State in the Interest of J.F.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0392-15T3
STATE IN THE INTEREST OF APPROVED FOR PUBLICATION
J.F.,
June 16, 2016
A Juvenile. APPELLATE DIVISION
______________________________
Argued March 2, 2016 – Decided June 16, 2016
Before Judges Fuentes, Koblitz and Gilson
(Judge Gilson concurring).
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FJ-01-620-14.
Sevan Biramian, Assistant Prosecutor, argued
the cause for appellant State of New Jersey
(James P. McClain, Atlantic County
Prosecutor, attorney; Elliot J. Almanza,
Assistant Prosecutor, of counsel and on the
brief).
Robert Lougy, Acting Attorney General,
attorney for appellant State of New Jersey
(Sarah Lichter, Deputy Attorney General, on
the supplemental brief).
Janet A. Allegro, Designated Counsel, argued
the cause for respondent J.F. (Joseph E.
Krakora, Public Defender, attorney for
respondent; Ms. Allegro, of counsel and on
the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
After leave was granted, the State appeals from the August
27, 2015 order of Judge Michael Blee denying the State's
application, filed pursuant to N.J.S.A. 2A:4A-26 and Rule 5:22-
2, to waive jurisdiction of J.F.1 to adult court for certain
offenses he allegedly committed when he was fourteen years old.
Following an extensive hearing, Judge Blee found that J.F. had
met his burden of proving the probability of his rehabilitation
before age nineteen, and that the probability substantially
outweighed the State's reasons for waiver. We affirm
substantially for the reasons set forth in Judge Blee's August
13, 2015 written opinion. We also determine, after receiving
supplemental briefs on the issue at our request, that the
State's position is contrary to the intent of the Legislature's
recent repeal and replacement of N.J.S.A. 2A:4A-26,2 which
excludes the possibility of waiver to adult court for all
juveniles whose unlawful behavior occurred before their
fifteenth birthday. N.J.S.A. 2A:4A-26.1(c)(1). We therefore
also affirm on the alternate basis that the new statutory age
requirement as applied retroactively precludes waiver of J.F.3
1
We use initials to protect the confidentiality of the
juveniles. R. 1:38-3(d)(5).
2
See Act of Aug. 10, 2015, ch. 89, 2015 N.J. Laws 89; N.J.S.A.
2A:4A-26.1.
3
It is a well-settled principle that a court may provide several
bases in reaching its ultimate conclusion. See Massachusetts v.
(continued)
2 A-0392-15T3
I.
On January 8, 2014, when J.F. was only fourteen years and
eleven months old, he was involved in an incident in which he
was alleged to have shot two victims under the age of eighteen.
One victim, fifteen-year-old D.T., was shot in the leg and
buttocks, and the other, thirteen-year-old A.M.S., was shot in
the chest and died as a result of his wounds.
A juvenile complaint was filed against J.F., charging him
with conduct that if he were an adult would constitute first-
degree purposeful murder, N.J.S.A. 2C:11-3(a)(1), second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1), second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b),4 and
second-degree possession of a handgun for an unlawful purpose,
(continued)
United States, 333 U.S. 611, 623, 68 S. Ct. 747, 754, 92 L. Ed.
968, 977 (1948) (where a case might have been decided on either
one of two independent grounds, but was decided on the basis of
both, the decision "rested as much upon the one determination as
the other . . . [and] the adjudication is effective for both");
McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th
Cir. 1977) ("It has long been settled that all alternative
rationales for a given result have precedential value.");
DeVincenzo v. W. N.Y., 120 N.J.L. 541, 543 (Sup. Ct. 1938)
(finding that alternative reasons provided in a prior decision
were not dicta because "[t]hey were the views of the court
embodying one of two reasons, both of which, obviously, were
effective in bringing the court to its conclusion").
4
The juvenile complaint erroneously categorizes the charge as a
first-degree offense. Possession of a handgun, however, is a
second-degree crime, N.J.S.A. 2C:39-5(b)(1), except when the
person has a prior conviction for certain specified crimes,
converting it to a first-degree crime. N.J.S.A. 2C:39-5(j).
3 A-0392-15T3
N.J.S.A. 2C:39-4(a). Additional charges were later brought:
conduct that if he were an adult would constitute first-degree
knowing murder, N.J.S.A. 2C:11-3(a)(2); an additional count of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); nine
counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(4); eight counts of third-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4; fourth-degree unlawful disposition of
a firearm, N.J.S.A. 2C:39-9(d); fourth-degree tampering with
evidence, N.J.S.A. 2C:28-6(1); and third-degree hindering
apprehension, N.J.S.A. 2C:29-3(b)(1).
The State moved, pursuant to N.J.S.A. 2A:4A-26 and Rule
5:22-2, for the involuntary waiver of jurisdiction of J.F. from
the Family Part to the Law Division, Criminal Part. Judge Blee
conducted a twelve-day waiver hearing.
Atlantic City Police Sergeant David Weiss testified to the
following. J.F. was identified as the shooter by other
juveniles who were present at the January 8, 2014 incident.
