STATE OF NEW JERSEY IN THE INTEREST OF D.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY

IN THE INTEREST OF

D.W.

_____________________

October 23, 2013

 

 

Before Judges Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-644-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant D.W. (Michael C. Wroblewski, Designated Counsel, on the brief).

 

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor and Kimberly Donnelly, on the brief).

PER CURIAM

Following a bench trial, D.W., a juvenile, was adjudicated delinquent for acts which, if committed by an adult, would constitute first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of imitation firearms (an Uzi replica and an Interpol .38 cap pistol) for an unlawful purpose, N.J.S.A. 2C:39-4e.1 Both before and after trial, D.W. also pled guilty to separate charges involving different incidents in connection with six other juvenile complaints.2

The trial judge imposed a disposition dealing with all seven juvenile complaints. On the charges primarily involved in this appeal under Complaint No. FJ-20-644-11, the judge imposed a four-year term of incarceration on the first-degree robbery charge and a concurrent one-year term on the fourth-degree charge of unlawful possession of an imitation firearms for an unlawful purpose. The judge imposed a consecutive two-year term on Complaint No. FJ-20-2110-10; a concurrent one-year term on Complaint No. FJ-20-2298-10; and a consecutive three-year term on Complaint No. FJ-20-45-11. The judge imposed a concurrent six-month term on Complaint No. FJ-20-2259-10, and a concurrent one-year term on Complaint No. FJ-20-1195-11. Finally, on Complaint No. FJ-20-746-11, the judge imposed: a concurrent four-year term on the first-degree robbery charge; a concurrent three-year term on the second-degree possession of an assault firearm charge; a concurrent three-year term on the second-degree possession of a firearm charge; and a concurrent one-year term on the fourth-degree possession of a large-capacity ammunition magazine charge.3 Thus, D.W.'s aggregate disposition was nine years incarceration, with a post-detention period of supervision equal to one-third of the aggregate sentence. Appropriate fines and penalties were also assessed. We affirm.

I.

The State developed the following proofs at trial concerning a robbery that occurred at a Burger King restaurant on the evening of October 11, 2010. The employee at the drive-thru window saw two masked males come in the front door of the restaurant around 10:45 p.m. He could only see their eyes, but stated they were both African-Americans. One wore a black-hooded sweatshirt and the other was wearing a gray-hooded sweatshirt. The men were also wearing gloves. The man with the black sweatshirt held what looked like "a[n] Uzi, machine gun automatic." The other robber carried what looked "like a .380 or .357, a revolver." The employee estimated that the men were each eighteen years old. He described them both as "slim[,]" with the one wearing the gray sweatshirt being taller than the other.

The men told the employee to go to the front of the store and open the cash registers, but he was unable to do so. The employee called the manager to the front of the store. He opened the registers, but they were empty. The robbers then took him into the office at gunpoint. The manager gave the men money from the drawers he kept there and they fled the store. He estimated the robbers took approximately $400. The manager's physical description of the perpetrators was similar to that provided by the employee at the drive-thru window. Once the robbers left the store, they went across the street in the direction of Washington Avenue.

A third employee was cooking hamburgers when the robbery began. She only saw one of the men holding a gun and she was not sure as to their race. She also testified that one of the robbers was wearing a white sweatshirt and the other was wearing a black sweatshirt.

A customer was at the drive-thru window when the perpetrators entered the restaurant. He was a teacher, who was acquainted with the employee at the window. The customer saw the employee with his hands in the air and the employee winked at him. Realizing something was amiss, the customer left the restaurant and called 911. Sergeant Michael Foreman reported to the restaurant and, after speaking with the employees, broadcast a description of the suspects and the direction of their flight to other officers.

Later that evening, the police established a perimeter around a house approximately one-and-one half blocks from the restaurant. The house was about one-and-one-half blocks from the restaurant. Officer Pedro Abad was positioned near the basement windows of the house. From his vantage point, he heard an unidentified voice in the basement say, "'It went just as planned' and 'it was easy.'"

Sergeant Foreman and Officer Eric Calleja were at the house. Officer Calleja saw two adult men come out of the house. The first, Donald Givens III, was stopped and turned over to Sergeant Foreman for questioning. The second man was Givens' father, Donald Givens, Jr. The police also took him into custody for questioning.

