STATE OF NEW JERSEY IN THE INTEREST OF D.C., A MINOR. false alarm

STATE OF NEW JERSEY IN 

THE INTEREST OF D.C., 

A MINOR. 

RECORD IMPOUNDED 

 NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

SUPERIOR COURT OF NEW JERSEY 

APPELLATE DIVISION 

DOCKET NO. A-1637-12T3 

______________________________________ 

June 18, 2014 

Before Judges Ashrafi and St. John. 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1338-12, FJ-20-1374-12. 

Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant D.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief). 

Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Grace H. Park, Acting Union County Prosecutor, attorney; Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Ms. Donnelly, on the brief). 

PER CURIAM 

D.C., a juvenile, appeals from an adjudication of delinquency following a bench trial for conduct which, if committed by an adult, would constitute third-degree transmitting a false public alarm, N.J.S.A. 2C:33-3(a), and A-1637-12T3 2 

fourth-degree aggravated assault of a public school employee, N.J.S.A. 2C:12-1(b)(5)(d). The trial judge imposed an aggregate twelve-month term of probation. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part. 

I. 

The charges against D.C. stemmed from two incidents that took place at Union High School (UHS) when he was a seventeen-year-old student. Around 1:00 p.m. on December 7, 2011, someone dislodged the protective cover of a fire-alarm "pull-box" located on a hallway wall inside UHS, thereby activating a "piercing, screeching sound" indicating that the protective cover had been removed. The buzzing was localized at the pull-box station only, and the fire alarm was not triggered. The school principal, Edward Gibbons, was in a room approximately thirty feet from the pull-box when he heard the warning buzzer, and quickly entered the hallway to inspect it. Gibbons secured the "dangling" cover back onto the pull-box after determining that there was no emergency. When Gibbons approached the area, he observed some "puzzled" and "frightened" students in the hallway "leaving the area." However, when he placed the cover back on the alarm, thus turning off the buzzer, the students "resumed doing what they were doing." A-1637-12T3 3 

Gibbons shortly thereafter requested that UHS security director Nicholas Ardito review the school's video surveillance system to find out what happened. Ardito located the relevant video footage, and played it for the principal. On the tape, Gibbons observed a male student wearing a white tee-shirt approach the area near the pull-box and raise his right arm towards it. Gibbons identified D.C. as the student in the surveillance video. He then asked UHS vice principal, Gerald Benaquista, to review the footage. After Benaquista identified D.C. as the individual on camera, Gibbons authorized school security guards to remove D.C. from class and escort him to Benaquista's office. 

Gibbons and Benaquista asked D.C. if he was the person who removed the cover from the pull-box. According to Gibbons, D.C. initially denied it, but upon being told by the two administra- tors that he had been captured on the video surveillance, D.C. professed to having "bumped into it" by mistake. D.C. was not given Miranda warnings prior to questioning, but was permitted to speak to his father on the telephone at some point while inside Benaquista's office. A school security guard may have been just outside the door, but there were no police officers present during the administrators' questioning of D.C. A-1637-12T3 4 

The police arrived afterwards and placed D.C. under arrest. On March 7, 2012, D.C. was charged by Union County Juvenile Complaint No. FJ-20-1338-12 with making a false public alarm, N.J.S.A. 2C:33-3(a). 

The second incident, resulting in the additional charge before us, occurred on February 6, 2012. Joseph Florio, a security officer at UHS, was outside the cafeteria directing students during the beginning of sixth period. Florio noticed D.C. walk past him in the hallway and return several minutes later. Florio decided to contact the main office to ascertain where D.C. was supposed to be during that period. He thereafter approached D.C. and asked to see his hallway pass. The pass listed D.C.'s name and ostensibly authorized him to proceed to a particular teacher's classroom in the "D-wing" of the building. However, Florio could not make out the authorizing signature on the pass, and knew that teacher to be absent from school. 

Florio then ordered D.C. to accompany him to the office for a conversation with the vice principal. D.C. became angry and cursed at Florio. As the pair were walking down the hallway, D.C. repeatedly attempted to grab the pass back from Florio. D.C. then "shoulder-checked" the guard into a locker just before entering the office, while simultaneously ripping the hallway pass from Florio's hand. Florio responded by calling for A-1637-12T3 5 

backup, and the vice principal and another security guard arrived shortly after. Florio was subsequently treated by the school nurse for "some burning and swelling" on his left forearm. On March 15, 2012, the State filed Juvenile Complaint No. FJ-20-1374-12, charging D.C. with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(d). 

The two complaints, both amended on March 30, 2012, were then consolidated for a single bench trial which took place on June 6 and 20, 2012. 

