State ex rel. E.S., A-41-21

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtSOLOMON, J.
PartiesState in the Interest of E.S., a juvenile.
Docket NumberA-41-21,A-42-21
Decision Date22 November 2022

State in the Interest of E.S., a juvenile.

Nos. A-41-21, A-42-21

Supreme Court of New Jersey

November 22, 2022

Argued September 29, 2022

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 470 N.J.Super. 9 (App. Div. 2021).

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

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

Adam D. Klein, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Adam D. Klein, of counsel and on the brief).

Kristina Kersey argued the cause for amici curiae Rutgers Criminal and Youth Justice Clinic, the Gault Center, and the Association of Criminal Defense Lawyers of New Jersey (Rutgers Criminal and Youth Justice Clinic, the Gault Center, and Jardim, Meisner & Susser, attorneys; Kristina Kersey, Laura Cohen, and Michael V. Gilberti, on the brief).

Anthony V. Pierro, Chief Juvenile Attorney, Ocean County Prosecutor's Office, argued the cause for amicus curiae New Jersey Juvenile Prosecutors Leadership Network (New Jersey Juvenile Prosecutors Leadership Network, attorneys; Anthony V. Pierro, of counsel and on the brief, Lisa Ledoux, Assistant Hudson County Prosecutor, Anthony Higgins, Special Deputy Attorney General/Acting Essex County Prosecutor, Jennifer Moran, Assistant Mercer County Prosecutor, Jason Harding, Assistant Passaic County Prosecutor, and Kelly Shelton, Assistant Warren County Prosecutor, on the brief).

SOLOMON, J., writing for the Court

In this appeal, the Court considers whether the trial court abused its discretion by choosing to hear the State's motion to waive family court jurisdiction and prosecute juvenile defendant E.S. as an adult before hearing E.S.'s motion to suppress the gun seized from him at the time of his arrest. The Court also considers whether, as the Appellate Division suggested, the Family Part should "apply a general preference" to hear suppression motions before deciding waiver motions.

Officers from the Elizabeth Police Department arrested E.S. and his codefendant, Alleem Johnson, after they allegedly brandished handguns, pointed them at the officers' vehicle, and then ran away. Police arrested and searched E.S. and found a loaded semiautomatic handgun. Johnson was also arrested.

E.S. was charged as a juvenile with offenses eligible for waiver. Johnson, E.S.'s adult co-defendant, was charged in the Law Division, Criminal Part. Counsel for E.S. filed a motion to suppress the gun. Two weeks later, the State filed a motion pursuant to N.J.S.A. 2A:4A-26.1 to waive juvenile court jurisdiction and to transfer the case to the Law Division, Criminal Part, to prosecute E.S. as an adult. At some point that is not specified in the record, Johnson moved in the Criminal Part for the suppression of evidence seized from him.

The family court judge ultimately determined that the waiver motion should be heard before the suppression motion. The Appellate Division affirmed that judgment. The court concluded that, although "the Family Part has the discretion to determine the optimal sequence of proceedings," it should apply a general preference to have the suppression hearing conducted first in the Family Part. 470 N.J.Super. 9, 13-14 (App. Div. 2021). The Appellate Division found that in this case, however, the trial court did not abuse its discretion in choosing to hold the waiver hearing first. Id. at 14.

The Court granted E.S. leave to appeal and the State leave to cross-appeal. 250 N.J. 7 (2022); 250 N.J. 13 (2022).


HELD: The Court agrees with the Appellate Division that the trial court did not abuse its discretion in deciding to hear the defendant's waiver motion before considering his suppression motion. The Court declines, however, to adopt a preference that the Family Part hear suppression motions before waiver motions, holding instead that it is within the discretion of the Family Part to determine its schedule of proceedings and manage its calendar. The Court sets forth factors that Family Part judges should take into consideration in exercising their discretion as to the order in which to hear waiver and suppression motions.