Officer Barry Laraway was also outside the house. He testified it "was raining on and off heavily." After 1:00 a.m., he saw D.W. open the back door of the house and look around several times before he stepped out of the doorway. Officer Laraway described D.W. as between seventeen and twenty years old, African-American, slim, and wearing dark pants and a white t-shirt. The officer told D.W. to stop, but he tried to get back into the house. The officer grabbed D.W. by the wrist and took him into custody.

Shortly thereafter, the police entered the house with a search warrant. They found a juvenile, co-defendant B.B.,4 hiding in a small "cubby hole" in a corner of the basement. B.B. was wearing dark pants and a black t-shirt. After he was arrested, a black glove was found in B.B.'s pants pocket.

In a freezer in the basement, detectives found a green jacket with a gray hood; a black, hooded sweatshirt; a red, white, and green glove; a brown wool hat; a white t-shirt; and a pair of black gloves. The clothing was wet. They found "an Interpol [.]38 cap gun" wrapped inside the clothing. In another part of the basement, they found a wet, gray turtleneck shirt and a black t-shirt. They also found "an imitation Uzi."

Further investigation revealed that D.W. and B.B. did not live at the house. Donald Givens, Jr. testified he lived in a first-floor apartment in the house with his son. He did not see anyone else in the apartment that night. He testified the basement could only be accessed from inside the house on the first floor or from an exterior back door to the residence. He and his neighbors had access to the basement. He stated the items found in the basement did not belong to him.

The police obtained a communications data warrant for Donald Givens III's cell phone. The warrant revealed that, at 10:45 p.m. on October 11, 2010, Givens received a text from a phone registered to D.W.'s mother. The message was labeled as being from an abbreviated name similar to D.W.'s first name. The text stated, "Leave, hurry up." At 12:27 a.m. on October 12, a second text from the same source stated, "Stop playin, wea they at. D"

D.W. did not testify at the trial. However, he presented the testimony of a friend, who stated he dropped D.W. off at the house on Washington Avenue at 10:15 p.m. on October 11, 2010. This was approximately thirty minutes before the robbery occurred.

II.

Against this record, D.W. raises the following arguments:

POINT I

 

THE COURT'S FINDING OF DELINQUENCY WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD AND MUST BE REVERSED.

POINT II

 

THE TRIAL COURT IMPROPERLY DENIED THE JUVENILE'S MOTION FOR [JUDGMENT] OF ACQUITTAL.

 

POINT III

 

D.W. WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

 

POINT IV

 

THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE.

 

After reviewing the record in light of prevailing legal standards, we reject these arguments and affirm.

D.W. first argues the trial judge's findings were not supported by sufficient credible evidence in the record. We disagree.

It is well established that the State is required to prove every element of a criminal offense beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 99 (1997). The same allocation of the burden of proof applies in juvenile delinquency proceedings. State ex rel J.G., 151 N.J. 565, 593-94 (1997). Upon examination of a court's verdict in a non-jury case, the standard of review for determining if the State satisfied its burden is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State ex rel R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Moreover, we are obliged to "give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

"[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." State ex rel W.M., 364 N.J. Super. 155, 165 (App. Div. 2003). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

Applying these standards, we discern no basis for interfering with the judge's well-developed findings, conclusions, and disposition. The judge found:

First of all, there is no doubt that a robbery occurred at the Burger King restaurant in question. The only question based upon the evidence is who committed that robbery.

 

I accept the testimony of the Burger King employees and the teacher to establish that, further, it was a first degree robbery committed with what we find out later were imitation guns. But, again, accepting the testimony of the [restaurant] workers who all expressed fear for their lives, they reasonably believed the weapons to be capable of producing death or serious bodily injury.

 

I also accept the testimony of the several police officers who were led to a house on Washington Avenue near the Burger King in which they later found two imitation firearms and clothes similar to those worn by the robbers in the basement.

 

There is certainly enough proof to establish that the robbers left Burger King and went to that house to secrete evidence of the robbery. A significant amount of circumstantial evidence but powerful nonetheless.

 

The judge continued:

Finally, the evidence regarding communications between the juveniles and a third clearly suggest their involvement. Most compelling, however, is that these two individuals who match a general description of the perps were found at the house, [D.W.] coming outside to perhaps look around to see whether or not it was safe and [B.B.] in the basement hiding where all of the items used in the robbery are found. It's late at night and then early in the morning. They're both at the house which clearly was used as a safe house after the commission of a robbery. What other possible reasonable explanation could they have for being there?

