STATE OF NEW JERSEY IN THE INTEREST OF A.W.

________________________________

 

 

Before Judges Fisher and C.L. Miniman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2863-08.

 

Edward J. DeFazio, Hudson County Prosecu­tor, attorney for appellant State of New Jersey (Stephanie McClure, Assistant Prosecutor, on the brief).

 

Yvonne Smith Segars, Public Defender, attor­ney for respondent minor A.W. (John Moehring, Designated Counsel, of counsel and on the brief).

 

PER CURIAM

 

The State appeals from the dismissal of a juvenile com­plaint charging A.W. (the juvenile) with acts that would consti­tute first-degree robbery and second-degree aggravated assault had they been committed by an adult. The State sought a waiver of Family Part jurisdiction and a referral to the Law Division. At the hearing on the waiver application, the State presented testimony from five investigating officers to establish probable cause to believe that the juvenile was involved in the delinquent acts that had occurred. The juvenile testified at the waiver hearing in opposition to a finding of probable cause. The judge subsequently refused to waive jurisdiction, concluded that the evidence was insufficient to find probable cause, and dismissed the juvenile complaint. We reverse and reinstate the complaint because the evidence was more than sufficient to establish probable cause.

Jersey City Police Officer Frank Connaughton was the first officer to testify. He, along with Officer Erica Vagarra, responded to a report at 3:30 p.m. of a robbery and aggravated assault in front of a church on March 17, 2008, and arrived less than thirty seconds later. An ambulance was already at the scene. There, they were met by Terry,¹ a juvenile victim born on July 18, 1990, who stated that she was walking eastbound on Montgomery Street from Brunswick Street when she was approached by three black females, who began to push her. One of the three, Susan, also a juvenile, reached for Terry’s bag and into her jacket pocket, attempting to take Terry’s cell phone. The other two females continued to push Terry and one of the three grabbed and pulled her hair. Terry reported that there was a group of black males, including the juvenile, on the other side of the street near a high school watching the struggle among the females. When a Good Samaritan, Hippolito Mendoza, an adult, intervened in the scuffle, the group of black males crossed the street and the juvenile picked up Mendoza and slammed him onto the sidewalk. Terry reported that she could positively identify Susan.

Connaughton spoke with Marisol Cruz, an adult witness, who stated that she saw three black females pushing Terry and then saw several black males, one of whom slammed Mendoza onto the sidewalk. He also spoke with George Vega, Jr., another adult witness, who stated that he saw the juvenile physically pick Mendoza up and slam him to the ground. Then, the ambulance per­sonnel, who were treating Mendoza for an abrasion to his left eyelid with bruises and swelling and a left-wrist abrasion, transported him to the Jersey City Medical Center.

Connaughton testified to the descriptions of the juvenile, Susan, and the other two females, contained in his report. The juvenile was described as “[b]lack male, dark skinned, five foot eleven, a hundred and twenty five pounds, thi[c]k build with dark brown short afro wearing a black tee shirt, black hooded zipper sweatshirt, blue jeans and black sneakers.” The description of the male juvenile was given to central command and surrounding units in an attempt to locate him. At 3:40 p.m. Officer Brian Gajewski and Officer L. Santiago reported that they observed the juvenile in the courtyard of a public housing complex and took him into custody. He was returned to the scene, where he was positively identified by Cruz and Vega.

At 3:56 p.m. Terry and Cruz were transported to the juve­nile bureau by Officers Joe Manna and C. Kaye and Vega was transported by Sergeant Scerbo. At that time, juvenile detec­tives Donnie McGhee and Marjorie Jordan took over the investigation and obtained statements from the witnesses.

