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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY

IN THE INTEREST OF A.H.

_________________________

February 7, 2014

Submitted January 14, 2014 Decided

Before Judges Koblitz and O'Connor.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County, Docket No. FJ-20-0223-12.

Joseph E. Krakora, Public Defender, attorney

for appellant (Thomas H. E. Hallett,

Designated Counsel, on the brief).

Grace H. Park, Acting Union County

Prosecutor, attorney for respondent (Stacey

E. Zyriek, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A.H. and C.G., both juveniles, were charged with offenses which, if committed by an adult, would have constituted aggravated assault, N.J.S.A. 2C:12-1(b), and second-degree robbery, N.J.S.A. 2C:15-1. Just before trial, both juveniles admitted to committing the alleged acts of aggravated assault. Following trial the court found the juveniles committed robbery and adjudicated both as delinquents. A.H. appeals, arguing the court's finding was not supported by the evidence. We disagree and affirm.

I.

The sole witness at trial, Marvin Enriquez, testified that as he was walking down the street, the juveniles suddenly struck him from behind, causing him to fall to his knees. Enriquez asked the juveniles, in Spanish, what they wanted. They indicated, in English, that they wanted five dollars and one juvenile touched the pocket holding Enriquez' wallet. Enriquez, who understood enough English to comprehend the juveniles wanted cash, refused to turn over any money. One juvenile then struck Enriquez in the face, followed by both beating him about his body. Enriquez threatened to call the police and the juveniles ran away. Enriquez was unable to definitively identify which juvenile assaulted him from behind, struck him in the face, or touched his pocket.

The trial judge found Enriquez credible and concluded the juveniles committed a robbery. The pertinent parts of the court's analysis were as follows:

[After asking for five dollars, one juvenile] reached and physically touched [Enriquez'] person, not coincidently the court finds, right where his wallet was. It is also quite clear that this victim did not acquiesce or accede to the request for money, and that clearly was communicated, at least non-verbally, prompting the individuals to further the onslaught and a violent assault.

. . . .

I note that . . . State v. Farrad, 164 N.J. Super. 247 at 257 and 256 (2000), quite clearly states that a theft need not be successful for a robbery to take place. . . . [A] defendant can be convicted of a robbery even if the theft is unsuccessful if he or she, one, purposely takes a substantial step, two, to exercise unlawful control over the property of another, three, while threatening another with or purposely placing another in fear of immediate bodily injury. . . .

We know the theft here was unsuccessful in that these juveniles did not permanently remove or seize property, but quite clearly the testimony is that both of these individuals took a substantial step to exercise unlawful control over the property of another. And that is the verbal command, if you will, for $5, or money more particularly, in conjunction with and immediately followed by one of the juveniles reaching for the gentleman s wallet.

The court would be completely devoid of any common sense if it didn't analyze this under the totality of the circumstances which it includes the not contested fact that these juveniles blindsided this individual and assaulted him from behind, rendering him to his knees and immediately thereafter in response to the victim's question or something to the effect of what do you want. In response to which one of the juveniles responded five something. And then one of them reaches for his wallet. By any commonsensical interpretation constitutes robbery in the second degree. The court makes these findings beyond any reasonable doubt.

And the court also [finds] accomplice liability. . . . [W]hile the victim cannot definitively state with certainly which of the defendants did what . . . [t]hey were acting in concert in unison with one another in executing and committing the offenses. So the act of one is constructively the act of the other, and the court will so find. And frankly that's not disputed.

On appeal A.H. argues there is no evidence of an intent to commit a theft against the victim, as the juveniles merely requested money from Enriquez. If the request for money is not a theft then, A.H. contends, he could not have committed a robbery.

II.

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 marks 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.").

Under N.J.S.A. 2C:15-1(a), a person is guilty of robbery if, in the course of committing a theft, he inflicts bodily injury or uses force upon another, or threatens another with or purposely puts him in fear of immediate bodily injury. An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit a theft. Ibid.

A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof. N.J.S.A. 2C:20-3(a). "Attempted theft . . . is an abortive effort to perpetrate a theft." State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983). Accordingly, a person can be convicted of robbery, even if the theft is unsuccessful, if he or she purposely takes a substantial step to exercise unlawful control over the property of another while inflicting bodily injury upon another or threatening another with, or purposely placing another in fear of, immediate bodily injury. See State v. Farrad, 164 N.J. 247, 258 (2000).

III.

Here, the factual findings by the trial judge are fully supported by the credible evidence, and his conclusion the juveniles committed an act of robbery was based upon an accurate interpretation of N.J.S.A. 2C:15-1(a). The judge found that the juveniles ambushed and assaulted the victim and, when he refused to accede to their demand for money, the juveniles again assaulted the victim in a clear show of force to coerce him into turning over his money.

While a mere request for money is not a theft, a request for money "becomes unlawful if the actor either inflicts bodily injury or uses force upon the victim, or threatens the victim with or purposely puts the victim in fear of immediate bodily injury in order to cause the victim to relinquish his money or other property." State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). There is ample evidence the juveniles attempted to commit an act of theft and, under the circumstances, committed a robbery. The juveniles, acting in concert, were not successful in gaining control over the victim's money, but they took a substantial step toward doing so, inflicting body injury upon the victim to frighten him into relinquishing his money. We affirm the adjudication of delinquency of A.H.