NOT FOR PUBLICATION WITHOUT THE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-4398-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMAAL CAMPBELL,
Defendant-Appellant.
____________________________
Submitted December 21, 2016 – Decided September 13, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 14-12-3442.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jason A. Coe, Assistant Deputy
Public Defender, of counsel and on the
briefs).
Diane M. Ruberton, Acting Atlantic County
Prosecutor, attorney, for respondent
(Sevan Biramian, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Jamaal Campbell appeals from a May 4, 2015 judgment
of conviction for second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b), charged in count twenty-one of Indictment No.
14-12-3442. Defendant was initially charged as a juvenile in a
complaint alleging acts of delinquency that, if committed by an
adult, would constitute second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b) (count one), and second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (count two). After the State prevailed on its motion to
waive jurisdiction by the Family Part and prosecute defendant as
an adult pursuant to N.J.S.A. 2A:4A-26(a),1 he was charged with
both offenses in counts twenty-one and twenty-two, respectively,
of Indictment No. 14-12-3442. Thereafter, defendant entered a
negotiated guilty plea to count twenty-one of the indictment and
was sentenced to a five-year term of imprisonment with a three-
year period of parole ineligibility pursuant to the Graves Act,
N.J.S.A. 2C:43-6(c). On appeal, defendant challenges the Family
Part order waiving jurisdiction, arguing that the State failed to
establish probable cause that he possessed a handgun for an
1
We note that this case was adjudicated long before N.J.S.A.
2A:4A-26 was repealed and replaced by N.J.S.A. 2A:4A-26.1, which
went into effect on March 1, 2016. L. 2015, c. 89, § 1.
Accordingly, all references to the waiver statute are to the prior
law.
2 A-4398-14T1
unlawful purpose, a Chart 1 offense, and that the State abused its
discretion in seeking a waiver. After reviewing the arguments
advanced on appeal, in light of the record and applicable law, we
affirm.
I.
Over the course of four days, two witnesses testified for the
State at the waiver hearing, Detective Charles Stewart and Sergeant
Christopher Barber, both veteran officers with the Atlantic City
Police Department. Defendant's mother testified for the defense.
Barber was qualified as an expert in the areas of organized
criminal gang activity and firearms. The State's proofs
demonstrated that on June 23, 2013, defendant, then seventeen-
years-old, possessed a handgun to further the illicit activities
of two known gang members who had engaged in a nightlong spree of
violence against rival gang members and innocent civilians that
began on June 22, 2013. During the previous month, approximately
fourteen gang-related shootings were attributed to two rival
gangs, Dirty Blok and 800 Blok. Defendant was believed to be
associated with Dirty Blok, and specifically, two of Dirty Blok's
senior members, Austin Clark and Abdul Bailey.
The crime spree began at 5:30 p.m. on June 22, 2013, when
police responded to a report of ten shots fired in the Carver Hall
section of Atlantic City, an area known for drug trafficking,
3 A-4398-14T1
shootings, homicides and gang activity. The shooter, who was
described as an African-American male wearing a blue fisherman-
style hat and a blue and white shirt, was identified as Clark.
Although neither Clark nor the intended target were located, two
.380 caliber shell casings were found at the scene. Next, at 6:24
p.m., police responded to a report of a carjacking at gunpoint in
the 300 block of Madison Avenue. The victim reported that an
African-American male wearing a blue fisherman-style hat and a
blue jacket took his black SUV after pointing a handgun in his
face. The victim later identified Clark as the carjacker. A male
who was with Clark fled on foot and three males at the scene tried
to intimidate the victim while he was talking to the police by
pointing at him.
Five minutes later, at 6:29 p.m., the ShotSpotter, a gunshot
detection system, alerted police dispatch that three shots were
fired in the area of North Maryland Avenue, a high crime area and
essentially the home territory for the 800 Blok gang. Within a
minute of the alert, a 9-1-1 caller reported that their home
located on North Maryland Avenue was struck by gunfire. When
police responded to the scene, they found a man who was shot in
the leg but refused to cooperate with law enforcement. Witnesses
reported, however, that the shots were fired from a black SUV
4 A-4398-14T1
matching the description of the vehicle that was carjacked five
minutes earlier.
