STATE OF NEW JERSEY IN THE INTEREST OF T.T Juvenile-

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NOT FOR PUBLICATION WITHOUT THE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 T.T.,

Juvenile-Appellant.

__________________________________________________

February 11, 2016

Submitted January 12, 2016 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket Nos. FJ-18-103-04, FJ-18-462-13, and FJ-18-512-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent State of New Jersey (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

T.T., a juvenile, appeals from adjudications of delinquency for acts which, if committed by an adult, would have constituted the offenses of fourth-degree criminal sexual contact and third-degree endangering the welfare of a child.

On appeal, T.T. presents three arguments

point i

the adjudication of delinquency must be reversed because the evidence does not support a finding that the juvenile committed the crimes of fourth-degree criminal sexual contact and third-degree endangering the welfare of a child.

point ii

t.t.'s statements should have been suppressed because they were involuntarily given.

point iii

a correct weighing of all factors does not support the imposition of a three-year term of probation and registration under Megan's law.

Based on our review of the record and applicable law, we are not persuaded by any of T.T.'s arguments and affirm.

We glean the following facts from the trial record. On April 1, 2013, at approximately 5:30 p.m., D.H. was on her way to a gym with her three children, ages nine, seven, and four. As D.H. was entering the vestibule of the gym, a person she later identified as T.T. came up from behind her, grabbed her with both hands in the area of her vagina, and began "humping" her from behind. All three of D.H.'s children observed the incident. The two youngest children "froze" while the nine-year-old, O.H., yelled at T.T., "get off my mom." T.T. then ran away with O.H. in pursuit.

D.H. called the police and later met with Detective Michael Acquaviva of the Raritan Police Department. After D.H. described her assailant as a black male with thick round glasses, wearing a maroon colored hoodie with yellow lettering, black pants, and a back pack, Acquaviva suspected her attacker was T.T., as he "had dealt with [T.T.] in the past with the same type of event."

Acquaviva went to T.T.'s home and spoke with his mother, but T.T. was not there. Acquaviva was then joined by Officer Everett Holt. The officers found T.T. with his father and, after informing them of the investigation, asked them to come to Raritan Police Headquarters. T.T.'s father agreed and drove his son to police headquarters. T.T. was wearing a maroon hoodie with yellow letters, and black, thick-framed glasses.

T.T. and his father1 were brought into an interview room and Detective Acquaviva advised T.T. of his Miranda2 rights. As Detective Acquaviva read each right, T.T. indicated that he understood the right and initialed each on a printed "Miranda Warning" form. The completed form was signed by both T.T. and his father.

T.T. admitted that he grabbed a woman near the gym earlier that night, but claimed that he grabbed the woman's stomach, not her vagina. T.T. also admitted that he rubbed himself against the woman's buttocks. T.T. stated that when he saw the woman in front of the gym, he recalled a pornographic film he had seen two years earlier, but denied that he experienced sexual gratification from the incident.

Prior to trial, the judge conducted a hearing on T.T.'s motion to suppress the statements he made to police. T.T. testified that when he first arrived at Raritan Police Headquarters, he was taken into a holding room where Officer Holt handcuffed him to a bench and stated "if [T.T.] did something to him or his family members he would hurt [T.T.]." T.T. also claimed Officer Holt said "if he went to jail it would be worth it." T.T. said that Officer Holt's alleged statements scared him and that the message he took from the interaction was that he had to talk to the police.

The trial judge found that both T.T. and his father understood the Miranda warnings, neither asked for an attorney or to stop the interview, and there were no threats or coercion. The judge listened to an audiotape of T.T.'s statement and noted that she did not hear anything in T.T.'s tone of voice that would indicate that he was afraid. The judge found T.T.'s testimony was not credible and rejected the argument that both parents should have been present in the interview room.

The judge also found that T.T. was not prohibited from leaving the interview but, whether T.T. was in custody or not, he was fully advised of his Miranda rights and he knowingly, intelligently, and voluntarily waived those rights and proceeded to answer questions without coercion or duress.3

At trial, O.H. testified that he was with his mother and his two siblings when he saw his mother being "grabbed around the waist and . . . picked up." O.H. heard his mother yell when she was attacked, and he was "scared" and "concerned" for her.

D.H. testified that she was able to get a good look at the person who attacked her and had a firm recollection of what he looked like. She identified T.T. in court as her assailant. D.H. also testified that her three children observed the attack and, since the incident, her youngest views everyone with a hoodie as a "bad man."

Finally, Detective Acquaviva testified that he interviewed D.H. approximately one-half hour after the attack. From the description D.H. provided, Acquaviva suspected that T.T. was the assailant and began to look for him. Acquaviva explained that he saw no need to ask D.H. to attempt to identify T.T. in a lineup or a photo array after T.T.'s admissions.