 

Based upon the aforementioned, I find that there is proof beyond any reasonable doubt that a robbery occurred, that it was a first degree robbery with imitation firearms, and that the juveniles each possessed one of the imitation firearms which were used to carry out the robbery and, therefore, an unlawful purpose.

 

D.W.'s argument that there is insufficient evidence in the record to support these findings plainly lacks merit. To the contrary, the judge carefully reviewed and analyzed the evidence presented, made fully supported credibility findings, and set forth his findings in a comprehensive manner worthy of deference.

For similar reasons, we reject D.W.'s argument that the judge improperly denied his motion for a judgment of acquittal at the end of the State's case. A motion for acquittal must be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1.

On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

 

[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

 

We have stated that "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).

Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). As set forth in detail in the judge's findings at the conclusion of the case, there was ample evidence presented by the State from which the judge could adjudicate D.W. delinquent on both charges. Therefore, D.W.'s motion for an acquittal was properly denied.

D.W. next argues he was denied a fair trial as a result of improper hearsay testimony by two of the police officers who went to the house on Washington Avenue on the evening of the robbery. On cross-examination, Officer Rick Bachmann testified he received a dispatch that the suspects "fled down Washington Avenue southbound." Defense counsel then asked the officer why he had stopped at a specific house on that street. The officer began to answer and the prosecutor objected on the ground of hearsay.

Defense counsel stated he would "rephrase the question" and the following brief colloquy occurred:

[DEFENSE COUNSEL]: Did you receive information from other officers?

 

[OFFICER BACHMANN]: Yes.

 

[DEFENSE COUNSEL]: And, based on the information you received from these other officers, is that what - - is that information what caused you to go to [the specific address]?

 

[OFFICER BACHMANN]: Yes.

 

Subsequently, Officer Calleja5 testified he went to Washington Avenue in response to a radio call. The prosecutor asked him, "And based upon information received, did you specifically respond to [a specific address on] Washington?" The officer replied, "That's correct." Defendant did not object to this testimony.

D.W. now argues the officers' testimony "implied that the police received some type of subsequent description or information indicating that the suspects were located at" the Washington Avenue address. Because D.W. was not able to confront the unnamed source of this hearsay information at the trial, he argues the adjudication of delinquency should be overturned. We disagree.

Because D.W. elicited the testimony he now complains of from Officer Bachmann and did not object to the testimony provided by Officer Calleja, we analyze his argument under a plain error standard. R. 2:10-2. Under that standard of review, we disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. McGuire, 419 N.J. Super. 88, 145-46 (App. Div.) (quoting State v. Bankston, 63 N.J. 273 (1973)).

Judged against this standard, we discern no plain error here. "It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Bankston, supra, 63 N.J. at 268 (citation omitted). That is all that occurred here. The officers did not provide any specific information implying D.W.'s guilt or repeat what the other officers told them. Therefore, D.W.'s Sixth Amendment right of confrontation was not violated. Id. at 268-69.

Finally, D.W. argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code. We discern no basis in the record to disturb the judge's decision to impose consecutive dispositions for several charges involved in the seven, separate juvenile complaints. Because there is neither clear error on the judge's part in his adherence to the sentencing guidelines, nor a sentence imposed which, under the circumstances, shocks the conscience, there is no reason for appellate intervention. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).

Affirmed.

1 These charges were set forth in Juvenile Complaint No. FJ-20-644-11.

2 The six other juvenile complaints were as follows: Complaint No. FJ-20-2110-10 charged D.W. with a violation of probation; Complaint No. FJ-20-2298-10 charged D.W. with fourth-degree criminal mischief, N.J.S.A. 2C:17-3b(2); Complaint No. FJ-20-45-11 charged D.W. with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and Complaint No. FJ-20-2259-10 charged D.W. with possession of marijuana, a disorderly persons offense, N.J.S.A. 2C:35-10a(4). Complaint No. FJ-20-746-11 charged D.W. with first-degree robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j; and unlawful possession of marijuana, a disorderly persons offense, N.J.S.A. 2C:35-10a(4). Finally, Complaint No. FJ-20-1195-11 charged D.W. with fourth-degree riot, N.J.S.A. 2C:33-1a.

3 The disorderly persons possession of marijuana charge set forth in Complaint No. FJ-20-746-11 was dismissed.

4 B.B. was tried along with D.W. and he was also adjudicated delinquent on charges of first-degree robbery and fourth-degree possession of imitation firearms for an unlawful purpose.

5 The parties' briefs both incorrectly identify Officer Laraway as the officer who provided this testimony.