August 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 05-11-0878.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2012
Before Judges Payne and Reisner.
J.A., who at the age of fifteen, committed an armed robbery on three Hispanic males, shooting one to death, appeals the waiver of juvenile jurisdiction for purposes of trial and the transfer of his case to the Law Division. Once there, he pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-3(a)(1), and is presently serving an eighteen-year sentence, subject to the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following issues:
SINCE THE TRIAL COURT FOUND THAT THE OPPOSING EXPERT REPORTS REGARDING PROBABILITY OF REHABILITATION WERE "OFFSETTING" WITHOUT ANY TESTIMONY AND ERRONEOUSLY TOOK INTO ACCOUNT THE GRAVITY OF THE CHARGED CONDUCT, THE COURT'S CONCLUSION THAT DEFENDANT HAD FAILED TO SHOW PROBABILITY OF REHABILITATION WAS ERRONEOUS AND THE MATTER SHOULD BE REMANDED FOR A PROPER DETERMINATION. (Not Raised Below.) POINT II
THE IMPOSITION OF AN 18-YEAR TERM OF IMPRISONMENT FOR AGGRAVATED MANSLAUGHTER, SUBJECT TO AN 85% NERA PAROLE BAR WAS EXCESSIVE.
The record contains evidence that, on November 15, 2003, defendant recruited two friends to join him in committing armed robbery. After targeting three Hispanic males, defendant attempted to rob one at gunpoint. When one of the victim's companions threatened defendant either with a brick or a block of concrete, defendant shot him in the chest and in the back, causing his death.
The three perpetrators fled. However all, accompanied by relatives, turned themselves in to the police on the following day and gave confessions.
While in custody, defendant was examined by defense psychologist Maureen R. Santina, Ph.D., who opined that he could be rehabilitated by the age of nineteen, and by a psychiatrist retained by the State, Charles F. Martinson, M.D., who reached the opposite conclusion. Both agreed that defendant had endured a traumatic childhood with considerable abuse and abandonment and multiple changes in custody, and that his present behavior had its origins in the abuse that he had suffered. They differed in their determination whether defendant's consequent behavior was amenable to rehabilitation or was likely to persist.
Defendant was charged as a juvenile with acts of delinquency that, had he been an adult, would have constituted the crimes of first-degree murder, N.J.S.A. 2C:11-3a (Count 1); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count 2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count 3); first-degree armed robbery, N.J.S.A. 2C:15-1c (Counts 4, 5 and 8); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts 6, 7, and 9).
Following a probable cause hearing held on January 21, 2004 and a waiver hearing held on July 23, 2004, Judge F. Lee Forrester granted the State's motion for involuntary waiver of jurisdiction by the Chancery Division, Family Part to the Law Division, Criminal Part pursuant to N.J.S.A. 2A:4A-26 and Rule 5:22-2 in an order dated January 4, 2005.
In an accompanying written opinion, Judge Forrester noted that all the offenses for which J.A. was charged were Chart 1 offenses, covered by N.J.S.A. 2A:4A-26(a)(2)(i) and Rule 5:22(b)(2), with the exception of the charge of unlawful possession of a weapon. If, in Phase I, the State established probable cause for any of the Chart 1 counts, there would be a rebuttable presumption that waiver would occur. The burden would then shift to defendant in Phase II to rebut this presumption of waiver by showing that the "probability of his rehabilitation by use of the procedures, services and facilities available to the court prior to [defendant] reaching the age of 19 substantially outweigh[ed] the reasons for the waiver[.]"
N.J.S.A. 2C:4A-26e. If defendant did so, waiver would not be granted. Ibid.
The judge then noted that, in a Phase I hearing, the State had established by stipulation that defendant was fifteen years of age at the time of the shooting, and had established probable cause for the charges of armed robbery, felony murder and murder against defendant through the testimony of Detective James E. McMillan, Jr. and exhibits introduced into evidence at that time. Thus, the requirements of N.J.S.A. 2A:4A-26a(1) and (2) were established. The judge found it unnecessary to address the remaining charges in the waiver context.
Turning to the second phase, the judge noted that, in a Phase II hearing, defendant could rebut the presumption of waiver, created after the finding of probable cause, through a two-step process. "As a threshold, the juvenile must establish the probability of rehabilitation prior [to] the age of nineteen
(19) using the resources available to the court. Next, and only if such probability of rehabilitation has been shown, the court will balance the need for deterrence against the prospects of rehabilitation." The judge continued: "In order to prevent waiver in these circumstances, the probability of rehabilitation must substantially outweigh the reasons for waiver."
In addressing the probability of rehabilitation, the judge considered the conflicting expert reports of Dr. Santina and Dr. Martinson on that issue, and stated:
Both experts submitted reports which were somewhat similar regarding the incident in question, family history and other observations. However, their respective conclusions are in direct opposition. This court recognizes that both Dr. Santina and Dr. Martinson have extensive clinical experience with children and adolescents.
