STATE OF NEW JERSEY v. T.S. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4244-06T54244-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

T.S. and J.U.,

Defendants-Respondents.

__________________________________

 

Argued November 5, 2007 - Decided

Before Judges Parrillo, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Family Part, Burlington County, Docket Nos. FJ-03-811-07, FJ-03-813-07.

Jason D. Saunders, Assistant Prosecutor, argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney; Mr. Saunders, on the brief).

Timothy S. Farrow argued the cause for respondent T.S. (Law Offices of Gold & Farrow, P.C., attorneys; Mr. Farrow, of counsel and on the brief).

Grant J. Robinson argued the cause for respondent J.U.

PER CURIAM

On leave granted, the State appeals from a Family Part order denying its motion to transfer jurisdiction to the Law Division for adult prosecution of T.S. and J.U., pursuant to N.J.S.A. 2A:4A-26. We now reverse.

By way of background, juveniles T.S., J.U. and C.T. were charged with acts of delinquency which, if committed by an adult, would constitute first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful weapon possession, N.J.S.A. 2C:39-5(b); fourth-degree possession for an unlawful purpose, N.J.S.A. 2C:39-4(e); and conspiracy, N.J.S.A. 2C:5-2(a). Pursuant to the State's motion to transfer jurisdiction over T.S. and J.U. to the Law Division for adult prosecution, a waiver hearing was held.

According to the State's proofs at the hearing, on November 8, 2006, at approximately 11:48 p.m., Willingboro Township Patrolman Curtis Hankey responded to the report of an armed robbery by Mary Hunt, age forty-seven, and William Diggs, age forty-two, who were brother and sister. When Officer Hankey arrived, Hunt reported that three black males armed with either a black handgun or a replica, approached her and Diggs from behind and told them that this was a robbery. When Hunt and Diggs turned to face their attackers, one of the robbers held them at gunpoint, while the other two searched them. Finding nothing on their victims' persons, the three men walked back to Harrison Drive, their original location.

Hunt was able to describe the suspects, but Diggs was not. Hunt described them as "[t]hree black males, approximately 18 years old or older, all wearing dark clothing, [with] one [wearing] . . . dirty white or light colored sweat pants." Within thirty minutes of the incident, Willingboro Township Officer Wallace located four African-American males in the vicinity wearing dark clothing, including one wearing white sweat pants. On the grass approximately ten feet from where the suspects were stopped, Officer Malone located a replica, black-colored Glock handgun with its orange tip safety device removed. Officer Wallace identified the four suspects as eighteen-year old Pierre Shepard and seventeen-year olds T.S., J.U. and C.T.

Officer Hankey brought Hunt to his patrol car and situated the suspects approximately four car lengths away. Hunt individually identified three individuals, Shepard, T.S. and J.U., as the suspects who robbed her. However, she was unable to identify C.T. Subsequently, even though he was not identified, C.T. volunteered to Officer Hankey that he was in fact involved, but that T.S. was not. After being advised of his Miranda rights, Shepard, the eighteen-year old suspect, told Willingboro Township Police Detective Pierre Deissler that all four males were involved in the robbery. After juvenile delinquency complaints were filed against T.S., J.U. and C.T., on November 11, 2006, at the Burlington County Juvenile Detention Center, Juvenile Detention Officer George Elmer Williams, Jr. overheard J.U. state that T.S. "wasn't even there."

At the conclusion of the hearing, the Family Part judge found probable cause that T.S. and J.U. had committed the armed robbery. As to the State's motion to waive jurisdiction, however, the court requested additional briefing. In this regard, the State based its waiver recommendation on its analysis of all seven factors of the Attorney General's Juvenile Waiver Guidelines (Guidelines), adopted March 14, 2000 pursuant to N.J.S.A. 2A:4A-26(f). In making the initial recommendation, the assistant prosecutor, in his written statement of reasons, distinguished between the circumstances attending T.S. and J.U. on the one hand, and C.T. on the other, as they specifically relate to the factors considered.

