NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
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.1 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 front windshield 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 of constructive possession of the shotgun and that it had more than met the applicable burden of probable cause.
The trial court later put its oral decision on the record. It found that the State had failed to establish probable cause for a charge of attempted murder or conspiracy to commit murder. Despite the fact that it acknowledged that these juveniles brought a firearm to the scene, it described them as victims and Caesar and his companions as the aggressors. It also found that the most the State had established was probable cause for a charge of armed riot and third-degree aggravated assault. It therefore denied the State's waiver application. We granted the State's motion for leave to appeal from the orders entered by the trial court.
We recently had occasion to review the underlying legal principles governing a trial court's consideration of an application to transfer jurisdiction of a juvenile to the Law Division under Rule 5:22-2. State In the Interest of A.D., ___ N.J. Super. ___ (App. Div. 2011). There is no need to repeat that discussion here; we incorporate it as if set forth at length. In A.D., we noted that if the State establishes probable cause to believe that a juvenile more than sixteen years of age has committed what is referred to as Chart 1 offenses, waiver to the Law Division should follow as a matter of course. Rule 5:22-2(c)(3) provides that in such an instance, "no additional showing is required for waiver to occur. Jurisdiction of the case shall be transferred immediately." In the case of probable cause to believe that a juvenile less than sixteen years of age has committed a Chart 1 offense, "there is a rebuttable presumption that waiver will occur. The juvenile can rebut this presumption only by demonstrating that the probability of his or her rehabilitation prior to the age of nineteen by use of the procedures, services or facilities available to the court substantially outweigh the reasons for waiver." R. 5:22-2(c)(2).
After this court granted the State's motion for leave to appeal, the trial court issued a supplemental written opinion in which it restated the same disagreement with the legal principles governing waiver applications that we noted the court had expressed in A.D., supra, ___ N.J. Super. at ___.2 In the course of this written opinion, the trial court noted that "unfortunately, sporting events are often marred by unruly fans, especially in the context of teenage juveniles. Traditionally and commonly these events are referred to as riots. The Court finds this is what occurred on October 24, 2008." This, however, overlooks the fact that the incident of October 24, 2008, occurred approximately two weeks after the football game at which combat was initiated. The trial court also appeared to minimize the seriousness of what occurred on the basis that the shotgun was loaded with birdshot. In our judgment, this is a matter to be argued as a defense at trial, not a grounds upon which to deny waiver.
Further, the trial court viewed Caesar, Chevoe and Cannon as the aggressors and these juveniles as the victims. Again, we consider that an issue of defense to be argued at trial and not a basis to defeat probable cause.
In the course of this supplemental opinion, the trial court also expressed concerns that the present structure governing waiver applications, which vests significant power and discretion in the Prosecutor, violates the fundamental concept of separation of powers. It noted the serious lifelong consequences that attach to a conviction in the Law Division, consequences that may be mitigated or avoided if the matter is handled in the Family Part. It expressed the view that the 2000 amendments to the waiver statute, court rule, and Attorney General guidelines had achieved efficiency "on the backs of the poor and disadvantaged youths."
While we recognize the depth of the commitment expressed by the trial court in its handling of these proceedings, we are constrained to conclude, as we were in A.D., supra, that the trial court permitted its personal views to affect its legal analysis, and we thus reverse the orders entered by the trial court.
L.L., accompanied by A.M., entered the apartment at Lakeside Gardens, and returned with a shotgun and got back into the car. The trial court found that the remaining juveniles shared possession of the weapon. That finding is entirely reasonable in light of the size of the weapon. Clearly, L.L. would not have been able to enter the car and sit with a two-and-one-half foot gun in his pants, even crediting K.H.'s statement that L.L. was wearing baggy pants. In our judgment, that is sufficient to support a finding of probable cause on a charge of attempted murder and conspiracy to commit murder, both Chart 1 offenses. To establish the existence of probable cause, the State was not required to present a prima facie case. State, ex rel. T.M., 412 N.J.Super. 225, 230 (App. Div. 2010). Rather, it needed only to establish "a well-grounded suspicion or belief that the juvenile committed the alleged crimes." State v. J.M., 182 N.J. 402, 417 (2005). The State, moreover, was entitled to the benefit of every reasonable inference. State In the Interest of J.R., 234 N.J.Super. 388, 395 (Ch. Div. 1980).
Here, by contrast, the trial court accorded the juveniles the benefit of those inferences, not the State. They will be entitled to such benefit if their matters proceed to trial. They were not so entitled at this juncture to defeat probable cause.
The trial court should have complied with Rule 5:22-2(c)(3) with respect to A.M., J.M. and C.S. and granted the State's waiver application. L.L. was less than sixteen years of age at the time of the shooting, and the issue of whether his matter should be transferred to the Law Division is not resolved by a finding of probable cause. He is, as the State recognizes, entitled to a hearing under Rule 5:22-2(c)(2) to determine whether the probability of his rehabilitation before attaining the age of nineteen outweighs the reasons for waiver. In light of the strong views expressed by the trial court with respect to waiver applications, we direct that this hearing under Rule 5:22-2(c)(2) be conducted by a different judge.
Reversed and remanded for further proceedings in accordance with this opinion.
