STATE OF NEW JERSEY IN THE INTEREST OF A.W. (FJ-07-0388-21 and FJ-07-0508-21, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3763-20
STATE OF NEW JERSEY
IN THE INTEREST OF A.W.,
a Juvenile.
___________________________
Submitted February 2, 2022 – Decided March 7, 2022
Before Judges Whipple, Geiger, and Susswein.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Family Part,
Essex County, Docket Nos. FJ-07-0388-21 and FJ-07-
0508-21.
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for appellant (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondent (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
By leave granted, the State appeals the July 23, 2021 Family Part order
denying the prosecutor's application to transfer jurisdiction of this juvenile
delinquency matter to the Law Division pursuant to N.J.S.A. 2A:4A-26.1. That
process is commonly referred to as "waiving" a juvenile over to adult criminal
court. A.W.1 is charged as a juvenile with carjacking, unlawful possession of a
weapon, possession of a weapon for an unlawful purpose, and conspiracy to
commit carjacking. He was seventeen years old at the time he allegedly
committed these offenses.
After carefully reviewing the record in light of the applicable legal
principles, we are constrained to reverse and remand the matter for a new
juvenile waiver hearing in the Family Part. The written statement of reasons
submitted by the prosecutor was flawed and was not properly approved within
the prosecutor's chain of command. Additionally, in weighing the statutory
factors that militate for and against waiving the prosecution over to the adult
criminal court, the Family Part Judge appears to have substituted her own
judgment for that of the prosecutor. Given the import of the waiver decision to
the interests of both the juvenile and the public, we deem it prudent to remand
for a new hearing to address deficiencies in the process that resulted in the
Family Part judge denying waiver. We believe a remand is necessary to ensure
1
We use initials to protect the identity of the juvenile involved in this case. See
R. 1:38-3(d).
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2
that the waiver decision is based on complete and accurate information,
affording appropriate deference to the prosecutor's exercise of discretion in
weighing the relevant factors under the statutory framework.
I.
We discern the following pertinent facts and procedural history from the
record. In doing so, we are mindful that A.W. has not yet been tried and is
presumed innocent.
On the morning of August 11, 2020, the owner of a black Jeep Cherokee
reported to the Verona Police Department that his vehicle had been stolen from
his driveway. Later that same morning, South Orange Police Department
officers responded to a report that an Audi Q5 had been stolen during a
carjacking incident. The owner of the Audi stated that he had noticed a black
Jeep Cherokee when he stopped at a bank and later when he arrived at a
Maplewood day care facility to drop off his three-year-old son. The Jeep
Cherokee pulled in front of the Audi and blocked it. A young black male
wearing a dark short-sleeved shirt exited the Jeep, displayed a black handgun,
and demanded, "give me everything you got." The gunman then entered the
Audi Q5 and drove away in the same direction as the Jeep. Fortunately, the
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3
victim was able to remove his three-year-old child from the Audi before it sped
off.
The carjacked Audi was recovered in Newark following a police pursuit
and crash. Video provided by bystanders shows a young black male exit the
Audi and enter the passenger side of the Jeep. The Jeep was later recovered in
Newark. Police found latent fingerprints in both stolen vehicles.
The State Police Automated Fingerprint Identification System (AFIS)
established that A.W.'s fingerprints were found in both stolen vehicles, and that
co-defendant Jeremy Delgado's 2 fingerprints were found in the Jeep Cherokee.
The owners of the Audi and the Jeep told police that they do not know A.W. or
Delgado and did not give them permission to use their respective vehicles.
On August 19, 2020, A.W. was taken into custody and charged as a
juvenile with first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and
second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2(a)(1) and
N.J.S.A. 2C:15-2(a)(2). The prosecutor later filed an additional juvenile
delinquency complaint charging A.W. with third-degree theft of the Jeep
2
Delgado is an adult and is not a party to this waiver litigation.
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Cherokee, N.J.S.A. 2C:20-2(b)(2)(b). Delgado was charged by complaint-
warrant and later indicted for the same offenses.
On October 8, 2020, the State filed a notice of motion for jurisdictional
waiver to adult court and provided a written statement of reasons supporting the
motion. The statement of reasons explained that A.W. had previously been
arrested for various offenses, been placed on probation, violated probation three
times between May 2019 and January 2020, and had bench warrants issued for
his non-appearance. The initial statement of reasons also represented that A.W.
had previously served a custodial disposition in a state juvenile facility.
On December 9, 2020, the Family Part judge held a status conference at
which A.W. objected to the State's waiver motion and submitted documentation
in opposition. The defense noted that the prosecutor's original statement of
reasons had not been "approved by the County Prosecutor and/or the
[p]rosecutor's designee before submission of the request for waiver by the
assigned assistant prosecutor to the [c]ourt," as required by N.J.S.A. 2A:4A-
26.1(a).
On December 31, 2020, the State filed a supplemental submission on its
waiver motion and sought joinder of the two juvenile delinquency complaints.
