On appeal from Juvenile and Domestic Relations Court, Middlesex County.
Michels, Kole and Ard. The opinion of the court was delivered by Kole, J.A.D.
This appeal, on leave granted, is by the State from an order of the Juvenile and Domestic Relations Court (Juvenile Court) refusing to waive its jurisdiction and refer the juvenile delinquent complaints against C.A.H. and B.A.R. to the adult court under N.J.S.A. 2A:4-48. See also, R. 5:9-5(b). The Juvenile Court judge's determination was made after an extensive hearing.
The juvenile complaints charged C.A.H. and B.A.R. with offenses which, if committed by an adult, would constitute armed
robbery, felony murder, automobile theft and receiving stolen property, aiding and abetting another armed robbery and malicious destruction of an automobile. Essentially similar charges were contained in an indictment against an adult, Edward Margie.
The facts as to the offenses are substantially to the following effect.
On the night of May 3, 1979 B.A.R., C.A.H. and Edward Margie set out to rob some stores in Middlesex County. B.A.R. and C.A.H. stole a car from a dealer's lot in the Borough of Sayerville. They picked up Margie and went to Krauszer's Food Store in Edison. Margie went into the store and committed robbery therein. He used a gun which had been brought by C.A.H. They then drove to another Krauszer's in Fords. This time B.A.R. went in to commit the robbery. He pulled the gun on the clerk, who was standing behind the counter, and demanded money from the cash register. The clerk refused and, according to B.A.R., reached toward his pocket. B.A.R. fired and hit the clerk in the eye, killing him. B.A.R. opened the register and took the money. While he was behind the counter and the deceased was lying behind him "with his eye hanging out," a customer walked in and asked for cold cuts. B.A.R. stated that "we weren't cutting no cold cuts this time of night. . . ." The customer left.*fn1
B.A.R. then took the money and ran back to the car, and C.A.H. drove off. They eventually pulled off the road and set fire to the car. C.A.H. took possession of the gun. C.A.H. and B.A.R. were arrested about two months later after being stopped while driving to Florida. They had the gun with them at that time.
When the offenses were committed B.A.R. was 17 years and 6 months old and C.A.H. was 16 years and 10 months. Margie
was 18 years and some 2 months at the time. The judge found that the juveniles were of sufficient age for referral to the adult court under N.J.S.A. 2A:4-48(a) and that there was probable cause to believe that they committed the offenses, including murder. See N.J.S.A. 2A:4-48(b). The primary issues at the hearing, therefore, were whether "adequate protection of the public" required waiver and whether there were any reasonable prospects for rehabilitation of the juveniles prior to their attaining the age of 21. ...