The opinion of the court was delivered by: Kravarik
J.W., through his attorney, cross-moved to dismiss the State's motion for waiver of Family Part jurisdiction and referral of the juvenile to adult Criminal Division for prosecution on the grounds that the state's motion time barred since it was not filed within thirty days. On June 30, 1995, this court denied the juvenile's cross-motion and read its decision on the record.
J.W.'s attorney appealed the decision on July 5, 1995. *fn1 On the same date, the matter was remanded by the Appellate Division to Family Part for a plenary hearing to determine whether good cause exists to warrant allowing the prosecution to file its waiver application out of time.
The plenary hearing was held on August 29, 1995. The State relied on its prior pleadings and oral argument. The juvenile presented two witnesses; J.W.'s original attorney in this matter, a public defender from Hudson County; and J.W.'s mother.
This appears to be a matter of first impression. This court must determine whether a waiver motion may be filed ninety-one days after the initial filing of the underlying complaint.
J.W. was arrested on January 24, 1995, and a complaint was filed in Hudson County on January 25, 1995 charging J.W. with N.J.S.A. 20:35-10(a)(3); N.J.S.A. 20:35-10(b); N.J.S.A. 2C:35-5 (possession of controlled dangerous substance with intent to distribute); N.J.S.A. 20:35-7 (possession of controlled dangerous substance with intent to distribute within 1,000 feet of a school); N.J.S.A. 20:35-10a(1); N.J.S.A. 20:35-10(b); N.J.S.A. 520:35-5b(3); N.J.S.A. 20:36-2; N.J.S.A. 2C:35-10(b); and N.J.S.A. 20:29-3(b) (hindering prosecution by attempting to destroy evidence consisting of controlled dangerous substance).
Venue for J.W.'s complaint was subsequently changed to Middlesex County pursuant to R. 5:19-1 and the complaint was docketed here on April 20, 1995. On April 25, 1995, the Middlesex County Prosecutor's Office filed a motion seeking a referral hearing to waive J.W. to adult criminal court pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2.
The juvenile argues that the State's waiver motion for referral to adult criminal court should be dismissed due to non-compliance with N.J.S.A. 2A:4A-26 and R. 5:22-2 since the State did not file its motion within thirty days of the date of the filing of the original complaint in Hudson County on January 25, 1995, and that no good cause exists to warrant an exception.
(a) Motion for Referral. A motion seeking waiver of jurisdiction by the Family Part shall be filed by the prosecutor within 30 days after the receipt of the complaint, which time shall not be extended except for good cause shown.
N.J.S.A. 2A:4A-26 provides:
d. A motion seeking waiver shall be filed by the prosecutor within 30 days of receipt of the complaint. This time limit shall not, except for good cause shown, be extended.
The juvenile contends that Hudson County should have filed the motion seeking waiver and that, essentially, it was the county to make the decision as to waiver, not Middlesex County. In this case, this would have to be so, since Middlesex County did not receive the complaint until April 20, 1995, well past the thirty day period. *fn2 It is not unusual, especially considering our overburdened juvenile Justice system, that it would take more than thirty days for one county to transfer venue to another county. In fact, J.W.'s original attorney in this matter, a Hudson County public defender, testified that the handling of this case through transfer was routine and timely. If the juvenile's position were to be accepted, the prosecutor of the originating county would be required to file the motion seeking waiver to protect the prosecutor of the ...