A-3763-20
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In response to A.W.'s objection that neither the County Prosecutor nor a
designee had approved the initial statement of reasons, the State explained,
the waiver was decided after the following steps: the
undersigned [assistant] prosecutor reviewed the file and
the[n] spoke with the victim; the undersigned
prosecutor presented this case to the undersigned's two
immediate supervisors of the Special Prosecutions
Unit, who after discussing the case individually, agreed
this matter should be waived . . . from the Family Court
to Criminal Court; this matter was explained to the
Chief Assistant Prosecutor of Major Crimes during
several meetings; and following defense counsel's
motion, this matter was formally presented to the Chief
Assistant Prosecutor solely for his signature, which was
approved on December 10, 2020. Contrary to [d]efense
counsel's argument that this was presented without
care, numerous prosecutors at different levels reviewed
and approved this matter for the waiver.
The supplemental filing also stated that A.W. "has numerous prior
detentions from his many arrests, and one prior custodial adjudication on May
29, 2019 for [thirty-four] days [committed to a juvenile facility]."
On January 19, 2021, the Family Part judge convened a second status
conference at which she granted the State's motion for joinder of the two juvenile
complaints without objection.
On May 18, 2021—two days before the scheduled waiver hearing—the
State supplemented its initial statements of reasons to address two
Individualized Educations Programs (IEPs) dated January 19, 2017 and January
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17, 2018, and a Treatment Assessment Services for the Courts (TASC) 3
evaluation dated September 28, 2020. The prosecutor's supplemental statement
of reasons reads in pertinent part:
(e) Special Classification of Juvenile
The State has received two . . . IEP reports that
classify the juvenile as being emotionally disturbed
which interfered with his learning ability and required
Behavioral Disabilities Special Classes. No other
disabilities were mentioned. This factor weighs against
the waiver of the juvenile.
(j) Evidence of Mental Health Concerns/Substance
Abuse/Emotional Instability of Juvenile
The State has received a TASC evaluation that
states that the juvenile has a history of marijuana and
opiate use that began at [thirteen] and [sixteen] years of
age respectively, and the juvenile has opioid
dependence. Additionally, the report stated that the
juvenile reported serious depression and serious
anxiety as prior psychological problems. This factor
weighs against the waiver of the juvenile.
....
The factors in favor of waiver outweigh those
which support handling this matter in family court.
Specifically, the nature of the offense, wherein the
juvenile committed an armed carjacking which
involved danger to a three[-]year[-]old child, weigh in
3
The TASC program evaluates defendants for substance abuse problems to
determine clinical eligibility and suitability for admission to the Drug Court
Program. See State v. Harris, 466 N.J. Super. 502, 541 (App. Div. 2021).
A-3763-20
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favor of a jurisdictional waiver. The incident shows a
blatant disregard for the value of human life or
property.
While the State has reviewed the juvenile's prior
history of behavioral and substance problems, as well
as the prior history of contacts with the system, the
State does not believe this mitigation outweighs the
other factors in its analysis . . . .
THE WAIVER HEARING
On May 19 and 20, 2021, the court convened a probable cause and waiver
hearing. On the first day of the hearing, the State elicited testimony from South
Orange Police Department Detective Frank Auriemma, the lead detective
investigating the carjacking incident. Detective Auriemma testified that police
obtained two surveillance videos that show the theft of the Jeep Cherokee in
Verona, two videos that show the carjacking, and one video that shows the Audi
crashing in Newark after the carjacking. One video shows "a Hispanic actor
wearing red and white clothing" entering the passenger side of the Jeep and "a
tall, thin black male wearing black and white" clothing entering the driver's side.
The black male operated the vehicle and reversed out of the driveway.
Another video shows the Jeep following the Audi as it was being operated
by its owner. The victim's three-year-old son was in the Audi. The video shows
the perpetrator brandishing a handgun and the driver frantically retrieving a
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child from the back seat just before the carjacker drives the Audi away. Another
video shows police pursuing the Jeep driven by a Hispanic male wearing red and
the Audi driven by a young black male. The stolen vehicles were traveling at
seventy-three miles per hour on a road with a thirty-five mile per hour speed
limit.
Detective Auriemma testified that approximately twenty minutes after the
carjacking, the Audi overturned and crashed in Newark. A video shows the
driver of the Audi exit the crashed vehicle and enter the passenger side of the
Jeep. Police found the Jeep four or five blocks from where the Audi crashed.
On the second day of the waiver hearing, counsel for the State and
defendant both consented to admitting into evidence the IEPs and the TASC
evaluation. The prosecutor argued there was probable cause to support the
waiver application and then elaborated on the State's reasons for seeking waiver
in the context of the relevant factors set forth in N.J.S.A. 2A:4A-26.1(c)(3)(a)–
(k).4
As to the first enumerated factor, N.J.S.A. 2A:4A-26.1(c)(3)(a) ("[t]he
nature and circumstances of the offense charged"), the State explained that the
nature of the present crimes weighs heavily in favor of waiver because A.W. is
4
We list the eleven statutory factors in section II of this opinion.
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charged with carjacking—one of the most serious non-homicide crimes in the
penal code—as well as both conspiracy to commit carjacking and using a firearm
during the carjacking episode. The State further argued that A.W. led police on
a "significant and dangerous chase through South Orange into Newark to avoid
apprehension."
