In re State in Interest of E.S., DOCKET NO. A-3559-20

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtSABATINO, P.J.A.D.
Citation268 A.3d 363,470 N.J.Super. 9
Docket NumberDOCKET NO. A-3559-20
Decision Date13 December 2021
Parties STATE IN the INTEREST OF E.S., a juvenile.

470 N.J.Super. 9
268 A.3d 363

STATE IN the INTEREST OF E.S., a juvenile.

DOCKET NO. A-3559-20

Superior Court of New Jersey, Appellate Division.

Argued October 25, 2021
Decided December 13, 2021


Michael Denny, Assistant Deputy Public Defender argued the cause for appellant E.S. (Joseph E. Krakora, Public Defender, attorney; Michael Denny, of counsel and on the brief).

Milton S. Leibowitz, Assistant Prosecutor, argued the cause for respondent State of New Jersey (William A. Daniel, Prosecutor of Union County, attorney; Milton S. Leibowitz, of counsel and on the briefs).

Elana B. Wilf argued the cause for amicus curiae Rutgers Criminal and Youth Justice Clinic and the National Juvenile Defender Center (Rutgers Criminal and Youth Justice Clinic and National Juvenile Defender Center, attorneys; Elana B. Wilf, of counsel and on the brief; Laura Cohen and Kristina Kersey, on the brief).

Before Judges Sabatino, Mayer and Natali.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This interlocutory appeal presents an unsettled question concerning the fair and appropriate sequence of proceedings in the prosecution of a juvenile offender who the State wishes to waive to adult court pursuant to N.J.S.A. 2A:4A-26.1. The question arises in a context where the juvenile moves to suppress evidence that the State will rely upon at the waiver hearing and also possibly seek to admit at an eventual trial.

Should the suppression hearing be conducted first by a judge in the Family Part before the waiver hearing? Or should the waiver hearing take precedence, and, if the juvenile is waived, the suppression hearing then be conducted by a judge in the Criminal Part? The juvenile, joined by amici, argues the suppression hearing should take place first, while the State argues the waiver hearing should occur first.

Responding to the trial court's observation of the need for guidance in the absence of a Court Rule or precedent on point, we hold the Family Part has the discretion to determine the optimal sequence of proceedings, depending upon the circumstances presented in a particular case. In exercising that discretion, the trial court should apply a general preference to have the suppression hearing conducted first in the Family Part. As we explain in this opinion, however, that preference may be outweighed by other considerations, such as whether an adult alleged co-perpetrator

268 A.3d 366

or an already-waived juvenile co-perpetrator has filed a cognate suppression motion in the Criminal Part. Thus, unless a future Court Rule prescribes a different approach, the sequencing decision

is best handled in the trial court in a case-by-case discretionary manner with that preference in mind.

Additionally, we adopt the State's concession that if the juvenile offender is waived first but a Criminal Part judge thereafter grants the suppression motion, the offender can move to have the case remanded back to the Family Part if the remaining non-suppressed evidence can no longer support the continued prosecution of the juvenile as an adult.

Because the Family Part judge in this case did not misapply his discretion in choosing to proceed with the waiver hearing first, we affirm that determination and remand for that proceeding.

I.

The limited record of this yet-to-be-litigated case has little bearing upon the general issues of law and procedure before us. We summarize the factual and procedural background succinctly.

According to the State's contentions,1 on March 31, 2021, E.S., a juvenile who was then seventeen years old, was walking down a street in Elizabeth. E.S. was accompanied by an adult, Aleem Johnson. Four plainclothes Elizabeth police officers started following E.S. and Johnson in an unmarked Jeep. A detective in the Jeep observed E.S. reaching into to his right pant pocket while shielding the outside of his pocket with his left hand. At about the same time, the detective saw Johnson reach towards his waistband. While looking at the Jeep, E.S. and Johnson crossed the street diagonally.

Shortly thereafter, the detective got out of the Jeep, announced himself as a police officer, and directed E.S. and Johnson to stop. According to the detective, E.S. and Johnson defied the command, and each of them brandished handguns and briefly pointed them toward the Jeep. They ran down the street and were pursued by

the officers. E.S. was apprehended a short distance away while trying to hop over a fence. The police confiscated from him a loaded semiautomatic handgun with a spent casing swelled inside the chamber.

On the same day, the State filed a juvenile delinquency complaint against E.S., charging him with: (i) second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) ; (ii) third-degree aggravated assault by pointing or displaying a firearm at a law enforcement officer, N.J.S.A. 2C:12-1(b)(9) ; (iii) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) ; (iv) the disorderly persons offense of obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1(a) ; and (v) fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).

