STATE IN THE INTEREST OF E.S. (FJ-20-0380-21, UNION COUNTY AND STATEWIDE)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3559-20
APPROVED FOR PUBLICATION
STATE IN THE INTEREST
December 13, 2021
OF E.S., a juvenile.
_______________________ APPELLATE DIVISION
Argued October 25, 2021 – Decided December 13, 2021
Before Judges Sabatino, Mayer and Natali.
On appeal from an interlocutory order the Superior
Court of New Jersey, Chancery Division, Family Part,
Union County, Docket No. FJ-20-0380-21.
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).
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
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preference may be outweighed by other considerations, such as whether an adult
alleged co-perpetrator 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.
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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
1
The defense does not contest the State's version of the facts for purposes of
this appeal on the procedural sequencing issue.
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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.
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
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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
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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(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 (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 (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
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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 has the discretion to determine which hearing
should occur first, "taking into consideration any prejudicial effect that it would
have on the juvenile or the State, taking into effect factors of judicial economy
and taking into effect the re-duplication of anything else."
The juvenile moved for leave to appeal, which we granted. We also
permitted the Rutgers Criminal Youth Justice Clinic and the National Juvenile
Defender Center to appear as amicus curiae. They support E.S.'s position that
the suppression hearing should be heard first in the Family Part before the
waiver hearing.
II.
Our discussion begins with a recognition of the profound importance of a
decision to waive a minor accused of an offense to the adult criminal court.
Time after time, our courts have underscored the momentous impact of such
decisions, and the fundamental difference between juvenile courts that focus on
rehabilitation of youths and adult criminal courts that are more focus ed on
deterrence and punishment. See, e.g., In re Gault, 387 U.S. 1, 14-29 (1967);
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State v. N.H., 266 N.J. 242, 252-53 (2016); State v. R.G.D., 108 N.J. 1, 4-5
(1987). For one thing, as here, a juvenile offender generally faces the possibility
of much more severe sanctions if convicted and sentenced as an adult than if
adjudicated a delinquent in the Family Part for that same wrongful behavior.
State v. Z.S., 464 N.J. Super. 507, 513 (App. Div. 2020).
In recognition of these fundamental forum-related differences, our case
law has striven to assure that juveniles receive adequate procedural protections
before a court decides whether or not to grant a prosecutor's waiver motion. For
example, in N.H., the Supreme Court stressed that "due process requires that
juveniles receive a hearing, effective assistance of counsel who have access to
relevant information, and a statement of reasons for the court's decision." N.H.,
226 N.J. at 253. Prosecutors are obliged to make discovery available to a
juvenile before a waiver hearing is held to better ensure effective assistance of
counsel in preparing for "all facets of the [waiver] hearing and [to] decide how
best to cross-examine the State's witnesses, whether the juvenile or others should
testify, and how to assess or challenge the prosecutor's exercise of discretion."
Id. at 254-56. In that same vein, the Court held in J.M., 182 N.J. at 415, that
juveniles must be permitted to testify and present evidence at the probable cause
portion of the waiver hearing, recognizing that the "heightened importance to
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the juvenile justifies treating juveniles differently from adults at a probable
cause hearing."
Probable cause is a critical required element of the multi-factor statutory
test for waiving a juvenile offender to adult court under N.J.S.A. 2A:4A -26.1.
Probable cause signifies there "is 'a well-grounded suspicion or belief that the
juvenile committed the alleged crime[,]'" which can further be combined with
"reasonable inferences" drawn from those suspicions or beliefs to satisfy the
probable cause standard under the statute. State v. A.D., 212 N.J 200, 205-06
(2012) (quoting J.M., 182 N.J. at 417).
If a juvenile is over the age of fifteen and there is probable cause that he
or she committed one of various enumerated offenses―such as the possession
of a firearm with a purpose to use it unlawfully against the person of another,
N.J.S.A. 2A:4A-26.1(c)(2)(j)―waiver is presumptively appropriate unless other
factors set forth in N.J.S.A. 2A:4A-26.1(c)(3)(a) through (k) weigh against it.
A prosecutor's office seeking waiver must expressly consider these factors, and
it must set forth its analysis of them in a written statement that does not "simply
mirror the statutory language in a cursory fashion." N.H., 226 N.J. at 250; Z.S.,
464 N.J. Super. at 533. The Family Part is authorized to deny the State's waiver
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motion if the court concludes the State abused its discretion in evaluating the
statutory factors. State v. J.V., 242 N.J. 432, 440-41 (2020).
A waiver hearing's core purpose is to make a threshold jurisdictional
determination, rather than to adjudicate substantive issues. See R.G.D., 108 N.J.
at 18 ("[I]n a waiver hearing, guilt or innocence is not at issue. Rather, the focus
is on determining the appropriate court to hear the case."). Waiver hearings are
not designed to be full-fledged trials. A.D., 212 N.J. at 220-21 (emphasizing
that the waiver hearing inquiry does not involve "the fine resolution of
conflicting evidence" applicable under either the reasonable doubt or
preponderance of the evidence standards).
