STATE OF NEW JERSEY IN THE INTEREST OF F.T a minor

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3834-07T43834-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF F.T.,

a minor.

 

Submitted September 1, 2009 - Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-725-08 and FJ-03-440-08.

Yvonne Smith Segars, Public Defender, attorney for appellant, F.T. (Ronald Appleby, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent, State of New Jersey (Jennifer Stonerod, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

F.T., born in 1990, was adjudicated delinquent by Judge Call on January 11, 2008, on three charges: theft, N.J.S.A. 2C:20-3(a); burglary, N.J.S.A. 2C:18-2; and obstruction, N.J.S.A. 2C:29-1. He was sentenced on January 23, 2008, to one year of probation, as well as fines totaling approximately $150.

Patrol Sergeant Thomas Reinholt of the Evesham Township Police Department received a radio dispatch at approximately 1:15 a.m. on August 25, 2007, that two suspects wearing dark clothing were observed going up and down driveways trying to open the doors of parked cars. When Reinholt responded to the area, at approximately 2:05 a.m., he saw two males, whom he believed to be juveniles, wearing dark clothing, walking west across Conestoga Drive onto the front yard of a home on that street. He pulled over and walked towards them because of the 10:00 p.m. curfew that Evesham Township imposes on persons under the age of eighteen. The suspects began to run as Reinholt approached. He chased them across the front yard of the home where he initially encountered them into the backyard of a home on Bartram Road. They scaled a four-foot chain-link fence separating the property on Bartram Road from a third house on Conestoga Drive. Reinholt, who kept his flashlight trained on the suspects, saw the smaller of them take a hard fall; the other suspect returned to assist. They continued their flight, eventually disappearing into the yard of a house on an adjoining street. At this point, a second officer had arrived to assist, and he observed two males running into a house on Champlain Road. Based on this information, Reinholt and the other officers responded to the residence and attempted to contact the owner of the property. Finally, the two suspects came out of the house.

Reinholt identified F.T. as one of the individuals he had been chasing. F.T. was wearing different clothing, but in the words of Reinholt, was "winded, sweaty and defensive." Reinholt did not charge the juvenile that night; however, he retraced his steps and located a DVD player and DVD of the movie "300," which were later collected by an evidence technician. The DVD player and movie were identified at trial by the owner of a vehicle that had been burglarized on Conestoga Drive that night.

F.T.'s older step-brother was home during the evening of August 24 through the early morning hours of August 25 when police arrived. He claimed that F.T. and his younger brother were downstairs watching TV in the basement while he was on the first floor of the home, also watching TV. The older step-brother was insistent that he never saw his younger brothers leave the basement, nor did he see them in possession of any property that did not belong to them. He also claimed that they were in their pajamas when police arrived, and that he made them put on shirts before they spoke with police.

Reinholt testified on rebuttal that he recalled the older step-brother saying he was in his bedroom when police arrived. Reinholt further recalled the older step-brother saying he did not hear the police at the door as he may have been asleep.

F.T. now asserts as errors:

POINT I: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II: THE TRIAL COURT IMPERMISSIBLY CHANGED THE CHARGE OF HINDERING APPREHENSION TO OBSTRUCTION OF LAW, IMMEDIATELY PRIOR TO TRIAL, DENYING DEFENDANT HIS CONSTITUTIONAL RIGHTS.

Preliminarily, we note that Rule 2:10-1 applies only to jury verdicts. The rule requires that motions for new trials be made before claims that the verdict was against the weight of evidence can be asserted. The rule states that a trial court's denial of motions for a new trial after a jury verdict will not be reversed unless "there was a miscarriage of justice under the law." R. 2:10-1.

Rule 2:10-2 delineates the appropriate standard of review where a trial court acts as the factfinder, as was the case in this juvenile proceeding. We only decide whether the court's findings could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proofs as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give deferential review to the trial court's credibility findings, which "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id. at 474. Only when we are "satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" should we reverse. State v. Johnson, supra, 42 N.J. at 162.

F.T. attacks Judge Call's conclusion that Reinholt was "wholly credible" and his more skeptical assessment of the testimony of F.T.'s older step-brother. This skepticism was based in part on the natural bias that flows from the familial relationship, and the fact that F.T.'s older step-brother was in charge of his younger siblings on the night of the car burglary. In our view, the trial court carefully scrutinized the proofs before making factual determinations. It was reasonable for Judge Call to conclude that Reinholt, who had no prior acquaintance with F.T. or his family, and no motive to lie, was more credible.

Reinholt's testimony that F.T. was "winded, sweaty and defensive" shortly after Reinholt chased a suspect towards F.T.'s home matching F.T.'s description, is substantial credible evidence. That Reinholt found stolen items when he retraced the path of the chase corroborates his testimony. In light of the deferential review to which credibility determinations are entitled, and the lack of any inherent contradiction in Reinholt's testimony, we conclude that Judge Call's findings could reasonably have been reached, considering the proofs as a whole.

F.T.'s second point is that the eleventh-hour amendment to the complaint, objected to by his trial attorney, denied him due process. Originally F.T. was charged with a violation of hindering, N.J.S.A. 2C:29-3b. The language of complaint FJ-03-440-08 states that F.T.: "[w]ith purpose to hinder his own apprehension, prosecution, conviction or punishment, [did] prevent or obstruct by means of flight, another from performing an act which may have aided in his discovery, apprehension, or in the lodging of a complaint, specifically by fleeing on foot from police during a burglary investigation and subsequent curfew violation." The amended charge alleged that F.T. was guilty of obstruction, N.J.S.A. 2C:29-1. This offense occurs when a person purposely "obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight." Ibid. Both charges, if lodged against an adult, would have been fourth-degree offenses.

The conduct described in FJ-03-440-08 was precisely that necessary to prove the offense of obstruction. The gravamen of the complaint was F.T.'s flight from a burglary investigation.

The amendment was necessary given the nature of the offense. Obstruction is the appropriate charge where an individual prevents or attempts to prevent his own prosecution by running from police. This is true even where the flight is from an investigatory stop. N.J.S.A. 2C:29-1; State v. Crawley, 187 N.J. 440, 456-57 (2006). At the trial, defense counsel acknowledged receipt of the original complaint and stated that he was familiar with the factual allegations.

The trial court allowed the amendment because he found it altered neither the State's proofs nor, by implication, any potential defenses. The trial judge permitted the amendment only after analyzing whether it would prejudice F.T. in any fashion, and determining that it did not.

Amendments to charges contained in a juvenile complaint are permitted so long as the essential acts which must be proven do not change. See State in the Interest of W.E.C., 81 N.J. 442, 449 (1979). As long as the State relies on the same factual allegations as contained in an original complaint, amendments will be permitted if no prejudice results to defendant. Ibid.

A court may amend a complaint "to correct an error in form or description of the offense intended to be charged . . . provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in the defense on the merits." R. 5:20-1(d). The amendment in this case fits into that category, as it does not charge different conduct on the part of the juvenile nor implicate separate defenses. Accordingly, we perceive no error as to this issue either.

 
Affirmed.

The order adjudicating F.T. delinquent, dated January 23, 2008, lists the offense as hindering, N.J.S.A. 2C:29-3(b), and not obstruction, N.J.S.A. 2C:29-1, in error.

(continued)

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A-3834-07T4

RECORD IMPOUNDED

October 13, 2009