                                   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                             NOT FOR PUBLICATION WITHOUT THE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.
                                                                         A-4883-16T3
                                          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.




                                                                          A-4883-16T3
                                        3
        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
                                        5
            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
                                        6
            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
                                        7
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
                                           8
      (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
                                 9
             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
                                        10
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.




                                                                           A-4883-16T3
                                       11
      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).

                                                                         A-4883-16T3
                                      12
Affirmed.




                 A-4883-16T3
            13
