STATE OF NEW JERSEY IN THE INTEREST OF N.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2252-04T42252-04T4

STATE OF NEW JERSEY

IN THE INTEREST OF

N.S.

_______________________________________________________

 

Submitted March 29, 2006 - Decided May 9, 2006

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

FJ-07-5904-04.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated Counsel,

of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Kenneth P. Ply, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

N.S., who was born on January 30, 1991, was tried as a juvenile and adjudicated delinquent for committing acts which, if committed by an adult, would constitute third-degree conspiracy to commit burglary and theft, N.J.S.A. 2C:5-2(a) (count one); disorderly persons theft, N.J.S.A. 2C:20-3(a) (count two); and third-degree burglary, N.J.S.A. 2C:18-2(a) (count three). On December 9, 2004, N.S. was sentenced to twelve months probation, with twenty hours of community service. Statutory penalties and assessments were also imposed.

On appeal, N.S. presents the following argument:

THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT THE JUVENILE WAS GUILTY OF CONSPIRACY TO COMMIT BURGLARY AND THEFT, AS WELL AS BURGLARY AND THEFT.

After reviewing the record and applicable law, we are satisfied that the findings and conclusions by the trial court "could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 472 (1999) (internal quotation marks omitted). We therefore affirm.

The State's primary witness was C.R., who was seventeen when he testified. According to C.R., he was acquainted with N.S. and his brother, and he picked them up when he saw them walking at about midnight on June 1, 2004. C.R. was driving his mother's car, which was low on gas, and there was a discussion about how they were going to get gas money. C.R. testified that "we came to the decision of going into a car to get some money," and N.S. was to be the lookout. This testimony was disputed by N.S.'s older brother, but the trial court found that C.R.'s testimony regarding the "involvement of these two individuals" (N.S. and his brother T.S.) was "credible and reliable."

The trial court's findings and conclusions included the following:

The [c]ourt finds that the three juveniles, [C.R.], [N.S.] and [T.S.] prior to June 1st 2004 had known each other and were acquainted with each other for some period of time to the extent that pursuant to the testimony of [C.R.] that they were friends or had been friends for some period of time.

The [c]ourt further finds that on June 1st 2004 at some time prior to midnight, that [C.R.] having taken his mother's automobile without her permission was in the vicinity of Brighton Avenue in Belleville, New Jersey where he had occasion to meet up with [T.S.] and [N.S.], that thereafter the three proceeded in [C.R.'s mother's] automobile to drive around in the area of Bloomfield, Glen Ridge, Newark and other surrounding areas for some period of time, and for that matter, to a point in time where [C.R.] observed that his car was in need of gasoline.

The [c]ourt further finds that none of the three individuals apparently had money to purchase gasoline and as a result of which the three individuals agree[d] that they would attempt to try to get some money, the agreement being by looking for open automobiles and/or other areas where they could perhaps obtain money or items of value.

. . . .

The [c]ourt finds that Ms. [D.] parked her car in the complex parking lot adjacent to . . . her apartment which was approximately 15 feet from the front entrance of her unit. The [c]ourt further finds that after having parked her car she proceeded to remove her sleeping child from the car seat and take the child to the apartment. Since Ms. [D.] was carrying her child she was unable to retrieve her personal possessions, to wit a pocketbook, as well as a wallet located either on the front seat of the automobile and/or in the glove compartment of the automobile.

Ms. [D.] again, as a result of having to carry her child, was unable to lock the automobile and also I would imagine the car was not locked since it was her intended purpose to return immediately to the car after having placed the child in its crib.

The [c]ourt finds that . . . shortly after twelve midnight that the juveniles, [C.R.], [N.S.] and [T.S.] arrived in the vicinity of the parking lot . . . for Ms. [D.'s] apartment complex which was located adjacent to the complex and again in the vicinity of Belleville Avenue.

