                            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                       NOT FOR PUBLICATION WITHOUT THE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-4891-14T3

STATE OF NEW JERSEY
IN THE INTEREST OF G.M.,

     A Juvenile.
_____________________________________

             Argued November 30, 2016 – Decided March 13, 2017

             Before Judges Alvarez and Manahan.1

             On appeal from Superior Court of New Jersey,
             Chancery Division, Family Part, Camden County,
             Docket No. FJ-04-998-15.

             Ruth E. Hunter, Designated Counsel, argued the
             cause for appellant G.M. (Joseph E. Krakora,
             Public Defender, attorney; Ms. Hunter, on the
             brief).

             Maura G. Murphy, Assistant Prosecutor, argued
             the cause for respondent State of New Jersey
             (Mary Eva Colalillo, Camden County Prosecutor,


1
  Hon. Carol E. Higbee was a member of the panel before whom this
case was argued. The opinion was not approved for filing prior
to Judge Higbee's death on January 3, 2017. Pursuant to R. 2:13-
2(b), "Appeals shall be decided by panels of 2 judges designated
by the presiding judge of the part except when the presiding judge
determines that an appeal should be determined by a panel of 3
judges." The presiding judge has determined that this appeal
remains one that shall be decided by two judges. Counsel has
agreed to the substitution and participation of another judge from
the part and to waive reargument.
           attorney; Ms. Murphy, of counsel and on the
           brief).

PER CURIAM

     G.M. appeals from an adjudication of delinquency for conduct

which, if committed by an adult, would constitute the crime of

third-degree aggravated assault against a teacher, N.J.S.A. 2C:12-

1(b)(5)(d), and simple assault, a disorderly persons offense,

N.J.S.A. 2C:12-1(a)(1).     We affirm in part and reverse in part.

     We derive the following facts from the hearing record.                 At

approximately 8 a.m. on October 22, 2014, D.B., the juvenile

victim, was in the cafeteria at Glen Landing Middle School in

Gloucester Township.    G.M. approached D.B. and asked, "Did you say

my girlfriend looks like an alien?"         D.B. responded, "What?" G.M.

then hit D.B. on the right side of his jaw.             D.B. responded with

a closed-fist hit to G.M.

     Donna Clark, a health and physical education teacher at Glen

Landing, was assigned to breakfast duty in the cafeteria that

morning.     Clark noticed that the other teacher on duty, Hilary

Vilary, had a "look of panic on her face" and then observed "two

students   physically   .   .   .   going   at   it."    Clark   immediately

approached G.M. and D.B. and said, "Stop. Cut it out," as she

attempted to separate them with Vilary's help.




                                      2                              A-4891-14T3
       After   Vilary    "contained"   D.B.,   "[h]e    didn't   continue   to

pursue the fight."        However, after Clark had G.M. "back in the

corner and kind of . . . contained," he "pushed through [her]" to

continue the fight.        G.M. pushed Clark's left arm and shoulder

down and went after D.B. again as he was being escorted out of the

cafeteria.     This time, Clark "bear hug[ged] him and rip[ped] him

away from [D.B.]"        According to Clark, this took "all [of her]

might, basically, to rip him off of [D.B.]"

       Clark noted that she felt no pain the first time G.M. pushed

her.    However, she was exhausted after the fight since she "had

to use all of [her] energy and force to contain [G.M.]"             The only

physical mark on Clark after the fight was a scratch on her arm,

which she said she did not have prior to the fight.          After watching

the surveillance video, Clark testified that she could not see,

and did not know, who scratched her arm.               Clark further stated

that G.M. neither punched nor struck her during either the initial

or second interaction.

       On October 27, 2014, a Camden County juvenile complaint

charged    G.M.   with    third-degree     aggravated   assault   against    a

teacher, N.J.S.A. 2C:12-1(b) (5) (d) (amended count one), and a

disorderly persons simple assault, N.J.S.A. 2C:12-1(a) (1) (count

two).     A bench trial was held on February 24, 2015.             At trial,

G.M. argued that he was acting in self-defense when he slapped

                                       3                             A-4891-14T3
D.B. and afterward, a mutual fight ensued.              G.M. further argued

that if the judge did not find the initial slap was self-defense,

the     resulting    fight   should   be    viewed    as   a   mutual     fight.

Furthermore, G.M. argued that he never assaulted Clark.

      The judge found D.B.'s testimony regarding the fight credible

and that he was struck in the face by G.M. without justification.

G.M. was adjudicated delinquent based upon the finding that he

committed a simple assault.           Regarding the teacher, the judge

held:

            [T]he [t]eacher is trying to break up the
            fight.   The [t]eacher is trying to avoid
            additional injury from either party. She was
            not taking sides in defending one side or the
            other side.

