STATE OF NEW JERSEY IN THE INTEREST OF P.A. a Juvenile

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6701-06T46701-06T4

STATE OF NEW JERSEY IN THE

INTEREST OF P.A.,

Juvenile-Appellant.

______________________________________

 

Submitted October 22, 2008 - Decided

Before Judges Payne and Lyons.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-1525-07.

Yvonne Smith Segars, Public Defender, attorney for appellant P.A. (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent State of New Jersey (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal by a juvenile, P.A., from an adjudication of delinquency for what would have been, if committed by an adult, attempted robbery (N.J.S.A. 2C:5-1 and 15-1), possession of a handgun without a permit (N.J.S.A. 2C:39-5(b)) and possession of a handgun with the purpose to use it unlawfully against the person or property of another (N.J.S.A. 2C:39-4). We affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On January 31, 2007, at approximately 11:00 p.m., Elizabeth Police Officers Raul Delaprida, Frank Idrovo and Edward Benenati were on patrol in an unmarked vehicle. Officers Delaprida and Benenati observed P.A. and another juvenile, T.D., walking down North Broad Street, approximately fifteen to twenty feet apart from each other. Both youths were dressed alike in black overalls. The officers watched as both P.A. and T.D. crossed the street and donned black ski-hats that covered their heads and necks but left their faces exposed.

The officers observed as P.A. and T.D. approached a taxi stand and went inside. The officers parked in the taxi stand's lot, and Officers Delaprida and Benenati exited their vehicle while Officer Idrovo remained inside. The two officers approached the building and peered through the store front windows. From there they could see P.A., T.D. and the cab dispatcher, who was the only other person inside the taxi stand.

Unbeknownst to the officers, the dispatcher had earlier received three telephone calls, all from the same number. The caller did not respond when she answered each of these calls. The dispatcher believed that the caller had a bad connection and could not hear her. Finally, the caller, who was later identified as P.A., got through to the dispatcher and requested that she send a taxi to pick him up at the Wendy's restaurant approximately one block away from the taxi stand. The dispatcher contacted a taxi driver and sent him to the Wendy's.

P.A. and T.D. entered the taxi stand shortly after making this phone call. T.D. informed the dispatcher that they were the customers who had just called. At his request, the dispatcher contacted the taxi driver she had sent to the Wendy's and informed him that P.A. and T.D. were now waiting for the cab at the taxi stand. She then went back to answering phones while P.A. and T.D. stood in the customer area, waiting for their taxi.

The area of the taxi stand that P.A. and T.D. occupied was approximately four feet wide by ten feet long. The dispatcher was separated from this customer area by a wooden and glass wall. The lower portion of the partition was made of wood and measured about one meter high. The rest of the wall, up to the ceiling, was made of glass. The dispatcher was seated and working at a desk, and could only see people on the other side of the partition from the waist up.

After the dispatcher directed her attention back to her work, P.A. and T.D. turned their backs to her and faced the glass storefront of the taxi stand, where Officers Delaprida and Benenati were standing, looking inside. Officer Delaprida observed P.A. look back over his left shoulder at the dispatcher and then reach for a handgun from inside his clothing with his right hand. P.A. held the gun against his chest with the barrel pointed towards the floor. Officer Delaprida then whispered "gun" to Officer Benenati and the two rushed inside, followed soon thereafter by Officer Idrovo. The officers arrested P.A. and T.D. and secured the handgun, which was loaded with four bullets in the magazine. Officer Delaprida could not find a serial number on the weapon.

On January 31, 2007, P.A. was charged with five separate acts of juvenile delinquency, which, if committed by an adult, would constitute attempted robbery, contrary to N.J.S.A. 2C:5-1 and 15-1 (count one), possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(b) (count two), possession of a handgun with the purpose to use it unlawfully against the person or property of another, contrary to N.J.S.A. 2C:39-4 (count three), possession of a defaced firearm, contrary to N.J.S.A. 2C:39-3(d) (count four), and resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count five).

The trial court tried the matter on April 26, 2007. On May 4, 2007, the trial court adjudicated P.A. delinquent of counts one, two and three and dismissed counts four and five for insufficient evidence. The trial court placed P.A. on probation for a twenty-four month term. As a condition of probation, P.A. was to attend and successfully complete a residential Fields program. In order to assure P.A. would be able to get to the program, the trial court remanded him to a youth detention center. The court also ordered P.A. to pay the required fines and penalties. This appeal ensued.

