STATE OF NEW JERSEY VS. QUASHAWN HARRIS (17-04-0860, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5703-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUASHAWN HARRIS,
Defendant-Appellant.
_________________________
Submitted February 5, 2020 – Decided February 28, 2020
Before Judges Fuentes, Haas and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 17-04-0860.
Joseph E. Krakora, Public Defender, attorney for
appellant (Janet A. Allegro, Designated Counsel, on the
briefs).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John Joseph Lafferty, IV, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Quashawn Harris appeals from a January 18, 2017 order
granting the State's waiver motion to transfer his juvenile case to adult court and
further challenges the April 13, 2018 denial of his motion for a Graves Act 1
waiver. We affirm substantially for the reasons expressed by the judges who
entered these orders. We add the following brief comments to provide context
for our decision.
The State filed a juvenile delinquency complaint against defendant after
his arrest, and subsequently moved to transfer jurisdiction of his case from the
juvenile court in the Chancery Division, Family Part, to the adult court in the
Law Division, Criminal Part. After conducting a waiver and probable cause
hearing, Judge Susan F. Maven granted the State's waiver motion.
Subsequently, an Atlantic County grand jury indicted defendant on first-degree
gang criminality, N.J.S.A. 2C:33-29(a); second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree unlawful
1
N.J.S.A. 2C:43-6(c) (the Graves Act) mandates a period of parole ineligibility
for certain firearm-related offenses. Under N.J.S.A. 2C:43-6.2, upon request of
the State, or at the sentencing court's request with the State's approval, the
assignment judge shall place the defendant on probation or reduce the parole
ineligibility term to one year if the interest of justice would not be served by
imposition of a parole disqualifier, and the defendant has no prior conviction for
an enumerated offense under N.J.S.A. 2C:43-6(c).
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possession of a weapon without a permit to carry the same, N.J.S.A. 2C:39-
5(b)(1); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d).
Defendant was sixteen years-old when he attended a party with eleven other
youths in a hotel room at a casino in Atlantic City. Approximately ten minutes
after defendant's group arrived at the party, another group entered the room, and
an exchange of gunfire ensued. Defendant was seen on casino video footage
running from the room with three known gang members. The Atlantic City
Police Department was contacted and its officers quickly found a group in an
area outside of the casino who matched the description of the suspects. One of
the suspects appeared to have blood on his clothes. During an officer's second
pat-down of defendant, he "felt a handgun in the right pant leg of [defendant]'s
pants. [The officer] removed the handgun from [defendant]'s pants and checked
[him] for any other weapons." The police did not find any other weapons.
Defendant's handgun was loaded with six rounds of live ammunition and
identified as a defaced .38 caliber revolver. However, it was not fired during
this incident.
The State alleged that defendant and some of the other individuals with him
on the day of the incident were affiliated with the Head Shot Gang (HSG). The
police officers who responded to this incident believed the shootout was a result
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of gang rivalry. Data recovered from another suspect's cellphone showed that
one of the apprehended youths had disseminated a text message ten minutes after
the shooting, to a group labeled "Mi Familia" which read: "yea I'm in a jam we
jus did sum nut s--t to the opps." 2 When interviewed by the police, this
individual admitted he learned about the party through Facebook and attended
it with defendant and others who were also apprehended. This individual also
told the police: "Everything was good at the party until a group of other kids
showed up and an argument ensued. During the course of the argument, some
of those other kids locked themselves in the bathroom and started firing a gun
out of the bathroom door towards them." Video footage showed that as HSG
members ran from the room, one member returned fire and fled.
In January 2018 defendant pled guilty to second-degree possession of a
weapon for an unlawful purpose and moved for a Graves Act waiver. On April
13, 2018, Judge Bernard E. DeLury, Jr., denied defendant's motion and
sentenced him to a seven-year custodial term, subject to three and one-half years
of parole ineligibility, and applicable jail credit.
2
"Opps" is slang for "opposite gang."
