STATE OF NEW JERSEY IN THE INTEREST OF R.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6060-05T46060-05T4

STATE OF NEW JERSEY

IN THE INTEREST OF R.S.,

Juvenile-Appellant.

_________________________________

 

Submitted August 14, 2007 - Decided August 22, 2007

Before Judges S.L. Reisner and Lyons.

On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. FJ-08-406-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Appellant, R.S., appeals from an order entered April 5, 2006 adjudicating him to be delinquent as an accomplice to the commission of a simple assault pursuant to N.J.S.A. 2C:2-6 and 2C:12-1a. R.S. also appeals from an order entered May 10, 2006 requiring him to pay restitution in the amount of $538 with credit to be received against such sum in the event one of the co-defendants makes restitution payments. We affirm.

The pertinent facts and procedural history are as follows.

At about 10:00 p.m. on July 30, 2005, two teenagers, A.B. and C.D., were walking down the street on their way to visit another friend. They had not gotten far when they encountered a group of five local teenagers walking toward them, R.S., L.P., G.T., J.M. and S.R. There was a prior history between L.P. and A.B., one of the teenagers walking down the street. The other teenager, C.D., who was aware of L.P.'s reputation, asked R.S. whether someone was going to get beaten up. R.S. replied that it was possible and that C.D. should leave. C.D. quickly walked back, A.B. did not. L.P. ordered A.B. to turn over to him anything he had in his pockets. A.B. refused and was knocked to the ground. L.P. kicked him in the head, grabbed his chain necklace, sat on him, and then began taking items out of his pockets as A.B. screamed for help. L.P. directed G.T., J.M., S.R. and R.S. to help him, by holding the victim's arms and keeping him quiet. No one complied with this, but they encircled the victim where he lay on the ground and several of them, according to A.B., kicked him in the head, back and stomach.

L.P. took A.B.'s cigarettes, two packs of cigars and the money he had in his wallet. The five boys then dispersed. C.D., who had gone home, called the victim's parents who then began to track down the assailants. Police arrived and began an investigation. A.B. sustained injuries to his eye, neck and back and, at the time of trial, was still receiving treatment for his injuries.

Soon thereafter, a detective interviewed L.P., G.T., J.M., S.R. and R.S. who all gave sworn statements. G.T stated that after A.B. said he would call the police during the attack, everyone started hitting him. Each of the other three boys denied that they themselves had assaulted A.B., but said the co-defendants had kicked him.

R.S. was charged in Gloucester County Juvenile Complaint No. FJ-08-406-06 with offenses that, if committed by an adult, would have constituted robbery (N.J.S.A. 2C:15-1a), second-degree aggravated assault (N.J.S.A. 2C:12-1b), conspiracy to commit robbery (N.J.S.A. 2C:5-2a), conspiracy to commit aggravated assault (N.J.S.A. 2C:5-2a), and endangering an injured victim (N.J.S.A. 2C:12-1.2a).

L.P., who was one of the five co-defendants, entered a guilty plea in December 2005. The four remaining co-defendants were tried in March 2006. At the trial, A.B. testified that R.S. had kicked him in the face, G.T. had kicked him in the head, and J.M. had kicked him in the back, but that S.R. had been standing a few feet away and had not really been involved in the assault.

Counsel for G.T. objected when A.B. testified that some of the other defendants also struck him, stating that the testimony was inconsistent with the discovery that was earlier provided. The other counsel joined in the objection. The court then reviewed the discovery that was earlier provided which, in particular, included a memorandum from a victim witness counselor who had interviewed A.B. by telephone and spoke to him once in the office prior to trial. A.B. testified that he had earlier told representatives of the prosecutor's office exactly which individuals had struck him. The memorandum, however, that memoralized this conversation (which is not included in the record provided to us) noted, according to the court, that "other boys were trying to grab [R.S.] and punch and kick him."

After an extended voir dire of the victim witness counselor and arguments by all counsel, the court, in response to the objection and a request for a new trial, found that it could not determine that the prosecutor or his staff were incredible, and that while the summary of the interview was not as detailed as it should have been, it did put all on notice that the other boys tried to grab the victim and punch and kick him.