On appeal, the juvenile presents the following point for our consideration:

POINT I:

because the state failed to prove beyond a reasonable doubt that the juvenile was guilty of attempted robbery and possession of a weapon for an unlawful purpose beyond a reasonable doubt and the judge erred in the standard used in his assessment of the evidence, the adjudication of the delinquency was against the weight of the evidence and must be vacated.

We first address P.A.'s argument that the State failed to prove attempted robbery beyond a reasonable doubt and his adjudication of delinquency was "against the weight of the evidence." Specifically, P.A.'s contends that his actions did not constitute an attempted robbery because he never demanded money from the cab dispatcher, nor did he brandish the handgun or conceal his face.

It is well established that the State is required to prove every element of a criminal offense beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 99 (1997). The same allocation of the burden of proof applies in juvenile delinquency proceedings. State in the Interest of J.G., 151 N.J. 565, 594 (1997). On review of a judge's verdict in a non-jury case, the standard of review for determining if the State satisfied its burden is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State in Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Moreover, we should "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Under our Criminal Code, a person is guilty of robbery if, in the course of committing a theft, he uses force or inflicts bodily injury upon another, or "[t]hreatens another with or purposely puts him in fear of immediate bodily injury. . . ." N.J.S.A. 2C:15-1. A defendant can be found guilty of an "attempt" to commit a particular crime if he acts with "the kind of culpability otherwise required for commission of the crime" and "[p]urposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is [...] a substantial step in a course of conduct planned to culminate in his commission of the crime." State v. Farrad, 164 N.J. 247, 257 (2000) (quoting N.J.S.A. 2C:5-1a).

The general rule is that there must be substantial steps that are strongly corroborative of the firmness of defendant's purpose to carry out the crime in question. State v. Fornino, 223 N.J. Super. 531, 538 (App. Div.), certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109 S. Ct. 152, 102 L. Ed. 2d 123 (1988). It is well established that very remote preparatory acts cannot amount to attempt. Id. at 541. Likewise, it is irrelevant if a defendant would have had the opportunity to desist and that substantial additional steps remained in order to complete the crime. Id. at 540. Even if a defendant is "apprehended before he reaches his robbery victim and thus before he has actually engaged in threatening conduct, proof of his purpose to engage in such conduct will justify a conviction of attempted robbery if the standards . . . [of attempt] are met." State v. Farrad, supra, 164 N.J. at 260 (quoting Model Penal Code & Commentaries, Part II, 222.1 at 114-15).

P.A. argues that his actions did not amount to attempted robbery by distinguishing the facts at bar from State v. Farrad, supra, 164 N.J. 247. In that case, the defendant waited outside a restaurant, then entered at closing time with a loaded gun in his pocket. Id. at 252. He covered his face with a scarf and hat and walked toward the cashier. Ibid. The defendant put his hand in his pocket, as if to draw the gun. Ibid. Witnesses offered conflicting testimony as to whether he fully pulled the gun out of his pocket. Id. at 253. At that point, police officers who had observed the defendant's suspicious behavior and followed him into the restaurant, arrested him. Id. at 252. The Supreme Court held that the defendant's actions were enough to allow a jury to find attempted robbery. Id. at 270.

P.A. argues that the circumstances surrounding his arrest differed significantly from the facts in Farrad, specifically noting that he did not cover his face and that the taxi station was not about to close. P.A. also argues that because he was not facing the dispatcher when he drew his gun, his actions were not enough to constitute attempt.

P.A.'s argument lacks merit. The relevant inquiry is whether there was a substantial step toward the commission of a crime that was strongly corroborative of the P.A.'s intent to carry out that crime. State v. Fornino, supra, 223 N.J. Super. at 538. The fact that P.A.'s behavior differed slightly from that of the defendant in Farrad is immaterial. By failing to completely obscure his face and by entering the taxi stand before closing time, P.A. did not render his other "substantial steps" towards perpetrating the intended robbery any less "corroborative of the 'firmness of his purpose' to carry out" the crime in question. State v. Fornino, 223 N.J. Super. 531, 538.

