STATE OF NEW JERSEY IN THE INTEREST OF D.R.-J. (FJ-18-0260-16, FJ-18-0261-16, AND FJ-18-0147-17, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4883-16T3
STATE OF NEW JERSEY
IN THE INTEREST OF D.R.-J.,
a Juvenile.
_____________________________
Submitted December 4, 2018 – Decided January 7, 2019
Before Judges Suter and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket Nos. FJ-18-0260-16, FJ-18-0261-16, and FJ-
18-0147-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Brian P. Keenan, Assistant Deputy Public
Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Perry Farhat, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an adjudication of delinquency entered by Judge
Anthony F. Picheca, Jr. on February 22, 2017, following a two-day bench trial.
D.R.-J. was charged with: first-degree robbery, pursuant to N.J.S.A. 2C:15-
1(a)(1); second-degree conspiracy to commit robbery, pursuant to N.J.S.A.
2C:5-2(a)(1); second-degree possession of a handgun, pursuant to N.J.S.A.
2C:39-4(a) for an unlawful purpose; second-degree unlawful possession of a
handgun, pursuant to N.J.S.A. 2C:39-5(b); third-degree criminal restraint,
pursuant to N.J.S.A. 2C:13-2(a); fourth-degree possession of marijuana,
pursuant to N.J.S.A. 2C:35-10(a)(4); and fourth-degree riot, pursuant to
N.J.S.A. 2C:33-1(a)(1).1
D.R.-J. pled guilty to possession of marijuana and fourth-degree riot.
Following trial, the judge adjudicated him delinquent on the remaining charges
and imposed a two-year sentence at the New Jersey Training School for Boys at
Jamesburg, along with requisite fees and penalties.
D.R.-J. had a Facebook account of "Dre Savage" that was registered with
his email address, and authenticated by E.M.,2 one of the three victims. J.B. and
S.R. were the others. After making arrangements on Facebook, D.R.-J. and two
males met the three victims in a parking lot on Class Place in New Brunswick,
with the intention of selling an Xbox game system to D.R.-J. Upon arrival, the
1
The latter two charges were issued out of Middlesex County.
2
We use initials to protect the privacy of the victims.
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2
victims noticed the suspects sitting in a Cadillac. They ducked down, ostensibly
to avoid being noticed as the victims drove closer.
After parking their TrailBlazer, S.R., exited the vehicle to meet with D.R.-
J., but it soon became apparent that no transaction was going to transpire because
D.R.-J. had a "blank face," according to E.M.'s account. As the two other
victims approached the trunk of the TrailBlazer in order to purportedly
effectuate the sale, several males wearing black facemasks "came out of the
bushes" and ran towards the victims' vehicle armed with a revolver and stun
guns. E.M. and J.B. were forced at gunpoint to get out of the car. J.B. was
forced to kneel with a stun gun pointed at his back, and another assailant pointed
a revolver at E.M. During this encounter, E.M. testified that he heard stun guns
sounding, and he observed one of them with the word "police" on the handle and
the other had a two-pronged fixture. After the assailants shouted, "where's the
money, where's the money?" the victims were robbed of a backpack, an iPhone,
a Louis Vuitton wallet, a driver's license, credit cards, and an Xbox game
system. D.R.-J. was involved with the robbery and fled the scene afterwards,
along with the other actors.
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E.M.3 reported the crimes to the New Brunswick police the following day.
At headquarters, he met with Officer Sean 4 Cahill and demonstrated for him on
a computer how he located D.R.-J. on Facebook and identified him from
photographs posted on his account, along with the other suspects. The man with
a distinctive "cross tattoo" between his eyes was also identified on D.R.-J.'s
Facebook page as the armed gunman by E.M. Officer Cahill recognized D.R.-
J. and matched his Facebook picture with a photograph on file in the police
department.
Afterwards, E.M. returned to headquarters the following day and provided
a recorded statement to Detective Andrew Weiss, who confirmed that D.R.-J.'s
Facebook photograph was registered with an email address owned by him. 5
Further, the cross tattoo detail led to a positive identification of Eric Inman, a
cousin of D.R.-J.'s, who was also familiar to the police. In combination, this
information led to the issuance of a search warrant for Inman's apartment located
at 11 Class Place, a short distance from the crime scene. A backpack and other
3
E.M. was charged with committing an unrelated "robbery and other crimes"
on the day in question in North Brunswick.
4
Also referred to as "Shawn" in the record.
5
D.R.-J.'s email address contains his first, middle and last names and ends with
gmail.com.
