STATE OF NEW JERSEY IN THE INTEREST OF H.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0334-07
0334-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF H.H.

_______________________

 

Submitted December 2, 2009 - Decided

Before Judges Graves and J.N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FJ-04-3391-07A.

Yvonne Smith Segars, Public Defender, attorney for appellant H.H. (Maria Yelland Young, Designated Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent State of New Jersey (Patrick D. Isbill, of counsel and on the brief).

PER CURIAM

This appeal involves a fourteen year-old, defendant H.H., charged with simple assault and harassment for grabbing a classmate's sweatshirt at a bus stop. Defendant appeals the May 9, 2007, order of delinquency for offenses that, had they been committed by an adult, would have constituted disorderly persons simple assault, N.J.S.A. 2C:12-1(a)(1) and petty disorderly persons harassment, N.J.S.A. 2C:33-4(b). Defendant additionally challenges the sentence of eighteen months probation rendered by the trial court. For the reasons that follow, we affirm.

I.

On Thursday, February 8, 2007, at approximately 3:00 p.m., four minors were all waiting at a bus stop at the end of the school day: the defendant, the victim M.M., the victim's brother T.M., and the co-defendant M.E. Defendant approached the victim, grabbed him by his hooded, zippered sweatshirt, and told him not to wear blue, the signature color of the Crips street gang. The co-defendant also threatened the victim by stating that he would give the victim a "two piece," meaning two punches. Although the individuals did not have any prior confrontations, and the victim knew defendant only as an acquaintance, M.M. was afraid for his safety when he was grabbed and harassed by H.H.

The following day, the victim's parents notified the school, and Police Officer Robert Scapicchio of the Voorhees Township Police Department was called in to talk with the adults about the incident. The victim's parents signed a witness statement as to what had allegedly occurred the previous day at the bus stop, and a juvenile complaint was also signed by the victim's father, dated February 9, 2007.

On May 9, 2007, Judge Angelo J. DiCamillo conducted the trial concerning the juvenile delinquency complaint. At the beginning of the hearing, the defense moved to exclude any testimony from the victim, alleging the prosecution failed to comply with discovery rules by not disclosing to the defense what testimony the witness was expected to give. The trial court denied the motion, finding that by supplying the names and addresses of testifying witnesses, in addition to the victim's information included in the police report, the prosecution had complied with Rule 3:13-3.

During the bench trial, Officer Scapicchio testified, using his police report prepared on Friday, February 9, 2007, to refresh his recollection. Throughout his testimony the officer repeatedly but mistakenly reported the events as occurring on January 8, 2007, instead of February 8, 2007. The victim and victim's brother testified, supporting each other's story that defendant grabbed and harassed the victim, but they too mistakenly referred to the date of the event as January 8, 2007, having been led by the prosecutor, "I'm going to ask you some questions. Do you recall January 8th, 2007, which was a Thursday."

After the State rested, the defense moved to dismiss the complaint, arguing that the prosecution failed to establish a prima facie case, because the officer's testimony referred to events allegedly occurring in January 2007, instead of February 2007, as noted in the juvenile complaint. The trial court denied the motion to dismiss, concluding that the discrepancy in the date was not prejudicial to the defendant, and that defendant clearly understood the date of the alleged incident.

Defendant testified on his own behalf. He did not deny being at the bus stop with the victim. However, he adamantly refuted touching the victim, denied telling him not to wear blue clothing, and rebuffed being a member of any street gang. Defendant admitted, however, that he was aware of rumors circulating in his school that he was a member of a gang, but he testified:

A. I hear about gangs. I don't know about them, but I hear about them.

Q. What do you hear about them?

A. I hear that there are gangs in Voorhees. I don't know who [is] in the gang. But there are rumors going around the school that people are in gangs, and one is me, but I'm not.

Judge DiCamillo entered an adjudication of delinquency against defendant for the harassment and simple assault charges, merging the harassment count into the simple assault count. The court ultimately sentenced defendant to probationary supervision for eighteen months.

Defendant appeals, arguing that the trial court erred when it failed to grant his motion to dismiss the complaint based upon the discrepancy in the date of the incident. Alternatively, defendant claims that he was entitled to an adjournment of the trial in order to meet the facts adduced relating to a date January 8, 2007 that was not alleged in the complaint. Finally, he asserts that the sentence imposed was so excessive as to shock the conscience. After a careful review of the record presented, we fully subscribe to the determinations of the trial court, and therefore affirm.

II.

When an error in fact-finding of a judge during a bench trial is alleged, the scope of our review is limited. We can only decide whether the findings made by the judge could reasonably have been reached based upon the sufficient credible evidence presented in the record. We must give due regard to the ability of the lower court to judge the credibility and sufficiency of the evidence. The applicable standard in a bench trial is whether there is sufficient credible evidence in the record to support the judge's determination. State in the Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995).

