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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5438-05T45438-05T4

STATE OF NEW JERSEY IN THE

INTEREST OF J.M.

________________________________________________________________

 

Submitted February 6, 2008 - Decided

Before Judges Cuff and Lisa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FJ-16-1378-06.

Michael S. Harwin, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Harwin, of counsel and on the brief).

Jason F. Statuto, Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Dante P. Mongiardo, Deputy First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

J.M., a juvenile, appeals from an adjudication of delinquency for offenses which, if committed by an adult, would constitute fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, and third-degree burglary, N.J.S.A. 2C:18-2a, for which she received an eighteen-month probationary sentence with conditions which included the performance of eighty-five hours community service work and the payment of $200 in restitution. J.M. argues on appeal:

BY FAILING TO PROVIDE A WITNESS' ORAL STATEMENT, THE STATE DID NOT COMPLY WITH R. 3:13-3(c)(6).

A. WHEN A WITNESS IS NOT DISCLOSED TO THE DEFENSE, BUT A COURT ALLOWS TIME TO INVESTIGATE, A COURT WILL NOT ORDER A NEW TRIAL.

B. A SHORT ADJOURNMENT WOULD NOT HAVE BEEN ENOUGH TIME TO START AND COMPLETE AN INVESTIGATION.

We reject this argument and affirm.

On November 18, 2005, at about 6:30 p.m., the Wayne Valley High School football team was on the field warming up for a game that was scheduled to start at 7:00 p.m. Michael Valentino, formerly a teacher and football coach at the school, was planning to attend the game. He entered the school building at about 6:30 and noticed that the doors to the boys locker room were open. He heard the sounds of activity in the locker room and walked in. He saw two girls going through lockers and personal belongings contained in them. He observed the girls, whose backs were turned to him, for a short time, and then inquired what was going on. The girls turned around and looked at him. He was within six to eight feet of the girls. The lights in the room were on. He saw them clearly, and immediately recognized J.M. as one of the girls. When he was a teacher at the school, she was in his study hall one year, and he taught her brothers. J.M. and the other girl ran out of the locker room. Further investigation revealed that some items were stolen during the incident.

Shortly after these events, the football players and coaches returned to the locker room to make their final preparations for the start of the game. Valentino reported what he observed to head football coach, Brian O'Connor.

At trial, Valentino related his observations and positively identified J.M. O'Connor testified, and when asked whether the locker room door was locked during the warm-up session, he replied, "To my knowledge, yes." The prosecutor immediately asked a follow-up question, "Okay. Is it usually locked?" O'Connor responded, "Yes." O'Connor further explained that during football season he and his coaching staff, a total of about nine individuals, had keys to the locker room, and during other sports seasons, other coaches would have keys. There was no evidence of damage to the locker room doors.

J.M.'s defense was alibi. She and her parents testified. They said that J.M. came home from school on the afternoon of November 18, 2005, and that from about 4:30 p.m. until 6:45 p.m., her father took her out to practice driving for her upcoming driving test. They said J.M. and her father returned home at about 6:45, after which J.M. remained home until going out later that night.

The judge found Valentino very credible and found his identification of J.M. "to be both credible and compelling." The judge did "not find the parents credible, nor the juvenile defendant herself credible with regard to their claim, the alibi claim, that she was nowhere near Wayne Valley High School at the time of this incident."

The sole argument raised on appeal is that J.M. was deprived of a fair trial because of a discovery violation by the State, namely the failure to provide in advance of trial a statement from O'Connor that the locker room doors were locked. At trial, J.M.'s attorney did not object to O'Connor's testimony in that regard. Indeed, her attorney used that information as part of his argument for acquittal, urging that because there was no damage to the doors and because of O'Connor's testimony about many keys being in circulation, someone with a key (perhaps even Valentino, a former teacher and coach) must have been the culprit. Counsel argued there was no evidence that J.M. ever had a key.

On appeal, J.M. argues that had she known O'Connor was going to testify that the doors were or should have been locked, "the defense could have investigated who else had access to the locker-room." J.M. further argues that "[a]n investigation could have uncovered others who actually stole the items or others who had looked similar to the juvenile and had access to the locker-room."

At trial, when a question arose as to whether O'Connor had provided a statement to the police, the prosecutor represented that he had given no formal statement, but the information he had provided to the police was set forth in the police report. O'Connor is identified and mentioned several times in the narrative portion of the police report.

The State is obligated to provide in discovery statements of potential witnesses, see R. 3:13-3(c)(6) and (7), including memoranda summarizing any oral statements. See State v. Montague, 55 N.J. 387, 398, 402 (1970).

Relying on Rule 3:13-3(g), J.M. now argues that she should have been entitled to a mid-trial continuance to allow her time to investigate further, and she is now entitled to a new trial. Admittedly, however, J.M. never requested such an adjournment at trial, and, as we have stated, she did not object to O'Connor's testimony about the doors being locked.

We are satisfied there was no discovery violation. J.M. was on notice of O'Connor's involvement in the incident and the knowledge he possessed. A party is not required as a discovery obligation to inform his or her adversary of every potential question that may be asked of a witness. So long as the substance of the potential testimony is provided in a manner to fairly place the adversary on notice of what to expect, the discovery obligation is satisfied. Of course, the adversary has the opportunity to interview the potential witness in advance of trial and conduct such further investigation as deemed appropriate based upon information received. None of that was done here, and to suggest that J.M. was wrongfully deprived of that opportunity is unfounded.

Further, we fail to see how J.M. was surprised by the testimony of O'Connor and Valentino that the locker room would normally be locked. While the coaches and members of the team are on the field, with all of their clothing and personal effects left behind in the locker room, one would expect that the normal procedure would be to lock the doors to the locker room.

 
Affirmed.

(continued)

(continued)

6

A-5438-05T4

RECORD IMPOUNDED

February 28, 2008