For instance, as to the first Guidelines factor - the nature of the offense - the assistant prosecutor noted the differing degrees of involvement:

[(1)] [regarding t]he nature and circumstances of the act . . . [and defendants' roles, T.S.], [J.U.], [C.T.] and an adult co-defendant agreed to commit a robbery and were aware a gun was being used[;] [(2)] [T.S.], [J.U.], and the adult co-defendant approached . . . and demanded money [from the victims] while [C.T.] stood lookout . . . . [;] [(3) a] replica . . . gun was pointed at the victims [during]

. . . the search[].

In analyzing Guidelines factor five - prior record - the assistant prosecutor compared the juvenile histories of T.S. and J.U. with C.T.'s marginal involvement:

[T.S.]'s prior record . . . :

5/26/2006: Improper Behavior/Fighting - Intake Service Conference[;]

7/26/2006: Theft from Person (3rd Degree) - currently on Probation[;]

11/15/2006: (Open): Violation of Probation

(3rd Degree - incurring new charge)

[J.U.]'s prior record . . . :

9/20/2000: Robbery (2nd Degree)/Terroristic Threats - Dismissed per complainant[;]

2/8/2002: Receiving Stolen Property (PDP) - 6 month deferred disposition[;]

4/22/2002: Simple Assault(DP)/Terroristic Threats(3rd Degree) - dismissed

[C.T.]'s prior record . . . :

8/15/05: Harassment (PDP) - JCC dismissed w/o prejudice 6/7/06

And finally, in accounting for Guidelines factor six - trial considerations - the assistant prosecutor contrasted the strength of the proofs against T.S. and J.U. with those against C.T.:

The case against [C.T.] (lookout) is substantially weaker than the other two because there is no witness identification. The likelihood of conviction against [T.S] and [J.U.] is strong. [T.S.], [J.U.], and [C.T.] were taken into custody in the immediate vicinity of the robbery shortly after the robbery was committed. The gun used in the robbery was located in the grass less than ten (10) feet from where they were standing. The victim Mary Hunt positively identified [T.S.], [J.U.], and an adult co-defendant as being the individuals that robbed her. The adult co-defendant, Pierre Shepard, gave a Mirandized statement implicating all three juveniles in the robbery including the fourth person as a lookout. Furthermore, the initial description given by the victim is consistent with the general description of both [T.S.] and [J.U.]

Based on his review of the assistant prosecutor's statement of reasons pursuant to the Guidelines, the county prosecutor authorized waiver for T.S. and J.U. because "the nature and circumstances of these offenses are sufficiently serious that the interest of the public make[s] waiver an appropriate consideration[,]" and explained further his contrary decision as to C.T.:

In analyzing the proofs in this case I am satisfied that the proofs are sufficiently strong for waiver against juvenile [T.S.] and [J.U.] However, the only evidence implicating juvenile [C.T.] is the [Mirandized] statement of the adult co-defendant which indicated that [C.T.] was standing behind out of sight as a look-out. Accordingly, based on the lesser quantum of evidence against juvenile [C.T.] and the reality that some type of plea bargain would require cooperation on the adult suspect or the other juvenile suspects to testify against [C.T.], waiver against [C.T.] will not be authorized. It is recommended that an attempt be made to secure a plea from the juvenile [C.T.] with a facts statement implicating the others so as to neutralize him as a potential witness or alternatively, to have him become available as a State's witness as part of any plea agreement in family court.

The judge denied the State's waiver application, finding a "gross and patent abuse" of prosecutorial discretion. He reasoned:

I have some serious . . . misgivings about the fairness of seeking to waive two equally culpable . . . juvenile actors and not seeking to waive on the other juvenile actor . . . . [with] the only distinguishing . . . factor seem[ing] to be [that] the Prosecutor thinks he's got a better case against these two and a weaker case against the other.

We find no abuse in the exercise of prosecutorial discretion in this case and therefore reverse.

