                                NOT FOR PUBLICATION WITHOUT THE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).
                                                                           A-5703-17T3
                                        2
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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                                       3
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."


                                                                         A-5703-17T3
                                           4
      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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                                       5
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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                                           6
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


                                                                            A-5703-17T3
                                         7
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


                                                                         A-5703-17T3
                                       8
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.

                      ....

                                                                           A-5703-17T3
                                           9
                  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,

                                                                         A-5703-17T3
                                       10
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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                                      11