Notably, the Rules of Evidence do not strictly limit the proofs that can be
admitted by the parties and relied upon by the court at a waiver hearing. J.M.,
182 N.J. at 417. Hearsay evidence, for example, may be used by the State to
establish probable cause that the juvenile committed the charged offenses. State
v. B.G., 247 N.J. Super. 403, 409 (App. Div. 1991). Constitutional due process
in the juvenile waiver context includes an "opportunity to be heard and present
evidence," but stops short of "constitutional guarantees arising from the question
of admissibility of evidence at a trial on the merits[.]" State v. B.T., 145 N.J.
Super. 268, 273 (App. Div. 1976) (emphasis added).
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Having made these observations about waiver hearings, we proceed to
make several about suppression motions. Like Criminal Part judges who
entertain motions by adult defendants to suppress evidence, see R. 3:5-7, Family
Part judges similarly can hear defense motions to suppress evidence in juvenile
cases and have, in fact, granted such motions where justified. See, e.g., State in
Interest of A.P., 315 N.J. Super. 166, 167 (Ch. Div. 1998). Superior Court
judges who sit in the Family Part and their colleagues who sit in the Criminal
Part both have the expertise to adjudicate such motions, and to apply the
pertinent constitutional or legal standards that may at times require suppression.
The subject matter of suppression motions runs the gamut from search and
seizures, police interrogations, eyewitness identifications, and other topics.
Both the Family Part and the Criminal Part are well equipped to adjudicate these
applications, and to conduct evidentiary hearings at which law enforcement
personnel and other witnesses commonly testify. We discern no Part of the
Superior Court that is inherently better suited to hear suppression motions. If
either the State or the defense believes the trial court has erred in its suppression
ruling, the aggrieved party may pursue a motion for leave to appeal with this
court before final judgment. R. 2:5-6. We apply no different standards on
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appeal to suppression decisions made by Family Part judges as opposed to
Criminal Part judges.
A further general principle that bears mention is the traditional high
amount of deference we accord to trial courts in the scheduling of proceedings.
Trial judges have substantial discretion in "control[ling] [their] own calendar[.]"
State v. Miller, 216 N.J. 40, 65 (2013). That said, appellate courts at times will
conclude the trial court misapplied its discretion in a scheduling decision. See,
e.g., State v. Kates, 216 N.J. 393, 397 (2014) (in which the Court ruled that a
trial court's summary and baseless denial of an adjournment—in that case to
retain private counsel rather than change counsel mid-trial—constituted a
"structural error"); Z.S., 464 N.J. Super. at 547 (in which we reversed the trial
court's denial of a Public Defender's unopposed request for a short adjourn ment
of a juvenile waiver hearing because she had been discharged from the hospital
only two days earlier and needed more time to prepare and deal with additional
written submissions by the State).
III.
Having identified these general principles, we now endeavor to resolve
the sequencing question that is posed to us. Which should come first: the waiver
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hearing or the suppression hearing? As with many issues that arise in the law,
we respectfully submit that it depends on the situation.
We reject the argument made by E.S. and the amici that the Constitution
inexorably requires that the suppression hearing be conducted first. As we have
already noted, case law has clearly held that due process principles do not
preclude courts at waiver hearings from considering evidence that may be
deemed inadmissible at trial. A probable cause finding may be supported by
hearsay or other inadmissible proof. However, a Family Part judge, in his or her
role as fact-finder at the waiver hearing, may choose to give less weight to
evidence that seems likely to be excluded at an eventual suppression hearing.
We entrust to the Family Part considerable deference and judgment in
performing that evidence-sifting role.
On the other hand, in the absence of a Court Rule that would dictate it, we
likewise decline to adopt here a bright-line rule that would compel the waiver
hearing to be heard, without exception, before any suppression hearing. We
recognize the waiver hearing is jurisdictional in nature, and that the statutory
scheme, N.J.S.A. 2A:4A-26.1, calls for the State to move promptly for waiver
if it so chooses, and for the waiver hearing to be completed expeditiously. But
we also appreciate, as the Public Defender and the amici have argued, that even
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a temporary reclassification from juvenile offender to adult criminal court
defendant can be impactful. For instance, the juvenile may lose access to the
same range of services available pretrial to other juveniles. The juvenile may
also feel more obliged to capitulate to a plea offer, or to provide evidence against
others, because of the prosecutor's comparatively greater leverage in the
criminal arena. Although E.S. himself reportedly has continued to be held in a
juvenile detention facility, a waived juvenile's custody status may become more
restrictive, and he or she may become less able to be visited by relatives and
friends while awaiting trial. The juvenile's adult prosecution and appearance in
the Criminal Part might also be the subject of publicity, absent an entered sealing
order.
The State has represented to both the trial court and this court that if a
juvenile is waived and a Criminal Part judge thereafter grants a defense motion
to suppress all or some of the State's evidence, the juvenile has an avenue to
have his or her case returned to the Family Part. We accept and adopt that
concession, although the specific avenue is a bit unclear.
