STATE OF NEW JERSEY v. BRUCE BRANDECKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6315-03T46315-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE BRANDECKER,

Defendant-Appellant.

__________________________________________

 

Submitted February 1, 2006 - Decided March 17, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Ind. No. 02-06-0742.

Yvonne Smith Segars, Public Defender, attorney

for appellant (James A. Plaisted, Designated

Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Terry Bogorad, Senior

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Bruce Brandecker appeals his conviction, entered after a guilty plea, to first-degree robbery with a handgun, N.J.S.A. 2C:15-1. Pursuant to a plea agreement, defendant was sentenced on March 11, 2003 as a second-degree offender, to a seven-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant was a sixteen-year-old juvenile at the time of the offense on January 28, 2002. On appeal, defendant challenges the prosecutor's decision to try him as an adult, arguing that it was arbitrary, and, further, that the prosecutor's motion to have him tried as an adult was untimely, in that it was filed outside of what he contends is the thirty-day time limit of N.J.S.A. 2A:4A-26(d). Finally, defendant also argues that his attorney was ineffective in advising him to plead guilty to the robbery charge. In his reply brief, defendant invokes State v. Natale, 184 N.J. 458 (2005) (Natale II). In his pro se supplemental brief defendant contends as follows:

POINT I

DURING HIS PRETRIAL STAGE THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO ACCESS TO THE COURTS.

POINT II

RESTRICTIONS WITHIN THE CONFINES OF THE DETENTION CENTER PREVENTED THE DEFENDANT FROM ASSISTING IN THE PREPARATION OF HIS DEFENSE.

We conclude that defendant's supplemental issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also conclude that defendant's ineffective assistance of counsel claim is not suited for review on direct appeal but is best left to post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

We reject defendant's argument that the prosecutor's waiver motion was filed outside the time limit provided by N.J.S.A. 2A:4A-26(d), which provides that the motion be filed "within 30 days of receipt of the complaint," a period that can only be extended "for good cause shown." Factually, defendant's argument is premised on the claim that the waiver motion was first made orally on March 6, 2002, the complaint having been filed on January 29, 2002. However, in its response, the State points out that the motion was actually filed on February 19, 2002, an assertion supported by an entry to that effect in the Family Automated Case Tracking System. Defendant does not seek to counter the State's assertion in his reply brief. Accordingly, the argument is without factual foundation.

The State's waiver motion, dated February 14, 2002, was accompanied by a Memorandum, dated January 30, 2002, from Marc A. Festa, Acting Senior Assistant Prosecutor to Michael J. O'Shea, Acting Chief Assistant Prosecutor, referencing "Written Statement of Reasons for Waiver in 'Prosecutorial Waiver' Case.'" The body of the Memorandum stated that it was being submitted pursuant to the "Attorney General Juvenile Waiver Guidelines, Section III," and that the juvenile's file containing reports of the incident, as well as any prior criminal history, were being submitted for O'Shea's review. Following these statements, the substance of the form appears as follows:

TO: Michael J. O'Shea, Acting Chief Assistant Prosecutor

FROM: Marc A. Festa, Acting Senior Assistant Prosecutor

RE: Written Statement of Reasons for Waiver in "Prosecutorial Waiver" Case Juvenile --

Bruce Brandecker, PJ 97-1332, FJ-16-1964-02

Most Serious Charge - First Degree Robbery

DATE: January 30, 2002

As the assistant prosecutor making the initial decision recommending waiver in a "prosecutorial waiver" case (PL. 1999,

c. 373), I hereby submit this written statement of the reasons for waiver, as required by the Attorney General Juvenile Waiver Guidelines, Section III. Copies of the complaints are attached. I am also providing the juvenile's file for your review of the reports pertaining to the instant charges, as well as any prior record.

All of the following factors have been considered. Those factors deemed to be applicable are followed with an "A." Those deemed inapplicable are followed with an "I." Factors which are incapable of applying to a case, such as "Effect on Co-Defendants" in cases without co-defendants, are marked "DNA" for "does not apply."

1. Nature of the offense

Brief summary: A gas station attendant was robbed by the juvenile and an accomplice. Brandecker was armed with a handgun and pointed it the attendant while a Ralph Chandless punched the attendant and took or attempted to take money.