The trial judge adjudicated T.T. delinquent on both the sexual contact and endangering counts. The judge found that identification was "not an issue" because of T.T.'s admissions and D.H.'s in-court identification, which the judge found reliable.

At the time of the April 2013 incident, T.T. had been charged in a separate complaint (March 2013 Complaint) with an act of delinquency, which, if committed by an adult, would have constituted fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The complaint charged that on March 20, 2013, T.T. observed a woman in the parking lot of a CVS Pharmacy in Manville, became sexually aroused, and ran up behind the woman and grabbed her back pocket. When the woman screamed, T.T. ran off.

A third complaint (June 2013 Complaint), charged that on June 15, 2013, T.T. approached a woman in a pedestrian tunnel in Manville and grabbed her around the waist, rubbing his crotch up against her buttocks.

T.T. resolved the two other complaints through a negotiated plea agreement whereby he pled guilty to fourth-degree criminal sexual contact under the June 2013 Complaint and an amended charge of attempted criminal sexual contact in the March 2013 Complaint. The plea agreement provided that the State would dismiss the remaining charges and recommend that T.T. be placed on probation with a condition that he enter the Juvenile Justice Commission, Pinelands Residential Community Home.4

At sentencing, T.T.'s attorney asked the judge to impose the three-year probationary term "and as a condition of probation have him enter the Pinelands program . . . ." The judge noted that T.T. had two prior "similar" juvenile adjudications in August and December 2011, both for fourth-degree criminal sexual contact. T.T. pled guilty to both complaints, received one year probation, and was placed in a residential treatment program. The judge also noted T.T.'s statement in the juvenile predisposition report that he gets "uncontrollable impulses where his mind is telling him not to do something but he cannot control his desires."

The judge placed T.T. on probation for three years on each count, with the terms to run concurrently. The judge also ordered that T.T. enter and successfully complete the Fields program at the Pinelands Residential Community Home. T.T. was also required to register as a sex offender under Megan's Law, N.J.S.A. 2C:7-2.

T.T. now argues that the evidence does not support the judge's finding that he committed the sexual contact and endangering offenses. T.T. claims that because the victim did not identify him in a line-up, show-up, or photo array, and because the statements made to Detective Acquaviva should be suppressed, there was not enough evidence to find him guilty.

Our review of the findings of fact of a trial judge sitting without a jury is limited, and we review the record to determine whether the testimonial or documentary evidence supports the judge's findings of fact. State v. Locurto, 157 N.J. 463, 470-71 (1999). We will not disturb the factual findings and legal conclusions of a trial judge unless "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., 65 N.J. 474, 484 (1974).

After D.H. was attacked, she provided a detailed description of her assailant to police. From her description, Detective Acquaviva immediately suspected T.T. because he "had dealt with [him] in the past with the same type of event." Acquaviva testified that he did not ask D.H. to view a line-up, show-up, or photo array because T.T. "confessed to his involvement in the incident."

During trial, D.H. identified T.T. as her assailant. This identification and T.T.'s admissions constitute compelling evidence of his guilt on the sexual contact charge.

The proof supporting the endangering charge was also substantial. Third-degree endangering the welfare of a child requires proof that the victim was a child and defendant knowingly engaged in sexual conduct which would impair or debauch the morals of a child. N.J.S.A. 2C:24-4(a)(1). We are satisfied that T.T.'s actions constituted sexual conduct upon D.H. within the meaning of N.J.S.A. 2C:24-4(a)(1). State v. Perez, 177 N.J. 540, 553 (2003).

The trial judge correctly noted that the State was not required to prove that T.T.'s conduct actually impaired or debauched the morals of the children. To prove the commission of endangering under N.J.S.A. 2C:24-4(a)(1), the State was required to prove only that T.T.'s actions "likely would impair or debauch the morals of a child in the community[,]" and was not required to prove actual impairment. State v. Hackett, 166 N.J. 66, 83 (2001).

Based upon our review of the record, we conclude that there was substantial credible evidence supporting the court's conclusion that T.T.'s actions had a tendency to impair or debauch the morals of D.H.'s young children. T.T. approached D.H. from behind, used both of his hands to grab her vagina, pressed his body against her, and "humped" her from behind. T.T.'s conduct constituted an aggressive simulated sex act that he committed in the presence of D.H.'s three young children. D.H.'s oldest child yelled at defendant and chased him while her other two were scared and "froze." Afterward, the youngest child had lingering effects and viewed anyone wearing a hoodie like defendant as a "bad man." Under any reasonable community standard, T.T.'s conduct likely would impair or debauch the morals of D.H.'s three children. Ibid. We are satisfied that the proofs were adequate to support both of the adjudications of delinquency.

