State in Interest of B.G.

• Decision Date: 19 April 1991
• Citation: 589 A.2d 637,247 N.J.Super. 403
• Parties: STATE of New Jersey, in the Interest of B.G., C.A., and P.A., Juveniles.
• Court: New Jersey Superior Court — Appellate Division

Page 403

247 N.J.Super. 403

589 A.2d 637

STATE of New Jersey, in the Interest of B.G., C.A., and

P.A., Juveniles.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 19, 1991.

Decided April 19, 1991.

Harvey Weissbard and Alan L. Zegas, for appellant/cross-respondent B.G. (Weissbard & Wiewiorka, attorneys; Harvey Weissbard and Alan L. Zegas, on the brief), West Orange.

Thomas P. Ford, Jr., for appellant/cross-respondent C.A. (Thomas P. Ford, Jr. on the brief), Millburn.

Willard E. Byer, Jr., for appellant/cross-respondent P.A. (Willard E. Byer, Jr. of counsel and on the brief), West Orange.

Elizabeth Miller-Hall, Asst. Essex County Prosecutor, for respondent/cross-appellant State of N.J. (Herbert H. Tate, Jr., Essex County Prosecutor, attorney; Elizabeth Miller-Hall, of counsel and on the brief).

Before Judges DREIER, ASHBEY and LANDAU.

The opinion of the court was delivered by

ASHBEY, J.A.D.

C.A., P.A., and B.G., charged with juvenile delinquency, ¹ appeal on leave granted from a Family Part ruling under N.J.S.A. 2A:4A-26, which transferred jurisdiction over certain complaints against them to the adult courts. The State cross-appeals from the Family Part's decision finding no probable cause for the charges which asserted force or coercion and from the court's finding that B.G. was rehabilitated.

These complaints stem from a March 1, 1989 incident in which M.G., a juvenile girl of limited intellectual ability, was allegedly the victim of various sexual assaults by more than one young man, acting as part of a group of teenaged juveniles and adults. ² The nature of the specific charges against respondents requires detailed exploration under the statute permitting involuntary transfer to the adult courts, as such transfer can only be made if the Family Part judge finds that:

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute [aggravated sexual assault, sexual assault and conspiracy].

N.J.S.A. 2A:4A-26a.

The State alleged that on March 1, 1989, C.A. committed the following acts against M.G.:

1) Aggravated sexual assault by force or coercion contrary to N.J.S.A. 2C:14-2a(5)(a) (vaginal penetration); 2) Aggravated sexual assault on a person whom he knew or should have known to be mentally defective contrary to N.J.S.A. 2C:14-2a(5)(b);

3) Aggravated sexual contact contrary to N.J.S.A. 2C:14-3a (victim masturbate respondent);

4) Aggravated sexual contact where he knew or should have known the victim to be mentally defective contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(b);

5) Conspiracy to commit aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(5)(a) & (b) and N.J.S.A. 2C:5-2.

The juvenile delinquency complaint against B.G. alleged that on the same occasion he committed the following acts against M.G.:

1) Aggravated sexual assault using force or coercion contrary to N.J.S.A. 2C:14-2a(5)(a) (fellatio);

2) Aggravated sexual assault where he knew the victim to be mentally defective contrary to N.J.S.A. 2C:14-2a(5)(b);

3) Aggravated sexual contact contrary to N.J.S.A. 2C:14-3a (victim masturbate respondent);

4) Aggravated sexual contact where he knew or should have known the victim to be mentally defective contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(b);

5) Conspiracy to commit aggravated sexual assault contrary to N.J.S.A. 2C:5-2.

The juvenile delinquency complaint against P.A. alleged he committed the following acts against M.G.:

1) Aggravated sexual contact using force or coercion contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(a) (victim masturbate respondent);

2) Aggravated sexual contact where he knew or should have known the victim to be mentally defective contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(b);

3) Conspiracy to commit aggravated sexual assault contrary to N.J.S.A. 2C:5-2.

The sexual assault charges represent adult crimes under N.J.S.A. 2C:14-2a(5)(a) and (b) which provides in relevant part:

2C:14-2. Sexual Assault. a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

....

(5) The actor is aided or abetted by one or more other persons and either of the following circumstances exists:

(a) The actor uses physical force or coercion, or

(b) The victim is one whom the actor knew or should have known was ... mentally defective....

Similar provisions are incorporated by reference into the adult crime of criminal sexual contact. N.J.S.A. 2C:14-3a.