Weiss learned that the victim, A.M.S., had been involved in a
fight with J.F.'s cousin the day before the incident. The fight
was recorded on a cell-phone camera, and posted to Facebook.5
5
Facebook is a website whose self-described mission "is to give
people the power to share and make the world more open and
connected." About Facebook, Facebook,
(continued)
4 A-0392-15T3
A.M.S. had indicated that there would be retaliation for the
fight, and another minor, C.G., also threatened to become
involved in the fight. On the day of the shooting, C.G. went to
the school with several others to fight J.F.'s cousin. When
school let out, C.G. and the group began to walk from the
school. C.G. then encountered J.F. riding a bicycle. C.G.
punched J.F. four to five times in the face, ran away, and
informed the group that J.F. had a gun. Shortly thereafter,
C.G. and the group encountered J.F., who pulled out the gun and
opened fire. The group then ran away until A.M.S. collapsed.
Sergeant Weiss stated that J.F. and his cousin were allied
with the "Stanley Holmes Alliances," while the victims and their
friends were associated with the "Back Maryland Alliances."
Weiss also repeated comments by others alleging past criminal
activity by J.F.
Atlantic City Police Sergeant Christopher Barber testified
that certain photographs taken at Harborfields depicting J.F.
and other residents had been sent from the institution and later
posted online with gang verbiage written on them.6 The State
(continued)
https://www.facebook.com/facebook/info/?tab=page_info (last
visited Apr. 14, 2016).
6
Harborfields is a juvenile detention center located in Egg
Harbor. See Youth Detention – Harborfields, Atlantic County
(continued)
5 A-0392-15T3
offered these postings to demonstrate that J.F. was affiliated
with a gang while he was in Harborfields. Barber also discussed
several Twitter7 postings that he alleged demonstrated J.F.'s
gang involvement.
Frederick Wilson, an employee at Harborfields, testified
that the staff did not open the outgoing mail from residents.
Wilson described a point system which allowed the residents to
purchase, among other things, photographs of themselves. Wilson
testified that J.F. was one of the top two residents in earning
points. Detective Lauren Laielli of the Atlantic County
Sheriff's Office, testified that she spoke with a former
resident of Harborfields, who advised her of gang feuds
occurring there between the Stanley Holmes gang and the Back
Maryland gang. She testified that she was told J.F. would shout
gang references at her informant while they were both housed at
Harborfields.
During the rehabilitation phase of the trial, J.F. first
offered the testimony of R.A., J.F.'s aunt, who was a caseworker
for the Division of Child Protection and Permanency. R.A.
(continued)
Government, http://www.atlantic-county.org/public-
safety/harborfields.asp (last visited Apr. 12, 2016).
7
Twitter is self-described as "an information network made up of
140-character messages called Tweets." Getting Started With
Twitter, Twitter, https://support.twitter.com/articles/215585
(last visited April 12, 2016).
6 A-0392-15T3
testified that she was aware that J.F. was beaten up more than
once by neighborhood residents. In one incident, J.F. was beat
up and kicked in the head, and was taken to the hospital for
treatment. R.A. testified that J.F. was always quiet and
reserved, and that he was "never a bad child."
Rochelle Andress, a social worker who had worked at
Harborfields since 1997, described the daily routine for
residents at Harborfields, and also gave a description of the
living arrangements and rehabilitative services. Andress
testified that the Juvenile Justice Commission supervises
Harborfields, and its overall goal is to "rehabilitate juveniles
and help them reach their full potential." Andress described
the different programs offered at Jamesburg8 for juveniles,
including certain vocational training, cognitive behavioral
therapies and counseling. Regarding J.F., she stated:
We don't have any problems with [J.F.]. He
gets along well with others. He's compliant
and respectful when he interacts with the
staff. He participates in everything that we
provide to him. Been pos[itive] most of the
time that he's been there. Haven't had any
problems with him at all I mean and he's
been there for a year and generally in that
amount of time behavior tend to rear their
8
Jamesburg is also known as the New Jersey Training School, a
juvenile detention center located in Monroe Township. See
generally New Jersey Training School, Office of the Attorney
General, http://www.nj.gov/oag/jjc/secure_njts.htm (last visited
Apr. 12, 2016).
7 A-0392-15T3
ugly little head with kids and with him we
just have not had that. He's been, you
know, in my opinion a model resident.
Andress described the rating and point system utilized at
Harborfields, stating that J.F. had positive ratings and
responds well to the program. J.F. was a high "point earner."
Andress explained that J.F. had earned enough points to have
special visits, which allowed him extra time to see his family.
J.F. and his mother speak regularly over the phone. According
to Andress, J.F.'s mother was in the top one percent as far as
parent involvement with J.F.
J.F. was also involved in a number of afterschool programs
at Harborfields. Andress described the programs, in particular
a program that sought to teach the residents about decision-
making skills. J.F. elected to participate on his own, which
was not typical of most residents. J.F. had been respectful
throughout his stay and was in the top five percent of students
at Harborfields in terms of behavior. Andress opined that J.F.
had potential and had done well in the structured environment of
Harborfields.