The court thus finds neither opinion to be more persuasive than the other. Taking into account the gravity of the charged conduct and the offsetting expert evidence, this court concludes that J.A. has failed to meet his burden of showing a probability of rehabilitation before his nineteenth (19th) birthday.
The judge then stated that even if he "were persuaded that Dr. Santina's opinion was correct and there was a probability of rehabilitation prior to age nineteen (19), waiver would still be proper because that probability would not substantially outweigh the reasons for waiver[,]" primarily deterrence, under factors set out in State In the Interest of C.A.H. and B.A.R., 89 N.J. 326, 345 (1982). He enumerated the factors as "(1) the gravity of the offense(s); (2) deliberateness of conduct; (3) the age of the juvenile offender; (4) a past record of infractions; and (5) a background of delinquency and exposure to the juvenile justice system."
In considering those factors in light of defendant's conduct, the judge noted that defendant was charged with very serious crimes, weighing heavily toward waiver. With respect to the second factor, the judge noted defendant's claim of self- defense in the shooting, but he noted as well that defendant had intentionally initiated the robbery by recruiting his two companions to assist in it. Further, defendant possessed a gun, and he extracted money from the victims through intimidation. Thus, the second factor also favored waiver. Defendant's age, the judge determined, was a neutral factor. And his record of two prior infractions resulting in guilty pleas was found to weigh "somewhat" in favor of waiver.
Additionally, the judge considered the concept of general and personal deterrence as discussed in our decisions in State v. Onque, 290 N.J. Super. 578 (App. Div.), certif. denied, 146 N.J. 497 (1996), and State in the Interest of D.W., 317 N.J. Super. 138 (App. Div. 1998), concluding that, because the present case more closely resembled Onque, particularly as the result of the presence of felony murder charges, the concepts of general deterrence expressed in Onque were applicable in the present circumstance. Moreover, the judge held:
The protection of the public also supports a decision to waive J.A. to adult court. The disparity in adult and juvenile sentences for felony murder is significant. As an adult, the minimum sentence is thirty (30) years. N.J.S.A. 2C:11-3b(1).
Alternately, if tried as a juvenile, J.A.'s maximum sentence would be ten years, N.J.S.A. 2A:4A-44d(1)(b).
In conclusion, the judge held: the gravity of the offenses, the age of the juvenile, the deliberateness of the conduct and the protection of the public all favor waiver. In the aggregate, these factors tilt the evidentiary axis toward the need for deterrence and waiver. Given this tilt, the court finds that the defense has failed to show that the prospects of rehabilitation substantially outweigh the reasons for waiver.
As stated, following waiver, defendant pled guilty to an accusation charging aggravated manslaughter in accordance with a plea offer in which the State agreed to recommend a sentence of twenty years, subject to NERA. The judge imposed a lesser sentence of eighteen years, subject to NERA, upon a finding of aggravating factor 3 (the risk of reoffense) and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3) and (9). The judge also considered defendant's youth, his troubled up-bringing, and the effect of the substantial parole ineligibility period of NERA.
This appeal followed.
On appeal, defendant claims he was denied due process as the result of Judge Forrester's determination not to take testimony from the two experts, but instead to rely on their reports, thus depriving defendant of the opportunity to conduct cross-examination. Because of the passage of time, the transcripts of the Family Part proceedings and the Family Part file in the matter had been destroyed by the time of the present appeal. No one appears to have a clear recollection of what occurred.
Nonetheless, the State notes that a hearing can be waived, and suggests that it was in this case. The judge's January 4, 2005 opinion and the comments of counsel at the December 13, 2010 hearing to reconstruct the record appear to confirm that to have been the case. That being so, any error appears to have been invited. State v. Jenkins, 178 N.J. 347, 358 (2004). We note in that regard that defendant has offered no evidence to dispute the State's position.
Moreover, we note that, after finding evidence with respect to the probability of defendant's rehabilitation by the age of nineteen to have been in equipoise, Judge Forrester proceeded to analyze the matter as if the probability of that rehabilitation had been demonstrated. In these circumstances, we find no prejudice in the judge's failure to conduct a testimonial hearing on the waiver issue.
Insofar as the merits are concerned, we affirm the waiver decision of the Family Part, substantially on the basis of Judge Forrester's comprehensive January 4, 2005 opinion.
Defendant also claims that his sentence was excessive, arguing that the judge should have given more consideration to the circumstances of his childhood. However, the sentence imposed was two years less than that set forth in the plea agreement, and defendant's dysfunctional up-bringing constituted a mitigating factor in the judge's sentencing decision. As a consequence, we find no abuse of the judge's discretion in imposing the sentence that she did. State v. Bieniek, 200 N.J. 601, 607-08 (2010).
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