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State ex rel E.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 7, 2009

STATE OF NEW JERSEY IN THE INTEREST OF E.W., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-835-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2008

Before Judges Fisher and Baxter.

The State has appealed an order denying its motion for waiver of Family Part jurisdiction in this juvenile delinquency matter. We reverse.

It appears that a complaint was filed*fn1 alleging that E.W., a juvenile, engaged in acts of delinquency by committing what would have been, if committed by an adult, robberies on four individuals in a barbershop in Jersey City on September 4, 2007. In light of the seriousness of the charges, the State moved for the waiver of Family Part jurisdiction so that E.W. could be tried as an adult in the Law Division.*fn2 To resolve the jurisdictional issue, the trial judge presided over a probable cause hearing, which largely consisted of an investigating police officer's reading of reports and witness statements regarding the barbershop robbery; the judge concluded that E.W. was only present at the scene and the State failed to show he was an accomplice. Accordingly, the judge held that probable cause was not established and dismissed the complaint. The State has appealed, arguing the judge's determination was erroneous.

In such a proceeding, the State must demonstrate probable cause that the juvenile committed the alleged offense. N.J.S.A. 2A:4A-26; R. 5:22-2. Probable cause has been defined in this context as "a well-grounded suspicion or belief," the establishment of which "'does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations [will] seldom [be] crucial in deciding whether the evidence supports a reasonable belief in guilt.'" State v. J.M., 182 N.J. 402, 417 (2005) (quoting Gerstein v. Pugh, 420 U.S. 103, 122, 95 S.Ct. 854, 867, 43 L.Ed. 2d 54, 69 (1975)).

In applying this standard, we agree with the State that the evidence provided during the hearing established probable cause that E.W. actively participated in and was not merely present during the barbershop robbery. The witness statements indicated that three individuals were involved. A barber identified E.W. as "the kid with the gun" and reiterated that he was "positive" that E.W. was the "gunman." Another witness made "positive identifications of both [D.P.] and [E.W.]." And a third witness confirmed that someone small and skinny, who appeared to be about thirteen years old, like E.W., was present during the robbery and assisted the gunman.*fn3 In addition to the witness statements, E.W. presented himself to the police station on the day of the robbery to give himself up, indicating to a police officer, according to a police report, that "he was one of the actors that robbed the barbershop."

In applying the standard described by the Supreme Court in J.M., the trial court was obligated to conclude that the State had demonstrated probable cause that the juvenile had participated in the robbery.

We reverse and remand for the entry of an order reinstating the complaint, following which the court shall conduct a hearing to determine the probability of E.W.'s rehabilitation. Should E.W. fail to persuade the trial court 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," N.J.S.A. 2A:4A-26e, then the trial court shall enter an order granting the State's motion for a waiver of Family Part jurisdiction.

Reversed and remanded for proceedings in conformity with this opinion. We do not retain jurisdiction.


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