At 7:35 p.m., police responded to a report of an armed robbery
on Belfield Avenue. The victim reported that an African-American
male wearing a fisherman-style hat pulled up in a black SUV while
he was standing outside of his home and ordered him to turn over
his belongings. When the victim hesitated, the robber shot him
in the arm and fled. A .380 caliber shell casing was recovered
in the street and the victim later identified Clark as the robber.
At 7:38 p.m., the ShotSpotter again alerted police dispatch to
gunfire in the 600 block of Drexel Avenue. When police responded,
they found a parked blue Volkswagen and the adjacent residence hit
by gunfire. The fender of the Volkswagen was also struck by a
black vehicle.
At 7:43 p.m., the ShotSpotter and a 9-1-1 caller alerted
police to gunfire in the area of North Rhode Island. When police
responded, they discovered that a residence located on North Rhode
Island was struck by five gunshots. Witnesses reported that,
before the shooting, a black SUV was seen near three African-
American males standing on the block. After the gunshots were
fired, the SUV fled. Police were unable to locate the three
purported targets but shattered glass believed to be from the
carjacked black SUV was recovered at the scene.
5 A-4398-14T1
At 8:23 p.m., police received a tip that Clark was seen on
New Jersey Avenue and, at 8:27 p.m., police recovered the carjacked
black SUV in a vacant lot parallel to Drexel Avenue and close to
Clark's residence. The SUV's windows were shattered and three
bullets were found inside the vehicle, consistent with someone
shooting at the vehicle. At 10:14 p.m., police responded to a
report of a disturbance at the Schoolhouse Apartments located on
North Martin Luther King Boulevard, another high crime area. The
Schoolhouse Apartments and the Stanley Holmes Village, a housing
project located just north of the Schoolhouse Apartments, was the
home territory for the Dirty Blok gang.2 Police located a blood
trail at the Schoolhouse Apartments that led to an apartment where
the residents reported that Clark pistol-whipped one of the
residents who was a known Dirty Blok associate, while saying
"[t]hat ni**er just tried to play me. I'm going to kill you."
Clark then reportedly fled towards the Stanley Holmes Village.
At 11:35 p.m., dispatch received a 9-1-1 call reporting
another armed robbery on J.J. Waters Street. When police
responded, the victims reported that two males stole their cell
phones and fired a single shot before fleeing. The gunman was
2
After the State rested, defendant's mother testified that
defendant lived with her in the Stanley Holmes Village. She
testified further that although she was not home on the dates in
question, defendant was there with his older sister.
6 A-4398-14T1
identified as Clark and the other robber was identified as Bailey,
who lived less than a block away on Robinson Avenue. Sometime
after midnight, while police responded to the Robinson Avenue
address in pursuit of Clark and Bailey, a gunshot was heard in
that area. In response, a large police presence, consisting of a
SWAT team as well as uniformed and plain-clothes officers,
converged on Robinson Avenue and secured the residence as well as
the outside perimeter. Bailey was found in the perimeter and
arrested. Defendant was also found in the perimeter in proximity
to Bailey. Defendant was initially detained by police but was
later arrested when a .45 caliber semi-automatic handgun with six
rounds in the magazine and one round loaded in the chamber was
recovered from his front waistband. Barber testified that the gun
was cocked, loaded and ready to be discharged and could be quickly
retrieved from its location. While defendant and Bailey were
awaiting transportation to police headquarters, Bailey told
defendant "Keep your mouth shut. Don't say a f**king thing." In
response, defendant calmly nodded in the affirmative.