1. The Court reviews in detail the waiver process under N.J.S.A. 2A:4A-26.1 and notes that there are fundamental distinctions between juvenile court and criminal court that render the waiver of jurisdiction by the Family Part a critically important action determining vitally important statutory rights of the juvenile. Notably, New Jersey's adult criminal justice system does not focus on rehabilitation and reformation, which are a hallmark of the juvenile system. In recognition of the significance of a waiver determination, the Court has found that due process requires that juveniles receive a hearing, effective assistance of counsel who have access to relevant information, a statement of reasons for the court's decision, and the opportunity to present evidence and testify. Nevertheless, constitutional due process in the juvenile waiver context stops short of constitutional guarantees arising from the question of admissibility of evidence at a trial on the merits, and strict adherence to the rules of evidence is not required at the probable cause hearing. (pp. 9-13)

2. The Court has recognized the importance of a trial court's inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice. Waiver motions fall categorically within the purview of the Family Part. Although motions to suppress evidence are not reserved to family court, the Family Part can, like its Criminal Part analog, consider motions to suppress evidence. (pp. 13-14)

3. Guided by those principles, the Court finds that the order of waiver and suppression proceedings does not touch upon the juvenile's due process rights and therefore holds that it is within the Family Part's sound discretion to decide the order in which it hears suppression and waiver motions. Nevertheless, in exercising its discretion, the Family Part should take several factors into consideration, including (1) whether the evidence that the defendant is seeking to suppress, if excluded, would be dispositive of probable cause or have a substantial effect on the case in chief; (2) whether there are co-defendants with suppression motions pending in the Family or Criminal Parts; and (3) judicial efficiency and management of the court's calendar. The Court provides detailed guidance about each factor. Although the Court considers those factors to be important in the determination of whether to hear a suppression or a waiver motion first, the Family Part may of course consider any additional factors that it finds relevant in exercising its discretion. (pp. 14-17)


4. Here, the prosecutor argued for waiver on the basis that probable cause existed to believe that E.S. had committed the delinquent act of possessing a firearm under circumstances that satisfied N.J.S.A. 2A:4A-26.1(c)(2)(j). Probable cause is not a high bar and requires in this context a demonstration that there is a well-grounded suspicion or belief that the juvenile committed the alleged crime. In determining that the interests of both E.S. and the judicial system would be better served by hearing the waiver motion first, the court cited State v. J.M., 182 N.J. 402, 417 (2005), for the proposition that, even without a weapon, "the State's sole reliance upon the testimony of a police officer was sufficient to show probable cause that the juvenile committed robbery and an aggravated assault." The court explained that, "even without the evidence that is suppressed, if this Court finds probable cause to waive this juvenile up, it would defeat the purpose [of hearing the suppression motion first]." Although the trial court was not persuaded that the co-defendant's pending motion to suppress in the Criminal Part militated in favor of hearing the waiver application first -- a consideration the Court adopts as salient in its opinion -the Court finds no abuse of discretion in the trial court's grant of the State's request to hear the waiver motion first in this matter. Indeed, the existence of the codefendant's suppression motion in the Criminal Part at the time was another factor that favored the order of proceedings adopted here. (pp. 18-19)


JUSTICE PIERRE-LOUIS, concurring, joins the Court's holding that the trial court did not abuse its discretion in deciding to consider defendant's waiver motion before the suppression motion in this matter but would adopt a general preference to conduct suppression hearings prior to considering waiver motions.

CHIEF JUSTICE RABNER; JUSTICE PATTERSON; and JUDGE FISHER (temporarily assigned) join in JUSTICE SOLOMON's opinion. JUSTICE PIERRE-LOUIS filed a concurrence. JUSTICE FASCIALE and JUDGE SABATINO (temporarily assigned) did not participate.



In March 2021, defendant E.S. was arrested and charged as a juvenile with weapons and other offenses that would constitute indictable offenses if committed by an adult. Defense counsel moved to suppress the gun seized from defendant at the time of his arrest. Two weeks later, the State moved to waive family court jurisdiction and transfer the case to the Law Division, Criminal Part, to prosecute E.S. as an adult. The family court initially decided to hear the suppression motion before the waiver motion but, following the State's motion for reconsideration, resolved to hear the waiver motion first.

The Appellate Division affirmed but...

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