State ex rel. J.F.
| Decision Date | 16 June 2016 |
| Citation | 446 N.J.Super. 39,140 A.3d 564 |
| Parties | STATE IN the INTEREST OF J.F., a Juvenile. |
| Court | New Jersey Superior Court — Appellate Division |
Sevan Biramian, Assistant Prosecutor, argued the cause for appellant State of New Jersey (James P. McClain, Atlantic County Prosecutor, attorney; Elliot J. Almanza, Assistant Prosecutor, of counsel and on the brief).
Robert Lougy, Acting Attorney General, attorney for appellant State of New Jersey (Sarah Lichter, Deputy Attorney General, on the supplemental brief).
Janet A. Allegro, Designated Counsel, argued the cause for respondent J.F. (Joseph E. Krakora, Public Defender, attorney for respondent; Ms. Allegro, of counsel and on the brief).
Before Judges FUENTES, KOBLITZ and GILSON (Judge GILSON concurring).
The opinion of the court was delivered by
KOBLITZ
, J.A.D.
After leave was granted, the State appeals from the August 27, 2015 order of Judge Michael Blee denying the State's application, filed pursuant to N.J.S.A. 2A:4A–26
and Rule 5:22–2, to waive jurisdiction of J.F.1 to adult court for certain offenses he allegedly committed when he was fourteen years old. Following an extensive hearing, Judge Blee found that J.F. had met his burden of proving the probability of his rehabilitation before age nineteen, and that the probability substantially outweighed the State's reasons for waiver. We affirm substantially for the reasons set forth in Judge Blee's August 13, 2015 written opinion. We also determine, after receiving supplemental briefs on the issue at our request, that the State's position is contrary to the intent of the Legislature's recent repeal and replacement of N.J.S.A. 2A:4A–26
,2 which excludes the possibility of waiver to adult court for all juveniles whose unlawful behavior occurred before their fifteenth birthday. N.J.S.A. 2A:4A–26.1(c)(1)
. We therefore also affirm on the alternate basis that the new statutory age requirement as applied retroactively precludes waiver of J.F.3
On January 8, 2014, when J.F. was only fourteen years and eleven months old, he was involved in an incident in which he was alleged to have shot two victims under the age of eighteen. One victim, fifteen-year-old D.T., was shot in the leg and buttocks, and the other, thirteen-year-old A.M.S., was shot in the chest and died as a result of his wounds
.
A juvenile complaint was filed against J.F., charging him with conduct that if he were an adult would constitute first-degree purposeful murder, N.J.S.A. 2C:11–3(a)(1)
, second-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1), second-degree unlawful possession of a handgun, N.J.S.A. 2C:39–5(b),4 and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39–4(a). Additional charges were later brought: conduct that if he were an adult would constitute first-degree knowing murder, N.J.S.A. 2C:11–3(a)(2) ; an additional count of second-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1) ; nine counts of fourth-degree aggravated assault, N.J.S.A. 2C:12–1(b)(4) ; eight counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24–4 ; fourth-degree unlawful disposition of a firearm, N.J.S.A. 2C:39–9(d) ; fourth-degree tampering with evidence, N.J.S.A. 2C:28–6(1) ; and third-degree hindering apprehension, N.J.S.A. 2C:29–3(b)(1).
The State moved, pursuant to N.J.S.A. 2A:4A–26
and Rule 5:22–2, for the involuntary waiver of jurisdiction of J.F. from the Family Part to the Law Division, Criminal Part. Judge Blee conducted a twelve-day waiver hearing.
Atlantic City Police Sergeant David Weiss testified to the following. J.F. was identified as the shooter by other juveniles who were present at the January 8, 2014 incident. Weiss learned that the victim, A.M.S., had been involved in a fight with J.F.'s cousin the day before the incident. The fight was recorded on a cell-phone camera, and posted to Facebook.5 A.M.S. had indicated that there would be retaliation for the fight, and another minor, C.G., also threatened to become involved in the fight. On the day of the shooting, C.G. went to the school with several others to fight J.F.'s cousin. When school let out, C.G. and the group began to walk from the school. C.G. then encountered J.F. riding a bicycle. C.G. punched J.F. four to five times in the face, ran away, and informed the group that J.F. had a gun. Shortly thereafter, C.G. and the group encountered J.F., who pulled out the gun and opened fire. The group then ran away until A.M.S. collapsed.