As to the second statutory factor, N.J.S.A. 2A:4A-26.1(c)(3)(b)
("[w]hether the offense was against a person or property, allocating more weight
for crimes against the person"), the State argued that the present crimes weigh
in favor of waiver because they were committed against multiple victims, not
just property, and presented a danger to the public.
As to the third factor, N.J.S.A. 2A:4A-26.1(c)(3)(c), (the "degree of the
juvenile's culpability,"), the State reasoned that A.W.'s culpability weighs in
favor of waiver, arguing that A.W. was more culpable than Delgado because he
personally brandished a firearm to commit the carjacking and crashed the stolen
car while fleeing.
As to the fourth factor, N.J.S.A. 2A:4A-26.1(c)(3)(d), (A.W.'s "[a]ge and
maturity"), the prosecutor argued it was neutral, militating neither for nor
against waiver, because the IEPs show that A.W. "does actually seem quite
capable. It seems like he is someone who understands his position and the
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challenges he faces, or he faced at those times, and did understand what he had
to do, but was having difficulty getting to that point." The State further argued,
as to factor nine, N.J.S.A. 2A:4A-26.1(c)(3)(i) ("[c]urrent or prior involvement
of the juvenile with child welfare agencies"), that this factor is neutral.
As to factor ten, N.J.S.A. 2A:4A-26.1(c)(3)(j) ("[e]vidence of mental
health concerns, substance abuse, or emotional instability of the juvenile to the
extent this information is provided to the prosecution by the juvenile or by the
court"), the State acknowledged that A.W.'s mental health and substance abuse
issues weigh against waiver. A.W.'s TASC evaluation found that he suffers from
a drug dependency involving opiates, depression, and anxiety.
As to factor eight, N.J.S.A. 2A:4A-26.1(c)(3)(h) ("[i]f the juvenile
previously served a custodial disposition in a State juvenile facility operated by
the Juvenile Justice Commission"), the State conceded that in its original
statement of reasons, it had presented and relied on inaccurate information as to
A.W.'s prior criminal history with respect to whether he had previously served
a custodial disposition. The prosecutor explained:
As part of the original submission, the State did list all
of his prior arrests, for which some were dismissed, as
well as ones for which he did receive probation and then
subsequent violations of probation. During one of
those times, he did have a sentence, or not a sentence,
a time at which he was in custody. I apologize. I
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understand there is no excuse for it. I misread that as
being a custodial sentence. So, as part of that, the State
did state that that was part of the reason that weighed
in favor of a waiver.
The State nonetheless argued at the hearing that ultimately, it did not rely
on prior arrests that did not result in adjudications of delinquency. The judge
did not accept that argument, responding:
The second submission by the State that you wish
to rely on and that you are arguing based on, I don't
have anything for Mr. Fennelly, Mr. Higgins or anyone
else that is the designee of the State that indicates that
they were apprised that the representations of this
young man's prior history were not accurate. And that's
a heavy, that's one of the heavy factors for a waiver.
I know you said in your brief that you discussed
everything fully with Mr. Fennelly, that he signed off
on it, to include that the young man served a custodial
disposition in a State facility operated by the Juvenile
Justice Commission is just not accurate. And I accept
your representation that you didn't understand that to be
the case. But it still exists as part of your underpinning
for both your original filing on October 8th of 2020,
which was shortly before the statute would have
expired and then your subsequent filing after being put
on notice by the defense that they intended to raise
these as significant concerns.
....
If I accept Mr. Fennelly as the prosecutor's
designee for this particular matter, I have nothing from
October to today that says Mr. Fennelly reconsidered
the fact that he didn't get the correct information about
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this young man's prior history when it was presented to
him for his consideration for waiver. Prior history is a
significantly weighted factor in the waiver statute.
That's my concern.
....
The Court's concern is the lack of detailed
presentation of the waiver application itself. And in
this instance a second filing unsupported with either an
affidavit or certification as to the State's efforts to cure
the unintentional errors that it made in filing the initial
application in October.
THE FAMILY PART JUDGE'S RULING
On July 23, 2021, the Family Part judge issued a written opinion, finding
probable cause 5 for each of the charged offenses and joining the complaints for
waiver purposes. However, the judge denied the State's application for waiver
5
The defense has not cross-appealed the finding of probable cause, which is an
essential predicate to waiver. See N.J.S.A. 2A:4A-26.1(c)(2). We note the State
on appeal argues that much of the Family Part judge's written opinion denying
waiver focuses on what the judge described as "obvious shortcomings" in the
State's investigation. The State argues that the judge's criticisms of the
investigation show "a serious misunderstanding of a judge's role when reviewing
a waiver motion." We need not address the State's argument except to note that
once probable cause is established, as it was in this case, evidentiary issues and
"legitimate concerns raised as to the limited investigation conducted," to use the
judge's phraseology, are not factors bearing on the propriety of the prosecutor's
decision to seek waiver to adult court. Such problems are appropriately
addressed by the trial court, whether that be in the Family Part or adult Criminal
Part.
