STATE OF NEW JERSEY IN THE INTEREST OF Q.C

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0A-4723-12T2

STATE OF NEW JERSEY

IN THE INTEREST OF Q.C.

_________________________________

September 16, 2015

Submitted June 2, 2015 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. FJ-20-1798-12.

Joseph E. Krakora, Public Defender, attorney for appellant Q.C. (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Juvenile Q.C., now age 19, appeals from an adjudication of delinquency for conduct that, if committed by an adult, would constitute second-degree robbery, N.J.S.A. 2C:15-1(a).1 The Family Part judge entered a disposition committing Q.C. to the Juvenile Justice Commission for two years. Having considered the arguments and applicable legal principles, we affirm.

I.

The record reflects that, on June 5, 2012, at around 3:30 p.m., after getting out of school, K.V. left his friend s house and began walking home. K.V. observed a young man walking across the street2 proceeding to approach K.V. K.V. became "nervous" and began "speed-walking." The young man however caught up with K.V. and asked to see K.V.'s iPad, but K.V. refused. The young man, later identified as appellant, grabbed K.V.'s iPad, while striking him on the head, causing K.V. to become "dizzy" and to lose his grip on the iPad. Appellant took the iPad, and K.V. returned to his school where he asked a secretary to contact the police.

When the police arrived, K.V. told them that he believed that the individual was the person who had taken his cell phone from him in an earlier incident that occurred after school, in April or May of that year.3 On direct examination, K.V. testified regarding the cell phone incident, stating he was face-to-face with his assailant, separated by approximately six inches, for approximately five minutes.

After the June 5 incident, K.V. was later able to identify appellant as his assailant from a picture on his friend's Facebook page.

At trial, K.V. positively identified appellant with "100%" certainty as the young man he encountered in April or May, 2012, and as the young man who struck him and took his iPad on June 5, 2012. K.V. stated that the robber wore a red sweater, "might be" taller than him and had a "low" or "clean" haircut. However, K.V. conceded that one cannot observe the haircut of a person wearing a hat. Additionally, the record reflects that appellant is six feet and two inches tall, ten inches taller than K.V.

Appellant contended that around the time of the alleged robbery on June 5, 2012, he was taking a placement test to enter a training program, Youth Build, and was too far away to have committed the crime. He offered the testimony of Tracey Howard, a Youth Build employee and test administrator, who verified that she saw appellant the entire time he took the test, until he finished sometime after 3:45pm. She further testified that it was no less than a thirty-five minute walk from where the test was administered to where the robbery occurred.

In a written decision, the court found K.V. to be highly credible with a recollection of the incident that was clear, detailed, and consistent. On the other hand, the court found Ms. Howard s testimony to be well intentioned, but "uncorroborated, imprecise, and unreliable." After hearing all the evidence and argument, the judge determined that he would admit the evidence of the earlier theft of the phone under N.J.R.E. 404(b) for identity purposes. Moreover, the judge found that "the State [had] proven beyond a reasonable doubt that [appellant] committed the charged offense of [r]obbery by threatening K.V. with or purposely putting him in fear of immediate bodily injury in the course of committing a theft, specifically by striking the victim in the left side of his head with an open palm and then removing his iPad from his possession, a second[-]degree offense under N.J.S.A. [2C:15-1(a)]."

This appeal followed.

II.

Appellant raises the following points for our consideration

POINT I.

THE EVIDENCE WAS INSUFFICIENT TO FIND THAT Q.C. WAS GUILTY BEYOND A REASONABLE DOUBT, THEREFORE, HIS ADJUDICATION OF DELINQUENCY MUST BE REVERSED.

POINT II.

THE JUDGE ERRRED IN ADMITTING THE PRIOR IDENTIFICATION OF Q.C. UNDER N.J.R.E. 404(b) AND ERRED IN DETERMINING THAT IF THE EVIDENCE WAS IMPROPERLY ADMITTED, THAT IT WOULD NOT CHANGE THE RESULT.

We first address the challenge raised in Point II that the admission of evidence regarding the prior theft of K.V.'s phone violated N.J.R.E. 404(b) and warrants reversal. N.J.R.E. 404(b) provides that subject to limited exception,

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[Emphasis added.]

