On appeal from Superior Court of New Jersey, Chancery Division, Family Court, Passaic County.
J.h. Coleman, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.
[236 NJSuper Page 339] On the basis of an adverse inference drawn from the State's failure to call a witness at a referral hearing, a Family Part judge determined that the evidence did not present probable cause to believe that the juvenile, J.L.W., had committed the offenses with which he has been charged. We granted the State leave to appeal and now hold that when determining probable cause a judge is limited to a consideration of the evidence presented, including its adequacy, and may not infer that the testimony of witnesses the State declined to produce would be adverse to its interests.
The several juvenile complaints that initiated these proceedings are based on two unrelated episodes of criminal conduct that the State attributes to J.L.W. Both occurred on a New Year's weekend from Friday, December 30, 1988, to Monday, January 1, 1989.
The State presented evidence that on Friday, at about 2:00 a.m., J.L.W. fired a gun once into the air and then five times into a house. A short time earlier, he had been rebuffed by his former girlfriend, A.C., when he made an uninvited sexual advance. A.C. reported the incident to her new boyfriend who immediately sought out J.L.W. and challenged him to a fight. When J.L.W. declined, the new boyfriend taunted him by calling him a coward. The house into which J.L.W. allegedly shot his gun was the new boyfriend's home.
The other episode occurred on Monday at about 3:00 a.m. when J.L.W. allegedly broke into the home of Mr. and Mrs. Rudolph Moody, Sr., and fired two gunshots into a first floor bedroom in which they were sleeping. On Sunday morning, about 24 hours earlier, J.L.W. allegedly had fired a gun from a moving car at the Moodys' 18-year-old son Rudolph Moody, Jr., allegedly in the mistaken belief that he was selling drugs in J.L.W.'s territory. Rudolph, Jr. lived in an apartment in the basement of his parents' home.
The first episode produced juvenile complaints that charged J.L.W. with nine acts of juvenile delinquency which, if committed by an adult, would be a second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a,*fn1 and eight third-degree aggravated assaults, one upon each of the occupants of the new boyfriend's home, contrary to N.J.S.A. 2C:12-1b(2). The second episode produced juvenile
complaints that charged J.L.W. with third-degree aggravated assault for firing a gun at Rudolph, Jr. on Sunday, contrary to N.J.S.A. 2C:12-1b(2),*fn2 and first-degree attempted murder for burglarizing the Moodys' home on Monday night and firing a gun into their bedroom, contrary to N.J.S.A. 2C:11-3a(1).*fn3
The State moved for waiver of the Family Part's jurisdiction over J.L.W. so that he could be tried as an adult on all charges. N.J.S.A. 2A:4A-26 and R. 5:22-2. The statute and the rule require the Family Part judge to determine, among other things, whether there is "probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult . . ." would constitute certain crimes. Those crimes include the crimes referred to in the juvenile complaints. Because of his determination that the State had not established probable cause as to any of the offenses, the trial judge did not consider the other criteria listed in the statute and the rule.
The judge found from the testimony of investigating police officers that the two episodes had occurred. One officer testified that when he arrived at the scene of the Friday morning shooting, one of the occupants of the house showed him bullet holes in the outer wall and in a window where the shots had entered. Another officer testified that when he arrived at the scene of the Monday morning shooting the Moodys told him that they were awakened, while in their bedroom, by the sound first of their front door and then of their bedroom door being kicked in just before the shots were fired. The officer found bullet fragments in a bedroom bureau and the marks of the sole
of a shoe on the doors. A neighbor claimed to have heard the shots.
The judge had difficulty, however, believing the uncontradicted evidence that J.L.W. had fired the shots. That evidence was in the form of an oral statement of Y.H., a 15-year-old girl, and the sworn written statements of Y.H. and Rudolph, Jr., taken in their mothers' presence.
The officer who responded to the scene of the Friday morning shooting at the house of A.C.'s new boyfriend testified that he interviewed Y.H. when he arrived there. She told him that she had seen J.L.W. pull up to the house in a "bluish green Cutlass" and fire "one shot in the air and five into the house." She told the officer that the shooting was the result of J.L.W.'s earlier argument with her girlfriend A.C. over the fact that A.C. had a new boyfriend. The police verified that a car fitting the description given by Y.H. was owned by J.L.W.'s mother. Y.H. gave more details of the incident in her sworn statement to the police:*fn4
Q. Will you tell me what occurred on December 30, 1988 In which gunshots were fired.
A. It was about 2:00AM in the morning and me and [A.C.] were on our way to her boyfriends house located on Park Ave. across from Eastside High School. I was sitting In the parking lot across the street from the house as I got out I saw [J.L.W.] pull In a Green/Gray Cutlass, [J.L.W.] was In the passengers seat and another boy was driving, I stopped and I saw [J.L.W.] point a gun out of the window and started shooting Into the first floor window, he must have shot about Five times, after that he pulled off and I ran Into the first floor porch and knocked on the door. [A.C.]'s Boyfriend opened the door and I heard his mother yelling all upset, I told her what I had seen.
Q. Is this the first time that you had seen [J.L.W.]?
A. No earlier me and my girlfriend [A.C.] were together and [J.L.W.] who used to go with [A.C.] began touching her on her body, she told him to quit or she would tell her boyfriend [naming him] what he was doing, [J.L.W.] said he didn't care and [A.C.] told [her new boyfriend] he came and wanted to fight ...