STATE OF NEW JERSEY IN THE INTEREST OF D.A.J.(Improperly Designated A.D.J.) v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4585-3715-03T404T4

STATE OF NEW JERSEY IN

THE INTEREST OF D.A.J.

(Improperly Designated A.D.J.),

Juvenile-Appellant.

_____________________________

 

Submitted November 30, 2005 - Decided January 27, 2006

Before Judges Grall and Lihotz.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, Docket No. FJ-07-1097-05.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Barbara A. Hedeen,

Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County

Prosecutor, attorney for respondent

(Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

D.A.J appeals from an adjudication of delinquency for conduct that, if committed by an adult, would constitute receiving stolen property, contrary to N.J.S.A. 2C:20-7. Additional charges of delinquency had been filed against the juvenile for conduct that if committed by an adult constituted: burglary of an auto contrary to N.J.S.A. 2C:18-2, criminal mischief by damaging the door of the auto contrary to N.J.S.A. 2C:17-3 and possession of implementation to effectuate burglary contrary to N.J.S.A. 2C:5-5.

After a bench trial and the adjudication on the charge of receiving stolen property, D.A.J. pled guilty to burglary; the remaining charges were dismissed. The court imposed a twenty-four month commitment (with credit for time served), concurrent on each complaint, to the Jamesburg Training School for Boys. Mandatory fines and penalties were assessed, including $60 for the Violent Crimes Compensation Board and $30 for the Law Enforcement Officers Training Fund. Fingerprints, photographs, and a DNA sample were required. At a later restitution hearing, D.A.J. was ordered to pay $250 to the victim.

D.A.J. raises the following issues on appeal:

I. the adjudication of delinquency

must be reversed because the state

failed to prove beyond a reasonable

doubt that [D.A.J.] had control of

the automobile and thus that he had

"received" the vehicle within the

meaning of n.j.s.a. 2C:20-7.

II. the trial judge violated the juvenile's

right to due process and a fair trial

by finding that his failure to

"Controvert" the evidence offered by

the state was proof that he was guilty

of receiving stolen property. u.s.

const. amend. v, vi, xiv; N.J. Const.

Art. I, Paragraphs 1,9,10.

The following evidence was presented during a bench trial in the Family Part. On September 6, 2005, Kymberly Holland parked her 2000 Volkswagen Passat outside of a friend's house at approximately 12:30 a.m. When she awoke, the car was gone. She reported the vehicle stolen and filed a police report.

At about 4:30 a.m. that same day, Officers Antonio Tavares and Angelo Vecchione, of the Newark Police Department were on uniform patrol. The officers were dispatched to the intersection of Van Buren and Clifford Streets when they spotted D.A.J. and two other youths entering a vehicle.

Officer Tavares described the car as stopped about three blocks from the corner of the intersection. As the officers approached the car, the driver accelerated, striking the front right passenger side of the police vehicle, then fled the scene.

With the officers in pursuit, the vehicle crashed into several parked cars before stopping. Officer Tavares observed the driver of the vehicle exit from the driver's side door, and D.A.J. and the other passenger exit through the passenger side front window. A chase on foot ensued, leading to the apprehension and arrest of the suspects by a police backup unit assisted by Officer Tavares. The vehicle was later identified as and proven to be the Volkswagen Passat owned by Kymberly Holland.

Officers Tavares and Vecchione both observed damage to the exterior of the vehicle, as well as the ignition and the driver's side door handle and lock. Neither officer was able to identify where D.A.J. was seated as a passenger in the vehicle.

Backup officers executed the accident reports and tow sheets, as Officers Tavares and Vecchione were injured at the scene.

On these facts, the court entered its findings pertinent to the elements in this adjudication as follows:

The Court finds that on September 16th, 2004, Kymberly Holland was the lawful owner of a four-door green 2000 Volkswagen Passat automobile as is indicated on Exhibits S-1, 2, and 3.

. . . .

With reference to the Passat, the Court finds that none of the three juveniles had permission from Ms. Holland, the lawful owner of the automobile, to possess and/or use the vehicle nor did Ms. Holland give anyone else permission to possess and/or use the automobile on September 16th, 2004.

. . . .

Accordingly, the Court does find that the 2000 Passat was stolen from its parked location in Irvington on September 16th, 2004, sometime between 12:30 a.m. and 4:30 a.m. that evening.

. . . .

The Court does also find that all three of the juveniles knew or ha[d] reason to believe that the 2000 Volkswagen Passat had been stolen. Specifically, the Court notes the damage to the automobile; specifically, the ignition, the handle and lock on the driver's door.

