STATE OF NEW JERSEY IN THE INTEREST OF J.T., R.T. and J.W

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2647-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF

J.T., R.T. and J.W.

____________________

 

Submitted October 15, 2008 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FJ 09-808-08 (J.T), FJ 09-812-08 (J.W.) and FJ 09-813-08 (R.T.).

Edward J. De Fazio, Hudson County Prosecutor, attorney for appellant (Monalisa A. Captan, Assistant Prosecutor, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent J.T. (Keith Hirschorn, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent J.W. (Jeffrey R. Jablonski, Designated Counsel, of counsel and on the brief).

Darryl G. Smith, attorney for respondent R.T.

PER CURIAM

The State appeals pursuant to leave granted from the January 18, 2008 orders of the Family Part denying the State's motion to waive jurisdiction of that court over criminal charges brought against three juveniles identified as J.T., R.T. and J.W. For the reasons that follow, we reverse and remand for further proceedings.

The State charged these three juveniles, along with a fourth juvenile, D.T., who was not a subject of the waiver application, with offenses which, if committed by an adult, would constitute first-degree robbery, in violation of N.J.S.A. 2C:15-1, and second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1). The charges arose from an incident that occurred on August 25, 2007, when J.T., J.W. and D.T. attacked Robert Wilkerson, punched and beat him until he fell to the ground and then demanded that he turn over his wallet. Wilkerson told the juveniles he had no money, and one of the juveniles then went through Wilkerson's pockets, retrieved his wallet and discovered that it did not contain any money. R.T. videotaped this entire incident and later posted the video on the internet.

The State moved before the Family Part to refer J.T., R.T. and J.W. to the Law Division for trial pursuant to N.J.S.A. 2A:4A-26(a)(2)(a) and Rule 5:22-2.

At the hearing on the State's waiver motion, Detective Mark Conroy of the Jersey City Police Department testified that as a result of the police investigation into the incident, he took statements from J.T. and D.T. J.T. stated that on the date in question, he and his older brother were "hanging out on a porch" with J.W. and R.T. when an individual, later identified as Wilkerson, walked by, stopped and "said something disrespectful to them[,] then continued walking . . . ." J.T. told Conroy that:

The four of them ran off the porch and caught this male at the corner of Bramhall and Martin Luther King Drive when his brother punched the male in the back of the head and he punched the male in the back of the head and finally, [J.W.] hit the male knocking him to the ground.

All three males continued to punch and kick this male several times while [R.T.] was recording this incident with a digital camera . . . .

Conroy's notes of his interview with D.T. refer to the incident as "the date of this robbery/aggravated assault." D.T. stated that he saw J.W. and the other two juveniles "beating up some guy" while R.T. "was recording the whole thing." According to D.T.:

The guy got up off the ground and walked out of the area. A few minutes later we seen the same guy coming and we all started to hit him again while [R.T.] recorded us with the video camera. Then [R.T.] went through the man's pockets taking out his wallet and going through it, but he didn't have any money.

We all left Bramhall after that and went back to [J.W.]'s house . . . to watch the video that [R.T.] recorded of the man getting beat up.

Conroy also testified about a statement that J.W. had given to Detective Christian Gallagher. J.W. told Gallagher the following:

The group . . . set out to find their victim. In the area of Monticello and Bramhall Avenue [J.W.] state[d] that he, along with [J.T.] . . . observed their victim, walked up behind him, and began punching him until he fell to the ground. The group then began to kick the victim while he was on the ground.

[J.W.] further stated that a young male, later identified as [D.T.], also joined in and began punching and kicking the victim. [J.W.] also stated that while the brutal beating was taking place a female[] known as [R.T.] . . . was recording the incident with the digital camera.

Detective Gallagher testified that the matter was "given to major case" within the juvenile unit "due to the severity of the beating and the amount of actors that . . . assisted in the beating." Gallagher also produced a copy of the video that R.T. made of the incident and played it for the court.

The State had marked for identification an investigative report by Officer Winters, who had interviewed Wilkerson. That report contained Wilkerson's statement to Wilson that, "as [Wilkerson] passed, [the juveniles] came from behind him and started beating him. They demanded . . . money as they beat him." However, the State did not move Winters' report into evidence. In denying the waiver motion, the judge found that the State had presented sufficient evidence to establish probable cause regarding the aggravated assault charge. The judge concluded, however, that the State had failed to establish probable cause on the robbery charge because there was no showing that, during the taking of Wilkerson's wallet, the juveniles had knowingly inflicted bodily injury or had used force or threatened Wilkerson with immediate bodily injury. The judge stated that the act of theft must precede or occur at the same time as the use of force, in order to constitute the offense of robbery, and that the juveniles had to have formed the intent to commit a theft before engaging in the use of force.

