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State in Interest of A.J.

Decided: April 19, 1989.

STATE OF NEW JERSEY IN THE INTEREST OF A.J., JUVENILE-APPELLANT


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County.

Michels, Muir, Jr., and Keefe. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Pursuant to leave granted by this court, A.J., a juvenile (hereinafter referred to as the "Juvenile"), appeals from an order of the Chancery Division, Family Part, that waived jurisdiction over him and transferred the matter to the Law Division, Criminal Part, pursuant to N.J.S.A. 2A:4A-26 of the New Jersey Code of Juvenile Justice and R. 5:22-2.

The record shows that on Saturday, September 5, 1987, T.K. and S.G., both 16-year old females, were working at a clothing store in Morristown. As the end of the work day neared, the girls discussed their plans for the evening. S.G. said that her mother and her mother's boyfriend would be out of town for the evening and that T.K. and the Juvenile, a 17-year old male, should come to her house if they were able to obtain drugs. She told T.K. that she wanted to try "angel dust" (phencyclidine) or heroin, and that with only her grandparents in the house and her own boyfriend out of town, the three would have the house to themselves.

The girls repeatedly telephoned the Juvenile who was living with his parents in Morristown. When the Juvenile did not answer the phone, the girls walked the short distance to his house where they found him asleep. They woke the Juvenile and the trio walked back to the clothing store where S.G.'s grandparents were waiting to drive S.G. home. As S.G. was leaving with her grandparents, she told T.K. to call when the plans were set for the evening. While T.K. and the Juvenile walked back to the Juvenile's house, they discussed the possibility of purchasing drugs. When they arrived at the house, the Juvenile went inside to get his leather jacket and returned to tell T.K. that they were "going on a run." T.K. and the

Juvenile had gone on "runs" in the past and T.K. knew that this meant going into New York City to purchase "angel dust."

T.K. and the Juvenile walked to the Morristown train station where T.K. telephoned S.G., informing her of the plans for the evening. When S.G. arrived at the station, both girls gave all of their money, which totalled approximately $65, to the Juvenile so he could "make the exchange" for the drugs. As a precaution, the Juvenile put $30 into his sock so the trio would have money to get home "just in case anything happened." At approximately 7:30 p.m., the trio boarded the train to Hoboken. From Hoboken, they took a PATH train to New York City and then the subway to "Spanish Harlem." Their destination was the area of 125th Street and Lenox Avenue where they intended to purchase the drugs.

Once they arrived in the proper area, the trio, led by the Juvenile, approached a man to see if he had any "dust" for sale. The man stated that he had only one bag of angel dust. After the Juvenile informed the man that he wanted more than one bag, the man went into a building to obtain additional bags of angel dust. At this time the Juvenile purchased two bags. Thereafter, the trio and a girl who they had just met walked around the corner to another building where the Juvenile went inside by himself and purchased two additional bags of angel dust.

After the second purchase, the group of four walked to a local park where they intended to use the drugs. As the Juvenile began to prepare an angel dust laced marijuana cigarette, using "rolling papers" that he had purchased earlier, T.K. warned him that she saw "two cops coming." The Juvenile dropped the marijuana cigarette and hid the remaining drugs down the back of T.K.'s skirt. As soon as the police walked away, the trio separated from their acquaintance, retraced their steps and arrived back in Morristown at approximately 11:30 p.m.

Upon arriving in Morristown, the trio went to the Dunkin Donuts located in the shopping mall near the train station. After a short while, they left the Dunkin Donuts and headed for the train tracks behind the mall where they intended to "smoke the dust." As they sat behind an "unused train car" that had been parked "off the main rails," the Juvenile prepared an angel dust laced marijuana cigarette that was smoked and shared by the group. Thereafter, a second marijuana cigarette, similarly laced with angel dust, was shared by the group.

