STATE IN THE INTEREST OF K.N a minor

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3348-05T43348-05T4

STATE IN THE INTEREST

OF K.N.,

a minor.

_______________________________________________________

 

Submitted January 27, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic

County, Docket No. FJ-16-2160-05.

Yvonne Smith Segars, Public Defender,

attorney for appellant K.N., a minor

(Gregory P. Jordan, Designated Counsel,

of counsel and on the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

State of New Jersey (Steven E. Braun,

Chief Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

On March 1, 2005, when K.N. was sixteen years old, he was charged with juvenile delinquency for acts which, if committed by an adult, would constitute third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(3); and third-degree possession of heroin in a school zone with intent to distribute, in violation of N.J.S.A. 2C:35-7. On May 13, 2005, after K.N.'s motion to suppress evidence was denied, he pled guilty to possession of heroin and two additional charges: simple assault and a violation of probation.

At a dispositional hearing on June 16, 2005, the court noted that K.N. had previously been allowed to remain on probation after he pled guilty to possessing drugs with intent to distribute, making a terroristic threat, joyriding, and violating his probation. In connection with those offenses, the court imposed a two-year sentence to the State Home for Boys, on February 18, 2005. That sentence was suspended, however, on the condition that K.N. "enter and complete the Total Life Program." Based on the new offenses, the court determined that K.N. was in need of a more structured environment, and he was sentenced to the State Home for Boys for two years for violating probation. The court imposed concurrent sentences for the other offenses.

On appeal, K.N. presents the following arguments:

POINT I

THE TRIAL COURT ERRED BY DECIDING THE MOTION TO SUPPRESS ON THE PAPERS AND NOT ALLOWING EVIDENCE TO BE HEARD DURING THE MOTION TO SUPPRESS HEARING.

POINT II

THE TRIAL COURT ERRED BY DENYING THE JUVENILE'S MOTION TO SUPPRESS EVIDENCE.

POINT III

THE TRIAL COURT ERRED BY NOT CONSIDERING THE RECOMMENDATIONS TO DEFER THE JUVENILE TO A PROGRAM OTHER THAN THE STATE HOME FOR BOYS; THE DISPOSITION WAS EXCESSIVE.

After considering these arguments in light of the record and the applicable law, we are satisfied that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments regarding Points I and III.

Passaic County Sheriff's Officer Scott Christopher was the only witness to testify at a probable cause hearing held on March 4, 2005. Christopher testified that he and another sheriff's officer were in a marked patrol vehicle in the vicinity of Straight Street and Twelfth Avenue in Patterson on March 1, 2005, at approximately 4:30 p.m., when he first observed K.N. After K.N. looked in the direction of the patrol vehicle, he threw an object to the ground with his right hand, and he began running east on Twelfth Avenue. Christopher recovered the object, which he identified as "three bundles" of suspected heroin wrapped in rubber bands. K.N. stopped at the next corner and he was arrested for possession of heroin. When K.N. was searched, Christopher found three more glassine envelopes that contained heroin. After Christopher completed his direct testimony, K.N.'s attorney waived cross-examination "without prejudice to the filing of a suppression motion."

In finding that there was probable cause for charging K.N. with possession of drugs, the court stated:

The Court has listened to testimony of Officer Christopher. The Court finds that the officer who was in a marked vehicle and in full uniform . . . observed the juvenile in question, whom he identified in court as [K.N.], as having looked in his direction, and having done so, then fled on foot after dropping an item, which item was immediately retrieved by the officer. That item appeared to him to contain what he suspected to be heroin, [given] the nature of the packaging. He pursued the individual, caught him. In connection with a pat down search, done for safety reasons, found some additional items in his pocket -- all of which field tested positive for heroin.

K.N.'s motion to suppress evidence was filed on March 22, 2005. In response, the prosecutor submitted a letter brief in which he advised the court that the State intended "to rely upon the facts as stated in the police reports, which are attached as Appendix SI." The prosecutor argued that the seizure of the glassine envelopes from the sidewalk was permissible because the items were in plain view, and the seizure of the glassine envelopes "from the juvenile's person was valid under the search incident to arrest exception to the warrant requirement." In addition, the prosecutor noted that the State objected to an evidentiary hearing "until the juvenile demonstrates there exists a material dispute of the facts as stated in the police reports." On April 26, 2005, K.N.'s attorney provided the court with a letter brief in support of the motion to suppress in which he argued that "the officers had no articulable suspicion even to approach K.N." However, aside from his conclusory claim that an illegal search had occurred, K.N. did not assert any specific facts to support his assertion. On April 28, 2005, the court determined that K.N.'s motion to suppress would be decided on the papers and subsequently denied the motion.

K.N. argues on appeal that the trial court erred in failing to take testimony on the motion to suppress evidence seized without a warrant. We are satisfied, however, that a full evidentiary hearing was not necessary because the same judge that presided over the probable cause hearing decided the suppression motion, and he correctly concluded that the juvenile did not place any material facts in dispute. See R. 3:5-7(c) ("If material facts [on a motion to suppress] are disputed, testimony thereon shall be taken in open court."); see also State v. Green, 346 N.J. Super. 87, 91 (App. Div. 2001) ("The mere allegation of warrantless search, with the attendant burden of proof on the State to justify same, does not place material issues in dispute, nor does defendant's assertion that he denies the truth of the State's allegations.").

With regard to K.N.'s third point, we note that "[t]he 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.), certif. denied, 188 N.J. 355 (2006). In this case, the Family Part judge carefully considered the relevant aggravating and mitigating factors under N.J.S.A. 2A:4A-44 and the disposition, which was within statutory limits, was neither excessive nor a mistaken exercise of discretion.

Affirmed.

 

The State Home for Boys is currently known as the New Jersey Training School.

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6

A-3348-05T4

RECORD IMPOUNDED

February 23, 2009