NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FJ-04-1311-13.
Warren W. Faulk, Camden County Prosecutor, attorney for appellant State of New Jersey (Jamie Hutchinson, Assistant Prosecutor, of counsel and on the brief).
Law Offices of Edward J. Crisonino, attorney for respondent A.R.
Before Judges Reisner and Yannotti.
By leave granted, the State appeals from a trial court order denying its motion to waive A.R., a juvenile, to adult court pursuant to N.J.S.A. 2A:4A-26. For the reasons that follow, we reverse and remand.
On November 12, 2012, A.R., then age sixteen, and a juvenile co-defendant, S.S., were arrested in Camden after State Troopers observed them engaging in what appeared to be hand-to-hand drug transactions outside an apartment complex. When the Troopers approached and attempted to arrest the two juveniles, S.S. surrendered, while A.R. fled into an apartment inside one of the buildings. He was soon apprehended and, in the apartment, the Troopers found four handguns and forty-six heat-sealed bags of crack cocaine. When the Troopers contacted the apartment's tenant, he denied having given the juveniles permission to enter or use the apartment.
A.R. was charged with fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2). Both juveniles were charged with third-degree possession of crack cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5b(3); four counts of second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; four counts of second-degree possession of a handgun while committing a drug offense, N.J.S.A. 2C:39-4.1a; fourth-degree possession of a defaced handgun, N.J.S.A. 2C:39-3d; and third-degree burglary, N.J.S.A. 2C:18-2.
On February 26, 2013, S.S. accepted a plea bargain which permitted him to be adjudicated in juvenile court. During the plea colloquy, he incriminated A.R. in committing burglary, possessing the crack cocaine with intent to distribute, and knowing that at least one of the guns was in the apartment they were using as a stash house. A.R. rejected the State's plea offer, which would have allowed his charges to be resolved in juvenile court.
Thereafter, also on February 26, 2013, the Prosecutor's Office filed a series of amended charges against A.R. The upgraded charges included four counts of second-degree possession of a weapon for an unlawful purpose during the commission of a burglary or during the commission/in furtherance of the distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:39-4a; and fourth-degree possession of a firearm by a minor, N.J.S.A. 2C:58-6.1b.
On February 27, 2013, the Prosecutor's Office filed a motion to waive A.R.'s case to adult court. The motion was supported by a written statement of reasons, addressing the seven factors set forth in the Attorney General's Juvenile Waiver Guidelines. On March 8, 2013, the Prosecutor's Office filed an amended statement of reasons. Much of the statement was devoted to describing the different sanctions available in the adult justice system as opposed to the juvenile justice system. The statement also discussed the severe problems of drug crime and gun violence in the City of Camden. In particular, the statement recited:
Camden City has a high rate of violent crime and a particularly high rate of violent crime, and crimes involving possession of firearms, committed by juveniles and young adults. In fact, in 2012 Camden County experienced its highest homicide rate in history. As such, there is a real and distinct need for general deterrence of acts of violence in Camden County.
Addressing the need for specific deterrence of A.R., the statement noted that while he had "no prior history within the juvenile justice system, " he was not "amenable to probationary treatment" because of the serious nature of the charges against him. The statement further recited that five days before his arrest on the current charges, A.R. "had been arrested and charged with other drug offenses." Two co-defendants had implicated A.R. in those earlier charges, which included CDS possession with intent to distribute.
The statement reasoned that, due to the prior charges and the fact that A.R. had now been arrested with "four firearms and CDS, " effective deterrence required incarcerating him for a longer period than the juvenile justice system would permit. The statement distinguished S.S.'s situation, because S.S. had no prior arrest history, only entered the stash house once, surrendered immediately when confronted by the Troopers, and "was a relatively minor player with respect to this particular narcotics set." Although he had the "heavy burden" to demonstrate that the State's waiver decision was an abuse of discretion, State in re V.A., 212 N.J. 1, 29 (2012), defendant did not file a written response to the prosecutor's statement of reasons.
At the waiver hearing on March 12, 2013, State Trooper Jones testified that he observed the alleged drug transactions, and saw defendant go in and out of the stash house three or four times. He described defendant's flight and eventual arrest, and the discovery of the crack cocaine and guns in the apartment. Jones explained that when he apprehended defendant in the apartment and "forced [him] down to the ground, " he saw a handgun lying on the carpet four or five feet from defendant.
In arguing against the waiver motion, defense counsel contended that the decision to seek waiver was based solely on A.R.'s refusal to accept a plea bargain. The prosecutor explained that her office routinely sought either waiver or a sentence to "Jamesburg" in any case involving weapons. She stated that in this case, the two juveniles were treated differently for several reasons. First, S.S. appeared to be less culpable in the drug activity. He also surrendered immediately, and he cooperated with the prosecution by giving a statement incriminating A.R. The prosecutor further stated that A.R. had a prior drug arrest. However, in explaining why S.S.'s case was treated differently, she also noted that S.S. accepted a plea agreement, while A.R. did not.
In an oral opinion issued immediately after the hearing, the judge found probable cause to charge defendant with the CDS and weapons offenses underlying the waiver motion. However, he concluded that it was an abuse of discretion for the prosecutor to seek to waive A.R.'s case to adult court based on his refusal to accept a plea deal, when, had he accepted the deal, his case would have remained in juvenile court.
The judge amplified his reasoning in a written decision issued April 1, 2013. He rejected the State's explanation that it had "no other choice but to seek waiver" when A.R. refused to accept a plea offer. He reasoned that the State "could bring the juvenile to trial in the Family Part." He also stated that the State's reason for seeking waiver was
[a]rbitrary and amounts to an abuse of discretion because the juvenile's decision to exercise his constitutional right to a trial (or even his decision not to accept the State's plea offer) are not delineated factors to be considered under the Guidelines. The prosecutor acted arbitrarily because it considered information outside the bounds set by the Guidelines when deciding to seek waiver.
. . . Although the State submitted a Statement of Reasons for waiver, the prosecutor stated multiple times during the hearing on March 12, 2013, that the reason for the waiver motion was the juvenile's decision not to accept the State's plea deal. . . . It is an affront to fair play and our system of justice to use waiver as a bargaining chip during plea negotiations . . . .
The judge also considered the apparent contradiction between the State's initial willingness to offer a plea deal that would allow a juvenile court disposition, and its later decision that deterrence required A.R.'s lengthy incarceration. He likewise reasoned that A.R.'s co-defendant was being treated more favorably, in avoiding waiver, only because S.S. accepted a plea ...