STATE OF NEW JERSEY IN THE INTEREST OF M.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5829-07T45829-07T4

STATE OF NEW JERSEY IN THE

INTEREST OF M.A.,

Juvenile-Appellant.

_______________________________

 

Submitted November 10, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Passaic County,

Docket No. FJ-16-2421-08.

Yvonne Smith Segars, Public Defender, attorney

for M.A. (Abby P. Schwartz, Assistant Deputy

Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor,

attorney for State of New Jersey (Steven E. Braun,

Chief Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Following a bench trial, appellant M.A. was adjudicated delinquent of an offense that if committed by an adult would constitute the fourth-degree crime of aggravated assault on a teacher while in the performance of his duties. N.J.S.A. 2C:12-1b(5)(d). At the dispositional hearing, M.A. was placed on one-year probation and ordered to attend school, maintain passing grades, attend anger management counseling and avoid harassing contact with the victim. The court allowed for an adjourned disposition at the completion of the probationary term. M.A. appeals, arguing that the verdict was against the weight of the evidence, and we affirm.

According to the State's proofs, since July 2007, Philip Long was employed as a social worker at the Gramon School in Fairfield, where M.A. was a student. Among his functions, Long conducts "interventions" with the students in the classroom and in the school. While in school, Long wears a badge with his name on it, which identifies him as a staff member of the school.

He was wearing his badge on the day of the incident with M.A., March 11, 2008. At 8:56 a.m., Long was opening student lockers, as part of his duties, when M.A. walked past him. When Long asked M.A. which locker was his, M.A. ignored Long and walked directly to the in-school suspension (ISS) room. As M.A. went to open the door, a female teacher inside the room came to the door to block his entrance. Concerned that M.A. was pushing against the teacher, Long walked up to M.A. and asked that he return to his area. Once again, M.A. ignored him, even when Long repeated his request. Long then put his hand around M.A.'s shoulder and told him that he needed to move along to his locker. M.A. responded by pushing Long.

To prevent an escalation of the situation, and based upon his mediation and crisis intervention training, Long attempted to get M.A. into the restraint position and away from the ISS room door. However, M.A. managed to extricate himself from Long's hold, push Long against the door, grab his right leg, and attempt to throw him down onto the floor. As he was pushed back, Long's left shoulder blade hit a door handle and was red, but not bruised. Because M.A. was then out of the doorway and back-up support had arrived, Long put his foot down and backed off so as to avoid M.A. falling to the floor, hitting the lockers, or getting hurt in some other way.

At the close of evidence, the judge found that M.A. had attempted to cause bodily injury to a school employee in the performance of his duties. Specifically, the judge concluded:

I find based upon the facts and the testimony that the first element [of N.J.S.A. 2C:12-1b(5)(d)] was, in fact, satisfied. I believe that the juvenile attempted to cause bodily injury to another.

. . . .

I don't need to find that he knowingly or recklessly caused the bodily injury. I need to find that the attempt with . . . conscious act attempted to cause that injury.

And I think that pushing or lifting of the leg, both were described as two separate I'll say incidents. First, there was the backward push, then there was the lift of the leg. I think they both satisfy the element.

I find that the placement of the teacher's arm on his shoulder was not -- I don't find that to be threatening. I don't think anything about it as described was threatening. The restraint as described by the teacher was something that he says was somewhat common in instances where they believe that they need to avoid further altercation. In this case, he testified that he thought there may become a problem with the teacher that was within the classroom and he performed this restraint in order to try to get the juvenile away from this area, considering the fact that the juvenile ignored verbal request[s] twice.

I also find, and this is I think [is] important, that it's not disputed that the juvenile at some point became free from this restraint. And then he grabbed the victim's leg. And I think that's important because I think that shows that there was an intent to cause a bodily injury, because, quite frankly, the grabbing of the leg at that point wasn't necessary. He had been freed from the restraint, according to the testimony that we have and it was, again, undisputed so it's the only testimony I have before me.

So I find that the elements for simple assault have been satisfied.

The next area of finding is whether or not upgrading it to an aggravated assault have been met. And that primarily -- that focuses really entirely on the victim's status and whether or not he falls within the protected paragraph.

I find he was properly and clearly identifiable as a school employee. And I find this because, number one, this occurred as I said during the morning hours, it was during the school day. It was on the school grounds, it was in the school hallway.

. . . .

He's testified that he had the badge on, but even if he didn't have the badge on, the fact that these two oral commands were made right next to him I believe would identify this person as a school employee, whether he knew him before this day or not.

So I then find that the juvenile has made a conscious effort to attempt to cause injury to a school employee and/or teacher and I find that beyond a reasonable doubt.

Because the judge also found that Long did not suffer bodily injury, the crime, if it had been committed by an adult, would be downgraded to a fourth-degree offense.

On appeal, M.A. argues that the adjudication of delinquency was against the weight of the evidence. However, M.A. failed to move for a new trial on that ground. R. 4:49-1(a) and (b). As such, appellate review of that argument is precluded. R. 2:10-1; Fiore v. Riverview Med. Center, 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974).

In any event, we are satisfied that the evidence amply supports a finding that M.A. purposely attempted to cause bodily injury to a school employee in the performance of his duties, in violation of N.J.S.A. 2C:12-1b(5)(d). Simple assault is defined as an "attempt[] to cause . . . bodily injury to another." N.J.S.A. 2C:12-1a(1). The culpability requirement for an "attempt" is "purposeful", N.J.S.A. 2C:5-1a(2), that is that the defendant act with a purpose to cause bodily injury to another. When the victim is a school employee performing his or her school duties, a simple assault is elevated to an aggravated assault, N.J.S.A. 2C:12-1b(5)(d), of the fourth-degree where the victim suffers no bodily injury. N.J.S.A. 2C:12-1(b)(11).

Here, the evidence fully supports the inference that M.A. knew Long was a school employee performing his duties. Long was wearing a badge clearly identifying him as a staff member. Moreover, his commands and actions were strongly indicative of a school employee in authority. Furthermore, when Long attempted to intervene between M.A. and another teacher, he was greeted with a push by M.A. and an attempt to take him down on the floor. Rather than comply with Long's commands to return to his locker, M.A. went on the offensive and engaged Long in a physical confrontation. Clearly, the evidence allows the reasonable inference that M.A. did so purposely in an attempt to cause Long bodily harm. Under the circumstances, there was no manifest denial or miscarriage of justice in the adjudication of delinquency. State v. Sims, 65 N.J. 359, 373-74 (1974); Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

 
Affirmed.

(continued)

(continued)

4

A-5829-07T4

RECORD IMPOUNDED

December 15, 2009