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State ex rel D.Y.

February 4, 2008

STATE OF NEW JERSEY IN THE INTEREST OF D.Y., A JUVENILE.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FJ-03-2202-07.

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 23, 2008

Before Judges Coburn, Fuentes and Grall*fn1 .

The prosecutor filed a complaint in the Family Part charging D.Y., a juvenile, with conduct that if committed by an adult would constitute second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Subsequently, the prosecutor obtained dismissal of that complaint, and on the same day filed in its stead a complaint charging D.Y. with conduct that if committed by an adult would constitute murder, N.J.S.A. 2C:11-3(a)(1) or (2). Both complaints arose from the same conduct; only the charge changed.

More than thirty days after filing the aggravated assault complaint, but within thirty days after filing the murder complaint, the prosecutor moved in the Family Part for an order transferring the murder complaint to the Law Division, where D.Y. would be tried as an adult. The notice of motion included a detailed statement of reasons supporting the transfer. The Family Part judge denied the motion, ruling that it was untimely and that the prosecutor failed to show good cause for extending the thirty-day time limit set forth in N.J.S.A. 2A:4A-26 and reiterated in Rule 5:22-2(a). We granted the State leave to appeal and now reverse and remand for further proceedings.

Our statement of facts is based on the prosecutor's written reasons supporting his waiver motion. On March 22, 2007, police were dispatched to a bar in Burlington. They found the victim lying face down on the floor with a bloody kitchen knife near his body. He had been stabbed, once in the back and once in the chest. The police took him to a hospital, where he was pronounced dead. A lengthy investigation ensued involving the questioning of numerous witnesses. By April 24, the police had developed probable cause indicating that D.Y., who was sixteen years old, and another juvenile and three adults were responsible to one degree or another for the assault in the bar that led to the victim's death. Up to that point, however, the police had been unable to establish who had wielded the knife, and some of the witnesses had provided information indicating that the knife wielder was not D.Y.

On April 24, 2007, D.Y. was charged in the Family Court with second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).

On May 22, 2007, during the continuing investigation, the police learned that shortly before the assault, D.Y., while in the company of three of the co-defendants at his house on Sandal Lane, Willingboro, "went into the kitchen and brought out three (3) steak knives, handed them to" [two of the co-defendants] and told "them to, 'Suit Up'." One of the co-defendants said to the police that he understood that to mean to get ready to fight. He also related that D.Y. said they were going to the bar to assault the victim, who had earlier struck D.Y.'s father. After the assault, this co-defendant added, he saw D.Y. and another co-defendant throw knives on the roof of a building near the bar.

On June 1, the police searched the rooftop of a building near the bar and found two knives. Those knives and the knife found at the bar matched knives still present at D.Y.'s Sandal Lane house.

Because of the information developed on May 22, the prosecutor decided to file a complaint on that date in the Family Part charging D.Y. with murder, at which time the assault charge was dismissed. And on June 20, 2007, the prosecutor filed the notice of motion for waiver of the murder charge to the Criminal Part.

The waiver motion must be "filed by the prosecutor within 30 days of receipt of the complaint." N.J.S.A. 2A:4A-26(d). That time limit may be extended but only "for good cause shown . . . ." Ibid. Those ...


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