Also, the Court notes that the incident occurred at 4:30 in the morning and that when first observed, the three juveniles were apparently involved in some suspicious activity to say the least, and of course, the Court also notes the ultimate result or the actions following the juvenile's... specifically, the chase and attempted eluding of the police.

The Court also notes that the driver of the automobile, [Z. R.] was sixteen years of age.

. . . .

With reference to [D. A. J.], again, the Court does find and/or conclude that based on the aforementioned findings of fact that the State has, in fact, proved by -- beyond a reasonable doubt all of the essential elements of violation of N.J.S.A. 2C:20-7 and, accordingly, the juvenile is found to be guilty of that charge, and accordingly, adjudged to be delinquent. . . .

In reviewing the record, we conclude the trial court's failure to articulate its findings on each element of the charged offense based upon the evidence presented, specifically the failure to make findings on the element of "possession" or "control," requires us to reverse the adjudication and remand for further proceedings.

The Code of Criminal Justice defines the offense of

receiving stolen property as:

 
a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.
 
 
[N.J.S.A. 2C:20-7]

Thus, in order to conclude D.A.J. received stolen property the State is required to prove beyond a reasonable doubt the necessary elements of the offense: defendant acquired possession of or control over property which was stolen, and defendant knew or had reason to know the property was stolen. State v. McCoy, 116 N.J. 293, 298 (1989); State v. Kimbrough, 109 N.J. Super. 57, 65 (1970).

The statute and case law aid the interpretation of these elements. The Supreme Court has resolved the status of the property holding that "a person only could be found guilty of receiving stolen property if the property was actually stolen." State v. Hodde, 181 N.J. 375, 382 (2004), (emphasis in original). Knowledge that the vehicle was stolen can be inferred from "suspicious circumstances" (such as a "popped" ignition, a broken lock, obvious attempts to avoid contact, driving down a one way street, high speed flight, and pursuit on foot), State v. Moore, 330 N.J. Super. 535, 544, certif. denied, 165 N.J. 531 (2000). State v. Rowe, 57 N.J. 293, 301 (1970). The receipt of the stolen property, defined as "acquiring possession" or "control" can be actual, "intentional control and dominion", N.J.S.A. 2C:20-7a; McCoy, supra, 116 N.J. at 300; Kimbrough, supra, 109 N.J. Super. at 65; State v. Serrano, 53 N.J. 356, 359 (1969); or constructive. McCoy, supra, 116 N.J. at 299.

An adjudication of delinquency for this offense however must be based on the trial court's conclusion that the State has established each element of the offense alleged, beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368, 374 (1970). For that reason, we must "evaluate [the] elements the judge considered, just as instructions are reviewed in a jury trial to determine legal error." In re L.W., 333 N.J. Super. 492, 498 (App. Div. 2000). While "the judge need not articulate detailed, subjective analyses of factors such as demeanor and appearance to support credibility on each and every witness," effective appellate review requires specific findings regarding the elements of the offense. Id. at 499. If the judge is mistaken as to the elements, then the adjudication cannot be affirmed. See State v. Locurto, 157 N.J. 463, 470 (1999) (the trial court must "state clearly its factual findings and correlate them with the relevant legal conclusions.") (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980))); L.W., supra, 333 N.J. Super. at 498 (explaining the need for factual findings related to the elements of the offense).

While the judge specifically addressed the factual findings supporting the element that property was stolen and the element of D.A.J.'s knowledge that the property was stolen, the factual findings setting forth the control element is not apparent. The court noted D.A.J. was present in a vehicle within hours of its theft, but articulated no other facts to satisfy this requisite for an adjudication. D.A.J.'s presence in the stolen vehicle alone fails to satisfy the element of possession or control. State v. Alexander, 215 N.J. Super. 523, 529 (App. Div. 1987); McCoy, supra, 116 N.J. at 303 (1989); State v. Humphreys, 54 N.J. 406, 413 (1982); Moore, supra, 330 N.J. Super. at 538; Serrano, supra, 53 N.J. at 358 (1969). Thus, "intentional control and dominion" by D.A.J. of the vehicle was not found by the court. McCoy, supra, 116 N.J. at 300; Kimbrough, supra, 109 N.J. Super. at 65 (1970); Serrano, supra, 53 N.J. at 359.

Accordingly, without retaining jurisdiction, we vacate the adjudication of delinquency for receiving stolen property and remand for further findings of fact and conclusions of law. Since we do not now find insufficient evidence to sustain the adjudication, there are no jeopardy consequences precluding such a remand. L.W., supra, 333 N.J. Super. at 499.

 

(continued)

(continued)

9

A-4585-04T4

RECORD IMPOUNDED

January 27, 2006