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State of New Jersey In the


February 22, 2011


On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2057-10.

Per curiam.



Submitted February 3, 2011 - Decided

Before Judges Wefing and Baxter.

A.A. was charged with delinquent acts which, if committed by an adult, would constitute murder, N.J.S.A. 2C:11-3; possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The State filed a motion pursuant to N.J.S.A. 2A:4A-26(a)(2) for waiver of the Family Part's jurisdiction and for transfer of the charges to the Law Division for A.A. to stand trial as an adult. Following an evidentiary hearing, the trial judge found the State failed to establish probable cause to believe that A.A. committed the charged offenses, and entered an order on September 1, 2010 denying the State's motion for waiver to the Law Division.

We granted the State's motion for leave to appeal. For the reasons that follow, we vacate the September 1, 2010 order and remand for the entry of an order transferring the matter to the Law Division for further proceedings.


At the probable cause hearing, the State presented testimony from Detective Sean O'Leary and Detective Javier Toro of the Hudson County Prosecutor's Office. O'Leary testified that he was assigned to investigate the fatal shooting of Alterique Perry, which occurred in the early morning hours of December 19, 2009 in the vicinity of Woodlawn Avenue and Corcoran Street in Jersey City. During the course of the investigation, he and Toro interviewed several individuals who attended a party at the home of Euria Baxter shortly before Perry was shot. Toro testified to the statement Baxter provided. She stated that there was a party at her residence on the night of December 18, 2009 that ended in the early morning hours of December 19, when she ordered everyone to leave. Within a few minutes, she heard gunshots and saw Perry attempting to run away from the corner of Woodlawn and Corcoran. She then saw him hit by a bullet and fall to the ground.

Another witness, Tashema Porter, provided a statement to O'Leary that she overheard a man whom she knew as "Akon" on the telephone telling someone that Alterique Perry was present at the party. Shortly after Akon made this phone call, "Greedo" and "S-Dot" arrived at the party. It was after a fist fight between some of the males at the party that Baxter turned off the music, announced that the party was over and directed everyone to leave. Porter saw A.A. leave Baxter's house and proceed to the corner of Woodlawn and Corcoran.

O'Leary also described his interview with LaPorsha Reed, who told him that after the party ended, she heard an eruption of gunfire coming from the corner of Woodlawn and Corcoran where she observed A.A. standing. After the shots were fired, she saw A.A. and two others running east on Woodlawn Avenue. Reed did not say she saw A.A. holding a gun or firing.

Although the interviews of Baxter, Reed and Porter were all conducted in the early morning hours of December 19, 2009, the interview of the State's principal witness, Demetrius Bell, did not occur until April 1, 2010. Bell was issued Miranda*fn1 warnings when his interview with O'Leary began, because the extent, if any, of Bell's involvement in Perry's murder was unknown. Bell told O'Leary that after the party ended, he turned left to the corner of Woodlawn and Corcoran where he saw A.A. and other members of the Crips gang standing on the corner. According to O'Leary, Bell told him that he saw a gun in the hands of a man whom he knew as "Fat Cat," and that he also saw a gun in "Greedo's" hand. O'Leary testified that a database used by law enforcement established that "Greedo" and "Mayo" were nicknames for A.A. Bell also said he saw flashes of gunfire coming from the guns that both Greedo and Fat Cat were holding. After he heard the shots ring out, Bell ran east on Woodlawn Avenue and went home.

At some point after O'Leary completed his interview of Bell, he showed Bell a photograph of A.A. Bell identified A.A. as "Greedo," one of the two people he had seen firing a gun on the night in question. After identifying A.A.'s photograph, Bell signed it. O'Leary identified A.A. in court as the person whose photograph Bell had signed.

On cross-examination, O'Leary explained that A.A.'s half-brother, R.A., used the nickname "Greede," and that some of the witnesses appeared to use the names "Greede," which referred to R.A., and "Greedo," which referred to A.A., interchangeably.

O'Leary also acknowledged that at the time he interviewed Bell, Bell was in custody on unrelated charges. O'Leary also admitted telling Bell during the course of the interview that it was "up to [him]" whether he wanted to spend fifteen or twenty years in jail "for some other a**hole who decides -- prove how tough he is by pulling out a gun."

O'Leary conceded that during another portion of his interview with Bell, Bell told him he did not see A.A. carrying a gun. When O'Leary questioned Bell further about that remark, Bell responded "I ain't seen no gun, I ain't see what kind of gun he was shooting." At another point in his statement, Bell asserted that the only person he had observed firing a weapon was "Fat Cat," a man whose identity was apparently never established.