Around the same time, police spotted Clark on an exterior
stairwell of an Indiana Avenue residence, which faced the rear
patio of Bailey's home on Robinson Avenue. A foot pursuit ensued
which resulted in Clark's apprehension. A .380 caliber handgun
with an empty magazine inserted inside was recovered on the
7 A-4398-14T1
stairwell where Clark was first spotted. According to Barber, the
handgun had a round stuck between the slide and the ejection port
that caused the gun to malfunction. Barber also testified that a
live .45 caliber round was recovered on the rear patio of Bailey's
residence that was in the same condition as the rounds found in
the handgun recovered from defendant. According to Barber, the
handgun recovered from defendant was missing one round. No other
ammunition was found in the rear of Bailey's residence and the
location of the round was a position from which cover could have
been provided for Clark. A blue and white sweat jacket was also
found in the back yard of Bailey's residence and a fisherman-style
hat was recovered inside Bailey's home.
In describing the operation, structure, membership and
hierarchy of the Dirty Blok gang, Barber explained that the gang
was a criminal enterprise that primarily made money through drug
trafficking and was prone to violence and subject to internal
conflicts and jockeying for leadership positions. Barber
described the distinction between membership and associate
membership and explained that membership could be established
through self-reporting, social media, tattoos, clothing, and
congregating in certain geographical areas. According to Barber,
a newcomer to the gang could rise within the organization by
performing designated tasks such as watching out for rival gang
8 A-4398-14T1
members or police coming into the area, providing security to
protect both gang territory and other gang members, facilitating
drug trafficking, or enforcing the rules of the organization both
internally and externally through acts of violence.
Barber testified that although he was unaware of defendant's
affiliation with the Dirty Blok gang prior to the events that
transpired from June 22 to 23, 2013, after those events he detected
a pattern. According to Barber, the events showed that defendant
was associated with the Dirty Blok gang based on defendant's
proximity to Bailey and Clark at the time and place in question,
Bailey's order to defendant to keep his mouth shut to which
defendant assented, and the fact that defendant was armed with a
cocked and loaded readily accessible firearm in an area where a
known gang member was being sought by police.
Following the waiver hearing, in a written decision issued
on May 13, 2014, Judge Joseph Marczyk found probable cause that
defendant possessed the loaded handgun for an unlawful purpose and
concluded that the prosecutor's decision to seek waiver did not
constitute an abuse of discretion under the Attorney General's
Guidelines. The judge acknowledged there was no evidence defendant
was present during any of the violent crimes committed by Clark
and Bailey prior to their arrest and that defendant was not
identified by law enforcement as a member or associate of the
9 A-4398-14T1
Dirty Blok gang prior to his arrest. The judge acknowledged
further that defendant was never observed in the rear of the
Robinson Avenue address and the live .45 caliber round found there
was a different color than the rounds found in the handgun
recovered from defendant.
However, Judge Marczyk rejected defendant's argument that
there was insufficient evidence defendant possessed the handgun
for an unlawful purpose or was associated or involved with gang
activity. Judge Marczyk found "there was sufficient evidence
produced . . . to demonstrate the existence of the Dirty Blok and
800 Blok gangs" and "that Austin Clark and Abdul Bailey were
associates or members of the gang." The judge found further that
"Austin Clark and Abdul Bailey were involved in gang related
criminal activity on June 22, 2013 shortly before their arrest in
the area of the . . . Robinson Avenue residence."
In concluding that the State established probable cause that
defendant possessed the handgun for an unlawful purpose, the judge
explained:
Specifically, [defendant] entered into an area
that he knew was being monitored by police
while carrying a loaded .45 caliber handgun.
Moreover, he remained in the location of
. . . Robinson Avenue after a shot was heard
in the area shortly after the robbery on JJ
Waters Avenue involving Austin Clark and Abdul
Bailey. Shortly after the robbery, he was
found in front of the . . . Robinson Avenue
10 A-4398-14T1
residence with Abdul Bailey who had just been
purportedly involved in an armed robbery. It
should also be noted that [defendant] was
arrested with Bailey and in the vicinity of
where Clark was arrested shortly thereafter.
