Opinion
DOCKET NO. A-1502-10T2
07-26-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. DUVALL RICKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-08-0771.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Duvall Ricks appeals from the June 25, 2008 order of the Criminal Part granting the State's motion to waive defendant into adult criminal court, concluding that the State demonstrated probable cause under N.J.S.A. 2A:4A-26(a)(2). After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.
I.
We briefly summarize the relevant procedural history and the facts based on the record before us. On August 23, 2007, a juvenile delinquency complaint was filed against defendant in the Family Part charging him with offenses that if committed by an adult would constitute second-degree aggravated assault, N.J.S.A. 2C:12-1(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The State filed a timely motion seeking waiver of jurisdiction by the Family Part to the Criminal Part.
On November 30, 2007, a Family Part judge held a waiver hearing to determine whether to grant the State's motion. The State presented no testimony at the hearing. Instead, it offered a series of documents, as to which defense counsel informed the judge he had no objection. The following documents were admitted by the judge: an affidavit of probable cause from Detective Ryan Woodhead of the Trenton Police Division (TPD); a written, executed, witnessed statement from the victim, Javar Kidd, identifying defendant as the person who shot him; the juvenile-delinquency complaint; an investigation report of Officer Eliezer Ramos of the TPD; and a supplemental report of Officer Victor Vega of the TPD. Woodhead's affidavit consisted of hearsay primarily based on the statement of the victim. That statement indicated that although he did not know the shooter, he knew his accomplice and had seen them together about twelve times in the two months prior to the incident. Kidd indicated that he identified a photograph of the shooter from an array shown to him by a detective. The photograph was of defendant. Kidd stated that defendant shot him six times.
The parties agreed that defendant was seventeen years old on the date of the incident and that at least two of the charges were Chart 1 offenses. After the Family Part judge admitted the documents into evidence, the State rested. The judge then asked defense counsel "is there anything that the defense wishes to produce?" Counsel requested a copy of the photograph selected by the victim, which the State agreed to produce. The judge agreed to keep the record open for a week in order to have the photograph produced for defense counsel. He then asked defense counsel if he needed "anything else beyond that" and counsel said "no." Finally, the judge asked defense counsel if any testimony would be offered and counsel responded "none." On June 26, 2008, the judge ordered defendant waived to the Criminal Part, and accompanied the order with a written opinion.
Thereafter, defendant was charged in an indictment with first-degree attempt to commit murder, N.J.S.A. 2C:11-3, 2C:5-1(a), and 2C:2-6 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and 2C:2-6 (Count Two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) and 2C:2-6 (Count Three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) and 2C:2-6 (Count Four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and 2C:2-6 (Count Five); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b) and 2C:2-6 (Count Six).
On March 1, 2010, after providing a factual basis for his plea before the Criminal Part judge, defendant entered a negotiated plea of guilty to first-degree attempted murder of Javar Kidd. Defendant's written plea form stated that he was waiving his right to appeal the denial of all pretrial motions, except "juvenile waiver." Defendant was sentenced pursuant to the negotiated plea to a ten-year term of incarceration, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, as well as a five-year term of parole supervision. Appropriate fines and penalties were also imposed.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE COURT REVERSIBLY ERRED IN WAIVING THE DEFENDANT TO THE ADULT COURT FOR TRIAL BECAUSE THE WAIVER PROCEEDING VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW (Not Raised Below).
POINT II
THE TRIAL COURT ERRED IN FINDING PROBABLE CAUSE TO WAIVE DEFENDANT TO THE CRIMINAL (Not Raised Below).
POINT III
THE PROSECUTOR'S DECISION TO SEEK WAIVER OF D.R. TO THE CRIMINAL DIVISION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION (Not Raised Below).
POINT IV
D.R. WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL (Not Raised Below).
II.
The record before us with regard to defendant's waiver hearing consists of a transcript of the hearing, the documents presented by the State in support of its waiver application that were received into evidence at that hearing, and the Family Part judge's written opinion setting forth his findings and conclusions that led him to grant the waiver application.
Before addressing the points raised by defendant, we note the statutory framework that governs our analysis. N.J.S.A. 2A:4A-24 confers jurisdiction over offenses committed by juveniles to the Family Part. N.J.S.A. 2A:4A-26(a) vests the prosecutor with discretion to seek a waiver of this jurisdiction for certain specified offenses committed by a juvenile fourteen years of age or older. The offenses include second-degree aggravated assault, and possession of a weapon for an unlawful purpose. N.J.S.A. 2A:4A-26(a)(2)(a),(i). These offenses are referred to as "Chart 1" offenses, and the offenses with which defendant was charged include Chart 1 offenses. A motion seeking such waiver must be filed within thirty days of the filing of the juvenile complaint. N.J.S.A. 2A:4A-26(d). The prosecutor's motion in this matter was timely.
