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

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NOT FOR PUBLICATION WITHOUT THE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-4160-07T4

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

April 15, 2010
Submitted March 8, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Passaic County, Docket Nos. FJ-16-0176-08,
FJ-16-0825-08, FJ-16-1547-08.

Yvonne Smith Segars, Public Defender,
attorney for appellant, A.R. (Ruth Bove
Carlucci, Assistant Deputy Public Defender,
of counsel and on the brief).

Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent, State
of New Jersey (Keith E. Hoffman, Senior
Assistant Prosecutor, on the brief).

PER CURIAM

A.R., a juvenile, appeals from the February 26, 2008

adjudication finding him guilty of acts of delinquency which, if

constitute second-degree sexual
committed by an adult, would

assault, N.J.S.A. 2C:14-2c, and the disorderly persons offense

of simple assault, N.J.S.A. 2C:12-1a. A.R. was committed to the

Jamesburg Training School for Boys for a custodial term of four

years for the sexual assault and a concurrent six-month term for

the simple assault. This appeal followed. We affirm, except

that we exercise original jurisdiction pursuant to Rule 2:10-5,

and correct the sentence to the permissible maximum length of

N.J.S.A. 2A:4A-44d(1)(d).1
commitment of three years.

The only witness presented by the State was R.M. He

testified that on July 20, 2007, he lived in Newark in a

juvenile shelter, as did A.R. That evening, R.M. was alone in

his bedroom when A.R. came to the doorway, ordered R.M. to

perform fellatio, and pulled his penis out of his pants. When

R.M. initially refused to comply, A.R. became louder and "more

aggressive." A.R. grabbed R.M.'s head and forced it down onto

his genitals. R.M. acceded to A.R.'s demand because he was "too

scared" to do otherwise. R.M. testified that after the act of

oral sex was completed, A.R. left the room. R.M. did not report

the assault because he did not believe that the staff at the

shelter would be responsive.

On cross-examination, R.M. explained that at the time of

the incident he did not even move towards his bedroom doorway

1 On March 17, 2008, when A.R. was sentenced on the sexual
assault and simple assault charges, the court also sentenced him
to a concurrent one-year custodial term on an unrelated
aggravated assault charge to which A.R. entered a guilty plea.
An additional concurrent two-year custodial term was imposed on
the charge of causing a false alarm on a second guilty plea.
Our correction of the sentence for second-degree sexual assault
does not alter any other sentence A.R. received.

A-4160-07T4
2

because he was afraid of A.R., who was bigger and stronger, and

whom he had heard talking earlier in the day about fighting.

R.M. said he was afraid to report the occurrence for fear he

"would end up getting beat up later or something."

The next day, while R.M. was sleeping, he awakened to find

A.R. looming over him with his penis near his face. R.M. told

A.R. to leave him alone and tried to roll away. A.R. began to

insist, but when he heard someone approaching, he fled.

Three days later, R.M. was in the juvenile shelter library

when he was accosted by A.R., who began to shove him and laugh

at him. R.M. asked a staff member to intercede; she instructed

A.R. to stop. After she was no longer present, however, R.M.

was accosted a second time by A.R. R.M. returned to the main

shelter building, at which point A.R. confronted him again.

A.R. laughed and punched R.M. in the face, chipping R.M.'s

tooth. Although R.M. asked one of the counselors for medical

attention, he was not taken to the hospital until after he

helped her fix a fan. R.M. told a friend about the incidents

and eventually made a statement to Newark police, who filed the

complaint against A.R.

In his findings of fact, the juvenile judge stated that

there was no doubt in his mind that the events in question

occurred as R.M. described them. He found him to be "utterly

A-4160-07T4
3

credible" given his demeanor and level of candor. He further

found R.M. "credible in his acknowledgment of being fearful of"

A.R., "fearful that he would be assaulted by him." As a result,

the court adjudicated A.R. delinquent on both charges.

A.R. claims as error the following:

POINT I
BECAUSE THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT THE JUVENILE HAD
COMMITTED A SEXUAL PENETRATION WITHOUT THE
REQUISITE CONSENT OF THE VICTIM, THE TRIAL
COURT SHOULD HAVE ENTERED A JUDGMENT OF
ACQUITTAL. MOREOVER, THE VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE. (Not
Raised Below).

POINT II
THE IMPOSITION OF A FOUR YEAR CUSTODIAL TERM
ON THE ADJUDICATION OF SECOND DEGREE SEXUAL
ASSAULT IS ILLEGALLY EXCESSIVE AND MUST BE
REDUCED.

A.R. contends that the State failed to prove, as required

by the statute, that there was an absence of "affirmative and

129 N.J. 422, 448
freely-given permission." In re M.T.S.,

(1992). In order to establish the statutory elements for sexual

assault, the State is required to prove not only sexual

penetration but that penetration "was accomplished without the

affirmative and freely-given permission of the alleged victim."

Ibid.

A-4160-07T4
4

Our review of credibility findings is highly deferential.

State v. Locurto,
157 N.J. 463, 470-71 (1999) (citing State v.

Johnson,
42 N.J. 146, 161-62 (1964)). The juvenile judge

specifically referenced his observations of R.M.'s demeanor

while testifying. There was nothing inherent in R.M.'s

testimony which raised doubts about his veracity. The court's

findings are unassailable and entitled to the deference we

accord them.

We next consider whether the court's fact-finding was

supported by adequate competent evidence in the record. A

court's fact findings are not "disturbed unless 'they are so

wholly insupportable as to result in a denial of justice.'"

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J.
474, 483-84 (1974) (quoting Greenfield v. Dusseault,
60 N.J.

Super. 436, 444 (App. Div.), aff'd o.b.,
33 N.J. 78 (1960)).

R.M. credibly testified that he was afraid of A.R. and had

no faith in the ability of the staff at the juvenile shelter to

protect him. He was afraid of being physically assaulted by

A.R.; in fact, A.R. actually punched him in the face at a later

point in time. When he turned to staff for medical attention,

R.M.'s situation was not addressed until he assisted in the

repair of a fan. We concur with the court's determination that

R.M. did not give affirmative permission to the act of sexual

A-4160-07T4
5

penetration. R.M.'s recounting of the event established beyond

a reasonable doubt that the act of sexual penetration was

accomplished without "affirmative and freely-given permission."

In re M.T.S., supra,
129 N.J. at 448. Accordingly, we affirm

A.R.'s conviction.

II.

As to the sentence, the State agrees that the maximum time

of incarceration for this second-degree offense was three years.

The court did sentence A.R. on multiple offenses including these

charges. Nothing on the record, however, indicates that the

judge intended to impose consecutive terms for any other crimes.

Under the circumstances, we will exercise original jurisdiction

pursuant to Rule 2:10-5 and resentence defendant. The exercise

of original jurisdiction is discouraged unless the sentence

imposed was "clearly mistaken." State v. Thomas,
195 N.J. 431,

162 N.J. 345, 355
437 (2008) (citing State v. Kromphold,

(2000)). In this instance, we are convinced that the court was

clearly mistaken in imposing a sentence that exceeded the

statutory maximum term of three years. Despite the strong

preference for a remand for that purpose, in this instance, we

choose to simply correct the sentence by requiring that A.R.

serve a maximum term of three years. A judgment to that effect

is to be entered accordingly.

A-4160-07T4
6

Affirmed as to the adjudication; sentence modified to three

years.

A-4160-07T4
7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.