                 The other side stopped fighting. [D.B.]
            picked up his book bag and was summoned to the
            principal's [o]ffice.     Sounds appropriate.
            So, the one [t]eacher who remains here is the
            [t]eacher by the name of Donna Clark. And she
            is attempting to prevent [G.M.] from returning
            to this altercation.

                 That, to     me, is an extremely obvious bit
            of testimony      that he was attempting to get
            [loose] from       [Clark] to continue [] the
            altercation.      That, to me, is the only clear
            resolution of     the facts in this case.

      Based upon these findings, the judge held that by pushing and

shoving    Clark,    G.M.    "certainly    not   purposely,    or   maybe    not

knowingly;    but,    recklessly   cause[ed]     or   attempt[ed]    to    cause

. . . bodily injury."           The judge found that Clark's physical

                                      4                                 A-4891-14T3
exhaustion after restraining G.M. demonstrated his attempt to

cause her bodily injury.        Accordingly, the judge determined that

G.M. committed an assault of a teacher, and that since Clark's

scratch constituted bodily injury, his conduct constituted a crime

of the third-degree.

       After a disposition hearing, G.M. was sentenced to two years'

probation.    In addition to complying with all standard conditions

of    probation,   G.M.   was   ordered   to   complete   thirty   hours    of

community service, have no contact with D.B., attend an anger

management class, and write an apology to the victims. A fourteen-

day plan was established by the judge to determine whether G.M.

needed additional counseling.

       A motion for reconsideration was filed and scheduled for

12:30 p.m. on April 30, 2015.         When neither defense counsel nor

G.M. appeared after an hour-and-a-half beyond the scheduled time,

the State moved for dismissal.            The judge instead denied the

motion, holding that, contrary to G.M.'s assertion, the matter was

distinguishable from In re S.B.2 and that here, "[t]he child was

grabbed by the [] [t]eacher.       The [t]eacher dragged him across the

[c]afeteria to get him away from the other child that he was




2
    In re S.B., 333 N.J. Super. 236 (App. Div. 2000).

                                     5                               A-4891-14T3
involved with in . . . a fight of some nature.      At that juncture,

the child resisted, causing the [teacher] some injury."

      Shortly after the decision, G.M.'s counsel appeared in court

and requested to be heard on the motion, which the judge allowed.

Counsel argued that S.B. was directly controlling in this matter.

The   judge   disagreed   and,    again,   denied   the    motion    for

reconsideration.   This appeal followed.

      G.M. raises the following points on appeal:

                                 POINT I

           THERE WAS NO CREDIBLE EVIDENCE IN THE RECORD
           TO SUPPORT THE COURT'S DISPOSITION OF THE
           JUVENILE AS GUILTY OF THIRD-DEGREE AGGRAVATED
           ASSAULT AGAINST A TEACHER AND THEREFORE THE
           DISPOSITION ON COUNT ONE MUST BE VACATED.

                             POINT II

           THERE WAS NO CREDIBLE EVIDENCE TO SUPPORT THE
           COURT'S DISPOSITION OF THE JUVENILE AS GUILTY
           OF ANYTHING MORE THAN A PETTY DISORDERLY
           PERSONS OFFENSE ON COUNT TWO BECAUSE THE
           RECORD CLEARLY INDICATED THAT IT WAS A MUTUAL
           FIGHT.

                             POINT III

           THE SENTENCE MUST BE VACATED AND THE MATTER
           REMANDED FOR A RESENTENCING HEARING.

      A trial court's factual findings are "binding on appeal when

supported by adequate, substantial, credible evidence."       State In

re W.M., 364 N.J. Super. 155, 165 (App. Div. 2003).       Our deference

to those findings "is especially appropriate 'when the evidence

                                    6                           A-4891-14T3
is largely testimonial and involves questions of credibility.'"

Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return

of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).               However, where

the issue presented is one of law, "our review is 'de novo and we

owe no deference to the trial [judge]'s interpretation of the law

and the legal consequences that flow from established facts.'"

State v. Stalter, 440 N.J. Super. 548, 553 (App. Div.) (alteration

in original) (quoting State v. Bradley, 420 N.J. Super. 138, 141

(App. Div. 2011)), certif. denied, 223 N.J. 355 (2015).