A. The death of a victim during the course of the offense . . . . . . . . . . . . . . I

B. The nature and circumstances of the

act . . . . . . . . . . . . . . . . . . . A

C. The role of the juvenile therein . . A

D. The fact that there was grave and serious harm inflicted on the victim or the community . . . . . . . . . . . . . . . . I

E. The potential for grave and serious harm to the victim or the community . . . A

F. The use or possession of a weapon during the course of the offense . . . . . A

2. Deterrence

The need to deter the juvenile and others from violating the law . . . . . . . . . . A

3. Effect on Co-Defendants (In cases without co-defendants, print "DNA")

Waiver of this juvenile would avoid the injustice resulting if similarly culpable juvenile and adult codefendants were tried separately . . . . . . . . . . . . . . . . A

4. Maximum Sentence and Length of Time Served

The need for a lengthier term of incarceration under the criminal code, considering the amount of time likely to be served under the criminal and juvenile codes, including enhanced sentencing provisions such as the extended term provisions of the juvenile code (N.J.S. 2A:4A-44), the No Early Release Act, the Graves Act or any other mandatory or enhanced dispositions or sentences . . A

5. Prior Record

Brief summary:

1) 8/4/99 Complaint No.: FJ-16-3897-99 Harassment pdp

2) 8/4/99 Complaint No.: FJ -16-3896-99 Harassment pdp

3) 11/18/99 Complaint No.: FJ-16-943- 00 Theft 4th degree

4) FJ-16-3064-98 - diverted to counsel not mandatory

- Interference with transportation

5) FJ-16-1432-98 diverted to counsel not mandatory

- Unlawful possession of a weapon

A. The seriousness of any acts for which the juvenile has been adjudicated delinquent. I

B. Any offenses for which the juvenile has been waived and convicted as an adult. I

C. Any involvement of the juvenile with a gang . . . . . . . . . . . . . . . . . . . I

D. The history of the use of physical violence toward others and the extent to

which the juvenile may present a substantial danger to others. . . . . . . . . . . . . I

6. Trial Considerations

The likelihood of conviction and the potential need for a grand jury investigation . . . . . . . . . . . . . . A

7. Victim's Input (In cases without identifiable victims, print "DNA")

The consideration of the position of the victim or the victim's family regarding

the waiver decision. . . . . . . . . . . . A

8. Weighing of Factors To be completed only in cases in which the inapplicable "I" factors outnumber the applicable "A" factors

The following applicable factors outweigh the inapplicable factors: __________________

On March 6, 2002, the State, having moved for waiver of defendant and his co-defendant, produced an officer from the Clifton Police Department to testify concerning the offense. Upon completion of his testimony, the judge made findings and then stated:

All right. The Court does find that there is probable cause with regard to both juveniles, which includes all six counts. And this matter will be referred to the criminal part.

Thereafter, the judge addressed the State's application to have the two juveniles transferred to the County Jail. The application was denied and the juveniles were remanded to the juvenile detention center. On that same date, the judge signed an order which recited the following:

THE COURT FINDS:

(1) The Juvenile, Bruce Brandecker, was born on May 26, 1985, making the Juvenile approximately 16 years and 8 months old on January 28, 2002, the date of the offense and approximately 16 years and 8 months old as of the date of this Order.

(2)The Juvenile, Bruce Brandecker, is charged in Complaint Nos. FJ-16-1964-02, with conduct which, if the juvenile were an adult, would constitute:

Count 1: Robbery, a crime of the first degree, in violation of N.J.S.A. 2C:15-1;

Count 2: Possession of a Weapon for an Unlawful Purpose, a crime of the second degree, in violation of N.J.S.A. 2C:39-4(a);

Count 3: Unlawful Possession of a Weapon, a crime of the third degree, in violation of N.J.S.A. 2C:39-5(b);

Count 4: Possession of a defaced firearm, a crime of the fourth degree, in violation of N.J.S.A. 2C:39-9(e);

Count 5: Receiving Stolen Property, a crime of the third degree, in violation of N.J.S.A. 2C:20-7; and,

Count 6: Possession of a Firearm by a Minor, a crime of the fourth degree, in violation of N.J.S.A. 2C:58-6.1.

