prior to the juvenile reaching the age of 19 substantially
outweigh the reasons for waiver, waiver shall not be
granted. By virtue of P.L. 1999, ch. 373 (effective March
14, 2000), this opportunity for juveniles to defeat a
waiver motion by demonstrating rehabilitation has been
eliminated with respect to juveniles aged 16 and older
who commit the most serious offenses: crimes
enumerated in (2)(a), (2)(i); violations of 2C:35-3, 35-
4 or 2C:39-4.1. Guidelines have been developed by the
Attorney General (issued March 14, 2000) to insure the
uniform application of the waiver provision in those cases
where the juveniles cannot overcome the application by
showing rehabilitation.
In 1983 there was a significant change in the waiver
standard with respect to serious juvenile offenders. The
process shifted toward waiver, creating a presumption of
waiver for a juvenile over age 14 if there was probable
cause that he committed a “chart 1" offense (i.e., murder,
robbery, sexual assault and other enumerated crimes).
State in the Interest of R.G.D., 108 N.J. 1 (1987), rev’g 208
N.J. Super. 385 (App. Div. 1986). See also State v. Jack,
144 N.J. 240, 246 (1996); State v. Onque, 290 N.J.
Super. 578, 584-585 (App. Div.), certif. denied, 146 N.J.
497 (1996). The court still had to balance the value of
probable rehabilitation, if shown, against the general
deterrent value of adult prosecution, and the court still
had to find that the probability of rehabilitation
substantially outweighed the reasons for waiver
(deterrence), and the juvenile bore the burden to
demonstrate this.
This standard continues with respect to juveniles
aged 14 to 16, but it has charged by virtue of P.L. 1999,
ch. 373 (effective March 14, 2000), for juveniles over age
16 committing the most serious crimes (enumerated in
N.J.S.A. 2A:4A-26e). For them, rehabilitation potential
cannot defeat a prosecutorial decision to waive the case to
adult court.
State ex rel. H.H., 333 N.J. Super. 141 (Ch. Div.
1999), aff’d o.b. 333 N.J. Super. 104 (App. Div. 2000).
In denying the State’s motion to waive jurisdiction to
adult court for a 15 year old juvenile charged with
attempted murder and related crimes arising from an
alleged stabbing in the high school of an apparent love
interest of the juvenile’s ex-boyfriend, the court found
the defense expert and testimony more persuasive than
the State’s in concluding that the probability of
rehabilitation before age 19 substantially outweighed the
sole reason for waiver (the gravity of the crime). Here, the
juvenile was seriously depressed, had been suicidal, had
no prior contact with the judicial system, had no prior
history of antisocial conduct, had obtained good grades
in honors classes, and appeared to be “an exemplary
adolescent who has exceptional intellect and artistic
talent ... a motivated child who has shown a willingness
to use her talents and intellect to benefit others.”State in the Interest of D.W., 317 N.J. Super. 138 (App.
Div. 1998), held that a juvenile opposing waiver of the
juvenile court’s jurisdiction [under prior standard] is not
required to demonstrate the need for general deterrence
will be fulfilled by the time he reaches age 19. Here,
where a 16 year old juvenile charged with four separate
armed robbery offenses if committed by an adult
provided extensive proofs that he could be rehabilitated
by age 19, and the State relied solely upon the juvenile’s
prior record, the family judge erred in placing undue
weight on the concept of general deterrence. The
Appellate Division reversed the waiver order and
remanded for reconsideration.State in the Interest of A.A.M., 228 N.J. Super. 9 (Ch.
Div. 1988). In a proceeding to determine whether a
juvenile charged with a narcotics offense should be
waived for adult prosecution, a critical question was
whether the possession with intent to distribute the 60
grams of cocaine rose to the level of a “chart 1" offense. A
“chart 1" offense is a serious crime such as murder or
robbery for which there is a presumption for waiver. For
lesser “chart 2" offenses, an additional showing by the
State “that the nature and circumstances of the charge or
the prior record of the juvenile are sufficiently serious that
the interests of the public requires waiver,” is necessary.
The court focused on the key language in N.J.S.A. 2A:4A-
26a(3): “which involve the distribution for pecuniary
gain” to distinguish between chart 1 and chart 2
possession with intent to distribute offenses. Thus, if
there is probable cause that the possession with intent to
distribute was for profit, which here could be inferred
from the factual circumstances, rather than as a gift to
friends for personal consumption, then it is a
presumptively waivable chart 1 offense.In State v. Torres, 313 N.J. Super. 129 (App. Div.),
certif. denied, 156 N.J. 425 (1998), the mere contention
that the record from the juvenile waiver hearing did not
indicate that the juvenile was advised of his right to testify
was not a prima facie showing that there was a potential
for rehabilitation that counsel did not present so as to
require a new waiver hearing.State v. Scott, 141 N.J. 457 (1995). In determining
the rehabilitation potential of a mentally ill juvenile in
the context of assessing a waiver of family court