STATE OF NEW JERSEY IN THE INTEREST OF J.M.

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NOT FOR PUBLICATION WITHOUT THE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

J.M.

____________________

February 14, 2014

Submitted: January 23, 2014 Decided:

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Indictment No. FJ-06-1048-12.

Joseph E. Krakora, Public Defender, attorney for appellant J.M. (Alicia J. Hubbard, Assistant Deputy Public Defender, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent State of New Jersey (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, J.M., a juvenile, was adjudicated delinquent for acts which, if committed by an adult, would constitute third-degree aggravated assault against a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a); the disorderly persons offense of obstruction, N.J.S.A. 2C:29-1a; and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a. The trial judge imposed concurrent six-month probationary terms for each offense.

On appeal, J.M. raises the following arguments:

POINT I

THE JUDGE ERRED IN ADJUDICATING [J.M.] DELINQUENT FOR COMMITTING AGGRAVATED ASSAULT IN THE THIRD DEGREE ON AN OFFICER BECAUSE NOT ONLY WAS THERE NO PROOF THAT [J.M.] INTENDED TO CAUSE INJURY TO THE OFFICER, BUT THERE WAS NO PROOF OF INJURY AND, THEREFORE, NO PROOF OF A THIRD DEGREE AGGRAVATED ASSAULT. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (RAISED BELOW).

POINT II

THE STATE FAILED TO PROVE THAT [J.M.] OBSTRUCTED THE ARREST OF HIS FATHER AND, THEREFORE, THE OBSTRUCTION ADJUDICATION MUST BE VACATED ([U.S. CONST.] AMENDS. V, VI AND XIV; [N.J. CONST.] (1947), ART. I, PARS. 1, 9 AND 10) (RAISED BELOW).

POINT III

BECAUSE THE JUDGE FAILED TO FIND THAT THE STATE PROVED BEYOND A REASONABLE DOUBT THAT [J.M.] COMMITTED ANY OF THE OFFENSES, THE ADJUDICATIONS MUST BE VACATED (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), PARS. 1, 9 AND 10) (RAISED BELOW).

POINT IV

THE TRIAL JUDGE IMPROPERLY FORECLOSED THE POSSIBILITY OF DISMISSAL OF [J.M.'S] CHARGES THROUGH AN ADJOURNED DISPOSITION BASED UPON HIS NON-RESIDENT STATUS (U.S. CONST. AMEND. XIV) (NOT RAISED BELOW).

After reviewing the record in light of the contentions advanced on appeal, we affirm.

The charges against J.M. stemmed from an incident that occurred at approximately 1:00 a.m. on May 27, 2012. On that date, Officer Craig Scarpa of the Vineland Police Department received a call concerning a "domestic dispute" at J.M.'s apartment. Officer Scarpa went to the apartment, where he was joined by Officer Adam Shaw, Officer Day, Officer Patania, and Officer Mohan. As he approached the door, Officer Scarpa "could hear yelling coming from the second floor of the apartment." Officer Scarpa knocked on the door and, when J.M.'s father answered, the officer "asked him what was going on, if everything was okay." J.M.'s father replied, "'It's none of your fucking business,' and 'Get out of here.'" The officer asked J.M.'s father again and the father stated, "'I'm not telling you shit.'" J.M.'s father walked past Officer Scarpa, "like he was leaving, towards the parking lot." The officer asked him several times for his name, but J.M.'s father refused to respond. At that point, Officer Scarpa told J.M.'s father "that he was under arrest for obstruction" and Officer Patania placed him in handcuffs.

Officer Scarpa went "just inside the doorway" of the apartment to speak to J.M.'s mother. J.M.'s father and the other officers were outside, five or six feet away. Officer Scarpa heard J.M. "say, 'They better not touch my fucking dad.'" J.M. walked out of the doorway behind the officer and moved toward his father. As he did so, Officer Scarpa told J.M. "to stop; I told him to get back. He didn't listen to me." J.M. walked up to his father "and grabbed his dad's arm, which was already handcuffed." Officer Scarpa took J.M. by his arm and "tried to escort him away" from his father, but J.M. "obviously[] didn't like that, and pushed" the officer on the left side of his "upper chest" with both of his hands. Officer Scarpa testified that he "felt the pressure of [J.M.] pushing me" and he "had to take a step back to regain my balance."

