An Act concerning juvenile waiver and amending P.L.1982, c.77.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 7 of P.L.1982, c.77 (C.2A:4A-26) is amended to read as follows:

7. a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that:

(1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:

(a) Criminal homicide other than death by auto, strict liability for drug induced deaths, pursuant to N.J.S.2C:35-9, robbery which would constitute a crime of the first degree, carjacking, aggravated sexual assault, sexual assault, aggravated assault which would constitute a crime of the second degree, kidnapping, aggravated arson, or gang criminality pursuant to section 1 of P.L.2007, c.341 (C.2C:33-29) where the underlying crime is enumerated in this subparagraph or promotion of organized street crime pursuant to section 2 of P.L.2007, c.341 (C.2C:33-30) which would constitute a crime of the first or second degree which is enumerated in this subparagraph; or

(b) A crime committed at a time when the juvenile had previously been adjudicated delinquent, or convicted, on the basis of any of the offenses enumerated in subsection a.(2)(a); or

(c) A crime committed at a time when the juvenile had previously been sentenced and confined in an adult penal institution; or

(d) An offense against a person committed in an aggressive, violent and willful manner, other than an offense enumerated in subsection a.(2)(a) of this section, or the unlawful possession of a firearm, destructive device or other prohibited weapon, arson or death by auto if the juvenile was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit producing drug; or

(e) A violation of N.J.S.2C:35-3, N.J.S.2C:35-4, or N.J.S.2C:35-5; or

(f) Crimes which are a part of a continuing criminal activity in concert with two or more persons and the circumstances of the crimes show the juvenile has knowingly devoted himself to criminal activity as a source of livelihood; or

(g) An attempt or conspiracy to commit any of the acts enumerated in paragraph (a), (d) or (e) of this subsection; or

(h) Theft of an automobile pursuant to chapter 20 of Title 2C of the New Jersey Statutes; or

(i) Possession of a firearm with a purpose to use it unlawfully against the person of another under subsection a. of N.J.S.2C:39-4, or the crime of aggravated assault, aggravated criminal sexual contact, burglary or escape if, while in the course of committing or attempting to commit the crime including the immediate flight therefrom, the juvenile possessed a firearm; or

(j) Computer criminal activity which would be a crime of the first or second degree pursuant to section 4 or section 10 of P.L.1984. c.184 (C.2C:20-25 or C.2C:20-31); and

(3) Except with respect to any of the acts enumerated in subparagraph (a), (i) or (j) of paragraph (2) of subsection a. of this section, or with respect to any acts enumerated in subparagraph (e) of paragraph (2) of subsection a. of this section which involve the distribution for pecuniary gain of any controlled dangerous substance or controlled substance analog while on any property used for school purposes which is owned by or leased to any school or school board, or within 1,000 feet of such school property or while on any school bus, or any attempt or conspiracy to commit any of those acts, the State has shown that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interests of the public require waiver.

b. (Deleted by amendment, P.L.1999, c.373).

c. An order referring a case shall incorporate therein not only the alleged act or acts upon which the referral is premised, but also all other delinquent acts arising out of or related to the same transaction.

d. A motion seeking waiver shall be filed by the prosecutor within 30 days of receipt of the complaint. This time limit shall not, except for good cause shown, be extended.

e. If the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted. This subsection shall not apply with respect to a juvenile 16 years of age or older who is charged with committing any of the acts enumerated in subparagraph (a), (i) or (j) of paragraph (2) of subsection a. of this section or with respect to a violation of N.J.S.2C:35-3, N.J.S.2C:35-4 or section 1 of P.L.1998, c.26 (C.2C:39-4.1).

The standard of review for a motion seeking waiver of a juvenile who is 16 years of age or older and charged with committing any of the offenses specified in this subsection shall be a "patent and gross abuse of discretion" standard.

f. The Attorney General shall develop for dissemination to the county prosecutors those guidelines or directives deemed necessary or appropriate to ensure the uniform application of this section throughout the State.

(cf: P.L.2007, c.341, s.3)

2. This act shall take effect immediately.

STATEMENT

This bill establishes a "patent and gross abuse of discretion" standard as the standard of review to be exercised by a court when reviewing a prosecutor's motion seeking a waiver of certain juveniles from family court to adult criminal court.

Under current law, a juvenile will be transferred, without the juvenile's consent, from family court to adult criminal court on motion of the prosecutor when the juvenile is 14 years of age or older, is charged with certain serious crimes, and where the nature or circumstances of those crimes or the juvenile's prior record is sufficiently serious that the interests of the public require waiver.

However, current law precludes a waiver of the juvenile if the court finds the probability of rehabilitation of the juvenile prior to the juvenile reaching the age of 19 outweighs the reasons for a waiver. This provision does not apply to 16 or 17 year old juveniles who are charged with certain serious crimes as the Legislature amended P.L.1982, c.77 in 2000 to specifically exclude these juveniles from this provision (P.L.1999, c.373).

Recently, the New Jersey Supreme Court in State in the Interest of V.A. held that the standard governing judicial review of a prosecutor's decision to seek waiver of juveniles aged 16 and older who are charged with certain serious offenses is the stricter "abuse of discretion standard."

This bill clarifies that the "patent and gross abuse of discretion" standard is the appropriate standard to govern the court's review of motions involving juveniles who are 16 years of age or older and charged with certain serious offenses as this standard is deferential to a prosecutor's determination to seek waiver. As the dissent in State in the Interest of V.A. noted, by enacting the 2000 amendments to P.L.1982, c.77, the Legislature intended to give the prosecution broad discretion to decide whether to waive juvenile complaints involving 16 and 17 year old juveniles charged with certain serious crimes into adult criminal court.