The judge concluded that J.T. and J.W. were "hanging out" with R.T. After Wilkerson passed by, allegedly saying something "disrespectful" to them, the group chased after him; J.T. and J.W. punched and kicked him, with D.T. joining in the attack at some point.

The judge noted that the video showed a break in the action, with Wilkerson sitting on the curb when R.T. approached him a second time. They exchanged words, but the video did not clearly reproduce them. The judge stated that, on the video, Wilkerson was seen handingg12

an item to R.T. that may have been his wallet; R.T. held the item in her hand for few seconds and then handed it back to Wilkerson.

The judge thereupon denied waiver, finding that the State had not established probable cause with respect to first-degree robbery. The following colloquy then ensued between the prosecutor and the judge:

MS. CAPTAN: Your Honor, . . . I believe [your] ruling was that a robbery wasn't committed, not that an aggravated assault wasn't committed.

. . . .

THE COURT: No. No. You clearly have probable cause for an aggravated assault . . . but you didn't ask me to waive them on that ground. . . . And I haven't made a ruling . . . I mean certainly there's an aggravated assault, I can't determine whether it's a second-degree or a third-degree based on what I've seen, but certainly there's an aggravated assault.

The trial judge framed the issue before her as:

whether or not the State has met its burden to establish probable cause for the charge of first-degree robbery with regard to [R.T., J.W. and J.T.] based on events occurring in the early morning hours of August 25th, 2007.

. . . .

Now as I mentioned there were other charges in the complaints, but the . . . specific charge that the State moved on is robbery, not on any other potential charge such as second-degree aggravated assault and, for example, I didn't receive any information with regard to the injuries to the victim other than that he was beaten.

I didn't receive any information regarding any other potential offense which could merit waiver. So what . . . the State has to establish is whether there's probable cause to believe that the juveniles . . . were a party to a theft and that in the course of committing that theft they purposely inflicted or attempted to inflict serious bodily injury upon the victim, Mr. Wilkerson . . . .

. . . .

So basically the State needs to make a prima facie showing of each element of the offense in order to establish probable cause. Here with regard to the robbery charge that State has to make a prima facie case that the defendants intended to steal the victim's wallet or to rob the victim prior to or coterminously with the use of force.

The judge based her factual determination regarding the robbery charge upon her review of the video which she described as follows:

Here on this video that I have reviewed as carefully . . . as I can under the . . . constriction of the quality of the video I see the juveniles assault this man brutally, horribly . . . .

I see that happen and then I see a break in the video. And everyone agrees that there was some time in between and that [D.T.] was not part of the first part, but that he did assault Mr. Wilkerson later.

It's clear from the video that in another place, another location, and at another time, it may have just been a few minutes, it may have been . . . more than that, but in a different location the victim is sitting on the curb and [R.T.] approaches him.

Words are said, but they are not distinguishable to my ears or to my law clerk's ears. We listened as carefully as we could. I don't think anyone can tell us with certainty what is being said. And we listened over and over again.

So I don't know what that conversation was, something is said by [R.T.], something is handed up to her, could be a wallet. And she holds it in her hands for a second or two and hands it back. And this I guess is what the State alleges is the basis for the robbery.

None of the other juveniles have anything to do with this. There's nothing on the tape that suggests to me that the juveniles were robbing Mr. Wilkerson while they were beating him so brutally.

. . . .

While initially I could see why perhaps the State would think a robbery had occurred because of the statement of [D.T.] where he says [R.T.] forcibly goes through the man's pockets, [D.T.]'s statements are belied by the video itself. She doesn't touch him.

The judge thereupon entered orders denying waiver of all three juveniles. This appeal followed. In granting leave to appeal, we divested the Family Part of jurisdiction, thereby staying the subject orders pending disposition.

The Code of Juvenile Justice provides that a juvenile over the age of fourteen at the time of the charged delinquent act may be waived without his or her consent to be tried as an adult upon demonstration of probable cause that the juvenile committed delinquent acts which, if committed by an adult, would constitute certain offenses. N.J.S.A. 2A:4A-26(a)(1)-(2). Included among the offenses rendering such a juvenile subject to waiver are: "robbery which would constitute a crime of the first-degree, . . . [and] aggravated assault which would constitute a crime of the second-degree . . . . " N.J.S.A. 2A:4A-26(a)(2)(a).

