STATE OF NEW JERSEY IN THE INTEREST OF T.M A Juvenile

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5497-08T3

STATE OF NEW JERSEY

IN THE INTEREST OF T.M.,

A Juvenile.

_____________________________________

March 4, 2011

Submitted December 6, 2010 - Decided

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1348-09.

Yvonne Smith Segars, Public Defender, attorney for appellant T.M. (Gregory P. Jordan, Designated Counsel, of counsel and on the brief.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel, Christopher L. Beekman, Legal Assistant, on the brief).

PER CURIAM

T.M. appeals a juvenile adjudication of delinquency, which resulted in a one-year probationary term. The delinquency ruling was based on the Family Part's determination that T.M. had thrown bodily fluids at a law enforcement officer, in violation of N.J.S.A. 2C:12-13, and that he had also resisted arrest, in violation of N.J.S.A. 2C:29-2a.

The relevant sequence of events is as follows. At about 5:20 a.m. on August 9, 2008, the police in Middletown Township were called to investigate a loud disturbance taking place on the street near a country club. The first police officer arriving at the scene encountered T.M., who was then seventeen years old, walking away at a brisk pace. The police officer directed T.M. to stop. T.M. refused to do so. The police officer got out of his squad car and ran after T.M. By this point another police officer arrived, and T.M. began shouting obscenities at the two officers. When he got within range, T.M. spit on the chest of one of the officers. He continued to act out belligerently. The officers had to subdue T.M. in order to handcuff him. They transported him back to the police station, where he met his mother but continued to be agitated. After T.M. persisted to yell and utter profanities at the police station, refusing to sit down, the police arrested him.

T.M. was charged with four counts of delinquency, including the aforementioned violations of N.J.S.A. 2C:12-13 (a fourth-degree offense if it were committed by an adult), and N.J.S.A. 2C:29-2a (a disorderly persons offense if by an adult), as well as the creation of a dangerous condition, N.J.S.A. 2C:33-2a(2) (a petty disorderly persons offense if by an adult), and criminal mischief, N.J.S.A. 2C:17-3 (a disorderly persons offense if by an adult). After trial proofs were presented, T.M. moved for a judgment of acquittal. The Family Part judge granted T.M.'s motion with respect to the criminal mischief count. The judge denied the motion as to the remaining three counts. After merging the count charging T.M. with the creation of a dangerous condition, the judge adjudicated T.M. delinquent for the two remaining offenses, and placed him on continued probation for one year.

On appeal, T.M. raises the following arguments:

POINT I

THE TRIAL COURT ERRED BY DENYING JUVENILE'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT II

THE TRIAL COURT ERRED IN ADJUDICATING THE JUVENILE DELINQUENT IN THAT THE FINDING WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE TRIAL COURT ERRED IN NOT REFERRING THIS MATTER TO THE ASSIGNMENT JUDGE FOR CONSIDERATION OF A DISMISSAL OF THE PROSECUTION BASED UPON A DE MINIM[I]S INFRACTION (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED BY NOT EXCLUDING TESTIMONY WHICH INCLUDED PROFANITIES BECAUSE THEY WERE DISCOVERY VIOLATIONS.

POINT V

THE TRIAL COURT ERRED BY NOT DEFERRING THE JUVENILE'S DISPOSITION; THE DISPOSITION WAS EXCESSIVE.

Having reviewed these points in light of the record and the applicable law, we find them to be without merit. We briefly address T.M.'s arguments, in turn.

T.M.'s first two points are related. He contends, first, that the trial court should have granted his motion for judgment of acquittal under Rule 3:18-1, and, second, that the court's finding of delinquency was against the weight of the evidence.1 He asserts that his conduct was the result of intoxication; and thus, he could not form the requisite criminal intent to violate the law. He also argues that the police officers' testimony was not credible because they provided certain details that were not stated in the police reports, including the amount of spit that landed on the chest of one of the officers, and the extent of T.M.'s cursing.

