STATE OF NEW JERSEY IN THE INTEREST OF T.M., JR. (FJ-03-0373-17, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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 othe r cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2883-17T2
STATE OF NEW JERSEY IN
THE INTEREST OF T.M., Jr.,
a Juvenile.
__________________________
Submitted October 31, 2019 – Decided August 11, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FJ-03-0373-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Janet Anne Allegro, Designated Counsel, on
the briefs).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Jennifer Bentzel Paszkiewicz,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
T.M., Jr. (T.M.), a juvenile, appeals from the February 13, 2018
adjudication of delinquency for five offenses that would constitute criminal acts
if committed as an adult and the sentence imposed for those offenses . We
affirm.
I.
Burlington County officials charged T.M. with the following offenses
arising from the October 23, 2016 home-invasion robbery and shooting of a
young man in Willingboro: first-degree robbery, N.J.S.A. 2C:15-1(a)(1);
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1);
second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-
4(a); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and
N.J.S.A. 2C:15-1(a)(1); and second-degree burglary, N.J.S.A. 2C:18-2(a)(1).
At trial, the State presented evidence of the following version of events:
T.M., his brother, and T.M.'s girlfriend, A.P.K., conspired to rob the victim at
the victim's home. A.P.K., who had previously dated the victim, accepted an
invitation to his home for a party. When she and the victim were alone in his
bedroom, A.P.K. sent T.M., through a third party, a description of the layout of
the home and location of the room in which the victim could be found.
While A.P.K. and the victim were in bed, T.M. and his brother, who was
armed with a handgun, broke into the house, entered the bedroom, and attempted
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to restrain the victim. During the struggle, T.M.'s brother shot the victim in the
head.
T.M., his brother, and A.P.K. left the home with various items belonging
to the victim, including two video game consoles. The victim survived the
shooting and identified T.M., his brother, and A.P.K., all of whom he had known
for many years from attending the same school, as the assailants. In an interview
with police shortly after the shooting, A.P.K. identified T.M. and his brother as
having participated in the armed robbery.
Before trial, the State moved pursuant to N.J.R.E. 901 and 902 to
authenticate records from Facebook, a social media platform. The records
related to a Facebook account that T.M. admitted was his, but which he claimed
had been hacked prior to the shooting and was controlled by an unknown person.
The records include inculpatory messages connecting the account holder to the
crimes and the sale of the victim's stolen property. In addition, the records show
photographs of T.M., his family and friends, and messages that identify T.M. as
the person in control of the account, all posted after the shooting.
In an oral opinion, the trial court found the State had authenticated the
Facebook records:
In this case . . . the State subpoenaed . . . documents
that it believed were necessary for this case from
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Facebook and with that came a notarized statement.
The Court did review the notarized statement that was
set forth in the motion that was filed.
And the Court does find that that does self-authenticate
pursuant to Evidence Rule 902. Specifically,
subsection (h) which reads, "Documents accompanied
by a certificate of acknowledgment executed in the
manner provided by law or by a notary public . . . or
other officer authorized by law to take
acknowledgments."
So the Court does find that what was responded to by
Facebook with respect to the warrant, based upon that
notarized statement is, in fact, what was provided. So
the Court does find that it – that the documents are
authenticated.
In a separate oral opinion, the trial court addressed the admissibility of the
Facebook records. The initial question examined by the court was whether the
records related to an account belonging to T.M. The court found "very credible"
testimony from Detective Jason Galiazzi linking both the unique internet address
of the account and its public usernames, "R.B.T."1 and "M.T.J." to T.M., and
explaining the slang and nicknames in the records. Although the State did not
move to qualify Galiazzi as an expert, he was questioned at length regarding his
1
We use initials to protect T.M.'s identity. The record contains evidence the
usernames used by T.M. would readily identify him in his community.
A-2883-17T2
4
training and experience. The court explained its findings with respect to T.M.'s
control of the Facebook account:
When I looked at all of the exhibits, there were three
exhibits from the Facebook business records that stood
out in my mind . . . . [T]here is a message from
someone named [D.K.] to [R.B.T.] And it says,
"What's your address?" . . . . And the response from
[R.B.T.] is, ["123 Main St."] 2
We know that at or about October of 2016 that's where
[T.M.] lived. . . . I then looked at 56B . . . [a]nd the
text is, "Happy birthday." The [date of the message] is
xx-xx-2016[3] . . . and it's sent to or posted to [R.B.T.]
And the user, [R.B.T.] text[s] back, "Thank you, Wya."
We know that xx-xx is [T.M.'s] birthday . . . .