"Probable cause is a flexible, nontechnical concept. . . . [A]lthough incapable of precise definition, the term has been construed to signify less evidence than would be required to establish guilt of the crime . . . . It is a suspicion of guilt that is well-grounded; a reasonable basis for a belief that a crime has been or is being committed." State v. Kasabucki, 52 N.J. 110, 116 (1968). Here, the trial judge described the State's burden with respect to establishing probable cause for first-degree robbery as having "to make a prima facie case that the defendants intended to steal the victim's wallet or to rob the victim prior to or coterminously with the use of force."

Citing State v. Lopez, 187 N.J. 91 (2006), the judge determined that, to establish probable cause "for the crime of robbery[,] the intent to commit a theft must precede or be coterminous with the use of force. In other words, the defendant must have formed the intent to commit a theft before he or she uses force."

We acknowledge that the trial judge's statement is consistent with the view expressed by the Court in Lopez. "[W]here a violent fracas occurs for reasons other than theft, and the perpetrator later happens to take property from the victim[,] . . . the violence and the theft are unconnected, and the perpetrator is guilty of assault and theft but not of robbery." Id. at 101.

However, as noted, the State had additional evidence in the form of a statement from Officer Winters who took a statement from the victim. In that statement, Wilkerson told Winters that the juveniles had demanded that he give them money "as they beat him."

Under the circumstances, we conclude that the State should have an opportunity to supplement the record before the trial judge with the report of Officer Winters, which had been marked for identification but not moved into evidence. "The probable cause phase of a referral hearing does not have the finality of a trial. Had the judge ruled, without drawing an adverse inference, that the evidence presented simply fell short of establishing probable cause, the State could have renewed its motion for referral with additional evidence." State in the Interest of J.L.W., 236 N.J. Super. 336, 346 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991). Moreover, "[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.'" State in the Interest of B.G., 247 N.J. Super. 403, 409 (App. Div. 1991)(citation omitted).

We further conclude that the matter must be remanded for additional consideration of the State's request for waiver with respect to the aggravated assault charge. The trial judge denied waiver based upon her belief that the State had not sought waiver on this charge. The judge further declined to consider this charge because of the lack of medical records describing the victim's condition.

Nonetheless, the trial judge repeatedly characterized the incident as "horrible" and "twisted," and stated that she was "horrified . . . by the crime and by the actions that I saw of these juveniles . . . ." The evidence -- both in the police officers' testimony as well as the video -- indicates that the juveniles stomped and kicked Wilkerson in the chest and stomach, causing him to fall to the ground, and continuing to attack him after he fell. The video at one point shows Wilkerson attempting to walk away in a staggering manner, and then collapsing to the curb; he appears to be weak and bruised by the injuries he sustained. While in that weakened condition, Wilkerson appears to hand an object to R.T.

N.J.S.A. 2C:12-1(b)(1) defines second-degree aggravated assault as "[a]ttempt[ing] to cause serious bodily injury to another, or caus[ing] such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life . . . ." Our review of the evidence convinces us that the State may well have met its burden of establishing probable cause for waiver on the aggravated assault charge. The trial judge, as noted, refused to consider this charge as a basis for waiving jurisdiction because the State had not submitted medical records pertaining to Wilkerson's injuries, as well as the mistaken belief that the State did not seek waiver with respect to it. It appears the trial judge was primarily concerned with the robbery charge, since she devoted the majority of her decision to a discussion of Lopez, supra, and what she considered to be an "after thought" theft.

We reject the argument advanced by the juveniles that the State should not be permitted to reopen the waiver hearing because it has exhibited "inadvertence, forgetfulness, lack of preparation, and perhaps, bad faith[,]" citing Sports Page, Inc. v. First Union Management, Inc., 438 N.W.2d 428 (Minn. Ct. App. 1989). First of all, the juveniles were aware of Officer Winters' statement as it had been marked for identification at the hearing but, inadvertently, not moved into evidence. Secondly, the State's brief in support of its waiver motion specifically noted that the juveniles had been charged with both first-degree robbery, in violation of N.J.S.A. 2C:15-1, and aggravated assault, in violation of N.J.S.A. 2C:12(b)(1).

Reversed and remanded for further proceedings in conformance with this opinion.

 

This individual is referred to as both "Wilkerson" and "Wilkinson" throughout the record.

We reviewed the video that was submitted into evidence.

(continued)

(continued)

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A-2647-07T4

RECORD IMPOUNDED

December 11, 2008