State ex rel. Z.S., DOCKET NO. A-3516-19T1

• Court: Superior Court of New Jersey
• Writing for the Court: SABATINO, P.J.A.D.
• Citation: 237 A.3d 344,464 N.J.Super. 507
• Parties: STATE of New Jersey IN the INTEREST OF Z.S., a Juvenile
• Decision Date: 18 August 2020
• Docket Number: DOCKET NO. A-3516-19T1

464 N.J.Super. 507
237 A.3d 344

STATE of New Jersey IN the INTEREST OF Z.S., a Juvenile¹

DOCKET NO. A-3516-19T1

Superior Court of New Jersey, Appellate Division.

Argued telephonically July 14, 2020
Decided August 18, 2020

Joseph J. Russo, Deputy Public Defender, argued the cause for appellant Z.S. (Joseph E. Krakora, Public Defender, attorney; Joseph J. Russo, of counsel and on the briefs; Gabrielle Brandt Hall, Assistant Deputy Public Defender, on the briefs).

David M. Galemba, Assistant Prosecutor, argued the cause for respondent State of New Jersey (John T. Lenahan, Salem County Prosecutor, attorney; David M. Galemba, of counsel and on the briefs).

Daniel Finkelstein, Deputy Attorney General, argued the cause for amicus curiae Attorney General (Gurbir S. Grewal, Attorney General, attorney; Daniel Finkelstein, on the briefs).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey; (Alexander Shalom and Jeanne LoCicero, on the brief).

Elana Wilf argued the cause for amicus curiae Rutgers Criminal and Youth Justice Clinic and the National Juvenile Defender Center (Rutgers Criminal Youth Justice and the National Juvenile Defender Center, attorneys; Elana Wilf, of counsel and on the brief; Laura Cohen, on the brief; Sherika J. Shnider (National Juvenile Defender Center), on the brief; Adina Heistein and Hannah Dodson, admitted pursuant to Rule 1:21-3(b), on the brief).

Before Judges Sabatino, Natali and Susswein.²

The opinion of the court was delivered by

SABATINO, P.J.A.D.

464 N.J.Super. 511

This interlocutory appeal shines a spotlight upon the appropriate procedures under current statutes for evaluating whether a juvenile charged with a very serious offense should be waived to the Criminal Part and prosecuted as an adult.

On leave granted, the juvenile in this case, defendant Z.S., appeals the Family Part judge's order sustaining a prosecutor's decision to waive him to the Criminal Part to face a jury trial for committing first-degree aggravated sexual assault upon a five-year-old boy.

Z.S. was age seventeen at the time of the charged offense. He is intellectually disabled, suffers from diagnosed mental illnesses, and was himself the victim of sexual assault as a young child. He has been determined after a hearing by the Social Security Administration to be disabled, and he is classified as a special-needs student in school. The prosecutor has accepted as true the opinion of an evaluating psychiatrist that Z.S. has the "intellectual age" of a thirteen-and-a-half-year-old child, which happens to be below the chronological age of fifteen required for waiver under the present statute.

237 A.3d 347

As explained in this opinion, we vacate the trial court's order because of several critical deficiencies in the processes that resulted

464 N.J.Super. 512

in Z.S.'s waiver. Among other things, the prosecutor's written statement of reasons in support of waiver was incomplete, conclusory, and utilized obsolete 2000 guidelines that do not track the controlling factors under the revised 2016 waiver statute.

In addition, the prosecutor failed to explain in writing in advance of the waiver hearing why the extensive mitigating psychological evidence marshalled by the defense was inconsequential.

Further, the trial court misapplied its discretion by declining to adjourn the waiver hearing at defense counsel's request, with the State's acquiescence, after she had been released from the hospital for pneumonia only two days earlier and was still feeling ill and having difficulty breathing.

Because of these grave procedural shortcomings, we accordingly remand this matter for a renewed waiver hearing. In the course of our discussion, we offer guidance on how best to proceed in such waiver matters under the revised 2016 statute. We do so to assure that such determinations are handled fairly by prosecutors and courts in the future, and the problems that occurred here are not repeated.