Andress also had been provided gang awareness training at
Harborfields. She explained that Harborfields did not have a
policy on separating juveniles based on gang affiliations.
Andress had read the State's expert's report on J.F. that
8 A-0392-15T3
mentioned a gang, but was unaware of J.F. having any gang
affiliation until an investigator came to the school inquiring
about photographs containing gang verbiage. Andress testified
that it is likely that members of the Back Maryland gang attend
classes at Harborfields with J.F., but there had been no
incidents caused by their attendance together.
Shannon Rawson, J.F.'s eighth grade teacher, described an
instance in 2012 when J.F. complained of being "jumped" by grown
men. Rawson contacted J.F.'s mother to inform her of the
incident. Another juvenile stated in class that he was going to
shoot J.F. in the face, and have other juveniles come beat him
up. Boys would frequently come to J.F.'s school to fight him or
his younger brother. On another occasion, J.F. cried,
complaining that other boys were fighting with him outside of
the school. Rawson had not witnessed J.F. act as the aggressor;
he often protected himself and his brother.
Rawson also witnessed A.M.S. fight with J.F.'s younger
brother. The day of the shooting, Rawson saw a cell phone video
depicting J.F. "riding up on a bike and this big, fat Spanish
kid hitting him from behind and knocking him off the bike. And
he's -- and then the gang of boys who were in the crowd jumped
on him." Rawson explained that another boy approached J.F. from
behind and punched him in the back of the head.
9 A-0392-15T3
Dr. Ronald S. Gruen, a clinical psychologist, testified
that he met with J.F. twice. On his first visit, J.F. was
guarded and distrusting, but on his second visit he was more
forthcoming. Dr. Gruen conducted a lengthy clinical interview
followed by psychological testing. Dr. Gruen stated that J.F.
expressed
the fact that he was pursued and harassed
and beaten up many times by this other
gentleman that he subsequently shot. And
that he had appealed to the authorities at
Crawford School, he had told his mother.
His mother had told the police and the
school officials and nothing was really done
in his opinion and he just couldn’t stand it
anymore. He could not stand constantly --
he said he felt paranoid, he had eyes in the
back of his head when he would leave the
school building. He was very unnerved, very
nervous, upset and feeling he just had no
way out.
Dr. Gruen believed J.F.'s claims of being threatened and beaten
up were legitimate. J.F. denied being in a gang, although Dr.
Gruen did not completely believe him. J.F.'s recitation of his
poor treatment was consistent with J.F.'s eighth-grade teacher's
account. J.F. was respectful in their interactions. Dr. Gruen
stated:
He really suffered from poor self-esteem and
he felt obligated to protect his brother and
he didn't feel he was doing a very good job
of that either. And I think that, you know,
this tormented him. And when you're a young
adolescent like that, you want to be king of
10 A-0392-15T3
the hill. And I think he felt very small
and very defenseless.
Dr. Gruen discussed how bullying might affect a fourteen-year-
old high school student, stating that "desperate people do
desperate things."
Dr. Gruen also testified that he met with J.F.'s mother,
who appeared to care for J.F. deeply. Dr. Gruen testified that
the mother-son bond is a strong factor in assessing
rehabilitation potential. J.F.'s mother indicated that she made
several attempts to end the bullying, having spoken with other
parents and the authorities.
Dr. Gruen also spoke with Andress, who gave J.F. a strong
endorsement. Dr. Gruen noted that in his other interactions
with the administration at Harborfields, he generally did not
get a positive response about the juveniles detained there.
Dr. Gruen stated that J.F.'s age was also a positive factor
in terms of rehabilitation, noting that at fourteen years old, a
child has not truly formed his personality, which could
therefore be influenced in a positive direction. Dr. Gruen did
not believe J.F. suffered from antisocial personality disorder
despite some behavioral issues. Dr. Gruen believed J.F.'s drug
involvement negatively impacted his rehabilitation, but he did
not view this as a long-term issue. J.F. seemed relieved that
he was at Harborfields and not on the street being bullied. The
11 A-0392-15T3
Family Court could offer the proper services for J.F. to
continue on a path to rehabilitation. Jamesburg offered a
"closed setting" where J.F. would be monitored, and he would
benefit from the group and individual therapy, vocational
training, and schooling. Dr. Gruen's ultimate conclusion was
that J.F. could be rehabilitated by the age of nineteen.
In rebuttal, the State called Dr. Louis Schlesinger, a
forensic psychologist. Dr. Schlesinger testified that he met
with J.F. once and did not have any contact with J.F.'s mother.
Dr. Schlesinger testified to J.F.'s family circumstances, noting
that his mother had been a constant presence in J.F.'s life, but
that J.F. had no contact with his biological father, who was
imprisoned in a different state. Dr. Schlesinger conducted a
battery of psychological tests. Dr. Schlesinger described J.F.
as follows:
He was pleasant, he was very pleasant. He
was very cooperative. He was very polite.
