STATE OF NEW JERSEY IN THE INTEREST OF E.P.

Annotate this Case

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1709-08T4
STATE OF NEW JERSEY IN THE
INTEREST OF E.P., a Juvenile.
_______________________________

April 30, 2010
Submitted February 24, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Cumberland County, Docket Nos. FJ-06-1779-08
and FJ-06-2053-08.

Yvonne Smith Segars, Public Defender,
attorney for appellant E.P. (Diane Toscano,
Assistant Deputy Public Defender, of counsel
and on the brief).

Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent State of
New Jersey (Matthew M. Bingham, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

E.P., who was a seventeen-year old juvenile at the time he

was charged with committing an offense, appeals from an

adjudication of delinquency for committing an act which, if

committed by an adult, would have constituted third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(11), use of a laser

sighting device against a law enforcement officer. In a

subsequent hearing, he was also adjudicated delinquent in

connection with a second complaint charging him with a violation

of probation (VOP) for committing the aggravated assault

offense, failure to abide by the rules of probation and failure

to obey school rules. On the aggravated assault adjudication,

E.P. was committed to the Juvenile Detention Center for sixty

days. On the violation of probation adjudication, the court

terminated E.P.'s probation and committed him to the Juvenile

Detention Center for sixty days, concurrent with the disposition

imposed on the aggravated assault adjudication. The court

stayed execution of the sentences pending appeal. We affirm.

The facts presented to the court during the bench trial

disclosed that on April 3, 2008, Officer Michael Phillips of the

Millville Police Department was on routine patrol in a marked

police vehicle in an area of the city that the officer described

as a high crime area. As he turned westbound off of Fifth

Street onto Vine, his vehicle was illuminated by a red laser.

Officer Phillips circled the block and returned to the location

where the illumination occurred. He observed a juvenile looking

westbound down Vine in the direction that he had been traveling

moments earlier.

Officer Phillips stopped his vehicle and approached the

juvenile, subsequently identified as E.P. At that time, E.P.

put his hand in his right coat pocket. Officer Phillips

testified that when he asked E.P. to remove his hand from the

A-1709-08T4
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pocket, he observed E.P. move his right hand around to "the

middle of his back area, and appeared to be digging in his . . .

waistband." While patting E.P. down, a laser device fell out of

one leg of his pants.

E.P. testified that he was using the laser pointer to try

to get his dog to come home and indicated that he did not

deliberately point the laser at the police vehicle. He

indicated that the dog went up the stairs to his home with the

police officers after he had been detained. E.P.'s sister

testified that E.P. would let the dog out at night and use the

laser pointer to get the dog to come home, and his mother also

testified that E.P. used the laser to play with the dog.

Neither his sister nor his mother was outside at the time

Officer Phillips encountered E.P. Officer Phillips testified

that he did not see any dog outside as he drove in the area just

before his vehicle was illuminated.

In an oral opinion rendered on September 25, 2008, the

court found that the State had proved the aggravated assault

charge beyond a reasonable doubt. In reaching its decision, the

court discounted E.P.'s testimony as lacking credibility. The

court also rejected the testimony of E.P.'s family members that

E.P. used the laser pointer to play with the dog or get the dog

back into the house because there was nothing in the police

A-1709-08T4
3

reports to that effect. Likewise, the court was not persuaded

by the laser pointer experiments performed by the defense

investigators because a laser pointer other than the one police

confiscated from E.P. was used for the experiments and the

witnesses "could not say anything about the power of the

respective lasers. They could not say anything about the wave

lengths of the respective lasers. They could not say anything

scientific about the lasers. They could not say anything about

the weather conditions being similar in regard to the lasers."

