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State v. McLeod

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KAREEM MCLEOD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-04-0412.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2008

Before Judges Graves and Alvarez.

Defendant Kareem McLeod entered guilty pleas on Passaic County Indictment No. 02-04-0412 to fourth-degree conspiracy to riot, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:33-1(a)(1) (count one), second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b) (count four), fourth-degree rioting, N.J.S.A. 2C:33-1(a)(1) (count seven), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count twelve). In exchange, the State agreed to recommend a sentence on count four of a maximum of ten years subject to the No Early Release Act, NERA, N.J.S.A. 2C:43-7.2, on count twelve of a maximum of five years concurrent, and on counts one and seven of eighteen months imprisonment concurrent. On February 18, 2005, defendant was sentenced to lesser terms of seven years subject to NERA on count four, a concurrent four years on count twelve, and a concurrent fifteen months on count seven, into which count one was merged. We affirm.

Because defendant was only fifteen years of age when the homicide occurred, the State filed a motion to waive jurisdiction from the Family Part to the Law Division, so defendant could be tried as an adult. The motion was granted after two days of hearings. The family court judge issued a written opinion in which he found probable cause, that there was no reasonable prospect that defendant could be rehabilitated before attaining the age of nineteen, and that considerations of deterrence outweighed all other factors. He therefore, waived jurisdiction and determined that defendant should be tried as an adult.

The charges arise from a June 20, 2001, incident during which a group of teenagers became involved in a "wilding," or rioting, episode. It began mid-morning in a high school building and moved out onto nearby streets where the group assaulted three men chosen at random. Two of the victims required medical treatment for their injuries; the third, Hector Robles, died hours after the assault from blunt force trauma including a ruptured kidney.

When defendant pled guilty he stated, among other things, that he knew he would be sentenced to ten years imprisonment subject to eight and one-half-years of parole ineligibility, in other words, subject to NERA, on the amended charge of reckless manslaughter.*fn1 He was asked if he understood that whatever the length of his sentence, it would be subject to NERA, and he responded in the affirmative. The plea form he signed included the standard supplemental page mandated for sentences subject to NERA, which page he signed separately.

During the plea colloquy, defendant readily acknowledged joining in the "little rioting going on." He admitted that the group was assaulting people at random, and that he kicked the second victim the group encountered, a cake delivery man. Defendant described his encounter with Robles as follows:

[DEFENSE COUNSEL]: Did you move down the street with the crowd?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: Did there come a point where you saw an elderly gentleman standing in an alley?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: And you now know that man's name to be Mr. Robles, is that correct?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: Did you approach Mr. Robles?

THE DEFENDANT: Yes, sir.

THE DEFENDANT: I attempted to approach him. I was the first one in front of him. But before I touched the man, someone else attempted to hit him.

[DEFENSE COUNSEL]: All right. Well, when you --

Let me take you back a little bit. When you saw Mr. Robles in this alley, did you walk up to him? Did you approach him?

THE DEFENDANT: I didn't say nothing to him. I walked up to him.

THE COURT: I can't hear you. You walked up to him?

THE DEFENDANT: Like where you are, I was attempting to walk to the man. But before I could get to him, he was struck.

[DEFENSE COUNSEL]: Was anybody in the crowd yelling for you to do anything with regard to Mr. Robles?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: What were they saying?

THE DEFENDANT: Slum, knock the man out.

[DEFENSE COUNSEL]: And you are, on the streets, known as Slum?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: And were you attempting to knock him out, as the crowd was yelling at you?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: What did you intend to do?

THE DEFENDANT: I intended to kick him.

[DEFENSE COUNSEL]: To strike him and assault him?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: Were you going towards Mr. Robles with this in your mind when something else happened?

THE DEFENDANT: Say that again?

[DEFENSE COUNSEL]: Were you walking towards Mr. Robles with the intention to hit him or kick him or assault him --

THE DEFENDANT: No, sir.

[DEFENSE COUNSEL]: -- when something else happened, somebody else got there?

THE DEFENDANT: No, I didn't intend to hit him. It happened on its own.

[DEFENSE COUNSEL]: I don't understand. What do you mean it happened on its own?