He worked carefully. He seemed to me to be
motivated. He presented himself, to me,
throughout -- initially as being bullied by
a group of individuals, as a victim of being
bullied. Eventually, I told him that I knew
all the details of all this, and he became a
little bit more forthcoming. He told me his
background adequately. I thought he denied
and minimized his involvement with youth
gang activity, as well as his drug-selling
behavior and drug use, as well. I challenged
him at a few points, as I do with every
individual, and he kept his composure. He
was never disrespectful throughout, ever.
12 A-0392-15T3
He was not hostile. He did become tearful
when discussing his future.
His concentration was fine. I was with him
for over five hours. His attention span and
concentration were fine. There was nothing
bizarre about him. He wasn't inappropriate
in any way, and he was just very super-
polite throughout.
Dr. Schlesinger stated that J.F. described a situation in which
he was bullied, which led J.F. to protect himself and his
younger brother by getting involved in the shooting. Dr.
Schlesinger testified that J.F. denied knowledge of any gangs.
Dr. Schlesinger noted that although Dr. Gruen's report
correctly stated that J.F. had no prior criminal record, he
believed not being caught was different from not being involved
in past criminal conduct. Dr. Schlesinger testified that J.F.
had admitted using marijuana, and previously had used
prescription drugs. He opined that J.F.'s inconsistent and
untruthful answers to his interview questions were not a
positive indicator for rehabilitation. Dr. Schlesinger also
testified that J.F. had average to low-average intelligence, and
demonstrated some personality deficiencies that could later lead
to a personality disorder. Other tests evidenced that J.F.
might be mildly depressed and have problems with impulses and
inner anger. He stated J.F. appeared to suffer from a conduct
disorder.
13 A-0392-15T3
Dr. Schlesinger opined that J.F. had accepted
responsibility for his actions relating to the shooting, but had
not accepted responsibility for many other actions. Although
J.F. had made a good institutional adjustment while at
Harborfields, J.F.'s contact with gang members strongly
influenced Dr. Schlesinger's opinion of J.F.'s probability for
rehabilitation. Dr. Schlesinger opined that J.F.'s "mind is
still in the street." Dr. Schlesinger concluded rehabilitation
was "only remotely possible."
In his detailed forty-five-page written opinion, Judge Blee
found, pursuant to N.J.S.A. 2A:26A-26, the State proved probable
cause for the charge of first-degree murder, but that J.F. had
demonstrated the probability of rehabilitation prior to age
nineteen by use of the procedures, services, and facilities
available to the court, substantially outweighed the reasons for
waiver.
Judge Blee found J.F. had been bullied for two years prior
to the incident and had no prior exposure to the juvenile
justice system "in terms of charges, court-ordered services, or
supervision." Judge Blee found significant evidence of social
media interaction evidencing J.F.'s affiliation with a gang, but
14 A-0392-15T3
noted that the State had not charged him with gang criminality.9
The judge stated J.F.'s gang involvement "was a significant
factor to consider in weighing the possibility of
rehabilitation." Judge Blee wrote:
Due to J.F.'s young age and the strong
possibility of lengthy incarceration, any
gang affiliations the Juvenile has are
likely to be severed by the time J.F. is
released from custody. It is very likely
that current gang members will be
disassociated from the gang and living
relatively normal lives, incarcerated or
deceased. There is also the possibility
that the present gangs will be dissolved at
the time J.F. is released. The court notes
that although there was evidence presented
at the hearing demonstrating possible gang
affiliations, the court must equally
consider the fact that the Juvenile has not
had exposure to the juvenile justice system
in terms of charges, court-ordered services,
or supervision prior to the incident.
The judge also considered J.F.'s post-incident conduct. J.F.
had been compliant and respectful during his time at
Harborfields, receiving positive reviews from supervisors.
Judge Blee was "disturbed with the communication from J.F. to
other alleged gang member[s]," but explained that these
individuals appeared to be J.F.'s only friends, and because he
was just beginning the rehabilitative process, some error in
judgment was to be expected.
9
See N.J.S.A. 2C:33-29.
15 A-0392-15T3
Judge Blee also found the testimony of Sergeants Weiss and
Barber to be "credible" and the testimony of social worker
Andress and J.F.'s teacher Rawson to be "highly credible,"
noting that Andress's testimony had provided important
information about J.F.'s behavior at Harborfields. Rawson's
testimony regarding the background of J.F. as a student and the
conflicts he faced "had the most significant impact on the
court."
Judge Blee found Dr. Gruen's evaluation of J.F. was
"thoughtful and comprehensive, and that his conclusions were
credible and well-supported." Judge Blee found that Dr.
Schlesinger testified credibly about J.F.'s ability to be
rehabilitated, but found that Dr. Gruen's opinion was "more
reasonable and persuasive."
Judge Blee found J.F. clearly presented a number of risk
factors, "including an absent father, gang involvement, previous
drug use, and defiance." He found that J.F. was thriving "in a
structured, safe, organized, and closely monitored environment."
Judge Blee concluded J.F. had demonstrated that there was a
probability of rehabilitation before he turned nineteen.