A-4883-16T3
4
items belonging to E.M. were recovered and identified by him, together with
two stun guns and black cloth facemasks. One of the stun guns had an attached
flashlight with the word "police" on it and was described by E.M. as the same
one used during the hold-up. Based upon this information, D.R.-J. was arrested
soon thereafter in the area of the incident, with marijuana found on his person.
Three witnesses testified at trial: E.M., Officer Cahill, and Detective Weiss. At
trial, E.M. identified D.R.-J. in the courtroom, and the stolen backpack.
Judge Picheca recounted the testimony and evidence presented at the
hearing and concluded:
So when all is reviewed, the [c]ourt has to determine
the credibility of the witness because it all hangs on the
credibility of the witness and I find as a matter of this
[c]ourt's determination that [E.M.] did testify credibly
and I find as a result of his testimony that - - and the
evidence before me that the defendant was clearly a
participant in this robbery.
And I cannot find any doubt in my mind that the
defendant wasn't aware that there was going to be this
robbery and that there was essentially a setup and while
he didn't have direct conversation with the victim, I
don't find that to be a necessary element of finding
culpability.
He was involved. He was identified. It does not appear
that when he was interviewed anything but his direction
to Facebook, the confirmation and circling of the
parties involved that he recognize[d]. The testimony
and identification is critical.
A-4883-16T3
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And [from] that point everything essentially flows from
there. Defendant was a participant. He was ID'd
correctly by [E.M.]. And as I said, the [c]ourt believes
his testimony. I don't believe he was lying about the
weapons, the use of them, the items that were taken,
that he was with the parties involved, was held and put
into fear of safety as a result of the presence of weapons
and that their use was not for a lawful purpose.
And I have no doubt he was a participant, was an
accomplice and the [c]ourt finds that there has been
beyond a reasonable doubt and in this [c]ourt's mind
weighing heavily on the credibility of - - of [E.M.] and
the consistency of what are the elements of the offenses
that he's been charged with.
As a result the [c]ourt finds that the defendant is guilty
of the charges, of first-degree robbery, conspiracy to
commit robbery, possession of a firearm for an
unlawful purpose, unlawful possession of a firearm and
criminal restraint, and that's the order of the [c]ourt.
For the first time on appeal, D.R.-J. argues that his convictions were
against the weight of the evidence, even though he never made a motion for a
new trial pursuant to Rule 3:20-1.
On appeal, defendant presents the following arguments:
POINT I
THE TRIAL JUDGE ERRED IN ADJUDICATING
THE JUVENILE DELINQUENT AFTER THE STATE
FAILED TO PROVE THE CHARGES BEYOND A
REASONABLE DOUBT. (Not Raised Below)
A-4883-16T3
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POINT II
THE TRIAL JUDGE ERRED IN FINDING THE
JUVENILE GUILTY OF THE CHARGES, WITHOUT
LISTING ANY OF THE ELEMENTS OF THE
OFFENSES AND MATCHING THE EVIDENCE TO
THOSE ELEMENTS, OR STATING WHAT IF ANY,
LESSER-INCLUDED OFFENSES WERE
CONSIDERED. (Not Raised Below)
I.
We first address D.R.-J.'s argument that the evidence did not establish
delinquency beyond a reasonable doubt and the judge's decision was against the
weight of the evidence. His argument has no merit. Generally, we will not
entertain the argument that an adjudication is against the weight of the evidence
unless the defendant moved for a new trial following the decision. R. 2:10-1.
Here, defendant failed to make such a motion. Consequently, his argument in
point one of his brief is procedurally barred.
That said, we will nevertheless, in the interests of justice, address the
argument on its merits. See Pressler & Verniero, Current N.J. Court Rules, cmt.
3 on R. 2:10-1 (2019); State v. Smith, 262 N.J. Super. 487, 511 (App. Div. 1993).
Our task is to "sift through the evidence 'to determine whether any trier of fact
could rationally have found beyond a reasonable doubt that the essential
A-4883-16T3
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elements of the crime were present.'" Smith, 262 N.J. Super. at 512 (quoting
State v. Carter, 91 N.J. 86, 96 (1982)).
Defendant claims the State prosecuted him on a theory of accomplice
liability; E.M. had no direct contact with D.R.-J.; and the victim only provided
vague statements as to D.R.-J.'s participation in the crime. Consequently, he
lacked "the mental state necessary to commit the offense" warranting reversal.
State v. Maloney, 216 N.J. 91, 105 (2013) (quoting State v. Whitaker, 200 N.J.
444, 458 (2009)). This argument requires little comment. It is well-established
that a trial court's fact-finding should be afforded great deference, especially in
matters requiring determination of witness credibility. State v. Locurto, 157
N.J. 463, 474 (1999). The judge's findings on appeal should be sustained, so
long as there is substantial proof in the record to support them. Id. at 472. Such
substantial proof is present here.