T.T. next argues that his statements should have been suppressed because they were the product of coercion by Officer Holt. T.T. claims that he was handcuffed to a bench, threatened before being brought into the interrogation room, and his statement should have been suppressed because his waiver of his Miranda rights was not made voluntarily. Detective Acquaviva denied that any threats or coercion took place. The conflicting testimony was resolved by the trial court who found that T.T.'s testimony was not credible. Moreover, the judge heard T.T.'s audiotaped statement and found nothing to indicate that T.T. was afraid.

The judge here properly considered T.T.'s age, intelligence, and the fact that he had been previously read and understood his Miranda rights. The judge noted that the audiotape confirmed that Detective Acquaviva read each right to T.T. and ascertained that he understood the right. T.T. not only initialed beside each box he checked, but he and his father also signed the bottom of the form below the waiver statement.

The judge also considered the length of the interview, which lasted approximately ten minutes, and Detective Acquaviva's testimony that T.T. did not appear to be under the influence of alcohol or any narcotics. The court concluded that both T.T. and his father appeared to understand the warnings and neither requested an attorney. The court's findings are adequately supported by the competent, relevant, and reasonably credible record evidence.

Finally, T.T. claims that his three-year probation term and Megan's Law registration is not justified when all relevant factors are weighed. He argues that there was no proof that D.H.'s children suffered any long-term effects from witnessing their mother being grabbed, and the court erred in finding that he is likely to commit these kinds of offenses again.

We note initially that this sentence was agreed to as part of the plea agreement and is therefore presumed to be reasonable. State v. Fuentes, 217 N.J. 57, 70-71 (2014). Moreover, in advocating for this sentence, defendant's trial counsel stated that T.T. is "well-suited for the [Pinelands] program. He wants to go there [and] he thinks that he would benefit, after being interviewed by the program." When the attorney for the State indicated that the three-year probationary term would begin immediately and T.T. would likely continue on probation for eighteen months after his release from the Pinelands program, T.T.'s counsel indicated that T.T. did not object to continuing the term of probation after his discharge from Pinelands.

In determining an appropriate disposition, the Juvenile Code requires a sentencing judge to consider aggravating and mitigating factors in N.J.S.A. 2A:4A-44(a). Here, the judge found the following aggravating factors: the character and attitude of the juvenile indicate that he is likely to commit another delinquent or criminal act; the juvenile's prior record and the seriousness of any acts for which he has been adjudicated delinquent; the need for deterring the juvenile and others from violating the law; the threat to the safety of the public; and the impact of the offense on the community. N.J.S.A. 2A:4A-44(a)(1)(c),(d),(g),(k), and (l).

T.T. challenges these findings and claims that the judge ignored the mitigating factors that T.T. was not receiving the proper medication and was traumatized by viewing a pornographic movie two years earlier.

We review a judge's disposition to determine whether it could have been reasonably reached upon the evidence presented. State v. Roth, 95 N.J. 334, 365-66 (1984). A disposition will be affirmed if the aggravating and mitigating factors identified by the judge are supported by competent and credible evidence in the record. Ibid.

Regarding the likelihood that T.T. will commit another offense, the judge noted that, in addition to the three matters before her for sentencing, T.T. had two prior similar offenses from 2011. In the juvenile predisposition report, T.T. could not explain why he chose D.H. as a victim. He admitted to uncontrollable "impulses" and said he could not resist the "urges" which were triggered regardless of the physical attributes of the woman.

The judge found that the long-term effect of witnessing this incident on D.H.'s youngest son is unknown, but noted the child "is afraid of men in sweatshirts" and that the children don't want to go to the gym where the attack occurred. O.H. chased after T.T. and testified at trial that he was scared for his mother at the time of the attack. T.T.'s claim that no harm came to these children and that they "saw nothing," is untethered to any record evidence.

We are satisfied that the trial court's findings, including the impact of the offense on D.H.'s children, are well supported by substantial credible evidence in the record. T.T. received the benefit of the sentence he bargained for and was referred to a treatment facility he desperately needed. His remaining arguments are without sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(2).

Affirmed.

1 T.T.'s mother was also present at police headquarters but waited in the lobby. Detective Acquaviva testified that there was not enough room for both parents to be present in the interview room and he believes there was some discussion as to which parent would accompany T.T.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 When pressed by T.T.'s counsel to determine whether T.T. was in custody, the judge determined, "based on the testimony of the officer who I find to be credible, that [T.T.] was not in custody."

4 Pinelands is described as an eighteen-bed, residential treatment program for males between the ages of fourteen and eighteen with a history of sex offenses. http://www.nj.gov/oag/jjc/specialized.html#offenders