Judge Blee then balanced the reasons for waiver against the
prospects of rehabilitation. Judge Blee analyzed J.F.'s case
pursuant to the five factors enunciated in State ex rel. C.A.H.,
16 A-0392-15T3
89 N.J. 326 (1982). He found that the first and second factors,
seriousness of the alleged offense and deliberate nature of the
offense, militated in favor of waiver. The third factor, age of
the offender, militated against waiver because J.F. was fourteen
at the time of the offense. The fourth and fifth factors,
history of prior infractions and prior exposure to the juvenile
justice system, given J.F.'s prior drug use, but also
considering that J.F. had no exposure to the juvenile justice
system prior to the instant offense, militated against waiver.
Judge Blee also considered other factors, such as the
presumption of waiver in murder cases, the legislature's intent
in adding judicial oversight of waiver cases for juveniles under
sixteen, the need for deterrence balanced against J.F.'s age and
the sentencing disparity for murder between juveniles and
adults. Ultimately, Judge Blee determined that "J.F.'s strong
and compelling prospects for rehabilitation substantially
outweigh the standard of the attenuated argument of deterrence
in this case."
II.
On appeal, the State contends that the trial judge
improperly found certain testimony favoring the juvenile more
credible than appropriate and gave less weight to the State's
evidence concerning the juvenile's gang ties than he should
17 A-0392-15T3
have. The State also argues that the trial judge erred in
assessing the probability of J.F.’s rehabilitation. We
disagree.
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 judgment'
in all of the circumstances." State v. R.G.D., 108 N.J. 1, 15
(1987) (quoting State v. Humphreys, 89 N.J. 4, 13 (1982)). When
reviewing these matters, it is required that "1) findings of
fact be grounded in competent, reasonably credible evidence, 2)
correct legal principles be applied, and 3) the judicial power
to modify a trial court's exercise of discretion will be applied
only when there is a clear error of judgment that shocks the
judicial conscience." State ex rel. A.D., 212 N.J. 200, 215
(2012) (quoting R.G.D., supra, 108 N.J. at 15). Importantly,
consideration should be given to the experience of the Family
Court in adjudicating juvenile waiver cases:
The common sense and experience of the
Family Part must always be brought to bear
on the ultimate question of rehabilitative
potential. For although the weight to be
given to expert or other evidence bearing on
the probability of rehabilitation properly
is to be judged by such factors as the
extent to which the witness may have tested
the juvenile, the manner of testimony, or
the interest of the witness, none can
18 A-0392-15T3
properly substitute for the court's ultimate
responsibility to determine whether the
statutory criteria have been met.
[R.G.D., supra, 108 N.J. at 16 n.7.]
In his lengthy written opinion, Judge Blee applied the
settled waiver law to the facts as he found them. As a Family
Court judge, he has expertise in matters concerning juveniles,
as did several of the witnesses who appeared before him,
including the two experts, J.F.'s teacher and the social worker
at Harborfields. We defer to Judge Blee's expertise, and affirm
on the basis of his thorough opinion, which was based on the
"competent, reasonably credible evidence." See A.D., supra, 212
N.J. at 215.
III.
Judge Blee's August 13, 2015 opinion stated that he was not
applying the recent legislation signed by the Governor on August
10, 2015, effective March 1, 2016, which repealed and replaced
N.J.S.A. 2A:4A-26. See Act of Aug. 10, 2015, ch. 89, 2015 N.J.
Laws 89. Under the revised waiver statute, a juvenile cannot be
waived to the Law Division unless the State can establish that
"the juvenile was 15 years of age or older at the time of the
delinquent act." N.J.S.A. 2A:4A-26.1(c)(1). J.F. was fourteen
years old at the time of the shooting. Thus, if the revised
statute were applied, J.F. would not be subject to waiver.
19 A-0392-15T3
The State argues in its supplemental brief that we should
not apply the revised waiver statute in this case. The State
contends that criminal statutes are generally presumed to have a
prospective effect, and should not be applied to pending
appellate cases.
As a general principle, in criminal as well as other
statutes, "the law favors prospective, rather than retroactive,
application of new legislation unless a recognized exception
applies." Ardan v. Bd. of Review, ___ N.J. Super. ___ (2016)
(slip op. at 10); State v. Parolin, 171 N.J. 223, 233 (2002).
That presumption, however, "is no more than a rule of statutory
interpretation." State v. Bey, 112 N.J. 45, 103 (1988) (quoting
Rothman v. Rothman, 65 N.J. 219, 224 (1974)). "Courts must
apply a two-part test to determine whether a statute should be
applied retroactively: (1) whether the Legislature intended to
give the statute retroactive application; and [if so] (2)
whether retroactive application 'will result in either an
unconstitutional interference with vested rights or a manifest
injustice.'" Ardan v. Bd. of Review, supra, slip op. at 10
(quoting James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563
(2014)).
Under the first part of the test enunciated in James, the
presumption against retroactivity "can be overcome by an
20 A-0392-15T3
indication of contrary legislative intent, either expressed in
the language of the statute itself, or implied in its purpose."
