Before Judges Dreier, P.g. Levy and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
 Submitted November 18, 1997
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Defendant, Ronald Sexton, was fifteen years old on May 10, 1993, when he fired a gun, resulting in the death of his friend Alquadir Matthews. He was charged with murder, unlawful possession of a handgun without a permit, and possession of a weapon for an unlawful purpose. After a hearing lasting several days in March 1995, the Chancery Division, Family Part, waived jurisdiction to the Law Division, pursuant to N.J.S.A. 2A:4a-26. A jury convicted defendant of reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as a lesser included offense of murder. The jury also convicted defendant of unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b), and acquitted him of possession for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant received a seven year sentence with a three year period of parole ineligibility on the manslaughter conviction and a concurrent four year term on the possession offense. On this appeal, defendant makes the following arguments:
POINT I THE PROSECUTOR FAILED TO DISCLOSE EXCULPATORY EVIDENCE PURSUANT TO BRADY V. MARYLAND BY FAILING TO PROVIDE THE IDENTITY OF THE OWNER OF THE GUN (NOT RAISED BELOW).
POINT II RONALD SEXTON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS DEFENSE ATTORNEY'S FAILURE TO REQUEST FROM THE PROSECUTOR THE IDENTITY OF THE GUN'S OWNER (NOT RAISED BELOW).
POINT III THE VERDICT FINDING RONALD SEXTON GUILTY OF RECKLESS MANSLAUGHTER IS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IV THE CHANCERY DIVISION-FAMILY PART ERRONEOUSLY WAIVED JURISDICTION TO THE LAW DIVISION-CRIMINAL PART GIVEN THAT RONALD SEXTON ESTABLISHED THAT (1) HE COULD BE SUCCESSFULLY REHABILITATED BEFORE REACHING AGE NINETEEN AND THAT (2) THE PROBABILITY OF HIS REHABILITATION SUBSTANTIALLY OUTWEIGHED THE REASONS FOR WAIVER.
(A) The Family Court Abused Its Discretion By Basing Its Conclusion That Mr. Sexton Could Not Be Successfully Rehabilitated Before Reaching Age Nineteen On Findings Of Fact Not Grounded In Competent, Reasonably Credible Evidence.
(B) The Family Court Incorrectly Determined That Mr. Sexton's Probability Of Rehabilitation Did Not Substantially Outweigh The Reasons For Waiver Given That The Family Court Relied On Factors Prohibited By New Jersey Case Law.
POINT V THE TRIAL COURT ERRONEOUSLY EXCLUDED TESTIMONY CONCERNING MR. SEXTON'S LIMITED MENTAL ABILITY AND HIS STATUS AS A SPECIAL EDUCATION STUDENT.
POINT VI RONALD SEXTON WAS IMPROPERLY SENTENCED BECAUSE THE SENTENCING COURT DID NOT EXPLAIN HOW IT BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
We have first considered defendant's argument in Point IV that the Family Part Judge erred in waiving jurisdiction to the Law Division. The Judge applied the correct standards under State v. Scott, 141 N.J. 457 (1995) and State v. R.G.D., 108 N.J. 1 (1987), applying N.J.S.A. 2A:4A-26a. See also State v. Onque, 290 N.J. Super. 578 (App. Div.), certif. denied, 146 N.J. 497 (1996). While our decision might have been different with respect to the probability of rehabilitation before age nineteen, *fn1 there was sufficient credible evidence to support the Judge's determination, and we do not find it to be such a "clear error of judgment [as to] shock the judicial conscience." State v. Scott, supra, 141 N.J. at 467.
However, after a thorough review of the record and the arguments submitted, as well as the applicable law, we are convinced that plain error in the jury charge, though not raised by defendant on appeal, nevertheless requires us to reverse defendant's conviction of reckless manslaughter. Because that error does not affect the guilty verdict for unlawful possession, we affirm that conviction.
Many of the facts are not in dispute. On the evening of May 10, 1993, Ronald Sexton and Alquadir Matthews, who had been friends and neighbors for several years on Fairmount Avenue in Newark, were standing on the sidewalk near a house owned by defendant's mother. At some point the boys walked to a nearby vacant lot, where they both handled a handgun. As we will discuss below, the jury did not hear that the gun was registered to Matthews' grandmother, with whom he lived. Matthews assured Sexton that the gun was not loaded. Matthews repeated that assurance after Sexton asked whether he was "sure." Sexton pulled the trigger. The gun fired one bullet that hit Matthews. After the shot, each boy ran off. Matthews ran to his grandmother's apartment, where he collapsed. An ambulance soon arrived and took him to the hospital, and he died soon after. Sexton ran to his sister's apartment in the three-family house owned by his mother.
Later that night Sexton left his sister's apartment, returning to rented quarters in Montclair where he and his mother resided and from which he attended school. The next day, Sexton went to stay with his father in Philadelphia. There is contradictory evidence as to precisely when Sexton realized that Matthews had been shot, and when he learned that Matthews had died. In any event, defendant remained in Philadelphia with his father for eight months, long after learning of Matthews' death and after learning that the police were looking for him. Apparently his father advised him not to return to New Jersey. In January 1994, one of Sexton's uncles accompanied him to turn himself in to the police in Philadelphia.
The primary issue for the jury was whether this shooting was the result of a tragic accident, or whether defendant acted recklessly and therefore was guilty of manslaughter. It is with those factual and legal questions in mind that we address defendant's arguments on appeal, for the context is critical to our Conclusions. At trial, as on appeal, the defense theory of the case was that at the time of the shooting, Sexton was under a reasonable though mistaken belief that the gun was not loaded. See Wilson v. Tard, 593 F. Supp. 1091 (D.N.J. 1984). In Wilson, defendant's conviction of reckless manslaughter was reversed because the jury had not been charged that the State carried the burden of refuting the defense of mistake of fact. Although the State seeks to distinguish Wilson v. Tard on the facts, we find those facts to be on all fours with this case.
In Wilson the defendant claimed that he aimed the gun at the victim only to frighten him, and that he had first removed the magazine of bullets. He claimed he was unaware that one bullet remained in the chamber when he fired the gun. The victim was killed. Wilson argued that his mistaken but reasonable belief that the gun was unloaded negated the recklessness necessary for a manslaughter conviction. The District Court Judge, applying New Jersey law, agreed.
Here defendant's argument is even stronger. Sexton testified that Matthews invited him to the empty lot in order to show him "something." The something turned out to be the handgun. According to Sexton, the following exchange ensued:
Q. Now when you were talking to Alquadir Matthews, tell us what he said to you and what you said to him?
A. He told me he wanted to show me something.
Q. Where was he when he said that?
A. We was walking--we was walking towards the lot.
Q. Did he show you anything while you were walking?
Q. Where were you when he -- did he show you something?
Q. Where were you when he showed you something?
Q. And what did he show you?
Q. Did he say anything about that gun?
A. He told me the gun was empty.
A. And I asked him was he sure.