N.J.S.A. 2C:14-2 refers back to N.J.S.A. 2C:14-1, for the following definition:

h. "Mentally defective" means that condition in which a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of [her] conduct, including, but not limited to, being incapable of providing consent;

" 'Physical force' [not defined in the statute] is force applied to the victim's body." State v. Queen, 221 N.J.Super. 601, 606, 535 A.2d 539 (App.Div.), certif. denied, 110 N.J. 506, 541 A.2d 1367 (1988). N.J.S.A. 2C:13-5a, incorporated by reference in N.J.S.A. 2C:14-1j, gives the following definition of "coercion."

A person is guilty of criminal coercion if, with purpose unlawfully to restrict another's freedom of action to engage or refrain from engaging in conduct, he threatens to:

....

(7) Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to [her] ... career ... reputation or personal relationships.

A "mentally defective" person is one who does not have sufficient relevant sexual understanding, "including, but not limited to being capable of providing a consent." N.J.S.A. 2C:14-1h. Under N.J.S.A. 2C:2-10a, a victim's consent may also be considered a defense to forceful sexual assault by negating the force element or by precluding the harm sought to be prevented by the statute. See State in the Interest of M.T.S., 247 N.J.Super. 254, 259, 588 A.2d 1282, 1284 (App.Div.1991). N.J.S.A. 2C:2-10c provides, however, that a victim's "assent" is not "consent" if

(2) [i]t is given by a person who by reason of ... mental ... defect ... is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of the harmfulness of the conduct charged ...; or (3) [i]t is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

While lack of consent and force may not be co-extensive terms, CANNEL, CRIMINAL CODE ANNOTATED, Comment N.J.S. 2C:14-5, sexual assault definitions are in pari materia. State v. Martin, 235 N.J.Super. 47, 54, 561 A.2d 631 (App.Div.), certif. denied, 117 N.J. 669, 569 A.2d 1359 (1989).

A. PROBABLE CAUSE

We have detailed the elements of the crimes before examining the judge's finding that probable cause had not been established as to any of the offenses involving force or coercion, but that probable cause had been established to believe all of the crimes, including conspiracy, had been committed knowingly against a mentally defective person.

Probable cause is "a well-grounded suspicion or belief that an offense [has taken] place and the individual [was] party to it." State in the Interest of A.J., 232 N.J.Super. 274, 286, 556 A.2d 1283 (App.Div.1989) (citing State v. DeSimone, 60 N.J. 319, 322, 288 A.2d 849 (1972)). While "the suspicion of guilt must be something more than a raw, unsupported suspicion, it may be something less than the proof needed to convict." A.J., 232 N.J.Super. at 286, 556 A.2d 1283. The probable cause phase of a waiver hearing is a preliminary proceeding. State in the Interest of J.L.W., 236 N.J.Super. 336, 346, 565 A.2d 1106 (App.Div.1989). Probable cause may be established on the basis of hearsay evidence alone, because a probable cause hearing "does not have the finality of trial," id. at 344, 346, 565 A.2d 1106, and "need not be based solely on evidence admissible in the courtroom." A.J., 232 N.J.Super. at 286, 556 A.2d 1283. In such proceedings, the judge does not act as a trier of fact to determine guilt or innocence. State in the Interest of A.T., 245 N.J.Super. 224, 227-228, 584 A.2d 861 (App.Div.1991).

1. FORCE OR COERCION

In support of the motion judge's ruling that there was no probable cause for a finding of force, respondents rely on State v. R.G.D., 108 N.J. 1, 15, 527 A.2d 834 (1987), the seminal case on the standard of review concerning Family Part decisions to waive jurisdiction to the adult court. There the Court said that a reviewing court may only reverse the action of the trial court upon a finding that the action was not grounded in competent, reasonably credible evidence, that correct legal principles were not applied, or that the judgment shocks the judicial conscience.

That standard, however, did not primarily concern probable cause. In R.G.D. the Supreme Court found probable cause to have existed to believe that two juveniles acting together had been guilty of aggravated sexual assault by force or coercion, despite considerable contrary evidence. R.G.D., 108 N.J. at 16, 527 A.2d 834. Such contrary evidence included proof that the victim had voluntarily accompanied the boys to a not very secluded place within their school, and "once there and after sexual advances had been made, she not only remained but moved twice to get away from others [strangers] who came into the auditorium." State v. R.G.D., 208 N.J.Super. 385, 391, 506 A.2d 36 (App.Div.1986), rev'd, 108 N.J. 1, 527 A.2d 834 (1987). We review the record in this case with R.G.D.'s instructions in mind, that probable cause requires far less than a prima facie case. R.G.D., 108 N.J. at 16, 527 A.2d 834. Moreover, because the probable cause evidence in the case was hearsay, we are free to reexamine it in its entirety.

M.G. was 17 years old at the...