STATE OF NEW JERSEY IN THE INTEREST OF J.S.J

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0658-09T4

STATE OF NEW JERSEY IN THE

INTEREST OF J.S.J.

_________________________________

Submitted December 8, 2010 Decided August 24, 2011

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County,

Docket Nos. FJ-20-999-09; FJ-20-1070-09 and

FJ-20-1124-09.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Sara B. Liebman,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, J.S.J. was adjudicated delinquent of charges which, if committed by an adult, would have constituted second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and the petty disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-3(b). J.S.J. was fifteen years old at the time he allegedly committed these acts of delinquency. The court entered a dispositional order placing J.S.J. in the Juvenile Intensive Supervision Program for eighteen months.

J.S.J. now appeals, arguing, inter alia, that the State failed to produce sufficient evidence at trial to prove he committed these offenses beyond a reasonable doubt. We agree and reverse. We gather the following facts from the evidence presented at trial.

On December 5, 2008, Osner Dorcely walked down from the second-floor apartment at Maple Avenue in Hillside, to the first-floor foyer, intending to exit the building and proceed home. As he entered the foyer, Dorcely saw "a lot of people were beating on two minors." When asked to elaborate, he testified the victims were being "kicked" and "punched." When he made a comment1 to the crowd, an unknown person or persons pulled him, punched him in the head, and stabbed him. The group of assailants left the scene immediately thereafter. Dorcely was on the ground for two to three minutes when he was assaulted and did not see who attacked him.

At the time Dorcely was attacked, his brother Steven Exantus was across the street from the building where the assault occurred. Exantus saw a group of about twenty people running out of the building. Exantus also heard noises of the commotion. When Exantus entered the building, he saw his injured brother on the floor and called the police. Dorcely was taken to a nearby hospital. Because the juvenile does not challenge the severity of Dorcely's injuries, we will not recite the evidence presented by the State in this respect.

Exantus told the responding police officers the direction he saw the group running. Exantus then accompanied several police officers as they canvassed the area looking for members of the group who had attacked Dorcely. The officers eventually came upon a group of youths approximately two blocks away from the building. The officers stopped them after the group began to walk faster as the officers approached. Exantus indicated these juveniles looked like some of the same youths he saw run from the building where his brother was stabbed. K.S.2 and J.S.J. were among the youths detained by the police.

K.S. testified he was inside the building at the time Dorcely was attacked and he witnessed the assault. Although K.S. testified that J.S.J. was present at the time of the assault, he did not see him do "anything in particular with respect to any individual." K.S. also indicated there were as many as twenty to thirty juveniles fighting in the building at the time Dorcely walked down to the foyer.

When J.S.J. was taken to the police station for processing, Officer Jesse Gregorio seized the juvenile's jeans and white T-shirt. The jeans were stained with blood on the knee area, and there was "a small speck" of blood at the bottom of the T-shirt. Monica Ghannam, who is employed by the Union County Prosecutor's Office as a "forensic scientist two," and "assigned to the biology section of the laboratory as a DNA technical leader," was admitted by the court as an expert witness on DNA analysis. Ghannam testified that DNA testing performed on the two items of clothing seized from the juvenile indicated the victim's blood could not be excluded as a major contributor to the blood found on the juvenile's clothing.

Hillside Detective Steven Costa testified that a photograph of the building where the assault occurred depicted a sign on the side of the property that read: "Private Property, No Loitering, No Trespassing, Tenants Only." Although admitted in evidence, the appellate record does not include a copy of this photograph. The police also recovered a knife found behind a green bush to the right of the staircase, in front of the building's entrance. The knife had traces of Dorcely's blood on the blade.

Against this evidence, the trial judge found that J.S.J.

was a primary actor in the assault against [Osner] Dorcely. None of the other juveniles arrested with him had blood on them belonging to the victim. I find it unlikely that one of the other individuals on the scene, who did not flee with [J.S.J] was the perpetrator with the knife who stabbed the victim. [J.S.J.] fled with those he was closest to.

. . . .

