State in the Interest of T.S., a Minor, A-1390-08T4; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication June 2, 2010. Before Judges Fuentes, Gilroy and Simonelli. On appeal from the Chancery Division, Family Part, Cumberland County, FJ-06-2169-08. DDS No. 14-2-8077 [6 pp.]

T.S., a teenage girl, was adjudicated delinquent for an act that if committed by an adult would have constituted the disorderly persons offense of simple assault. By way of disposition, the Family Part placed T.S. on probation for a period of six months. As one of the conditions of probation, the court ordered her to serve 10 days of confinement in the Cumberland County Youth Detention Center.

On appeal, T.S. argues that the verdict of adjudication was against the weight of the evidence and that the disposition ordered by the court was both illegal and excessive.

Held: Where an adjudication of delinquency is based on simple assault, the Juvenile Justice Code does not authorize the Family Part to condition a term of probation on the completion of a period of detention.

The trial judge rejected T.S.’s version of events, in which she claimed she acted in self-defense, and accepted, as a matter of credibility, the testimony of the victim, B.D. The court concluded that the evidence supported an adjudication of delinquency against T.S. based on simple assault. N.J.S.A. 2C:12-1a(1) defines the disorderly persons offense of simple assault as an attempt “to cause or purposely, knowingly or recklessly cause[ ] bodily injury to another.” N.J.S.A. 2C:11­1a defines “bodily injury” as “physical pain, illness or any impairment of physical condition.” The appellate panel finds no legal basis to reverse the court’s determination of delinquency. The evidence before the Family Part amply supported that B.D. suffered physical pain as a result of the attack by T.S.

However, the appellate panel reaches a different conclusion with respect to the court’s imposition of a period of detention as a condition of a probationary term. The Juvenile Justice Code does not contain the equivalent of N.J.S.A. 2C:43-2(b)(2), permitting a criminal court to sentence a defendant to a jail term not to exceed 364 days as a condition of probation. This so-called split sentence option, as approved by the Supreme Court in State v. Hartye , does not violate the Criminal Code’s presumption of nonincarceration for a probationary sentence imposed in connection with a third-degree offense or lower.

N.J.S.A. 2A:4A-44b(1) of the Juvenile Justice Code provides for a presumption of nonincarceration for any fourth-degree offense or lower. The Juvenile Justice Code does not contain a provision equivalent to N.J.S.A. 2C:43-2(b)(2). There is nothing in this record that supports overcoming the presumption of nonincarceration in N.J.S.A. 2A:4A-44b(1) for this adjudication of delinquency based on a disorderly persons offense.

The adjudication of delinquency based on simple assault is affirmed. The part of the disposition order directing that T.S. serve a period of 10 days’ detention as a condition of probation is reversed.

— By Debra McLoughlin

For appellant — Yvonne Smith Segars, Public Defender (Abby P. Schwartz, Assistant Deputy Public Defender, on the brief). For respondent — Ronald J. Casella, Cumberland County Prosecutor (James O. Turner Jr., Assistant Prosecutor, on the brief).