On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Number FJ-07-3227-03.
Before Judges Newman, Fall and Hoens.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this juvenile delinquency waiver case, as a matter of first impression, we review the decision of the Family Part, after a hearing held pursuant to N.J.S.A. 2A:4A-36, to remand the waived juvenile to the adult detention facility pending trial. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
W.M. was born on February 27, 1986. On January 10, 2003, he was charged in the Family Part with acts of delinquency purportedly occurring in September 2002 when he was age sixteen which, if committed by an adult, would constitute second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b), and third-degree endangering the welfare of a child under age sixteen, contrary to N.J.S.A. 2C:24-4. The delinquency charges filed against W.M. arose from the following circumstances.
On January 5, 2003, the badly decomposed body of F.W., a seven-year-old male child was discovered at 188 Parker Street in Newark. R.W., F.W.'s twin brother, and their four-year-old brother, T.H., were also found at the Parker Street address; they were alive but in poor health. A police investigation disclosed that in September 2002, these three children had been living in Irvington in the care of W.M.'s mother. W.M. often played rough with F.W. and his brothers. At that time and place, W.M. was wrestling with F.W. when W.M. placed F.W.'s head in a"headlock," drove his knee into F.W.'s abdomen several times, and then flipped F.W. over his right shoulder, causing F.W.'s head to hit the edge of the bed and then bounce a few times when it struck the floor. W.M. heard F.W. make a "gurgling" sound like he was trying to breathe, prompting W.M. to get his mother, who placed ice on F.W.'s head; W.M. then left the house and never saw F.W. again.*fn1
An autopsy of F.W.'s body disclosed that the cause of the child's death was homicidal violence, including blunt impacts to the head and abdomen. The injuries that caused F.W.'s death were consistent with being caused by the described conduct of W.M. toward F.W. in September 2002, during the wrestling incident.*fn2
After the delinquency complaint was filed against W.M., the State filed a timely motion in the Family Part pursuant to N.J.S.A. 2A:4A-26 and Rule 5:22-2, seeking waiver of that court's jurisdiction over the delinquency complaints filed against W.M., and referral of the matter to the Law Division and prosecuting authority for the prosecution of W.M. as an adult. A hearing was conducted in the Family Part before Judge Troiano on the State's waiver application on March 4, 2003, after which the judge entered an order granting the State's motion and directing that the matter be transferred to the Law Division and the Essex County Prosecutor's Office for further proceedings against W.M. as an adult.
On March 10, 2003, an adult criminal complaint was filed against W.M., charging him with second-degree aggravated assault and third-degree endangering the welfare of a child. W.M.'s motion for leave to appeal from the March 4, 2003 waiver decision was denied by an order entered in this court on May 28, 2003. See State in the Interest of R.L., 202 N.J. Super. 410, 414 (App. Div.) (holding that a juvenile waiver order is an interlocutory order which may be appealed only by leave granted), certif. denied, 102 N.J. 357 (1985).
Upon granting the State's waiver application, a hearing was conducted in the Family Part before Judge Troiano on May 6, 2003 and June 6, 2003, pursuant to N.J.S.A. 2A:4A-36 and Rule 5:22-3, to determine whether W.M., while in custody pending trial, should be remanded to the Essex County Juvenile Detention Facility (juvenile facility) or to the Essex County Jail (adult facility), pending resolution of the adult charges. W.M. had been housed at the juvenile facility since the delinquency charges were filed against him in January 2003. During the hearing, counsel for W.M. presented several witnesses in support of his position that he should remain at the juvenile facility.
Dr. Matthew B. Johnson, a psychologist, examined W.M. at the juvenile facility on several occasions and administered various tests designed to measure achievement, intelligence, and depression. Dr. Johnson's April 17, 2003 report setting forth his findings was admitted in evidence.
Dr. Johnson testified that W.M. has significant academic deficits, with an I.Q. of 79,"which is below the average level but above the level for mental deficiency and mental retardation." Dr. Johnson also found that W.M. had a moderate level of depression.
Citing to W.M.'s social immaturity, his academic and intellectual deficits, the need for continuity of W.M.'s educational program at the juvenile facility, W.M.'s protected-custody status at the juvenile facility, the high level of publicity of the case, and the danger of assault against W.M., Dr. Johnson testified that transferring W.M. to the adult facility would be contrary to his best interests.
Eleanor Elcock, a substance awareness coordinator at the juvenile facility, described the educational programs made available to its inmates, and W.M.'s participation therein. Ms. Elcock explained that an alternative high school program, known as Sojourn High School, provides on-site, ...