STATE OF NEW JERSEY IN THE INTEREST OF B.N.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2948-09T1

STATE OF NEW JERSEY

IN THE INTEREST OF

B.N., a minor.

_______________________

April 19, 2011

Submitted March 30, 2011 - Decided

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket Nos. FJ-01-2384-09 and FJ-01-0771-10.

Yvonne Smith Segars, Public Defender, attorney for appellant B.N. (Gilbert G. Miller, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent State of New Jersey (Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

B.N, a sixteen-year-old juvenile, appeals from an adjudication of three acts of delinquency that, if committed by an adult, would constitute disorderly conduct, N.J.S.A. 2C:33-2a(1); fourth-degree aggravated assault against a police officer, N.J.S.A. 2C:12-1b(5); and third-degree conspiracy to violate the public alarm statute, N.J.S.A. 2C:33-3a and N.J.S.A. 2C:5-2. The adjudications for disorderly conduct and aggravated assault on two police officers resulted from a trial, and B.N. thereafter pled guilty to an unrelated conspiracy offense. The judge sentenced B.N. on all three adjudications to a term of probation for one year, and imposed various conditions, penalties, and fines. We affirm.

On November 9, 2009, the judge conducted the bench trial and considered testimony from Officer Peter Calabrese, Officer Jose Rodriguez, Detective Andrew Dodson, B.N., and B.N.'s thirteen-year-old brother. We gather the following facts from the evidence presented at the trial.

On May 26, 2009, at around 6:00 p.m., Officer Calabrese and his partner Officer Rodriguez conducted surveillance while sitting in a parked police cruiser. They observed a speeding Mercedes, pulled it over, and approached the driver, B.N., who failed to produce either a license or a permit to drive.

B.N. asked Officer Calabrese "[w]hat the fuck did you pull me over for, pussy?" B.N. continued to use obscenities and made verbal threats. Officer Calabrese asked B.N. to exit the car, B.N. uttered more profanities, and a crowd of eight or nine juveniles gathered. The officer instructed B.N. that he would be arrested unless he calmed down, but B.N. ignored the warning, raised his voice, and used more obscenities. Officer Calabrese arrested B.N. for disorderly conduct, handcuffed him, and placed B.N. in the police car. On the way to the police station, B.N. continued to call the officers "pussies" and threatened to "beat [their] asses if [they] were out on the street."

When they arrived in the station, B.N. continued to yell, curse, and threaten the officers as they walked through a hall to the juvenile bureau. They entered the bureau, which was filled with other juveniles, and B.N. asked Officer Calabrese to remove the handcuffs so B.N. could fight him. The officer walked B.N. to an area near the rear of the juvenile bureau and B.N. continued to state loudly, in front of other juveniles, that "[y]ou're a pussy, I'm going to internal affairs, you can't do anything to me." B.N. acted as if he was on stage, threatened a civilian clerk in the bureau area, and called her a "bitch." The other juveniles cheered on B.N. and started yelling at B.N. and to one another.

While Detective Dodson assisted Officer Calabrese to process B.N., the obscenities and threats continued. B.N. stated to the detective "[t]ake these cuffs off and see what I'll do," and repeatedly called the detective a "pussy." At one point, Officer Calabrese removed the handcuffs to process B.N., but B.N. attempted to punch and kick the detective and lunged at Officer Calabrese. As a result, they handcuffed B.N. to a restraint on the wall.

B.N. testified that he did not threaten anyone, was polite, and never raised his voice. B.N. explained that he allowed the officers to handcuff him and was fully cooperative. B.N. denied making any loud comments at the juvenile bureau, accused the detective of striking him, and believed that he was arrested without any reason. B.N.'s brother testified that he observed the police pull over the Mercedes and arrest B.N. According to his brother, B.N. cooperated, threatened no one, and never raised his voice.

On November 9, 2009, the judge found the testimony of the police officers credible and rejected the testimony of B.N. and his brother. He found the testimony of the brother to be "very confused." In adjudicating B.N. a delinquent, the judge found "that there was disorderly conduct, one act of disorderly conduct from the time of the arrest to the point where [B.N.] was in the police station." The judge also found that B.N. lunged at both officers.

