STATE OF NEW JERSEY IN THE INTEREST OF M.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NOT FOR PUBLICATION WITHOUT THE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

M.W., a minor.

________________________

April 15, 2014

Submitted April 1, 2014 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FJ-14-1163-12.

Joseph E. Krakora, Public Defender, attorney for appellant M.W. (Anderson D. Harkov, Designated Counsel, on the brief).

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent State of New Jersey (Paula Jordao, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, on the brief).

PER CURIAM

M.W., a juvenile, appeals from an adjudication of delinquency for conduct which, if committed by an adult, would constitute the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a).1 Defendant raises the following points for our consideration:

POINT I THE COURT BELOW ERRED BY FAILING TO PROPERLY APPLY THE LAW REGARDING SELF DEFENSE WHEN IT APPLIED THE FACTS TO THE LAW AND RENDERED ITS VERDICT.

POINT II THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE COURT'S GUILTY VERDICT, BASED ON ITS FINDING THAT THE JUVENILE WAS GUILTY OF SIMPLE ASSAULT BECAUSE HE ATTEMPTED TO CAUSE BODILY INJURY TO L.D., REQUIRING REVERSAL OF THE JUVENILE'S CONVICTION AND THE ENTRY OF A JUDGMENT OF ACQUITTAL.

POINT III THE FAILURE OF THE TRIAL COURT TO GRANT THE JUVENILE'S MOTION FOR A MISTRIAL AFTER THE INTRODUCTION OF "OTHER CRIMES, WRONGS, OR ACTS" EVIDENCE, DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

We defer to the trial judge's factual findings so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999). The same standard applies to a verdict rendered after a bench trial. State in the Interest of R.V., 280 N.J. Super. 118, 120-21 (App. Div. 1995). We review the judge's ruling on a mistrial motion for abuse of discretion. State v. Harvey, 151 N.J. 117, 205 (1997). We engage in de novo review of a trial judge's legal interpretations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Having reviewed the record with those legal principles in mind, we find no merit in defendant's appellate arguments, and we affirm.

The facts are uncomplicated. M.W. and a female friend, L.D., were both fourteen-year-old middle school students. At about 8:00 a.m., M.W. was standing in front of L.D.'s locker. She asked him to move, because she needed to open her locker, put away some books, and get to class before the bell rang. Defendant refused to move, despite several requests from L.D. Concerned that she would get detention for being late to class, L.D. pushed her hand against defendant's neck to encourage him to move away from her locker. In response, he slapped her across the face.

L.D. reported the incident to the vice-principal, Lynn Jackson, shortly after it happened. According to Jackson, L.D. was upset and crying. Jackson spoke to defendant about the allegation, and he admitted that "he had slapped [L.D.] in the face." During her testimony, Jackson mentioned that there were other incidents she wanted to discuss with defendant. The judge immediately noted, sua sponte, that such testimony about alleged other bad acts was improper and that he would disregard it. He later made a similar ruling that he would disregard a comment that Jackson began to make about money being involved in the locker incident. However, the judge denied the defense motion for a mistrial after the comment about "money," ruling that he was "able to completely disregard and ignore that partial testimony and I will do so."

The State also presented testimony from the school resource officer, who observed an apparent confrontation between defendant and L.D. in front of the lockers. The officer heard L.D. repeatedly asking defendant to move away from her locker and heard defendant refuse. The officer observed that L.D. appeared "very upset" and her eyes were red. The officer asked defendant what was going on. Defendant responded that "he had a right to stand where he wanted to stand."

In an oral decision placed on the record after the hearing on August 14, 2012, Judge Michael P. Wright found all of the prosecution witnesses credible. The judge found that defendant struck L.D. intentionally and not by accident. He concluded that "[t]here was an attempt to cause bodily injury to another," because the victim "was clearly struck in the face." In finding that defendant intended to slap the victim, Judge Wright also considered defendant's defiant attitude toward the resource officer right after the incident.

The judge rejected defense counsel's argument that her client acted in self-defense. He found that L.D.'s act of pushing defendant's neck was de minimus, particularly considered in the context in which it occurred, and did not warrant defendant's violent response. The judge also found no basis to characterize the incident as fighting by mutual consent. See N.J.S.A. 2C:12-1(a) (defining fighting by mutual consent as a petty disorderly persons offense). The judge sentenced M.W. to probation for a year, thirty hours of community service, and to write L.D. a letter of apology.

On this appeal, defendant argues that the judge failed to determine whether the State proved that defendant did not act in self-defense. We cannot agree. The relevant statute provides that

the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

[N.J.S.A. 2C:3-4(a).]

Self-defense requires that a defendant have "an actual, honest belief in the necessity of using force." State v. Johnston, 257 N.J. Super. 178, 192 (App. Div.) (citing State v. Kelly, 97 N.J. 178, 198 (1984)), certif. denied, 130 N.J. 596 (1992). Further, a defendant's belief that force is necessary must be objectively reasonable. Ibid.

Defendant's argument in support of the self-defense claim is based on a misreading of the record. It is clear from the testimony that defendant was facing to the side, talking to L.D., and not standing with his back to her, when the incident occurred. Therefore, her act of pushing his neck could not have appeared to him as a surprise attack from an anonymous assailant, to which a slap might have been an instinctive protective response. We agree with Judge Wright that, as L.D. credibly described it, her action was de minimus, defendant knew she only wanted to get into her locker, and there was no objective basis for a reasonable belief that defendant needed to protect himself.

Defendant's remaining arguments are without sufficient merit to warrant discussion beyond the following brief comments. R. 2:11-3(e)(2). We agree with Judge Wright that there was sufficient evidence to infer that defendant acted purposefully in hitting L.D. When the resource officer confronted defendant immediately after the incident, defendant displayed a defiant attitude. He did not state that he hit L.D. by accident but rather asserted that he was entitled to stand wherever he chose. It was also reasonable to infer, from the fact that defendant struck L.D. across the face, that at that moment he intended to cause her physical pain. See N.J.S.A. 2C:11-1(a) (defining bodily injury to include "physical pain"); State v. Stull, 403 N.J. Super. 501, 505 (App Div. 2008) (the sting from a slap constitutes bodily injury).

Lastly, in conducting a bench trial, Judge Wright was plainly capable of ignoring irrelevant or improper evidence. See State v. Medina, 349 N.J. Super. 108, 130 (App. Div.), certif. denied, 174 N.J. 193 (2002). A mistrial was not warranted.

Affirmed.

1 In relevant part, simple assault consists of "[a]ttempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another." N.J.S.A. 2C:12-1(a)(1).