Defendant was indicted for assault with intent to kill, assault with a dangerous weapon; atrocious assault and battery, possession of a dangerous weapon and conspiracy to commit an atrocious assault and battery.
A juvenile transfer hearing was held on December 4, 1974 before the Juvenile Court judge pursuant to N.J.S.A. 2A:4-48 and R. 5:9-5.
This motion to dismiss the indictment is based upon alleged violations of defendant's right to due process of law by the admission of hearsay testimony at his transfer hearing.
Before approaching the substantive issue concerning the alleged due process violations, however, the question of whether this court has the jurisdiction to hear this type of case on a motion to dismiss or whether the proper procedure should be by appeal to the Appellate Division must be discussed.
N.J.S.A. 2A:4-40 provides that "An appeal may be taken from any final order or judgment of the juvenile and domestic relations court to the appellate division of the superior court." See also R. 2:2-3, providing that final judgments of the the Juvenile and Domestic Relations Court may be appealed to the Appellate Division.
The question is, then, whether the decision to transfer the juvenile is a final order or judgment within the intendment of the above statute and rule.
The problem has not been directly approached by any New Jersey decision. However, see State v. Loray, 46 N.J. 179 (1965); State v. Van Buren, 29 N.J. 548 (1958), and State v. Tuddles, 38 N.J. 565 (1962).
The courts of other jurisdictions have been confronted with this question, and the majority consider these orders final orders or judgments and permit direct appeal therefrom. See P.H. v. State, 504 P. 2d 837, 839 (Alaska Sup. Ct. 1972); In re Doe I, 50 Hawaii 537, 538, 444 P. 2d 459, 460 (Sup. Ct. 1968); Templeton v. State, 202 Kan. 89, 91, 447 P. 2d 158, 161 (Sup. Ct. 1968); Aye v. State, 17 Md. App. 32, 36,
299 A.2d 513, 517 (Ct. of Spec. App. 1971); In re Doe, 86 N. Mex. App. 37, 519 P. 2d 133 (Ct. App. 1974), and extensive citation of cases contained therein.
The rationale employed in these decisions is that an order of the juvenile court waiving jurisdiction is an appealable final judgment because it terminates further consideration in that court. P.H. v. State, supra at 839.
A minority of states do not permit a transfer to be considered a final order or judgment, the rationale being that by permitting appellate review the primary issue (guilt or innocence) is deferred while the question of punishment appropriate for a defendant who has not yet been convicted is being litigated in the reviewing courts. See People v. Jiles, 43 Ill. 2d 145, 148, 251 N.E. 2d 529, 531 (Sup. Ct. 1969); In re T.J.H., 479 S.W. 2d 433, 434 (Mo. Sup. Ct. 1972); In re Becker, 39 Ohio St. 2d 84, 85, 314 N.E. 2d 158, 159 (Sup. Ct. 1974). In those states the indication is that the matter should be raised after criminal conviction, see In re Becker, supra 39 Ohio St. at 160, 314 N.E. 2d 158, a ...