THE DEFENDANT: You said did I intend to hit him.

[DEFENSE COUNSEL]: Were you going to?

THE DEFENDANT: Yes, I was.

[DEFENSE COUNSEL]: Do you know what I mean by intend? Did you --

THE DEFENDANT: Was I about to.

[DEFENSE COUNSEL]: Were you about to hit Mr. Robles?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: And before you got a chance to hit him, did something else happen?

THE DEFENDANT: Sir, yes, sir.

[DEFENSE COUNSEL]: What was that?

THE DEFENDANT: He had got struck on the neck.

[DEFENSE COUNSEL]: After he was struck behind his neck by somebody else, what happened with the rest of the crowd?

THE DEFENDANT: After he had got struck by someone else, he had fell down and then the crowd fell over me and my sneaker came off. I was the last person to get up on the man.

[DEFENSE COUNSEL]: But what happened to Mr. Robles. We are not concerned about what happened to you. What did you see the crowd doing to Mr. Robles?

THE DEFENDANT: He had been kicked. He had been punched.

[DEFENSE COUNSEL]: And as a result of this, did you learn now, through talking to me and looking at police reports and things, that Mr. Robles died?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: And do you accept responsibility for some of the things that happened that caused his death?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: You know that the reckless conduct that you and this crowd got involved in that day caused the death of Mr. Robles, is that correct?

THE DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: And you had the same intention and you had the same idea in mind as this crowd in striking Mr. Robles, is that correct?

THE DEFENDANT: Yes, sir.

In his brief, defendant raises the following points for our consideration:

POINT I: THE DEFENDANT WAS IMPROPERLY SUBJECTED TO THE PROVISIONS OF THE NO EARLY RELEASE ACT AND THE SENTENCE ENTERED THEREUPON SHOULD BE SET ASIDE.

POINT II: THE COURT BELOW COMMITTED REVERSIBLE ERROR IN INVOLUNTARILY WAIVING THE JURISDICTION OF THE FAMILY COURT AND ALLOWING THE DEFENDANT TO BE TRIED AS AN ADULT.

Defendant now asserts that because he was only in the group which inflicted the deadly injuries upon Robles, that he cannot be sentenced as a person who committed a "violent crime" under the pre-amendment NERA in effect at the time. He contends that because he was not "the actor" who caused death, or serious bodily injury resulting in death, he did not fall within NERA's purview as he was a mere accomplice. The pre-amendment NERA under which he was sentenced defined "violent crimes" as those in which the "actor" causes death or serious bodily injury.

It bears noting that "[i]f a defendant acknowledges at the time of his guilty plea that NERA applies, a question exists as to whether he can subsequently challenge its application on appeal." State v. Meyer, 327 N.J. Super. 50, 55 (App. Div.), cert. denied, 164 N.J. 191 (2000). Be that as it may, the pre-amendment NERA has been held to be applicable even under an accomplice liability theory. State v. Rumblin, 326 N.J. Super. 296, 302 (App. Div. 1999), aff'd, 166 N.J. 550 (2001). "[A]ccomplices are to be punished as principals." Ibid. Here, defendant acknowledged he acted as an accomplice to the crime of reckless manslaughter although he denied any conduct as a principal. That is sufficient to expose him to sentencing as a "violent offender" within the meaning of the pre-amendment NERA.

Furthermore, to allow defendant to repudiate the NERA aspect of the sentence while gaining the benefit of his negotiated plea to a lesser charge, and the benefit of the lesser sentence imposed than that negotiated by the State, would be unfair. Even if the law was not so clear on the question of accomplice liability, the only relief to which defendant would be entitled would be the withdrawal of his guilty plea. State v. Reardon, 337 N.J. Super. 324, 326-27 (App. Div. 2001). The State would then be able to prosecute all the original charges, including murder.

Defendant also contends the family court erred when it waived jurisdiction to the adult court. "Here, as in other areas, the criminal justice system reposes this solemn responsibility in the sound discretion of the trial court."