And then we also have 58B. And towards the top of the
page posted on 12-25-2016. . . . "L.M., T.M., Merry
Christmas to my parents, Love you." And that is posted
by [R.B.T.] And the response to that from L.M. is,
"Merry Christmas, son. Love you. The struggle is
over." And it goes on, there's back and forth. But we
know that L.M. and T.M. are the parents of [T.M.], and
that's another connection.
The court acknowledged T.M.'s argument his Facebook account had been
hacked. However, the court found the only evidence offered in support of this
contention, the testimony of T.M. and A.P.K., lacked credibility. In addition,
2
A fictitious address is used to protect T.M.'s identity.
3
The date, which is after the date of the shooting, is omitted to protect T.M.'s
identity.
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the court noted it was unlikely that photographs of T.M., his family, and friends
would appear in the records of the account after the alleged hacking.
With respect to admission of the Facebook messages pursuant to N.J.R.E.
803(b)(1), the court found "anything that says the author is [R.B.T.] can be
moved into evidence under 803(b)(1) as the party's own statements . . . . [T]he
Court has found that the State met its burden prima facie that [R.B.T.] is [T.M.],
they're clearly statements of his." In addition, the court admitted the remaining
Facebook records, concluding they were either business records pursuant to
N.J.R.E. 803(c)(6) or not hearsay because they were offered "not for the truth of
the matter asserted, but simply to show that these posts continued to be made"
after the alleged hack.
At trial, the victim testified as follows: After T.M. started dating A.P.K.,
a contentious relationship developed between the victim, T.M., and T.M.'s
brother. On the evening prior to the shooting, A.P.K. attended a small gathering
at the victim's house. He and A.P.K. went to sleep in his bedroom at about
midnight.
The victim was awakened between 6:00 a.m. and 7:00 a.m. by T.M. and
his brother kicking open his bedroom door. As T.M. began assaulting the victim,
A.P.K. rolled off the bed, got dressed, and fled. As the victim stood up, T.M.'s
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brother implied that the victim had kidnapped A.P.K. and demanded to know
where he kept guns and money. When the victim moved toward his closet,
T.M.'s brother shot the victim, with the bullet grazing the side of his head. As
he lay on the floor drifting in and out of consciousness, the victim watched his
attackers steal his possessions.
A.P.K. testified her statement to police identifying T.M. and his brother
as being involved in the armed robbery was a lie. She recounted the relevant
events as follows: On the evening before the shooting, she returned home from
a party around 1:30 a.m. As she stood outside her home, the victim arrived and
pulled her by her hair into his car and drove her to his home. She and the victim
went to his bedroom where they argued and eventually fell asleep. A.P.K. left
as soon as she awoke in the morning and did not witness a confrontation in the
victim's bedroom. When asked about the Facebook records, A.P.K.
acknowledged that photos associated with the account were of T.M. but testified
that the account had been hacked.
According to the testimony of T.M., his paternal grandmother, B.D., and
his parents, during the afternoon before the armed robbery, T.M. and his parents
traveled to Jersey City to celebrate a family birthday. T.M. and his father spent
the overnight hours at B.D.'s home. B.D. testified that on the morning of the
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armed robbery, she awoke at 5:00 a.m. and saw T.M. and his father asleep in her
living room. On cross-examination, B.D. admitted she sometimes has trouble
remembering things, including T.M.'s full name. T.M. testified that he remained
in the Jersey City area until around 7:00 p.m. on the day of the armed robbery.
T.M. testified that the Facebook account belonged to him until October
10, 2016, when it was hacked. He claimed he immediately told his family about
the hack but did not inform his friends until a few weeks later. He claimed after
October 10, 2016, he had no control over the account and did not post there.
On October 26, 2017, the court issued an oral decision adjudicating T.M.
delinquent on all charges. The court found that the victim was one of the only
non-law enforcement witnesses whose testimony was credible. Acknowledging
that he had a prior weapons conviction, the court found the victim's recollection
of the events believable and consistent with his statement to police.
The court found A.P.K.'s testimony to lack credibility, as it contradicted
her earlier statement to police and other evidence presented at trial. The court
did not believe the victim had kidnapped A.P.K., and found it more believable
that she went to his house willingly and observed the robbery firsthand.
The court found T.M.'s claim that his Facebook account had been hacked
to lack credibility. The court noted evidence the alleged "hacker" wrote
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messages to T.M.'s mother, referring to her as "mom," and made references to
his brother well after October 10, 2016, despite T.M.'s claim to have promptly
notified his family of the hack. The court also discussed Facebook messages
from T.M. detailing events leading up to and after the armed robbery, including
between T.M. and his brother discussing their options if caught by police.