See Bey, supra, 112 N.J. at 103. When an appellate court finds
that retroactive legislative intent exists, it is well-
established that the court must "apply the statute in effect at
the time of its decision . . . to effectuate the current policy
declared by the legislative body." Ibid. (quoting Kruvant v.
Mayor & Council of Twp. of Cedar Grove, 82 N.J. 435, 440
(1980)).
Within the first part of the test, three exceptions to the
general rule of prospective application are well-established:
(1) when the Legislature intended retroactive application of the
statute either expressly, as "stated in the language of the
statute or in the pertinent legislative history," or implicitly,
requiring retroactive application to "make the statute workable
or to give it the most sensible interpretation"; (2) when the
statute is "ameliorative or curative"; or (3) when the
"expectations of the parties may warrant retroactive
application." Gibbons v. Gibbons, 86 N.J. 515, 522-23 (1981).
"Under the second exception to the general rule, the term
'ameliorative' refers only to criminal laws that effect a
reduction in a criminal penalty." Street v. Universal Mar., 300
N.J. Super. 578, 582 (App. Div. 1997) (quoting Kendall v.
21 A-0392-15T3
Snedeker, 219 N.J. Super. 283, 286 (App. Div. 1987)). "The
ameliorative exception first appeared in New Jersey in the case
of In re Smigelski, 30 N.J. 513, 527 (1959), in which the
Supreme Court held that a statutory amendment restricting a
juvenile's possible exposure to commitment was ameliorative and
thus could be applied retroactively." Kendall, supra, 219 N.J.
Super. at 286. Our Supreme Court cited People v. Oliver, 151
N.Y.S.2d 367 (1956), a New York case, for this proposition.
Smigelski, supra, 30 N.J. at 527. Oliver states:
[W]here an ameliorative statute takes the
form of a reduction of punishment for a
particular crime, the law is settled that
the lesser penalty may be meted out in all
cases decided after the effective date of
the enactment, even though the underlying
act may have been committed before that
date.
. . . A legislative mitigation of the
penalty for a particular crime represents a
legislative judgment that the lesser penalty
or the different treatment is sufficient to
meet the legitimate ends of the criminal
law. Nothing is to be gained by imposing
the more severe penalty after such a
pronouncement; the excess in punishment can,
by hypothesis, serve no purpose other than
to satisfy a desire for vengeance. As to a
mitigation of penalties, then, it is safe to
assume, as the modern rule does, that it was
the legislative design that the lighter
penalty should be imposed in all cases that
subsequently reach the courts.
[Oliver, supra, 151 N.Y.S.2d at 373.]
22 A-0392-15T3
We note that "[e]very statutory amendment which ameliorates or
mitigates a penalty for a crime is not automatically subject to
a presumption of retroactivity. The ameliorative amendment must
be aimed at mitigating a legislatively perceived undue severity
in the existing criminal law." Kendall, supra, 219 N.J. Super.
at 286 n.1.
The revised waiver statute was intended to ameliorate the
punitive sentencing previously meted out to adolescent offenders
after waiver. The legislative action was also intended to
address the treatment needs of children.10 The increase in the
minimum waiver age is part of that emphasis on rehabilitation
rather than punishment, a part of the effort to ensure that
children do not become prey to adult inmates nor suffer the many
societal consequences of an adult criminal record.11 Among the
changes in the revised waiver statute is the new post-waiver
provision, requiring that a juvenile case be remanded to the
Family Part for disposition if the juvenile is convicted of an
10
See Reforms to the Juvenile Justice System: Committee Meeting
on S. 2003 Before the S. Law & Pub. Safety Comm'n, 216th Leg.,
2d Sess. (March 12, 2015) (statement of Sen. Nellie Pou); see
also Michael Booth, Christie OKs Juvenile Justice Reforms,
N.J.L.J. (Aug. 11, 2015),
http://www.njlawjournal.com/id=1202734482923/Christie-OKs-
Juvenile-Justice-Reforms?slreturn=20160319110141.
11
See Reforms to the Juvenile Justice System: Committee Meeting
on S. 2003 Before the S. Law & Pub. Safety Comm'n, 216th Leg.,
2d Sess. (March 12, 2015) (statement of Sen. Nellie Pou).
23 A-0392-15T3
offense that would not have initially rendered him or her
eligible for waiver, N.J.S.A. 2A:4A-26.1(f)(2). The statute
also for the first time provides a presumption that, if
convicted after waiver, the juvenile will serve any custodial
sentence imposed in a state juvenile facility until the age of
twenty-one, and gives the Juvenile Justice Commission (JJC) the
discretion to allow the individual, with his or her consent, to
continue to serve the sentence in that facility even after
turning twenty-one, N.J.S.A. 2A:4A-26.1(f)(1).12
Scientific knowledge regarding the limited biological
development of the teenage mind has advanced13 and society no
12
We do not opine on the retroactivity of the other provisions
in the revised waiver statute because they are not relevant to
the issues before us.