In the case of a juvenile sixteen years or older charged with a Chart 1 offense, the only issue to be determined at the waiver hearing is whether there is probable cause to believe the juvenile committed the delinquent act. "On a finding of probable cause for any of these enumerated offenses, no additional showing is required for waiver to occur. Jurisdiction of the case shall be transferred immediately." R. 5:22-2(c)(3). As our Supreme Court has noted, "[s]imply stated, when a sixteen year old or above is charged with an enumerated offense, the prosecutor need only establish probable cause for the court to waive the juvenile to adult court." State v. J.M., 182 N.J. 402, 412 (2005). For Family Part judges reviewing waiver applications with respect to these older juveniles charged with serious offenses, the probable cause finding is a pivotal step in the waiver application.
The Court recently reiterated that
The juvenile waiver hearing is a critically important action determining vitally important statutory rights of the juvenile charged with a criminal offense. [O]nce waiver occurs, the juvenile loses all the protective and rehabilitative possibilities available to the Family Part. Waiving a juvenile to adult court is thus the single most serious act that the juvenile court can perform.We consider the Family Part judge's decision under the standard of appellate review of juvenile waiver determinations set forth in State v. R.G.D., 108 N.J. 1, 15 (1987), in which the Court required that findings of fact be grounded in competent, reasonably credible evidence, and correct legal principles be applied.
[In re State ex rel. A.D., 212 N.J. 200, 215 (2012) (internal quotation marks and citations omitted).]
In A.D. the Court instructed that the trial court's task in a probable cause waiver hearing under N.J.S.A. 2A:4A-26, is a similar inquiry to the standard governing a grand jury's decision whether to indict, which has also been characterized as one of probable cause. Supra, 212 N.J. at 218. However, the waiver determination is subject to procedural protections; the juvenile is permitted to present evidence and testify on his or her own behalf. J.M., supra, 182 N.J. at 416; see also R. 5:22-2(b) (providing that court shall receive evidence offered by juvenile and permit cross-examination at probable cause hearings).
Defendant argues that he was deprived of due process of law because no witness testified on behalf of the State, therefore he could not challenge the evidence, and because the Family Part judge did not expressly advise him of his right to testify and to present evidence. On appeal, defendant posits a possible reason for defense counsel not objecting to the admission of the documentary evidence, that the parties stipulated to the facts contained therein. The record does not support that defendant agreed with Kidd's statement that defendant shot him six times. The record is clear that the State moved the information into evidence, did not represent that the facts were the subject of a stipulation, and defense counsel could have objected to the admission of the documentary evidence. We express no opinion as to the success of any such objection had one been made. We do note that the information contained in the documentary evidence, if true, overwhelmingly demonstrated probable cause that defendant shot the victim.
We addressed similar contentions in State in Interest of B.G., 247 N.J. Super. 403 (App. Div. 1991), where appellants argued that the nature of the transfer hearing deprived them of due process of law in two respects: (1) admission in evidence of statements obtained by police without Miranda warnings, and (2) infringement of their right of confrontation because of their inability to cross-examine the declarants whose statements inculpated the other juveniles. As we stated, "[p]robable cause may be established on the basis of hearsay evidence alone, because a probable cause hearing 'does not have the finality of trial,' . . . and 'need not be based solely on evidence admissible in the courtroom.'" Id. at 409 (citation omitted).
Here, given the scope of the documentary evidence and strength of the State's case, defense counsel could have been exercising professional judgment by not contesting the waiver proceedings but rather focusing on negotiating the best result possible for his client. The motion judge offered defense counsel the opportunity to contest the documentary evidence, to produce evidence, and to offer testimony, all of which were expressly declined. Although we would prefer a more complete explanation of defendant's rights by the Family Part judge, as well as a colloquy with defendant concerning his understanding and agreement to not avail himself of any of those rights, the proceeding met basic constitutional due process of law requirements.
Defendant's next contends that the prosecutor's decision to seek a waiver constituted a patent and gross abuse of discretion. See, e.g., State ex rel. D.Y., 398 N.J. Super. 128, 132 (App. Div. 2008) (applying patent and gross abuse of discretion standard of review to prosecutor's waiver motion); State v. J.M., 364 N.J. Super. 486, 491 (App. Div. 2003) (stating that patent and gross abuse of discretion standard applied), aff'd in part & remanded in part, 182 N.J. 402 (2005). The Court recently held that the appropriate standard for a trial court to apply in reviewing prosecutorial decisions to seek waiver under N.J.S.A. 2A:4A-26 is abuse of discretion, not patent and gross abuse of discretion. State in the Interest of V.A., 212 N.J. 1, 24-25 (2012).