The trial judge concluded that there "was no proof whatsoever

that their tests were in any way similar to what existed on the

night of April [third]." The court viewed the testimony of

Officer Phillips and E.P. as the critical evidence and made the

following factual findings:

Officer Phillips' report had a mistake in it
in regard to a turn. It has no great impact
on the [c]ourt. Other discrepancies shown
by [defense counsel] during his cross-
examination [had] no big impact on the
[c]ourt in regard to this case. On cross-
examination, again . . . Officer Phillips
said, "A sharp red light caught my eye."
The report did not say, "illuminated." He
said that the light had caught his eye, a
sharp red light. He said it a couple of
[He] [l]ooked
times on cross-examination.
into his rear view mirror, observed the red
laser in the rear view mirror. He says
although it was not in his report, his
observations were a little longer [sic]
other than just the rear view mirror.

A-1709-08T4
4

The officer said that the laser was on
the side of the car. That was not in his
report. [The] [o]fficer admitted that his
memory would be better in the days after he
wrote his report than now.

That was basically the testimony of the
State in regard to this case. Under the
circumstances, the [c]ourt does, in fact, it
observed . . . Officer Phillips' body
language, facial expressions, and demeanor.
It does, and did appear to the [c]ourt, and
the [c]ourt does find that Officer Phillips
was testifying truthfully. I place great
weight on his testimony. I believe his
testimony. I believe he was - - and I find
he was a very credible witness.

....

I have heard from [E.P.] He admitted
that he had the laser pointer. He admitted
that he bought it at Spencer's. Ultimately,
I'm going to have to do something about the
box not being provided in discovery, or at
least have a hearing in regard to this
matter. He admitted that around the time
that this incident occurred, he was outside
with the dog. He admitted he was shining
the laser pointer on that particular evening
trying to attract the dog.

So, basically what we have here, even
[defense counsel] has argued in his closing,
that perhaps the light was being shone,
perhaps the light was being used, but that
there was no intent on behalf of his client
to do anything inappropriate; that his
client was just outside using the laser for
- - to attract the dog, which I question,
because I don't believe that that particular
claim was brought up to the police officers,
or to the public defender's investigators,
in the appropriate time period, but it has
been brought up here at trial tonight.

A-1709-08T4
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All of that being said in regard to
this case, it leaves me with, again,
[E.P.]'s testimony. He says that he did not
shine the light towards the car; that he did
not do so deliberately; that he was, if
anything, trying to get the attention of the
dog, a dog that the police never saw there.

Again, as to [E.P.], I have observed
his body language, facial expressions and
demeanor. I do not place great weight on
his testimony in regard to this case.
Basically, it is his word against the police
officer's word. They were the only two
people who were really there in regard to
this case. They are the only people who I
find have . . . given credible testimony as
to what actually happened on that particular
night, and I place great weight on the . . .
testimony of the officer, and for the
reasons I have stated, I place much lesser
weight on the testimony of [E.P.]; [I] find
his testimony to not be credible, and
believable, based on my observations of him,
his body language, facial expressions,
demeanor, the way he carried himself, the
way he answered the questions. Under the
circumstances in regard to this matter, the
person who I find testified truthfully in
this case was the police officer.

On October 6, 2008, the court conducted the VOP hearing

and, after considering testimony from Bradley Fairchild, the

Court Services Supervisor assigned to the Juvenile Unit; Juana

Zegarra, a licensed clinical social worker employed by Families

Matter; and E.P., the court was satisfied that the State proved

the probation violations by the requisite preponderance of the

evidence burden of proof. The court stated that E.P.'s

delinquency adjudication on the aggravated assault charge was

A-1709-08T4
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sufficient to sustain the VOP charge, irrespective of the other

counts contained in the VOP complaint, but concluded that the

State had also proved other probation violations referenced in

the complaint. The court rejected E.P.'s argument that his

conduct at school, which resulted in his suspension, was not

willful because he was not taking his medication due to its side

effects, namely, making him feel tired and weak. The court

found:

So, clearly, basically, what I have to
do today is this[:] [D]o I accept the
defense argued by [E.P.] that his
voluntarily not taking his medication was a
willing act - - was not a willing act on his
part? I can't find that. It was a willing
act on his part. Any problem that [E.P.]
has in regard to this case is not that he
could not do something, it is that he did
not do something. He did not take his
medication. It's not that the medication
wasn't available to him would have been the
argument [defense counsel] made, it wasn't
available on the days he was suspended, but
that predates this, as [the assistant
prosecutor] brought to my attention[.] [H]e
was in school on the 14th and 15th, and
actually was in line to get his medication
at the time the alleged event occurred which
gave rise to the violation if I am to
believe his testimony, which I basically do
believe.