On redirect examination, O'Leary was asked whether in the course of Bell's statement Bell indicated who was firing a weapon. O'Leary responded, "Greedo, or Mayo, I'm not sure what he referred to him as, and Fat Cat." When asked to whom Bell was referring as "Greedo and Mayo," O'Leary answered "[A.A.]*fn2 and this yet unidentified individual as Fat Cat." O'Leary also testified that Bell placed A.A. "on the corner of Woodlawn and Corcoran" in the "very early hours of December 19th."

At the conclusion of the testimony of O'Leary and Toro, during which portions of the statements of Bell and Reed were admitted in evidence,*fn3 the State rested. A.A. called no witnesses. In an oral decision rendered on September 1, 2010, the judge denied the State's motion to waive the jurisdiction of the Family Part and to refer the charges against A.A. to the Law Division. The judge provided several reasons. First was the unreliability of Demetrius Bell who, according to the judge, provided a statement favorable to the State while he was in custody on an unrelated charge, and only after being told he was possibly facing charges for the murder of Alterique Perry. Second, the judge observed that Bell never used the name A.A. to describe the shooter, instead using the names "Greedo" and "Mayo." The judge explained:

There is so much confusion -- so many leaps of conjecture and surmise about who is Greedo, who is Mayo -- we go to this nickname database, which is not in front of us. Which, again, of course, is hearsay, from -- who knows how reliable. Nobody apparently ever says the name [A.A.].

Third, the judge reasoned that Bell's inconsistent statements about whether he observed a gun in A.A.'s hand made the portion of his statement, in which he implicated A.A., unworthy of belief. The judge also characterized Bell's statement to O'Leary as "double hearsay." Fourth, the judge was disturbed by the lack of any corroboration of Demetrius Bell's statement that A.A. was one of the shooters. The judge commented that the court had heard "about all kinds of statements, about how something went down, but none of these young ladies that gave statements -- could say, no one could say who the shooter was[.]" The judge also observed that there was "[t]he lack of anyone else being able to say what this -- or saying what this one person said."

The judge summarized the weaknesses in the State's case as follows:

So, basically, the State's -- proffer of probable cause rests on someone who was a suspect -- was told he was a suspect -- was facing charges at the time and was in custody when he was interviewed -- and who initially fingers a "Fat Cat" as the shooter, who he refuses to really cooperate and identify. Then upon pressing says --yes, Mayo had the gun, after twice saying that Mayo didn't have the gun.

Now -- I know that we don't necessarily spend -- a lot of time on a probable cause hearing on . . . weighing credibility of witnesses. And I'm not doing that. I don't know how . . . Demetrius Bell would testify had he been presented live in court, and whether or not he would be a credible witness. I can't say that because he was not presented to me.

. . . He says Mayo wasn't the shooter, that Mayo didn't have a gun.

But then later changes his story . . . after being pressured, after being told that he is a suspect, after being told that he could be charged with this murder. And he was already charged with drugs. And he doesn't want to have any part of it. That's Demetrius Bell.

On appeal, the State argues it is entitled to reversal because: 1) the judge erred by concluding that probable cause was not established; and 2) the judge impermissibly evaluated the credibility of Demetrius Bell. A.A. argues that probable cause was not established and that the judge applied the proper standard of proof.


A juvenile who is sixteen years of age or older at the time he allegedly committed certain offenses, including murder, will be waived to the Law Division for trial as an adult if there is probable cause to believe the juvenile committed the offense. State v. J.M., 182 N.J. 402, 411-12 (2005) (citing N.J.S.A. 2A:4A-26(a)(2) and (e)). "Probable cause is a well-grounded suspicion or belief that the juvenile committed the alleged crime." Id. at 417 (citation omitted). Probable cause may be established through the use of hearsay testimony alone, State in the Interest of J.L.W., 236 N.J. Super. 336, 344 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991), because a probable cause hearing "does not have the finality of trial," id. at 346, and "need not be based solely on evidence admissible in the courtroom." State in the Interest of A.J., 232 N.J. Super. 274, 286 (App. Div. 1989).

