STATE OF NEW JERSEY IN THE INTERST OF Z.R.

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NOT FOR PUBLICATION WITHOUT THE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 INTERST OF Z.R.

_____________________________________

December 18, 2013

Submitted September 17, 2013 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-89-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stacey E. Zyriek, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, juvenile Z.R. was adjudicated delinquent of a charge which, if committed by an adult, would have constituted third-degree attempted aggravated assault. N.J.S.A. 2C:12-1(b)(7). The judge entered a dispositional order placing the sixteen-year-old juvenile in the Juvenile Intensive Supervision Program (JISP). The juvenile appealed, and we affirm.

We glean the following from the testimony at the trial. On March 29, 2011, in a high school cafeteria, sixteen-year-old A.P. was eating lunch when several other girls threw bread in her face. As A.P. attempted to leave, she was grabbed by her hair from behind. Several girls began hitting her, and threw her to the floor. A.P., who was a new student, was unable to identify the student who had initially attacked her or the other girls who joined the attack.

Terrence Davis, a school security officer, was in the cafeteria at the time and saw the attack begin. Davis summoned other officers for backup and intervened by attempting to shield A.P. from the attacking students. Despite Davis' presence and assistance, several students continued to repeatedly and aggressively punch A.P. When two other officers arrived, they managed to halt the attack.

Davis, who then took A.P. to the athletic office to meet with Vice Principal Dion Roach, observed that A.P. had scratches on the left side of her face. Next, A.P. went to the school nurse, Sharlenia Robinson, who examined her. A.P. stated that her head hurt, and Robinson provided an icepack. A.P. thought she lost consciousness briefly during the incident, but did not tell Robinson.

A.P. went to the hospital emergency room where she was given a CT scan. The hospital released A.P. after a few hours with directions to take ibuprofen as needed. The emergency room records stated that A.P. reported a loss of consciousness for a few seconds. The records indicated a final diagnosis of a "head injury" and "multiple contusions." After the incident, A.P. missed six days of school due to neck and head pain, depression, and difficulty concentrating.

Surveillance cameras in the high school cafeteria recorded the incident. In Davis' initial statement to police about the attack, he did not identify the juvenile as a participant, but told the police that he could not recall all the involved students' names. After Davis and Roach viewed the video numerous times on the day of the incident and on the following days, they were able to identify the juvenile and two other girls as A.P.'s principal attackers. Both Davis and Roach were certain of their identifications because of their daily contact with the individuals involved. They also made in-court identifications of the juvenile as one of the students who attacked A.P.

Robinson, who testified for the juvenile, stated that, in her examination of A.P., she observed that A.P. had lost some hair but did not have any abrasions on her face or scalp, and did not seem disoriented. Additionally, Robinson stated that A.P. did not report a loss of consciousness.

In his comprehensive written opinion, Judge Robert A. Kirsch found the State's witnesses to be credible. Regarding A.P.'s testimony, he noted that she answered questions in "a measured, even-keeled manner, soft-spoken and with no apparent animus or motivation, other than to be truthful and earnest." The judge also found Davis' testimony to be "highly credible," stating that Davis was very familiar with the juvenile due to interacting with her daily. Additionally, Judge Kirsch found Roach's testimony to be believable, remarking that his memory following the incident was clear. He also found that their testimony was supported by the video recording, which depicted "a dangerous and terror-filled instantaneous eruption of mass, seemingly gratuitous violence." However, Judge Kirsch found Robinson's testimony to be less credible, noting it was "contradicted by more credible, corroborated evidence[.]"

While the judge recognized that there was no proof that the juvenile caused significant bodily injury, he noted that under N.J.S.A. 2C:12-1(b)(7), attempting to cause significant bodily harm was sufficient. He observed that the violent mob was "so bent on attacking their victim that the presence of a security guard shielding her served as no deterrent[.]" He concluded that the juvenile's continual forceful and aggressive swinging at A.P. during the mob attack proved that the juvenile attempted to cause significant bodily injury to A.P. Consequently, after finding that the credible evidence showed that the juvenile had committed attempted aggravated assault, the judge adjudicated her delinquent. This appeal followed.

On appeal, the juvenile raises the following contentions for our consideration:

POINT I: BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE JUVENILE, Z.R., COMMITTED AGGRAVATED ASSAULT, THE JUDGMENT WAS ENTERED IN ERROR AND MUST BE VACATED.

A: The Court Should Have Granted the Defense Motion for Acquittal and Dismissed the Charge Against Z.R.

B: Alternatively, as the Verdict was Against the Weight of the Evidence, it Must be Set Aside and the Case Remanded for a New Trial.