In delinquency matters, the prosecution is required to prove each element of the charged offenses beyond a reasonable doubt. State v. Medina, 147 N.J. 43, 50-51 (1996). In order to make a prima facie showing, all elements of each charged offense must be proven by the prosecution. The juvenile was charged with harassment, in violation of N.J.S.A. 2C:33-4(b). As outlined in State v. Berka, 211 N.J. Super. 717, 720 (Law Div. 1986), "[t]he elements of harassment are 1) purposeful conduct by defendant, 2) designed to harass, 3) by subjecting the victim to the threat, by means of a physical menace, which 4) produces a reasonably-founded alarm on the part of the victim." Specifically, N.J.S.A. 2C:33-4(b), with which defendant was accused, outlines harassment as a petty disorderly persons offense when the charged individual "[s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so."

Defendant was also charged with simple assault, in violation of N.J.S.A. 2C:12-1a(1). As outlined in Berka, supra, 211 N.J. Super. at 720, "[t]he four elements of simple assault are: 1) purposeful conduct by defendant, 2) designed to put the victim in fear of imminent serious bodily injury, 3) coupled with the present ability to inflict such injury, 4) which creates a reasonably founded fear on the part of complainant."

Based upon the testimony given by the State's witnesses, the trial court was satisfied that defendant purposely grabbed the victim, threatened him by making physical contact, and that as a result, the victim was afraid for his safety. The charges of harassment and simple assault do not require the prosecution to prove the events in question happened on a particular day. Moreover, Judge DiCamillo found the following:

There w[ere] certain confusions [regarding the date of the incident], . . . the eye witnesses on behalf of the State were clear in that they didn't know the date, and certainly there was an incident in question which they knew very well. In fact what is even more interesting is that [H.H.] didn't have a problem with the date, because he knew what the date was because he was waiting for a girl outside at the time of the incident.

Because the date of the incident is not an element of either of the charged offenses, the defendant knew what day's events he was being questioned about, and the date discrepancy had no capacity to prejudice defendant, we find that the court did not abuse its discretion in refusing to dismiss the complaint and instead finding H.H. delinquent.

In the alternative, defendant seeks to have the adjudication vacated and the case remanded, as the trial court allegedly erred in failing to adjourn the hearing due to the divergence in dates. Defendant alleges that due to the difference between January 8, 2007 and February 8, 2007, he was not afforded the opportunity to prepare and properly defend himself at trial.

We have consistently held that "[f]or constitutional due process purposes, the adequacy of a charge set forth in a juvenile delinquency complaint, as in a criminal indictment, turns on whether the notice contained in the complaint sufficiently apprises the accused of the offense with which he is charged to enable him to prepare a defense." State in the Interest of K.A.W., 104 N.J. 112, 113-14 (1986). In this case, the juvenile complaint, the arrest report prepared by Officer Scapicchio, and the timing of the release of defendant from custody after his initial apprehension, all clearly indicate that the incident in question occurred on February 8, 2007, not January 8, 2007. Because all of these data were provided in discovery, any misrecollections or misstatements regarding the date were not prejudicial to the defense.

Moreover, despite the testimony relating to the different dates, defendant was not materially disadvantaged. We have held that "the State is ordinarily given leave to amend the date alleged in the indictment where the date is neither of the essence of the offense nor crucial either to the State's case or the defendant's, and defendant is not, therefore, prejudiced." State v. Middleton, 299 N.J. Super. 22, 34 (App. Div. 1997). The date is a crucial element if the defendant alleged an alibi for the amended date. Ibid. Here, however, the State neither amended the complaint nor did defendant suffer prejudice, as he did not set forth an alibi defense at the hearing, either for February 8, 2007, or January 8, 2007. His defense was simply that he did not engage in the alleged conduct.

The trial court concluded its adjudication by sentencing defendant to eighteen months probation, in addition to outlining a fourteen day plan, including psychological evaluations and the potential for anger management treatment, if necessary. Judge DiCamillo properly weighed the nature and circumstances of the offenses, the lack of the juvenile's prior criminal history, and the credibility of the witnesses in reaching his sentencing determination.

We find no abuse of discretion or other error in the sentence, which is neither shocking to the judicial conscience nor otherwise excessive in light of the factors articulated by the trial judge. See State v. Ghertler, 114 N.J. 383, 388 (1989); State v. Roth, 95 N.J. 334, 363-64 (1984).

Affirmed.

 

We take judicial notice that February 8, 2007, was a Thursday; January 8, 2007, was a Monday. See N.J.R.E. 201(b).

Rule 3:13-3(c)(6) states that "[t]he Prosecutor shall permit defendant to inspect and copy or photograph . . . names, addresses, and birthdates of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses."

As noted earlier, January 8 was not a Thursday; it was a Monday.

(continued)

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A-0334-07T4

RECORD IMPOUNDED

December 18, 2009