After the second cigarette, the trio started walking down the tracks toward an area in Morristown known as "The Hollow." As time passed, T.K. reminded the Juvenile that he had a midnight curfew and suggested that they turn around and walk toward his house. It was at this time that T.K. saw S.G. lying on the train tracks, between the two rails. The Juvenile and T.K. attempted to move S.G. from the tracks, but were unsuccessful because they were both "fairly messed up" from smoking the angel dust. S.G. felt like a "dead weight" in their arms. The Juvenile tried to carry S.G. by himself, but this attempt was similarly unsuccessful. T.K. testified that S.G. did not attempt to remove herself from the tracks. "[I]t was like [S.G.] didn't know what in the world was going on," T.K. said.

When the Juvenile's further efforts to remove S.G. from the tracks were to no avail, T.K. picked up S.G.'s purse and a poster that had been taken from the PATH train and placed these items on the ground next to S.G. Apparently S.G. had dropped these items a short distance from where she was lying on the tracks. At this time, the Juvenile suggested that they leave S.G. where she was. As the Juvenile and T.K. walked towards the Juvenile's house, T.K. saw S.G. lying on the tracks, propping herself up with her arm, and "running her hands across the rocks that were between the ties." This was the last time the two saw S.G.

When they arrived at the Juvenile's house, the pair went immediately into the Juvenile's room. While in the room, they heard the sound of police sirens off in the distance and this led T.K. to believe that S.G. might have been hit by a train. A short while later, the Juvenile's mother entered the room and told T.K. that she would drive her home.

At approximately 12:30 a.m. on September 6, 1987, a New Jersey Transit train traveling west from Morristown struck and killed S.G. The train's engineer saw S.G. on the tracks and applied the train's emergency brake but was unable to stop the train in time. He stated that S.G. was sitting between the tracks and did not attempt to move or even turn her head as the train approached. Although S.G.'s cause of death was initially listed as suicide, a subsequent toxicology report indicated that S.G.'s blood and urine contained 0.15 mgœ of phencyclidine. On the basis of this report, the cause of death was changed to accident.

When T.K. arrived home, she told her sister about the events of the evening, including the drug use, and asked her sister to drive her to pick up S.G. because she feared that S.G. would be hit by a train. T.K. was still visibly under the influence of the angel dust at this time. Noticing this, T.K.'s sister did not believe what she had been told. T.K. then went to her room to telephone the Juvenile. While she was on the telephone she received a call, on her "call waiting," from the Morristown Police. In response to questions regarding S.G.'s whereabouts, T.K. informed the police that she had last seen S.G. at approximately 8:00 p.m. that evening. She stated that she, S.G. and the Juvenile had been "uptown" and that S.G. had just "walked away." After warning her sister not to tell the police "anything," T.K. "clicked over to the other [telephone] line" and continued her conversation with the Juvenile. She told the Juvenile what the police had asked her. In response, the Juvenile stated that they could be "in trouble" and that they should "be ready for this."

After a short time, T.K. received a call from S.G.'s sister. In response to the girl's questions about S.G.'s whereabouts, T.K. stated that she didn't know "anything." Thereafter, T.K. continued her conversation with the Juvenile, only to be interrupted a short time later by a second call from S.G.'s sister. T.K. repeated that she didn't know where S.G. was, and clicked back over to the Juvenile who ended the conversation by saying that he was going to smoke the remaining angel dust.

Early the next morning, T.K. received a call from S.G.'s mother. T.K. repeated that she didn't know where S.G. was. Finally, S.G.'s mother informed T.K. that S.G. had been killed by a train. Shortly thereafter, T.K. and the Juvenile spoke on the phone and agreed that they would speak to the police and claim that S.G. had purchased the drugs.

On the afternoon of September 6, 1987, the Juvenile contacted the Morristown Police and stated that he wanted to talk "about the accident on the train tracks." A Morristown police officer was dispatched to the Juvenile's house and listened to the Juvenile's story. The next day the Juvenile made a formal statement at the Morristown Police Station. In both statements, the Juvenile claimed that he, T.K. and S.G. had gone to New York City to shop for a leather coat for T.K. He stated that S.G. left while he and T.K. shopped, and that when S.G. returned she was under the influence of drugs. The Juvenile further stated that when the trio returned to Morristown, S.G. rolled the angel dust laced marijuana cigarettes and virtually forced him to smoke. Finally, he stated that S.G. was not on the train tracks when he and T.K. last saw her. T.K. made a similar formal statement on September 8, 1987, but later recanted this statement at the waiver hearing.