But, to find that he did not want to
grab the girl because he was not on his
medication, I do not find that he grabbed
the girl because he was not on his
medication. It was because of behavior he
was exhibiting by his own voluntary act of
not taking the medication. And,

A-1709-08T4
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accordingly, I do not accept the argument by
[defense counsel] that it was not a willing
act on [E.P.]'s part, that he did not want
to grab the girl, that he was not taking the
medication, and that it was not an
[excusable] violation. It is an inexcusable
violation. I find that.

I do in fact find that it's an
inexcusable failure to follow terms and
conditions of his probation. I find that
the need to attend school and to obey school
rules is a substantial requirement enclosed
as a condition of probation, and in that I
found that the violation is not - - there
was not an [excusable] failure by [E.P.],
that it was in fact a deliberate failure on
his part. That his actions of failing to
take his medication resulted in his
suspension from school. The suspension from
school is a violation of his probation, and
a failure to obey school rules.

On December 12, 2008, the court issued an amplification of

its September 25 oral opinion adjudicating defendant a

delinquent on the aggravated assault charge.1 The trial judge

reiterated that he did not believe the family's explanation that

E.P. was playing with the laser pointer and family dog at the

time Officer Phillips drove by and the laser pointer illuminated

his vehicle. The court stated that it "placed no weight on the

family's explanation as to this situation . . . the court does

not find the family's testimony to be truthful." The present

appeal followed.

1 The December 12 decision also addressed sanctions the State
requested against the Office of the Public Defender.

A-1709-08T4
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E.P. raises the following points for our consideration:

POINT ONE

BECAUSE THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT THE JUVENILE HAD
COMMITTED AGGRAVATED ASSAULT, THE COURT
SHOULD HAVE SUA SPONTE ENTERED A JUDGMENT OF
ACQUITTAL. MOREOVER, THE VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE. (NOT
RAISED BELOW).

POINT TWO

THE DECISION THAT THE JUVENILE'S PROBATION
SHOULD BE REVOKED WAS ERRONEOUS.

POINT THREE

THE CUSTODIAL TERMS OF SIXTY DAYS FOR THE
INSTANT OFFENSES ARE EXCESSIVE AND SHOULD BE
REDUCED.

We initially observe that E.P.'s argument that the State's

proofs were lacking because the "laser sighting system or device

[was not] 'integrated with or affixed to a firearm[,]'" and was

not used to "'assist in the sight alignment or aiming of the

firearm[,]'" under N.J.S.A. 2C:12-1(b)(11), was not an argument

advanced by the defense before the trial court. This argument,

however, lacks merit because, as the State urges, its theory of

culpability was that E.P. used the laser device in a manner that

would cause a reasonable person to believe that it was a laser

sighting system or device. N.J.S.A. 2C:12-1(b)(11). We agree

that in order to adjudicate E.P. delinquent based upon the

State's theory, there is no requirement that the State prove

A-1709-08T4
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that the device was actually a laser sighting system or device

as that device is defined under N.J.S.A. 2C:12-1(b)(11).

As the trial court observed, E.P. admitted that: (1) he was

in possession of a laser device on the evening of April 3, 2008;

(2) he was outside of his home with the laser device around the

time Officer Phillips passed by in his marked police vehicle;

and (3) he was using the laser device to attract his dog. The

court simply rejected E.P.'s explanation that any illumination

of Officer Phillips' vehicle with the laser device was

inadvertent. This was a credibility determination in this bench

trial that is entitled to our deference. State v. Locurto,
157 N.J. 463, 470-71 (1999) (Appellate courts "should give deference

to those findings of the trial judge which are substantially

influenced by [the trial judge's] opportunity to hear and see

the witnesses and to have the 'feel' of the case, which a

reviewing court cannot enjoy.")

