On appeal from the Superior Court of New Jersey, Law Division, Warren County, 02-02- 0086.
Before Judges Kestin, Axelrad, and
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant J.M., a juvenile, and his two adult co-defendants held-up a gas station in Hackettstown on November 28, 2001. The State moved before the Family Part to prosecute defendant as an adult pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2. Defendant was seventeen years and seven months old on the date of the offense, and he was accused of engaging in conduct which, if committed by an adult, would constitute first-degree robbery, a violation of N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, a violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; and second-degree aggravated assault, a violation of N.J.S.A. 2C:12-1b(1). After the Family Part granted the State's motion, defendant waived his right to indictment and trial by jury, and entered a guilty plea to second-degree robbery and second-degree conspiracy to commit robbery. The court imposed a six-year sentence with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, plus fines and restitution.
On appeal, defendant's primary challenge is to the decision of the Family Part judge to waive jurisdiction to the Law Division. Defendant also challenges the length of his sentence and the imposition of restitution. We reverse on the waiver issue for two reasons: (1) defendant was denied the right to testify during the probable cause portion of his waiver hearing; and (2) the prosecutor failed to provide a statement of reasons for the waiver application. See State in the Interest of R.C., 351 N.J. Super. 248, 249-50 (App. Div. 2002). Consequently, we do not reach the sentencing issues.
These are the facts. According to a statement defendant gave to the Hackettstown police on December 17, 2001, he and his co-defendants, John Stagg and Mike Torrisi, first discussed robbing the service station two to three hours before the robbery occurred. Defendant said the plan was to"wait for the [gas station attendant] to come around, I was gonna turn the lights off and John was gonna take care of him and I was gonna grab the money." Torrisi drove defendant and Stagg to the service station; Torrisi remained in the car. After waiting ten minutes for all the cars to leave, defendant turned off the lights in the service station and Stagg"took the [attendant] down." Stagg struck the attendant on the head with an aluminum baseball bat that he found in the back of the attendant's booth. The attendant was seriously injured. Neither Stagg nor defendant knew the bat was there before they arrived at the gas station.
After seeing the attendant fall to the ground bleeding, defendant"ran inside the booth and the register was [open] and I grabbed the money that was in there." Torrisi then drove defendant and Stagg to Torrisi's house where they divided the money.
At the waiver hearing, Officer Wade Caccese, the State's witness, testified that he arrived at the crime scene after defendant and his co-defendants left. He described seeing blood and vomit in the attendant's booth, and a baseball bat on the carport floor. On cross-examination, he acknowledged that based on the information he had gathered, neither defendant nor Stagg brought a weapon to the gas station, and the bat was located in the attendant's booth when they arrived. Caccese agreed that the plan made by the three co-defendants was to punch the attendant, not to strike him with a weapon.
In rendering its decision to waive jurisdiction over defendant, the court stated:
the plan was to go to the station and Stagg would do something to the attendant. I understand there wasn't a plan formulated at that time to hit him over the head with a bat. And the juvenile was going to participate. He was going to darken the lights... after Stagg had distracted the attendant [and] he was going to take the money and that's, in fact, what happened. Although, when they got there, Stagg saw that there was a bat and used the bat to disable the attendant.
During the waiver hearing, defense counsel requested that defendant be permitted to testify. Counsel argued that the testimony would have a bearing on whether the State could establish probable cause for first-degree robbery, which is a Chart 1 offense, or second-degree robbery, which is not. This distinction is significant because upon a finding of probable cause for second-degree robbery, a defendant may rebut the presumption of waiver by demonstrating the probability of his rehabilitation before he reaches the age of nineteen. N.J.S.A. 2A:4A-26e; R. 5:22-2(b)(1). That option is not available if the judge finds probable cause to believe defendant was party to a Chart 1 offense. N.J.S.A. 2A:4A-26e; R. 5:22-2(b)(3). The judge denied defendant's request to testify, reasoning that regardless of whether defendant knew that Stagg was going to strike the attendant with the bat, the court still had a"well grounded suspicion or belief" that defendant was engaged in a first-degree robbery.
The court's oral decision was memorialized in a January 29, 2002 order. Although the court made no findings as to the second-degree aggravated assault charge, the order stated that the judge found probable cause to believe that defendant had committed first-degree robbery and second-degree aggravated assault.
The Code of Juvenile Justice (Code) provides that a juvenile over the age of fourteen at the time of the charged delinquent act may be waived without his or her consent to be tried as an adult upon a demonstration of probable cause to believe that the juvenile committed delinquent acts which, if committed by an adult, would constitute various crimes. N.J.S.A. 2A:4A-26a(1)&(2)(a). Probable cause is"no more than a well-grounded suspicion or belief that an offense has taken place and that [a defendant] was a party to it." State in the Interest of A.T., 245 N.J. Super. 224, 227 (App. Div. 1991). Prior to the amendment of the Code in 2000, once probable cause was demonstrated, a juvenile so charged was entitled to rebut the presumption of waiver by showing that the probability of the juvenile's rehabilitation by the age of nineteen would substantially outweigh the reasons for waiver. Ibid. (formerly N.J.S.A. 2A:4A-26a(3)); see also R.C., supra, 351 N.J. Super. at 249-50. Subsequent to the 2000 amendments, those juveniles who were sixteen years of age or older at the time of the charged offense, and were accused of Chart 1 offenses, are waived solely upon a showing of probable cause. N.J.S.A. 2A:4A-26e. The juvenile so charged no longer has the right to ...