State in the Interest of E.S., ___ N.J. Super. ___ (App. Div. 2021). Judge Sabatino concisely posed the purely legal issue presented on this appeal:
“This interlocutory appeal presents an unsettled question concerning the fair and appropriate sequence of proceedings in the prosecution of a juvenile offender who the State wishes to waive to adult court pursuant to N.J.S.A. 2A:4A-26.1. The question arises in a context where the juvenile moves to suppress evidence that the State will rely upon at the waiver hearing and also possibly seek to admit at an eventual trial.
Should the suppression hearing be conducted first by a judge in the Family Part before the waiver hearing? Or should the waiver hearing take precedence, and, if the juvenile is waived, the suppression hearing then be conducted by a judge in the Criminal Part? The juvenile, joined by amici, argues the suppression hearing should take place first, while the State argues the waiver hearing should occur first.”
Judge Sabatino carefully discussed “the profound importance of a decision to waive a minor accused of an offense to the adult criminal court,” as well as the fact that both Family Part and Criminal Part judges can and do hear suppression motions, as “both have the expertise to adjudicate such motions, and to apply the pertinent constitutional or legal standards that may at times require suppression.” Motions for leave to appeal are equally available, under “no different standards,” from suppression decisions of either Part.
The panel stated that the answer to the question posed “depends on the situation” and rejected any bright line rule. Trial judges “have substantial discretion in controlling their own calendar[s].” Judge Sabatino’s opinion invoked that discretion and placed confidence in trial judges to make this “discretionary, highly contextual decision.” He proceeded to outline some circumstances where one path or the other might be the correct one. But the panel did “advise trial judges to apply a general preference toward conducting the suppression hearing first, in light of the policy concerns associated with the powerful impact of waivers upon minors.”
In this particular case, the Family Part ruled that the waiver hearing was to proceed first. The Appellate Division affirmed that ruling. “The general preference we have set forth to prioritize the suppression motion is outweighed in this case by the adult alleged co-perpetrator’s companion motion to suppress the fruits of the same warrantless police search and seizure. Moreover, no special logistical circumstances have been identified to us that make the judge’s chosen sequence manifestly impractical or unfair.”
Judge Sabatino concluded by stating that this decision did not “foreclos[e] a different approach being developed in the future by a Court Committee of stakeholders and the adoption of a Court Rule prescribing the procedures and standards.” That was one of five times that he pointed out the absence of a Court Rule on the subject, a fact also noted by the Family Part. Especially given this focus on the need for a Court Rule, it would not be surprising if the Supreme Court granted review in this case and used it as a vehicle to create such a Court Rule, as Busik v. Levine, 63 N.J. 351 (1973), recognizes is within the Court’s power, or directs a committee to develop such a Court Rule.