In the meantime, the Bureau of Criminal Investigation (BCI) photographed the roped-off scene, including the pool of blood on the sidewalk. Connaughton and Vagarra arrived at the hospital to talk with Mendoza. BCI also went to the hospital to photo­graph Mendoza’s injuries, who told them he could not identify the person who injured him because the person grabbed him from behind and slammed him face first to the pavement. Mendoza was seen by Dr. Wasserman, who told Connaughton that Mendoza had a facial-bone fracture, a possible broken left wrist in addition to the inju­ries to his left eye, and that X-rays and a CT-scan would be done. While there, they spoke with the victim’s daughter, Nancy, and her friend, who knew Susan’s name based on informa­tion they obtained from another unidentified juvenile witness. Susan was arrested later that day.

Gajewski testified that he and Santiago were dispatched to the scene at 3:30 p.m. on a report of a robbery and assault when he received a dispatch describing the juvenile who assaulted Mendoza and was told that he was walking with three other black males on South Brunswick Street heading towards a public housing complex. They began to canvass the area and in a couple of minutes saw a group of four black males walking into the housing complex about four blocks from the scene of the rob­bery and assault. About eight to ten feet in front of them were two females walking into the housing complex, one of whom, Susan, was known to Gajewski. One of the males fit the description given by the dispatch.

The officers exited their vehicle and began to approach the four males from the rear. One of the males turned and looked at them, said something to the others, and three of the four males ran off through the courtyard. The three who ran did not fit the description of the juvenile as they were about eighteen inches shorter. Gajewski stopped the fourth male, later identi­fied as the juvenile perpetrator, who had turned first one way and then the other as though he did not know where to go. The juvenile stated that he had nothing to do with it, he wanted to “get things right,” and agreed to respond back to the scene. Gajewski did not receive a description of a female perpetrator until afterwards. At the scene around 3:35 p.m., the juvenile was positively identified by Vega, who said he was 100 per­cent sure of the identification. The juvenile was arrested, transported to the juvenile bureau, charged with robbery and aggravated assault, and remanded to the Hudson County youth house.

The next witness to testify was Detective Alex Bermudez, who investigated the delinquent acts, seeking more victims and witnesses. He took a statement from Mendoza, who told Bermudez that he was in the immediate area to return his youngest daugh­ter from school to their home. Mendoza saw a girl, later identified as Susan, drag a Philippine girl by the hair and then another girl pushed Susan away. Then he saw Terry running towards him, but Susan jumped her and tried to get her cell phone. Mendoza got out of his car and pushed Susan away. At that point, he saw “a guy” come from across the street, he turned his back and then he was grabbed and slammed to the sidewalk.

Mendoza related to Bermudez that his daughter Nancy was at the hospital and that she told him that she knew the girl who was responsible and that she went to school with another of his daughters. His daughter knew the girl by name and reviewed a series of photographs in his presence and then identified Susan. He related that this was the girl he saw drag the Philippine girl by the hair and assault and try to rob Terry. Bermudez did not ask Mendoza to describe the juvenile that crossed the street because he was investigating the involvement of Susan and the juvenile had already been arrested. As a result, Mendoza’s statement does not connect the juvenile to the assault on Mendoza.

Bermudez also interviewed Terry and Nancy, Mendoza’s daugh­ter. Nancy told him that she was in her house, heard a commo­tion outside, and went downstairs to see what was happening. She saw “someone getting stomped” and saw Susan hit­ting him. As Nancy ran away, she saw Susan running away with a couple of girls. She had seen Susan earlier by the light rail with her cousin. Once the group disbursed, she saw that the victim was her father and she stayed with him until the ambu­lance arrived. She did not mention in her statement whether any males were present in the group. She later went to the hospital and told the detectives a couple of names, including Susan’s, and said that she was going to the open gym at a local school to try to find her. Nancy did so and alerted police who were driving by as to Susan’s identity and they arrested her. Again, because Bermudez was focused on identifying Susan as one of the perpetrators, he did not ask Nancy about the juvenile who had been arrested or any other males at the scene.

