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DOCKET NO. A-0088-05T40088-05T4






Submitted: October 17, 2006 - Decided December 12, 2006

Before Judges Kestin and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FJ-18-1100-05.

Yvonne Smith Segars, Public Defendant attorney for appellant (Jodi L. Ferguson, Assistant Deputy Public Defender, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).


We review the juvenile's appeal of an adjudication of delinquency for conduct that, if committed by an adult, would constitute the crime of fourth degree bias intimidation, N.J.S.A. 2C:16-1a. N.R. argues the State failed to present sufficient proof to support the adjudication of bias intimidation, warranting reversal. We disagree and affirm.

The evidence presented during the bench trial in the Family Part showed that on March 22, 2005, Michele Arango, accompanied by her friend Mildred Prado, drove to the North Plainfield Public Library. Arango stopped her vehicle on Grove Street to allow approximately five male teenagers to cross. N.R., identified by Arango as one of these teens on a bicycle, pointed at Arango while he crossed the street, "used the F word and then [said] lesbian."

Arango approached N.R. in the library asking him what he said on the street. He first said, "[n]othing" and laughed, but as Arango walked away, N.R. replied "[y]ou're a lesbian." Later, in the library computer area, Arango stated N.R. was speaking to his friends, who pointed at her and laughed while N.R. made comments. She again heard him use the word "lesbian." Arango decided to leave the library. She "felt unsafe [and] uncomfortable" because N.R. repeatedly called her a lesbian. Arango asked another student to identify N.R. because she intended to "go to the police." While Arango and Prado walked to the car, N.R. and his friends made threatening comments to Arango.

Prado stated N.R. twice walked past her and Arango and repeated the word "lesbians." Prado also described the scene when she and Arango were leaving the library, stating that approximately fifteen teenage boys had gathered with N.R., one of whom confronted Arango. Prado described Arango as "nervous"

and stated that she "was shaking."

N.R. also testified. He explained he went to the library with one friend to meet another friend. Six additional friends came to the library. While riding his bicycle to the library, N.R. passed Arango in her vehicle. N.R. asserted he told his friend, in a conversational tone, that he had "heard she was a lesbian." N.R. acknowledged he spoke to Arango while in the library, when she asked him about the comments he made outside. However, N.R. maintains that when he and his friends left the library, they were not near Arango or her automobile and he did not hear the comments made by others because he was wearing headphones. N.R. stated Arango approached him and "was cursing at me and saying that she was going to get . . . like [fifteen] guys to come after me and beat me up."

The trial judge found Arango "to be a highly credible witness. She was visibly shaken by the testimony[] . . . and it is clear . . . she suffered a traumatic event on March 22, 2005." Prado was also found to be credible and had a "demeanor that suggested an earnest desire to present the truth." Any disparities between the facts related by the two women were found to be "within a reasonable margin of error based upon the ability to recollect."

The trial judge found N.R.'s testimony incredible.

Beginning with his description of the initial encounter with

Arango on the street, prior to reaching the library, Judge Bartlett addressed the lack of credibility of N.R.'s testimony stating:

And what makes it incredible is that if [Arango] was driving a car

. . . [and had] the car window open, just the noise of the car going by and general traffic noise certainly would have precluded [Arango] from hearing a statement [N.R.] made in a low voice to his friend on the front of the bicycle on which he was riding.

So that begs the question, how did [Arango] know [N.R.] called her a lesbian? He didn't go up to her later and say, ["]I called you a lesbian.["] She knew it, and . . . ultimately[,] as a result of the combination of that startling event and subsequent events[,] she went to the police.

Reviewing the elements of the offense, N.J.S.A. 2C:33-4, the trial judge concluded N.R.'s repeated comments were designed to embarrass, annoy or intimidate. Further, the trial judge concluded:

In combination with the presence of [N.R.'s] friends, both outside the library, in the library, and then again outside the library, this [c]ourt finds [N.R.] knew perfectly well that his group of friends with him would have the effect of intimidating anybody whom they would address in any kind of obnoxious manner.

. . . .

He had his friends laughing, they

were clearly part of this whole scene, they were interacting or engaging in it by laughing and hanging with him as he did this, pointing to the victim, Ms. Arango, and that set of circumstances, that picture, compels the result that this juvenile's purpose was to intimidate [Arango] by calling her a "fucking lesbian," and that purpose satisfies both the bias intimidation statute and the harassment statute.

N.R. was adjudicated delinquent and placed on probation for one year, required to perform thirty-five hours of community service, write a letter of apology to the victim, have no contact with Arango or Prado, submit a DNA sample and fingerprints, and pay the requisite assessments.

Appellate review of a Family Part judge's decision in a juvenile trial is limited to a determination of whether the factual findings made could reasonably have been reached on sufficient credible evidence present in the record, given the burden of proof, which is proof beyond a reasonable doubt. See State v. Johnson, 42 N.J. 146, 161-62 (1964); State v. J.T., 294 N.J. Super. 540, 544 (App. Div. 1996). We accord deference to family court factfinding "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility because, the Family Part judge, having heard the case and seen and observed the witnesses, has a better perspective than a reviewing court in evaluating the veracity of witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (1988); P.B. v. T.H., 370 N.J. Super. 586, 601 (App. Div. 2004). The question is not whether we would reach to a different conclusion. Johnson, supra, 42 N.J. at 162. We intervene only if "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand . . . correction." Ibid.

Our review of the record shows that the evidence presented supported the adjudication of delinquency as articulated by Judge Bartlett in her oral decision issued on July 19, 2005.

See J.T., supra, 294 N.J. Super. at 546. The trial court set forth those facts supporting her findings on each element of the offense, grounded in the evidence adduced at trial. R. 1:7-4(a). Further, Judge Bartlett's credibility determinations were specifically articulated, citing the testimony of the juvenile or the witness along with the accompanying facts and circumstances relating to that testimony, all of which supported the trial judge's determination of credibility.







December 12, 2006