The court also asked, at one point in the colloquy with counsel, if a recess or adjournment was being sought. No application for a recess or adjournment was made and the court, therefore, denied the application to strike the testimony or to declare a mistrial based on prosecutorial misconduct.

At the close of the State's case, the court dismissed all charges against S.R. The trial judge acquitted the three remaining co-defendants of robbery, second-degree aggravated assault, conspiracy to commit either of those offenses, and endangering an injured person. The court adjudicated G.T. delinquent as an accomplice to the commission of a third-degree aggravated assault and adjudicated R.S. and J.M. delinquent as accomplices to the commission of a simple assault.

On April 5, 2006, the judge entered a disposition for R.S. of one year "Court Rule" subject to the performance of sixteen days of community service, compliance with a court-ordered curfew, and having no contact with either the victim, or two of his co-defendants, L.P. and G.T.

The "Court Rule" disposition was entered pursuant to R. 5:24-3 and N.J.S.A. 2A:4A-43b(1) which permits the adjournment of a formal entry of disposition of a case for a period not to exceed twelve months for the purpose of determining whether the juvenile makes a satisfactory adjustment and, if during the period of continuance the juvenile makes such an adjustment, the court will dismiss the complaint.

On May 10, 2006, the trial judge conducted a restitution hearing regarding R.S. and J.M. At that time, she entered a restitution order in the total amount of $2,150.77 and allocated $538, or one-quarter of the total, each to R.S. and J.M., with that amount to be reduced dollar-for-dollar by the amount that is actually paid in the future by L.P., whose restitution amount at that time had not yet been set. That order was entered pursuant to R. 5:24-3 and N.J.S.A. 2A:4A-43b(9), which authorizes a court to order a juvenile to make restitution to a person who has suffered loss resulting from personal injury or damage to property as a result of the offense for which the juvenile has been held delinquent. The statute directs the trial court to determine a reasonable amount and the terms and conditions of any restitution ordered. On August 1, 2006, this appeal ensued.

On appeal, R.S. advances two points:

POINT I:

[R.S.'S] CONVICTION MUST BE REVERSED BECAUSE OF THE STATE'S FAILURE TO PROVIDE APPROPRIATE DISCOVERY.

POINT II:

THE SHARE OF RESTITUTION ALLOCATED TO [R.S.], AS WELL AS THE METHOD ORDERED FOR ITS CALCULATION, ARE BOTH GROSSLY INEQUITABLE. THE ORDER MUST BE VACATED AND A NEW ORDER ENTERED IMPOSING A FIXED ALLOCATION OF $215.00 IN RESTITUTION ON [R.S.]. [(Not raised below.)]

In R.S.'s first point, he argues that the prosecutor's failure to turn over accurate and detailed summaries of the victim's statement to the victim witness counselor listing specific ways in which three of the four defendants assaulted him constituted a violation of R. 3:13-3(g), the continuing duty of a prosecutor to provide discovery to defense counsel. R.S.'s counsel argues that that violation merits a new trial. We disagree.

The decision to grant or deny a motion for a mistrial lies within the discretion of the trial court. See State v. Winter, 96 N.J. 640, 646-47 (1984); State v. DiRienzo, 53 N.J. 360, 383 (1969); Greenberg v. Stanley, 30 N.J. 485, 503 (1959). The decision of the court, therefore, is to be reviewed under the abuse of discretion standard.

In this case, the trial judge, when presented with defense counsel's objection, held a hearing to determine the surrounding facts and circumstances. She was dissatisfied with the State's handling of memorializing the interviews of A.B., but did not find either the prosecutor or his staff to be incredible in their explanations of their actions. Further, the trial judge specifically noted on more than one occasion, that the summary that was provided put all defense counsel on notice that their client may well be accused of striking the victim. The court specifically asked if there was a request by defense counsel for time to investigate further and no counsel raised or sought such time. The trial court, therefore, directed the trial to proceed and allowed extensive cross-examination of A.B. by all counsel. A mistrial would certainly have been a drastic remedy in this situation when there was no manifest and harmful prejudice to defendant. See State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2002).