Complaints were filed in the Chancery Division, Family Part, charging the Juvenile with (1) possession of a controlled dangerous substance, to wit, phencyclidine, in violation of N.J.S.A.

2C:35-10a;*fn1 (2) possession of phencyclidine with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1); (3) distribution of phencyclidine, in violation of N.J.S.A. 2C:35-5a(1), and (4) causing a drug-induced death, in violation of N.J.S.A. 2C:35-9. The State moved, pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2, for an order waiving the jurisdiction of the Chancery Division, Family Part, and transferring the matter to the Law Division, Criminal Part, for adult prosecution. Following a waiver hearing, Judge MacKenzie in the Chancery Division, Family Part, found that there was probable cause to believe that (1) the Juvenile had "distributed" the phencyclidine or "angel dust" to S.G., and (2) the Juvenile's act of distribution was the cause of S.G.'s death. Consequently, the trial court found that the State had met its burden, under N.J.S.A. 2A:4A-26, of establishing that (1) the Juvenile was over the age of 14 at the time of the alleged delinquent act, and (2) there was probable cause to believe that the Juvenile had committed a delinquent act which if committed by an adult would constitute strict liability for drug-induced deaths pursuant to N.J.S.A. 2C:35-9. Thereafter, the trial court found that the Juvenile had not met his burden of showing the probability of his rehabilitation prior to attaining the age of 19. Accordingly, the trial court granted the State's motion and waived the jurisdiction of the Chancery Division, Family Part. The trial court stayed the proceeding, however, pending disposition of the Juvenile's motion for leave to appeal to this court. We granted the motion and accelerated the appeal.

The Juvenile seeks a reversal of the order waiving jurisdiction and a dismissal of the complaints filed against him or, alternatively, a reversal of the order and a remand to the

Chancery Division, Family Part, for further proceedings. The Juvenile raises the following issues in his brief:

I. In finding probable cause, the court below erred by failing to deal in its findings of fact that [sic]: (1) there was a probability that the death of S.G. was caused by suicide in that the investigating authorities first so concluded and they failed to make further investigation of that probability, and (2) there was a probability that her death was not caused by her inhalation of phencyclidine and that death did not ensue as a direct impact of the drug on her physiological system but, rather, by the negligent operation of the train under the control of its engineer.

II. Having found probable cause, in considering the issue of waiver, the court below erred in failing to apply the balancing standards mandated by the Supreme Court of New Jersey and by substituting its own opinion for the unequivocal and unrefuted expert testimony presented on behalf of defendant with respect to probability of rehabilitation.

III. An examination of the legislative history of N.J.S.A. 2C:35-9 demonstrates that it was the intent of the legislature thereby to facilitate the apprehension, conviction and enhanced punishment for drug-induced deaths of drug "kingpins" -- the upper echelon of members of sophisticated drug trafficking networks whose activities result in the sale of drugs manufactured by illicit new techniques through sophisticated drug merchants, and therefore the court below erred in applying the statute to the actions of defendant.

IV. N.J.S.A. 2C:35-9 is unconstitutional in that it: (1) violates the due process and equal protection requirements of the Fourteenth Amendment of the United States Constitution (U.S. Const. Amend. XIV) and the New Jersey Constitution (N.J. Const. Art. I., Par. I.); (2) is overbroad and vague; (3) shifts the burden of proof to the defendant; and (4) in any event the application of the statute to the facts of this case is unconstitutional.

V. It is unfair to a juvenile defendant and against public policy to subject him to adult prosecution in a test case of the application of new legislation in the context of applying it to a set of facts which go beyond the plain meaning of the text of the statute.

I.

The finding of probable cause to believe that the Juvenile committed a delinquent act which if committed by an adult would constitute strict liability for ...


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