Detective McGhee testified that he took a statement from Vega, who indicated that two female juveniles were fighting and a man intervened in the fight. He stated that the male juvenile picked up the man and body slammed him. They all ran in different directions afterwards. Vega could not describe the female juveniles, but said that the male juvenile was not involved with the fight among the females, only with the man who intervened in the fight. He described the male juvenile as a “black male, five eleven, slim build, dark complexion.” Vega stated the male juvenile had been watching the fight. McGhee affirmed that Vega had identified the male juvenile at the scene and he again identified him at the juvenile bureau.

The last witness to testify on behalf of the State was Detec­tive Jordan, who took a statement from Cruz. Cruz said that she was on Montgomery Street waiting for a bus when she saw a group of girls about to fight another girl. Cruz tried unsuccessfully to save Terry from the situation by pre­tending to be her aunt, but the girls began to push and curse at her. She then saw one of the girls punch Terry in the face while another pulled her hair. Cruz again attempted to break up the fight. Mendoza then jumped out of his car and helped her intervene, but a male in the crowd picked Mendoza up and threw him on the ground, after which “they” started to punch him. Jordan did not ask Cruz who “they” were. When Cruz tried to help Mendoza, he was unresponsive. Cruz positively identified the juvenile as the male who threw Mendoza on his head, both at the scene and at the juvenile bureau.

The last witness to testify was the juvenile, who admitted that he was on the corner across from the high school where he and his friend John’s brother, Joseph, were waiting for John. He noticed a big crowd of ten to fifteen boys and girls across the street. He started walking to see what was happening. Then he noticed Mendoza get out of his car and push Susan and he heard them exchange words. That made the juvenile mad; he crossed the street alone and told Mendoza to leave Susan alone because she was a little girl. He testified that they had been arguing about two minutes and it was pretty heated. Then he pushed Men­doza, who pushed him back. He testified they had no other physical contact. He did not pick him up and slam him onto the sidewalk. He did not trip him, kick him, or punch him. He sim­ply walked away, crossed the street, left the scene with Joseph and walked home. Mendoza had not been injured at that point, but the juvenile did observe the crowd surround Mendoza and start hitting him.

The juvenile claimed that when he was arrested five minutes later, his friend Joseph was arrested as well. He and Joseph had each been wearing their school uniforms: black shirts and khaki pants. However, the juvenile testified that he had taken his black shirt off and put on a white shirt. He was also wear­ing a black hooded sweatshirt and was carrying the black shirt over his left shoulder. No one else was with him when he and Joseph were arrested. When they were both returned to the scene, Mendoza and Susan were gone. He never saw Susan after he first left the scene; she was not walking in front of him. He did see Vega at the scene while he was sitting in the police car. The juvenile testified that he knew Nancy from high school, but he did not see her at the scene and never spoke to her after this incident.

The juvenile’s attorney argued that the State’s motion for a waiver should be denied in light of the state of the evidence respecting the juvenile’s involvement in the robbery and assault even though all the State had to prove was probable cause that the juvenile had some participation in the occurrence of the alleged delinquent acts. Specifically, he argued that there was no evidence connecting the juvenile to the robbery, although he acknowledged that the aggravated assault was the bigger problem in terms of waiver. He asserted that no one could connect his client to the ultimate injuries and that there were multiple assailants. He also urged that the juvenile was acting as a Good Samaritan when he went to the assistance of Susan and sought to have the waiver application denied so that the matter could be resolved at the time of trial in the Family Part.

The State emphasized that the juvenile admit­ted that he was at the scene and involved in an altercation with Mendoza, and that Vega and Cruz corroborated this testimony and had immedi­ately identified the juvenile without hesitation. It argued that probable cause had been established and the motion should be granted.

The judge concluded that Mendoza’s injuries could not have been caused just by the “body slamming,” although she had no expert testimony to support this conclusion, and observed that his own daughter said that a group of people were stomping him. The judge found that Mendoza’s injuries were consistent with someone being punched and kicked in the body and face while on the ground. Nevertheless, she found that a second-degree crime had been committed and that the juvenile participated in it.