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to adult court. The judge concluded that the State failed to properly analyze
statutory factors (e), (g), (h), and (j) and thus abused its discretion.
With respect to factors (g) and (h), the judge reasoned:
[i]n the State's notice of motion dated October 08, 2020,
the State[] includes facts and circumstances in sections
(g) and (h) of the statement of reasons that are not in
accordance with the clear parameters of N.J.S.A.
2A:4A-26. In addition, the State failed to comply with
the requirement that the State's application be approved
by the County Prosecutor and/or the Prosecutor's
designee before submission of the request for waiver by
the assigned assistant prosecutor to the Court.
The judge further noted, "[t]he State erroneously included any and all
charges filed against A.W. including charges that have been dismissed and
erroneously stated that A.W, served a custodial sentence." The court rejected
the State's argument "that it was not incorrect to include prior arrests, concluding
without support that 'nowhere does the language (of the statute) state that prior
arrests are not to be considered or presented in a waiver.'" The court added:
There is nothing in the [s]tatutes' plain language
that indicates the State should consider and include
arrests without adjudication in the analysis. The State
eventually acknowledged that its inclusion of this
material was erroneous but contends that the errors are
on "[of] moment[.]" The State contends that its
inclusion and reliance upon A.W. serving a "custodial
term" at a Juvenile Justice Commission Facility[] was
based on the State's erroneous reading of A.W.'s
F.A.C.T.S. history (Family Automated Court Tracking
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System) believing that time spent by A.W. at the Essex
County Detention Center prior to adjudication qualified
as a custodial term.
The alleged failure of the State to understand
what constitutes a custodial term in a J.J.C. (Juvenile
Justice Commission) facility and the assistant
prosecutor's reliance upon same as justification for the
State's error is misplaced and the Court finds it[] of
significant moment by including this erroneous
information [in] allowing Chief Assistant Prosecutor
Fennelly to consider and rely upon same as he reviewed
the assistant prosecutor's application before submission
to the Court compounded the error. The Court finds
that the reliance in factors (g) and (h) on incorrect
information constitutes an abuse of discretion by the
State, whether same was intentional or not. The failure
to properly address the juvenile's actual history and
lack of custodial dispositions negates the State's
position that it properly assessed factors (g) and (h) in
either the submission with a signature or without. The
documents are exactly the same and both contain
erroneous, prejudicial information that the State relied
upon and upon which the State determined "weigh
heavily in favor of waiver."
With respect to factors (e) and (j), 6 the court noted that despite A.W.'s two
IEPs and a TASC evaluation showing that A.W. was emotionally disturbed,
required Behavioral Disabilities Special Classes, and has substance abuse and
6
In her written opinion, the judge at one point referred to factor (f), which
appears to be a typographical error. The context of the judge's analysis clearly
indicates that she was focusing on factor (j). We also note that the judge listed
(j) in the conclusion as opposed to (f).
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mental health issues, "the State in three [] one[-]sentence paragraphs concluded
that the factors favoring waiver outweigh the foregoing concerns." The court
found "that the State's assessment of factors [e] and [j] are lacking in specificity
and detail and are conclusory in nature."
On August 26, 2021, the State filed a motion for leave to appeal the order
denying jurisdictional waiver. On August 27, 2021, we granted the State's
motion. This appeal follows.
The State raises the following contentions for our consideration:
POINT I
THE COURT BELOW SUBSTITUTED ITS
JUDGMENT FOR THE PROSECUTOR'S WHEN IT
DENIED THE STATE’S WAIVER MOTION.
A. THE WAIVER STATUTE AND APPLICABLE
CASELAW.
B. THE LOWER COURT'S DECISION IS
FUNDAMENTALLY FLAWED AND MUST BE
REVERSED.
I. FACTOR G PERMITS CONSIDERATION
OF A JUVENILE'S ENTIRE HISTORY OF
DELINQUENCY, NOT JUST PRIOR
ADJUDICATIONS. REGARDLESS, IN THIS
CASE, THE PROSECUTOR MADE CLEAR
THAT HE WITHDREW ANY
CONSIDERATION OF THOSE PRIOR
CONTACTS IN SEEKING WAIVER.
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II. THE PROSECUTOR'S INITIAL
SUBMISSION OF AN UNSIGNED VERSION
OF HIS STATEMENT OF REASONS, AND HIS
FINDING THAT FACTOR H WEIGHED IN
FAVOR OF WAIVER, WERE REASONABLE,
DE MINIMIS MISTAKES QUICKLY
CORRECTED.
III. THE PROSECUTOR'S ANALYSIS OF
FACTORS E AND J, WHILE PERHAPS NOT
AN "ACADEMIC TOME," WAS SUFFICIENT
GIVEN THE EVIDENCE A.W. PRESENTED
AND THE CHARGED OFFENSES.
IV. THE JUDGE ERRED IN GIVING
OVERWHELMING WEIGHT TO HER
PERSONAL DISSATISFACTION WITH THE
STATE'S INVESTIGATION AND PROOFS.
