On appeal from the Superior Court of New Jersey, Law Division, Family Part, Burlington County, Docket Nos. FJ-03-811-07, FJ-03-813-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Alvarez.
On leave granted, the State appeals from a Family Part order denying its motion to transfer jurisdiction to the Law Division for adult prosecution of T.S. and J.U., pursuant to N.J.S.A. 2A:4A-26. We now reverse.
By way of background, juveniles T.S., J.U. and C.T. were charged with acts of delinquency which, if committed by an adult, would constitute first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful weapon possession, N.J.S.A. 2C:39-5(b); fourth-degree possession for an unlawful purpose, N.J.S.A. 2C:39-4(e); and conspiracy, N.J.S.A. 2C:5-2(a). Pursuant to the State's motion to transfer jurisdiction over T.S. and J.U. to the Law Division for adult prosecution, a waiver hearing was held.
According to the State's proofs at the hearing, on November 8, 2006, at approximately 11:48 p.m., Willingboro Township Patrolman Curtis Hankey responded to the report of an armed robbery by Mary Hunt, age forty-seven, and William Diggs, age forty-two, who were brother and sister. When Officer Hankey arrived, Hunt reported that three black males armed with either a black handgun or a replica, approached her and Diggs from behind and told them that this was a robbery. When Hunt and Diggs turned to face their attackers, one of the robbers held them at gunpoint, while the other two searched them. Finding nothing on their victims' persons, the three men walked back to Harrison Drive, their original location.
Hunt was able to describe the suspects, but Diggs was not. Hunt described them as "[t]hree black males, approximately 18 years old or older, all wearing dark clothing, [with] one [wearing] . . . dirty white or light colored sweat pants." Within thirty minutes of the incident, Willingboro Township Officer Wallace located four African-American males in the vicinity wearing dark clothing, including one wearing white sweat pants. On the grass approximately ten feet from where the suspects were stopped, Officer Malone located a replica, black-colored Glock handgun with its orange tip safety device removed. Officer Wallace identified the four suspects as eighteen-year old Pierre Shepard and seventeen-year olds T.S., J.U. and C.T.
Officer Hankey brought Hunt to his patrol car and situated the suspects approximately four car lengths away. Hunt individually identified three individuals, Shepard, T.S. and J.U., as the suspects who robbed her. However, she was unable to identify C.T. Subsequently, even though he was not identified, C.T. volunteered to Officer Hankey that he was in fact involved, but that T.S. was not. After being advised of his Miranda*fn1 rights, Shepard, the eighteen-year old suspect, told Willingboro Township Police Detective Pierre Deissler that all four males were involved in the robbery. After juvenile delinquency complaints were filed against T.S., J.U. and C.T., on November 11, 2006, at the Burlington County Juvenile Detention Center, Juvenile Detention Officer George Elmer Williams, Jr. overheard J.U. state that T.S. "wasn't even there."
At the conclusion of the hearing, the Family Part judge found probable cause that T.S. and J.U. had committed the armed robbery. As to the State's motion to waive jurisdiction, however, the court requested additional briefing. In this regard, the State based its waiver recommendation on its analysis of all seven factors of the Attorney General's Juvenile Waiver Guidelines (Guidelines), adopted March 14, 2000 pursuant to N.J.S.A. 2A:4A-26(f). In making the initial recommendation, the assistant prosecutor, in his written statement of reasons, distinguished between the circumstances attending T.S. and J.U. on the one hand, and C.T. on the other, as they specifically relate to the factors considered.
For instance, as to the first Guidelines factor -- the nature of the offense -- the assistant prosecutor noted the differing degrees of involvement:
[(1)] [regarding t]he nature and circumstances of the act . . . [and defendants' roles, T.S.], [J.U.], [C.T.] and an adult co-defendant agreed to commit a robbery and were aware a gun was being used[;] [(2)] [T.S.], [J.U.], and the adult co-defendant approached . . . and demanded money [from the victims] while [C.T.] stood lookout . . . . [;] [(3) a] replica . . . gun was pointed at the victims [during] . . . the search.
In analyzing Guidelines factor five -- prior record -- the assistant prosecutor compared the juvenile histories of T.S. and J.U. ...