In the context of an evening in which Austin
Clark and Abdul Bailey participated in a
series of shootings, robberies and assaults,
[defendant] was found with a loaded handgun
in his waistband, with Bailey and in the
vicinity of Clark. This evidence and the
reasonable inferences demonstrate for the
purposes of probable cause, that he was
operating to further the interest of the Dirty
Blok gang and in particular, two of the
members or associates, Austin Clark and Abdul
Bailey. It should also be noted that the
weapon found on [defendant] was one round
short of being full. An unspent .45 caliber
round was located following his arrest in the
back of the . . . Robinson Avenue property in
the area . . . where Austin Clark's bucket
style/fisherman's hat was located. His
presence at the scene of the arrests of the
Dirty Blok gang members or associates, Clark
and Bailey, coupled with the fact that he was
carrying a loaded high caliber handgun leads
the [c]ourt to believe there is a well-
grounded suspicion that [defendant] possessed
the weapon for the unlawful purpose of
furthering the interests of the Dirty Blok
gang and to use it unlawfully against the
person or property of another. This is
further supported by the testimony that after
the seizure of his weapon, [defendant] nodded
affirmatively to Abdul Bailey who told him to
keep his mouth shut and not say a f***ing
thing.
The judge also rejected defendant's argument that the State
abused its discretion in seeking waiver. Judge Marczyk considered
defendant's assertions that "[defendant] was not present at any
11 A-4398-14T1
of the sites of the criminal activity that took place earlier in
the evening[,]" and "there [was] no evidence that [defendant]
acted in collusion or as an accomplice with Clark or Bailey." The
judge also considered defendant's contention that "while bench
warrants were outstanding at the time of his arrest, he had never
been adjudicated [delinquent] of any prior offenses." However,
Judge Marczyk was persuaded by the State's analysis that
"notwithstanding the lack of prior adjudications, . . . the ongoing
conflict between the Dirty Blok gang and the 800 Blok gang and the
negative impact on the quality of life of large segments of the
community coupled with the evidence that [defendant] was
associated with the Dirty Blok organization" supported the State's
decision to seek waiver. The judge concluded that the statement
of reasons provided by the State "describe[d] in great detail the
nature of the offense and the surrounding circumstances" rather
than "a 'series of cursory conclusions.'" Moreover, according to
the judge, the State adequately "addresse[d] the other factors set
forth in the guidelines[.]"
On appeal, defendant argues:
POINT I
THE FACTS AND ALLEGATIONS PRESENTED BY THE
STATE, AND THE FINDINGS OF THE TRIAL COURT,
WERE INSUFFICIENT AS A MATTER OF LAW TO
ESTABLISH PROBABLE CAUSE THAT J.C. COMMITTED
THE OFFENSE OF POSSESSING A WEAPON FOR AN
12 A-4398-14T1
UNLAWFUL PURPOSE BECAUSE NO ACTUAL UNLAWFUL
PURPOSE WAS EVER DEFINED.
POINT II
BY IMPROPERLY ANALYZING SOME OF THE FACTORS
SET FORTH IN THE ATTORNEY GENERAL JUVENILE
WAIVER GUIDELINES, AND FAILING TO CONSIDER
OTHERS, THE STATE ABUSED ITS DISCRETION IN
DECIDING TO SEEK WAIVER IN THIS CASE.
POINT III
THE STATE VIOLATED J.C.'S DUE PROCESS RIGHTS
BECAUSE IT CHARGED HIM WITH POSSESSION FOR AN
UNLAWFUL PURPOSE SOLELY TO SECURE A TACTICAL
ADVANTAGE BY PREVENTING HIM FROM ASSERTING THE
POSSIBILITY OF REHABILITATION AS A DEFENSE TO
WAIVER.
We reject each of these contentions and affirm substantially for
the reasons expressed in Judge Marczyk's cogent and well-reasoned
written opinion. We conclude Judge Marczyk's decision to grant
the waiver met all constitutional and statutory requirements and
followed the applicable legal standards. We add only the following
comments.