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On appeal, defendant argues that Judge Maven erred in finding the State
presented probable cause to waive him to adult court, the State abused its
discretion in seeking the waiver, and Judge DeLury erred in denying his motion
to depart from the Graves Act. Having considered these arguments in light of
the applicable law and facts, we perceive no basis to disturb Judge Maven's
waiver of jurisdiction to the Criminal Part or to reverse Judge DeLury's denial
of defendant's request for a Graves Act waiver.
In the case of a juvenile fifteen years or older charged with certain
enumerated offenses, N.J.S.A. 2A:4A-26.1(c), the only issue to be determined
by the Family Part judge at a waiver hearing is whether there is probable cause
to believe the juvenile committed the delinquent act. "Probable cause is a well -
grounded suspicion or belief that the juvenile committed the alleged crime."
State v. J.M., 182 N.J. 402, 417 (2005) (citing State v. Moore, 181 N.J. 40, 45
(2004)). "Probable cause may be established on the basis of hearsay evidence
alone, because a probable cause hearing does not have the finality of trial . . .
and need not be based solely on evidence admissible in the courtroom." State
in Interest of B.G., 247 N.J. Super. 403, 409 (App. Div. 1991) (citations
omitted). Moreover, the nature of a probable cause determination "does not
require the fine resolution of conflicting evidence that a reasonable -doubt or
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even a preponderance standard demands, and credibility determinations [will]
seldom [be] crucial in deciding whether the evidence supports a reasonable
belief in guilt." J.M., 182 N.J. at 417 (alterations in original) (quoting Gerstein
v. Pugh, 420 U.S. 103, 122 (1975)).
"On a finding of probable cause for any of [the] enumerated offenses, no
additional showing is required for waiver to occur. Jurisdiction of the case shall
be transferred immediately." R. 5:22-2(c)(3). "Simply stated, when a [fifteen-
year-old] or above is charged with an enumerated offense, the prosecutor need
only establish probable cause for the court to waive the juvenile to adult court."
J.M., 182 N.J. at 412. That being said, "a juvenile seeking to avoid the 'norm'
of waiver . . . when probable cause is found to exist, must carry a heavy burden
to clearly and convincingly show that the prosecutor was arbitrary or committed
an abuse of his or her considerable discretionary authority to compel waiver."
State in re V.A., 212 N.J. 1, 29 (2012).
The Family Part may deny a juvenile waiver motion if it is "clearly
convinced that the prosecutor abused his or her discretion in considering the
factors set forth within N.J.S.A. 2A:4A-26.1(c)(3)." R. 5:22-2(c). Here, Judge
Maven cited to these statutory factors and found no such abuse of discretion.
Further, she was satisfied the State established probable cause that defendant, at
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age sixteen, possessed a defaced, loaded handgun for an unlawful purpose. She
also found the State showed "the history of retaliation between the [HSG] and
the rival group," together with defendant's association with the HSG and his
possession of a handgun, created "a reasonable inference that [defendant] carried
a weapon that evening in anticipation [of] and for his protection as is a common
gang practice." Judge Maven concluded: "[T]he State has adequately
considered the information presented by defense counsel and has not abused its
discretion when considering the statutory factors."
A Family Part judge's decision in juvenile waiver cases must be "grounded
in competent, reasonably credible evidence" and "correct legal principles [must]
be applied." In re State ex rel. A.D., 212 N.J. 200, 214-15 (2012) (quoting State
v. R.G.D., 108 N.J. 1, 15 (1987)). We review juvenile waiver cases to assess
"whether the correct legal standard has been applied, whether inappropriate
factors have been considered, and whether the exercise of discretion constituted
a 'clear error of judgment' in all of the circumstances." State in Interest of J.F.,
446 N.J. Super. 39, 51-52 (App. Div. 2016) (quoting R.G.D., 108 N.J. at 15).
Consideration should be given to the family court's expertise, common sense
and experience in adjudicating such matters. Id. at 52 (citing R.G.D., 108 N.J.
at 16 n.7). Only where the Family Part judge exercises a "clear error of judgment
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that shocks the judicial conscience" will a reviewing court substitute its own
judgment for that of the waiver court. A.D., 212 N.J. at 215 (quoting R.G.D.,
108 N.J. at 15). Here, we perceive no error of judgment in Judge Maven's
decision to waive defendant's case to adult court, as her findings are amply
supported by the record.
