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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5037-08T4

STATE OF NEW JERSEY IN

THE INTEREST OF S.S.L.,

Juvenile-Appellant.

_____________________________

February 4, 2011

Submitted January 12, 2011 - Decided

Before Judges Lihotz and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FJ-18-1031-08.

Yvonne Smith Segars, Public Defender, attorney for appellant S.S.L. (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Geoffrey D.Soriano, SomersetCounty Prosecutor, attorney for respondent State of New Jersey (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

S.S.L., a juvenile, appeals from an adjudication of delinquency for committing acts which, if committed by an adult, would have constituted first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1).1 The sentencing court imposed a disposition consisting of thirty days detention, three years probation, together with appropriate fees and monetary penalties. On appeal, S.S.L. argues the following points:

POINT ONE: THE ADJUDICATION OF DELINQUENCY WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

POINT TWO: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

From our review of the record and the applicable law, we affirm.

I.

The salient facts, gathered from the trial transcripts, are the following. On three separate occasions in 2008, S.S.L. then fifteen years old (during the first incident) and sixteen years old (during the second and third incidents) engaged in sexual intercourse with Y.R. then eleven years old (during the first incident) and twelve years old (during the second and third incidents).2

S.S.L. challenges the Family Part's adjudication of delinquency based upon his contention that the testimony supporting the court's determination was established only by the supposed incredible testimony of Y.R., which according to S.S.L. "was in part a made up fantasy rooted in deep feelings she had for S.S.L." The Family Part declared that Y.R. was "an intelligent young person [who] looks and acts far beyond her years." Although commenting upon "one marked discrepancy" in Y.R.'s testimony relating to the presence of other persons at home during one sexual encounter, the Family Part stated "I found [Y.R.'s] testimony to be very credible. I found I didn't hear lies in her testimony." In addition, the court made detailed and comprehensive findings concerning the actions of S.S.L., ultimately concluding that he had committed, on each of the three occasions, acts of sexual penetration with Y.R., who was less than thirteen years old.

II.

It is well established that the State is required to prove every element of a criminal offense beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 99 (1997). The same allocation of the burden of proof applies in juvenile delinquency proceedings. State ex rel J.G., 151 N.J. 565, 593-94 (1997). Upon examination of a court's verdict in a non-jury case, the standard of review for determining if the State satisfied its burden is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State ex rel R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Moreover, we are obliged to "give deference to those findings of the trial judge which are substantially influenced by the opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J.463, 471 (1999) (quoting State v. Johnson, 42 N.J.146, 161 (1964)).

"[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." State ex rel. W.M., 364 N.J. Super. 155, 165 (App. Div. 2003); see also State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (noting that an appellate court will defer to the trial judge's factual findings where they are supported by "substantial, credible evidence in the record as a whole"), certif. denied, 180 N.J. 453 (2004). Such deference is appropriate because even the best and most accurate transcript of oral testimony "is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried." Locurto, supra, 157 N.J. at 472 (internal quotations omitted).

"'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). This is not a case where we are inclined to interfere with the Family Part's well-developed findings, conclusions, and disposition.

As for the challenge to his sentence, S.S.L. contends that the sentencing court misapplied the aggravating and mitigating factors found in N.J.S.A. 2A:4A-44(a)(1) and (2) when it considered whether incarceration was an appropriate disposition. New Jersey law prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010). Appellate review examines whether the sentencing court followed lawful sentencing guidelines and determines if the sentence imposed could have been reasonably reached based upon the evidence presented. State v. Roth, 95 N.J. 334, 365-366 (1984).

However, the reviewing court "may not substitute its judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J.210, 215 (1989).

In this matter, the Family Part stated with particularity the enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2A:4A-44(a)(1) and (2),3 balanced them, stated how much weight was afforded each factor, and explained how the ultimate disposition was determined. The record plainly demonstrates that those factors were based upon competent credible evidence in the record. Roth, supra, 95 N.J. at 364-65; see also State v. Kruse, 105 N.J. 354, 359-60 (1987). We find that the court faithfully adhered to the law, did not abuse its discretion, and reached a conclusion that does not warrant our appellate intervention.

A

1 The Family Part acquitted S.S.L. of the companion charge of endangering the welfare of a minor, which if committed by an adult would have been a third-degree offense. See N.J.S.A. 2C:24-4(a).

2 Coincidentally, S.S.L. and Y.R. were born on the same date in March, four years apart.

3 The aggravating factors were the nature and seriousness of the juvenile's prior record, N.J.S.A. 2A:4A-44(a)(1)(d); the need to deter, N.J.S.A. 2A:4A-44(a)(1)(g); and the impact of the offense on the victim, N.J.S.A. 2A:4A-44(a)(1)(j). The mitigating factors were justification, N.J.S.A. 2A:4A-44(a)(2)(e) and the likely affirmative response by the juvenile to noncustodial treatment, N.J.S.A. 2A:4A-44(a)(2)(k).