STATE OF NEW JERSEY v. TERRANCE BOWERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0159-08T40159-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE BOWERS,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 26, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-07-0709.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a bench trial, the judge found defendant guilty of the single charge that was the subject of the trial, fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. Defendant was sentenced to three years probation, conditioned upon a "suspended" ninety-day county jail sentence. Defendant raises as his single argument on appeal that "the verdict was against the weight of the evidence." We reject this argument and affirm.

At the time of this incident, on July 15, 2004, defendant lived in a household with his fiancé and her sixteen-year-old daughter, T.S. Based upon the trial testimony of T.S. and her mother, the following incident occurred on that date. T.S., her mother and defendant were in their apartment. All three were in the kitchen. T.S. was facing the refrigerator and defendant came over and stood next to her. T.S.'s mother was turned and facing away from T.S. and defendant. As T.S. described it, defendant "reached out" and "grabbed my right breast, and he squeezed it." T.S. was startled and surprised. She went into the bathroom. Her mother left the apartment for two to three minutes to take some pizza to her brother next door. While she was gone, defendant came into the bathroom and said, "[T.S.], please don't tell your mom. I didn't mean it."

When T.S.'s mother returned, T.S. called her into the bathroom and said she had something to tell her. She said, "While I was facing the refrigerator and your back was turned, Terrance grabbed my breast." After asking her daughter if she was alright, T.S.'s mother went into the living room and confronted defendant with what her daughter had just reported to her. Defendant first denied touching T.S., but then said, "Yeah, I did do it, I did it, I did it." He claimed it was a mistake because he thought the person he touched was T.S.'s mother.

An argument over the incident ensued. T.S.'s mother's brother entered the apartment and joined in the argument. T.S.'s mother ordered defendant to move out of the apartment, which he did, and he never returned to live there.

T.S. and her mother reported the incident to the police on July 26, 2004. Detective Robin Gittens interviewed defendant on July 28, 2004. He acknowledged to her that he was confronted by T.S.'s mother and uncle about the allegation, they got into an argument about it, and he was told to move out because of the allegation. The State called Detective Gittens as a rebuttal witness after defendant testified that the incident never happened, that he was never accused of touching T.S., and that his reason for moving out of the apartment that day was because of a dispute he had with T.S.'s mother about which club to go to.

The judge found the State's witnesses credible and found defendant lacking in credibility. Therefore, the judge found that the touching did occur. He also found that it was intentional and that it was for the purpose of defendant's sexual gratification. He therefore found defendant guilty of criminal sexual contact.

The trial court's decision in this case was a straightforward credibility determination. We will not interfere with the credibility findings of a trial judge sitting without a jury if those findings could reasonably have been reached on substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). The credibility findings by the trial court are unassailable, and the testimony provided by the State's witnesses clearly provided substantial credible evidence sufficient to support defendant's conviction.

 
Affirmed.

The Code of Criminal Justice authorizes as a disposition of a convicted person the suspension of imposition of sentence. N.J.S.A. 2C:43-2b; N.J.S.A. 2C:45-1a. The Code also authorizes the imposition of a county jail term as a condition of probation. N.J.S.A. 2C:45-1e. However, the Code does not authorize imposition of a "suspended" jail sentence either standing alone or as a condition of probation.

Both defendant and the prosecutor have referred to this standard, which is not the correct standard of review from a conviction resulting from a bench trial. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). The correct standard is whether the verdict is supported by substantial credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). We further note that the prosecutor has incorrectly argued that defendant is precluded from making an "against the weight of the evidence" argument on appeal because, as required by Rule 2:10-1, defendant did not move for a new trial on that ground in the trial court. However, by its terms, Rule 2:10-1 applies only to the issue of whether a jury verdict was against the weight of the evidence.

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A-0159-08T4

RECORD IMPOUNDED

May 20, 2010