13
With improvements in magnetic resonance imaging technology,
studies have shown that the frontal lobe, where decisions
regarding judgment and risk-taking are made, does not fully
develop in juveniles until their mid-twenties. See Michele
Deitch et al., From Time Out to Hard Time: Young Children in the
Adult Criminal Justice System 13-14 (2009),
http://www.utexas.edu/lbj/archive/news/images/file/From%20Time%2
0Out%20to%20Hard%20Time-revised%20final.pdf (discussing the
cognitive and psychological development of juveniles;
specifically, frontal lobe development and its relation to
decision-making in juveniles); see also Graham v. Florida, 560
U.S. 48, 68, 130 S. Ct. 2011, 2026, 176 L. Ed. 2d 825, 841
(2010) ("As compared to adults, juveniles have a 'lack of
maturity and an underdeveloped sense of responsibility'; they
'are more vulnerable or susceptible to negative influences and
outside pressures, including peer pressure'; and their
characters are 'not as well formed.' These salient
characteristics mean that '[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender
(continued)
24 A-0392-15T3
longer thinks of a fourteen-year-old as a fully developed
individual who might be incapable of rehabilitation. Recent
scientific research establishes that children under the age of
fifteen will change through maturation. The Legislature, in
raising the age requirement for waiver by one year, determined
that children who commit offenses when under the age of fifteen
should never be waived up to face adult penalties. This
legislative determination to ameliorate an unduly harsh penalty
for fourteen-year-old juveniles supports the retroactive
application of the revised waiver statute. See Kendall, supra,
219 N.J. Super. at 286 n.1.
Finding that the revised age requirement of the statute
should be applied retroactively to J.F. pursuant to the first
part of the James test, we must next consider the second part of
the two-part test. See Ardan v. Bd. of Review, supra, slip op.
at 13. The State makes no argument that it would suffer an
"unconstitutional interference with a vested right or a manifest
injustice." See ibid. Retroactively applying the age
requirement of the revised waiver statute would impose no
(continued)
whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable
corruption.'" (alterations in original) (citations omitted)
(quoting Roper v. Simmons, 543 U.S. 551, 569-70, 573, 125 S. Ct.
1183, 1195, 1197, 161 L. Ed. 2d 1, 22, 24 (2005))).
25 A-0392-15T3
"unfairness [or] inequity". See Oberhand v. Dir., Div. of
Taxation, 193 N.J. 558, 572 (2008) (quoting In re D.C., 146 N.J.
31, 58 (1996)). Thus, the second part of the James test does
not limit retroactive application of the revised waiver statute.
Were we to disagree with Judge Blee's findings and consider
the extraordinary action urged by the State — waiving J.F. based
on our review of the record without a remand — we would be
constrained to "apply the statute in effect at the time of [our]
decision" in accordance with the "current policy declared by the
legislative body." Bey, supra, 112 N.J. at 103 (quoting
Kruvant, supra, 82 N.J. at 440).
Alternatively, were we to reverse Judge Blee's
determination and remand for a new waiver hearing, the judge
would apply the age requirement of the revised waiver statute,
not only for the reasons expressed above, but also because the
"savings statute" anticipates the utilization of more lenient
sentencing provisions enacted prior to the imposition of the
penalty. Pursuant to N.J.S.A. 1:1-15:
No offense committed, and no liability,
penalty or forfeiture, either civil or
criminal, incurred, previous to the time of
the repeal or alteration of any act or part
of any act, by the enactment of the Revised
Statutes or by any act heretofore or
hereafter enacted, shall be discharged,
released or affected by the repeal or
alteration of the statute under which such
offense, liability, penalty or forfeiture
26 A-0392-15T3
was incurred, unless it is expressly
declared in the act by which such repeal or
alteration is effectuated, that an offense,
liability, penalty or forfeiture already
committed or incurred shall be thereby
discharged, released or affected; . . . .
[(Emphasis added).]
"[T]he savings statute was designed to prevent a new law —
absent an express declaration when the new law is enacted — from
'discharg[ing], releas[ing] or affect[ing]' the application of
an existing law, but it contains different triggering events for
different occurrences." State ex rel. C.F., 444 N.J. Super.
179, 188 (2016) (second, third, and fourth alterations in
original) (quoting N.J.S.A. 1:1-15). The statute contains an
important distinction, noting that "'offense[s]' are 'committed'
and 'penalt[ies]' are 'incurred.'" Ibid. (alterations in
original) (quoting N.J.S.A. 1:1-15). In evaluating retroactive
application, we consider the "date an offense was committed in
determining whether a new law, which discharges, releases or
affects an offense, should be applied to that offense, but . . .
look to the date a penalty was incurred to determine whether a
new law should discharge, release or affect the penalty for the
offense." Id. at 188-89.
In C.F., we scrutinized whether a defendant, who was a
juvenile at the time the offense was committed forty years ago,
should be punished according to the current more lenient
27 A-0392-15T3
sentencing laws, calling for a maximum of ten years in prison,
or the 1976 statute authorizing an indeterminate to life
sentence:
[P]unishment for criminal offenses is based
not only on the need to confine an offender
for the protection of society, but also to
deter future criminal conduct and to
rehabilitate the offender. These concerns
are not necessarily served by imposing a
penalty society no longer deems proper. In
this sense, it has been recognized that an
"ameliorative" statute "may be applied
retroactively."
