STATE OF NEW JERSEY IN THE INTEREST OF J.H. (FJ-20-0651-15, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4841-14T1
STATE OF NEW JERSEY
IN THE INTEREST OF J.H.,
A JUVENILE.
____________________________
Submitted April 26, 2017 – Decided September 8, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Union
County, Docket No. FJ-20-0651-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Janet A. Allegro, Designated
Counsel, on the briefs).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
J.H., a juvenile, appeals from an adjudication of delinquency
entered by the Family Part following trial on a complaint alleging
acts of delinquency that, if committed by an adult, would
constitute third-degree unlawful possession of a weapon (rifle or
shotgun), N.J.S.A. 2C:39-5(c) (count one);1 second-degree unlawful
possession of a weapon, (assault firearm), N.J.S.A. 2C:39-5(f)
(count two); fourth-degree possession of prohibited weapons and
devices (hollow nose bullets), N.J.S.A. 2C:39-3(f) (count three);
and fourth-degree possession of prohibited weapons and devices (a
large capacity ammunition magazine), N.J.S.A. 2C:39-3(j) (count
five).2 Following the bench trial, the court entered a
dispositional order committing J.H. to the custody of the Juvenile
Justice Commission (JJC) to be incarcerated at the Training School
for Boys for an aggregate term of thirty months. We affirm.
The record shows that on the afternoon of January 16, 2015,
J.H. was the front seat passenger in an Audi bearing New York
license plates that crashed into another vehicle following a high-
speed police chase. After the crash, the Audi came to a complete
stop in the middle of the street at the intersection of Watchung
Avenue and East 6th Street in Plainfield, and its airbags deployed
from the impact. The four occupants of the Audi immediately exited
1
Prior to trial, the count was amended to correct the statutory
citation, the degree of the offense and the weapon allegedly
possessed.
2
J.H. was also charged in count four of the complaint with
obstructing the administration of law, a disorderly persons
offense, N.J.S.A. 2C:29-1B. However, prior to trial, J.H. entered
an admission to the charge and does not challenge the adjudication
of delinquency on that charge or the concurrent six-month
disposition in this appeal.
2 A-4841-14T1
the vehicle and fled on foot. J.H. was apprehended trying to
climb over a fence and provided a false name to police. The
firearms and ammunition were found in plain view in the front and
back seat of the Audi.
At trial, the evidence presented by the State consisted of
the testimony of Plainfield Police Officers Ronald James, William
Guy, Jesse McNeil, and Sergeant Ronald Fusco, as well as Lieutenant
Michael Sanford who was qualified as an expert in forensic analysis
and ballistics. J.H. testified on his own behalf.
James identified J.H. as the juvenile who was in the front
passenger seat of the Audi. He chased J.H. for approximately 200
yards, through city streets and local yards, until he apprehended
him climbing a fence. James arrested J.H. who stated that he was
sixteen-years-old and provided the false name "John King." Guy
corroborated James' account that J.H. was the front seat passenger
from Guy's "clear view of him." While in pursuit of the Audi's
fleeing occupants, McNeill observed two weapons in plain view as
he passed the Audi, prompting him to stop to secure the vehicle.
On the floor of the rear passenger seat, he observed a large
assault weapon with an affixed ammunition magazine. McNeill
testified that the assault weapon was so large that it could not
fit under the car seat. On the front seat passenger side, wedged
between the seat cushion and the door, was a large rifle protruding
3 A-4841-14T1
in plain view. McNeill testified that he did not observe any
carrying cases or containers for the firearms in the Audi.
Fusco, who arrived at the scene after the collision, confirmed
the location of both firearms in the Audi. The driver, later
identified as Tasheem Punter, and the rear passenger side occupant,
later identified as Dave Fulford, both adults, were arrested. The
fourth occupant, who purportedly sat in the rear driver side seat,
escaped apprehension. Fulford stated that the "chopper,"
referring to the assault weapon, was his. Fusco secured the
weapons, which were later stored at police headquarters.
Sanford tested both weapons and determined that they were
both operable. He testified that the rifle was a semi-automatic
SKS rifle loaded with ten 7.62 by 39mm hollow point bullets.