Although our record does not supply the details, the parties agree that Johnson, the alleged adult co-perpetrator, was charged in the Criminal Part with offenses arising out of the same episode. Counsel represented to us at oral argument that Johnson has filed his own motion to suppress evidence derived from the same warrantless police action; his motion remains unheard in the Criminal Part, apparently as the court awaits the outcome of the present appeal.

268 A.3d 367

On April 13, 2021, E.S.'s defense counsel filed a motion to suppress the State's physical evidence, arguing it was the fruit of an unconstitutional warrantless search and seizure. Less than two weeks later, on April 26, the State filed a motion to waive E.S. to the adult Criminal Part pursuant to N.J.S.A. 2A:4A-26.1.

Initially, the Family Part judge scheduled a hearing on the suppression motion to be conducted before the waiver hearing. The State moved to have the court reconsider that sequence. The court thereafter heard arguments from counsel to decide which of the two motions should be conducted first.

As we have already noted, the State advocated for the waiver motion to occur first, particularly emphasizing the jurisdictional nature of that threshold determination. In opposition, the defense

stressed the momentous consequences to a minor of waiver to adult court. The defense further urged that the court's waiver ruling, and any finding of probable cause, should not be based on evidence that was unconstitutionally seized by the police, and accordingly the court should first rule on the suppression motion.

After considering these and other arguments, the Family Part judge decided to proceed with the State's waiver motion before the juvenile's suppression motion. In his oral opinion on June 23, 2021, the judge noted there was no statutory or other binding authority that prescribed the proper sequence.

In his analysis, the judge rejected several arguments made by each side. First, the judge disagreed with the prosecutor's argument that conducting the motion to suppress prior to the waiver hearing would prejudice the State or require an unreasonable use of its resources. The judge also disagreed with the defense that E.S. would be prejudiced if his motion to suppress were "subverted or delayed" by the trial court prioritizing the waiver hearing. In this regard, the judge noted that if the State's waiver application were granted, E.S. would maintain the right to file an identical motion to suppress as an adult defendant, which constitutes sufficient due process.

The judge further considered the significance of the requirement of probable cause that the juvenile committed an enumerated offense under N.J.S.A. 2A:4A-26.1. The judge reasoned that this probable cause hearing serves the same effective function and is guided by the same evidentiary principles as grand jury hearings. Citing to State v. J.L.W., 236 N.J. Super. 336, 565 A.2d 1106 (App. Div. 1989), the judge noted that "[p]robable cause may not be based solely on admissible evidence pursuant to the New Jersey Rules of Evidence[.]" The judge also cited State v. A.T., 245 N.J. Super. 224, 227-28, 584 A.2d 861 (App. Div. 1991) (noting that a probable cause hearing, considering waiver applications, is not an occasion "for the trial judge to weigh the evidence and determine where the truth of the matter l[ies]") and State v. J.M., 182 N.J. 402, 417, 866 A.2d 178 (2005) (noting the State's sole

reliance upon the testimony of a police officer can be sufficient to show probable cause that a juvenile committed robbery and an aggravated assault, as credibility determinations are seldom crucial in deciding whether the evidence supports probable cause). The judge reasoned that "the evaluation of probable cause is not an evaluation of guilt or innocence," or indicative of whether the evidence "will be sufficient to prove beyond a reasonable doubt" that a waived juvenile committed the offense(s) charged.

The judge concluded that, in the absence of case law or a codified provision on point, the trial court...

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2 practice notes
  • State v. Lopez, A-2694-18
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 15, 2022
    ...focus on rehabilitation of youths and adult criminal courts that are more focused on deterrence and punishment." State in Int. of E.S., 470 N.J.Super. 9, 17 (App. Div. 2021). Juveniles are entitled to various procedural protections before waiver to adult court, and must "receive a hearing, ......
  • State v. Lopez, A-2694-18
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 15, 2022
    ...focus on rehabilitation of youths and adult criminal courts that are more focused on deterrence and punishment." State in Int. of E.S., 470 N.J.Super. 9, 17 (App. Div. 2021). Juveniles are entitled to various procedural protections before waiver to adult court, and must "receive a hearing, ......
2 cases
  • State v. Lopez, A-2694-18
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 15, 2022
    ...focus on rehabilitation of youths and adult criminal courts that are more focused on deterrence and punishment." State in Int. of E.S., 470 N.J.Super. 9, 17 (App. Div. 2021). Juveniles are entitled to various procedural protections before waiver to adult court, and must "receive a hearing, ......
  • State v. Lopez, A-2694-18
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 15, 2022
    ...focus on rehabilitation of youths and adult criminal courts that are more focused on deterrence and punishment." State in Int. of E.S., 470 N.J.Super. 9, 17 (App. Div. 2021). Juveniles are entitled to various procedural protections before waiver to adult court, and must "receive a hearing, ......

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