POINT II: EVEN ASSUMING ARGUENDO THAT THE EVIDENCE OF Z.R.'S PARTICIPATION WAS SUFFICIENT TO SUSTAIN A CHARGE OF ASSAULT, THE EVIDENCE DOES NOT SUPPORT THE FINDING MADE OF AGGRAVATED ASSAULT.

POINT III: THE DISPOSITION IN THIS CASE WAS EXCESSIVE AND, IF WARRANTED AT ALL, IT MUST BE MODIFIED.

The juvenile first argues that there was insufficient evidence to prove beyond a reasonable doubt that she was a participant in the fight, and thus the trial judge erred in not granting her motion for acquittal. Alternatively, she argues the State's proofs were insufficient to support a finding of guilt. As to both arguments, the juvenile asserts that various inconsistencies in Davis' and Roach's statements render them not credible, and the poor quality of the surveillance video renders it unreliable. We find these arguments unpersuasive.

In a bench trial, our standard of review requires great deference to the trial court's factual findings. State v. Vargas, 213 N.J. 301, 326-27 (2013). Indeed, "[a]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). A trial judge's fact-findings "'are binding on appeal when supported by adequate, substantial, credible evidence.'" Potomac Ins. Co. v. Pa. Mfrs.' Ass'n Ins. Co., 215 N.J. 409, 421 (2013) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Moreover, "an appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

In considering a motion for judgment of acquittal, the trial court must determine "whether the evidence at that point is sufficient to warrant a conviction of the charge involved." State v. Reyes, 50 N.J. 454, 458 (1967). Further, the court must decide whether, "'viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting Reyes, supra, 50 N.J. at 459). We apply the same standard when deciding if the trial judge should have granted or denied the motion to acquit. See Reyes, supra, 50 N.J. at 459.

The juvenile's contention that the verdict was "against the weight of the evidence" does not invoke the applicable standard in non-jury trials. Instead, when reviewing such a case, we are "bound by the factual findings of the trial judge when they are supported by adequate, substantial credible evidence and not so wide of the mark as to be clearly mistaken." In re L.E.W., 239 N.J. Super. 65, 76 (App. Div.) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 122 N.J. 144 (1990); see also Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989).

The denial of the motion to acquit in this case was entirely proper under Rule 3:18-1. After viewing the evidence in the light most favorable to the State, the judge properly found that a reasonable fact-finder could determine that the juvenile was involved in the attack. Wilder, supra, 193 N.J. at 406. Furthermore, his final determination that the juvenile was involved in the fight was not so "plainly unwarranted that the interest of justice demand intervention and correction[.]" In re S.B., 333 N.J. Super. 236, 241 (App. Div. 2000) (citing Locurto, supra, 157 N.J. at 471; Johnson, supra, 42 N.J. at 162).

Next, the juvenile argues that the judge erred in finding that the State had proven that the juvenile attempted to cause the degree of bodily injury required for a conviction of attempted aggravated assault. Thus, the juvenile urges, the finding of delinquency should be amended to a finding predicated on simple assault. We disagree.

In order to prove aggravated assault, the State must prove beyond a reasonable doubt that the juvenile "[a]ttempte[d] to cause significant bodily injury to another or cause[d] significant bodily injury purposely or knowingly . . . ." N.J.S.A. 2C:12-1(b)(7). For purposes of aggravated assault, "significant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d).

Judge Kirsch found that to prove attempted aggravated assault, the State had to prove that the juvenile "did something designed to cause significant bodily injury, not that [she] [was] successful[.]" Based on the credible evidence, he found that the juvenile "threw recurring punches with the only possible design of inflicting great harm upon [A.P.]," and that the "forceful and repeated 'aggressive swinging' of [the juvenile's] arms in the mob attack on [A.P.] . . . demonstrate[d] to the Court that . . . [she] attempted to cause significant bodily injury" to A.P.

We are firmly convinced that the record supports the finding of delinquency predicated on aggravated assault. N.J.S.A. 2C:12-1(b)(7). Because there was substantial credible evidence that the juvenile attempted to cause significant bodily injury to A.P. in violation of N.J.S.A. 2C:12-1(b)(7), Judge Kirsch properly adjudicated the juvenile as delinquent. Taylor, supra, 158 N.J. at 656.

Lastly, the juvenile argues that, because she has no previous criminal record, A.P. only suffered from a headache, and the State recommended probation, the sentence to JISP was excessive. We will not 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." In re S.B., supra, 333 N.J. Super. at 246 (quoting State v. Gardner, 113 N.J. 510, 516 (1989)).

We discern no abuse of discretion here. Judge Kirsch's findings were "grounded in competent, reasonably credible evidence[,]" and he applied the "correct legal principles in exercising [his] discretion." State v. Roth, 95 N.J. 334, 363 (1984). The juvenile has not shown that Judge Kirsch has made "such a clear error of judgment that it shocks the judicial conscience." Id. at 364.

Affirmed.