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State v. Read

January 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERNEST J. READ, III, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-01-0101.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 14, 2007

Before Judges Skillman, Winkelstein and Yannotti.

Defendant, who was then seventeen years old, was charged with acts of juvenile delinquency which, if committed by an adult, would constitute armed robbery, and various other offenses. The Family Part granted the prosecutor's motion to waive the charges to the Law Division under the 2000 amendment to N.J.S.A. 2A:4A-26, L. 1999, c. 373, § 1. This amendment provides for the waiver to adult court of serious charges, sometimes referred to as "Chart 1" offenses, see State v. R.G.D., 108 N.J. 1, 12 (1987), brought against a juvenile over the age of sixteen, regardless of the probability of the juvenile's rehabilitation prior to reaching nineteen. N.J.S.A. 2A:4A-26e.

Following our decision in State in the Interest of R.C., 351 N.J. Super. 248 (App. Div. 2002), which held that a prosecutor's motion for a waiver to adult court of a Chart 1 charge against a juvenile over sixteen must be supported by a written statement of reasons under the Attorney General's Guidelines and that a prosecutor's waiver decision is subject to judicial review, defendant moved for reconsideration of the order waiving the charges against him to the Law Division. In support of his motion, defendant submitted a report by a psychiatrist which concluded that he had various psychological impairments that contributed to his poor judgment and lack of impulse control. These impairments were partly caused by a traumatic brain injury that defendant suffered in a 1996 automobile accident. Defendant also had a severe drug dependence problem.

The Family Part concluded that defendant's psychological impairments are not encompassed by the Attorney General's Guidelines for determining whether a Chart 1 charge against a juvenile over the age of sixteen should be waived to the Law Division. The Family Part also concluded that the prosecutor's decision to waive the charges against defendant did not constitute a patent and gross abuse of discretion. Accordingly, the Family Part reaffirmed its decision to waive the charges to the Law Division.

Defendant was subsequently indicted for conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; armed robbery, in violation of N.J.S.A. 2C:15-1; possession of a firearm without a permit, in violation of N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a. Defendant entered into a plea agreement under which he agreed to plead guilty to the armed robbery charge, and the State agreed to recommend a ten-year term of imprisonment and to dismiss the other charges.

In his guilty plea, defendant acknowledged that he stole the handgun used in the robbery from his father. Initially, defendant and his confederate planned to rob a drug dealer but later changed their minds and decided to rob a gas station in Hazlet instead. Defendant acted as a look-out while his confederate walked up to the attendant, stuck the gun in his ribs and demanded money. After the confederate took money from the attendant, he and defendant drove away from the scene. The police apprehended them shortly thereafter.

The trial court sentenced defendant in accordance with the plea agreement to a ten-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismissed the other charges.

I.

On appeal, defendant's primary argument is that the Family Part erred in granting the State's motion to waive the charges against him to the Law Division without considering his alleged psychological impairments. This waiver was governed by N.J.S.A. 2A:4A-26a(2)(a), -26e and -26f, which provide in pertinent part:

a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that:

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:

(a) Criminal homicide other than death by auto, strict liability for drug induced deaths, pursuant to N.J.S. 2C:35-9, robbery which would constitute a crime of the first degree, carjacking, aggravated sexual assault, sexual assault, aggravated assault which would constitute a crime of the second degree, kidnapping or aggravated arson[.]

e. If the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted. This subsection shall not apply with respect to a juvenile 16 years of age or older who is charged with committing any of ...


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