Specifically, appellant argues that proof of identity is only appropriate when the two crimes are so similar to constitute a "signature" crime or when there is a salient feature tying the two crimes together, as in State v. Gillispie, 208 N.J.59, 88 (2011). He asserts that the theft of K.V.'s phone in April or May was not similar to the taking of the iPad in June, and, there are no salient features connecting the two offenses. Appellant contends that "the shaky identification of the iPad robber was used to support the identification of the phone thief which, in turn was used to bootstrap the identification of the robber."

Appellant also contends that the judge's consideration of the evidential issue prejudiced a fair adjudication of whether the State proved he committed the robbery. We disagree and conclude that the testimony of the theft of K.V.'s cell phone was properly admitted.

We begin by noting that "[a] trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "When specifically reviewing the sensitive admissibility rulings made pursuant to the weighing process demanded by Rule 404(b), . . . we have further said that '[o]nly where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed.'" Id. at 157-58 (alteration in original) (quoting State v. Barden, 195 N.J. 375, 391 (2008)). However, if the trial court fails to engage in a proper Rule 404(b) analysis, our review is plenary. Id. at 158 (citing Barden, supra, 195 N.J. at 391).

Here, the judge engaged in the proper analysis pursuant to the four-prong test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). When determining whether evidence of other crimes should be admitted, the following factors must be considered

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Ibid. (citation omitted).]

The judge found that all four prongs were satisfied. The first prong was met because identity of the person who robbed K.V. was disputed. The second prong was met because the two incidents occurred approximately two months apart and in the same general location. Moreover, both incidents took place around the same time when K.V. was walking near his school and was confronted by a youthful individual who demanded possession of the victim's property.4 As for the third prong, the judge found K.V.'s testimony concerning the cell phone theft, and the iPad robbery, credible. K.V. was confident in his identification of appellant as the individual who took his property as both incidents occurred in the afternoon, and K.V. had ample time to view appellant at close range. Lastly, the fourth prong was satisfied by the judge's finding that the cell phone incident was "highly probative of [appellant's] identity," and relying upon New Jersey Div. of Youth & Family Services v. I.H.C., 415 N.J. Super. 551, 576 (App. Div. 2010), "any apparent prejudice is diminished by the [c]ourt's role as the factfinder." We have no concern that in admitting evidence of the cell phone thief, the judge as factfinder "may convict the [juvenile] defendant because he is a bad person in general." Cofield, supra, 127 N.J. at 336 (internal quotations and citations omitted).

Based upon the reasoning expressed by the trial judge, we agree that the Cofield test to admit evidence of the cell phone incident was properly satisfied. Thus, we conclude the judge did not abuse his discretion.

Next, appellant contends that the evidence was insufficient to support the adjudication of delinquency. We find no merit to the contention. R. 2:11-3(e)(2).

Our scope of review of the trial court's fact-finding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We shall uphold a trial court's findings of fact if they are supported by "adequate, substantial and credible" evidence. Cesare, supra, 154 N.J. at 412 (citation omitted). "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (internal quotation marks and citation omitted).

We are especially reluctant to disturb a Family Part judge's fact-finding. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or "the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citation omitted).

Applying these principles, we conclude that the court's fact-findings were adequately supported by the record. The court thoroughly analyzed the conflicting testimony of the witnesses. In so doing, the judge's findings were fully supported by the evidence presented.

We also reject appellant's assertion that the judge's acceptance of K.V.'s testimony regarding his Facebook identification of his assailant somehow ran afoul of the Court's guidance in State v. Henderson, 208 N.J. 208 (2011). Here, K.V.'s pre-trial identification through the use of Facebook was not the result of intervention by law enforcement. Moreover, K.V. identified appellant in court with certainty. Accordingly, we have no cause to disagree with the trial judge's conclusions regarding K.V.'s identification of appellant as the person who robbed his iPad.

Affirmed.

1 N.J.S.A. 2C:15-1(a) provides, "A person is guilty of robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts him in fear of immediate bodily injury; . . . ."

2 On direct examination, K.V. first testified that he saw the young man "and a few people" and then later testified that the man was "alone."

3 This was the first time K.V. had informed the police authorities about the incident.

4 In addition, the property taken was similar in that both were hand-held electronic equipment.