The current waiver statute does specify that if a juvenile waived to the
adult court is ultimately acquitted of the waivable offense(s) or only found guilty
of offenses not enumerated in the waiver statute, the case must be remanded
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back to the Family Part for a disposition. N.J.S.A. 2A:4A-26.1(f)(2). In
addition, the statute contains a "transfer back" provision, N.J.S.A. 2A:4A -
26.1(f)(3), which allows a waived case to be remanded to the Family Part "at
any point in the proceedings subsequent to the decision ordering waiver . . .
[w]ith the consent of the defense and the prosecutor."
We presume that a prosecutor, in the interests of justice, will provide such
consent if the suppression ruling deems inadmissible the entirety of the State's
proofs of the juvenile's culpability. But what if the suppression ruling leaves
open the possibility that the State nonetheless might be able to win its case with
any non-suppressed evidence? Without resolving that hypothetical question
here, we anticipate that the juvenile's counsel might be able to move before the
Criminal Part and argue that the State is abusing its discretion by arbitrarily
refusing to consent to a remand under N.J.S.A. 2A:4A-26.1(f)(3).2 In any event,
for the purposes of this opinion, we will take the State at its word and presume
there will be a "transfer back" process available to waived juveniles in at least
2
By analogy, we refer to motions by defendants under N.J.S.A. 2C:43-6.2
seeking relief from a prosecutor's "patent and gross abuse of discretion" in
refusing to agree to a sentencing downgrade for a firearms offense charged under
the Graves Act, N.J.S.A. 2C:43-6. See State v. Benjamin, 228 N.J. 358, 364
(2017) (exemplifying such judicial review).
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some instances in which the Criminal Part grants a motion to suppress critical
evidence.
Rather than endorsing a per se approach, we agree with the trial judge in
this case that that sequencing of the waiver hearing and the suppression h earing
should be treated as a discretionary, highly contextual decision. Without
exhausting all of the possibilities here, there are some situations in which it
makes practical sense to conduct the suppression hearing first, and others in
which the waiver hearing should have primacy.
For example, in some instances, as here, there are one or more alleged co-
perpetrators who are either adults or juveniles who have already been waived to
the Criminal Part, and who have suppression motions involving the same subject
matters pending in that court. The pendency of such parallel motions in the
Criminal Part is a factor, albeit not necessarily a dispositive one, in going
forward with the waiver motion and finding whether the juvenile in question
will also end up within the Criminal Part's jurisdiction. If waiver is granted,
then the suppression hearing ideally can be conducted by one judge in one
common proceeding, thereby avoiding duplicative suppression rulings and
possible inconsistent outcomes.
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Another practical factor to be weighed may be the anticipated time frames
to prepare for and complete the respective waiver and suppression hearings. In
some waiver contexts, the hearing may be substantially delayed because of the
logistics of obtaining expert reports about the juvenile's behavioral health and
suitability for waiver under the statutory factors, arranging fact witnesses, and
other preparatory tasks. By comparison, it may be easier for a suppression
hearing involving, say, a single police witness to be completed in the meantime.
Conversely, there may be instances in which a suppression hearing
(grounded on, for instance, a warrantless search, custodial interrogation, or
eyewitness identification) involving multiple witnesses, video and audio
recordings, and exhibits, cannot be done promptly, and where the waiver hearing
can be finished much sooner. Other practical difficulties may arise if a key
witness for either hearing is ill or otherwise temporarily unavailable. The trial
court should have flexibility in dealing with such situations.
In the absence of a Court Rule, we conclude the trial court is in the best
position to weigh these practical considerations and determine in its discretion
which hearing to conduct first. For making that discretionary decision, we
advise trial judges to apply a general preference toward conducting the
suppression hearing first, in light of the policy concerns associated with the
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powerful impact of waivers upon minors. If the State loses the suppression
motion with respect to critical evidence of a waivable offense, it may wish to
reconsider going forward with the waiver motion. On the other hand, if the
defense loses the suppression motion, that may affect its own litigation posture
significantly. That said, we believe it prudent to allow Family Part judges the
ability to chart the preferable course of action in a given case.
Applying these deferential principles here, we affirm the Family Part
judge's decision to hold the waiver hearing in this case first. The judge did not
misapply his discretion in adopting that approach after reflecting upon the matter
more deeply on reconsideration. The general preference we have set forth to
prioritize the suppression motion is outweighed in this case by the adult alleged
co-perpetrator's companion motion to suppress the fruits of the same warrantless
police search and seizure. Moreover, no special logistical circumstances have
been identified to us that make the judge's chosen sequence manifestly
impractical or unfair.
We therefore affirm the trial judge's ruling and remand for further
proceedings in accordance with this opinion. We do so, of course, without
foreclosing a different approach being developed in the future by a Court
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Committee of stakeholders and the adoption of a Court Rule prescribing the
procedures and standards.
Affirmed. We do not retain jurisdiction.
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