Finally, the court did not find credible T.M.'s alibi, which was inconsistent
with time stamps of Facebook messages placing T.M. in Willingboro at the time
of the armed robbery. For example, on October 22, 2016, at approximately
11:00 p.m., T.M.'s Facebook account message to a friend reads "Just got back
out here," which the court found meant T.M. had returned to Willingboro from
Jersey City. At 5:00 a.m. on October 23, 2016, at a time when T.M., his father,
and grandmother testified he was sleeping in Jersey City, his Facebook account
sent a message saying "We walkin'. I am on foot. We in Millbrook Note."
Millbrook is a park located near the victim's home. The court concluded the
State proved beyond a reasonable doubt T.M. was present at the victim's home
at the time of the incident with the purpose of robbing and harming him.
At sentencing, the court merged the conspiracy charge with the robbery
charge and sentenced T.M. to four years in the custody of the Juvenile Justice
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Commission (JJC) for robbery, as well as concurrent three-year terms for
burglary and the two weapons offenses.
This appeal followed. T.M. makes the following arguments.
POINT I
THE COURT'S FINDING OF DELINQUENCY
MUST BE REVERSED AND THE MATTER
REMANDED SINCE THE COURT MISAPPLIED
THE RELEVANT EVIDENCE RULES WHEN IT
FOUND THE STATE PRESENTED PRIMA FACIE
EVIDENCE THAT THE FACEBOOK ACCOUNT
BELONGED TO T.M. AND ERRONEOUSLY
ADMITTED THE COMMUNICATIONS INTO
EVIDENCE.
A. THE STATE DID NOT PRESENT PRIMA
FACIE EVIDENCE THAT THE FACEBOOK
ACCOUNT BELONGED TO T.M.
B. THE FACEBOOK POSTS COULD ONLY
HAVE BEEN SUBMITTED FOR [THEIR] TRUTH.
C. THE BUSINESS RECORD EXCEPTION DOES
NOT APPLY.
D. THE FACEBOOK EVIDENCE IS MORE
PREJUDICIAL TH[A]N PROBATIVE.
POINT II
DETECTIVE GALIAZZI[] WAS NEVER
QUALIFIED AS AN EXPERT BY THE COURT,
THEREFORE HIS TESTIMONY WAS
INADMISSIBLE.
A-2883-17T2
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POINT III
THE COURT'S FINDING OF DELINQUENCY WAS
NOT SUPPORTED BY SUFFICIENT CREDIBLE
EVIDENCE IN THE RECORD AND MUST BE
REVERSED.
POINT IV
THE SENTENCE IMPOSED BY THE COURT WAS
EXCESSIVE.
II.
"In reviewing a trial court's evidential ruling, an appellate court is limited
to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.
6, 12 (2008). "Under that standard, an appellate court should not substitute its
own judgment for that of the trial court, unless 'the trial court's ruling was so
wide of the mark that a manifest denial of justice resulted.'" State v. Kuropchak,
221 N.J. 368, 385-86 (2015) (internal quotations omitted) (quoting State v.
Marrero, 148 N.J. 469, 484 (1997)).
In State v. Hannah, 448 N.J. Super. 78, 89 (App. Div. 2016), we held that
"[w]e need not create a new test for social media postings" because N.J.R.E. 801
and 901 adequately address the question of their admissibility. We explained :
[a]uthenticity can be established by direct proof – such
as testimony by the author admitting authenticity – but
direct proof is not required. "A prima facie showing
may be made circumstantially. Such circumstantial
A-2883-17T2
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proof may include demonstrating that the statement
divulged intimate knowledge of information which one
would expect only the person alleged to have been the
writer or participant to have."
[Id. at 90 (internal quotations and citations omitted)
(quoting Konop v. Rosen, 425 N.J. Super. 391, 411
(App. Div. 2012)).]
Also, "under the reply doctrine, a writing 'may be authenticated by
circumstantial evidence establishing that it was sent in reply to a previous
communication.'" Ibid. (quoting State v. Mays, 321 N.J. Super. 619, 629 (App.
Div. 1999)). In a bench trial, "considering the judge's dual role with regard to
its admission and weight, the better practice . . . will often warrant the admission
of the document [followed by] a consideration by the judge, as factfinder" of its
evidentiary value. State v. Tormasi, 443 N.J. Super. 146, 157 (App. Div. 2015).
Having carefully reviewed the record in light of these principles, we find
no abuse of discretion in the trial court admitting the records of T.M.'s Facebook
account, its determination that T.M. was the person communicating under the
user names associated with the account, or its rejection of T.M.'s claim that the
account had been hacked prior to the armed robbery. The record contains ample
support for each of these conclusions.