With respect to the false alarm charge, the State presented three witnesses: security director Ardito, principal Gibbons and vice principal Benaquista. Each witness reviewed the surveillance footage and identified D.C. as the male student in question. 

Ardito's testimony primarily concerned the school's fire alarm system. He described the "pull-box" in question as a "red fire pull-box station covered by a plastic cover over it which [UHS] installed about two years ago." According to Ardito, removing the plastic cover from the pull-box results only in a "piercing, loud" buzzing noise localized at the single station. It does not activate a building-wide fire alarm. To accomplish the activation of the fire alarm, a person would need to first A-1637-12T3 6 

remove the protective cover and then take the additional step of pulling down the lever on the fire alarm pull-box. 

Ardito also explained that UHS security protocol in response to the removal of a protective cover is for the zone-designated guard to investigate the buzzer and then report back. He acknowledged that activation of a buzzer alone would not initiate evacuation procedures. Gibbons explained that the plastic covers were installed on the pull-boxes as "a safety mechanism" because UHS had prior problems concerning students playing with the fire alarms. 

With regard to the charges arising from the February 6 incident, the State presented the security guard, Florio, and two UHS teachers, Ms. Eckert and Mr. Kenny, who witnessed the altercation. Florio testified that D.C. repeatedly tried to snatch the hall pass out of his hand, and that D.C. grabbed his wrist and body-checked him before reaching the main office. The two teachers corroborated Florio's account, adding that the security guard never raised his voice, acted aggressively or threatened D.C. at any point. 

D.C. was the sole witness for the defense. Regarding the alarm incident, D.C. claimed that he was in the hallway "fooling around" with his friends. When he suddenly turned around, he "bumped into the alarm," and then ran straight into the gym A-1637-12T3 7 

after hearing the buzzer activate. He denied having intentionally pulled any alarm. 

With respect to the assault charge, D.C. admitted to being frustrated because Florio would not respond to his inquiries about where he was taking him. D.C. explained that he began "reaching for my pass trying to get it from him," even "grabb[ing] his wrist a little bit" because Florio was evading D.C.'s questions. As he successfully grabbed the pass, according to D.C., Florio "brushed up against the locker." D.C. testified that he "wasn't trying to hurt" Florio and he never pushed or "arm-checked" him. 

Regarding the public alarm offense, the judge concluded that the State met its burden of proof on each element. With respect to the first element, that D.C. "knowingly initiated or circulated a report or warning of an impending fire," the judge determined: 

[T]he credible evidence adduced at trial showed that on December 7, 2011, [D.C.] walked down a hallway at Union High School; that as he did so, he walked backwards and looked over his shoulder multiple times; that he stopped and faced the left-hand side of the hallway where Mr. Ardito, Mr. Gibbons, and Mr. Benaquista testified that the fire alarm was located; that he extended his right arm towards same, and then pivoted around as though to determine whether anyone directly behind him had seen his action; and that he then began a sprint in the opposite direction down the hallway. A-1637-12T3 8 

. . . . Further, although the fire alarm itself was not visible in the incident recording due to a recess in the wall blocking it from the view of the security camera, the recording makes clear to the factfinder that [D.C.] acted knowingly when he pulled the cover off of the fire alarm pull box station. [D.C.] paused multiple times during his trip down the hallway, including after he was observed pulling the alarm, presumably in order to ensure that no school personnel in his vicinity had observed his illicit action, and then fled the scene as quickly as possible. The Court finds these actions bespeak [D.C.]'s knowing state of mind at the time of the incident. Mr. Ardito, Mr. Gibbons and Mr. Benaquista positively identified [D.C.] in court as the same individual they observed apparently pulling the fire alarm in the security recording. 

On the aggravated assault charge, N.J.S.A. 2C:12-1(b)(5)(d), the judge found that the victim's injury was "too trivial" to satisfy the "bodily injury" element required for the third-degree offense, but adjudicated D.C. delinquent of the lesser-included offense of fourth-degree aggravated assault, N.J.S.A. 2C:11-1(b)(5). 

In a written decision and dispositional order filed on June 28, 2012, the judge adjudicated D.C. delinquent of third-degree creating a false public alarm, N.J.S.A. 2C:33-3(a), and fourth-degree aggravated assault, N.J.S.A. 2C:11-1(b)(5). On June 29, 2012, after D.C. waived his right to a predisposition report, the judge rendered a final disposition. The judge imposed an A-1637-12T3 9 

aggregate twelve-month term of probation. Additionally, D.C. was ordered to complete an anger management program, perform thirty hours of community service, and write a letter of apology to the assault victim. 

