STATE OF NEW JERSEY IN THE INTEREST OF C.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1965-11T2

STATE OF NEW JERSEY IN THE

INTEREST OF C.M., A JUVENILE,

_________________________________________

May 7, 2013

Submitted November 14, 2012 - Decided

Before Judges Fisher and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FJ-04-0435-12 and FJ-04-0648-12.

Joseph E. Krakora, Public Defender, attorney for appellant C.M. (Sylvia M. Orenstein, Assistant Deputy Public Defender, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent State of New Jersey (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

C.M. was adjudicated a delinquent for possession of a metal knuckle, without any explainable lawful purpose, in violation of N.J.S.A. 2C:39-3(e), an offense which, had he been an adult, would have constituted a crime of the fourth degree. As a result of that adjudication, Judge Anthony M. Pugliese also adjudicated C.M. delinquent of violating his probation. The judge extended C.M.'s probation until October 21, 2013, ordered him to complete fifty hours of community service, observe a 10 p.m. curfew, maintain school attendance, and obey the rules of home and school.

After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

The record of the adjudication hearing reveals that on January 11, 2011, at 1:30 a.m., C.M. and his friend, C.H., were walking along a residential street in Gloucester Township when they were approached by Officer David Sgrignuoli, who was patrolling in a marked police vehicle. A Gloucester ordinance imposed a curfew of 10:00 p.m. on weekdays and 11:00 p.m. on weekends, and Sgrignuoli approached the two boys because they "appeared to be very young." The juveniles told Sgrignuoli that they were heading home and provided their names and dates of birth. Sgrignuoli spoke to then sixteen-year-old C.H. and determined he had violated the curfew and took him into custody. Prior to placing C.H. in the patrol unit, Sgrignuoli asked him if he had any weapons, C.H. said he did not, and Sgrignuoli's search did not reveal any weapons.

Sgrignuoli then addressed C.M., determined that he was sixteen-years-old and, therefore, was violating curfew. Sgrignuoli placed C.M. in handcuffs. Prior to searching him, Sgrignuoli asked C.M. "if he had any weapons on him[.]" Sgrignuoli stated that C.M. responded that, "he did have a pair of brass knuckles . . . in his pocket." Sgrignuoli seized the item from C.M.'s pocket and then transported both juveniles to headquarters. C.M. denied that dialogue. He stated that the question from Sgrignuoli was, "he asked me if I had any weapons or anything that I can get into trouble with, pretty much." C.M.'s response was, "I said, I have something that you may classify as a weapon." When asked whether he referred to the item as a brass knuckle, he responded no.

C.M. said that he fabricated the item to be used as a hitch to attach a tow rope from an all-terrain vehicle (ATV) to a sled. The purpose of the hitch was to prevent the tow rope from becoming tangled on the axle of the ATV. Both C.M. and C.H. stated that they had been sledding that day. C.M. related that when they finished sledding, he took the "hitch," and put it in his pocket where it was discovered by Sgrignuoli.

The judge found Sgrignuoli's testimony to be credible and C.M. and C.H.'s testimony to not be credible. The judge detailed the contradictions in both juveniles' testimony, as well as C.M.'s physical manifestations as he testified, including voice tone, hesitancy, and lack of eye contact, all of which indicated his lack of candor. Further, the record discloses the judge's detailed evaluation of the item and his determination that it was a metal knuckle as prohibited by N.J.S.A. 2C:39-3(e). The judge found that C.M. knew the item he possessed was a metal knuckle.

II.

C.M. raises two points for our consideration on appeal:

POINT I

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONBLE DOUBT THAT THE ITEM IN DEFENDANT'S POCKET WAS A BRASS KNUCKLE OR THAT IT WAS LIKELY TO BE USED AS A WEAPON, THE JUDGE SHOULD HAVE DISMISSED COUNT TWO OF THE INDICTMENT, AS REQUESTED BY TRIAL COUNSEL, INSTEAD OF IMPROPERLY RELYING ON HIS OWN, PERSONAL ASSESSMENT OF THE DEVICE.

