STATE OF NEW JERSEY IN THE INTEREST OF R.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY

IN THE INTEREST OF R.B.,

a minor.

______________________________________________

June 16, 2015

Submitted December 1, 2014 Decided

Before Judges Lihotz, Espinosa and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-0501-14.

Joseph E. Krakora, Public Defender, attorney for appellant R.B. (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On leave granted, we review the juvenile-defendant R.B.'s challenge to the order waiving the jurisdiction of the Family Part, allowing the State to prosecute him as an adult. The Family Part judge concluded the State established probable cause to waive jurisdiction as required by N.J.S.A. 2A:4A-26(a). After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

We briefly summarize the relevant procedural history and facts based on the record before us. Defendant was charged in an August 2013 juvenile complaint with participating in the armed robbery of an off-duty corrections officer in Newark. At the time of the robbery, defendant was sixteen years old.

According to the State's anticipated trial proofs, at approximately 3:00 a.m. on July 29, 2013, Alonzo Deramus, an Essex County corrections officer, returned from a party to the Newark home of his girlfriend. Two black males emerged from a nearby bush, wearing blue bandanas and armed with handguns. Deramus told his girlfriend to go inside and call 9-1-1, which she did. The two assailants opened fire on Deramus, who, being armed, drew his own weapon and returned fire.1 The victims were not shot; however, both assailants were wounded in the firefight. The first suspect, later identified as Kyle Cross, age nineteen, suffered multiple gunshot wounds and was found at the scene by responding police officers and later arrested after treatment at a nearby hospital. The second assailant, defendant, was struck in the lower-back or buttocks area, but was able to flee on foot to a nearby vehicle.

Defendant was subsequently arrested at the residence of his aunt. Defendant's mother stated that defendant and his brother arrived at the aunt's house sometime between 3:00 and 3:30 a.m. At the hospital, after being advised of and waiving his Miranda2 rights, defendant gave a statement to police in which he admitted he and Cross were shot after trying to rob Deramus. Defendant's brother told police, earlier that evening defendant left their apartment with Cross and another juvenile. Initially, both brothers told their mother defendant was wounded when someone in a black car pulled up and started shooting. However, in his statement to police, defendant admitted this prior account was false.

On August 2, 2013, the Essex County Prosecutor filed a juvenile complaint charging defendant with acts of delinquency which, if committed by an adult, would constitute: first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a gun, N.J.S.A. 2C:39-5(b) (count three); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1(a)(1) (count four). On August 22, the State filed a timely motion to waive jurisdiction over defendant's case from the Family Part to the Law Division accompanied by the required statement of reasons for seeking waiver.

Defendant objected. Relying on Rule 3:13-3(b)(1)(G), defendant moved, in limine, to bar the State from offering any of its witness statements as evidence at the waiver hearing for failure to provide transcripts of the audio or video recordings. The Family Part judge denied defendant's motion, noting that Rule 3:13-3(b)(1)(G) only required production of transcripts of recorded statements in anticipation of trial.

The sole witness offered at the three-day probable cause hearing was Detective Eduardo Fernandez of the Essex County Prosecutor's Office's Juvenile Division. Fernandez admitted he had no direct knowledge of the events at issue, and functioned solely to "indicate the documents that the State wishe[d] to present to the [c]ourt." Fernandez identified the police and prosecutor reports pertaining to defendant and Cross, as well as the recorded statements of defendant, his brother, mother and girlfriend, as the State's evidence in support of waiver.

After oral argument, in an April 2, 2014 oral opinion, the Family Part judge found probable cause to believe defendant committed the crimes charged, and concluded the prosecutor's decision to waive was not an abuse of discretion.

On appeal, defendant argues

POINT I

THE JUVENILE'S RIGHT TO DUE PROCESS AND A FAIR HEARING WAS VIOLATED BY THE CURSORY PROCEDURE EMPLOYED IN THE WAIVER HEARING, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.

A. Introduction.

B. The Juvenile Was Effectively Denied the Right to Cross-Examine.

C. The Court Erred In Refusing to Require Transcripts of Recorded Witness Statements.

POINT II

THE STATE'S STATEMENT OF REASONS FOR SEEKING WAIVER WAS INSUFFICIENT AND INCORRECT, NECESSITATING REVERSAL OR REMAND.

We reject each of these contentions and conclude the Family Part judge's waiver of the case to the Law Division met all constitutional and statutory requirements.

II.

Before addressing the points raised by defendant, we note the statutory framework that governs our analysis. N.J.S.A. 2A:4A-24 confers jurisdiction over offenses committed by juveniles to the Family Part. N.J.S.A. 2A:4A-26(a) vests the prosecutor with discretion to seek a waiver of this jurisdiction for certain specified offenses committed by a juvenile fourteen years of age or older. These offenses are referred to as "Chart 1" offenses, and include first-degree robbery, unlawful possession of a weapon, possession of a weapon for an unlawful purpose and offenses committed in "an aggressive, violent and willful manner." N.J.S.A. 2A:4A-26(a)(2)(a), (d), (i).

In the case of a juvenile sixteen years or older charged with a Chart 1 offense, the only issue to be determined at the waiver hearing is whether there is probable cause to believe the juvenile committed the delinquent act. "On a finding of probable cause for any of these enumerated offenses, no additional showing is required for waiver to occur. Jurisdiction of the case shall be transferred immediately." R. 5:22-2(c)(3). "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." State v. J.M., 182 N.J. 402, 412 (2005).