D.C. filed a timely notice of appeal from the June 29 order of disposition, and raises the following arguments for our consideration: 

POINT I 

THERE WAS NO EVIDENCE TO SUPPORT THE COURT'S DECISION TO ADJUDICATE D.C. DELINQUENT ON THE GROUND THAT HE "KNEW THAT HIS ACTION IN PULLING THE FIRE ALARM WOULD LIKELY RESULT IN FIRE-EVACUATION PROCEDURES." (Partly Raised Below). 

POINT II 

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT D.C. KNOWINGLY INITIATED A FALSE ALARM. 

POINT III 

D.C.'S STATEMENTS ABOUT THE ALARM SHOULD HAVE BEEN EXCLUDED BECAUSE THEY WERE OBTAINED DURING CUSTODIAL INTERROGATION AND HE WAS NOT ADVISED OF HIS RIGHTS TO REMAIN SILENT AND TO COUNSEL AND NO EFFORT WAS MADE TO ADVISE HIS PARENTS THAT HE WAS BEING QUESTIONED. (Not Raised Below). 

POINT IV 

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT D.C. COMMITTED ASSAULT. (Not Raised Below). A-1637-12T3 10 

II. 

It is well established that the State is required to prove every element of a criminal offense beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 99 (1997). The same allocation of the burden of proof applies in juvenile delinquency proceedings. See State ex rel. J.G., 151 N.J. 565, 593-94 (1997). Upon examination of a court's verdict in a non-jury case, the standard of review for determining if the State satisfied its burden is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State ex rel. R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Moreover, we are obliged to "give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999)(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). 

"[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." State ex rel. W.M., 364 N.J. Super. 155, 165 (App. Div. 2003). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they A-1637-12T3 11 

are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)(quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). 

D.C. argues that the State did not prove beyond a reasonable doubt that he knowingly initiated a false alarm. He contends that the delinquency adjudication must be vacated because it was unsupported by sufficient evidence demonstrating that he either pulled the fire alarm or knew his conduct would likely result in an evacuation. 

N.J.S.A. 2C:33-3(a) provides in pertinent part: 

[A] person is guilty of a crime of the third degree if he initiates or circulates a report or warning of an impending fire, explosion, bombing, crime, catastrophe or emergency knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building . . . or to cause public inconvenience or alarm. 

We read that subsection of the statute as requiring the State to prove three elements: (1) that the defendant knowingly initiated or circulated a report or warning of an impending emergency (fire, explosion, bombing, etc.); (2) that the defendant knew such report or warning was false or baseless; and (3) that the defendant knew that the false or baseless report or A-1637-12T3 12 

warning was likely to cause an evacuation or to cause public inconvenience or alarm. Cf. Model Jury Charge (Criminal), "False Public Alarms" (1988). 

Here, the delinquency complaint, as amended, charged D.C. with violating the statute by the following conduct: 

Within the jurisdiction of this court, [D.C. did] initiate a report of an impending fire knowing that the report was false or baseless and that it was likely to cause public inconvenience [or] alarm, specifically by activating a fire alarm pull station at Union High School . . . . 

Accordingly, the first element that the State was required to prove beyond a reasonable doubt was that D.C. knowingly initiated a report of an impending fire. That element contains both a conduct and culpability aspect: the actor must initiate the report and must do so "knowingly" or "with knowledge." N.J.S.A. 2C:2-2.1 While we discern sufficient evidence to support the judge's determination that D.C. acted with the 

1 Pursuant to N.J.S.A. 2C:2-2(b)(2): 

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. A-1637-12T3 13 

required mental state, we find nothing in the evidentiary record demonstrating that D.C. initiated a report or warning of an impending fire. 

The State's witnesses testified, and it is undisputed by the parties, that D.C. never activated the actual fire alarm. Rather, D.C. dislodged the protective cover of the pull-box station, thereby triggering a high-pitched buzzer localized at the station itself. In contrast to activation of the fire alarm, removal of the protective cover from the pull-box does not initiate a school-wide alarm or evacuation, and results in neither a signal transmission outside the building, nor a response or report by the fire department. 

The apparent protocol at UHS in response to a buzzer activation, according to the security director Ardito, is for the designated security guard to inspect the pull-box area and determine whether or not a genuine emergency exists. Gibbons, the principal, testified that the pull-box covers were installed as "a safety mechanism" in response to prior incidents of "students playing with the alarms." As a countermeasure to student tampering, the buzzer merely warns or reports to UHS security personnel that the plastic cover has been manipulated, not the imminence of a fire or other emergency. A-1637-12T3 14 

In light of the foregoing, we conclude that D.C.'s conduct did not violate N.J.S.A. 2C:33-3(a) since, by dislodging the protective pull-box cover and thereby activating the buzzer, D.C. did not initiate "a report or warning of an impending fire." See State v. Reiner, 180 N.J. 307, 311 (2004)(if the import of a criminal statute's language "is clear and unambiguous on its face," our inquiry ends and we enforce that meaning). Therefore, we are constrained to reverse and vacate the delinquency adjudication for third-degree creating a false public alarm, N.J.S.A. 2C:33-3(a). 

