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State in Interest of D.W.

October 07, 1998

STATE OF NEW JERSEY, IN THE INTEREST OF D.W., JUVENILE-APPELLANT.


Judges Kleiner and Braithwaite.

The opinion of the court was delivered by: Kleiner, J.A.D

[9]    Submitted August 18, 1998

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

D.W., born June 12, 1981, was arrested and charged with four separate acts of juvenile delinquency allegedly committed in the company of his adult cousin between October 1 and October 9, 1997, and which, if committed by an adult, would constitute acts of armed robbery contrary to N.J.S.A. 2C:15-1.

On October 20, 1997, the State moved for an involuntary transfer ("waiver") of the juvenile proceedings to the Law Division, N.J.S.A. 2A:4A-26a; see also R. 5:22-2. On January 14, 1998, a probable cause and jurisdictional hearing was held in the Family Part. The Judge concluded: (a) there was probable cause to believe D.W. participated in each of the charged offenses; (b) there was a probability that D.W. could be rehabilitated by the time he reached age nineteen through the use of the procedures, services and facilities available to the court; (3) the probability of rehabilitation substantially outweighed the need for individual deterrence; but, (4) the need for general deterrence could not be accomplished by the time D.W. reached age nineteen because general deterrence would require a lengthy sentence beyond that required for his rehabilitation. The motion Judge reached the last Conclusion by construing the waiver statute to require the need for general deterrence be both satisfied and completed by the time the juvenile reached age nineteen. Despite the finding that D.W. could fulfill the need for general deterrence by serving an extended term in a juvenile facility, the Judge determined that D.W. had not demonstrated the need for general deterrence would be satisfied and completed by his nineteenth birthday, and thus had not shown the probability of rehabilitation substantially outweighed the need for general deterrence.

Based on that Conclusion, the Judge ordered the proceedings transferred to the Law Division but stayed that order pending appeal. We granted leave to appeal. We reverse and remand to the Family Part for reconsideration of the waiver decision.

I.

The evidence presented at the probable cause hearing may be succinctly summarized. Detective Luis Ruiz ("Officer Ruiz") investigated four separate robberies in Camden between October 1 and October 9, 1997. The descriptions given by the four victims were consistent. Each victim described the perpetrators as two young black men, one a teenager and one an older youth. In all four incidents, the older male possessed a handgun. None of the victims indicated that the younger male possessed a weapon.

The first robbery, that of taxi driver Juan R. Quinonnes, occurred on October 1, 1997. The second robbery, involving taxi driver Peter Ashman, occurred on October 6, 1997. On October 9, 1997, Ismael Rodriquez, a juvenile, was robbed at gunpoint while he walked home from a grocery store. Among the items stolen was a pager. On that same date, within forty-five minutes of the Rodriquez robbery, Deidre Peria *fn1 was robbed of her purse while walking along a Camden street.

D.W. was arrested on October 9, 1997. With the consent of D.W.'s mother, Officer Ruiz interviewed D.W. and obtained a statement. D.W. admitted that he had been with his nineteen-year old cousin when the four robberies were committed. D.W. indicated that he did not know his cousin had a gun in his pocket during the first robbery. In his statement, D.W. provided the investigating police officers minute and graphic details of each robbery and of the subsequent flight from the scene.

D.W.'s mother also signed a consent to search D.W.'s bedroom for a weapon. No weapon was found, but a pager that reportedly belonged to Ismael Rodriquez was discovered.

Based upon the testimony of Officer Ruiz, the Judge concluded that the State had established probable cause as required by N.J.S.A. 2A:4A- 26(a)(2)(d), specifically: "An offense against a person committed in an aggressive, violent and wilful manner . . . ."

II.

In his written opinion, the motion Judge correctly concluded that once the State has met its statutory burden of proof as to the age of the juvenile, N.J.S.A. 2A:4A-26a(1), and as to probable cause, N.J.S.A. 2A:4A-26a(2), the juvenile has the burden of proof to show that there is both a probability of rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of nineteen, and that the probability of rehabilitation substantially outweighs the reasons for waiver, which is deterrence. N.J.S.A. 2A:4A-26a(3). If the juvenile fails to meet this burden of proof, waiver is required. Ibid. See State ...


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