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State in Interest of A.R.

New Jersey Superior Court, Appellate Division

Decided: October 12, 1976.


Fritz, Crahay and Ard.

Per Curiam

[144 NJSuper Page 385] Separate complaints were lodged against A.R., a juvenile aged 17 years, charging him with the possession of a dangerous weapon on July 1, 1974 and robbery on August 16, 1974. Following a hearing the Juvenile and Domestic Relations Court entered an order waiving its jurisdiction and referred both complaints to the grand jury. N.J.S.A. 2A:4-48 and R. 5:9-5. A.R. appealed that order. Thereafter he was separately indicted for (1) robbery and larceny (N.J.S.A. 2A:141-1 and 119-1) and (2) carrying a weapon (N.J.S.A. 2A:151-41). The robbery and larceny indictment was dismissed for reasons not here relevant.

[144 NJSuper Page 386]

On this appeal the juvenile addresses several arguments to the propriety of the waiver and transfer order. They all need not be discussed since we are satisfied that the charge of possession of a dangerous weapon does not constitute an offense under N.J.S.A. 2A:4-48*fn1 in which the Juvenile Court may waive its jurisdiction, without the juvenile's consent. We reverse the transfer order as to the weapon's offense.

While not necessary to our disposition, we pause to agree with appellant that the words "age of majority" as found in the statute mean 21 years of age (rather than 18 years as argued by the State) for the reasons expressed in State in the Interest of G.T. , 143 N.J. Super. 73 (App. Div. 1976). Additionally, we note that the record does not reflect, as contended by appellant, that he was denied due process of law by the "practice of the state to request a waiver

[144 NJSuper Page 387]

hearing on the date of the * * * delinquency trial." See R. 5:9-5(b) (effective September 8, 1975, after the hearing in this matter).

At the waiver hearing on the weapon's complaint it was developed that on the day in question --

Police officers in a patrol car observed A.R. and another starting to cross a city street at about 2 A.M. As the police neared the two "they spotted us and made a brief turn real quick and started walking back." The illumination at the scene from "regular street lights" was good. When the police were about 30 feet from the pair a spotlight was turned on them, at which time A.R. "threw something from his hand." Later one of the officers "walked back by the bushes and with my flashlight picked up a .22 caliber pistol." The weapon was cocked and loaded.

On these facts the Juvenile Court stated:

We hold this error.

Under N.J.S.A. 2A:4-48 the court may, without a juvenile's consent, refer a matter for adult prosecution where the juvenile is between 16 and 18 years of age and where the court is satisfied that the public protection requires the waiver and that there is no reasonable prospect for rehabilitation by use of the facilities available to the court before the juvenile attains "the age of majority." The act (and R. 5:9-5) limit transfers to four specific categories of offenses*fn2 -- i.e. , where there is probable cause to believe

[144 NJSuper Page 388]

that the juvenile committed a delinquent act which would constitute (1) homicide; (2) treason if committed by an adult; (3) an offense against the person in an aggressive, violent and willful manner, or (4) a violation of N.J.S.A. 24:21-19 (manufacture, distribution, dispensing or possession with intent to do the latter acts of certain controlled dangerous substances) by a juvenile not addicted to specified narcotic drugs.

The issue here, then, is simply whether the weapons offense described in the record was an offense against a person done in a willful manner, aggressively and violently. Clearly it was not. We do not mean to deprecate the seriousness of A.R.'s conduct. While it had the clear potential for high violence -- made greater by the weapon being loaded and cocked -- there simply was no offense against a person. There was no aggression. There was no violence. The record shows only possession of the weapon in A.R. and his unsuccessful attempt to surreptitiously divest himself of it.

Prior to the enactment in 1974 of N.J.S.A. 2A:4-48 references of juveniles to the county prosecutor for adult treatment were governed by N.J.S.A. 2A:4-15 (repealed by L. 1973, c. 306, ยง 27). Under the latter, transfers were permitted in the cases of habitual offenders or where a juvenile, of the age of 16 or 17 years, had been charged with an offense of a heinous nature. We are directed to no authority, nor do we find any, where the possession of a weapon would fit the statutory bill under either act. See, e.g., State v. Loray , 46 N.J. 179 (1965); State v. Tuddles , 38 N.J. 565 (1962); Goodlet v. Goodman , 34 N.J. 358 (1961), cert. den. 368 U.S. 855, 82 S. Ct. 92, 7 L. Ed. 2d 52 (1961); State in re Steenback , 34 N.J. 89 (1961); State v. Smith , 32 N.J. 501 (1960), cert. den. 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961); In re Smigielski , 30 N.J. 513 (1959); State v. Van Buren , 29 N.J. 548 (1959); Johnson v. State , 18 N.J. 422 (1955), cert. den. 350 U.S. 942, 76 S. Ct. 318, 100 L. Ed. 822 (1956); State

[144 NJSuper Page 389]

v. Monahan , 15 N.J. 34 (1954). All of the cited authorities reflect offenses of a heinous nature or against persons done in an aggressive, violent and willful manner.*fn3

In sum, we are satisfied that the Legislature intended that offenses of the quality reflected in this record are vested in the Juvenile and Domestic Relations Court, and exclusively so, unless the juvenile, 16 years or older, elects other appropriate treatment. N.J.S.A. 2A:4-49. State v. Monahan, supra at 46. Any broadening of the offenses warranting transfer for other prosecution must come from the Legislature.

Accordingly, insofar as the order under review transferred the charge of possessing a dangerous weapon to the grand jury, it is reversed. The matter is remanded to the Juvenile and Domestic Relations Court for further proceedings consonant with governing statutes and rules of court. We do not retain jurisdiction.

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