However, the judge then noted that the testimony of the police officers was all hearsay except for their observations of Men­doza and the investigation seemed to her “as if they were just simply ready to wrap it up as quickly as possible.” Nancy did not identify the juvenile even though they knew each other, yet she identified Susan. The judge found that when the juvenile was picked up by the police he was not with Susan; they just hap­pened to be going home to the same project. She also observed that when the police approached the group of four males, three ran away but the juvenile remained and answered questions. When the juvenile returned to the scene, he was identified by two people from another race and cross-racial identifications require greater care. She found that the show-up situation was inher­ently suggestive and he was wearing his school uniform, so he looked like other male students from his school. She noted that the State failed to produce the eyewitnesses at the hearing and subject them to cross-examination, which meant that she had only “bare bone statements.”

The judge stated that she was distrustful of the evidence and had “a lot of issues with some of the factors found applica­ble by the state” in seeking a waiver, including the juvenile’s nonviolent history. She determined that the juvenile testified credibly that he was there and that he intervened to assist a girl from his neighborhood, who was being assaulted by an older man. She found this conduct consistent with innocence, not guilt. She compared this testimony to the two incomplete hear­say written statements from two cross-racial witnesses and con­cluded that she did not have a well-grounded suspicion that the juvenile caused second-degree injuries to Mendoza. She also found that the juvenile had not participated in the robbery and there was no probable cause to believe that he did. She thus denied the referral motion and dismissed the complaint. This appeal followed.

The State raises the following issues on appeal:

POINT I – THE COURT ERRED IN DENYING THE STATE’S MOTION AND DISMISSING THE STATE’S CASE AGAINST A.W., BECAUSE PROBABLE CAUSE WAS ESTABLISHED.

 

POINT II – THE COURT ERRONEOUSLY CONCLUDED THAT PROBABLE CAUSE DID NOT EXIST BECAUSE: (1) THE IDENTIFICATION OF A.W., A BLACK MALE, WAS MADE BY TWO HISPANIC EYEWITNESSES; AND (2) HEARSAY TESTIMONY WAS USED TO ESTAB­LISH PROBABLE CAUSE. THE COURT’S DECI­SIONS THEREFORE, TO DENY THE STATE’S MOTION AND DISMISS THE STATE’S CASE MUST BE OVERTURNED.

 

The juvenile, on the other hand, argues that the denial of the motion should be affirmed because the statement of reasons supporting waiver and referral was not based on a meaningful analysis of the facts. He also asserts that the judge correctly denied the motion because the State failed to establish probable cause to believe that he was involved in the aggravated assault and robbery.

The scope of our review of a judge’s findings of fact is to determine “whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.” State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibil­ity find­ings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are “thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the mat­ter at inception and make [our] own findings and conclusions.” Johnson, supra, 42 N.J. at 162. On the other hand,

Whether the facts found by the trial court are sufficient to satisfy the applica­ble legal standard is a question of law sub­ject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[.]”)); see also State v. Brown, 118 N.J. 595, 604 (1990).

[State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]

 

We thus review the record to ascertain whether the judge’s find­ings are supported by substantial, credible evidence in the record and then apply the law to the facts de novo.

The Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, gov­erns acts committed by juveniles that would constitute a crime if committed by an adult and provides for their rehabili­tation within the juvenile justice system. However, when a juvenile is fourteen years old or older,

[o]n motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that . . . [t]here is probable cause to believe that the juvenile committed a delin­quent act or acts which if committed by an adult would constitute . . . robbery which would constitute a crime of the first degree . . . [or] aggravated assault which would constitute a crime of the second degree . . . .²

 

[N.J.S.A. 2A:4A-26a.]