According to Sanford, the assault weapon was a Cobray Model M-11
assault weapon with a detachable large capacity magazine which was
loaded with fourteen 9mm hollow point bullets and one "full metal
jacket cartridge."
J.H. testified that on the date in question, he was living
in Newburgh, New York, and accompanied his friend's older brother,
Fulford, and another acquaintance, Punter, in Punter's Audi from
Newburgh to meet up with Punter's family in Plainfield. According
to J.H., Punter was the driver, Fulford sat in the rear driver's
side seat and J.H. sat in the rear passenger side seat. J.H.
4 A-4841-14T1
testified that no one sat in the front passenger seat during the
ride to Plainfield.
According to J.H., he dozed off for about thirty minutes
during, what he approximated was, a two-hour ride. J.H. testified
that while enroute to Plainfield, they stopped in Irvington to
pick up one of Punter's friends, whom he identified as Rock.
Thereafter, according to J.H., they drove to and around Plainfield
and smoked marijuana in the car. J.H. testified that although he
remained in the car for the entire trip, he did not observe Rock
carrying anything when he entered the car, was not aware of any
weapons found in the car, and could not explain their presence.
Following trial, Judge Robert Kirsch issued his written
findings of fact and conclusions of law. He accorded great weight
to the testimony of the four officers, finding them to be credible
witnesses. Judge Kirsch stated that "[e]ach testified clearly and
professionally, and exhibited excellent eye contact with the
questioner[,]" acknowledging "when they could not recall in
response to a posed question." Judge Kirsch found that "[n]one
of the officers appeared to have an animus or even familiarity
with J.H.," and "[t]here appeared to be no testimonial
embellishments[.]" Judge Kirsch noted "importantly, the officers
corroborated each other in multiple material respects." Judge
5 A-4841-14T1
Kirsch found the expert testimony of Lieutenant Sanford "equally
persuasive" and that he was "a most credible witness."
On the other hand, Judge Kirsch found J.H.'s testimony
"incredible[,]" "self-serving and utterly implausible" and
"contrary to the corroborated evidence at trial[.]" He described
J.H.'s testimony as "patently unreasonable[,]" defying "common
sense and common experience." According to Judge Kirsch,
If [J.H.] were seated in the front passenger
seat, which the court finds based on the
credible testimony of law enforcement, he
would have necessarily been resting on the
approximately 33 inch semi-automatic rifle,
loaded with hollow nose bullets. If he were
in the back driver's side seat, as he claimed,
he would be but a few feet from the assault
weapon, likewise loaded with hollow nose
bullets, lying on the floorboard in the same
rear compartment on the passenger's side,
fully exposed, openly and notoriously, and
within his easy grasp.
Judge Kirsch concluded that the State proved beyond a
reasonable doubt that J.H. committed the charged offenses.
Preliminarily, the judge recounted the elements of each offense
as well as the principles of constructive and joint possession
articulated in State v. Morrison, 188 N.J. 2, 14-15 (2006) and
State v. Mendez, 175 N.J. 201, 212 (2002). As to the weapons
possession charges, the judge cited State v. Bolton, 230 N.J.
Super. 476, 480 (App. Div. 1989) to support his reliance on the
permissive inference permitting the factfinder to infer possession
6 A-4841-14T1
of the weapons by all occupants when the vehicle has more than one
occupant. N.J.S.A. 2C:39-2. Applying his factual findings to the
applicable legal principles, the judge reasoned:
J.H.'s position in the car necessitated
that he be aware of, and likely in physical
contact with, one of the weapons. In such a
situation, wherein two rather large firearms
are contained in a modestly sized vehicle and
one of them rested by necessity against J.H.'s
leg, the court finds that he was more than
"merely present" in the vehicle with the
weapons. The court draws the reasonable
inference that if J.H. was aware of and in
contact with the loaded rifle. . . , as
necessitated by his position in the car, that
he would have no knowledge of the similarly
loaded assault weapon lying directly behind
him on the floor of the backseat is entirely
implausible. Furthermore, . . . [t]he court
considers J.H.'s evasive actions as
circumstantial evidence of his consciousness
of guilt, bolstering the inference that he
possessed the weapons. . . .