"The primary reason for waiver of [juvenile defendants to the Law Division] is the need for general deterrence." State ex rel. D.D., 369 N.J. Super. 368, 381 (Ch. Div. 2003) (citing State v. Onque, 290 N.J. Super. 578, 585-86 (App. Div.), certif. denied, 146 N.J. 497 (1996)); see also N.J.S.A. 2A:4A-26(e). "In determining whether general deterrence is needed, consideration must be given to the gravity of the crime, the age of the juvenile, and the disparity between the potential sentence as an adult and the potential disposition as a juvenile offender." State ex rel. D.D., supra, 369 N.J. Super. at 381 (citing Onque, supra, 290 N.J. Super. at 584). First-degree armed robbery is "the type[] of crime[] for which the Legislature intended waiver to apply, creating a strong need for deterrence in those cases." Ibid. (citations omitted).

In fact, for Chart 1 offenses, such as armed robbery, there exists a strong presumption of waiver. N.J.S.A. 2A:4A-26; R. 5:22-2; State v. R.G.D., 108 N.J. 1, 11 n.3 (1987). In such a case as here, "the State's only burden . . . is to establish probable cause that the juvenile committed th[e] Chart 1 offense at a time when he was age fourteen or older." State ex rel. A.L., 271 N.J. Super. 192, 202 (App. Div. 1994). "'[N]o additional showing is required . . . for waiver to occur.'" State v. Scott, 141 N.J. 457, 463 (1995) (quoting R.G.D., supra, 108 N.J. at 11). In fact, this presumption is irrebutable where the juvenile who commits an armed robbery is sixteen years of age or older. N.J.S.A. 2A:4A-26(e). Thus, effective March 14, 2000, "the Legislature amended . . . the Juvenile Code[, N.J.S.A. 2A:4A-26(e),] to eliminate the right of a juvenile sixteen years of age or older to defeat a prosecutor's motion to waive a charge of a Chart 1 offense to adult court by showing a probability of rehabilitation before the age of nineteen." State ex rel. R.C., 351 N.J. Super. 248, 250 (App. Div. 2002) (citing L. 1999, c. 373, 1); see also State v. J.M., 182 N.J. 402, 412 (2005).

Of course, "[t]he decision by the State to seek waiver from the Family Part to the Law Division is a discretionary one." J.M., supra, 182 N.J. at 419. "[P]rosecutorial [juvenile waiver] decisions involve consideration of a wide range of circumstances relating to the offense charged and the alleged offender's personal circumstances, and are closely related to a prosecutor's 'charging function.'" State ex rel. R.C., supra, 351 N.J. Super. at 260 (citing State v. Caliguiri, 158 N.J. 28, 37 (1999)).

However, to "provid[e] . . . adequate safeguard[s] against the arbitrary exercise of this [considerable] discretionary authority[,]" ibid., "[t]he Legislature[] [required] . . . the Attorney General to 'develop for dissemination to the county prosecutors those guidelines or directives deemed necessary or appropriate to ensure the uniform application . . . [of the waiver section] throughout the State' . . . ." Id. at 256 (quoting N.J.S.A. 2A:4A-26(f)); see also J.M., supra, 182 N.J. at 419. "Pursuant to this directive, the Attorney General issued Guidelines that identify factors a prosecutor must consider in determining whether to file a motion for waiver to adult court." State ex rel. R.C., supra, 351 N.J. Super. at 250. These "'factors' a prosecutor must consider [are]:

. . . (1) nature of the offense; (2) deterrence; (3) effect on co-defendants; (4) maximum sentence and length of time served; (5) prior record; (6) trial considerations; and (7) victim's input." State ex rel. R.C., supra, 351 N.J. Super. at 255; see also Guidelines, at 5-6.

Although it is the prosecutor upon whom is conferred the primary responsibility for the waiver decision, that determination is subject to "judicial review." Id. at 257. However, that review is limited. Given the strong presumption in favor of waiver and the heavy burden on the juvenile offender to show that the case should not be waived, see R.G.D., 108 N.J. at 12; see also N.J.S.A. 2A:4A-26, "a prosecutor's motion for waiver of such a complaint must be granted unless the juvenile shows by clear and convincing evidence that the decision constituted a patent and gross abuse of discretion." State ex rel. R.C., supra, 351 N.J. Super. at 251.