Sergeant Weiss stated that J.F. and his cousin were allied with the “Stanley Holmes Alliances,” while the victims and their friends were associated with the “Back Maryland Alliances.” Weiss also repeated comments by others alleging past criminal activity by J.F.
Atlantic City Police Sergeant Christopher Barber testified that certain photographs taken at Harborfields depicting J.F. and other residents had been sent from the institution and later posted online with gang verbiage written on them.6 The State offered these postings to demonstrate that J.F. was affiliated with a gang while he was in Harborfields. Barber also discussed several Twitter7 postings that he alleged demonstrated J.F.'s gang involvement.
Frederick Wilson, an employee at Harborfields, testified that the staff did not open the outgoing mail from residents. Wilson described a point system which allowed the residents to purchase, among other things, photographs of themselves. Wilson testified that J.F. was one of the top two residents in earning points. Detective Lauren Laielli of the Atlantic County Sheriff's Office, testified that she spoke with a former resident of Harborfields, who advised her of gang feuds occurring there between the Stanley Holmes gang and the Back Maryland gang. She testified that she was told J.F. would shout gang references at her informant while they were both housed at Harborfields.
During the rehabilitation phase of the trial, J.F. first offered the testimony of R.A., J.F.'s aunt, who was a caseworker for the Division of Child Protection and Permanency. R.A. testified that she was aware that J.F. was beaten up more than once by neighborhood residents. In one incident, J.F. was beat up and kicked in the head, and was taken to the hospital for treatment. R.A. testified that J.F. was always quiet and reserved, and that he was “never a bad child.”
Rochelle Andress, a social worker who had worked at Harborfields since 1997, described the daily routine for residents at Harborfields, and also gave a description of the living arrangements and rehabilitative services. Andress testified that the Juvenile Justice Commission supervises Harborfields, and its overall goal is to “rehabilitate juveniles and help them reach their full potential.” Andress described the different programs offered at Jamesburg8 for juveniles, including certain vocational training, cognitive behavioral therapies
and counseling. Regarding J.F., she stated:
We don't have any problems with [J.F.]. He gets along well with others. He's compliant and respectful when he interacts with the staff. He participates in everything that we provide to him. Been pos[itive] most of the time that he's been there. Haven't had any problems with him at all I mean and he's been there for a year and generally in that amount of time behavior tend to rear their ugly little head with kids and with him we just have not had that. He's been, you know, in my opinion a model resident.
Andress described the rating and point system utilized at Harborfields, stating that J.F. had positive ratings and responds well to the program. J.F. was a high “point earner.” Andress explained that J.F. had earned enough points to have special visits, which allowed him extra time to see his family. J.F. and his mother speak regularly over the phone. According to Andress, J.F.'s mother was in the top one percent as far as parent involvement with J.F.
J.F. was also involved in a number of afterschool programs at Harborfields. Andress described the programs, in particular a program that sought to teach the residents about decision-making skills. J.F. elected to participate on his own, which was not typical of most residents. J.F. had been respectful throughout his stay and was in the top five percent of students at Harborfields in terms of behavior. Andress opined that J.F. had potential and had done well in the structured environment of Harborfields.
Andress also had been provided gang awareness training at Harborfields. She explained that Harborfields did not have a policy on separating juveniles based on gang affiliations. Andress had read the State's expert's report on J.F. that mentioned a gang, but was unaware of J.F. having any gang affiliation until an investigator came to the school inquiring about photographs containing gang verbiage. Andress testified that it is likely that members of the Back Maryland gang attend classes at Harborfields with J.F., but there had been no incidents caused by their attendance together.
Shannon Rawson, J.F.'s eighth grade teacher, described an instance in 2012 when J.F. complained of being “jumped” by grown men. Rawson contacted J.F.'s mother to inform her of the incident. Another juvenile stated in class that he was going to shoot J.F. in the face, and have other juveniles come beat him up. Boys would frequently come to J.F.'s school to fight him or his younger brother. On another occasion, J.F. cried, complaining that other boys were fighting with him outside of the school. Rawson had not witnessed J.F. act as the aggressor; he often protected himself and his brother.
Rawson also witnessed A.M.S. fight with J.F.'s younger brother. The day of the shooting, Rawson saw a cell phone video depicting J.F. Rawson explained that another boy approached J.F. from behind and punched him in the...
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