On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FJ-12-1086-09; FJ-12-1085-09; FJ-12-1088-09 and FJ-12-1125-09. Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant State of New Jersey in A-2564-09 and A-2566-09 (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the briefs in all four appeals.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2011 in A-2563-09 and A-2565-09 - Argued March 8, 2011 in A-2564 and A-2566-09 - Decided Before Judges Wefing, Payne and Koblitz.
The State filed complaints against four juveniles, alleging that each committed acts that, if committed by an adult, would constitute the following offenses: attempted murder, N.J.S.A. 2C:5-1, 11-3a(1); conspiracy to commit murder, N.J.S.A. 2C:5-2a(1), 11-3a(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5c; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; aggravated assault, N.J.S.A. 2C:12-1b(1); conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2a(1), 12-1b(1); and armed riot, N.J.S.A. 2C:33-1a(3). Thereafter, the State filed timely applications under Rule 5:22-2 to transfer jurisdiction to the Superior Court, Law Division. The trial judge denied these applications, and we granted the State's motions for leave to appeal from those four orders. Because these appeals all arise out of the same underlying incident and present the same legal questions, we consolidate them for purposes of this opinion. After reviewing the record before us in light of the contentions of the parties, we reverse and remand for further proceedings.
One witness testified at the waiver hearing, Detective Richard Belotti of the Sayreville Police Department. His testimony was based upon a statement given by K.H., another involved juvenile, a short time after the incident that led to the charges. The juveniles did not call any witnesses.
The incident in question occurred shortly after midnight on Friday, October 24, 2008, but had its genesis in a high school football game that had taken place several weeks earlier. According to Belotti, there was an altercation following that football game between two groups of young men, one of which included these defendants. On the evening of Thursday, October 23, after K.H. finished work, he picked up his friends, A.M.,
L.L., C.S., and J.M.; and he drove them to the South Amboy Municipal Court where they waited for another of their friends, Shermir Greene.*fn1 While they were waiting, a telephone call was received, evidently extending an invitation to continue the fight that had taken place at the football game. When Greene came out, he also got into K.H.'s car, and K.H. drove the group to a strip mall to wait for members of the second group to finish work so that the two groups could resume their combat.
After waiting a period of time, a gold-colored Camry pulled into the parking lot. It pulled near K.H.'s car and three young men got out--Michael Caesar, Taquan Chevoe, and Andrew Cannon. According to the record, Caesar and Cannon were nineteen while Chevoe's age is not specified. K.H.'s group decided to withdraw when they saw that one of the three was carrying a baseball bat. K.H. drove off, and the three got back into the Camry and followed K.H. with Caesar at the wheel. The two groups yelled back and forth at each other and eventually the Camry gave up the chase. The record indicates that telephone contact continued, however.
K.H. drove to an apartment complex known as Lakeview Apartments, and A.M., L.L. and Greene got out of K.H.'s car and went into an apartment. J.M. and C.S. remained in the back seat of K.H.'s car. After a short period of time, the three came out of the apartment with another, unidentified person. L.L. got into the front seat of K.H.'s car, and A.M. and Greene got into another car driven by the unidentified person. The two cars drove off and headed toward another apartment complex, Skytop Gardens. The record does not make clear how or why this site was selected, but the two groups had arranged to meet up at the complex.
The two groups met in a parking lot on the apartment premises and drew close to one another. Caesar, Cannon and Chevoe got out of the Camry, and at least one of the three was holding a baseball bat. In his statement, K.H. said he started to put his car in reverse when he heard a gunshot. He looked and saw that his front seat passenger, L.L., was holding a shotgun. In his statement, K.H. described the weapon as being two and one-half feet in length. K.H. immediately drove off. After some distance, C.S. got out of the car and hid the shotgun in some bushes. The next day the group took the car to a carwash, but a subsequent investigation turned up nitrate on the passenger side door, indicative of gunpowder. Although the police went to the site later identified by K.H. as the place where the shotgun had been hidden, it was never recovered.
Cannon and Caesar were both wounded by the shotgun blast, Caesar in the chest, Cannon in the forehead. Detective Belotti responded to the hospital where they were being treated for their wounds. He did not find them particularly forthcoming with respect to how they were wounded. He then examined the car Caesar was driving. The driver's side window and frontwindshield were shattered and seven pellets of birdshot were recovered.
Belotti later spoke with K.H.'s father, who told him he was worried about his son, that he understood he may have been involved in a shooting incident and that K.H. had not reported to school that day. The next day, K.H.'s parents brought him to police headquarters, and K.H. provided the statement that was the basis of the detective's testimony.
At the conclusion of the hearing, the attorneys for the juveniles argued that the State had failed to demonstrate probable cause because the detective's testimony consisted of stating what he had learned from K.H., and they had not had the opportunity to cross-examine K.H. The State contended that assertion would only be material if it had to present its case beyond a reasonable doubt. It argued that it was relying upon the principle ...