In In re State ex rel. A.D., 212 N.J. 200 (2012), the Court stated

The juvenile waiver hearing is a critically important action determining vitally important statutory rights of the juvenile charged with a criminal offense. [O]nce waiver occurs, the juvenile loses all the protective and rehabilitative possibilities available to the Family Part. Waiving a juvenile to adult court is thus the single most serious act that the juvenile court can perform.

[Id. at 215 (alteration in original) (citations and internal quotation marks omitted).]

We consider the Family Part judge's decision under an abuse of discretion standard, which requires that "findings of fact be grounded in competent, reasonably credible evidence" and "correct legal principles be applied." See id. at 214-15 (citation and internal quotation marks omitted). Only where the Family Part judge exercises a "'clear error of judgment that shocks the judicial conscience'" will we substitute our own discretion for that of the waiver court. Id. at 215 (quoting State v. R.G.D., 108 N.J. 1, 15 (1987)).

In A.D., the Court clarified that the court's task in a waiver hearing under N.J.S.A. 2A:4A-26 is to make a determination similar to that of a grand jury deciding whether to indict, which "has also been characterized as one of probable cause." A.D., supra, 212 N.J. at 218-20. The waiver determination is subject to procedural protections; the juvenile is permitted to present evidence, testify on his or her own behalf and cross-examine the State's witnesses. R. 5:22-2(b); J.M., supra, 182 N.J. at 416. That being said, "a juvenile seeking to avoid the 'norm' of waiver . . . when probable cause is found to exist, must carry a heavy burden to clearly and convincingly show that the prosecutor was arbitrary or committed an abuse of his or her considerable discretionary authority to compel waiver." State in re V.A., 212 N.J. 1, 29 (2012).

Defendant first asserts violations of his due process rights. Specifically, he argues the State's submission of only the testimony of Fernandez, who by his own admission had no direct knowledge of the case or evidence presented, deprived him of due process by functionally denying him the right to cross-examine the witnesses against him as provided by Rule 5:22-2(b). Additionally, defendant argues the Family Part judge's refusal to require transcripts of the State's recorded witness statements necessitates reversal.

We addressed similar contentions in State in Interest of B.G., 247 N.J. Super. 403 (App. Div. 1991), where the juvenile-defendants argued that the nature of the waiver hearing deprived them of due process of law on multiple grounds, including the infringement of their right of confrontation because of their inability to cross-examine the declarants whose statements also inculpated other juveniles. Id. at 421-23. As we stated, "[p]robable cause may be established on the basis of hearsay evidence alone, because a probable cause hearing does not have the finality of trial, . . . and need not be based solely on evidence admissible in the courtroom." Id. at 409 (citations and internal quotation marks omitted).

Therefore, defendant's argument that due process requires the contents of the State's anticipated trial proofs be subject to cross-examination at the waiver hearing is misplaced. Rather, because defendant was afforded "a fair hearing where he [was] represented by counsel and ha[d] an opportunity to be heard and present evidence," the proceeding met basic constitutional due process of law requirements. See J.M., supra, 182 N.J. at 411 (citation and internal quotation marks omitted). Similarly, his contention Rule 3:13-3(b) compelled the State to provide written transcripts of recorded witness statements collapses under the plain language of the rule. See R. 3:13-3(b)(1)(G) ("The prosecutor also shall provide the defendant with transcripts of all electronically recorded . . . witness statements . . . no [] later than 30 days before the trial date . . . .").

Defendant next argues the prosecutor's statement of reasons for seeking waiver reflected an abuse of discretion because it "was both grossly insufficient and legally indefensible." We disagree.

To ensure uniform application of the waiver statute, pursuant to N.J.S.A. 2A:4A-26(f), the Attorney General has promulgated guidelines that prosecutors must follow in making the waiver decision. Juvenile Waiver Guidelines (March 14, 2000) (Guidelines), available at http://www.nj.gov/oag/dcj/agguide/pdfs/AG-Juvenile-Waiver-Guidelines.pdf). The Guidelines, in turn, "require preparation of a written statement of reasons for waiver, in which the prosecutor must 'include an account of all factors considered and deemed applicable.'" V.A., supra, 212 N.J. at 12 (quoting Guidelines, supra, at 7). The factors to be considered by the prosecutor are: the nature of the offense; deterrence; the effect of waiver on co-defendants; the maximum sentence and length of time to be served if prosecuted as an adult or as a juvenile; the defendant's prior record, if any; trial considerations and the victim's input. Guidelines, supra, at 5-6.

The prosecutor's statement of reasons must reflect an individualized consideration of the evidence, taking into account all applicable factors. See V.A., supra, 26-27. If the statement "is a mere regurgitation of the Guidelines' language, that will not show that the prosecutor engaged in an individualized decision, rendering the overall decision susceptible to the claim that it is arbitrary and constitutes an abuse of discretion." Id. at 28. The burden of proof rests with the juvenile to show "clearly and convincingly that a prosecutor abused his or her discretion." Id. at 26.

Judged by those standards, we agree with the Family Part judge that defendant did not carry his heavy burden to show the prosecutor's decision was an abuse of discretion. The four-page statement discussed in sufficient detail all of the Guidelines' factors that were relevant to the waiver decision and made a reasoned, qualitative evaluation of those factors. It provided an in-depth review of the circumstances and investigation giving rise to the charges. Moreover, the State sufficiently addressed the violent nature of the offense and the significant need for individual and general deterrence, as well as the other pertinent factors.

We therefore conclude the Family Part judge's findings of fact were "grounded in competent, reasonably credible evidence," he applied the "correct legal principles," and there was no "clear error of judgment that shocks the judicial conscience." See R.G.D., supra, 108 N.J. at 15.

Affirmed.

1 The girlfriend related she saw a black male raise his gun and fire at Deramus. However, she did not observe the second individual.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).