        On appeal, G.M. contends that there was no testimony or

credible evidence presented at trial that he assaulted Clark and,

therefore, the judge erred in finding that a third-degree assault

occurred.      A person is guilty of aggravated assault if they

"[c]ommit[] a simple assault as defined in paragraph (1), (2)[,]

or (3) of subsection a. of this section upon . . . [a] teacher

.   .   .   while    clearly     identifiable   as   being    engaged    in   the

performance of his duties[.]"          N.J.S.A. 2C:12-1(b)(5)(d).         Simple

assault is defined as an "[a]ttempt[] to cause or purposely,

knowingly     or    recklessly    caus[e]   bodily   injury    to   another[.]"

N.J.S.A. 2C:12-1(a)(1).           Bodily injury is defined as "physical

pain, illness or any impairment of physical condition."                 N.J.S.A.

2C:11-1(a).        Aggravated assault under N.J.S.A. 2C:12-1(b)(5)(d)

is a third-degree crime "if the victim suffers bodily injury,

                                        7                                A-4891-14T3
otherwise it is a crime of the fourth degree."         N.J.S.A. 2C:12-

1(b).   "Not much is required to show bodily injury."        S.B., supra,

333 N.J. Super. at 244 (citing N.B. v. T.B., 297 N.J. Super. 35,

43 (App. Div. 1997)).

     Here, the judge    focused on G.M.'s actions after he was

initially restrained by Clark.         The judge noted that Clark was

attempting to prevent G.M. from reengaging D.B. in a fight.              As

the judge noted, "[G.M.] was attempting to get [loose] from [Clark]

to continue [] the altercation."          The judge found that this

struggle could have led to the bodily injury, thus elevating the

aggravated assault to a third-degree aggravated assault.            Clark

specifically testified that she did not have the scratch prior to

the fight and that she engaged almost exclusively with G.M. while

Vilary was engaged with D.B.       Given our review of the hearing

record and in accord with the deference we afford to the judge,

we are satisfied     there was sufficient credible circumstantial

evidence for the judge to conclude that G.M. committed a third-

degree aggravated assault against Clark by causing bodily injury

while she was acting in the performance of her duties as a teacher.

     G.M.   next   argues   that   he    was   erroneously   adjudicated

delinquent as he and D.B. engaged in a mutual fight.         We disagree.

"Simple assault is a disorderly persons offense unless committed

in a fight or scuffle entered into by mutual consent, in which

                                   8                              A-4891-14T3
case it is a petty disorderly persons offense."                N.J.S.A. 2C:12-

1(a).

     It   is    unrefuted    that   G.M.        instigated    the      "fight"     by

approaching and striking D.B. As Vilary testified, G.M. approached

D.B. and slapped him.       D.B. ceased any physical contact with G.M.

after the teachers intervened; indicating that he was not a willing

participant in a fight, but only defending himself.                    Again, given

our review of the hearing record, we are satisfied there was

sufficient credible evidence to support the judge's adjudication

of G.M. based upon his assaultive conduct.

     Finally, G.M. asserts that the judge failed to consider the

appropriate     factors     outlined    in      N.J.S.A.     2A:4A-43(a)         when

determining the disposition.           The statute requires that a court

shall   weigh   enumerated    factors      in   determining       an   appropriate

disposition of a juvenile:

           (1) The    nature     and    circumstances        of     the
           offense;

           (2) The degree of injury to persons or damage
           to property caused by the juvenile's offense;

           (3) The juvenile's age, previous record,
           prior social service received, and out-of-home
           placement history;

           (4) Whether the disposition supports family
           strength, responsibility and unity and the
           well-being  and   physical  safety  of  the
           juvenile;


                                       9                                    A-4891-14T3
         (5) Whether the disposition provides for
         reasonable participation by the child's
         parent, guardian, or custodian, provided,
         however, that the failure of a parent or
         parents to cooperate in the disposition shall
         not be weighed against the juvenile in
         arriving at an appropriate disposition;

         (6) Whether the disposition recognizes and
         treats the unique physical, psychological, and
         social characteristics and needs of the child;

         (7) Whether the disposition contributes to
         the   developmental  needs   of   the   child,
         including the academic and social needs of the
         child where the child has intellectual
         disabilities or learning disabilities;

         (8) Any other circumstances related to the
         offense and the juvenile's social history as
         deemed appropriate by the court;

         (9) The impact of the offense on the victim
         or victims;

         (10) The impact      of      the   offense   on   the
         community; and

         (11) The threat to the safety of the public
         or any individual posed by the child.

    Here, the judge did not reference these factors "that the

court must weigh when determining the appropriate disposition."

In re C.V., 201 N.J. 281, 295 (2010) (emphasis added).           In the

absence of those required findings, we are constrained to remand

for a new disposition hearing.

    Affirmed in part, reversed in part and remanded for re-

disposition.   We do not retain jurisdiction.


                                 10                              A-4891-14T3