(3) There is probable cause to believe that the Juvenile committed the offenses charged in Complaint Nos. FJ-16-1967-02 and set forth fully in paragraph 2, which offenses are enumerated in N.J.S. 2A:4A-26a(2)(a) or N.J.S. 2A:4A-26a(2)(i), or constitute a violation of N.J.S. 2C:35-3, N.J.S. 2C:35-4 or N.J.S. 2C:39-4.1; and which have been set forth in L. 1999, c. 373 and described as "Prosecutorial Waiver" offenses.

(4) All requirements for the waiver of the jurisdiction of the Chancery Division, Family Part over the above-captioned Juvenile and Complaints have been met.

As the Court noted in State v. J.M., 182 N.J. 402, 412 (2005), with amendments to the juvenile waiver statute effective March 14, 2000, "with respect to a juvenile sixteen years of age or older charged with an enumerated offense, once the State established probable cause that the juvenile committed the offense, waiver is required without regard to rehabilitation evidence." J.M. was sixteen and was charged with one of the serious offenses enumerated in the relevant statute, N.J.S.A.

2A:4A-26a(2)(a). After quoting N.J.S.A. 2A:4A-26, the Court continued:

Thus, the Legislature vested the prosecutor's office with the primary responsibility for juvenile waiver decisions when the juvenile is sixteen years or older and charged with a designated offense. The intent was to increase prosecutorial discretion and to make waiver more likely in the case of those juveniles. Simply stated, when a sixteen-year old or above is charged with an enumerated offense, the prosecutor need only establish probable cause for the court to waive the juvenile to adult court.

[Ibid.]

After concluding that a juvenile had the right to present evidence and testify at the probable cause portion of the waiver hearing, id. at 416-18, the Court went on to address the consequences of the State's failure to submit a statement of reasons for seeking waiver. After noting that the Attorney General's Juvenile Waiver Guidelines were issued in response to a legislative directive, N.J.S.A. 2A:4A-26f, whose aim was "to eliminate arbitrariness or abuse of discretionary power and to permit statewide uniformity in the exercise of prosecutorial discretion," id. at 419, the Court concluded that the statement of reasons must be attached to the waiver motion. Ibid. The reason for that requirement is to permit "the court to determine that the reasons for seeking waiver are not arbitrary." Ibid. To do so, the court "must be able to review the State's reasons for the waiver motion." Ibid.

Here, defendant argues that the prosecutor's decision to try him as an adult was arbitrary, being based primarily on the seriousness of the offense, and failing to take account of factors militating against waiver, especially defendant's lack of a serious prior record. He also argues that, as was the case in J.M., the prosecutor failed to attach his statement of reasons to the waiver motion. The latter assertion is clearly incorrect; the statement was attached. Notwithstanding, we discern two deficiencies that compel a remand.

First, we are disturbed by the "form" nature of the prosecutor's statement of reasons, with simply I (Inapplicable) or A (Applicable) being placed in the space adjacent to each factor. The waiver decision is a serious one and, although the prosecutor has wide discretion, the exercise of that discretion cannot be meaningfully reviewed by a court unless the statement is individualized and facts are set forth justifying the applicability of specific factors. Here, the only individualization was the bare statement of defendant's juvenile record and a very brief summary of the offense. We conclude that more than "checkmarks" are required.

Second, the record, quoted above, does not support a conclusion that the judge exercised any judicial oversight of the reasons for waiver, as J.M. requires. Indeed, the judge said nothing to indicate that he had reviewed the factors, much less evaluated them to insure that the prosecutor's decision was not arbitrary. The fact that the judge thereafter signed an order, obviously prepared by the prosecutor, which stated that "[a]ll requirements for the waiver . . . have been met," does not salvage the inadequate hearing.

Even though defendant has pleaded guilty to the adult charges and been sentenced, a remand to the Family Part is required. The prosecutor will present a meaningful statement of reasons and the judge will conduct a meaningful review, with his findings placed on the record. If the waiver decision is found to be arbitrary, defendant's plea will be vacated and the case retained in the Family Part for disposition. If the waiver decision is upheld, defendant's plea will remain intact. However, in light of the elimination of presumptive sentences by Natale II, supra, 184 N.J. at 487-89, defendant's sentence should then be reconsidered.

Reversed and remanded for proceedings consistent with this opinion.

 

(continued)

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A-6315-03T4

March 17, 2006