V. RATHER THAN IMPOSE THE DRASTIC
REMEDY OF DENYING WAIVER, THE
JUDGE SHOULD HAVE REMANDED THE
MATTER BACK TO THE PROSECUTOR TO
CURE THE SUPPOSED DEFICIENCIES IN
HIS STATEMENTS OF REASONS.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. As our Supreme Court has recognized, "'waiver to the adult court
is the single most serious act that the juvenile court can perform' . . . because
once waiver of jurisdiction occurs, the child loses all the protective and
rehabilitative possibilities available to the Family Part." State v. R.G.D., 108
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N.J. 1, 4–5 (1987) (citation omitted). A juvenile charged with committing
criminal acts, "if they are proven, usually will be exposed [in adult court] to
much more severe punitive sanctions, often including lengthy prison terms and
mandatory periods of parole ineligibility." State in the Int. of Z.S., 464 N.J.
Super. 507, 513 (App. Div. 2020). In this instance, if jurisdiction is tra nsferred
to adult court, A.W. will be subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, on the carjacking charge, and the Graves Act 7 on the
handgun charges. NERA requires that a convicted defendant serve 85% of the
prison term before becoming eligible for parole. The Graves Act also requires
a term of imprisonment with a minimum term of parole ineligibility. In stark
contrast, if A.W. were to instead be tried in juvenile court and adjudicated
delinquent, he would not face a mandatory term of imprisonment and parole
ineligibility.
Our standard of review in juvenile waiver cases "is 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
7
The Graves Act is named for Senator Francis X. Graves, Jr., who sponsored
legislation in the 1980s mandating imprisonment and parole ineligibility terms
for persons who committed certain offenses while armed with a firearm. The
term now refers to all gun crimes that carry a mandatory minimum term of
imprisonment.
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judgment' in all of the circumstances." State in the Int. of J.F., 446 N.J. Super.
39, 51–52 (App. Div. 2016) (quoting R.G.D., 108 N.J. at 15). Furthermore, "the
standard of review of the prosecutor's waiver decision is deferential. The t rial
court should uphold the [prosecutor's] decision unless it is 'clearly convinced
that the prosecutor abused his [or her] discretion in considering' the enumerated
statutory factors." Z.S., 464 N.J. Super. at 519–20.
Under this deferential standard, a Family Part judge may not substitute his
or her judgment for that of the prosecutor. State in the Int. of V.A., 212 N.J. 1,
8 (2012). Rather, the juvenile court conducts a limited, yet substantive, review
to ensure the prosecutor made an individualized decision about the juvenile that
was neither arbitrary nor abused the prosecutor's considerable discretion. Ibid.;
see also State in the Int. of N.H., 226 N.J. 242, 255 (2016) ("[U]nder the new
law as well as the old, the prosecutor's decision to seek waiver is subject to
review—at the hearing—for abuse of discretion.").
In 2015, the Legislature enacted major revisions to our State's juvenile
justice system, including a revamping of the waiver statute. Those reforms took
effect in March 2016. L. 2015, c. 89, § 1; Z.S., 464 N.J. Super. at 515–16.
"Section 26 of Title 2A:4A was repealed and replaced with new Section 26.1."
Z.S., 464 N.J. Super. at 516.
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The revised statute retains the deference that must be accorded to the
prosecutor's decision to seek waiver. Id. at 519 (citing N.H., 226 N.J. at 249).
Furthermore, and of significant importance in this appeal, the revised statute
continues the strong presumption of waiver for juveniles who commit serious
acts. Ibid. As we noted in Z.S., juveniles who commit serious crimes carry a
"heavy burden" to defeat a prosecutor's waiver motion. Ibid. (citing R.G.D., 108
N.J. at 12).
The statutory revisions that took effect in 2016 list the factors that
prosecutors must consider in exercising their discretion to seek waiver to adult
court. Those factors are:
(a) The nature and circumstances of the offense
charged;
(b) Whether the offense was against a person or
property, allocating more weight for crimes against the
person;
(c) Degree of the juvenile's culpability;
(d) Age and maturity of the juvenile;
(e) Any classification that the juvenile is eligible for
special education to the extent this information is
provided to the prosecution by the juvenile or by the
court;
(f) Degree of criminal sophistication exhibited by the
juvenile;
A-3763-20
20
(g) Nature and extent of any prior history of
delinquency of the juvenile and dispositions imposed
for those adjudications;
(h) If the juvenile previously served a custodial
disposition in a State juvenile facility operated by the
Juvenile Justice Commission, and the response of the
juvenile to the programs provided at the facility to the
extent this information is provided to the prosecution
by the Juvenile Justice Commission;
(i) Current or prior involvement of the juvenile with
child welfare agencies;
(j) Evidence of mental health concerns, substance
abuse, or emotional instability of the juvenile to the
extent this information is provided to the prosecution
by the juvenile or by the court; and
(k) If there is an identifiable victim, the input of the
victim or victim's family.
[N.J.S.A. 2A:4A-26.1(c)(3).]
In Z.S., we carefully and comprehensively explained the guiding
principles governing judicial review of the exercise of prosecutorial discretion
in deciding whether a case will be heard in adult or juvenile court. 464 N.J.
