On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FJ-15-1812-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
Defendant, Christopher Ojeda, appeals from a June 1, 2006 order that granted the prosecutor's motion to waive the jurisdiction of the Family Part and transfer defendant's second- degree aggravated assault charges to the adult criminal court. Although defendant argues that the prosecutor's decision to seek transfer was a patent and gross abuse of discretion, he also more narrowly argues that the trial judge erred when she ignored the prosecutor's decision to permit similarly-situated juveniles to remain subject to the jurisdiction of the Family Part. We affirm.
On February 4, 2006, two teenagers, A.D. and W.B., were assaulted by six individuals as the two were leaving the Ocean County Mall in Toms River. There were two separate assaults: the five male assailants attacked W.B., a male; and the one female assailant attacked A.D., a female. A.D. sustained only minor injuries when she was punched in the face. W.B. was severely injured when one of his five assailants, later identified as defendant, picked W.B. up from the ground and bodyslammed him to the pavement. Once W.B. was on the ground, all five punched and kicked him until he lost consciousness. As a result of the assault, W.B. fractured his elbow, which caused severe tendon, muscle and nerve damage. After undergoing two surgeries, W.B. continues to experience a significant limitation of the use of his arm.
Through investigation, police identified W.B.'s assailants as defendant, who at the time of the incident was one-month shy of his eighteenth birthday; nineteen-year old Ricky Shephard, who from the outset was prosecuted in the Law Division; C.S., who was sixteen years old; and D.C. and O.A., both of whom were age fourteen. All five were charged with offenses that would constitute second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), if committed by an adult. The sixth participant, S.S., was charged with simple assault for punching A.D. in the face.
The State filed a timely motion to waive the Family Part's jurisdiction and transfer the complaints pending against defendant, C.S., D.C. and O.A. to the Law Division. Thereafter, the State entered into negotiated plea agreements with C.S. and D.C. in which they appeared in the Family Part and entered pleas of guilty to aggravated assault, N.J.S.A. 2C:12-1(b)(7), a crime of the third degree if committed by an adult. Each was sentenced to a term of probation, conditioned upon serving sixty days in the Ocean County Juvenile Detention Center. As part of the plea agreement, the State agreed to withdraw its application for waiver of the Family Part's jurisdiction over C.S. and D.C.*fn1
The State accompanied its waiver motion with the statement of reasons required by the Attorney General's Juvenile Waiver Guidelines (March 14, 2000) ("Guidelines"), which require prosecutors to prepare a written statement of reasons for waiver, which shall include "an account of all factors considered and deemed applicable...." State ex rel. J.C., 351 N.J. Super. 248, 250 (App. Div. 2002). The State pointed to the following factors as supporting its waiver motion: the nature and circumstances of the act and defendant's role in it; the serious harm inflicted on the victim; the need for deterrence; the need for a lengthier term of incarceration than would be available under the juvenile sentencing scheme; and defendant's prior juvenile adjudication of delinquency for a third-degree aggravated assault, for which he was on probation at the time of his assault on W.B.
Defendant filed a motion to dismiss the State's waiver motion. Defendant argued that the disparity in the State's decision to pursue a waiver motion against defendant while dismissing the waiver motions it had filed against the other three participants constituted a patent and gross abuse of discretion. In response, the State highlighted defendant's role as the initial aggressor in the unprovoked attack on W.B. that caused him to suffer a permanent and severe injury. The State also asserted that although D.C. and O.A. were charged with the same offense as defendant, both were under the age of sixteen, and therefore not subject to the automatic waiver provisions applicable to defendant. As to C.S., the State argued he was considerably younger than defendant, and was not the initial aggressor. The State also pointed to defendant's prior adjudication of delinquency for aggravated assault. The State argued that the "significant age difference between the juveniles," as well as the "history difference," made its waiver decision reasonable and judicial intervention unwarranted.
After oral argument, Judge Villano found probable cause and concluded that defendant's role in the offense, the significant age difference, and defendant's prior record justified the disparate treatment. Finding that defendant failed to establish a patent and gross abuse of discretion, the judge denied defendant's motion to dismiss the State's waiver notice.
Following the denial of his motion, defendant pled guilty in the Law Division to second-degree aggravated assault, and was sentenced a degree lower to a three-year term of imprisonment subject ...