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State ex rel E.H.

January 4, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket Nos. FJ-05-625-09, FJ-05-626-09, FJ-05-627-09, FJ-05-628-09, FJ-05-629-09, FJ-05-630-09, FJ-05-631-09, FJ-05-632-09, FJ-05-637-09, FJ-05-638-09, FJ-05-639-09, FJ-05-640-09, FJ-05-645-09, FJ-05-679-09, FJ-05-680-09, FJ-05-681-09, FJ-05-684-09, FJ-05-685-09 and FJ-05-686-09.

Per curiam.



Submitted October 27, 2009

Before Judges Grall, Messano and LeWinn.

By leave granted, the State appeals from the Family Part's denial of its timely motions to prosecute E.H., R.C. and R.D., all sixteen years old or older, in the Law Division. The State alleged that on January 4, 2009, all three of the defendants engaged in conduct at 306 East Pine Street in Wildwood that would, if they were adults, constitute aggravated arson, N.J.S.A. 2C:17-1a, arson, N.J.S.A. 2C:17-1b, failure to report a fire, N.J.S.A. 2C:17-1c, burglary, N.J.S.A. 2C:18-2, and criminal mischief, N.J.S.A. 2C:17-3. R.D. was also charged with witness tampering, N.J.S.A. 2C:28-5, based upon his role in a subsequent simple assault of a person who provided information about the East Pine Street arson to the police.

We conclude that denial of the motions without affording the State an opportunity to address the deficiencies in the "statements of reasons" was inconsistent with the court's limited authority to review the prosecutor's decision. See State v. Dalglish, 86 N.J. 503, 509-10 (1981) (discussing the need to remand to the prosecutor for reconsideration); State ex rel. R.C., 351 N.J. Super. 248, 261 (App. Div. 2002) (discussing circumstances under which a procedural defect in a timely motion may be cured). Accordingly, we remand with direction for further proceedings in conformity with this opinion.


Because of the ages of these juveniles and the charge of aggravated arson and lesser offenses arising from or related to that serious offense, the State's motions for waiver of the Family Part's jurisdiction over E.H., R.D. and R.C. fell within the Attorney General's Juvenile Waiver Guidelines (March 14, 2000). N.J.S.A. 2A:4A-26e, f; see R.C., supra, 351 N.J. Super. at 254-55 & nn.2 & 3. Consequently, the County Prosecutor had "primary responsibility" for the waiver decisions. State v. J.M., 182 N.J. 402, 412 (2005); State v. Read, 397 N.J. Super. 598, 604 (App. Div.), certif. denied, 196 N.J. 85 (2008). The prosecutor was required to discharge his obligation in accordance with the statute and with the Guidelines developed by the Attorney General, at the Legislature's direction "to ensure the uniform application... throughout the State." N.J.S.A. 2A:4A-26f; R.C., supra, 351 N.J. Super. at 253-55.

The State's obligations were to: file timely motions or establish good cause for delay, N.J.S.A. 2A:4A-26d; establish probable cause supporting the charge of aggravated arson against each juvenile, N.J.S.A. 2A:4A-26a(2)(A); J.M., supra, 182 N.J. at 412; prepare "statements of reasons" addressing the seven factors identified in the Guidelines that the prosecutor "considered and deemed applicable," Guidelines, supra, at 7; R.C., supra, 351 N.J. Super. at 255; obtain approval of the motions and the "statements of reasons" from the County Prosecutor or his designee, Guidelines, supra, at 7; R.C., supra, 351 N.J. Super. at 261; and, submit the approved and timely motions, along with the accompanying statements of reasons for review by the court, R.C., supra, 351 N.J. Super. at 256-61; see J.M., supra, 182 N.J. at 419 (approving R.C.); Read, supra, 397 N.J. Super. at 605.

The prosecutor's decision was "subject to judicial review only for a 'patent and gross' abuse of discretion," the purpose of which is to guard against "arbitrary exercise of this discretionary authority." R.C., supra, 351 N.J. Super. at 260; J.M., supra, 182 N.J. at 412; Read, supra, 397 N.J. Super. at 604. Accordingly, the Family Part was required to grant the motions unless the juveniles "show[ed] by clear and convincing evidence that the [prosecutor's] decision constituted a patent and gross abuse of discretion." R.C., supra, 351 N.J. Super. at 251.

The motions denied by the trial court were narrower than the motions initially filed by the State and approved by the Cape May County Prosecutor's designee. After the "statements of reasons" in support of the initial motions were filed, the assistant prosecutor modified the motions to exclude additional charges against these juveniles involving less serious offenses committed between October 30, 2008 and January 6, 2009 on properties other than 306 East Pine Street. There was no indication that the modified motions were approved by the County Prosecutor or his designee, and the statements of reasons were not modified.

Despite the absence of evidence of the requisite approval, the trial court denied the motions on the merits. The court relied, in large part, on the fact that the "statements of reasons" included reasons no longer applicable in light of the amended motions.


The fire that gave rise to the charges was reported at about 9:30 p.m. on January 4, 2009. It was burning in an unoccupied rooming house at 306 East Pine Street in Wildwood. The rooming house is situated on a block where the structures on adjacent properties are close to one another; the building adjacent to 306 East Pine Street was a newly erected and still unoccupied condominium. Although the rooming house was vacant and scheduled for demolition, it had been kept locked. The fire, which had two points of origin in a room on the second floor, was extinguished by the fire department but not before the first, second and third floors of the rooming house were damaged.

The fire did not obliterate graffiti that had been left on the interior walls of the rooming house. The graffiti - initials, sayings, writings and drawings - was "tagging," which is markings left on property indicating the maker's association with the place. On previous occasions, the police had found the same "tags" in other properties in Wildwood that been entered and vandalized between October 30, 2008 and January 6, 2009.

Based upon information provided by an officer assigned to the Wildwood High School, the police questioned eighteen-year-old Justin Ort about the fire and the other property crimes. Ort, who was linked to and ultimately charged as an adult for crimes against the other Wildwood properties but not with any offense involving 306 East Pine Street, told the police what he had heard about the fire.

The police subsequently interviewed E.H., R.C., R.D. and several juveniles under the age of sixteen. R.C. admitted that he, E.H., R.D. and two younger juveniles, A.H. and S.J., entered the rooming house at 306 East Pine Street, without permission, to drink alcohol and smoke marijuana. According to R.C., they "all decided to burn the place down." They used a lighter, "marker," paper and rum to set a blanket or a towel on fire.

R.C. had previously resided in the rooming house, and the room in which the fire was started was formerly his bedroom. R.C. also admitted involvement in the offenses committed in other Wildwood properties and named Ort, E.H., R.D., S.J. and A.A. as participants. All of these juveniles were interviewed, and they implicated themselves and one another in the offenses committed at 306 East Pine and elsewhere in Wildwood. Through the interviews, the police linked the juveniles and Ort with their individual graffiti "tags" and the "tags" to the various property crimes in Wildwood. E.H., R.C., R.D., A.H. and S.J., were charged with delinquent acts committed at 306 East Pine Street. Ort, E.H., R.C., R.D., S.J. and A.A. were charged with offenses committed at the other properties.

On the night of the fire, E.H. and R.D. were seventeen years old and R.C. was sixteen. E.H.'s eighteenth birthday was less than two weeks after the fire. Ort was eighteen, and S.J., ...

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