On November 19, 2009, B.N. pled guilty to conspiracy to violate the public alarm statute concerning an unrelated alleged shooting incident. On January 5, 2010, the judge imposed the probationary sentence and referred B.N. to the Minister's Program and the Victim Impact Program, and required B.N. to attend school. This appeal followed.

On appeal, defendant argues the following points:

POINT I

THE STATE'S PROSECUTION AND THE COURT'S ADJUDICATION OF DELINQUENCY REGARDING THE DISORDERLY CONDUCT CHARGE WERE AS APPLIED VIOLATIONS OF THE JUVENILE'S CONSTITUTIONAL RIGHT OF FREEDOM OF SPEECH

POINT II

THE COURT'S ADJUDICATIONS OF DELINQUENCY FOR DISORDERLY CONDUCT AND AGGRAVATED ASSAULT WERE NOT SUPPORTED, AND THE COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL OR REQUIRED A NEW TRIAL

POINT III

THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE

We begin by addressing B.N.'s argument that his prosecution and adjudication for disorderly conduct violated his constitutional right to free speech. B.N. contends that his conduct fell under N.J.S.A. 2C:33-2b, concerning speech that "offend[s] the sensibilities of a hearer." He suggests incorrectly that the State's reliance on N.J.S.A. 2C:33-2a(1) is an attempt by the prosecutor to circumvent our ruling in State in the Interest of H.D., 206 N.J. Super. 58, 61 (App. Div. 1985), which held "that there is no valid statutory authority for prosecutions based upon the public use of coarse or abusive language which does not go beyond offending the sensibilities of a listener."

The State charged B.N., under N.J.S.A. 2C:33-2a(1), with disorderly conduct by engaging in "tumultuous behavior, specifically by using profanity within earshot of small children in public." Under a(1), a person is guilty of disorderly conduct if, with the "purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," he or she "[e]ngages in fighting or threatening, or in violent or tumultuous behavior." Thus, to establish disorderly conduct under a(1), the State must prove that "[B.N.] caused public inconvenience, public annoyance, or public alarm, or a reckless risk thereof, by fighting, threatening, violent or tumultuous conduct." State v. Stampone, 341 N.J. Super. 247, 254 (App. Div. 2001).

The credible evidence demonstrated that B.N.'s behavior caused public inconvenience or annoyance at the scene of the vehicle stop and at the police station. A crowd of young people gathered at the scene and the juveniles at the station cheered on B.N. and started yelling at him and to one another. The State did not allege, under N.J.S.A. 2C:33-2b, that B.N.'s words "offended the sensibilities" of the listener, and any suggestion that the State relied on a(1) to circumvent our holding in State in the Interest of H.D., is without merit.

B.N. next contends the adjudications for disorderly conduct and aggravated assault on the officers are against the weight of the evidence, even though he never moved for a new trial on this ground. Generally, the failure to do so precludes consideration of the issue for the first time on appeal. R. 2:10-1; Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). We will address the merits of the argument, however, in the interests of justice. State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds by State v. Dalziel, 182 N.J. 494 (2005); State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993); Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 2:10-1 (2011).

A "trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless . . . it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We defer, therefore, to the judge's findings that the police officers were credible and B.N. and his brother were not. Considering the credible evidence, we conclude that B.N. has failed to show clearly and convincingly that there was a denial of justice under the law. B.N. acted tumultuously and threatened the officers, showed off in front of other juveniles resulting in the group cheering him on, and kicked, struck, and lunged at the officers.

Finally, we discern no abuse of discretion in the disposition of one year probation. State ex rel. S.B., 333 N.J. Super. 236, 246 (App. Div. 2000). We are not to substitute our judgment for that of the trial judge. "We must defer to the trial judge who has the feel for the case, and we may only intervene if we are satisfied that the sentence imposed represents an abuse of discretion." Ibid. (quoting State v. Gardner, 113 N.J. 510, 516 (1989)).