While a prosecutor's decision to seek waiver of such juveniles is discretionary, the Legislature directed the Attorney General to issue guidelines for prosecutors to promote uniformity, thereby preventing arbitrary exercise of that discretionary authority. N.J.S.A. 2A:4A-26(f); see also J.M., supra, 182 N.J. at 419 (observing that guidelines advance legislative goal of uniformity through avoidance of arbitrariness and abuse of discretion). Guidelines issued by the Attorney General identify the factors that prosecutors are to address in a statement of reasons to support such waiver decisions, see Attorney General's Juvenile Waiver Guidelines (Mar. 14, 2000) (Guidelines), and the Court requires submission of the statement of reasons with a motion seeking waiver, J.M., supra, 182 N.J. at 419. Here, the prosecutor submitted a statement of reasons in compliance with J.M.
The Guidelines direct prosecutors to take specified factors into account when determining whether to file a juvenile waiver motion, and identify what facts the prosecutor must consider as to each, stating as follows:
1. Nature of the Offense
The prosecutor shall consider the nature of the offense, including:
1. The death of a victim during the course of the offense;
2. The nature and circumstances of the act;
3. The role of the juvenile therein;
4. The fact that there was grave and serious harm inflicted on the victim or the community;
5. The potential for grave and serious harm to the victim or the community; and
6. The use or possession of a weapon during the course of the offense.
2. Deterrence
The prosecutor shall consider the need for deterring the juvenile and others from violating the law.
3. Effect on Co-Defendants
The prosecutor shall consider the effect of waiver on the prosecution of any co-defendants, juvenile or adult, so as to avoid an injustice if similarly situated culpable individuals are tried in separate trials.
4. Maximum Sentence and Length of Time Served
The prosecutor shall consider and compare the maximum sentences that may be imposed under the juvenile or criminal codes and the amount of time likely to be served. Furthermore, the prosecutor may consider the likely effect on the amount of time served by the juvenile of enhanced sentencing provisions, such as the extended term provisions of the juvenile code contained in N.J.S.A. 2A:4A-44, the No Early Release Act, the Graves Act or any other mandatory or enhanced dispositions or sentences.
5. Prior Record
The prosecutor shall consider the juvenile's prior record, including:
1. The seriousness of any acts for which the juvenile has been adjudicated delinquent;
2. Any offenses for which the juvenile has been waived and convicted as an adult;
3. Any involvement of the juvenile with a gang; and
4. The history of the use of physical violence toward others and the extent to which the juvenile may present a substantial danger to others.
6. Trial Considerations
The prosecutor shall consider the likelihood of conviction and the potential need for a grand jury investigation.
7. Victim's Input
If there is an identifiable victim, the prosecutor should confer with the victim or victim's family regarding the victim's input on the waiver decision. However, the waiver decision rests with the prosecutor, not the victim.
[Guidelines, supra, at 5-6.]
The prosecutor's written statement of reasons in support of the waiver identifies factors one, two, four, five, six, and seven of the Guidelines. In the statement, the prosecutor asserts:
The potential for serious injury in this case was substantial given the fact that defendant brandished a gun.Defendant argues that the statement of reasons lacks the necessary specificity to fairly demonstrate the prosecutor's reasons for seeking the waiver, and that the reasons offered did no more than parrot in purely conclusory terms the Guidelines. We disagree.
The most that defendant would face in Family Court would be a 4-year commitment to the Youth Detention Facility in Jamesburg, if found delinquent of the offense of robbery or possession of a weapon for an unlawful purpose. However, if prosecuted in the Law Division Criminal Part, the defendant would be subject to 10-20 years incarceration. Furthermore, this is the kind of conduct that must be deterred.
The officer, as well as the victim, are the witnesses in this case. Assuming that they would testify credibly, and in accordance with the police reports in this case the case would be a fairly strong case to present to a jury and could likely be resolved by way of a plea if sent to the criminal division. It is not clear from the reporting whether the gun was recovered.
We note that the record reflects meetings with the victim and his mother, but does not indicate input by them on the waiver decision. Additionally, although the record reflects defendant's brother was present at the time of the shooting and the fact that at the plea hearing defendant agreed to cooperate in the prosecution of his brother, the statement of reasons does not address the effect of the waiver on a co-defendant. The statement of reasons does indicate that defendant's brother made a statement to the police that he was present and witnessed the defendant shoot the victim. The State argues that defendant acted alone in the shooting. Although the statement of reasons could certainly have been more robust, it demonstrated in sufficient terms the reasons, consistent with the Guidelines, for the waiver request.
Therefore, given that defendant's due process rights were observed at the waiver hearing and the prosecutor's statements of reasons elucidated sufficiently the basis for the waiver request, we need not address whether to apply the abuse of discretion standard or the patent and gross abuse standard since the waiver proceedings were not infirm under either standard.
Finally, we find defendant's contention of denial of his speedy trial rights to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Additionally, given that no record with respect to this issue was furnished, it would be inappropriate for us to attempt to decide the alleged speedy trial issue.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16. L. Ed. 2d 694 (1966).