STATE OF NEW JERSEY IN THE INTEREST OF B.D

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5572-08T45572-08T4

STATE OF NEW JERSEY

IN THE INTEREST OF B.D.,

A Minor.

______________________________________________

 

Submitted June 15, 2010 - Decided

Before Judges Fisher and Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FJ-19-479-09.

Patti & Patti, attorneys for appellant minor, B.D. (Jeffrey M. Patti, of counsel and on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent State of New Jersey (Jerome P. Neidhardt, Assistant Prosecutor, on the brief).

PER CURIAM

At the conclusion of a two-day trial, B.D., a juvenile, was found to have engaged in conduct which, if committed by an adult, would constitute harassment, N.J.S.A. 2C:33-4, and bias intimidation, N.J.S.A. 2C:16-1(a)(2). Specifically, the judge determined that B.D. shoved D.L., and, with clenched fists and in an angry manner, shouted, "nigger, I'm gonna bust your nigger lips and hang you from a tree." Having found B.D. delinquent, the judge ordered that B.D. serve thirty days in the juvenile detention center; he suspended twenty of those days and directed that the other ten days be served immediately. The judge also imposed other conditions, requiring that B.D. engage in anger management counseling, tour two county jails, and read Black Like Me. B.D.'s service of the ten-day term in the detention center has been stayed pending this appeal.

In appealing, defendant argues:

I. THE FINDING OF JUVENILE DELINQUENCY IN THIS MATTER WAS A MANIFEST DENIAL OF JUSTICE AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT'S SENTENCE WAS EXCESSIVE AND SHOULD BE REDUCED TO A NON-CUSTODIAL TERM OF PROBATION.

We find insufficient merit in Point I to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

B.D. correctly recognizes that whether he engaged in the charged conduct turned on the judge's credibility findings. In this regard, the judge found B.D. to be untruthful, and found credible the version told by D.L. In addition, because D.L. could not clearly identify B.D. as the person who harassed and intimidated him, the judge relied upon the credible testimony of others to link B.D. to the conduct in question. Our standard of review is, of course, limited in these circumstances. We are obligated to defer to the judge's credibility findings because it is he who had the opportunity to see and hear the witnesses testify. State v. Locurto, 157 N.J. 463, 470-71 (1999). The versions of the events the judge found credible provide a sufficient foundation for his determination that B.D. engaged in the charged conduct and preclude any disturbance of those findings. Ibid.

In turning to Point II, we conclude that a remand is required so that the judge may reconsider the custodial aspect of the disposition. In this regard, we note the recent decision of State in the Interest of T.S., __ N.J. Super. __ (App. Div. 2010) (slip op. at 6), in which it was held that "split sentences" may not be imposed in juvenile matters. Here, the judge found the juvenile engaged in conduct which, if committed by an adult, would constitute harassment and bias intimidation. The former is a petty disorderly offense, N.J.S.A. 2C:33-4, which is considered a fourth-degree offense in light of the finding of bias intimidation, N.J.S.A. 2C:16-1(c). A presumption of non-incarceration attaches to this conduct.

In examining the judge's oral decision of July 2, 2009, it is not clear whether, in ordering the juvenile to serve ten days in detention, the judge had determined that the presumption of non-incarceration had been overcome in this case or whether he had imposed a probationary term conditioned upon the juvenile's service of ten days in detention. As a result, we remand for the judge's clarification and, if his intention was to impose a "split sentence," for reconsideration in light of T.S. The other aspects of the disposition order fell within the judge's broad discretion. See State In the Interest of J.D.H., IV, 171 N.J. 475, 483 (2002).

 
The adjudication of delinquency is affirmed. We remand for reconsideration and clarification of the disposition order. We do not retain jurisdiction.

Indeed, because B.D. did not move for a new trial, his argument that the finding of delinquency was against the weight of the evidence is not cognizable in this court. R. 2:10-1; State v. Smith, 262 N.J. Super. 487, 511 (App. Div. 1993). Nevertheless, we have decided to entertain the matter on its merits.

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A-5572-08T4

July 6, 2010