[C.R.] parked the automobile and all three juveniles exited the automobile. Subsequent to the juveniles exiting the automobile they proceeded to look through the cars parked in the lot for purposes of carrying out their plan, i.e. to search and obtain money for gasoline.

The [c]ourt further finds that the juvenile[s] [C.R.] and [T.S.] approached the automobile of Ms. [D.] and that subsequent[ly] [T.S.] entered the automobile through the passenger door which was either opened or ajar or perhaps even closed but certainly unlocked as was the testimony of Ms. [D.] and thereafter removed from the automobile a wallet containing $3, again pursuant to the testimony of Ms. [D.].

The [c]ourt further finds that the juvenile [N.S.] was the selected lookout pursuant to the testimony of [C.R.] and pursuant to his role placed himself in a position approximately four to five feet from the complex and approximately 12 to 15 feet from the automobile, again located himself between the automobile and the apartment in a position where he had a clear view of the apartment and the automobile.

. . . .

The [c]ourt further finds that the juveniles were either in the process of removing the aforementioned items from the car or having shortly completed the process when Ms. [D.] exited her apartment, again for the purpose of returning to her automobile to remove her personal items.

Upon seeing Ms. [D.] exit the apartment the juvenile [N.S.] spoke to Ms. [D.], saying something to the extent you startled me or you scared me. And again, the [c]ourt does find that those words were spoken with the intent of alerting the co-juveniles that there was someone in the area, again in fulfillment or in concert with the other two to complete the aforementioned plan to obtain money from the automobiles in the area.

The [c]ourt further finds that the area was well lit, specifically that there was a light immediately in the area of the main entrance to the complex and the area where [N.S.] was standing and also another light in the area of the parking lot where the automobile apparently had been parked by Ms. [D.] and that Ms. [D.] did in fact have a clear view of both [N.S.] and [T.S.].

Upon seeing Ms. [D.], the three individuals, that is [T.S.] and [N.S.] as well as the third individual who was later identified to be [C.R.] left the scene, notwithstanding Ms. [D.'s] . . . attempts to call and speak to one of the juveniles after having had the opportunity to reach her automobile and having seen that someone clearly had been in the automobile as a result of the condition of the automobile, contents of the automobile I should say.

The [c]ourt further finds again pursuant to the testimony of Ms. [D.] that the three individuals who exited the area by different paths or different exit points later met on or in the vicinity of Belleville Avenue. . . . Later that evening the three individuals were stopped by the Glen Ridge Police Department pursuant to notice having been provided by the Bloomfield Police Department as a result of the complaint filed by Ms. [D.] and thereafter Ms. [D.] identified both juveniles at the scene. Identified at the scene I should say as the two individuals who she had seen a short time before in the vicinity of her apartment complex and more specifically in or about the vicinity of her automobile.

At the outset, we note that the trial court had an opportunity to see and hear the witnesses and to evaluate their demeanor and credibility. Our review of the trial court's fact-finding function is limited. "The aim of appellate review of factual findings is to 'determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" State in the Interest of B.C.L., 82 N.J. 362, 379 (1980) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." State in the Interest of W.M., 364 N.J. Super. 155, 165 (App. Div. 2003); see also State in the Interest of J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (noting appellate court will defer to trial judge's factfindings where they are supported by "substantial, credible evidence in the record as a whole."), certif. denied, 180 N.J. 453 (2004). Such deference is appropriate because even the best and most accurate transcript of oral testimony "is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried." Locurto, supra, 157 N.J. at 472 (internal quotation marks omitted).

"[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). This is not such a case. We are satisfied that the trial court's findings are supported by sufficient credible evidence in the record, and its conclusions predicated on those findings are legally sound. We therefore affirm substantially for the reasons stated by Judge Cifelli in his comprehensive oral decision on November 4, 2004.

Affirmed.

 

(continued)

(continued)

8

A-2252-04T4

RECORD IMPOUNDED

May 9, 2006