State v. R.G.D., 108 N.J. 1, 15 (1987). The questions for our consideration are "whether the correct legal standard has been applied, whether inappropriate factors have been considered, and whether the exercise of discretion constituted a 'clear error of judgment.'" Ibid. (quoting State v. Humphreys, 89 N.J. 4, 13 (1982)). "[F]indings of fact [must] be grounded in competent, reasonably credible evidence . . . ." Ibid. (citing State v. Roth, 95 N.J. 334, 363-64 (1984)).

In addition, where a juvenile is charged with certain enumerated serious offenses, such as a criminal homicide or first-degree robbery, once the State establishes that the juvenile was fourteen when the offenses occurred and that there is probable cause to believe the juvenile committed the charged offenses, the burden shifts. State v. Scott, 141 N.J. 457, 463-64 (1995). It is then the juvenile's task to establish the "probability of rehabilitation prior to reaching the age of nineteen and that the probability of rehabilitation substantially outweighs the reasons for waiver" in order to avoid transfer to adult court. Id. at 464.

The family court judge found, as a preliminary matter, that there was sufficient probable cause to require defendant to answer to all charges. No transcript was supplied of the November 8, 2001, initial probable cause hearing. None is necessary, however, as when defendant testified at the actual waiver hearing on March 5, 2002, he was asked about the inculpatory statement he and others made to the authorities. On the basis of defendant's own admissions and the statements of co-defendants above, the family court judge reasonably found probable cause.

The family court judge further found that defendant was at least fourteen when the incident occurred, having been born on May 15, 1986. This finding is a statutory prerequisite to the applicability of the relevant sections of the waiver statute, N.J.S.A. 2A:4A-26(a)(1), under which the State was seeking to transfer defendant to adult court.

On the question of rehabilitation, defendant presented the testimony of an expert whom the family court judge described as "unconvincing." Although the expert concluded the juvenile's "Full" I.Q. was 62, school records indicated his I.Q. was higher, 74. The school records revealed that defendant's conduct in school was disruptive as well as assaultive. The expert's conclusion that defendant did not have an aggressive or anti-social personality, in the opinion of the family court judge, "flies in the face of the evidence" that defendant was involved in "unprovoked violence, not once, not twice, but three times" during the wilding. The expert characterized defendant as motivated for treatment, which the family court judge perceived to be in conflict with the violation of probation charge pending against defendant due to threats he made to a detention center staff member in an unrelated prior incident. The family court judge concluded there was no reasonable probability of rehabilitation prior to the juvenile attaining the age of nineteen and we concur.

On the question of the need for deterrence, the family court judge said: "This case involves a horrific offense, which ended in the death of an innocent and helpless victim. . . . The societal need for deterrence of acts of the very type with which this juvenile is charged has not been overcome." We agree with his assessment.

There is no dispute that defendant was charged with offenses which under N.J.S.A. 2A:4A-26(a) made him a primary candidate for waiver. See Scott, supra, 141 N.J. at 463. The family court judge found probable cause, the requisite age, and that there was no reasonable prospect that the juvenile could be rehabilitated before age nineteen. He determined that the need for deterrence outweighed all other considerations. We conclude that having applied correct legal principles to the credible evidence, the family court judge did not make a clear error of judgment. Id. at 467 (citing R.G.D., supra, 108 N.J. at 15). Defendant was properly waived to adult court.

In its brief on appeal, the State objects to the challenge to the waiver decision on the basis that the right to raise the issue was lost once defendant entered a guilty plea, because no reservation of the issue was specifically made under Rule 3:9-3(f). The State enumerates the known exceptions to the rule, an appeal from a motion to suppress under Rule 3:5-7(d), and from pretrial intervention decision under Rule 3:28(g). In further support of the proposition, the State cites to a footnote suggesting that a family court waiver order is not appealable as of right in State v. Jack, 281 N.J. Super. 404, 405 n.1 (App. Div. 1995), aff'd, 144 N.J. 240 (1996). Despite the footnote, we note that there are reported opinions in which waiver decisions have been afforded appellate review without express reservation after the entry of a guilty plea. See, e.g., Scott, supra, 141 N.J. 457; State v. J.M., 182 N.J. 402 (2005). As the waiver is being affirmed, however, we leave resolution of that interesting question for another day as it need not be reached in this opinion.

Accordingly, we affirm.


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