Just as in Farrad, P.A.'s actions immediately before entering the taxi stand arose the suspicions of police officers. Both P.A. and T.D. put on hats that obscured part of their heads as they walked towards the taxi stand. Both P.A. and T.D. were juveniles, with P.A. being fourteen years old at the time of the incident. It was after 11:00 p.m. when P.A. entered the taxi stand with a loaded handgun, which he discreetly pulled out from under his clothes. The dispatcher was the only other person in the taxi stand, besides P.A. and T.D. Based on these facts, the trial court determined that "the weight of the evidence tells us that [P.A.] . . . planned to rob this particular business long before [he] arrived there [and was]. . . perhaps only a couple of seconds away from carrying out that plan." Bringing a loaded handgun into a business establishment and then drawing that gun is certainly substantial credible evidence of P.A.'s intent to commit a robbery and, therefore, the trial court's holding will not be disturbed.

Moreover, police officers should not be required to wait until an intended victim is in immediate mortal danger before they can make an arrest, confident that the perpetrator may be properly charged with attempt. It has been established that a charge of attempted robbery is appropriate even "where the actor does not actually harm anyone or even threaten harm." State v. Farrad, supra, 164 N.J. at 260 (quoting Model Penal Code & Commentaries, Part II, supra, 222.1 at 114-15). The public policy reasons behind this understanding of attempt are obvious. The fact that P.A.'s intended victim was not looking down the barrel of a gun before P.A. was arrested should not absolve him from all liability.

We next address P.A.'s contention that the trial court erred in adjudicating him delinquent of possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4. The trial court made this determination "based on the credible evidence to support a finding that [P.A.] did possess a weapon for the purpose of using it to commit a robbery."

The Supreme Court has laid out the required elements for obtaining a conviction pursuant to N.J.S.A. 2C:39-4.
State v. Camacho, 153 N.J. 54, 68-69 (1998). The State must prove beyond a reasonable doubt that:

(1) the item possessed was a firearm within the meaning of N.J.S.A. 2C:39-1f; (2) the defendant possessed the firearm, which under N.J.S.A. 2C:2-1c requires knowledge or awareness of his control over the item; (3) the defendant's purpose or conscious objective was to use it against the person or property of another; and (4) the defendant intended to use it in a manner that was proscribed by law.

[Ibid.]

In this case, it is undisputed that P.A. knowingly carried a handgun without a permit. Moreover, the trial court found that P.A. intended to use that handgun to perpetrate a robbery, and that determination is supported by substantial credible evidence. Therefore, it is clear that the requirements set forth in Camacho were satisfied and the trial judge did not abuse his discretion in adjudicating P.A. delinquent on the charge of possession of a weapon for an unlawful purpose.

Lastly, we address P.A.'s argument that the trial court incorrectly applied the burden of persuasion. P.A. argues that instead of finding that the State satisfied its burden of persuasion beyond a reasonable doubt, the trial court merely made credibility findings regarding the testimony of the officers and the cab dispatcher. Further, P.A. contends that even if all the offered testimony is to be believed, that alone is not enough to establish P.A.'s guilt beyond a reasonable doubt.

The trial court's adjudication of P.A.'s delinquency cannot be disturbed if it is supported by substantial credible evidence. State in Interest of R.V., supra, 280 N.J. Super. at 120-21. It is true that the trial court did not specifically state that the prosecution had proven its case "beyond a reasonable doubt," thereby opening the door for P.A. to argue that the burden had not been met. However, although it would have been better for all concerned, the trial court need not explicitly employ that precise language when it is plain from the record that the burden was satisfied. See State v. Morris, 242 N.J. Super. 532, 546 (App. Div. 1990), certif. denied, 127 N.J. 321 (1992). The State made reference to the "beyond a reasonable doubt" standard numerous times in its closing arguments and the trial court implicitly addressed this standard when it held that P.A.'s actions "could be for no other reason than to rob."

The trial court made this determination based on the testimony of Officers Delaprida and Benenati, who both witnessed P.A.'s attempted robbery and made the arrest. The officers corroborated each other's testimony, and the court found them to be credible. The court also heard the testimony of the cab dispatcher, who stated that she observed the arresting officers seize the handgun from P.A. Because we did not have the opportunity to observe these witnesses, the trial court's credibility findings will stand. Locurto, supra, 157 N.J. at 471.

The trial court's credibility findings, coupled with the undisputed fact that P.A. carried a gun into the taxi stand, provides substantial credible evidence that supports the court's determination that P.A. attempted to commit a robbery. As such, that finding will not be disturbed, regardless of the trial court's failure to use the phrase "beyond a reasonable doubt" in determining that the State met its burden.

We, therefore, affirm P.A.'s adjudication of delinquency.

Affirmed.

 

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A-6701-06T4

RECORD IMPOUNDED

December 2, 2008