charged with acts which would have constituted
aggravated sexual assault, and the Pinelands rehabilita-
tion program into which he was accepted (on a prior
sexual assault case) took approximately three years to
complete successfully.
State in the Interest of R.L., 202 N.J. Super. 410 (App.
Div.), certif. denied, 102 N.J. 357 (1985); see also State v.
Ferguson, 255 N.J. Super. 530, 536 (App. Div. 1992). A
juvenile waiver order transferring jurisdiction to the adult
criminal court is an interlocutory order which may be
appealed to the Appellate Division only by leave granted
pursuant to R. 2:2-4, or await the conclusion of the adult
criminal action. This decision overrules the contrary
holding of State v. Evangelista, 134 N.J. Super. 64 (Law
Div. 1975), a decision which had considered waiver
orders appealable as of right as “final” orders.
In State in the Interest of G.W., 206 N.J. Super. 50
(App. Div.), certif. denied, 102 N.J. 355 (1985), G.W. at
his detention hearing, offered to provide a factual basis
and plead guilty to charges, which if committed by an
adult, would constitute murder, aggravated sexual
assault, robbery and burglary. The judge refused to
accept the pleas because the State had already moved for
waiver of the matter to the Law Division. The Appellate
Division ruled that the trial judge correctly refused to
accept the pleas. To do so would have circumvented the
authority given the prosecutor under N.J.S.A. 2A:4A-
26a to move for waiver “without the consent of the
juvenile.”
- Criteria for Involuntary Waiver
In order to warrant the involuntary transfer of a
juvenile to the adult criminal process, the Family Court
must find at a waiver hearing that the following criteria
exist:
a. The juvenile was 14 years of age or older at the time
of the charged delinquent act; and
b. Probable cause to believe that the juvenile
committed a delinquent act or acts which if committed
by an adult would constitute:
(1) Criminal homicide other than death by auto,
strict liability for drug induced deaths, first degree
robbery, carjacking, aggravated sexual assault, sexual
assault, second degree aggravated assault, kidnapping or
aggravated arson; or
(2) 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 (2)(a); or(3) A crime committed at a time when the juvenile
had previously been sentenced and confined in an adult
penal institution; or(4) An offense against a person committed in an
aggressive, violent and willful manner, other than an
offense enumerated in subsection (2)(a), 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 drugs or
alcohol; or(5) A violation of 2C:35-3, 35-4, or 35-5; or(6) 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(7) An attempt or conspiracy to commit any of the
acts enumerated in paragraph (a), (d) or (e); or(8) Theft of an automobile; or(9) Possession of a firearm with a purpose to use it
unlawfully against the person of another under 2C:39-
4(a), or 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; andc. Except with respect to any of the acts enumerated
in subsection (2)(a), or with respect to any acts
enumerated in subsection 2(e) which involve the
distribution for pecuniary gain of any CDS or analog
within 1,000 feet of school property or on a 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.However, if the juvenile can show that the
probability of his rehabilitation by the use of the
procedures, services and facilities available to the court