Officer Scarpa then pushed J.M. "back to create a little space" and told him "[s]everal times" that he was under arrest. J.M. assumed a "fighting stance" and "raised his hands, his [hands] were clenched into fists." Officer Shaw and Officer Day approached J.M. Officer Shaw got to J.M. first and testified that he grabbed J.M. by the back of his neck and attempted to force him to the ground. J.M. resisted by "pulling away[.]" Officer Shaw struck J.M. once with his knee and "forcefully push[ed] him to the ground." Officer Scarpa "came over and began trying to handcuff him." However, J.M. continued to resist by keeping his hands underneath his chest. Officer Scarpa testified that J.M.'s mother "started yelling, and then started walking towards us, obviously, to intervene." Officer Shaw "got up, walked towards her, telling her to stop, repeatedly; and she refused, and wound up pushing Officer Shaw." He then arrested her. As that occurred, Officer Day assisted Officer Scarpa in attempting to place handcuffs on J.M. Officer Scarpa stated that he "struck [J.M.] one time on the side of his body . . . and then he gave his hands up, he complied."

J.M.'s sister and father testified on his behalf. J.M.'s sister stated that her father had "[p]robably" been drinking before the police arrived. There was some "arguing" going on in the apartment, but no "loud yelling." J.M.'s sister testified that her father kept trying to go to his car rather than speak to the officers and they arrested him. She stated that J.M. went outside to talk to his father, who was about six feet away from the door. As J.M. approached his father, J.M.'s sister stated that "somebody yelled at him. And then, he got pushed, and he flew back; but he was still standing up." She stated that J.M. then "got tackled by all these cops. And, they put him in handcuffs." J.M.'s sister testified that J.M. did not push any of the officers.

J.M.'s father testified that he "had a couple drinks" that night and that there were no arguments in the apartment, "just talking loud." When the officers arrived, J.M.'s father testified that he took only "one step out" of the door. He told the officers "it wasn't no problem" and the police arrested him "for just walking away." J.M.'s father testified that he had previously told his son to "take out the trash" and that is why J.M. was in the doorway. J.M.'s father stated that an officer pushed his son and then four or five officers jumped "[a]ll on top of him." J.M.'s father asserted that his son never assaulted any officer and did not resist them in any way.

J.M. testified that his father was talking to him as he went out the door to speak to the officers. J.M. saw them begin to handcuff his father and he asked, "'Why are you handcuffing my father?'" An officer told him, "'Get back.'" J.M. stated he then "got pushed, and I looked up, and that's when they came at me." He denied striking or pushing any of the officers or resisting their efforts to handcuff him.

At the conclusion of the trial, the judge made detailed credibility findings. He found that the "officers' testimony was clear, it was concise, it was sequential, it was believable." On the other hand, he found that the defense witnesses' testimony was "inconsistent" and "simply incredible in the allegations that were being made[.]"

The judge found that J.M. committed an assault upon a police officer when he pushed Officer Scarpa with both hands. J.M. then "raised his fist and assumed a fighting stance[,]" which the judge stated was probative of J.M.'s intent to cause bodily injury to the officer. The judge further found that J.M. interfered with the officers as they attempted to place his father under arrest. J.M. stated "'[y]ou better not touch my fucking dad'" and then approached his father and grabbed his arm with the intent "to pull him away from the police." Finally, the judge found that J.M. resisted arrest by failing to "immediately go to the ground" when Officer Shaw tried to arrest him and by subsequently "holding his arms under his body to prevent [himself] from being handcuffed[.]" This appeal followed.

In Points I and II of his brief, J.M. contends that the evidence was insufficient to support the adjudications of delinquency for aggravated assault on a law enforcement officer and for obstruction. We disagree.

Our review of a judge's verdict in a non-jury case is limited. The standard 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 on these charges.

