On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-05-1879.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Baxter.
Defendant Daurice Turner appeals from his March 9, 2007 conviction on a charge of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). He argues that the waiver decision made by the Chancery Division, Family Part to the Law Division, Criminal Part was impermissibly based on hearsay evidence. He also maintains that his subsequent guilty plea in the Law Division lacked a proper factual basis, thereby entitling him to the vacating of that plea. We disagree and affirm.
On January 9, 2006, Diane Jeffers delivered a pizza to 31 Pritchard Lane in Winslow Township. When she exited her car, a young male approached her, pushed her against her vehicle and demanded that she give him all of her money. In response to his demand, she gave him approximately $500 in cash. He then punched her twice with a closed fist on the right side of her head, causing her to fall to the ground. At that point, her assailant and another man jumped into her car and drove away. After canvassing the area, police found Jeffers's car parked nearby, but were unable to identify any suspects. After processing the car for fingerprints, police found two sets of fingerprints. Those on the driver's side belonged to defendant Daurice Turner, and those on the passenger side belonged to Danilo Leonen.
Winslow Township police officer Brian Perticari interviewed Leonen who admitted that he and defendant had ordered pizza from a local pizza store with the intention of robbing the delivery person and stealing his or her car. Leonen also told Perticari that after Jeffers exited her car, Turner punched her twice in the face and then took off with Leonen in her car.
Winslow Township police charged Turner with conduct which, if committed by an adult, would constitute first-degree carjacking and armed robbery. Because Turner was charged with first-degree crimes, N.J.S.A. 2A:4A-26 requires only that the State prove probable cause in order to obtain a waiver of those charges to the Law Division, Criminal Part. Perticari was the only witness to testify at the waiver hearing. Without objection, he testified to the statements provided by both Jeffers and Leonen. On March 28, 2006, at the conclusion of the waiver hearing, the Family Part waived its jurisdiction over the charges and referred them to the Law Division.
On February 9, 2007, defendant entered a negotiated plea of guilty to second-degree aggravated assault. During the plea colloquy, defendant provided a factual basis for his plea of guilty to the charge of second-degree aggravated assault. He stated under oath that he punched Jeffers in the face twice with a closed fist, causing her to fall to the ground. Defendant was then asked by his attorney, who was eliciting the factual statement, whether when he hit Jeffers, he had "intend[ed] to cause her serious injury"; defendant answered "yes."
On appeal, defendant argues:
I. THE FAMILY COURT JUDGE'S RELIANCE ON STATEMENTS THAT WERE NEVER SUBJECTED TO CROSS-EXAMINATION PRODUCED AN UNRELIABLE RESULT IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not raised below)
II. BECAUSE THE JUVENILE'S TESTIMONY AT THE PLEA HEARING DID NOT SET OUT A FACTUAL BASIS ENCOMPASSING ALL OF THE ELEMENTS OF SECOND-DEGREE AGGRAVATED ASSAULT, THE PLEA SHOULD BE VACATED AND THE MATTER SHOULD BE REMANDED ...