On appeal from the Superior Court, Chancery Division, Family Part, Essex County.
Furman and Brody. The opinion of the court was delivered by Furman, P.J.A.D.
[222 NJSuper Page 598] Appeal by the juvenile is before us for the second time from an order denying jurisdiction to transfer the charges against him from the Law Division to the Family Part. We again reverse.
The juvenile was charged in July 1985 with juvenile delinquency which would have constituted murder, possession of a handgun without a permit, possession of a handgun for an unlawful purpose and hindering apprehension, if committed by an adult. He was then 17 in age.
Family Part jurisdiction over all four offenses was waived pursuant to N.J.S.A. 2A:4A-26a(2)(a), which provides for transfer of a criminal homicide charge without, as in other cases, imposing the burden on the State of showing sufficient seriousness "that the interests of the public require waiver," and pursuant to 2A:4A-26c, which provides:
c. An order referring a case shall incorporate therein not only the alleged act or acts upon which the referral is premised, but also all other delinquent acts arising out of or related to the same transaction.
The only two eyewitnesses before the Grand Jury testified to a version of the homicide tending to exculpate J.M. of murder. That testimony was not before the Family Part on the State's application for waiver of Family Part jurisdiction. According to the two eyewitnesses, J.M. had a handgun with him but refused to hand it over to codefendant, who was in a fight with the victim; codefendant then struggled with J.M., wrested the handgun from him and shot the victim. Grand Jury returned a no-bill on the murder charge against J.M. and indicted him on the two weapons charges.
About three and a half months later, the juvenile moved in the Law Division for a transfer of the charges against him back to the Family Part. That motion was denied on the ground "there is no jurisdiction in this Court to grant the requested relief." The juvenile moved for leave to appeal. We granted that motion and summarily reversed. We directed that:
Upon transfer to the Family Part, the Family Part should hear and determine a motion for reconsideration of its prior order of waiver of jurisdiction, in the light of the subsequent Grand Jury action.
The Supreme Court denied the State's application for leave to appeal from our order of summary reversal and transfer back to the Family Part.
The Family Part judge who then heard the matter interpreted our order as a remand for reconsideration of the issue of Law Division jurisdiction to retransfer. He denied that jurisdiction "for basically the reason stated originally by the Law Division judge." The Family Part judge's interpretation of our order was mistaken. In summarily reversing the denial of the juvenile's motion for a transfer to the Family Part, we granted the relief sought in that motion with the direction that a proceeding be held to determine whether Family Part jurisdiction should be waived in the light of the Grand Jury no-bill of the murder charge. From the Family Part's denial of jurisdiction we again granted leave to appeal.
The Family Part judge lacked authority to reconsider the issue of Law Division jurisdiction. That issue had been resolved by us in effecting the transfer back to the Family Part. As a lower court judge, the Family Part judge was bound by our order and constrained to follow our direction to rehear and redetermine the issue whether Family Part jurisdiction should be waived and the charges against the juvenile again transferred to the Law Division pursuant to N.J.S.A. 2A:4A-26. The obligation of a lower court to adhere ...