N.J.S.A. 2C:12-1b(5)(a) provides that "[a] person is guilty of aggravated assault if he . . . [c]ommits a simple assault . . . upon . . . [a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer[.]" "A person is guilty of [simple] assault if he . . . [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or . . . [a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a(1) and (3). "'Bodily injury' is defined as 'physical pain, illness or any impairment of physical condition.'" State ex rel. S.B., 333 N.J. Super. 236, 242 (App. Div. 2000) (quoting N.J.S.A. 2C:11-1a). "Not much is required to show bodily injury." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). "'Even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey law.'" Ibid. (quoting New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995)). Here, J.M. pushed Officer Scarpa with both hands, causing the officer to feel a "pressure" sensation, "lose his balance and take a step backward." This sufficiently established the bodily injury necessary for a finding of simple assault upon the officer. Accordingly, there is ample credible evidence supporting the judge's conclusion that J.M. committed an aggravated assault on a law enforcement officer in violation of N.J.S.A. 2C:12-1b(5)(a).

A person is guilty of obstruction "if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act." N.J.S.A. 2C:29-1a. Here, J.M. was inside the apartment when the officers arrested his father. He stated, "They better not touch my fucking dad" as he went out the door toward his father. Officer Scarpa directed him to stop and get back, but J.M. ignored the orders and grabbed his father's arm. Officer Scarpa tried to escort J.M. away, but he pushed the officer with both hands, causing Officer Scarpa and Officer Shaw to divert their attention away from J.M.'s father and the other individuals in the apartment so that they could subdue J.M. Under these circumstances, we conclude that there is sufficient credible evidence in the record to support the judge's determination that J.M. engaged in obstruction in violation of N.J.S.A. 2C:29-1a.

Turning to Point III of J.M.'s brief, he correctly points out that the trial judge failed to articulate the burden of proof he applied in making his findings of fact. There can be no question that the applicable burden of proof in a criminal case is proof 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). Had this been a jury trial and the judge failed to charge the jury on the correct standard of proof, we would, of course, be required to reverse the conviction. See State v. Medina, 147 N.J. 43, 59-61 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997).

However, in the context of a criminal bench trial tried before a judge assigned to handle juvenile proceedings in the Chancery Division, Family Part, we are satisfied that the judge's failure to articulate the nature of the burden of proof, while quite unfortunate, is not fatal. In addition to our presumption that a trial judge knows and applies the appropriate standard of proof, our review of the findings made by the judge convinces us that she concluded that the evidence demonstrated J.M.'s guilt beyond a reasonable doubt. The judge found that, as the officers were arresting J.M.'s father, J.M. "did, in fact, approach his father and grab his arm" and told the officers "'[y]ou better not touch my fucking dad." Thus, the judge found that J.M. "was trying to do anything he could to prevent his dad from being arrested, and reacted in an emotional manner, in defiance of the officers' authority at the scene."

The judge also found that J.M. assaulted Officer Scarpa by pushing him with both hands and that J.M.'s intent to harm the officer was demonstrated by his adoption of a "fighting stance" and "his attempt to engage the officers in a fight." Finally, the judge found that J.M. resisted arrest because he refused "to go to the ground as soon as Officer Shaw placed his hands on the back of [J.M.'s] head" and then held his hands and arms under his body in an attempt to avoid being handcuffed. Based upon these clear and unequivocal findings, we accept the trial judge's conclusion that J.M. committed the offenses as one made using the beyond-a-reasonable-doubt standard of proof.

Finally, in Point IV of his brief, J.M. argues for the first time on appeal that the trial judge "improperly denied [J.M.] an adjourned disposition[1] merely because he was a Maryland resident at the time of disposition[,]" thus "violat[ing] both the Equal Protection and the Privileges and Immunity Clauses of the United States Constitution." Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, State v. Macon, 57 N.J. 325, 337-39 (1971), we generally decline to consider issues that were not presented at trial. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). "Because that issue [presented for the first time on appeal by J.M.] never was raised before the trial court . . . and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review." State v. Robinson, 200 N.J. 1, 18-19 (2009). We therefore decline to consider it.

1 Pursuant to N.J.S.A. 2A:4A-43b(1), a judge may, after adjudicating a juvenile delinquent, "[a]djourn formal entry of disposition of the case for a period not to exceed 12 months for the purpose of determining whether the juvenile makes a satisfactory adjustment, and if during the period of continuance the juvenile makes such an adjustment, dismiss the complaint[.]"