N.J. Superior Court, Appellate Division

JUVENILE LAW – Motion for Waiver – 30-Day Time Limit

State in the Interest of D.Y.,

A-0490-07T4; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication February 4, 2008. Before Judges Coburn, Fuentes and Grall. On appeal from the Chancery Division, Family Part, Burlington County, FJ-03-2202-07. DDS No. 14-2-9572 [7 pp.]

On March 22, 2007, police found the deceased victim, who had been stabbed, lying on the floor with a bloody kitchen knife nearby. The police developed probable cause indicating that D.Y., who was 16 years old, and another juvenile and three adults were responsible for the assault that led to the victim’s death. On April 24, 2007, D.Y. was charged in the Family Court with second-degree aggravated assault.

On May 22, 2007, during the investigation, the police were told that before the assault, D.Y., while at his house, brought out three steak knives and handed them to two of the co-defendants, telling them to “suit up.” One of the co-defendants told police that D.Y. said they were going to the bar to assault the victim, who had earlier struck D.Y.’s father. After the assault, the co-defendant added, he saw D.Y. and another co-defendant throw knives on the roof of a building near the bar. On June 1, the police searched the rooftop of a building near the bar and found two knives that matched the knife found at the bar and matched knives still present at D.Y.’s house.

Because of this information, the prosecutor filed a complaint in the Family Part charging D.Y. with murder, at which time the assault charge was dismissed. On June 20, 2007, the prosecutor filed the notice of motion for waiver of the murder charge to the Criminal Part, including a detailed statement of reasons. The motion was filed more than 30 days after filing the aggravated assault complaint, but within 30 days after filing the murder complaint. The Family Part judge denied the motion, ruling that it was untimely and that the prosecutor failed to show good cause for extending the 30-day time limit set forth in N.J.S.A. 2A:4A-26 and in Rule 5:22-2(a). The Appellate Division granted the state leave to appeal.

Held: The Appellate Division reversed, finding that the filing of the motion for waiver was timely in that it was filed within 30 days of the filing of the murder complaint to which it was addressed. However, even if the 30-day time limit began to run with the filing of the first complaint for assault, the prosecutor showed good cause to extend the time limit due to the development of subsequent information related to the defendant’s role in the incident.

Under N.J.S.A. 2A:4A-26(d), the waiver motion must be “filed by the prosecutor within 30 days of receipt of the complaint.” That time limit may be extended but only “for good cause shown.” The Appellate Division found that the 30 days begin to run from the date on which the complaint to which the waiver motion was addressed is filed; here, the murder complaint.

Even assuming that the prosecutor was obliged to file the waiver motion within 30 days of the filing of the first complaint, the Appellate Division noted that it would still reverse because good cause was shown for extension of the time limit. Neither the statute nor the rule requires that the motion for an extension be filed within the 30-day period. The motion was filed less than 60 days after the first complaint was filed. At the time the first complaint was filed, D.Y.’s precise role in the attack was uncertain. When the subsequent investigation revealed that D.Y. appeared to be the primary instigator of the attack, the case against D.Y. changed dramatically. The prosecutor reasonably determined that a charge of murder could be maintained against D.Y., and promptly filed the new complaint. The Appellate Division concluded that under these circumstances the prosecutor showed good cause for an extension of the 30-day limit.

The Appellate Division remanded to the Family Part on the issues of whether the waiver complied with the “Juvenile Waiver Guidelines” issued by the attorney general and whether it constituted a gross and patent abuse of discretion.

– By Debra McLoughlin

For appellant -Timothy M. Ellis, Assistant Prosecutor (Robert D. Bernardi, Burlington County Prosecutor). For respondent – Lon Taylor, Assistant Deputy Public Defender (Yvonne Smith Segars, Public Defender).