I.

Before we delve into the facts and chronology of this case, it is useful to describe the legal and constitutional standards that must guide juvenile waiver decisions.

As that term is used in this State, a juvenile waiver³ entails the transfer of jurisdiction from the Family Part to the

464 N.J.Super. 513

Criminal Part, where the juvenile will be tried as an adult and face adult criminal punishment if found guilty of the charged offenses.

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 N.J. 1, 4-5, 527 A.2d 834 (1987). The minor charged with committing the wrongful acts, if they are proven, usually will be exposed to much more severe punitive sanctions, often including lengthy prison terms and mandatory periods of parole ineligibility. In addition, the offender will no longer be eligible for the special programs available to juveniles. The gravity of this decision frames our analysis of this appeal.

The transfer of jurisdiction over a minor to adult court is so momentous that it has constitutional dimensions. Procedural safeguards are vital to assure the juvenile has a fair opportunity to advocate against waiver. Decades ago, the United States Supreme Court recognized "there is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without

237 A.3d 348

a statement of reasons." Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). These imperatives for the waiver process are consistent with the Supreme Court's recognition that, under the Due Process Clause, a minor who has been charged with delinquent acts has a constitutional right to such protections as adequate notice of the charges, an opportunity to be heard at a fair hearing, and competent counsel. In re Gault, 387 U.S. 1, 12-59, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

The Evolution of the Waiver Laws

The standards for juvenile waiver have evolved over the years, culminating with the 2016 statute that controls the present case. The periodic changes reflect a re-balancing of who should be subject to involuntary waiver. Meanwhile, there has been a continual

464 N.J.Super. 514

emphasis on the need for vital procedural safeguards that reflects the gravity of the waiver decision.

As of the time of the Supreme Court's 1966 opinion in Kent, many jurisdictions focused more on "determining the needs of the child [charged with the offenses] and of society rather than adjudicating criminal conduct." 383 U.S. at 554-55, 86 S.Ct. 1045. "By the late 1960s, however, dissatisfaction with the operation of juvenile courts led to a nationwide shift in emphasis in the direction of custodial sentences for older juvenile offenders that commit serious crimes." In re Registrant J.G., 169 N.J. 304, 322, 777 A.2d 891 (2001).

Our State's juvenile waiver laws have largely mirrored this nationwide trend. The 1983 waiver statute, as described by our Supreme Court, reflected a "concern that the juvenile justice system had dealt inadequately with serious offenders even as it may have dealt too severely with less serious offenders" and therefore intended "to shift the process towards waiver" for "certain serious juvenile offenders." R.G.D., 108 N.J. at 8-9, 527 A.2d 834. Under that 1983 version of the statute, the court at a prosecutor's request could waive a minor who was age fourteen or over at the time of the charged offenses, if the State established probable cause that the juvenile committed an enumerated serious offense.⁴ Id. at 9, 527 A.2d 834. Waiver was disallowed only if the defense proved a probability of rehabilitation achievable by age nineteen that "substantially outweigh[ed] the reasons for waiver." Id. at 11, 527 A.2d 834.

The revised waiver statute adopted in 2000 prescribed standards that made it easier to waive minors aged sixteen or older to the Criminal Part if they were charged with certain enumerated offenses. J.M., 182 N.J. at 412, 866 A.2d 178. It directed that a

464 N.J.Super. 515

prospect of rehabilitation could not prevent waiver for a juvenile offender over age sixteen if he or she was charged with homicide, first-degree robbery, or other specified very serious offenses. N.J.S.A. 2A:4A-26(e).

Of pertinence here, the 2000 statutory revision also instructed the Attorney General to develop and disseminate to county prosecutors "guidelines or directives deemed necessary or appropriate to ensure the uniform application of [the waiver standards] throughout the State." N.J.S.A. 2A:4A-26(f). The Attorney General did so, promulgating such Guidelines in March 2000. Office of the Attorney...