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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5126-10T3

STATE OF NEW JERSEY IN THE

INTEREST OF A.M., a minor.

______________________________

October 9, 2013

Submitted September 16, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1867-10 and FJ-20-1915-10.

Joseph E. Krakora, Public Defender, attorney

forappellant (FrederickP. Sisto, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Juvenile A.M. appeals from two adjudications of delinquency following trials by two different judges on charges that he assaulted a teacher in his school and, later the same day, a police officer in front of his school. After he was adjudicated delinquent on both complaints, he entered into a plea agreement with the State pertaining to a third complaint charging him with robbery of a cell phone from another boy. In accordance with the plea agreement, he was sentenced on all three charges to eighteen months in the Juvenile Intensive Supervision Program, to write letters of apology and an essay, and to pay mandatory money penalties. On appeal, he argues there was insufficient evidence for his convictions on the two charges of aggravated assault. We affirm.

The complaint pertaining to the teacher was tried before Judge Frederic McDaniel. The teacher testified that he was a librarian at the juvenile's school and was also assigned to teach classes. On April 21, 2010, at about noon, students arrived late to a class and were unruly and disobedient. They did not heed his repeated instruction that they take their seats and be quiet. The juvenile was walking around the room, shouting and making gestures. The librarian spoke directly to the juvenile several times and asked him to take his seat. The juvenile cursed at the librarian and threatened him verbally. He then approached and shoved the librarian backwards with his hands. He put up his fists and threatened to "deck" the teacher.

The librarian told the juvenile to go to the office. The juvenile ignored him and continued to "shadowbox" and make noise. The librarian attempted to phone the main office, but was not able to get a response. Nevertheless, he pretended to be talking to someone. The juvenile then left the classroom.

The librarian did not know the juvenile's name because he was new to his class. After the juvenile left, he had the other students sign an attendance sheet, and only one student's name was unsigned, the juvenile's. The librarian reported the incident to school officials and later that day spoke to the police. Based on the attendance sheet, the juvenile was identified and charged in a complaint with simple assault, N.J.S.A. 2C:12-1(a), which was later amended to fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(d), because the victim was the juvenile's teacher.

At the trial, the librarian identified the juvenile as the student who had defied his directives, threatened him, and shoved him in the classroom. The defense did not dispute that the librarian had been shoved but challenged his ability to identify the student who had done it. The librarian also acknowledged that he had not been physically injured in the incident. The school principal was the only other witness at the trial. The defense called her to testify about the juvenile's daily classroom schedule, but she had no direct knowledge of the incident. Judge McDaniel found the librarian's testimony and in-court identification credible and found the juvenile guilty of aggravated assault by attempting to cause bodily injury to the librarian.

The trial pertaining to the assault on the police officer was held before Judge Roberto Alcazar. The officer testified he was assigned to duty outside the school on the afternoon of April 21, 2010. As he parked his vehicle at about 2:45 p.m., he saw two juveniles sitting on a wall across the street from the school. The juveniles were cursing and shouting at passersby. The officer got out of his vehicle, approached the juveniles, and asked them to leave the area. They refused and defiantly told him he had no right to order them to leave and that he should leave. The officer testified that the juveniles were cursing at him and continued to act in a disorderly manner. In court, the officer identified A.M. as one of the juveniles.

The juveniles eventually got off the wall. The officer took A.M. by the arm and attempted to lead him away from the area. After the officer released his arm, A.M. continued to walk, still cursing. At a distance of about ten or fifteen feet from the officer, the juvenile turned, took a cell phone out of his pocket, and threw it at the officer, striking him in the eye. The officer then pursued and arrested A.M., and he was charged with fourth-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and disorderly conduct, N.J.S.A. 2C:33-2.

At his trial, the juvenile testified he was sitting on the wall with another boy waiting for his bus. The officer approached and told them to leave the area, using racial slurs. As they were leaving, the officer followed and continued to use offensive and threatening language. According to the juvenile, the officer then threw a cup of coffee onto the juvenile. The juvenile was mad and threw his cell phone at the officer.

The defense also called a teacher from the school who had witnessed the incident from the top of the school steps. She testified that the juvenile was a special education student who was waiting earlier than other students for his bus. She saw the officer approach, and a confrontation occurred. As the officer was following the juvenile, she saw him throw a cup containing a liquid toward the juvenile, and then the juvenile threw something at the officer. She testified she did not notice before the incident any shouting or cursing at passersby by the juveniles. She also testified that it was common for students to sit on the wall while waiting for their busses, and that the juvenile had always been respectful to her. On cross-examination, she testified that she had seen the juvenile act disrespectfully to other persons.

