STATE OF NEW JERSEY IN THE INTEREST OF I.Y.

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NOT FOR PUBLICATION WITHOUT THE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 I.Y.,

A Juvenile.

_____________________________________________

July 17, 2015

Submitted April 14, 2015 Decided

Before Judges Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-803-14.

Joseph E. Krakora, Public Defender, attorney for appellant I.Y. (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

I.Y. appeals from an adjudication of delinquency for conduct which, if committed by an adult, would constitute the crime of possession of a weapon under circumstances not manifestly appropriate for lawful use, contrary to N.J.S.A. 2C:39-5(d). I.Y. was also adjudicated delinquent for violating a municipal curfew ordinance. We affirm in part and reverse in part.

On September 5, 2013, at approximately 10:25 p.m., Howell Township Police Corporal Fred Bauer was dispatched to the Pointe O'Woods Development based on a report of individuals hanging out. Upon arrival, he saw three males, J.C., a juvenile, I.Y., and Jawan Merideth, a nineteen-year-old. As Bauer approached, he observed J.C. attempt to conceal a folding knife behind a retaining wall. After making this observation and locating the folding knife, Bauer patted down all three individuals. The pat down led to the discovery of a four-inch folding knife located in I.Y.'s pants. Bauer took I.Y. into custody for possession of the folding knife and for violating the Township's curfew ordinance, which provides that no one under the age of seventeen may be out past 10 p.m.

On April 24, 2014, a hearing was held on the motion to suppress filed by I.Y. At the testimonial hearing, the only witness was Bauer. During his testimony, Bauer noted, in addition to the facts and circumstances leading to the discovery of the folding knife, that the area near the retaining wall was becoming a hangout and that there were both graffiti and narcotics paraphernalia found there in the prior three months. At the conclusion of Bauer's testimony, and after argument by counsel, the judge denied the motion citing in part to Bauer's testimony that the area was a "hangout and narcotics were becoming an issue."1

The trial was held immediately following the decision on the motion. At the trial, Bauer repeated his version of the events from his motion testimony but did not repeat the testimony characterizing the area as a hangout associated with narcotics.

I.Y.'s mother, K.Y., testified that she believed her son was going to the basketball court that night and she considered Jawan, a cousin of I.Y.'s father, as an adult having care and custody over her son on the night of the incident. Despite the claimed familial relationship, K.Y. could not recall Jawan's last name.

At the conclusion of the State's case, I.Y. moved for an acquittal on the weapon charge. The judge denied the motion. After citing to the applicable standard employed in deciding the motion and citing to case law, the judge held

In this case, the knife was possessed by the juvenile who was out past the time of the curfew, who was in the area where the officer testified there had been problems with narcotics and was also was [sic] with an individual who was also in possession of a knife.

Based on those attendant circumstances, I find that the State the motion to dismiss at this point for failure to produce evidence sufficient to warrant a conviction. So the motion will be denied.

I.Y. argues that the judge erred in denying his motion for judgment of acquittal under Rule 3:18-1. In addressing those arguments, "[w]e apply the same standards used by the trial court in its determination of defendant's motion for a judgment of acquittal." State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011). We must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, 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 of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

N.J.S.A. 2C:39-5(d) addresses "'the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used,'" namely "circumstances not manifestly appropriate for such lawful uses as those objects may have." State v. Blaine, 221 N.J. Super. 66, 69-70 (App. Div. 1987) (quoting State v. Lee, 96 N.J. 156, 161 (1984)).

The "'surrounding circumstances such as the size, shape and condition of the knife, the nature of its concealment, the time, place and actions of the carrier when found in his possession'" can "indicate that possession of a knife may be 'not manifestly appropriate' for its lawful use." Lee, supra, 96 N.J. at 162 (quoting State v. Green, 62 N.J. 547, 560 (1973)).

In order to sustain a conviction for N.J.S.A. 2C:39-5(d), the State must prove that the folding knife was possessed under such circumstances that a reasonable person would recognize beyond a reasonable doubt that it was likely to be used as a weapon; in other words, under circumstances where it posed a likely threat of harm to others or a likely threat of damage to property. See State ex rel. G.C., 179 N.J. 475, 483-84 (2004).

The judge, in reaching the decision held

There is no question that there was a knife found on [I.Y.], and there's no question that at the time, at the time he wasn't other than the acts for which he was charged, he wasn't committing any illegal acts. The officer did testify as to that.

The officer also testified that there have been problems around that retaining wall with it becoming a hangout and problems with narcotics and graffiti.

The Court also heard testimony from [K.Y.] relative to mainly the status of the juvenile strike that of the adult who accompanied her son on the evening of September 5 when he went out, and described that individual's name as being Jawan, did not know his last name. She stated that he was related to [I.Y.] on his father's side, although didn't state the nature of the relationship, and that he has been to the house on several occasions. That testimony was introduced for the purpose of demonstrating that under the curfew violation, that it was an exception because he was accompanied by an adult person having care and custody of the juvenile.

. . . .