Super. at 533. As we recognized in Z.S., our Supreme Court has made clear that
"the State has an 'affirmative obligation to show that it assessed all the
[statutory] factors' concerning waiver, and the court must review this
assessment." Ibid. (alteration in original) (citing N.H., 226 N.J. at 251; N.J.S.A.
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2A:4A-26.1(b)). The State must provide a written assessment at the time of its
waiver motion, laying out the facts it relied on to assess the eleven statutory
"factors 'together with an explanation as to how evaluation of those facts support
waiver for each particular juvenile.'" Ibid. (quoting N.J.S.A. 2A:4A-26.1(a)).
We emphasized in Z.S. that the sufficiency of the prosecutor's written
statement of reasons is vital, and that it "should apply the factors to the
individual juvenile and not simply mirror the statutory language in a cursory
fashion." Ibid. (quoting N.H., 226 N.J. at 250). We explained,
[a] fundamental aspect of the statutory procedure is that
the prosecutor's reasons for seeking waiver must be
expressed in written form, with fair notice to the
opposing side. The juvenile's attorney must not be
forced to guess why the prosecutor believes a particular
factor does or does not apply, and why that factor is
comparatively strong, neutral, or weak. The defense
lawyer, and the juvenile himself, must be informed
about why this momentous decision to waive is being
pursued. A fulsome explanation will enable the defense
to prepare to counter it, possibly with additional
mitigating evidence about the circumstances of the
offense or about the juvenile's personal characteristics.
Upon learning the prosecutor's reasoning, the defense
may seek further mitigating opinions from experts, as
well as records of medical or mental health treatment,
or additional documents from schools or governmental
agencies.
[Id. at 533–34.]
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We further emphasized in Z.S. that the statement of reasons "cannot be
incomplete or superficial," cannot make "conclusory assertions that are devoid
of analysis," and, as math teachers tell their students, must "show the work." Id.
at 534. We nonetheless made clear, "[t]his is not to say that prosecutor waiver
statements must emulate Victorian novels or academic tomes. They need not
elaborate about minutiae." Id. at 535. Importantly, we also acknowledged that
"because positive and negative factors will often exist, the prosecutor's ultimate
conclusion balancing those offsetting factors may not be amenable to precise
articulation." Ibid.
We add that while the significance of the written statement of reasons
cannot be overstated, it is not an end unto itself. Rather, it is a means to achieve
a just result. The statement of reasons provides the foundation for the waiver
hearing. As we noted in Z.S., "[o]ral argument [at the waiver hearing] should
not be the first time the defense learns of the prosecutor's reasons" for seeking
to try the minor as an adult. Id. at 543. The written statement of reasons,
however, does not supplant the hearing, nor render it a perfunctory ritual. So
long as the defense has sufficient notice and a fair opportunity to respond to the
prosecutor's arguments, a prosecutor is not categorically precluded at the
hearing from amplifying, supplementing, or correcting information or argument
A-3763-20
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contained in the written statement of reasons. We do not apply to the statement
of reasons, in other words, the "four corners" rule used, for example, in
reviewing the sufficiency of a search warrant application. Cf. State v. Sheehan,
217 N.J. Super. 20, 24 (App. Div. 1987) ("As a general rule, questions
concerning the validity of a search warrant hinge upon the information contained
within the four corners of the supporting affidavit."); but cf. Z.S., 464 N.J.
Super. at 543 (distinguishing State v. Hoffman, 399 N.J. Super 207, 217–18
(App. Div. 2008), a Pretrial Intervention (PTI) case where the prosecutor had
"covered the grounds for rejection amply at the hearing before the trial court,"
even though shortcomings existed in the letter rejecting PTI. In Hoffman, we
reasoned that the stakes in a juvenile waiver proceeding are far greater than those
at a PTI hearing, and therefore found it inappropriate to remand.).
As we have already noted, the critical process of weighing competing
statutory factors "may not be amenable to precise articulation." Z.S., 464 N.J.
Super. at 535. The weighing process, moreover, is qualitative. It is "not a
mechanical quantitative process." Id. at 542. As we emphasized in Z.S., "[t]o
be sure . . . the waiver analysis is not a counting exercise. Some factors can
have more importance or probative strength than others." Ibid.
A-3763-20
24
Z.S. makes clear that "[n]o one factor . . . may be treated as dispositive—
such as the severity of the charged offense." Id. at 535. Subject to that caveat,
we reiterate and stress that under the deferential standard of judicial review we
apply, the decision as to how much weight to accord each statutory factor
remains vested in the discretion of the prosecutor. So too, the final balancing of
factors that militate for and against waiver is a prosecutorial function subject
only to limited judicial review under the deferential abuse-of-discretion
standard. Accordingly, even if a prosecutor's assessment of a particular factor
is erroneous, the net result of the cumulative weighing process may not
automatically constitute an abuse of discretion with respect to the final decision
whether to waive jurisdiction to adult court. A prosecutorial error with respect
to gauging the value of a particular statutory factor, in other words, may be
harmless in the sense that correcting the error would not change the ultimate
result. We nonetheless caution that any errors must be reviewed carefully for
their effect, and when in doubt, a reviewing court may require the prosecutor to
reevaluate his or her final qualitative evaluation, taking into account the
corrected factor(s).