We also find no error in the trial court's determination regarding the
admissibility of the Facebook records over T.M.'s hearsay objections. The
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records are business records of Facebook that were "made in the regular course
of business[,] and it was the regular practice of that business to make" them.
N.J.R.E. 803(c)(6).4 In addition, the messages from T.M. relating to the armed
robbery, his geographic proximity to the crimes, and his attempt to sell the
victim's stolen property are T.M.'s own statements admissible against him as an
exception to hearsay. N.J.R.E. 803(b)(1).
Nor do we find the Facebook records should not have been admitted
because their probative value was substantially outweighed by the risk of undue
prejudice. N.J.R.E. 403. The probative value of the records is strong, given that
they link T.M. to the crimes both directly and through geographic proximity.
The risk of undue prejudice, on the other hand, is limited in a bench trial where
the court is well equipped to determine the weight to give evidence when making
fact findings.
III.
Because the question of Galiazzi's qualifications as an expert was not
raised in the trial court, we review T.M.'s arguments under a plain error standard.
State v. Ross, 229 N.J. 389, 407 (2017). Our inquiry is to determine whether
4
Citations to the New Jersey Rules of Evidence are from the version of the rules
prior to the revisions effective July 1, 2020.
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the alleged error was "clearly capable of producing an unjust result . . . ." R.
2:10-2. Under this standard, reversal is required if there was an error "sufficient
to raise a reasonable doubt as to whether [it] led [the court] to a result it
otherwise might not have reached." State v. Green, 447 N.J. Super. 317, 325
(App. Div. 2016) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
"If a witness is not testifying as an expert, the witness' testimony in the
form of opinions or inferences may be admitted if it: (a) is rationally based on
the perception of the witness and (b) will assist in understanding the witness'
testimony or in determining a fact in issue." N.J.R.E. 701. Pursuant to this rule,
"[c]ourts in New Jersey have permitted police officers to testify as lay witnesses,
based on their personal observations and their long experience in areas where
expert testimony might otherwise be deemed necessary." State v. Kittrell, 279
N.J. Super. 225, 235 (App. Div. 1995) (alteration in original) (quoting State v.
LaBrutto, 114 N.J. 187, 198 (1989)); see also State v. De Luca, 325 N.J. Super.
376, 393 (App. Div. 1999) (holding that a police officer could testify that
footprints left in the snow were similar to the defendant's boots); Trentacost v.
Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978) (holding that a detective who
investigated between seventy-five and one hundred crimes in a particular
A-2883-17T2
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neighborhood over a three-year period could offer lay opinion testimony that the
neighborhood was a high-crime area).
If the testimony exceeds the bounds of proper lay opinion, by utilizing the
officer's "experience, training, [and] education[,]" the officer should be qualified
as an expert. Kittrell, 279 N.J. Super. at 236; N.J.R.E. 702. However, if a proper
foundation establishes the officer's specialized experience and training on the
matter, and there is enough evidence to qualify the officer as an expert, any error
in failing to qualify the officer as an expert should be considered harmless. 279
N.J. Super. at 236; see also State v. Hyman, 451 N.J. Super. 429, 448-50 (App.
Div. 2017) (finding that although interpretation of "street slang" should have
been reserved for expert testimony, police lay witness interpretation of street
slang was harmless because the testifying officer could have been qualified as
an expert based on his training and experience).
Galiazzi provided in-depth testimony about the Facebook investigation
and the intricacies of social media, usernames, and internet addresses. He also
explained the common meaning of nicknames and slang terms used in the
Facebook records. This testimony called upon Galiazzi's experience, training,
or education and should have been presented only after the trial court qualified
A-2883-17T2
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him as an expert. Hyman, 451 N.J. Super. at 448-49; Kittrell, 279 N.J. Super.
at 236.
However, the record contains detailed testimony establishing the officer's
specialized experience and training on the matters about which he testified to
qualify him as an expert. Also, each time Galiazzi was asked to translate an
abbreviation or slang in the Facebook records, he answered based on his
"training and experience on undercover investigations and the use of slang and
abbreviations in text messages." Based on this record, we conclude any error in
failing to qualify Galiazzi as an expert was harmless.
IV.
We do not agree with T.M.'s argument that the trial court's adjudication
of delinquency was not supported by sufficient credible evidence in the record.
Appellate review of a trial court's factual findings in a juvenile delinquency trial
is extremely narrow. State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div.
2000). We "give deference to those findings of the trial judge which are
substantially influenced by his or her opportunity to hear and see the witnesses
and have the 'feel' of the case . . . ." Ibid. (quoting State v. Locurto, 157 N.J.