[Id. at 190 (quoting Smigelski, supra, 30
N.J. at 527).]
For the very reasons expressed in C.F., the current age
provision should be applied to a juvenile such as J.F. who,
under the revised statute, would no longer face the possibility
of waiver as a result of any offenses he committed as a
fourteen-year-old. As we have previously outlined, a waiver to
adult court is part of the extended process of determining the
severity of the sentence that will be doled out after a
determination that the juvenile has committed an offense.
Lastly, the State argues in its supplemental brief that the
holding in C.F. is inapplicable because a juvenile waiver
statute does not deal with penalties, but, rather, is merely a
28 A-0392-15T3
procedural mechanism.14 The State's argument that the revised
waiver statute is procedural squarely contradicts their
insistence on adherence to the prior waiver statute. As stated
in N.J.S.A. 1:1-15:
[W]hen the Revised Statutes, or other act by
which such repeal or alteration is
effectuated, shall relate to mere matters of
practice or mode of procedure, the
proceedings had thereafter on the indictment
or in the prosecution for such offenses,
liabilities, penalties or forfeitures shall
be in such respects, as far as is
practicable, in accordance with the
provisions of the Revised Statutes or such
subsequent act.
[(Emphasis added).]
Thus, were we to accept the State's argument that the statute is
procedural and also determine that a new hearing was warranted,
the revised waiver statute would control that hearing.
We affirm both on the basis of Judge Blee's comprehensive
opinion and based upon the retroactive application of N.J.S.A.
14
Although not argued by the State, we have considered the
Legislature's determination to make the statute effective seven
months after enactment. In determining a statute's
retroactivity, its effective date is relevant to the first
exception enunciated in Gibbons and not the analysis of whether
the statute was ameliorative. See Lombardo v. Revlon, Inc., 328
N.J. Super. 484, 490 (App. Div. 2000). Further, the delay was
likely necessitated by the Attorney General's need to prepare
guidelines and the requirement that the JJC establish a program
to gather and report data. N.J.S.A. 2A:4A-26.1(c), (g).
29 A-0392-15T3
2A:4A-26.1(c)(1), which precludes the waiver of juveniles who
are less than fifteen years old at the time of the offense.
Affirmed.
30 A-0392-15T3
RECORD IMPOUNDED
GILSON, J.S.C. t/a, concurring.
I join in parts I and II of the majority's well-reasoned
opinion. I do not join in part III because we need not address
whether the age restriction in the recently revised N.J.S.A.
2A:4A-26.1(c)(1) applies retroactively.
As the majority noted, Judge Blee did not apply the revised
statute, which became effective on March 1, 2016. Moreover, no
party raised the retroactive application of N.J.S.A. 2A:4A-
26.1(c)(1) on this appeal. Instead, this court raised the issue
at oral argument and, thereafter, we directed supplemental
briefing on that issue. Under these circumstances, the
retroactive application of the age restriction in the revised
statute was not, in my view, an alternative holding.
My decision not to join in part III of this opinion is
based on the principle that courts should not reach issues that
are not necessary to the resolution of a case and, thereby, run
the risk of giving an advisory opinion. See G.H. v. Twp. of
Galloway, 199 N.J. 135, 136 (2009) (declining to reach questions
of limits to statutory preemption of municipal action in a
challenge to the viability of existing ordinances). In that
regard, our Supreme Court has consistently reasoned that "[t]he
judicial function operates best when a concrete dispute is
presented to the courts." Ibid. Indeed, the Court has recently
reminded us that we should not make rulings that are not
necessary to the disposition of the appeal. See State v. J.M.,
Jr., _____ N.J. _____ (2016) (slip op. at 18, 21) (reversing the
imposition of "a bright-line rule prohibiting the admission of
acquitted-act evidence" when such a ruling was "not necessary,"
"had no bearing on the disposition of the appeal[,]" and
"effectively rendered an advisory opinion").
Here, affirming Judge Blee's ruling completely resolves
this appeal. The question of the retroactive application of the
new statutory age requirement is neither necessary nor does it
bear on the disposition of the appeal.
Moreover, as the majority correctly notes, there is no
express language in the revised statute itself that addresses
whether the Legislature intended the statute to be applied
retroactively. See L. 2015, c. 89. Although the majority would
apply the revised statute retroactively to this appeal, it does
not clarify whether the revised statute applies in other
circumstances. For example, does the revised statute apply to a
case where the juvenile has already been waived to adult court
and the trial is pending or has actually begun? Does the
revised statute apply to a case where the juvenile was waived to
adult court, was convicted, and is pending sentencing or appeal?
2 A-0392-15T3
Posing those questions illustrates the wisdom of avoiding
advisory opinions, which are not presented in a concrete
dispute.
In sum, I would affirm on the basis of Judge Blee's
comprehensive opinion, and I would not reach the retroactive
application of N.J.S.A. 2A:4A-26.1(c)(1).
3 A-0392-15T3