Likewise, we are satisfied Judge DeLury did not err in denying defendant's
application for a Graves Act waiver.
Prior to his sentencing, defendant moved for a Graves Act waiver. When
the State objected to the waiver, defendant claimed the prosecutor's objections
were arbitrary. Defendant insisted the prosecutor failed to consider certain
factors, such as defendant's purported limited and non-violent role in the events
leading to his indictment, his untreated mental health issues and his recent
efforts toward rehabilitation.
A prosecutor "must provide written reasons for withholding consent to a
[Graves Act] waiver in order to promote procedural fairness and to ensure
meaningful judicial review." State v. Benjamin, 442 N.J. Super. 258, 266 (App.
Div. 2015), aff'd as modified, 228 N.J. 358 (2017). If a prosecutor opposes a
defendant's request to be sentenced under the "escape valve provision of
N.J.S.A. 2C:43-6.2, 'the defendant may [appeal the denial of the waiver] by
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arguing to the [a]ssignment [j]udge that the prosecutor's refusal is a patent and
gross abuse of discretion.'" Id. at 264-65 (quoting State v. Watson, 346 N.J.
Super. 521, 535 (App. Div. 2002)); see State v. Alvarez, 246 N.J. Super. 137,
147 (App. Div. 1991). A defendant may also request the sentencing judge r efer
the matter to the assignment judge for leniency. See Alvarez, 246 N.J. Super.
at 140. A prosecutor's decision not to pursue or endorse a waiver application
"will not be disturbed on appeal unless arbitrary, capricious, or unduly
discriminatory." Cannel, N.J. Criminal Code Annotated, cmt. 2 on N.J.S.A.
2C:43-6.2 (2019) (citing State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App.
Div. 1996)). Here, Judge DeLury found no such abuse of discretion on the part
of the State.
In fact, Judge DeLury concluded the State considered all applicable
factors and fairly applied the Graves Act to the circumstances of the case. Judge
DeLury explained:
[Defendant's] juvenile history is lengthy and serious.
He has adjudications for weapons, mischief, theft,
assault, threats and the like. He has served terms of
juvenile detention. It would appear that his criminality
has escalated sharply and dangerously. But for the
sheer happenstance, the conduct of the defendant and
that of his co-defendants could have resulted in much
more serious injury or death.
....
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Based on all of these facts and circumstances, the
[c]ourt finds the following sentencing factors.
Aggravating factor [N.J.S.A. 2C:44-1(a)(3)] applies
and has the greatest weight . . . . Given his track record
as a juvenile and his now adult record, it is clear that
the defendant, given the opportunity, will offend again.
His more recent claims of more appropriate behavior
are belied by his history.
Aggravating factor [N.J.S.A. 2C:44-1(a)(5)]
applies and has some weight based on the stipulation of
the parties and the submissions of the State concerning
the Graves motion. There is ample evidence showing
there is substantial likelihood defendant was involved
in organized criminal activity associated with criminal
street gangs in Atlantic City.
Aggravating factor [N.J.S.A. 2C:44-1(a)(6)]
applies and has great weight. The extent of the
defendant’s prior juvenile record and the seriousness of
the offenses for which he’s been convicted now are
significant. This factor alone militates against a
downward departure from the Graves Act.
Aggravating factor [N.J.S.A. 2C:44-1(a)(9)]
applies and has the greatest weight. There is [a] need
for deterring this defendant specifically and others from
violating the law . . . . The purpose of the Graves Act is
deterrence. This defendant’s conduct and possession of
a firearm in the commission of an offense is squarely
within the contemplation of the Graves Act.
[(Emphases added).]
"Appellate review of sentencing decisions is relatively narrow and is
governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,
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297 (2010). However, we do not defer to legal determinations made by the trial
judges and examine questions of law de novo. State v. Gandhi, 201 N.J. 161,
176 (2010). Guided by these principles, we find no basis to disturb Judge
DeLury's denial of a Graves Act waiver, given that his findings were based on
competent and credible evidence in the record.
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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