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State ex rel A.W.

May 13, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2863-08.

Per curiam.



Submitted: April 1, 2009

Before Judges Fisher and C.L. Miniman.

The State appeals from the dismissal of a juvenile complaint charging A.W. (the juvenile) with acts that would constitute first-degree robbery and second-degree aggravated assault had they been committed by an adult. The State sought a waiver of Family Part jurisdiction and a referral to the Law Division. At the hearing on the waiver application, the State presented testimony from five investigating officers to establish probable cause to believe that the juvenile was involved in the delinquent acts that had occurred. The juvenile testified at the waiver hearing in opposition to a finding of probable cause. The judge subsequently refused to waive jurisdiction, concluded that the evidence was insufficient to find probable cause, and dismissed the juvenile complaint. We reverse and reinstate the complaint because the evidence was more than sufficient to establish probable cause.

Jersey City Police Officer Frank Connaughton was the first officer to testify. He, along with Officer Erica Vagarra, responded to a report at 3:30 p.m. of a robbery and aggravated assault in front of a church on March 17, 2008, and arrived less than thirty seconds later. An ambulance was already at the scene. There, they were met by Terry,*fn1 a juvenile victim born on July 18, 1990, who stated that she was walking eastbound on Montgomery Street from Brunswick Street when she was approached by three black females, who began to push her. One of the three, Susan, also a juvenile, reached for Terry's bag and into her jacket pocket, attempting to take Terry's cell phone. The other two females continued to push Terry and one of the three grabbed and pulled her hair. Terry reported that there was a group of black males, including the juvenile, on the other side of the street near a high school watching the struggle among the females. When a Good Samaritan, Hippolito Mendoza, an adult, intervened in the scuffle, the group of black males crossed the street and the juvenile picked up Mendoza and slammed him onto the sidewalk. Terry reported that she could positively identify Susan.

Connaughton spoke with Marisol Cruz, an adult witness, who stated that she saw three black females pushing Terry and then saw several black males, one of whom slammed Mendoza onto the sidewalk. He also spoke with George Vega, Jr., another adult witness, who stated that he saw the juvenile physically pick Mendoza up and slam him to the ground. Then, the ambulance personnel, who were treating Mendoza for an abrasion to his left eyelid with bruises and swelling and a left-wrist abrasion, transported him to the Jersey City Medical Center.

Connaughton testified to the descriptions of the juvenile, Susan, and the other two females, contained in his report. The juvenile was described as "[b]lack male, dark skinned, five foot eleven, a hundred and twenty five pounds, thi[c]k build with dark brown short afro wearing a black tee shirt, black hooded zipper sweatshirt, blue jeans and black sneakers." The description of the male juvenile was given to central command and surrounding units in an attempt to locate him. At 3:40 p.m. Officer Brian Gajewski and Officer L. Santiago reported that they observed the juvenile in the courtyard of a public housing complex and took him into custody. He was returned to the scene, where he was positively identified by Cruz and Vega.

At 3:56 p.m. Terry and Cruz were transported to the juvenile bureau by Officers Joe Manna and C. Kaye and Vega was transported by Sergeant Scerbo. At that time, juvenile detectives Donnie McGhee and Marjorie Jordan took over the investigation and obtained statements from the witnesses.

In the meantime, the Bureau of Criminal Investigation (BCI) photographed the roped-off scene, including the pool of blood on the sidewalk. Connaughton and Vagarra arrived at the hospital to talk with Mendoza. BCI also went to the hospital to photograph Mendoza's injuries, who told them he could not identify the person who injured him because the person grabbed him from behind and slammed him face first to the pavement. Mendoza was seen by Dr. Wasserman, who told Connaughton that Mendoza had a facial-bone fracture, a possible broken left wrist in addition to the injuries to his left eye, and that X-rays and a CT-scan would be done. While there, they spoke with the victim's daughter, Nancy, and her friend, who knew Susan's name based on information they obtained from another unidentified juvenile witness. Susan was arrested later that day.

Gajewski testified that he and Santiago were dispatched to the scene at 3:30 p.m. on a report of a robbery and assault when he received a dispatch describing the juvenile who assaulted Mendoza and was told that he was walking with three other black males on South Brunswick Street heading towards a public housing complex. They began to canvass the area and in a couple of minutes saw a group of four black males walking into the housing complex about four blocks from the scene of the robbery and assault. About eight to ten feet in front of them were two females walking into the housing complex, one of whom, Susan, was known to Gajewski. One of the males fit the description given by the dispatch.

The officers exited their vehicle and began to approach the four males from the rear. One of the males turned and looked at them, said something to the others, and three of the four males ran off through the courtyard. The three who ran did not fit the description of the juvenile as they were about eighteen inches shorter. Gajewski stopped the fourth male, later identified as the juvenile perpetrator, who had turned first one way and then the other as though he did not know where to go. The juvenile stated that he had nothing to do with it, he wanted to "get things right," and agreed to respond back to the scene. Gajewski did not receive a description of a female perpetrator until afterwards. At the scene around 3:35 p.m., the juvenile was positively identified by Vega, who said he was 100 percent sure of the identification. The juvenile was arrested, transported to the juvenile bureau, charged with robbery and aggravated assault, and remanded to the Hudson County youth house.

The next witness to testify was Detective Alex Bermudez, who investigated the delinquent acts, seeking more victims and witnesses. He took a statement from Mendoza, who told Bermudez that he was in the immediate area to return his youngest daughter from school to their home. Mendoza saw a girl, later identified as Susan, drag a Philippine girl by the hair and then another girl pushed Susan away. Then he saw Terry running towards him, but Susan jumped her and tried to get her cell phone. Mendoza got out of his car and pushed Susan away. At that point, he saw "a guy" come from across the street, he turned his back and then he was grabbed and slammed to the sidewalk.

Mendoza related to Bermudez that his daughter Nancy was at the hospital and that she told him that she knew the girl who was responsible and that she went to school with another of his daughters. His daughter knew the girl by name and reviewed a series of photographs in his presence and then identified Susan. He related that this was the girl he saw drag the Philippine girl by the hair and assault and try to rob Terry. Bermudez did not ask Mendoza to describe the juvenile that crossed the street because he was investigating the involvement of Susan and the juvenile had already been arrested. As a result, Mendoza's statement does not connect the juvenile to the assault on Mendoza.

Bermudez also interviewed Terry and Nancy, Mendoza's daughter. Nancy told him that she was in her house, heard a commotion outside, and went downstairs to see what was happening. She saw "someone getting stomped" and saw Susan hitting him. As Nancy ran away, she saw Susan running away with a couple of girls. She had seen Susan earlier by the light rail with her cousin. Once the group disbursed, she saw that the victim was her father and she stayed with him until the ambulance arrived. She did not mention in her statement whether any males were present in the group. She later went to the hospital and told the detectives a couple of names, including Susan's, and said that she was going to the open gym at a local school to try to find her. Nancy did so and alerted police who were driving by as to Susan's ...

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