POINT TWO

BECAUSE THE OFFICER QUESTIONED DEFENDANT, WHO HAD BEEN DETAINED AND ARRESTED, WITHOUT ADVISING HIM OF HIS RIGHTS, ANY SUPPOSED STATEMENT THE DEFENDANT MADE SHOULD BE SUPPRESSED AND GIVEN NO CONSIDERATION. (Not Raised Below).

When reviewing a decision resulting from a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings 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." Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484) (internal quotation mark omitted); see also Beck v. Beck, 86 N.J. 480, 496 (1981). It is also well-established that our review of a judge's conclusions of law is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

We address C.M.'s contention that the State failed to prove that the item in C.M.'s pocket was a brass knuckle and that it was likely to be used as a weapon.

The statute does not require the State to prove that the item was likely to be used as a weapon. The mere possession of certain weapons, such as sawed-off shotguns, constitutes a per se offense. See N.J.S.A. 2C:39-3(b). A subdivision of this category, which concerns implements such as dirks, daggers, stilettos, and metal knuckles, makes the possession of those objects an offense unless the defendant can come forward with an explainable lawful purpose for possession of the weapon. N.J.S.A. 2C:39-3(e). This provision does not relieve the State of its burden of proof, but merely shifts to the defendant the burden of going forward on the issue of "lawful purpose." State v. Lee, 96 N.J. 156, 160 (1984); see also State v. Dunlap, 181 N.J. Super. 71, 76 (Law Div. 1981).

Unlike other weapons, the Legislature has not defined "metal knuckle" in the statute. See N.J.S.A. 2C:39-1. We, therefore, look to the common dictionary definition of brass knuckles. "A weapon with a metal strip or chain having holes or links into which the fingers fit." Webster's II New College Dictionary 134 (2001).

The judge described the item in great detail stating: it was painted black and blue; had two holes in the metal strip into which his fingers fit; it fit his hand; and that once on his hand, "you can really do some damage with this thing[.]" The judge also explained in detail the factual basis as to why he did not find C.M.'s explanation credible that the item was fabricated to be used as a hitch. Based upon our standard of review and the record before us, the judge's factual findings that C.M. possessed a metal knuckle without any explainable lawful purpose was amply supported by the competent credible evidence.

Finally, we focus on C.M.'s assertion that any statement he made to Sgrignuoli should be suppressed and given no consideration. The judge did not rely in his factual finding on Sgrignuoli's account of C.M.'s alleged statement that, "he did have a pair of brass knuckles[.]" The judge found "that [C.M.] knew what he had, he even indicated to the officer it may be something that you think is a weapon[.]"

The State argues that any questioning was proper under the safety exception to Miranda.1 That exception is based on the "objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon." New York v. Quarles, 467 U.S. 649, 659 n.8, 104 S. Ct. 2626, 2633, 81 L. Ed. 2d 550, 559 (1984). It is a narrow exception that "will be circumscribed by the exigency which justifies it." Id. at 658, 104 S. Ct. at 2633, 81 L. Ed. 2d at 559. Moreover, the United States Supreme Court expressed that "police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." Id. at 658-59, 104 S. Ct. at 2633, 81 L. Ed. 2d at 559.

There is no need for us to reach this issue since we are satisfied that the failure to suppress C.M.'s statement was harmless beyond a reasonable doubt. Sgrignuoli had probable cause to search and arrest C.M. prior to asking the offending question and would have discovered the metal knuckle when he searched him. Further, the judge did not rely on Sgrignuoli's recollection of C.M.'s statement, but only the vaguely incriminating statement by C.M. that "it may be something that you think is a weapon[.]" Consequently, the failure to suppress C.M.'s statement was harmless. See R. 2:10-2.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).