STATE OF NEW JERSEY IN THE INTEREST OF R.O., a minor

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0033-08T40033-08T4

STATE OF NEW JERSEY IN THE

INTEREST OF R.O., a minor.

________________________________________________________________

 

Submitted February 22, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-2266-08.

Yvonne Smith Segars, Public Defender, attorney for appellant R.O. (Richard Sparaco, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief; Margaret C. Canning, Assistant Prosecutor, on the brief).

PER CURIAM

After a bench trial, R.O., who was fourteen years old at the time of the offense, was adjudicated delinquent for an offense which, if committed by an adult, would constitute the petty disorderly persons offense of disorderly conduct, by engaging in improper behavior. N.J.S.A. 2C:33-2a(1). Judge McGann entered a disposition of six months probation, with the provision that "if successful may be converted to a deferred disposition." R.O. appeals, arguing that the adjudication was not supported by sufficient credible evidence in the record and should be reversed. We reject this argument and affirm.

The only witness at the hearing was Patrolman Matthew Kocen of the Neptune Township Police Department. The judge found Kocen's testimony credible and made findings of fact in accordance with that testimony, which we now summarize.

On January 7, 2008, Kocen was on patrol in a marked police vehicle. It was standard protocol for Neptune police officers to respond to the local middle school and high school, both in the same area, at dismissal time. Kocen explained the reason thusly: "We have problems with juveniles, whether it be walking in the middle of the roadway, or fights. So we try and keep a presence in the area just to alleviate any problems before they happen." Kocen was alone in his patrol vehicle. When he arrived at about 2:00 p.m. he observed about forty to fifty students walking in the middle of the roadway. He asked them to move out of the roadway because they were obstructing traffic. About half of the students moved out of the roadway and about half did not.

An unidentified student made a derogatory comment about the police, saying they were not required to listen to the police. Kocen got out of his vehicle to demonstrate a more imposing police presence. He then got back in the vehicle and while continuing to induce the students to get out of the roadway, R.O. yelled, "Fuck the police." She was about five feet from Kocen when she uttered the comment.

Kocen got out of his vehicle and "headed towards her to speak with her regarding the comment that she had just mentioned." About thirty of the juveniles began to surround R.O. and Kocen. He asked her to come toward him so he could speak with her. She disobeyed his request and started to walk away. He attempted to grab her arm, but "in an aggressive manner she ripped her arm away from [Kocen's] hand just touching the back of her arm, and proceeded to run towards a parked vehicle." As she did so, she said, "get your fucking hands off me."

R.O. then dropped her backpack and "made a fighting stance, she got in what's known as a boxer's stance, fighting stance, where she raised her hands close to her body with her legs spread like she was ready to fight." As Kocen demonstrated it in the courtroom, he showed his "fists in a boxing like position."

Kocen again tried to grab R.O., but she began to run away. Kocen attempted to pursue her, but was prevented from doing so by R.O.'s brother, C.O., who approached him "in an aggressive manner yelling, saying get your f'ing hands off my sister."

Other officers apprehended R.O. C.O. was also charged with an offense. R.O. and C.O. were tried jointly. The judge acquitted C.O., concluding that his conduct did not rise to the level of the offense for which he was charged.

Pursuant to N.J.S.A. 2C:33-2a(1), a person commits a petty disorderly persons offense who, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [e]ngages in fighting or threatening, or in violent or tumultuous behavior." In a thorough and well- reasoned decision, Judge McGann set forth his credibility determination and factual findings. Those findings are well- supported by substantial credible evidence in the record, and we defer to them. State v. Johnson, 42 N.J. 146, 162 (1964).

R.O. relied substantially on State v. Stampone, 341 N.J. Super. 247 (App. Div. 2001). Judge McGann distinguished that case from the circumstances in this case. He concluded that, applying the Stampone rationale, R.O.'s conduct constituted a violation of the offense for which she was charged. He reasoned that

the question here is whether she engaged in fighting or threatening or in violent or tumultuous behavior. There was no actual fight here. But as to threatening, when she dropped her books and assumed the fighting stance in this case, that certainly was at the very least tumultuous behavior, something causing an uproar. That coupled with the fact she dropped the books tended to make this Court think that she meant business by when she put her hands up.

She was asked several times to move away from the center of the street. She did not, and responded F the cops. And when she was asked to come to talk to the police officer, she did not come, she ignored the police officer. He grabbed her by the arm, she ripped it away aggressively, and then assumed the fighting position. And then thereafter ran.

In this Court['s] eyes, based on the testimony of the witness, I find that the State has carried their burden beyond a reasonable doubt and established that she has engaged in threatening by putting the hands up, and tumultuous behavior, which it can also be defined by an uproar which in this case was putting her fists up in a fighting position.

The judge correctly applied the controlling legal principles in adjudicating R.O. delinquent for violating N.J.S.A. 2C:33-2a(1). R.O.'s arguments to the contrary lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

 
Affirmed.

Appellant's brief misstates the standard of review by arguing that the adjudication was against the weight of the evidence. That standard applies to jury verdicts, not judgments entered as a result of non-jury trials. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). Our standard of review in a non-jury case requires a determination of whether the record contains sufficient credible evidence to support the judgment. In re J.R., 165 N.J. Super. 346, 351 (App. Div. 1979).

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A-0033-08T4

RECORD IMPOUNDED

March 15, 2010