STATE OF NEW JERSEY v. CHRISTOPHER OJEDA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5766-06T45766-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER OJEDA,

Defendant-Appellant.

________________________________________________________________

 

Argued April 22, 2009 - Decided

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FJ-15-1812-06.

Steven E. Nelson argued the cause for appellant (Nelson, Fromer & Crocco, attorneys; Mr. Nelson, of counsel and on the brief).

Patricia S. Toreki, Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Ms. Toreki, on the brief).

PER CURIAM

Defendant, Christopher Ojeda, appeals from a June 1, 2006 order that granted the prosecutor's motion to waive the jurisdiction of the Family Part and transfer defendant's second-degree aggravated assault charges to the adult criminal court. Although defendant argues that the prosecutor's decision to seek transfer was a patent and gross abuse of discretion, he also more narrowly argues that the trial judge erred when she ignored the prosecutor's decision to permit similarly-situated juveniles to remain subject to the jurisdiction of the Family Part. We affirm.

I.

On February 4, 2006, two teenagers, A.D. and W.B., were assaulted by six individuals as the two were leaving the Ocean County Mall in Toms River. There were two separate assaults: the five male assailants attacked W.B., a male; and the one female assailant attacked A.D., a female. A.D. sustained only minor injuries when she was punched in the face. W.B. was severely injured when one of his five assailants, later identified as defendant, picked W.B. up from the ground and bodyslammed him to the pavement. Once W.B. was on the ground, all five punched and kicked him until he lost consciousness. As a result of the assault, W.B. fractured his elbow, which caused severe tendon, muscle and nerve damage. After undergoing two surgeries, W.B. continues to experience a significant limitation of the use of his arm.

Through investigation, police identified W.B.'s assailants as defendant, who at the time of the incident was one-month shy of his eighteenth birthday; nineteen-year old Ricky Shephard, who from the outset was prosecuted in the Law Division; C.S., who was sixteen years old; and D.C. and O.A., both of whom were age fourteen. All five were charged with offenses that would constitute second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), if committed by an adult. The sixth participant, S.S., was charged with simple assault for punching A.D. in the face.

The State filed a timely motion to waive the Family Part's jurisdiction and transfer the complaints pending against defendant, C.S., D.C. and O.A. to the Law Division. Thereafter, the State entered into negotiated plea agreements with C.S. and D.C. in which they appeared in the Family Part and entered pleas of guilty to aggravated assault, N.J.S.A. 2C:12-1(b)(7), a crime of the third degree if committed by an adult. Each was sentenced to a term of probation, conditioned upon serving sixty days in the Ocean County Juvenile Detention Center. As part of the plea agreement, the State agreed to withdraw its application for waiver of the Family Part's jurisdiction over C.S. and D.C.

The State accompanied its waiver motion with the statement of reasons required by the Attorney General's Juvenile Waiver Guidelines (March 14, 2000) ("Guidelines"), which require prosecutors to prepare a written statement of reasons for waiver, which shall include "an account of all factors considered and deemed applicable . . . ." State ex rel. J.C., 351 N.J. Super. 248, 250 (App. Div. 2002). The State pointed to the following factors as supporting its waiver motion: the nature and circumstances of the act and defendant's role in it; the serious harm inflicted on the victim; the need for deterrence; the need for a lengthier term of incarceration than would be available under the juvenile sentencing scheme; and defendant's prior juvenile adjudication of delinquency for a third-degree aggravated assault, for which he was on probation at the time of his assault on W.B.

Defendant filed a motion to dismiss the State's waiver motion. Defendant argued that the disparity in the State's decision to pursue a waiver motion against defendant while dismissing the waiver motions it had filed against the other three participants constituted a patent and gross abuse of discretion. In response, the State highlighted defendant's role as the initial aggressor in the unprovoked attack on W.B. that caused him to suffer a permanent and severe injury. The State also asserted that although D.C. and O.A. were charged with the same offense as defendant, both were under the age of sixteen, and therefore not subject to the automatic waiver provisions applicable to defendant. As to C.S., the State argued he was considerably younger than defendant, and was not the initial aggressor. The State also pointed to defendant's prior adjudication of delinquency for aggravated assault. The State argued that the "significant age difference between the juveniles," as well as the "history difference," made its waiver decision reasonable and judicial intervention unwarranted.

After oral argument, Judge Villano found probable cause and concluded that defendant's role in the offense, the significant age difference, and defendant's prior record justified the disparate treatment. Finding that defendant failed to establish a patent and gross abuse of discretion, the judge denied defendant's motion to dismiss the State's waiver notice.

Following the denial of his motion, defendant pled guilty in the Law Division to second-degree aggravated assault, and was sentenced a degree lower to a three-year term of imprisonment subject to an eighty-five percent parole ineligibility term.

On appeal, defendant argues:

I. JUDICIAL INTERVENTION IS WARRANTED TO REMEDY THE INJUSTICE CREATED BY THE PROSECUTOR'S DECISION TO PURSUE WAIVER OF JURISDICTION.

