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State ex rel R.L.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 8, 2008

STATE OF NEW JERSEY IN THE INTEREST OF R.L.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FJ-06-1777-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Fuentes and Gilroy.

By leave granted, the juvenile R.L. appeals from the order of the Family Part transferring pending juvenile delinquency charges against him to the Law Division, Criminal Part, thus exposing him to criminal prosecution. We affirm.

R.L. was charged with three counts of delinquency based on acts that, if committed by an adult, would have constituted three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and three counts of third-degree aggravated sexual contact, N.J.S.A. 2C:14-3a. The alleged victims were three minor girls, identified here as E.M., D.D., and V.D. The State moved before the Family Part to transfer this case to the Criminal Part pursuant to N.J.S.A. 2A:4A-26.

Acting on this motion, the Family Part conducted a hearing at which the State presented the testimony of Patrolman John Redden, III of the Millville Police Department. R.L. presented the testimony of Patrolman Brian McManus of the Vineland Police Department, Robert W. Smith, a former Cumberland County Juvenile Intake Probation Officer, and Michelle Martellio, an investigator employed by the Public Defender's Office. We gather the following facts from the evidence presented at this waiver hearing.

In the early part of February 2007, the three girls, E.M., then age 17, D.D, then age 15, and V.D., then age 13, informed their mother that, eight years earlier, they had been sexually assaulted on multiple occasions by a young man they knew as "[R]" who lived in the home of their mother's aunt B.H. The girls claimed that the incidents occurred over a year's time, when their mother left them in the care of B.H. who baby sat them.

The girls' mother reported these allegations to the police, telling them the accused was a boy presently in the New Jersey State Prison. Although the mother identified R.L. from a police photograph, the three girls were not able to confirm the identification. R.L. was twenty-three years old at the time of the hearing.

Against these facts, Judge Harold Johnson, Jr. granted the State's involuntary transfer motion. In a seventeen-page memorandum of opinion, Judge Johnson found that the State had established that R.L. was at least fourteen years of age at the time he committed the alleged offenses, and that there was probable cause to conclude that he had committed these crimes. R.L. now appeals raising the following arguments.

POINT I

SINCE THE EVIDENCE WAS INSUFFICIENT THAT THE JUVENILE WAS THE REQUISITE 14 YEARS OF AGE AT THE TIME OF THE ALLEGATIONS, THE WAIVER DECISION SHOULD BE REVERSED.

i) The Trial Court Erroneously Employed the Lowest Standard of Proof Regarding Whether the Juvenile was 14 Years Old at the Time of the Allegations, a Unique Waiver Requirement.

ii) The Evidence was Insufficient Under Any Standard that the Juvenile was 14 years or Older at the Time of the Offenses.

POINT II

EVEN ASSUMING ARGUENDO THAT R.L. WAS 14 YEARS OLD AT THE TIME OF THE ALLEGATIONS, THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT HE COMMITTED THE ALLEGED OFFENSES, ESPECIALLY SINCE THE TRIAL COURT'S ERRONEOUS DETERMINATION WAS BASED ENTIRELY ON HEARSAY.

We review the trial court's rulings here under an abuse of discretion standard. State in the Interest of B.C.L., 82 N.J. 362, 379-80 (1980). Applying this standard, we discern no basis to interfere with Judge Johnson's well-reasoned memorandum of opinion, and affirm substantially for the reasons expressed therein.

Under N.J.S.A. 2A:4A-26, the State must establish by a preponderance of the evidence that the juvenile was fourteen years of age or older at the time of the charged delinquent act, and there is probable cause to believe the juvenile committed an offense that, if committed by an adult, would constitute certain enumerated crimes, including the crimes of first-degree aggravated sexual assault, and third-degree aggravated sexual contact. The evidence adduced at the hearing amply supports Judge Johnson's findings that the State met its burden under the statute.

Although the State was not able to identify R.L.'s exact age at the time he allegedly committed the assaults, there is a rational basis from which to infer that he was at least fourteen years old at the time. The court also applied the correct standard of proof. State v. Read, 397 N.J. Super. 598, 610 (App. Div. 2008).

Affirmed.

20081208

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