Unlike factual findings, however, we owe no deference to a

trial court's legal conclusions, but review them independently.

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366,

378 (1995).

A person is guilty of aggravated assault if
he . . . .

....

A-1709-08T4
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. . . [u]ses or activates a laser
sighting system or device, or a system or
device which, in the manner used, would
cause a reasonable person to believe that it
is a laser sighting system or device,
against a law enforcement officer acting in
the performance of his duties while in
uniform or exhibiting evidence of his
authority.

[N.J.S.A. 2C:12-1(b)(11).]

It is evident from a plain reading of the statute that

culpability may be established under two scenarios: (1) if the

person "uses or activates a laser sighting system or device,"

which is defined in the statute as "any system or device that is

integrated with or affixed to a firearm and emits a laser light

beam that is used to assist in the sight alignment or aiming of

the firearm;" or (2) if the person uses "a system or device

which, in the manner used, would cause a reasonable person to

believe that it is a laser sighting system or device[.]" Ibid.

Under the latter scenario, which was the theory of culpability

advanced by the State here, there is no requirement that the

State prove that the system or device was actually integrated

with or affixed to a firearm and emitted a laser light beam in

assisting in the sight alignment or the aiming of the firearm.

Additionally, because the prefatory language under Section

2C:12-1(b)(11) does not reference any mental state, the State's

that E.P. acted "purposely."
proof need not include proof

A-1709-08T4
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Rather, proof that E.P. acted knowingly is sufficient. See

State v. Overton,
357 N.J. Super. 387, 393 (App. Div.) (certif.

denied,
177 N.J. 219 (2003) (noting that absence of express

reference to mental state in child endangerment and abuse

statute implicated the gap filler provisions of N.J.S.A. 2C:2-

2c(3) which "require[d] the State to prove defendant acted

'knowingly' to convict him of endangering the welfare of a child

and child abuse." (citing State v. Demarest,
252 N.J. Super.
323, 327 (App. Div. 1991)).

E.P. testified that he "started pointing the laser to see

if [his dog] would follow it. And, she was across the street,

and she followed it. And, she was coming towards this way, and

then the police Officer Philips, he came around that way, and

that's when he -- I guess, he said I was pointing it at her, or

something." He also acknowledged that in pointing the laser, he

was pointing the laser in the middle of the street because, in

addition to being across the street, the dog was also two houses

away from his house. Officer Phillips testified that as he

drove in the area where his vehicle was being illuminated, there

As discussed earlier, the trial court
was no dog in the area.

expressly noted that it did "not believe that anyone told the

police, and I find so, about this dog story until long after

this incident occurred." The court stated:

A-1709-08T4
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In regard to this matter, the only argument
that [defense counsel] has made which the
[c]ourt could in any way whatsoever consider
is that [E.P.] did not intend to do anything
to the officer, and his behavior, his
furtive movements at the time he was
stopped, his hand movements, his failure to
turn over the laser pen, or the fact the
laser printer [sic] did not go to the police
until it dropped out of . . . the back of
his pants after he was stopped. . . . I
believe that [E.P.] was, beyond a reasonable
doubt, standing out there, on that night,
using the laser pointer for exactly what
[Officer] Phillips was afraid of, and that
was in a way that was in violation of the
law beyond a reasonable doubt.

We are satisfied there is substantial credible evidence in

the record to support the trial court's factual findings and

that the court properly applied the law to these facts in

adjudicating E.P. delinquent for the commission of the

Locurto, supra,
157 N.J. at 470.
aggravated assault.

E.P.'s remaining claims that the aggravated assault charge

should be dismissed as de minimis, that the sentence imposed was

excessive and that the court erred in revoking his probation are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

Affirmed.

A-1709-08T4
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