The court also draws a reasonable
inference and finds that J.H. did not have a
permit to bear the rifle . . . . J.H. did not
present a valid firearms purchaser
identification card, and in fact was too young
to have obtained one at the time of the
offense. . . . Similarly, the court finds
that the assault weapon . . . could not have
been properly licensed as to J.H. in
accordance with N.J.S.A. 2C:58–5(b) for the
same reason that J.H. could not have obtained
a valid firearms purchaser identification
card. Finally, Lieutenant Sanford credibly
testified as to the testing he performed that
demonstrated both weapons were operable.
7 A-4841-14T1
Regarding the hollow nose bullets, which the court described
"as evident to even the uneducated observer as they display a
visible hole[,]" and the "detachable, and quite visible, high
capacity magazine[,]" the judge noted:
J.H. was seated in the Audi within inches of
the SKS rifle loaded with hollow nose bullets,
and directly behind him in the vehicle the
Cobray Model M-11 assault firearm, fitted with
a [high capacity] magazine and likewise loaded
with hollow nose bullets. . . . The court finds
it highly implausible that he could be in
possession of two loaded firearms, seated
within inches of one and feet of another, for
several hours, and be unaware that they were
loaded. . . . The court thus finds that J.H.
was in knowing possession of both hollow nose
bullets and a high capacity magazine.
On May 1, 2015, Judge Kirsch conducted a dispositional
hearing. After reviewing the Pre-Disposition Report, the judge
found the following aggravating factors: the character and
attitude of the juvenile indicate he is likely to commit another
offense, N.J.S.A. 2A:4A-44(a)(1)(c); the juvenile's prior record
and seriousness of prior adjudications of delinquency, N.J.S.A.
2A:4A-44(a)(1)(d); the need for deterring the juvenile and others
from violating the law, N.J.S.A. 2A:4A-44(a)(1)(g); the fact that
the juvenile on two separate occasions was adjudged a delinquent
on the basis of acts which if committed by an adult would
constitute crimes, N.J.S.A. 2A:4A-44(a)(1)((i); the impact of the
offense on the community, N.J.S.A. 2A:4A-44(a)(1)(k); and the
8 A-4841-14T1
threat to the safety of the public or any individual posed by the
juvenile, N.J.S.A. 2A:4A-44(a)(1)(l). In mitigation, the judge
found that the juvenile would participate in a program of community
service, N.J.S.A. 2A:4A-44(a)(2)(g).
Acknowledging that J.H. was seventeen-years-old and a
resident of New York, the judge noted J.H.'s recent prior New York
adjudication for "a very serious aggravated assault" during which
J.H. shot "another individual in the face repeatedly" and was "put
on probation[.]" The judge also noted that given the nature of
the weapons in this case and the fact that they were both loaded,
"[t]he only purpose of these incredibly lethal weapons was to
kill." The judge observed that possession of loaded weapons was
not a victimless crime but rather crimes "awaiting a victim."
Based on J.H.'s "prior assaultive adjudication . . . and in short
order, his possession of these two loaded weapons," which the
court characterized as "out of control dangerous behavior that
could result in his death or somebody else's[,]" the judge
concluded that "the aggravating factors qualitatively and
quantitatively substantially outweigh" the sole mitigating factor.
This appeal followed.
On appeal, J.H. raises the following arguments for our
consideration:
9 A-4841-14T1
POINT I
THE COURT'S FINDING OF DELINQUENCY WAS NOT
SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN
THE RECORD AND MUST BE REVERSED.
A. THE COURT ERRED IN FINDING J.H.
HAD CONSTRUCTIVE POSSESSION OF THE
WEAPONS.
B. THE COURT ERRED IN FINDING THAT
J.H.'S DEPARTURE FROM THE ACCIDENT
SCENE CONSTITUTED FLIGHT.
C. THE COURT ERRED IN FINDING THAT
J.H. CONSTRUCTIVELY POSSESSED THE
AMMUNITION.
POINT II
THE SENTENCE IMPOSED BY THE COURT WAS
EXCESSIVE.
Our scope of review in juvenile delinquency cases is the same
as the one applicable to a court's decision after a bench trial.