A-3763-20
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III.
We next apply the foregoing foundational principles to the matter before
us. We first address the Family Part judge's conclusion that the prosecutor
improperly considered A.W.'s juvenile record, factor (g), by accounting for
arrests that did not result in an adjudication of delinquency. The prosecutor
made clear at the waiver hearing that it had withdrawn any consideration of
arrests that resulted in dismissals. We decline to address the State's argument
on appeal that factor (g) permits consideration of arrests that did not result in
adjudication, since the prosecutor essentially abandoned that contention before
the motion court by arguing that it was not relying on such arrests. We leave
that statutory construction issue to be decided in a future case where the State
actually relies on dismissed juvenile complaints to support its application of
factor (g) as militating for waiver. See Indep. Realty Co. v. Twp. of N. Bergen,
376 N.J. Super. 295, 301 (App. Div. 2005) ("Although there is no express
language in New Jersey's Constitution which confines the exercise of our
judicial power to actual cases and controversies, . . . nevertheless it is well
settled that we will not render advisory opinions or function in the abstract.")
As we have noted, nothing in the statutory framework categorically
precludes the prosecutor at a waiver hearing from amending or correcting
A-3763-20
26
information or argument contained in the written statement of reasons, so long
as the defense has a fair opportunity to respond to the new information or
argument. In this instance, we see no prejudice to A.W. by the State's
announcement at the hearing that it would focus solely on his prior adjudications
of delinquency and probation violations 8 in applying factor (g). Accordingly,
the Family Part judge should not have focused on the State's initial reliance on
arrests that did not result in an adjudication of delinquency. Rather, the judge
should have focused on whether the State abused its discretion in relying on
A.W.'s prior adjudications of delinquency and probation violations in
determining that factor (g) militates in favor of waiver. Clearly, A.W.'s juvenile
record militates in favor of waiver, especially because he is presently charged
with carjacking—an aggravated form of robbery—after having previously been
adjudicated delinquent for robbery.
We nonetheless recognize that the judge was properly concerned as to
whether the State's revised assessment had been reviewed and approved by the
County Prosecutor or his designee. It is conceivable that prior to withdrawing
its consideration of dismissed juvenile complaints at the waiver hearing, the
8
The record shows that A.W. has been adjudicated delinquent for second-
degree robbery and third-degree theft. He also was found to have violated
juvenile probation on three occasions.
A-3763-20
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State had initially given added weight to this factor based on those arrests. We
note that review and approval by the County Prosecutor or his designee is
required not just for the assessment of individual factors, but also as to the
overall balancing of the factors militating for and against waiver. We reiterate
the admonition in Z.S. that "[n]o one factor . . . may be treated as dispositive
. . . ." 464 N.J. Super. at 535. Rather, it is the totality of relevant factors that
determines ultimately whether waiver is appropriate. It thus follows that a
significant change to the assessment made in the initial statement of reasons, as
occurred at the hearing in this case with respect to A.W.'s juvenile history, must
be reviewed and approved by the County Prosecutor or his designee.
Accordingly, as we later explain, on remand, we expect the prosecutor to
issue a revised statement of reasons in advance of the new waiver hearing that
focuses on A.W.'s delinquency adjudications and probation violations and
indicates whether the prosecutor accords low, medium, or high value to this
factor in favor of waiver.
We turn next to the mistake made by the prosecutor with respect to factor
(h) regarding whether A.W. had previously served a custodial disposition in a
State juvenile facility operated by the Juvenile Justice Commission (J.J.C.). In
reviewing A.W.'s juvenile court record, the prosecutor who prepared the initial
A-3763-20
28
statement of reasons incorrectly attributed a period of pretrial detention in the
county detention center as a custodial disposition. The Family Part judge found
this mistake to be "of significant moment." However, this error was identified
and corrected at the waiver hearing. As we have noted, the prosecutor's waiver
decision is not bound to the four corners of the written statement of reasons.
The correction of the prosecutor's initial unintended error, of course, changes
the calculus of the totality of relevant factors, but does not, in our view,
constitute an abuse of discretion sufficient to justify denial of the State's waiver
application.
We next address the Family Part judge's conclusion that the State did not
adequately address factors (e) and (j) with respect to the IEPs and TASC
evaluation. Those documents had been provided by the defense after the initial
statement of reasons was submitted. The judge criticized the State's cursory
written supplementation.
Importantly, the prosecutor acknowledged that these evaluations militated
against waiver, but concluded that waiver was still appropriate considering all
other relevant factors. We reiterate that the weighing process is not a
mechanical one and that the prosecutor's assessment of the weight afforded to
each factor is entitled to deference.
