January 8, 2007
STATE OF NEW JERSEY IN THE INTEREST OF K.S., JUVENILE-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, FJ-09-2438-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2006
Before Judges Lintner and Seltzer.
In this juvenile delinquent case, we granted the State's emergent application and leave for interlocutory appeal from a Family Part order denying its application to waive jurisdiction by the Family Part and refer K.S. to adult court without the juvenile's consent, as a juvenile age sixteen or older charged with possession of a firearm with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a, pursuant to R. 5:22-2(b)(3)(B). Following a probable cause hearing, the judge found that there was probable cause to establish unlawful possession of a weapon under N.J.S.A. 2C:39-5. However, he concluded that the State had not established probable cause that the juvenile possessed the weapon for a purpose to use it unlawfully against the person of another. The judge denied waiver under R. 5:22-2(b)(1)(C) for unlawful possession of a firearm, finding that the State did not establish that the juvenile had a prior record, nor were the nature and circumstances of the charge sufficiently serious that the interest of the public required waiver. We now reverse and remand for immediate transfer of the case to adult court as required by R. 5:22-2(b)(3)(B).
The evidence established at the probable cause hearing is substantially undisputed. On January 31, 2006, Officer Steven Trowbridge, a thirteen-year veteran of the Jersey City Police Department, assigned to the gang unit, received a tip from a reliable confidential informant that an individual, approximately fifteen years of age, with the street name of "Butter," possessed a chrome, brown-handled revolver in his right jacket pocket and was standing in front of 96-98 Freemont Street, wearing a camouflage jacket, blue jeans, and a black bandana with the words "Bullet Town" printed on it. The informant told Trowbridge that the suspect had the weapon to protect drug dealers.
96-98 Freemont Street is known as the Booker T housing projects. It is an area known for gang violence and heavy drug dealing. "Bullet Town" is a street gang associated with the Booker T projects. The police have responded to the location numerous times because of gang violence between the Bullet Town gang and a gang associated with the Montgomery housing project. Indeed, on the night prior to K.S.'s apprehension, three gang members from the Montgomery project were arrested when they were at the Booker T projects in retaliation for a shooting.
Following receipt of the informant's tip, Trowbridge and several fellow officers were dispatched to the location, arriving between 6:00 and 6:30 p.m. When they arrived, they saw K.S. standing in the walkway leading to the courtyard formed by the buildings at 96-98 Freemont. K.S. was wearing the clothing and bandana described by the informant. As they approached with their badges showing, K.S. stuck both hands in his pockets. Trowbridge grabbed K.S. for safety purposes. At that time, he noticed the handle of a gun in K.S.'s right jacket pocket. K.S. was arrested. He did not resist. A chrome 44-40 caliber Ruger revolver was recovered from K.S.'s right jacket pocket and a 22-caliber Sportarms handgun was found in his left pocket. Both guns were loaded. The 22-caliber gun had one spent shell in the chamber under the hammer and five hollow-point bullets in the remaining chambers. The rounds appeared to have strike marks on them, which Trowbridge testified meant that somebody had attempted to fire them but they did not go off.
Trowbridge testified that the bandana worn by K.S. identified him as a member of the Bullet Town gang. The bandana is commonly worn by gang members operating in the Booker T projects as a means of identifying fellow members.
At the time of his arrest, K.S. was sixteen years of age. When the police arrived, K.S. was just standing at the courtyard entrance to the Booker T buildings having a conversation with another individual. He was not involved in any apparent illegal activity. When asked on cross-examination why K.S. was charged with possession of a weapon for an unlawful purpose, Trowbridge replied:
Based on the information we received from the CI, based on his location, based on the fact that he's a gang member, with the ongoing disputes that have been going on between the other areas, all the shootings, the fact that he had two handguns, one with a spent shell casing under the hammer, everything was taken into account when we decided to charge him . . . .
In arriving at his decision, the judge pointed out that K.S. was engaged in a conversation with another individual when the police arrived and not doing anything "sufficiently suspicious"; that the informant's statement that the suspect had a gun "to protect drug dealers" was "on its face . . . unclear as to exactly what it means"; and Trowbridge did not explore with the informant what he meant or the basis of his statement. The judge found that there was not sufficient evidence to establish probable cause with regard to the charge of possession of a firearm for purpose of using it unlawfully against another person.
On appeal, the State contends that its proofs were sufficient to establish probable cause that K.S. possessed two loaded handguns for an unlawful purpose. "Probable cause is a well-grounded suspicion or belief that the juvenile committed the alleged crime." State v. J.M., 182 N.J. 402, 417 (2005) (citing State v. Moore, 181 N.J. 40, 45 (2004)). Moreover, the nature of a probable cause determination "'does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations [will] seldom [be] crucial in deciding whether the evidence supports a reasonable belief in guilt.'" Ibid. (quoting Gerstein v. Pugh, 420 U.S. 103, 122, 95 S.Ct. 854, 867, 43 L.Ed. 2d 54, 69 (1975)).
The fact that the juvenile was not doing anything observably untoward at the time he was apprehended does not, in our view, necessarily support the conclusion that the circumstances failed to establish a well-grounded suspicion that the juvenile's possession of two substantially concealed and loaded handguns was for an unlawful purpose. The bandana worn by K.S. identified him as a member of the Bullet Town gang, which operated in the location where he was arrested. K.S.'s apparent membership in the Bullet Town gang, together with his possession of two loaded handguns and the evidence that the Bullet Town gang was engaged in ongoing street violence in the area involving shootings with a rival gang from the Montgomery projects, leads to a reasonable suspicion that the weapons, which had substantial firepower, were possessed by K.S. to be used against members of the rival gang. Likewise, we do not agree that the confidential informant's statement concerning the use of the weapons to protect drug dealers was unreasonably vague, especially in view of the fact that the informant accurately described K.S., what he was wearing, his location, the gun in his right jacket pocket, his street name, and age.
R. 5:22-2(b)(3) provides that on a finding of probable cause for violation of N.J.S.A. 2C:39-4a (possession of a firearm with a purpose to use it unlawfully against the person of another) by a juvenile age sixteen or older, "no additional showing is required for waiver to occur [and] [j]urisdiction of the case shall be transferred immediately." Here, there was probable cause to believe that K.S., as a gang member, possessed the firearms to be used in connection with gang violence, which was an ongoing problem in the Booker T projects. Accordingly, we reverse the order denying waiver. The matter is remanded to facilitate immediate transfer to adult court as required by R. 5:22-2(b)(3)(B).
Reversed and remanded.
© 1992-2007 VersusLaw Inc.