The officer was recalled to the witness stand in rebuttal. He denied he had used racial slurs or cursed in his encounter with the two juveniles. He testified that he did not remember whether he had a beverage in his hand when he approached the juveniles, but if he did, he would have thrown it to the ground upon becoming involved in a confrontation.

The defense did not dispute that the juvenile had thrown a cell phone and struck the officer, but it argued that the action was done in self-defense after the juvenile felt threatened by the officer's conduct, in particular, his throwing coffee at the juvenile. Judge Alcazar found that the juvenile's actions were not done in self-defense but as retaliation because he was angry at the officer. He found the juvenile guilty of aggravated assault but not guilty of disorderly conduct.

On appeal, the juvenile argues:

POINT I

THE JUVENILE'S ADJUDICATIONS OF DELINQUENCY SHOULD BE SET ASIDE AND THE CASES REMANDED FOR NEW TRIALS BECAUSE THE ADJUDICATIONS ARE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.

POINT II

THE JUVENILE'S ADJUDICATION OF DELINQUENCY ON FJ-20-1915-10 SHOULD BE SET ASIDE AND THE CASE REMANDED FOR A NEW TRIAL BECAUSE THE PROSECUTION REFUSED TO DISCLOSE INFORMATION THAT WOULD ALLOW THE DEFENSE TO IMPEACH THE STATE'S ONLY WITNESS.

We reject these arguments.

We exercise a limited scope of review from a trial judge s findings of fact and the conclusions that flow from those findings. See State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Appellate courts accord particular deference to fact-finding in Family Part cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13.

Here, Judge McDaniel found the librarian to be a credible witness. He found beyond a reasonable doubt that the juvenile was the person who threatened and shoved the librarian. The librarian did not know the student's name at the time of the assault, but the juvenile was the only student who did not sign the attendance sheet immediately after the incident. The defense attempted to discredit the reliability of that manner of identifying the individual, but those arguments were not persuasive to the trial judge. Furthermore, the judge found the librarian's in-court identification to be credible evidence.

The juvenile makes a secondary argument that his due process rights were violated because the prosecution did not produce the attendance sheet in discovery or as an exhibit at the trial. But the record does not include a specific discovery request by the defense for the document, and at the trial, Judge McDaniel gave the defense an opportunity to obtain the document and then to recall the librarian to question him further about it. Defense counsel did not pursue that opportunity. The defense has not shown that the document contained any exculpatory evidence, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that would have aided the defense in challenging the identification evidence presented by the State.

The juvenile also argues that the librarian was not injured, but there is no requirement that actual injury be proven. The juvenile was found guilty of attempting to cause bodily injury by shoving the teacher. "'Bodily injury' means physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). "Not much is required to show bodily injury." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). The State need not prove risk of serious injury in the attempt. The shoving and the teacher's falling backwards was sufficient to prove that the juvenile's purpose was to cause some physical pain or bodily impairment in the teacher. See State v. Stull, 403 N.J. Super. 501, 505-06 (App. Div. 2008); State ex rel. S.B., 333 N.J. Super. 236, 244 (App. Div. 2000).

With respect to the assault on the police officer, the juvenile argues that the officer's version of the events was not credible and the version of the juvenile as corroborated by the teacher who witnessed the incident was credible and showed that he acted in self-defense. But as we have stated, our scope of review is limited, in particular, with respect to the trial judge's credibility determinations. See State v. Elders, 192 N.J. 224, 244 (2007). We do not substitute our own assessment of the evidence for that of the trial judge. See State v. Minitee, 210 N.J. 307, 317 (2012) (citing Johnson, supra, 42 N.J. at 162). Our task is complete upon determining there is sufficient credible evidence in the record to support the trial court's factual findings. Ibid.

Here, Judge Alcazar found that the juvenile threw his cell phone at the officer in retaliation for coffee being spilled on him when the officer threw the cup he was holding in his hand. The court accepted the officer's explanation that he would throw a beverage down if a volatile situation occurred that required his full attention. The judge concluded that the State had proven beyond a reasonable doubt that the juvenile was not justified in throwing his cell phone at the officer and striking him in the face.

We conclude there was sufficient evidence of the juvenile's guilt for both aggravated assault charges.

A