In determining whether probable cause exists, the trial court should not engage in "'the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands.'" J.M., supra, 182 N.J. at 417 (quoting Gerstein v. Pugh, 420 U.S. 103, 122, 95 S. Ct. 854, 867, 43 L. Ed. 2d, 54, 69 (1975)). Moreover, "'credibility determinations [will] seldom [be] crucial in deciding whether the evidence supports a reasonable belief in guilt.'" Ibid. A waiver hearing is not an occasion "for the trial judge to weigh the evidence and determine where the truth of the matter lay." State in the Interest of A.T., 245 N.J. Super. 224, 227-28 (App. Div. 1991). As the Supreme Court observed:

As to probable cause, it must be remembered that the showing need not equal a prima facie case required to sustain a conviction. No more is demanded than a well-grounded suspicion or belief that an offense is taking place and the individual is party to it. [State v. DeSimone, 60 N.J. 319, 322 (1972).]

Although we review a trial court's waiver decision for an abuse of discretion, our scope of review widens when the judge "acts under a misconception of the applicable law." State in the Interest of T.M., 412 N.J. Super. 225, 231 (App. Div. 2010) (internal quotation marks and citation omitted).

We have carefully considered the arguments of the parties in light of the record and applicable law and conclude that the trial court's order of September 1, 2010 cannot be sustained. We agree with the State that the judge's opinion "was flawed" because the judge "impermissibly weighed the evidence and placed a burden on the State greater than probable cause." In particular, we agree the judge erred by applying several factors typically used to discount the credibility of a witness: the fact that Bell was a suspect at the time of the interview; that he was facing charges on an unrelated offense; and that he was initially inconsistent in his sworn statement. See State v. Arthur, 184 N.J. 307, 321 (2005) (observing that a witness's inconsistent statement may serve as a basis for undermining the witness's credibility); State v. Bicanich, 132 N.J. Super. 393, 395-96 (App. Div. 1973) (observing that "[i]nterest, motive and bias are factors which may affect a witness's credibility"), aff'd o.b., 66 N.J. 557 (1975); N.J.R.E. 607 (providing that the credibility of a witness may be impeached by a prior contradictory statement).

Contrary to A.T., supra, 245 N.J. Super. at 227-28, the judge "weigh[ed] the evidence and determine[d] where the truth of the matter lay." The judge incorrectly refused to accept the testimony of Bell because the judge believed Bell had been pressured by law enforcement to cooperate and because Bell's statements about A.A.'s participation in the murder of Perry were inconsistent. As our decision in A.T. makes clear, the judge's role is limited to determining whether the State's proofs satisfied the probable cause standard. That determination must be made without weighing the credibility of the State's proofs. Ibid. We recognize that Bell made inconsistent statements, but in light of A.T. this was not a valid reason to discount Bell's key assertion that he saw A.A. holding a gun and saw a burst of gunfire coming from that gun.

Bell did not testify at the waiver hearing and the judge was not able to assess his demeanor or evaluate why he provided differing accounts to O'Leary. As we explained in A.T., supra, 245 N.J. Super. at 227, the judge was not entitled to resolve the discrepancy in Bell's differing statements. Instead, the judge was required to simply determine the sufficiency of the State's proofs. Ibid. As the record demonstrates, the judge went far afield from a sufficiency analysis, instead making credibility determinations forbidden by A.T., ibid., and by J.M., supra, 182 N.J. at 417.

Perhaps contributing to the judge's discomfort with the State's proofs was the judge's conclusion that the State had presented "double hearsay." This was incorrect, as Bell was an eyewitness and O'Leary was recounting what Bell had told him, which was obviously hearsay, but not double hearsay. Hearsay is admissible in a probable cause determination, and probable cause may be based on hearsay alone. J.L.W., supra, 236 N.J. Super. at 344. The judge also erred by discounting the information in the names database, especially in light of the evidence that Bell signed the photograph of A.A., thereby certifying that A.A. was the person he saw shooting a gun on the night in question.

A further example of the judge's misapplication of the standard of proof applicable to a probable cause determination was the judge's remark that Bell's statement that he saw gunfire erupting from the gun held by A.A. should not be accepted at face value because Bell's statement was uncorroborated by anyone else. The error in such an approach is evident from the Court's observation in J.M., supra, 182 N.J. at 417, that the trial court should not engage in "the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands[.]" (citation omitted).

In sum, we conclude the State's proofs were sufficient, when a proper standard of proof was applied, to have required the judge to resolve the probable cause determination in favor of the State. The State presented proof, through O'Leary's account of Bell's statement, that Bell saw A.A. shooting a gun in Perry's direction. This, standing alone, was sufficient to create a "well-grounded suspicion or belief that the juvenile committed the alleged crime," thereby satisfying the probable cause standard. Ibid.

Reversed and remanded for the entry of an order transferring jurisdiction to the Law Division.

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