State v. R.G.D.

• Decision Date: 28 February 1986
• Citation: 506 A.2d 36,208 N.J.Super. 385
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. R.G.D., Defendant-Appellant STATE of New Jersey, Plaintiff-Respondent, v. W.T.P., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 385

208 N.J.Super. 385

506 A.2d 36

STATE of New Jersey, Plaintiff-Respondent, v. R.G.D., Defendant-Appellant STATE of New Jersey, Plaintiff-Respondent, v. W.T.P., Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 28, 1986.

Decided Feb. 28, 1986.

John Morelli, Berlin, for appellant R.G.D. (Console, Marmero, Livolsi, Wood, Curcio & Morelli, Berlin; John Morelli, Berlin, on brief).

Robert S. Greenberg, Vineland, for appellant W.T.P Kathleen A. Berkheiser, Asst. Pros., for respondent (Julian Wilsey, Cumberland Co. Pros.; Kathleen A. Berkheiser, Asst. Pros., on brief).

Before Judges PRESSLER, BILDER and GRUCCIO.

The opinion of the court was delivered by

BILDER, J.A.D.

These are interlocutory appeals, on leave granted, from an order of the Family Part entered pursuant to R. 5:22-2 waiving its jurisdiction over two juveniles. We have consolidated the appeals for the purpose of this opinion.

R.G.D.

The sole issue in R.G.D.'s appeal is whether the trial judge correctly considered the probability of the juvenile defendant's rehabilitation in waiving jurisdiction from the Family Part. Because we conclude he did not, we are required to reverse.

N.J.S.A. 2A:4A-26, which became effective December 31, 1983, requires the Family Part, upon application of the prosecutor, to waive jurisdiction over serious juvenile offenses unless the probability of rehabilitation before the juvenile reaches the age of 19 substantially outweighs the reasons for waiver. As pertinent to this case, it provides as follows:

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 family court 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, robbery which would constitute a crime of the first degree, aggravated sexual assault, sexual assault, aggravated assault which would constitute a crime of the second degree, kidnapping or aggravated arson;

....

(3) Except with respect to any of the acts enumerated in subsection a. (2)(a) of this section 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 in any case 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.

See also R. 5:22-2, implementing the statute.

It is beyond dispute that R.G.D. was over 14 and that there was probable cause to believe that he had committed an aggravated sexual assault. The only question was whether there was a probability of his rehabilitation before age 19 which substantially outweighed the reasons for the waiver.

The facts which can be found from the State's evidence are these. About noon on April 26, 1984, A cut her sixth period class to meet defendant R.G.D. (D) in the school auditorium. When she arrived at the auditorium she found that defendant was accompanied by another juvenile, W.T.P. (P). As recited in the police report: "D and P began to hassle her with their hands; touching her body and making remarks such as "Come on--let's do it." She told them she was not interested in having sex. They heard teachers talking and decided to go to an area in the rear of the theater-auditorium stage area. Arriving in that area D and P continued to make remarks that they desired to have sexual intercourse with her. She continued to tell them she did not desire to have sex with them. D dropped his school book, removed her jacket and took her purse and placed same on the floor. P acted as the look-out from a nearby location and out of sight of D and the victim. * * * [There followed a description of the sexual assaults committed by both youths.] * * * She stated she continued to resist the advances of D and P. She stated she screamed after the above described sexual acts were completed and they all left the area unnoticed by any teachers or other students."

In adopting N.J.S.A. 2A:4A-26 the Legislature clearly showed an intention to deal forcefully with juveniles who commit serious offenses. For certain enumerated serious offenses such as homicide, armed robbery, kidnapping, and rape, waiver is mandated unless the juvenile can meet the burden of showing the probability of rehabilitation substantially outweighs the reasons for waiver. Compare the prior law, N.J.S.A. 2A:4-48, wherein the burden was on the State to prove a lack of such probability. However this get-tough determination was accompanied by an option for rehabilitation under the aegis of the Family Part in those cases where it is clear that the rehabilitation is likely to be successful and the need for waiver is not compelling. While "the reasons for waiver" are not spelled out in the statute, we have no doubt the Legislature had in mind the seriousness of the nature and circumstances of the charge or of the prior record of the juvenile. See N.J.S.A. 2A:4A-26a(3), first paragraph.

It is important to note, however, that the nature and circumstances of the charge refers to the manner in which the offense was carried out, not its inherent seriousness. Thus the commission of a rape--in itself serious, indeed heinous--does not bar juvenile treatment. It only shifts the burden as to the probability of rehabilitation and the relationship of that probability to the public's interest in waiver. In this balancing, it is appropriate to consider the offense in the context of the legislative guidelines supplied for sentencing--whether it was committed in an especially heinous, cruel or depraved manner and whether grave or serious harm was inflicted on the victim beyond that implicit in the offense itself, including any particular vulnerability of the victim. See ...