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Furthermore, the prosecutor at the waiver hearing elaborated on the
significance of those documents. With respect to factor (e), the prosecutor at
the hearing stated:
As the evidence has been presented through the IEP, he
was designated as having I think the phrasing is
emotionally disturbed, but he ultimately as a result of
that was given a special education plan within the
Newark school system. I did read [the IEPs] carefully,
and I do recognize some of the challenges that the
juvenile faced. I would understand that this, with the
supplemental submissions of defense counsel would
weigh against the mitigation—or would be mitigating
would weigh against the waiver. But I also do think
that the IEPs are interesting in the sense that, again, it
does show that he actually I think is quite aware of what
is happening, what's going on. He does seem quite
mature in terms of understanding the challenges that he
faces and seems to sort of recognize his own problems
with them. It's not as though he is completely unaware
of what's happening. He knows what he has to do, it's
just that he is having difficulty doing it.
With respect to factor (j), the State recognized the significance of the
TASC evaluation, acknowledging A.W.'s history of marijuana use that began at
age thirteen and opiate use that began at age sixteen. The prosecutor also
acknowledged that A.W. had psychological problems in the form of "serious
depression and serious anxiety."
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Although the judge criticized the State's analysis of these factors as
"conclusory," the fact remains that the prosecutor deemed these factors to
militate against waiver. In Z.S., we explained,
[n]or should the statement of reasons ignore or gloss
over highly relevant information. If, for example, the
defense attorney has presented evidence under factor (j)
that the juvenile has mental health concerns, substance
abuse problems, or emotional instability, it will not
suffice for the statement of reasons to say, without
further explanation, that such evidence was
"considered" but doesn't matter. The written statement
must reasonably address the content of the defense
material and explain why it is flawed, inadequately
supported, internally contradictory, or otherwise
unpersuasive.
[464 N.J. Super. at 534.]
In this instance, the prosecutor is not contesting or discounting the TASC
evaluation or IEPs. To the contrary, the prosecutor is accepting them as
militating against waiver. Accordingly, less detail is required to explain the
prosecutor's analysis of these documents than would be required if the
prosecutor had instead contested or discounted them.
The gravamen of the judge's finding of a prosecutorial abuse of discretion
is that the State did not accord sufficient weight to factors (e) and (j) in relation
to the factors that militate in favor of waiver, such as the severity of charged
crimes; the danger posed to public safety, including the danger to a three -year-
A-3763-20
31
old child who might unwittingly have been kidnapped and seriously injured in
the ensuing crash; and A.W.'s juvenile history, which includes a prior robbery
adjudication. That leads us to conclude that the judge did not afford appropriate
deference to the prosecutor's exercise of discretion in conducting the qualitative
weighing process, but instead substituted her own judgment for that of the
prosecutor.
We nonetheless decline to reverse the judge's ruling and order that A.W.
be waived over to adult court. We recognize that A.W. is charged with a serious
violent crime while armed with a handgun, and that he has previously been
adjudicated delinquent for robbery. The State refers to the "obvious imbalance
in favor of waiver." We are not satisfied, however, that all of the procedural
safeguards prescribed in the waiver statute have been followed. We generally
agree with the Family Part judge that the statement of reasons was flawed. The
State's position on the reasons for waiver was, metaphorically, a moving target.
As a result, it remains uncertain whether the final calculus of factors militating
for and against waiver had been properly reviewed and approved by the County
Prosecutor or his designee. That approval is an important safeguard within the
waiver process to ensure an appropriate and uniform exercise of prosecutorial
discretion. Precisely because the standard of judicial review is limited and
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32
deferential, it is important that the exercise of prosecutorial discretion is
carefully circumscribed with the chain of command of the prosecutor's office.
Given that the stakes are "so momentous," Z.S., 464 N.J. Super. at 513, it
is essential to make certain that all procedural and substantive safeguards are
adhered to. It is necessary, in other words, to dot all the "i's" and cross all the
"t's" before A.W. is made to face adult prosecution for a first-degree NERA
offense. The interests of both the juvenile and the public require strict
compliance with the waiver statute. We therefore remand to the Family Part for
a new waiver hearing.
We instruct that the prosecutor shall prepare a new, comprehensive, and
up-to-date written statement of reasons. As to each statutory factor, the
prosecutor shall not only indicate whether the fact-sensitive circumstances
relevant to that factor militate for or against waiver, or are neutral, but also
whether the prosecutor accords low, medium, or high value to that factor.
Furthermore, the narrative explanations in the statement of reasons as to each
factor shall be sufficiently detailed. Id. at 534 ("The statement of reasons cannot
be incomplete or superficial. Conclusory assertions that are devoid of analysis
are inadequate."). The statement of reasons, moreover, must be approved in
writing by the County Prosecutor or his designee.
A-3763-20
33
The new statement of reasons shall be served upon the Family Part court 9
and defense counsel within thirty days of this opinion. The court shall thereafter
schedule a new waiver hearing as soon as practicable. Because we are
essentially wiping the slate clean to address mistakes made by both the
prosecutor and the Family Part judge, and because the waiver decision is vested
in the discretion of the prosecutor subject to limited judicial review, we offer no
opinion on whether A.W. should be tried as a juvenile or as an adult.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
9
It is our understanding that the judge who denied the State's waiver application
is no longer assigned to the Family Part. We therefore need not address the
State's request that any remand be assigned to a new judge.
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