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NOT FOR PUBLICATION WITHOUT THE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
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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
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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.
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