STATE OF NEW JERSEY IN THE INTEREST OF T.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1581-09T4

STATE OF NEW JERSEY

IN THE INTEREST OF

T.A., A JUVENILE.

________________________________

December 30, 2010

Submitted November 30, 2010 - Decided

Before Judges Baxter and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-3042-09.

Yvonne Smith Segars, Public Defender, attorney for appellant T.A. (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent State of New Jersey (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Juvenile, T.A., appeals from an adjudication of delinquency on the lesser-included fourth-degree offense of unlawful taking of a means of conveyance, commonly referred to as joyriding, in violation of N.J.S.A. 2C:20-10b. The sentencing court imposed a twelve-month deferred disposition. We now affirm.

The relevant facts may be summarized as follows. Terek Wade testified that he was at his cousin's girlfriend's house on Seaview Avenue in Jersey City on June 4, 2009. He parked his 1991 Chevrolet Cavalier, owned by his mother, but driven by him with her permission, at approximately 11:00 p.m. He went out to get something from the car shortly after, but what he did not realize was that he dropped his chain of keys, which had been clipped to his belt buckle. Approximately forty-five minutes after he arrived, he noticed that his car was not where he had parked it.

Terek Wade's mother testified that she owned the 1991 Chevrolet Cavalier. Her son had permission to drive it, but no one else did. She was awakened by her son at approximately 12:30 a.m. and told that the vehicle had been stolen. She and her son immediately went to the South District police station and filed a police report. She was asked to retrieve the recovered vehicle on Sunday, June 7, 2009.

Police Officer George Lopez of the Jersey City Police Department testified that he was driving when he observed a vehicle coming in the opposite direction where the driver could barely be seen over the steering wheel. He suspected that the driver was underage and turned his vehicle around and pursued the car. He flashed his lights and the vehicle pulled over, stopping across three vertical lines in a parking lot. The passenger, Markees King, walked briskly away from the scene while the driver, T.A., remained. Officer Lopez ran the license plate of the vehicle and determined that it had been reported stolen.

T.A. testified that he had doubts about how Markees had obtained the vehicle, but once he saw no observable damage and that Markees had the keys to the ignition, he did not believe the car to be stolen. Before that day, T.A. had never seen Markees with the vehicle. He also knew of Markees's reputation and had seen him searched by the police. T.A. had never before driven a vehicle. His only driving experience had been with go-carts.

In adjudicating T.A. delinquent, the trial court made the following comments:

[W]hat there is no doubt [about] is that [T.A.] didn't have permission to drive this car from the owner of that car and he knew that Markees was not the owner . . . and not the person who had the authority to give a 14 year old permission to drive a car. He had suspicions about Markees, he knew he wasn't permitted to be a licensed driver, he has never had an adult permit him to drive a car . . . . And what we call that is just turning a blind eye to the truth, to what the real situation is. . . .

. . . Is it reasonable to believe that some person who . . . is . . . three degrees removed from him, from Markees to Markees's friend to Markees's girlfriend would give him permission to drive this car?

This defense for juveniles under the age of being permitted to drive is . . . something that is not going to be reasonable unless some adult, some car owner comes in and says I gave this kid permission to drive a car. . . .

I find it totally unreasonable and unbelievable for [T.A.] to think that he had permission to drive a car because this Markees, whom he doesn't know too well, just knows from the area, knows [Markees] gets in trouble, [T.A.] knows he should be suspicious of [Markees] as to whether or not he stole the car, says here are the keys, go ahead an[d] drive down Rose Avenue.

On appeal, T.A. raises the following argument for our consideration:

POINT I

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT T.A.'S PURPOSE WAS TO TEMPORARILY WITHHOLD A MOTOR VEHICLE FROM THE OWNER, AND THAT HE DID NOT REASONABLY BELIEVE MARKEES HAD THE AUTHORITY TO CONSENT TO T.A. DRIVING THE CAR, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL WITH RESPECT TO THE CRIME OF JOYRIDING. MOREOVER, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below).

T.A. contends that the State failed to prove beyond a reasonable doubt that his purpose was to temporarily withhold the motor vehicle from the owner and that he did not reasonably believe Markees had the authority to consent to T.A. driving the car. With a failure of proof on these elements of the offense, T.A. maintains that the court should have entered a judgment of acquittal to the crime of joyriding. In the alternative, T.A. also asserts that the verdict was against the weight of the evidence. We disagree.

N.J.S.A. 2C:20-10b, the section of the statute under which T.A. was adjudicated delinquent provides:

A person commits a crime of the fourth degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent.

The statute also expressly sets forth an affirmative defense, which was presented here. That section of N.J.S.A. 2C:20-10

reads:

It is an affirmative defense to prosecution under subsections a., b. and c. of this section that the actor reasonably believed that the owner or any other person authorized to give consent would have consented to the operation had he known of it.

[N.J.S.A. 2C:20-10a.]

The State established that T.A. intended to withhold the car from its owner, even though it was only temporarily, because he was driving and in control of the vehicle. T.A. was not a passenger in the car where arguably he could assert he was neither in possession nor control of the car. See generally, State v. McCoy, 222 N.J. Super. 626 (App. Div. 1988), aff d, 116 N.J. 293 (1989).

T.A. also argues that Markees was authorized to give consent. However, that is not how the statute reads. Markees was not authorized by anyone to give consent. T.A.'s interpretation of N.J.S.A. 2C:20-10a is incorrect. All the State needed to prove in this respect was that it was not reasonable for T.A. to believe that the owner of the car would have consented to T.A.'s operation of the car had he or she known of it. The phrase "any other person authorized to give consent" did not apply to Markees. It was not reasonable for T.A. to believe that Markees had the permission of the owner. Moreover, there was no reason whatsoever to think that the actual owner of the car would have given T.A. permission to drive the car as an underage driver who had never been behind the wheel of a vehicle other than a go-cart. Judge Kenny was correct in observing that no one who had the authority to give permission would have allowed this fourteen-year-old to drive a "car [o]n the streets of Jersey City."

We are satisfied that the elements of this fourth-degree offense were established beyond a reasonable doubt. We find no merit to the contention that the evidence was against the weight of the evidence. To the contrary, the evidence weighed heavily in support of the adjudication of delinquency of this joyriding offense.