The trial judge recognized that the proofs did indicate that T.M. had been drinking before he encountered the officers. Nevertheless, the judge reasonably found that T.M.'s intoxication defense was not viable because, considering the circumstances as a whole, T.M.'s intoxication was not so severe as to cause a "prostration of his faculties." See State v. Cameron, 104 N.J. 42, 54-56 (1986) (holding that voluntary intoxication only operates as a defense to a purposeful or knowing offense where the intoxication is of such "an extremely high level" that it causes a "prostration of faculties" making the requisite mental state for the offense "totally lacking") (internal citations omitted); see also State v. Mauricio, 117 N.J. 402, 419 (1990) (finding an intoxication defense inapplicable where no evidence was presented as to the timing or amount of defendant's alcohol consumption). The trial judge specifically found that each of the testifying officers was credible in describing T.M.'s behavior, and we must give deference to those credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999). The officers detailed specific instances in which T.M. displayed, despite his inebriation, the ability to perceive, assimilate, and respond to what was happening, including his gathering of sufficient saliva in his mouth before expectorating multiple times at the officers. The officers' testimony also indicated that T.M. showed no difficulty walking or maintaining his balance. On the whole, the trial court had ample grounds to reject the intoxication defense.

Moreover, T.M. has not demonstrated sufficient grounds to upset the trial court's finding that the officers were credible. The judge had the opportunity to consider the argument of T.M.'s counsel that the absence of certain details in the police reports impeached the officers' credibility; nonetheless, he found the officers credible. The judge duly noted the testifying officers' demeanor, the consistency of their accounts, their opportunity to have observed T.M., and the overall quality of their narratives. Given our limited standard of review under Locurto, supra, we do not disturb the trial judge's credibility findings.

The denial of the motion for a directed verdict was entirely proper under Rule 3:18-1, giving the State all reasonable inferences from the evidence. See State v. Reyes, 50 N.J. 454, 458-59 (1967). The judge's ultimate adjudication of delinquency is likewise amply supported by the proofs. See State v. Johnson, 42 N.J. 146, 161 (1964). The record suffices to prove that T.M. purposefully spat at the officers, and that he resisted his apprehension and arrest.

T.M.'s third point, which he raises for the first time on appeal, is that his case should have been referred to the assignment judge for potential dismissal as a de minimis infraction under N.J.S.A. 2C:2-11. However, that provision in the Criminal Code does not apply to persons charged with juvenile delinquency. See State v. I.B., 227 N.J. Super. 362, 366-67 (App. Div. 1988). Even if the statute did apply, the conduct at issue here was not so inconsequential or benign as to compel dismissal.

The trial court also fairly rejected T.M.'s argument, now presented as his fourth point on appeal, that the State deliberately withheld discovery of critical evidence which rendered the officers' courtroom testimony incredible. The judge reasonably found that the omission of certain details of T.M.'s aggressive behavior from the officers' written reports, which were supplied to defense counsel in discovery, did not amount to "an unfair ambush" of T.M. at trial, nor did the omissions cause the judge to find the officers incredible. We accept the judge's assessment. We do not detect here the sort of egregious withholding of discovery by the State that can deprive a person of a fair trial. Cf. State v. Blake, 234 N.J. Super. 166, 174-75 (App. Div. 1989).

T.M.'s last point, asserting that the one-year of probation imposed by the court was excessive, is without merit. The trial judge duly noted T.M.'s two prior delinquencies, and the related need for deterrence and to monitor T.M.'s behavior. The judge did not abuse his discretion by rejecting T.M.'s argument that he instead be given a deferred disposition, i.e., six months of probation rather than a full year. See State in the Interest of S.B., 333 N.J. Super. 236, 246 (App. Div. 2000) (recognizing the discretion of Family Part judges in deciding whether to defer juvenile dispositions). The court disposition was fair, even taking into to account the mitigating considerations presented by T.M.

Affirmed.

1 The appropriate standard in this non-jury context is not the "weight of the evidence," but rather whether the trial judge's findings of fact are "supported by sufficient, credible evidence in the record." Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989).