State in the Interest of, A.A.M.

548 A.2d 524, 228 N.J. Super. 9, 1988 N.J. Super. LEXIS 362
CourtNew Jersey Superior Court Appellate Division
DecidedJune 23, 1988
StatusPublished
Cited by2 cases

This text of 548 A.2d 524 (State in the Interest of, A.A.M.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State in the Interest of, A.A.M., 548 A.2d 524, 228 N.J. Super. 9, 1988 N.J. Super. LEXIS 362 (N.J. Ct. App. 1988).

Opinion

HONIGFELD, J.S.C.

This opinion supplements reasons given in open court in deciding the probable cause and waiver eligibility aspects of a motion for waiver of a juvenile offender to adult court. The decision requires interpretation of the amendments to the juvenile waiver statute, N.J.S.A. 2A:4A-26, enacted as part of the Comprehensive Drug Reform Act of 1986 (A. 1987, c. 106).

The sole evidence as to probable cause concerning the juvenile, A.A.M. (age 17) was the testimony of Detective George Lytwyn of the Newark Police Department, assigned to narcotics investigation. Detective Lytwyn received a tip from an informant that a blue Datsun with license plates in the window would come from New York with a male and female in it to the area of St. Rose of Lima School, in Newark, with a large quantity of cocaine to make a “drop.” He set up surveillance in the area, which he knew to be a limited pedestrian one, around midnight or the early morning hours of January 22, 1988. He noticed a vehicle fitting the informant’s description appear about one block from St. Rose School, an estimated 150 to 200 feet away, and observed it parked at that location for approximately one-half hour. It then began leaving, but Detective Lytwyn prevented its departure. A male, later identified as one Jose Rodriquez, was driving the vehicle, while A.A.M. was in the passenger seat. Neither occupant owned the vehicle. In the car were some 87 loose vials of what was believed to be crack on the floor and front seat, another 13 vials in an opened plastic bag, and two closed plastic bags containing 100 vials apiece. Total weight of the cocaine was later found to have been 60 grams.

[12]*12No currency was confiscated, nor had any sales or other transactions been observed. A.A.M. was charged with possession of a controlled dangerous substance under N.J.S.A. 2C:35-10, possession with intent to distribute a controlled dangerous substance pursuant to N.J.S.A. 2C:35-5, as well as possession of same with intent to distribute within 1000 feet of school property, violative of N.J.S.A. 2C:35-7.

The pertinent provisions of N.J.S.A. 2A:4A-26, the juvenile waiver statute, provide:

Heferral to another court without juvenile’s consent
a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction of a case from the family court to the appropriate court and prosecuting authority having jurisdiction if it finds:
(1) The juvenile as 14 years of age or older at the time of the charged delinquent act; and
(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:
(a) Criminal homicide other than death by auto, strict liability for drug induced deaths, pursuant to N.J.S. 2C:35-9, robbery which would constitute a crime of the first degree, aggravated sexual assault which would constitute a crime of the second degree, kidnapping or aggravated arson; or
(e) A violation of N.J.S. 20:35-3, N.J.S. 2C:35-4, or N.J.S. 2C:35-5; or
(3) Except with respect to any of the acts enumerated in subsection a.(2)(a) of this section, or with respect to any act enumerated in subparagraph (e) of subparagraph (2) of subsection a. of this section which involve the distribution for pecuniary gain of any controlled dangerous substance or controlled dangerous substance analog while on any property used for school purposes which is owned by any school or school board, or within 1000 feet of any school property or while on any school bus, or any attempt or conspiracy to commit any of those acts, the State has shown that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interests of the public require waiver.
However, if in any case the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted.

Clearly, probable cause exists that A.A.M. possessed the controlled dangerous substance with the intent to distribute [13]*13same, violative of N.J.S.A. 2C:35-5. For establishment of probable cause, “no more is demanded than a well-grounded suspicion or belief that an offense is taking place and the individual is a party to it.” State v. Sims, 75 N.J. 337, 347-348 (1978). The presence in a limited pedestrian area of Newark of a vehicle from New York containing a large quantity of cocaine (far in excess of the amount two individuals might possess purely for personal consumption), in the wee hours of the morning with neither the operator or passenger owning the car, and with the quantity being an even 300 vials, 200 of which were packed in two plastic bags containing exactly 100 vials each, are all circumstances implying that the vehicle’s occupants possessed the vials of cocaine with the intention to distributing them. Under State v. Brown, 80 N.J. 587 (1979), the intent to distribute a controlled dangerous substance may be inferred from the facts and circumstances surrounding the possession.

A critical issue is whether the possession with intent to distribute a controlled dangerous substance charge, in this case, rises to the level of a so-called “Chart 1” offense for purposes of juvenile waiver. Our Supreme Court, in State v. R.G.D., 108 N.J. 1 (1987) described “Chart 1” offenses as those serious crimes such as murder, robbery and sexual assault which are the prime candidates for waiver, and for which there is indeed a presumption or legislative preference for waiver. These offenses, unlike the other less serious waivable offenses designated “Chart 2” offense, do not require a showing by the State “that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interests of the public requires waiver,” under N.J.S.A. 2A:4A-26. The “Chart 1” offenses are of a nature that charge itself is a sufficient reason justifying referral to the Law Division.

The key language in N.J.S.A. 2A:4A-26a.(3) on which this court must focus is “which involve the distribution for pecuniary gain.” If there is probable cause that the possession with intent to distribute a controlled dangerous substance, with [14]*14which A.A.M. is charged, under N.J.S.A. 2C:35-5, was one which involved the distribution for pecuniary gain, it would be a “Chart 1” offense, having occurred well within 1000 feet of school property.

A.A.M. argues that the qualifying phrase “which involve the distribution for pecuniary gain” means that the State must present evidence of an actual transaction with the exchange of money. This Court disagrees with that restrictive interpretation. While “involve” has several related meaning the one most appropriate for this statute is “to relate closely, connect, link.” Websters Third New International Dictionary (1969). Had the Legislature desired to limit the “Chart 1” waivable cases arising out of N.J.S.A. 2C:35-5 to those where actual sales occurred, it could easily have done so.

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Related

State ex rel. A.J.
556 A.2d 1283 (New Jersey Superior Court App Division, 1989)
State in Interest of AJ
556 A.2d 1283 (New Jersey Superior Court App Division, 1989)

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Bluebook (online)
548 A.2d 524, 228 N.J. Super. 9, 1988 N.J. Super. LEXIS 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-in-the-interest-of-aam-njsuperctappdiv-1988.