relevant, and reasonable credible evidence in the record. We disagree.

A person who uses force upon another in the course of committing a theft is guilty of second-degree robbery. N.J.S.A. 2C:15-1a(1); see State v. Sewell, 127 N.J. 133, 134 (1992). Theft is defined as an unlawful taking or exercise of control over a victim's property with the purpose to deprive the victim of the property. N.J.S.A. 2C:20-3a. A theft attended by a simple assault, as defined by N.J.S.A. 2C:12-1(a), is a second-degree robbery. State v. Battle, 209 N.J. Super. 255, 260 (App. Div. 1986).

Whether Q.M. actually assaulted Montesimo or was the person who concealed the purse is largely irrelevant in establishing that she was an accomplice. An individual is an accomplice if, "[w]ith the purpose of promoting or facilitating the commission of the offense," that individual "[a]ids or agrees or attempts to aid such other person in . . . committing it." N.J.S.A. 2C:2-6c(1)(b). Thus, under N.J.S.A. 2C:2-6, accomplice liability attaches when a defendant shares the purpose of the principal who commits the offense charged, State v. Norman, 151 N.J. 5, 32 (1997), and "actually foresee[s] and intend[s] the result of his or her acts." State v. Bridges, 133 N.J. 447, 456 (1993).

Q.M. was not the person who actually assaulted Montesimo or initially grabbed her purse or the person who ended up with it. The evidence sufficiently established, however, beyond a reasonable doubt, that she aided and facilitated the commission of the robbery by unlawfully exercising control over the purse, albeit with the others, to deprive Montesimo of it.

We are also satisfied that there were sufficient proofs to establish that Q.M., as an actual participant, circumstantially agreed to aid the others in carrying out a common criminal purpose. State v. Gen. Restoration Co., 42 N.J. 366, 375 (1964); State v. Dennis, 43 N.J. 418, 423 (1964); State v. Carbone, 10 N.J. 329, 341-342 (1952); State v. Seaman, 114 N.J. Super. 19, 29 (App. Div.), certif. denied, 58 N.J. 594 (1971), cert. denied, 404 U.S. 1015, 30 L. Ed. 2d 662, 92 S. Ct. 674 (1972). Simply stated, the evidence supported the judge's conclusion that Q.M. entered into a criminal conspiracy with the other women involved and aided them in a robbery.

Affirmed.

 

(continued)

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5

A-0052-04T4

RECORD IMPOUNDED

October 3, 2005