With respect to the trespassing charge, having found that the juvenile was present in the building and committed the assault, I find he was there for an unlawful purpose. That he, therefore, knew that he was not licensed or privileged to be there. Further, that adequate posting was present to alert him to that effect -- to that fact.

J.S.J. appeals raising the following arguments:

POINT I

THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT THE JUVENILE WAS GUILTY OF AGGRAVATED ASSAULT AS WELL AS DEFIANT TRESPASSING.

A. THE STATE FAILED TO ESTABLISH THE JUVENILE'S GUILT BEYOND A REASONABLE DOUBT WITH RESPECT TO AGGRAVATED ASSAULT.

B. THE STATE FAILED TO ESTABLISH THE JUVENILE'S GUILT BEYOND A REASONABLE DOUBT WITH RESPECT TO DEFIANT TRESPASSING.

Our scope of review in juvenile delinquency cases is the same as the one applicable to a court's decision after a bench trial. State ex rel. L.E.W., 239 N.J. Super. 65, 76 (App. Div.), certif. denied, 122 N.J. 144 (1990). We are bound by the findings of the court that are supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We do not engage in an independent assessment of the evidence as if "[we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Applying these principles, we are compelled to vacate the juvenile's adjudication of delinquency based on second degree aggravated assault and the petty disorderly offense of defiant trespass. We first address the assault charge. In the light most deferential to the trial court's findings, the evidence placed J.S.J. at the scene of the assault. The traces of the victim's blood on J.S.J.'s clothing is evidence from which the court could infer J.S.J. was close enough to the victim to get the victim's blood on his clothing. However, from this evidence alone, the court cannot find the juvenile stabbed and otherwise assaulted the victim because J.S.J. was not the only person present during the attack.

By all accounts, the group involved in the attack against Dorcely ranged from twenty to thirty youths. Dorcely testified he was punched, kicked and stabbed while he was on the ground. K.S., the only eyewitness, did not see J.S.J. stab, strike, or kick the victim. The knife recovered by the police could not be linked to J.S.J. through fingerprint evidence, testimonial evidence, or circumstantially. In short, the evidence presented by the State does not support the court's finding that J.S.J. was "a primary actor" in the assault against Dorcely.

We turn next to the charge of defiant trespass. The delinquency complaint charged J.S.J. with entering the Maple Avenue building

to which notice against trespass was given by posting in a manner prescribed by law or reasonably likely to come to the attention of intruders knowing that [he] was not licensed or privileged to do so, specifically by entering a building which he did not have permission to be . . .

N.J.S.A. 2C:18-3(b) defines a "defiant trespasser" as follows:

A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1) Actual communication to the actor; or

(2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(3) Fencing or other enclosure manifestly designed to exclude intruders.

The trial court's findings concerning the offense of defiant trespass were inextricably linked to its finding of delinquency based on the aggravated assault charge. The court found J.S.J. was present in the building for the purpose of assaulting Dorcely, and that this alone was sufficient to establish that J.S.J. knew he was not licensed to be there. The court also found the sign posted on the side of the building satisfied the notice requirement in N.J.S.A. 2C:18-3(b)(2). The record before us does not support these findings.

J.S.J.'s mere presence in the foyer of the building does not establish he knew he was not authorized to be there. Detective Costa's testimony describing the content of the notice posted in the building lacks the specificity of details necessary for meaningful appellate review. Costa only testified that the sign was "on the side of the building." The record does not show the distance the sign was from the ground; how large the lettering was; or whether the sign was illuminated.

We are also unable to make our own determination concerning these key details because the photograph depicting the location of the sign was not included by the parties in their respective appendices. R. 2:6-1(a)(1)(I); R. 2:5-4(a). Given the lack of specificity as to the location and size of the sign, we are unable to ascertain whether this posting was "reasonably likely to come to the attention of intruders." N.J.S.A. 2C:18-3(b)(2). The record does not support the trial court's finding that J.S.J. was constructively on notice that he was not licensed to be in this building.

R

1 The court sustained defense counsel's objection to the question posed by the prosecutor which would have revealed the content of Dorcely's statement to the assailants.

2 Because the record is not clear as to the age of this witness, we will refer to him by his initials out of an abundance of caution.