State ex rel. L.E.W., 239 N.J. Super. 65, 76 (App. Div.), certif.
denied, 122 N.J. 144 (1990). In order to find a violation, the
court must conclude that the State proved each element of the
offense charged beyond a reasonable doubt. State ex rel J.G., 151
N.J. 565, 593-94 (1997). We are bound by the findings of the
court that are supported by adequate, substantial, and credible
evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 484 (1974). We do not engage in an independent
assessment of the evidence as if "[we] were the court of first
10 A-4841-14T1
instance." State v. Johnson, 42 N.J. 146, 161 (1964). Rather,
we give special deference to the trial judge's findings,
particularly those that are substantially influenced by the
judge's opportunity to observe the witnesses directly. Johnson,
supra, 42 N.J. at 162. However, we need not defer to the trial
judge's interpretation of the law. State v. Brown, 118 N.J. 595,
604 (1990).
J.H. argues that "[t]he trial court's decision finding J.H.
guilty of all of the charges was not supported by sufficient,
credible evidence, and therefore, the court's findings and legal
conclusions should be afforded no deference." J.H. asserts that
"the evidence was insufficient to show that J.H. constructively
possessed the weapons and hollow point bullets recovered from the
vehicle" because "[t]here did not exist scientific, circumstantial
or evidence by inference" to establish constructive possession
beyond a reasonable doubt. Further, J.H. asserts that his
departure from the scene "was not sufficient evidence of
consciousness of guilt." In addition, J.H. contends that his
sentence "was unduly excessive" and "[t]he court clearly erred in
only finding one mitigating factor[.]" We affirm substantially
for the reasons set forth in Judge Kirsch's thorough and thoughtful
written decision of April 23, 2015, and his oral findings during
11 A-4841-14T1
the May 1, 2015 dispositional hearing. We add only the following
brief comments.
Constructive possession arises out of an individual's conduct
with regard to the subject item. State v. Schmidt, 110 N.J. 258,
268 (1988). Current immediate control and dominion are not
required; rather, the State must prove beyond a reasonable doubt
that the juvenile had the capacity, by direct or indirect means,
to gain almost immediate physical control, and the ability to
affect the item during the time in question. Id. at 270. In
Schmidt, the Court listed clear applications of constructive
possession in its opinion, including an apropos example wherein
the Court found that the front seat passenger of a vehicle
constructively possessed a flare gun on the car dashboard. Id.
at 271 (citations omitted).
A determination of constructive possession is fact-sensitive
and requires careful scrutiny by a court. See State v. Palacio,
111 N.J. 543 (1988). Here, the credible evidence adduced at trial
demonstrated beyond a reasonable doubt that J.H. had the capacity,
by direct means, to gain almost immediate physical control of both
weapons, and the ability to affect same during the time in
question. While mere presence alone cannot serve as grounds for
inferring constructive possession, State v. Brown, 80 N.J. 587,
593 (1979), there is far more than mere presence in this case,
12 A-4841-14T1
including J.H.'s proximity to the firearms, the size of the
firearms compared to the size of the Audi, and J.H.'s flight as
consciousness of guilt. These factors supported Judge Kirsch's
rejection of J.H.'s argument that the absence of scientific
evidence connecting him to the firearms was dispositive.
Furthermore, under N.J.S.A. 2C:39-2, there is a statutory
presumption that a firearm found in a vehicle is in the possession
of all of the occupants, except under delineated exceptions, none
of which apply in this case.
As to the disposition, we note that "[t]he rehabilitation of
juvenile offenders is the goal of the juvenile justice system."
State in Interest of K.O., 217 N.J. 83, 92 (2014). The Juvenile
Code "balances its intention to act in the best interests of the
juvenile and to promote his or her rehabilitation with the need
to protect the public welfare." Ibid. "While rehabilitation of
juveniles has historically been at the heart of juvenile justice,
modern experiences with serious juvenile crimes have elevated the
importance of punitive sanctions in juvenile dispositions." Ibid.
(citations omitted). In this regard, our Supreme Court has noted
that "the Legislature underscored that the Code's sanctions are
not just for the purpose of accomplishing rehabilitation but are
also designed to promote accountability and protect the public."
Ibid. (citation omitted). The judge's decision that "the
13 A-4841-14T1
aggravating factors qualitatively and quantitatively substantially
outweigh[ed]" the sole mitigating factor finds ample support in
the record and we discern no basis upon which to disturb his
decision.
Affirmed.
14 A-4841-14T1