A court has discretion when formulating a sanction for discovery violations. Ibid. "An adjournment or continuance is a preferred remedy where circumstances permit." Ibid. In this case, an offer for an adjournment was alluded to by the court and not pursued by any co-defendant. Each of the co-defendants was able to cross-examine not only A.B. extensively, but also the author of the alleged offending discovery summary. In light of these facts, we fail to see how R.S. was prejudiced by any flaws in the discovery and we do not find the trial judge's proceeding to be an abuse of discretion.

The State argues that R.S.'s argument on this point should be dismissed because the appeal is not from a final determination given the fact that under N.J.S.A. 2A:4A-43b(1), should a juvenile make a satisfactory adjustment, the case will be dismissed. We disagree. We have before us a final order that embodies an adjudication and a disposition pursuant to statute. See N.J.S.A. 2A:4A-43b(1). The trial court's adjudication and disposition regarding R.S. imposed sixteen days of community service, a curfew and restitution. The rights and claims of all the parties have been fully addressed in this case. Moreover, to deem this appeal interlocutory would require the juvenile to observe and comply with all of the conditions in the judge's disposition order before being provided an opportunity to contest whether the underlying adjudication of delinquency has merit. We are satisfied that an adjudication and disposition under N.J.S.A. 2A:4A-43b(1) constitutes a final judgment for purposes of appeal. See R. 2:2-3.

R.S. next argues that the order for restitution was "so unjust as to require that the restitution order as to [R.S.] be vacated and the matter remanded for readjustment." N.J.S.A.

2A:4A-43b(9) authorizes the court to order a juvenile to make restitution to a person who has suffered loss resulting from personal injuries as a result of the offense for which the juvenile has been adjudicated delinquent. In this case, no one contested the total amount of unreimbursed medical expenses at issue. N.J.S.A. 2A:4A-43b(9) provides that "the court may determine the reasonable amount, terms and conditions of restitution." The standard for our review, therefore, is whether the judge's determination was reasonable in light of all the facts and circumstances present. We note at the outset that the statute states in mandatory terms that, "if the juvenile participated in the offense with other persons, the participants shall be jointly and severally responsible for the payment of restitution." N.J.S.A. 2A:4A-43b(9). The court in this case did not impose joint and several liability, but rather provided that R.S. would be responsible for one-quarter of the total amount due. It also went further and specifically provided that one-quarter amount would be reduced pro rata among the other three co-defendants by any monies paid by L.P. in restitution. In other words, if L.P. were to pay $90 toward restitution, the $538 restitution amount by R.S. would be reduced by $30.

We note that the trial judge specifically pointed out that her finding of delinquency on R.S.'s behalf focused on his actions in surrounding and confining A.B. while he was being struck. The trial court specifically adjudicated R.S. guilty for being complicit in a simple assault. The complicity statute, N.J.S.A. 2C:2-6 provides that "a person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." In this case, the trial court's adjudication made it clear that R.S. was culpable for the injuries to the victim directly inflicted by L.P. because he confined the victim and prevented his flight during the assault. R.S., therefore, has culpability with respect to the assault of A.B. by L.P. pursuant to the complicity statute. See N.J.S.A. 2C:2-6.

R.S. argues that a fixed amount should be ordered and the amount currently ordered should be reduced. There is no factual or legal basis for R.S.'s assertion that he should pay no more than ten percent of the total. The trial judge's determination of the amount was reasonable. The trial judge set a maximum amount for which R.S. would be responsible, $538. We point out that the judge may well have required joint and several liability for the full amount but did not do so.

We also note that the objection to the restitution amount was not raised below and on that basis could be considered waived. See State In Re R.V., 280 N.J. Super. 118, 121 (App. Div. 1995).

We are satisfied, therefore, that both with respect to R.S.'s argument regarding the alleged discovery violation and with respect to the amount of restitution, the trial judge properly exercised her discretion and consequently we affirm.

 

We have identified the two teenagers as A.B. and C.D. for purposes of this opinion, as opposed to using either their actual names or initials.

It should also be noted that N.J.S.A. 2A:4A-43b(9) provides, "if the juvenile participated in the offense with other persons, the participants shall be jointly and severally responsible for the payment and restitution."

(continued)

(continued)

12

A-6060-05T4

RECORD IMPOUNDED

August 22, 2007