STATE OF NEW JERSEY IN THE INTEREST OF C.L., III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5391-04T45391-04T4

STATE OF NEW JERSEY

IN THE INTEREST OF

C.L., III,

Juvenile-Appellant.

_____________________________________________________________

 

Submitted September 19, 2006 - Decided October 3, 2006

Before Judges Kestin and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

FJ-07-3190-05.

Yvonne Smith Segars, Public Defender, attorney

for juvenile appellant C.L., III (Alan I. Smith,

Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent State of New Jersey (Gary A. Thomas,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

C.L., who was born on November 10, 1987, appeals from an adjudication of delinquency for committing acts which, if committed by an adult, would have constituted second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). At the disposition hearing, C.L. was adjudicated delinquent and he was placed on probation for twelve months. As special conditions of probation, he was ordered to complete the EMAP program, to perform forty hours of community service, and to have no contact with the victim. The trial court also ruled that "the probationary period will automatically convert into an adjourned disposition" if C.L. successfully completed his probationary term. The court also imposed a $90 penalty payable to the Victims of Crime Compensation Board ($30 on each of the three counts), and a $15 penalty payable to the Law Enforcement Officers Training and Equipment Fund.

On appeal, C.L. presents the following arguments:

POINT I

EVIDENCE OF PRIOR BAD ACTS OF THE JUVENILE WERE IMPROPERLY ADMITTED TO SHOW CRIMINAL PROPENSITY (NOT RAISED BELOW).

POINT II

THE TRIAL COURT COMMITTED PLAIN ERROR IN FINDING THAT THE JUVENILE'S FAILURE TO PRODUCE A WITNESS TO CORROBORATE HIS TRIAL TESTIMONY WAS A "SIGNIFICANT" FACTOR IN ADJUDICATING HIM DELINQUENT (NOT RAISED BELOW).

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A TWELVE (12) MONTH PERIOD OF PROBATION.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO CONSIDER THE AGGRAVATING AND MITIGATING FACTORS PRESENT.

(B)

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO MERGE THE DELINQUENCY ADJUDICATION ON [COUNT] THREE FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO THE DELINQUENCY ADJUDICATION FOR AGGRAVATED ASSAULT ON [COUNT] ONE.

(C)

THE TRIAL COURT ABUSED ITS DISCRETION IN WAIVING A PREDISPOSITION REPORT.

After reviewing the record and the applicable law, we conclude that these arguments, except for the merger issue, lack sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2).

The court made detailed findings regarding the credibility of each of the four witnesses, which were critical to the trial court's ultimate determination. The court found that the victim of the assault was a credible witness, and that his testimony was "plausible and reliable." In addition, the court found that the victim's testimony was corroborated by an independent witness, who was also credible. The court also explained its reasons for concluding that C.L. was not a credible witness.

Our review of the trial court's fact-finding function is limited. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Unlike factual findings, however, we owe no deference to a trial court's legal conclusions, but review them independently. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In this 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 the delinquency adjudications substantially for the reasons stated by the trial court.

C.L. also claims that the court abused its discretion when it imposed final disposition without the benefit of a pre-disposition report. We agree that a pre-disposition report is normally required. See State in the Interest of T.A., 386 N.J. Super. 642, 644 (App. Div. 2006) (stating that "absent an express waiver, a pre-disposition report is required as a prerequisite to a delinquency disposition"). In this case, however, the juvenile's attorney advised the court that a pre-disposition report was not needed. We therefore conclude that the trial court did not err in proceeding without a pre-disposition report.

We also conclude that the imposition of a non-custodial disposition was entirely appropriate and well within the trial court's discretion. "The juvenile code expressly seeks a balance between the safety of the public, accountability of the juvenile for his conduct, and rehabilitation of the juvenile offender." State in the Interest of D.A., 385 N.J. Super. 411, 418 (App. Div. 2006) (citing N.J.S.A. 2A:4A-21). Here, the disposition by the Family Part judge was undoubtedly designed to further these goals.

Finally, the juvenile argues that the delinquency adjudication for possession of a weapon for an unlawful purpose (count three) merges into the delinquency adjudication for aggravated assault (count one). We agree that merger is appropriate because C.L.'s unlawful purpose in possessing the weapon was to use it in the assault. State v. McLean, 344 N.J. Super. 61, 73 (App. Div. 2001), certif. denied, 172 N.J. 179 (2002) (citing State v. Diaz, 144 N.J. 628, 641 (1996)). The $30 VCCB penalty imposed on count three must therefore be vacated.

 
Affirmed in part, reversed in part, and remanded for amendment of the final disposition.

(continued)

(continued)

5

A-5391-04T4

RECORD IMPOUNDED

 

October 3, 2006