The judge adjudicated D.R.-J. delinquent of first-degree robbery set forth
in N.J.S.A. 2C:15-1 as follows:
a. Robbery defined. A person is guilty of robbery if, in
the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear
of immediate bodily injury; or
A-4883-16T3
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(3) Commits or threatens immediately to commit any
crime of the first or second degree.
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 theft or in immediate flight after the
attempt or commission.
b. Grading. Robbery is a crime of the second degree,
except that it is a crime of the first degree if in the
course of committing the theft the actor attempts to kill
anyone, or purposely inflicts or attempts to inflict
serious bodily injury, or is armed with, or uses or
threatens the immediate use of a deadly weapon.
The relevant sections of the conspiracy statute, N.J.S.A. 2C:5-2, provide:
a. Definition of conspiracy. A person is guilty of
conspiracy with another person or persons to commit a
crime if with the purpose of promoting or facilitating
its commission he:
(1) Agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) Agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
b. Scope of conspiratorial relationship. If a person
guilty of conspiracy, as defined by subsection a. of this
section, knows that a person with whom he conspires to
commit a crime has conspired with another person or
persons to commit the same crime, he is guilty of
A-4883-16T3
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conspiring with such other person or persons, whether
or not he knows their identity, to commit such crime.
c. Conspiracy with multiple objectives. If a person
conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are
the object of the same agreement or continuous
conspiratorial relationship. It shall not be a defense to
a charge under this section that one or more of the
objectives of the conspiracy was not criminal; provided
that one or more of its objectives or the means of
promoting or facilitating an objective of the conspiracy
is criminal.
d. Overt act. No person may be convicted of conspiracy
to commit a crime other than a crime of the first or
second degree or distribution or possession with intent
to distribute a controlled dangerous substance or
controlled substance analog as defined in chapter 35 of
this title, unless an overt act in pursuance of such
conspiracy is proved to have been done by him or by a
person with whom he conspired.
The judge noted that E.M. unwaveringly testified that "the parties that
were involved were laying in wait for this to happen and they - - as he identified
an individual with dreads as he said, another individual with a tattoo on his face,
he was able to testify, identify, and talk about the flashlight and stun gun . . . ."
The judge found E.M. "credible" after observing his demeanor, and that his
testimony was not "studied or rehearsed." Notably, neither E.B. nor S.R. were
called to testify, thereby making E.M.'s testimony all the more critical. There
was no doubt in the judge's mind that D.R.-J. "was clearly a participant in this
A-4883-16T3
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robbery" and that he was aware this situation "was essentially a setup." Lack of
a direct conversation between D.R.-J. and E.M. was not "a necessary element of
finding culpability" because D.R.-J." was involved[,]" "he was identified[,]" and
everything "flows from there." We agree.
No cross-examination called E.M.'s testimony into serious question. By
comparison, D.R.-J.'s uncorroborated claim that there was no conspiracy and
that he did not possess the mens rea to support an adjudication for robbery strain
credibility. The record has ample support for the trial judge's conclusion that
D.R.-J. was delinquent.
II.
Next we address D.R.-J.'s argument in point two of his brief that the judge
did not match the elements of the offenses to the evidence and whether lesser -
included offenses were considered. This argument is also raised for the first
time on appeal. This contention has no merit.
The judge aptly found, based upon the totality of the circumstances and
evidence, that D.R.-J. participated in the crimes and orchestrated the setup, the
ambush, the theft, and the use of weapons to intimidate the victims. A
considerable portion of the judge's opinion was devoted to these issues.
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There was "no doubt" in the judge's mind that D.R.-J. organized the setup
here leading to the robbery, the co-conspirators were armed, and the weapons
were uncovered. These findings substantiate first-degree robbery, N.J.S.A.
2C:15-1(1) and (2) because force and threats were used by D.R.-J. to put the
victims in fear of immediate bodily injury. No proof that D.R.-J. "shared" the
mens rea of the co-conspirators was required because the evidence showed he
possessed this element himself.
The theft statute provides:
a. Movable property. 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.
b. Immovable property. A person is guilty of theft if he
unlawfully transfers any interest in immovable property
of another with purpose to benefit himself or another
not entitled thereto.
[N.J.S.A. 2C:20-3.]
There was no reason for the judge to consider theft because weapons were
undeniably involved here. Thus, the judge's conclusion was correct.
To the extent we have not addressed any other issues raised by D.R.-J.,
we find that same are without sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(2).
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Affirmed.
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