As we are reversing and vacating the false-alarm adjudication, we need not consider D.C.'s arguments concerning the admissibility of his statements to UHS administrators. 

We turn next to D.C.'s contention that the State failed to meet its evidentiary burden on the aggravated-assault charge. Specifically, D.C. argues that the State's proofs were insufficient to demonstrate that he acted with the purpose to cause bodily injury. 

N.J.S.A. 2C:12-1(b)(5)(d) states that a defendant is guilty of aggravated assault if he or she "[c]ommits a simple assault" upon any public-school employee "while clearly identifiable as being engaged in the performance of his duties." Subsection (a) A-1637-12T3 15 

of the assault statute, N.J.S.A. 2C:12-1, establishes three variations of "simple assault," stating: 

A person is guilty of assault if he: 

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or 

(2) Negligently causes bodily injury to another with a deadly weapon; or 

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury. 

[N.J.S.A. 2C:12-1(a).] 

With respect to grading, aggravated assault of a public-school employee, N.J.S.A. 2C:12-1(b)(5)(d), is "a crime of the third degree if the victim suffers bodily injury." N.J.S.A. 2C:12-1(b). Otherwise, it is a fourth-degree crime. Ibid. 

Here, the judge found that defendant committed simple assault, under the N.J.S.A. 2C:12-1(a)(1) variant, upon Florio while the UHS security guard was engaged in his school-related responsibilities, thus satisfying the elements of aggravated assault. However, the judge determined that Florio did not suffer bodily injury, and therefore adjudicated D.C. delinquent of the fourth-degree crime. 

In order to sustain D.C.'s delinquency adjudication of the fourth-degree offense, there must be sufficient, credible evidence in the record that D.C. attempted to cause bodily A-1637-12T3 16 

injury to Florio. See R.V., supra, 280 N.J. Super. at 121. Regarding D.C.'s culpability, the judge found: 

Under N.J.S.A. 2C:2-2(b)(1), a person acts purposely with respect to the nature of his conduct if it is his conscious object to engage in conduct of that nature. [D.C.]'s aggressive demeanor, statements, and actions bespeak his purpose to make bodily contact with Mr. Florio. When he was asked to produce his hall pass, he immediately attempted to engage the authority by stating "Don't you feel stupid." Mr. Florio observed [D.C.] become increasingly hostile and angry . . . ." 

Further, [D.C.]'s frequent attempts to grab at the hall pass and enter Mr. Florio's personal space were corroborated by Mr. Florio's testimony that the juvenile "got in [his] face," physically blocked his movements, and thrust his body at Mr. Florio, and by Ms. Eckert and Mr. Kenny's testimony that the juvenile pushed Mr. Florio with his shoulder. [D.C.]'s out-of-control, aggressive manner was further typified by his statement to Ms. Eckert, inquiring "Who do you think you're looking at?" as he walked toward the office. Therefore, the Court finds that [D.C.] acted purposefully in his attempt to cause bodily injury to Mr. Florio, as demonstrated by multiple witnesses to his disproportionate and heated aggressive demeanor. 

We conclude that the evidentiary record clearly supports the judge's determination that D.C. purposely attempted to cause Florio bodily injury. The State's witnesses testified to the following facts: that D.C. was angry about being hauled into the main office and repeatedly directed invectives toward Florio in A-1637-12T3 17 

the lead-up to physical contact; that D.C. again and again tried to wrest the hall pass from Florio and grabbed Florio's arm at one point, which D.C. admitted during his own testimony; and that D.C. firmly shoulder-checked Florio, causing the guard to fall backward into a locker. This was more than sufficient evidence from which the judge as finder of fact could rationally infer that D.C.'s purpose was to cause some physical pain or bodily impairment. Cf. State v. Stull, 403 N.J. Super. 501, 505-06 (App. Div. 2008); State ex rel. S.B., 333 N.J. Super. 236, 244 (App. Div. 2000). 

We find D.C.'s remaining contentions unavailing. Where, as here, the factual findings are heavily dependent upon credibility determinations, we will not substitute our own 

assessment of the evidence for that of the trial judge. See, e.g., State v. Minitee, 210 N.J. 307, 317 (2012); State v. Elders, 192 N.J. 224, 244 (2007). That D.C. takes a contrasting view of the witnesses' testimony and credibility from that of the trial court is not grounds for reversal. 

In conclusion, we reverse and vacate the delinquency adjudication on the false-alarm charge, and affirm the delinquency adjudication on the fourth-degree aggravated assault.