463, 471 (1999)). Thus, we must determine whether the trial court findings were
based on "sufficient credible evidence present in the record as a whole." Ibid.
A-2883-17T2
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We will disturb the trial court decision only if it was "clearly a mistaken one and
so plainly unwarranted that the interest of justice demand[s] intervention and
correction . . . ." Ibid.
Our careful review of the record uncovered ample evidence supporting the
trial court's adjudication of delinquency. The victim, who was familiar with
T.M., identified him as an assailant. A.P.K. also identified T.M. as a participant
in the crimes, a statement she attempted to recant at trial in testimony the court
found to be lacking in credibility. T.M.'s attempt to insulate himself from the
inculpatory messages on his Facebook account by claiming the account was
hacked was rejected by the trial court, which had the opportunity to evaluate the
veracity of his testimony. T.M.'s alibi was contradicted by his Facebook
messages admitting he was near the victim's home at the time of the shooting,
and in possession of the victim's stolen property.
V.
"Appellate review of the length of a sentence is limited." State v. Miller,
205 N.J. 109, 127 (2011). We are to affirm a sentence, even if we would have
imposed a different one, so long as the sentencing judge "properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005)
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(quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). "In general, a trial court
should identify the relevant aggravating and mitigating factors, determine which
factors are supported by a preponderance of evidence, balance the relevant
factors, and explain how it arrives at the appropriate sentence." O'Donnell, 117
N.J. at 215.
We must affirm a sentence "unless (1) the sentencing guidelines were
violated; (2) the aggravating and mitigating factors found by the sentencing
court were not based upon competent and credible evidence in the record; or (3)
'the application of the guidelines to the facts of [the] case makes the sentence
clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes,
217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)). "An appellate court may also remand for resentencing if
the trial court considers an aggravating factor that is inappropriate to a particular
defendant or to the offense at issue." Ibid.
Where a juvenile has been adjudicated delinquent, the trial court may,
after analyzing the factors enumerated in N.J.S.A. 2A:4A-43(a) and N.J.S.A.
2A:4A-44(a), exercise its discretion to order incarceration or other alternative
sentencing. N.J.S.A. 2A:4A-43(b). If the court imposes a term of imprisonment,
it must "state on the record the reasons for imposing incarceration, including
A-2883-17T2
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any findings with regard to [the] factors" enumerated in the applicable
sentencing statutes. N.J.S.A. 2A:4A-44(d)(1). A first-degree crime other than
murder carries a maximum four-year term of incarceration. N.J.S.A. 2A:4A-
44(d)(1)(c).
The trial court found seven aggravating factors and one mitigating factor
were present. N.J.S.A. 2A:4A-44(a)(1)(a), (c), (d), (g), (i), (j), (l); N.J.S.A.
2A:4A-44(a)(2)(g). The court analyzed each factor, including T.M.'s history of
criminal convictions, in detail. The court noted that T.M.'s juvenile history
began when he was eleven. He received two JJC diversions, one for disorderly
conduct, the other for fourth-degree shoplifting and disorderly conduct. He was
subsequently adjudicated delinquent for third-degree burglary and placed on
probation for a year. He violated his probation by being adjudicated delinquent
for second-degree robbery and third-degree conspiracy. In February 2016,
shortly before the present offenses, T.M. was adjudicated delinquent for second-
degree aggravated assault. He was subsequently adjudicated delinquent for
disorderly conduct. Finally, while he was on a ankle bracelet for the present
offenses, T.M. was charged as an adult with third-degree aggravated assault, an
offense to which he entered a guilty plea.
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T.M. argues the trial court should have considered mitigating factors (c),
N.J.S.A. 2A:4A-44(a)(2)(c) ("[t]he juvenile did not contemplate that the
juvenile’s conduct would cause or threaten serious harm.") and (e), N.J.S.A.
2A:4A-44(a)(2)(e) ("[t]here were substantial grounds tending to excuse or
justify the juvenile’s conduct"). We see no error in the trial court not finding
these mitigating factors. The record belies any claim that T.M. did not
contemplate that a home-invasion armed robbery could cause or threaten serious
harm to the victim. Nor is there evidence tending to excuse or justify T.M.'s
conduct. The trial court found A.P.K.'s claim that she had been kidnapped to
lack credibility. In addition, even if T.M. had thought he was rescuing A.P.K.
from the victim, such a belief would not explain the theft of the victim's
property, or why T.M. did not call police to report A.P.K.'s abduction instead of
attempting an armed intervention to save her with his brother.
Affirmed.
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