In this regard, "a prosecutor's decision concerning the waiver of a juvenile complaint to adult court has greater similarity to a prosecutor's refusal to consent to a defendant's admission into PTI [pre-trial intervention program] than to a prosecutor's sentencing decisions." Id. at 259. In a PTI case,

an [ordinary] abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment . . . . To rise to the level of 'patent and gross,' it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].

[State v. Bender, 80 N.J. 84, 93 (1979).]

We discern no gross or patent abuse of prosecutorial discretion in this case. The Family Part judge's contrary view was based on a finding of disparate treatment accorded individuals similarly situated. Yet, there appears no support for that determination in the record. See State v. Humphreys, 89 N.J. 4, 13 (1982). On the contrary, the prosecutor's decision to waive T.S. and J.U., and not C.T., was properly based on individual assessments of all three suspects measured against the Guidelines factors, and on significant distinctions in their attendant circumstances.

One such distinction is the level of involvement of the trio in the armed robbery. There was evidence suggesting that C.T. acted as a look-out whereas T.S. and J.U. physically confronted the two victims and put a gun to their heads during the attempted robbery. T.S. and J.U. also had previous involvement with the juvenile justice system resulting in adjudications, whereas C.T.'s was limited to only a harassment charge that was ultimately dismissed. And finally, the proofs against T.S. and J.U. were stronger than against C.T., and consequently there was a greater likelihood of conviction against the former. On this score, there was no positive identification of C.T. by the victim, who otherwise identified T.S. and J.U. In our view, C.T.'s unsworn admission to Officer Hankey that he was, in fact, involved in the robbery does not render insignificant the inability of either victim to identify him as a participant. We cannot presume that C.T.'s statement would be admitted at trial, or that it was credible.

These were all valid considerations and the differences in their circumstances as shown by the record belie the Family Part judge's finding that all three suspects were "similarly situated." Thus, there was no departure here from the Guidelines admonition in factor three "to avoid an injustice if similarly situated culpable individuals" are treated disparately. Guidelines, at 5. Nor did the prosecutor err in considering the relative proofs against these individuals, as the court below wrongly suggested. Indeed, under Guidelines factor six, such a comparison is an appropriate consideration: "The prosecutor shall consider the likelihood of conviction and the potential need for a grand jury investigation." Id. at 6.

In sum, we find the Family Part's decision erroneous and that there was no gross or patent abuse of prosecutorial discretion. The decision of the prosecutor to waive only T.S. and J.U. was soundly grounded on a proper analysis of the Guidelines factors and on distinctions between them and C.T. reasonably based in the record. Parenthetically, we reject the prosecutor's separate procedural contention in Point II (D) of its brief, that the motion judge should not have entertained the juvenile's application for review of the prosecutor's decision and that such review instead should have been conducted in the first instance by this court.

Reversed.

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

"Chart 1" offenses are the more serious offenses enumerated in N.J.S.A. 2A:4A-26(a)(2)(a), (a)(2)(e), and (a)(2)(i).

[F]or the court to determine that the reasons for seeking waiver are not arbitrary, it must be able to review the State's reasons for the waiver motion.

The logical way to do that is to include a statement of reasons along with the motion.

. . . [Thus,] the reasons for seeking waiver should . . . accompan[y] the waiver motion.

[J.M., supra, 182 N.J. at 419.]

Thus, "a prosecutor's motion for waiver to adult court of a juvenile complaint that falls within the Attorney General's Guidelines must be accompanied by a copy of the prosecutor's statement of reasons . . . ." State ex rel. R.C., supra, 351 N.J. Super. at 250-51.

(continued)

(continued)

14

A-4244-06T5

RECORD IMPOUNDED

November 28, 2007