 

The Legislature has vested primary discretion in local prose­cutors to determine whether to seek a referral to adult court. State v. J.M., 182 N.J. 402, 412 (2005) (“The intent was to increase prosecutorial discretion and to make waiver more likely in the case of . . . juveniles” committing a Chart 1 offense.).

Except for Chart 1 offenses, a juvenile has an opportunity to “show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, [in which case] waiver shall not be granted.” N.J.S.A. 2A:4A-26e. Because a juvenile six­teen or more years old has no such opportunity with respect to a Chart 1 offense, local prosecutors are required to follow the Attorney General’s guidelines in exercising their discretion to seek a waiver. Attorney General’s Juvenile Waiver Guidelines (Mar. 14, 2000) (“Guidelines“); R.C., supra, 351 N.J. Super. at 255 n.3.

The Guidelines contain both substantive standards a prosecutor must apply in deter­mining whether to move for waiver to adult court of a charge of a Chart 1 offense against a juvenile over sixteen and proce­dural requirements a prosecutor must follow in making this determination. The substan­tive standards are a list of “factors” a prosecutor must consider in determining whether to file such a waiver motion: (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.

 

[R.C., supra, 351 N.J. Super. at 255.]

 

The prosecutor must prepare a written statement of reasons for waiver identifying the Guidelines factors supporting waiver. Ibid. The statement of reasons must be submitted to the juvenile and to the Family Part. Id. at 260. The decision to seek waiver is subject to judicial review. Id. at 258 (“[A] trial court’s review of a prosecutor’s statement of reasons to waive a juve­nile complaint to adult court may be made summarily based on the court’s review of the written statement and other pertinent documentary materials.”). The scope of this judicial review is limited to “a patent and gross abuse of discretion,” similar to prosecutorial decisions to deny pretrial intervention (PTI). Id. at 259-60 (internal quotation omitted).

At a waiver hearing, “when a sixteen-year old or above is charged with a Chart 1 offense, the prosecutor need only estab­lish probable cause for the court to waive the juvenile to adult court.” J.M., supra, 182 N.J. at 412. Once the State estab­lishes the juvenile’s age and probable cause to believe that he committed one of the enumerated acts, “no additional showing is required in order for waiver to occur.” R.G.D., supra, 108 N.J. at 11-12 (also noting N.J.S.A. 2A:4A-26 creates a “presump­tion” of waiver for juveniles committing one of the enumerated offenses); State in re A.B., 214 N.J. Super. 558, 566 (App. Div. 1987) (presumption of waiver for Chart 1 crimes), aff’d, 109 N.J. 195 (1988).

Guilt or innocence is not at issue in a waiver hearing. State v. Lueder, 74 N.J. 62, 77 (1977). Rather, we have explained the proofs required in a waiver hearing as follows:

The occasion was not one for the trial judge to weigh the evidence and determine where the truth of the matter lay. As we said in State [in re] B.T., 145 N.J. Super. 268, 273 (App. Div. 1976) [(citations omitted)], cer­tif. denied, 73 N.J. 49 (1977), the hearing

 

is a preliminary proceeding to determine the propriety of trans­fer under the statutory criteria. The portion of the hearing relat­ing to probable cause can be analogized to the probable cause hearing prior to indictment or the determination of a grand jury to indict. In either of these instances, rules of evidence and constitutional guarantees involv­ing the trial process are inappro­priate. Since the result of a preliminary judicial proceeding as involved herein does not adjudi­cate the guilt of the accused, the type of permissible evidential material used by the court in reaching its conclusion is not circumscribed by the limited evidential rules applied at trial.

 

[State in re A.T., 245 N.J. Super. 224, 227-28 (App. Div. 1991).]

