This opinion supplements reasons given in open court in deciding the probable cause and waiver eligibility aspects of a motion for waiver of a juvenile offender to adult court. The decision requires interpretation of the amendments to the juvenile waiver statute, N.J.S.A. 2A:4A-26, enacted as part of the Comprehensive Drug Reform Act of 1986 (L. 1987, c. 106).
The sole evidence as to probable cause concerning the juvenile, A.A.M. (age 17) was the testimony of Detective George Lytwyn of the Newark Police Department, assigned to narcotics investigation. Detective Lytwyn received a tip from an informant that a blue Datsun with license plates in the window would come from New York with a male and female in it to the area of St. Rose of Lima School, in Newark, with a large quantity of cocaine to make a "drop." He set up surveillance in the area, which he knew to be a limited pedestrian one, around midnight or the early morning hours of January 22, 1988. He noticed a vehicle fitting the informant's description appear about one block from St. Rose School, an estimated 150 to 200 feet away, and observed it parked at that location for approximately one-half hour. It then began leaving, but Detective Lytwyn prevented its departure. A male, later identified as one Jose Rodriquez, was driving the vehicle, while A.A.M. was in the passenger seat. Neither occupant owned the vehicle. In the car were some 87 loose vials of what was believed to be crack on the floor and front seat, another 13 vials in an opened plastic bag, and two closed plastic bags containing 100 vials apiece. Total weight of the cocaine was later found to have been 60 grams.
No currency was confiscated, nor had any sales or other transactions been observed. A.A.M. was charged with possession of a controlled dangerous substance under N.J.S.A. 2C:35-10, possession with intent to distribute a controlled dangerous substance pursuant to N.J.S.A. 2C:35-5, as well as possession of same with intent to distribute within 1000 feet of school property, violative of N.J.S.A. 2C:35-7.
The pertinent provisions of N.J.S.A. 2A:4A-26, the juvenile waiver statute, provide:
Referral to another court without juvenile's consent
a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction of a case from the family court to the appropriate court and prosecuting authority having jurisdiction if it finds:
(1) The juvenile as 14 years of age or older at the time of the charged delinquent act; and
(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:
(a) Criminal homicide other than death by auto, strict liability for drug induced deaths, pursuant to N.J.S. 2C:35-9, robbery which would constitute a crime of the first degree, aggravated sexual assault which would constitute a crime of the second degree, kidnapping or aggravated arson; or
(e) A violation of N.J.S. 2C:35-3, N.J.S. 2C:35-4, or N.J.S. 2C:35-5; or
(3) Except with respect to any of the acts enumerated in subsection a.(2)(a) of this section, or with respect to any act enumerated in subparagraph (e) of subparagraph (2) of subsection a. of this section which involve the distribution for pecuniary gain of any controlled dangerous substance or controlled dangerous substance analog while on any property used for school purposes which is owned by any school or school board, or within 1000 feet of any school property or while on any school bus, or any attempt or conspiracy to commit any of those acts, the State has shown that the ...