STATE OF NEW JERSEY IN THE INTEREST OF S.B.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03084-12T4

STATE OF NEW JERSEY

IN THE INTEREST OF

S.B.,

A Juvenile.

__________________________________________

June 6, 2014

Submitted May 13, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. FJ-20-0305-13.

Joseph E. Krakora, Public Defender, attorney for appellant S.B. (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Juvenile S.B. appeals from the Family Part's final dispositional order that adjudicated him delinquent of conduct which, if committed by an adult, was third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). S.B. was tried together with three other juveniles, R.F., F.G. and J.H., before Judge Robert Kirsch of the Family Part, who issued a written opinion setting forth his findings of fact and conclusions of law. We briefly recite the trial evidence as detailed by Judge Kirsch.

The alleged victim in the case, A.T., attended summer school in Elizabeth. A few days before the events in question, a juvenile, who A.T. knew only as "Lee," told him that J.H. intended to "beat him up." A.T., in an effort to avoid a confrontation, exited school through a side door and took an alternate route home that day. On July 23, 2012, however, A.T. left school and saw the four defendants and Lee standing together as a group. As A.T. continued to walk toward his home, J.H. slapped him in the head, causing A.T. to turn and swing at J.H. A fight ensued between the two, and the other boys surrounded the combatants.

A.T. apparently got the better of the fight, knocking J.H. to the ground. The other boys, however, blocked A.T.'s path as he tried to leave. S.B. specifically wrapped his arms around A.T.'s mid-section and pushed him back toward J.H. A.T. broke free and began to run away, but the others gave chase. F.G. punched him in the back of the head, and as A.T. continued to flail at his attackers, he fell to the sidewalk striking a parked car with his chin. He was surrounded by the boys and was punched in the face several times, although he could not identify with specificity who threw the punches.

A.T. said that S.B., R.F. and Lee all stood around him as he was prone on the pavement. He could not recall if S.B. hit him, but he was kicked and punched while on the ground. At some point, he "blacked out." When A.T. regained consciousness, his mother was hovering over him, crying. He was transported to the hospital on a stretcher, received stitches and was treated for his other wounds.

A.T.'s mother testified that she received a call from an unnamed juvenile that her son was injured on the street. She said A.T. was lying on the ground, "full of blood," with cuts on his chin, eyes and nose; his face appeared swollen. She accompanied her son to the hospital where he underwent various diagnostic tests. Judge Kirsch observed that A.T. had a scar on his chin at the time of trial. None of the juvenile defendants testified or produced any witnesses.

In his written opinion, Judge Kirsch specifically found A.T. and his mother to be credible witnesses and gave "great weight" to their testimony. The judge then reviewed the statutory definition of aggravated assault, as defined by N.J.S.A. 2C:12-1(b)(7): the actor "[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury[.]" He considered the Criminal Code's definition of "significant bodily injury." See N.J.S.A. 2C:11-1(d) ("'Significant bodily injury' means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses.").

The judge then considered the issue of "accomplice liability." See N.J.S.A. 2C:2-6(c)(1)(b) ("A person is an accomplice of another person . . . if[] . . . [w]ith the purpose of promoting or facilitating the commission of the offense[,] he . . . [a]ids or agrees or attempts to aid such other person in planning or committing it[.]"). Judge Kirsch concluded the State had proven beyond a reasonable doubt that J.H. and F.G. committed an aggravated assault upon J.T. as principals.

He carefully considered whether the State had proven beyond a reasonable doubt that S.B. and R.F. "acted as accomplices to the savage beating of A.T." The judge noted that although A.T. could not "specifically recall" if either one "hit him while . . . on the ground, their behavior throughout the entirety of the fight demonstrate[d] . . . that they participated in the attack with an 'awareness of the purpose' of their co-defendants." Judge Kirsch found S.B. "acted in concert in approaching A.T., verbally attacking him, fighting him, chasing him, and beating him until he lost consciousness."

In sum, Judge Kirsch concluded that S.B. "aided in the commission of the offense[,]" by attempting to "impede A.T. from leaving . . . ." He also found that S.B. "physically restrained A.T. and pushed him back into the fight, thus aiding [his] co-defendants as they caused further pain and injury to A.T."

Judge Kirsch also considered whether S.B. could be guilty of a "lesser charge under Bielkiewicz."1 He determined, however, that S.B. and R.F. "chose to follow the other boys[,] . . . chased A.T. down, and once on the ground, hovered over him as he was kicked by Lee and savagely beaten in the face by [J.H.] and [F.G.] on the sidewalk in the street." Judge Kirsch concluded that the State had proven S.B. "possessed the mental state required to be adjudicated for aggravated assault in the third degree."

Judge Kirsch entered a dispositional order finding that S.B. had engaged in conduct which, if committed by an adult, was an aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7). He placed S.B. on house arrest with electronic monitoring for forty-five days, probation for twenty-four months and imposed other penalties permitted by statute.2 This appeal followed.

S.B. raises the following point for our consideration:

THE FINDING THAT S.B. WAS AN ACCOMPLICE WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE S.B. DROPPED OUT OF THE ASSAULT BEFORE OTHER BOYS INJURED COMPLAINANT ACROSS THE STREET

Having considered this argument in light of the record and applicable legal standards, we affirm substantially for the reasons expressed in Judge Kirsch's written opinion. We add only the following.

S.B. argues that he "dropped out of the incident before the final encounter" and, therefore, "did not have the purpose to aid the blows that caused significant injury." S.B. contends Judge Kirsch recognized that his lack of participation in the "final encounter" could result in an adjudication of simple assault, N.J.S.A. 2C:12-1(a), but the judge incorrectly "exaggerated" S.B.'s actions during this stage of the assault and incorrectly concluded he committed an aggravated assault. We disagree.

Our scope of review of the Family Part's factual determinations is limited, and we will not disturb them unless a finding is clearly mistaken and the interests of justice require our intervention and correction. In re S.B., 333 N.J. Super. 236, 241 (App. Div. 2000). "We defer to those findings, which are substantially influenced by the judge's feel of the case." In re J.P.F., 368 N.J. Super. 24, 31 (App. Div.), certif. denied, 180 N.J. 453 (2004). We do not, however, defer to the judge's legal conclusions drawn from those factual findings. S.B., supra, 333 N.J. Super. at 241. Here, S.B.'s argument is essentially a legal one.

Judge Kirsch found that after A.T. broke free and ran from his tormentors, S.B. did not remain where he was. Instead, he remained part of the group, surrounding A.T. as he laid helplessly on the ground and while others kicked and punched him until he lost consciousness. Judge Kirsch properly determined this evidence was sufficient to conclude that S.B., "[w]ith the purpose of promoting or facilitating" an aggravated assault, "aid[ed] or . . . attempt[ed] to aid" his cohorts in committing the assault. N.J.S.A. 2C:2-6(c)(1)(b).

Affirmed.

1 State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993), where we said that "when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense." (citation and internal quotation marks omitted) (alteration in original).

2 The actual disposition is not challenged on appeal.