 

Probable cause is a “well-grounded suspicion or belief” that an offense occurred and the juvenile “[was] party to it.” State in re A.J., 232 N.J. Super. 274, 286 (App. Div. 1989) (internal quotations omitted); State in re DeSimone, 60 N.J. 319, 322 (1972); State in re B.G., 247 N.J. Super. 403, 409 (App. Div. 1991); A.T., supra, 245 N.J. Super. at 227. It may be established through hearsay alone because the hearing “does not have the finality of trial.” State in re J.L.W., 236 N.J. Super. 336, 344 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991). It “need not be based solely on evidence admissible in the courtroom.” A.J., supra, 232 N.J. Super. at 286. The general definition of probable cause is applied “when consider­ing whether probable cause has been established in a referral hearing.” J.L.W., supra, 236 N.J. Super. at 347.

Because the juvenile here was eighteen years old at the time of the waiver hearing, the State was only required to prof­fer its written statement of reasons for waiver and prove that probable cause existed to believe that the juvenile had commit­ted the alleged delinquent act or acts. As to the former, the prosecutor explained in his written statement of rea­sons that Mendoza was a Good Samaritan who came to the aid of Terry when the juvenile crossed the street and slammed him onto the sidewalk, causing him to lose consciousness and suffer a facial fracture, broken wrist, and other injuries. The prosecu­tor described the nature and circumstances of the act, the juve­nile’s role therein, and the potential and actual seri­ousness of harm to the victim. The prosecutor also relied on the need to deter the juvenile and others from violating the law. He iden­tified the need for a lengthier term of incarcera­tion under the criminal code and considered the juvenile’s three prior offenses, including resisting arrest. Finally, the prose­cutor found applicable the likelihood of conviction and the potential need for a grand-jury investigation and considered the position of the victim regarding the waiver decision.

The juvenile contends that the statement of reasons was insufficient and should have been denied on that ground alone. He argues by analogy to PTI denials, which are subject to the same scope of review, that the state­ment did “no more than parrot in purely conclusory terms the language of the Guidelines” and is, thus, “no statement at all,” citing State v. Sutton, 80 N.J. 110, 117 (1979).

Although the statement of reasons in support of waiver could and should have been prepared in more detail, as Sutton requires of PTI denials, particularly with respect to the position of Mendoza, this issue is being raised for the first time on appeal.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available “unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.”

 

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

 

This partially insufficient statement of reasons does not concern the Family Part’s jurisdiction nor does it concern a matter of great public importance. We therefore decline to address the issue. Ibid. Nevertheless, we note in passing that little elaboration was required with respect to deterrence and a comparison of the sentences that could be imposed under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, with those imposed under the Code of Juvenile Justice can readily be made by any lawyer or judge. Also, the juvenile’s three prior offenses, including a drug offense and a resisting-arrest offense, were known to the judge at the time of the hearing.

Turning to the issue of probable cause, the judge lost sight of the legal standard to be applied when she began making credibility determinations, weighing the evidence, and rejecting hearsay that alone was sufficient to establish probable cause. J.L.W., supra, 236 N.J. Super. at 344. Con­trary to the judge’s conclusions, it is clear that the evidence gives rise to a “well-grounded suspicion or belief” that an offense occurred and that the juvenile “[was] party to it.” A.J., supra, 232 N.J. Super. at 286 (internal quotations omitted). Certainly, there is probable cause to believe that an aggravated assault on Mendoza took place; there is no suggestion to the contrary. There is also probable cause to believe that the juvenile “[was] party to it.” Ibid. (internal quotations omitted). The juvenile admitted to being at the scene and having a verbal and physical altercation with Mendoza. He was immediately and positively identified by Vega and Cruz as the juvenile who slammed Mendoza down on the sidewalk, even though the juvenile denied it. No more was required to establish probable cause and it was error to reject the hearsay evidence and conclude otherwise.

 

 

We find no other basis in the record for denying the motion for waiver and referral. Accordingly, we reverse and remand the matter to the Law Division for presentation of the matter to a grand jury and for subsequent proceedings. This remand is with­out prejudice to the juvenile’s right to move to dismiss the indictment if one is returned.

 

Reversed and remanded.