A. The Prosecutor's Failure to Consider all Relevant Factors, the Consideration of Inappropriate Factors and the Errors in the Factors Considered Made the Prosecutor's Decision Arbitrary, Irrational and Otherwise an Abuse of Discretion.

B. There is clear and convincing proof that the Prosecutor's decision to pursue Waiver was a Blatant and Gross Abuse of Discretion.

C. The Family Court Erred in Granting the State's Motion to Waive Jurisdiction to the Law Division, Criminal Part.

Defendant filed a motion to supplement the record on appeal with transcripts of the juvenile proceedings regarding C.S. and D.C. We denied that motion as well as his subsequent motion for reconsideration.

II.

N.J.S.A. 2A:4A-26a(2)(a) through (j) specify fifteen serious offenses that are designated by R. 5:22-2(c)(1)(C) as Chart 1 offenses. If the prosecutor files a waiver motion against a juvenile who is over the age of sixteen, and has been charged with a Chart 1 offense, jurisdiction will automatically be transferred to the Law Division on a finding of probable cause. R. 5:22-2(c). In this context, "once the State establishe[s] probable cause that the juvenile committed the offense, waiver is required without regard to rehabilitation evidence." State v. J.M., 182 N.J. 402, 412 (2005); N.J.S.A. 2A:4A-26e. Second-degree aggravated assault, the offense with which defendant was charged, is a Chart 1 offense. Because defendant was over the age of sixteen at the time of the offense, he was subject to automatic waiver upon a finding of probable cause.

However, prosecutors do not seek waiver of all juveniles who are potentially eligible. Consequently, prosecutors are required to abide by the Guidelines in deciding which juveniles to retain in the Family Part and which to waive to the Law Division. N.J.S.A. 2A:4A-26f.

The Guidelines require a prosecutor to consider seven factors in determining whether to waive to adult court a Chart 1 offense filed against a juvenile over the age of sixteen. Those factors are: (1) the nature of the offense; (2) deterrence; (3) the effect on any co-defendant; (4) the maximum sentence available and length of time served; (5) the juvenile's prior record; (6) trial considerations; and (7) the victim's input. The Guidelines further require the preparation of a written statement of reasons that must be approved by the Prosecutor or his or her designee.

A prosecutorial decision to waive to adult court a juvenile who is over the age of sixteen and charged with a Chart 1 offense is subject to judicial review. Id. at 259. We apply to waiver decisions the same deferential standard of review that is applied when we evaluate a prosecutor's decision rejecting a defendant's application for diversion into the pretrial intervention program. Id. at 259-60. Thus, we review a prosecutor's decision to waive a Chart 1 complaint against a juvenile over age sixteen only for a patent and gross abuse of discretion. Id. at 260. Our scope of review is narrow because "[s]uch prosecutorial decisions involve consideration of a wide range of circumstances relating to the offense charged and the alleged offenders' personal circumstances" that "are closely related to a prosecutor's 'charging function.'" Id. at 260 (quoting State v. Caliguiri, 158 N.J. 28, 37 (1999)).

So viewed, we are satisfied that Judge Villano conducted the meaningful review of the prosecutor's waiver decision that R.C., supra, requires. After reviewing the prosecutor's statement of reasons, the accompanying police reports, and briefs from both sides, the judge concluded that the prosecutor's decision to waive defendant to the Law Division while permitting the other juveniles to remain in the Family Part was justified, and that the waiver of defendant was not a patent and gross abuse of discretion.

The record amply supports that conclusion. Defendant is considerably older than C.S. The other two juveniles, age fourteen, were so young as to be ineligible for automatic waiver. They were also considerably younger than defendant. Moreover, the record supports the State's assertion and Judge Villano's conclusion that defendant's role as the instigator warranted the different treatment afforded defendant and the other juveniles.

Finally, we agree with the State's argument that disparity in and of itself is not prohibited. It is only unjustifiable disparity that is impermissible. State v. Roach I, 146 N.J. 208, 232-34 (1996). Here, the record amply supports the conclusion that the different treatment of defendant and sixteen-year-old C.S., as well as the other two juveniles, was fully justified. Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

From the record, we are unable to determine the disposition of the complaint filed against O.A.

We were informed at appellate oral argument that C.S. was only three months past his sixteenth birthday at the time he participated in this assault. Thus, he was barely over the minimum age of sixteen for which the automatic waiver provisions of N.J.S.A. 2A:4A-26e apply.

We would be remiss if we did not comment upon defendant's effort to inject material about C.S. and D.C. that he apparently gleaned from the pre-sentence report prepared at the time of defendant's sentencing. On two occasions, we rejected defendant's effort to introduce into this appeal factors related to these other two juveniles. In light of that determination, defendant should have refrained from including such matters in his brief.

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A-5766-06T4

RECORD IMPOUNDED

May 8, 2009