The circumstances here are that this [folding knife] was found on the juvenile who was out past the curfew. And going to that, addressing that issue, as to the testimony of [K.Y.], I can't conclude that the testimony establishes that Jawan was given the care and custody of the juvenile. It just doesn't seem to make sense that that type of trust was placed in someone whose last name you don't know, there's no instructions given to have him back at this hour, don't go to this place, don't go to that place, that wasn't done. It seems to me he was more in the nature of a peer that he was hanging out with.

So I don't find that he was someone who had the care and custody of [I.Y.]. It was really someone who he was hanging out with.

So I find that the curfew violation has been violated the curfew statute, I should say, has been violated.

As to given the rest of the attendant circumstances, the fact that he was out past curfew with someone I find he was not under who didn't have care and custody of him, who was also in an area where it was testified by the officer that there's problems with narcotics.

I.Y.'s counsel then noted an objection that, in the decision, the judge improperly considered "hearsay" testimony from the suppression hearing about the prior problems in the area which was not presented by the State during trial.

The judge replied

I don t find I find it was not the situation where it was used manifestly that it was I find that it wasn't in his possession for under circumstances not manifestly appropriate for such unlawful purposes. We have no there's no showing that it was anything being used for any lawful purpose here and I find that the State has carried their burden.

The standard of review for bench trials is 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). Therefore, we ask only whether there is substantial, credible evidence in the record as a whole. State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div. 2004). We defer to the judge's factual findings, which are so often substantially influenced by his or her feel of the case, particularly as to credibility determination. Ibid.

We disagree that there was sufficient evidence at trial that I.Y. possessed the folding knife "under circumstances not manifestly appropriate for such lawful uses as it may have." N.J.S.A. 2C:39-5(d). As the Court noted in G.C., the statute

seeks to discourage a weapon's improper employment. It does so by criminalizing the actor's possession of the weapon when the attendant circumstances are not clearly consistent with a lawful use.

[G.C., supra, 179 N.J. at 482.]

Here, I.Y. possessed the folding knife on his person which satisfied the weapon and possession elements. However, we conclude that even when applying the less demanding Reyes standard to the State's proofs, there was insufficient evidence by which reasonable minds could conclude that the attendant circumstances were "not clearly consistent" with lawful use.

As the judge noted, at the time I.Y. possessed the weapon "he wasn t committing any illegal acts." Notably, the circumstances presented here lack any of the "attendant" sinister implications found in other decisions. See Lee, supra, 96 N.J. at 161 ("a steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun."); State v. Brown, 325 N.J. Super. 447, 458 (App. Div. 1999) ("while a pocketknife belongs in one's pocket, a kitchen knife belongs at home[,]" and its presence in defendant's pocket during the commission of a crime satisfies N.J.S.A. 2C:39-5(d)).

The State does not have to prove intent to use the weapon as that element is not required by the statute. See State v. Riley, 306 N.J. Super. 141, 150 (App. Div. 1997). However, the proofs must establish that the circumstances of the possession contemplate a threat to person or property. G.C., supra, 179 N.J. at 483.

As Judge Pressler noted in Blaine, in addressing the rationale of Lee,

where the implement is of an equivocal character, susceptible to both lawful and unlawful uses, its status as a weapon whose possession is capable of subjecting its possessor to criminal liability is entirely dependent on the circumstances attending the possession.

. . . .

The question which is directly before us is whether a knife of the nature involved here [closed folding knife] is by itself of such a character as to permit a conviction in the absence of any incriminating factor other than its presence in one's pocket as he is walking down the street.

[Blaine, supra, 221 N.J. Super. at 70 (internal citations omitted).]

Here, the judge placed emphasis on two factors which weighed in the decision to deny I.Y.'s motion and to adjudicate him delinquent. First, that I.Y.'s presence at the location and at the hour of his presence was in violation of the curfew. Second, that there were problems in the area as a "hangout" and with "narcotics and graffiti."

While we view the prima facie curfew violation as evidence the judge could properly consider in deciding the motion, the judge's consideration of evidence relating to the "character" of the area was improper. As I.Y. argues, and we agree, no evidence was adduced during the trial about the area's character. As such, the judge's consideration of that factor was erroneous.

The sole "incriminating" conduct attributable to I.Y. at the time he possessed the folding knife in his pocket was that he was out twenty-five minutes after curfew. As the judge found, and the record supports, there was no proof that I.Y. was engaged in, or about to engage in, criminal conduct. There was also no proof that I.Y.'s conduct implicated a danger to person or to property. G.C., supra, 179 N.J. at 483.

Even were we to conclude that the curfew violation was an "additional circumstance" sufficient to satisfy the Reyes "favorable inferences" standard, we do not conclude that there was sufficient evidence to sustain the adjudication.

Further, the judge's statement in the decision that "there's no showing" (by I.Y.) that the folding knife was being used for any lawful purpose erroneously shifted the burden of proof to I.Y.

Finally, having considered the record, both in light of Reyes and in light of the State's burden of proof to sustain an adjudication, we hold the judge's decision finding I.Y. violated the curfew was based upon sufficient, credible evidence.

Affirmed in part. Reversed in part.

1 I.Y. has not appealed the denial of the motion to suppress.