STATE OF NEW JERSEY IN THE INTEREST OF N.A., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02567-15T4

STATE OF NEW JERSEY IN THE

INTEREST OF N.A., a minor.

__________________________

November 7, 2016

Submitted October 11, 2016 Decided

Before Judges Reisner and Koblitz.

On appeal from an interlocutory order of Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FJ-07-2239-15 and FJ-07-2252-15.

Joseph E. Krakora, Public Defender, attorney for appellant N.A. (Susan Brody, Deputy Public Defender II, of counsel; Rebecca Gindi, Attorney Assistant, on the brief).

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

PER CURIAM

N.A. appeals from the trial court's grant of an involuntary waiver from the Family Part to the Law Division. The trial court conducted a hearing and determined that the State had demonstrated probable cause that N.A., who was seventeen years old at the time, had engaged in behavior that, if committed by an adult, would have constituted two first-degree carjackings, N.J.S.A. 2C:15-2(a)(1), while armed with a handgun,1 and related serious crimes. The judge also determined that the prosecutor did not abuse his discretion in seeking waiver. On appeal, N.A. initially raised the arguments that the probable cause portion of the waiver hearing violated his due process rights because the State's only witness had no first-hand knowledge of the underlying events and the State's reasons for waiver constituted an abuse of discretion. Subsequently, the juvenile filed a supplemental letter pursuant to Rule 2:6-11(d), bringing to our attention the recently decided case of State ex rel. J.F., 446 N.J. Super. 39 (App. Div. 2016), and seeking a remand to reopen the waiver hearing so that N.A. could present evidence concerning newly enacted waiver factors, consistent with N.J.S.A. 2A:4A-26.1(c)(3). The State did not respond to this letter. We affirm the court's probable cause finding, but reverse and remand to allow N.A. to present evidence in opposition to waiver consistent with the new statute.

The following facts were submitted by the detective who testified at the waiver hearing, using police reports, videotapes and witness statements. She had no direct involvement with the investigation. Two armed carjackings occurred on May 6 and 26, 2015. On May 6, 2015, shortly after 12 a.m., E.O. was driving in the city of Irvington when, while stopped for a red light at an intersection, two men approached her car. When one of the men pointed a gun at her head, E.O left her car, leaving her wallet and other possessions. The two men drove off in her car. The incident was recorded by a surveillance camera located at the intersection, and the footage was reviewed by two officers.

Later that same day, the police received reports of shots being fired in East Orange. The police investigation led them to another crime scene in the City of Newark where they found E.O's car, still running, in the middle of the street. The police found seventeen-year-old T.C. in the passenger seat, dead from a gunshot wound. N.A. was on a nearby porch with a bullet-graze wound on the back of his head. N.A. was taken to the hospital for treatment, charged with receiving stolen property and released to his mother.

On May 15, E.O gave a video statement about the May 6 carjacking. She was able to pick N.A.'s photograph from an array, identifying him as the suspect who threatened her with a gun in the carjacking.

On May 26, T.M. and A.E. were stopped at a red light when they were approached on both the driver's side and the passenger's side by two men. The first man, who approached on the driver's side, told T.M. "Get the fuck out the car. This bitch act like she wants to die." T.M. stated that she saw this same man pull out a black handgun and point it at her. The second man, on the passenger side, told them, "Listen to him and get out." T.M. and A.E. both fled the car, leaving their belongings behind and the key in the ignition.

Immediately after the incident, T.M. and A.E. went to police headquarters where a video statement was taken from both young women. They were able to give a detailed description of what the two men were wearing. In addition, T.M. stated that she was familiar with the second man, but did not know his name. The detective presented T.M. and A.E. with photographs and both women were able to identify the second man, R.F.

While T.M. and A.E. were still at headquarters they were informed that two men had been detained. They were able to identify R.F. and N.A. in person, both identifying N.A. as the individual who had approached the driver's side of the car carrying a gun. R.F. was found to have on his person T.M.'s prescription bottle of Naproxen and A.E.'s white iPhone 6. R.F. later admitted to this carjacking. Items belonging to victims from both carjacking were found in N.A.'s room.

Without question, hearsay evidence may properly be introduced at a waiver hearing. As we stated in State in the Interest of B.G., "Probable cause may be established on the basis of hearsay evidence alone, because a probable cause hearing 'does not have the finality of [a] trial,' and 'need not be based solely on evidence admissible in the courtroom.'" 247 N.J. Super 403, 409 (App. Div. 1991) (internal citation omitted) (quoting State in the Interest of J.L.W., 236 N.J. Super. 336, 346 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991) and State in the Interest of A.J., 232 N.J. Super. 274, 286 (App. Div. 1989)). The evidence presented by the detective was more than sufficient to establish probable cause. N.A. was found shot near the stolen car shortly after the first carjacking, and in both incidents was identified as the perpetrator by the victims, whose possessions were found in his home.

With regard to N.A.'s argument that the State abused its discretion in seeking waiver, we remand for reconsideration by the trial judge, after giving N.A. an opportunity to present evidence concerning the factors the State must consider, as permitted under our new waiver statute. N.J.S.A. 2A:4A-26.1(c)(3). The State did not file an objection to this request, and it is in line with the retroactivity we deemed appropriate in J.F. J.F., supra, 446 N.J. Super. at 59; see also In the Interest of N.H., 226 N.J. 242, 253 (2016) (directing that full discovery be provided to a juvenile prior to a waiver hearing as called for in the new juvenile statute). We do not intend by this remand to infer that waiver is or is not the correct outcome, only that under these circumstances N.A. should be given the benefit of the new procedures, especially in light of the serious consequences waiver entails. See N.H., supra, 446 N.J. at 253 (referring to the "critical nature of waiver hearings").

Affirmed in part and remanded in part. We do not retain jurisdiction.

1 N.A. was also charged with two counts of second-degree possession of a firearm for an unlawful purpose. N.J.S.A. 2C:39-4(a).