On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication May 13, 1996.
Before Judges Pressler, Keefe and Wefing. The opinion of the court was delivered by Keefe, J.A.D.
The opinion of the court was delivered by: Keefe
The opinion of the court was delivered by
Defendant Aquil Onque appeals from a Family Part judgment waiving jurisdiction over him and referring the matter against him to the Law Division, Criminal Part, for Disposition. On appeal, defendant contends that the Family Court Judge abused his discretion in ordering the waiver. The State contends that defendant's appeal is untimely in that he failed to appeal the waiver judgment until the Law Division matter was terminated by the entry of a guilty plea to a reduced charge of aggravated manslaughter. We elect not to address the issue of the timeliness of the appeal inasmuch as we hold that the Family Court Judge did not abuse his discretion in ordering waiver to the Law Division.
On December 17, 1992, Jose Sime, twenty-six years old, married, and the father of two children, was killed by one gun shot wound to the head. The homicide took place during the course of an armed robbery of a neighborhood grocery store in Newark. Sime was the cousin of the store owner and happened to be visiting the store at the time of the robbery. He was shot when he attempted to run out of the store after one of the robbers, later identified as defendant, pulled a gun as he entered the store.
Defendant was observed running from the scene with a gun in his hand. A foot chase ensued during which defendant discarded the gun. He was eventually caught and was returned to the scene where he was identified as the shooter. Defendant blurted out that he shot Sime. Defendant's two accomplices were also apprehended.
After his arrest and the administration of Miranda warnings, defendant gave a statement to the police in the presence of his grandmother. In that statement, he said that his two accomplices asked him if he wanted to go with them to rob a store. After initially declining the invitation, he acceded to their request and changed his clothing. (It was later revealed that he changed into dark, nondescript clothing to avoid detection and identification.) One of the instigators, co-defendant Jamal Westry, had a gun. Defendant asked Westry whether "he had done this before." Westry said that he had and asked who was going to hold the gun. Defendant said: "I'll hold it." Defendant then described the events that followed:
We all entered the store together[.] [Westry] went behind the counter to the cash register[.] I stood by the cookies about 10 feet from the door[.] I seen one of the guys with the gray hair, go into a like cabinet and he took out a black object[.] It looked like a gun. The guy that got shot was standing in front of him[.] When I seen the gun I then started to move over towards the door[.] I turned to look for the door and I seen the guy coming towards me[.] He looked like he was grabbing for the gun or me[.] I then out of fright fired one shot.
Defendant was born on August 13, 1975. Because he was still a juvenile at the time of the offense he was charged with an act of delinquency under N.J.S.A. 2A:4A-23 which, if committed by an adult, would constitute murder in violation of N.J.S.A. 2C:11-3. In view of the defendant's age, the evidence against him, and the nature of the offense, the State moved to have the Family Part waive jurisdiction over the defendant pursuant to N.J.S.A. 2A:4A-26.
A hearing was conducted by Judge Conrad Koch in which he found that there was probable cause to believe that defendant committed the offense with which he was charged. Thereafter, the Judge conducted a waiver hearing over a period of four days during which extensive testimony was taken from psychologists, family members, coaches, school officials and acquaintances on the issue of defendant's rehabilitative capability. At the Conclusion of the hearing, Judge Koch determined that defendant was "capable of being rehabilitated by the age of nineteen." He found that the evidence on that issue was so strong that his "decision was not overly difficult to make." Defendant was by that time less than one month from his eighteenth birthday.
However, as to the second prong of the statutory test, the Judge found that the defendant had not carried his burden of proving that the probability of rehabilitation substantially outweighed the reasons for waiver. See N.J.S.A. 2A:4A-26a. Noting that the main reason for waiver is deterrence, the Judge acknowledged that he had to engage in a "balancing test" to weigh the "benefit of being treated as a juvenile against the deterrent factor of waiving a juvenile to the adult court." Judge Koch considered the positive and negative considerations relative to waiver set forth by the Supreme Court in State in the Interest of C.A.H. & B.A.R., 89 N.J. 326, 446 A.2d 93 (1982). He also considered the Supreme Court's statements on the subject of deterrence, and the impact of the 1982 legislative amendment to N.J.S.A. ...