N.J.S.A. 2A:4A-24 confers jurisdiction over offenses
committed by juveniles to the Family Part. N.J.S.A. 2A:4A-26(a)
vests the prosecutor with discretion to seek a waiver of this
jurisdiction for certain specified offenses committed by a
juvenile fourteen years of age or older. These offenses are
referred to as "Chart 1" offenses, and include unlawful possession
of a weapon, N.J.S.A. 2A:4A-26(a)(2)(a), possession of a weapon
13 A-4398-14T1
for an unlawful purpose, N.J.S.A. 2A:4A-26(a)(2)(i), and offenses
committed in "an aggressive, violent and willful manner." N.J.S.A.
2A:4A-26(a)(2)(d).
We consider the Family Part judge's decision in juvenile
waiver cases under an abuse of discretion standard, which requires
that "findings of fact be grounded in competent, reasonably
credible evidence" and "correct legal principles be applied." In
re State ex rel. A.D., 212 N.J. 200, 214-15 (2012) (citation
omitted). Only where the Family Part judge exercises a "'clear
error of judgment that shocks the judicial conscience'" will we
substitute our own discretion for that of the waiver court. Id.
at 215 (quoting State v. R.G.D., 108 N.J. 1, 15 (1987)).
In the case of a juvenile sixteen years or older charged with
a Chart 1 offense, the only issue to be determined by the Family
Part judge at the 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.
14 A-4398-14T1
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 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., supra,
182 N.J. at 417 (quoting Gerstein v. Pugh, 420 U.S. 103, 122, 95
S. Ct. 854, 867, 43 L. Ed. 2d 54, 69 (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 sixteen-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., supra, 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).
To ensure uniform application of the waiver statute, pursuant
to N.J.S.A. 2A:4A-26(f), the Attorney General has promulgated
guidelines that prosecutors must follow in making the waiver
15 A-4398-14T1
decision. Attorney General's Juvenile Waiver Guidelines (March
14, 2000) (Guidelines), available at
http://www.nj.gov/oag/dcj/agguide/pdfs/AG-Juvenile-Waiver-
Guidelines.pdf. The Guidelines, in turn, "require preparation of
a written statement of reasons for waiver, in which the prosecutor
must 'include an account of all factors considered and deemed
applicable.'" V.A., supra, 212 N.J. at 12 (quoting Guidelines,
supra, at 7). The factors to be considered by the prosecutor are:
the nature of the offense; deterrence; the effect of waiver on co-
defendants; the maximum sentence and length of time to be served
if prosecuted as an adult or as a juvenile; the juvenile's prior
record, if any; trial considerations and the victim's input.
Guidelines, supra, at 5-6.
The prosecutor's statement of reasons must reflect an
individualized consideration of the evidence, taking into account
all applicable factors. See V.A., supra, 26-27. If the statement
"is a mere regurgitation of the Guidelines' language, that will
not show that the prosecutor engaged in an individualized decision,
rendering the overall decision susceptible to the claim that it
is arbitrary and constitutes an abuse of discretion." Id. at 28.
The burden of proof rests with the juvenile to show "clearly and
convincingly that a prosecutor abused his or her discretion[.]"
Id. at 26.
16 A-4398-14T1
Judged by these standards, we agree with Judge Marczyk that
the prosecutor established probable cause that defendant, an
associate with the Dirty Blok gang and its two senior members,
possessed a cocked, loaded and accessible handgun for an unlawful
purpose, namely, to be used in connection with unlawful gang
violence. Further, defendant failed to carry his heavy burden to
show that the prosecutor's decision to seek waiver constituted an
abuse of discretion. The prosecutor's statement of reasons
discussed in sufficient detail all of the Guidelines' factors that
were relevant to the waiver decision and made a reasoned,
qualitative evaluation of those factors. We therefore conclude
Judge Marczyk's findings of fact were "grounded in competent,
reasonably credible evidence," he applied the "correct legal
principles[,]" and there was no "clear error of judgment that
shocks the judicial conscience." R.G.D., supra, 108 N.J. at 15.
Affirmed.
17 A-4398-14T1
STATE OF NEW JERSEY VS. JAMAAL CAMPBELL (14-12-3442, ATLANTIC COUNTY AND STATEWIDE)
Combined Opinion