STATE OF NEW JERSEY v. OSEI LONG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6251-03T46251-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSEI LONG,

Defendant-Appellant.

_____________________________________________________________

 

Submitted January 31, 2006 - Decided February 14, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 01-06-2682.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Theresa Yvette Kyles, Acting

First Assistant Deputy Public Defender, of counsel

and on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent (Maura K. Tully, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

In a juvenile complaint, Osei Long was charged with acts that if committed by an adult would constitute armed robbery and weapons offenses. The State moved for a transfer to the Law Division so that Long could be tried as an adult. Without receiving or requiring a statement of reasons for the transfer from the prosecutor, the judge transferred the case. An indictment was returned, and Long entered into a plea agreement, which resulted in an aggregate sentence of imprisonment for five years with 85% of that term to be served before parole, followed by five years of parole supervision.

On appeal, Long's sole argument that he is entitled to a remand to the Family Court for a proper waiver hearing based, in part, on a statement from the prosecutor justifying the transfer to the Law Division.

We agree with Long. The applicable statute, N.J.S.A. 2A:4A-26, requires the prosecutor file a statement of reasons supporting the waiver of a juvenile to the Law Division. And that filing has been held to be indispensable. State v. J.M., 182 N.J. 402, 419 (2005); State ex rel. R.C., 351 N.J. Super. 248, 261 (App. Div. 2002).

The State contends that Long's guilty plea in the Law Division was a waiver of any right to challenge the jurisdictional transfer. The Supreme Court addressed this issue to some extent in State v. J.M., supra:

We agree that the failure to enter a conditional plea under Rule 3:9-3(f) generally bars appellate review of non-Fourth Amendment constitutional issues. A defendant who wishes to preserve such an issue for appeal should enter a conditional plea pursuant to Rule 3:9-3(f). Even so, our Appellate Division has recognized that in limited situations where it would result in an injustice to strictly adhere to the requirements of the rule, the rule will not be enforced.

[182 N.J. at 410 (internal citations omitted).]

Given our prior treatment of this issue in the Appellate Division, and the fact that J.M. was decided almost three years after Long entered his guilty plea in this case, we are satisfied that fairness dictates a remand for the purpose of allowing the State an opportunity to satisfy the requirements of N.J.S.A. 2A:4A-26.

 
Remanded to the Family Part for further proceedings consistent with this opinion.

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A-6251-03T4

February 14, 2006