Lynch, Larner and Horn. The opinion of the court was delivered by Horn, J.A.D.
[141 NJSuper Page 329] The sole issue raised in this appeal by the State is whether the judge of the Juvenile and Domestic Relations Court erroneously denied the State's motion under
N.J.S.A. 2A:4-48 and implementing rule R. 5:9-5(b) to waive jurisdiction and to refer the case involving the juvenile to the Camden County Prosecutor for prosecution as a criminal case.
On or about July 10, 1974 two juvenile delinquency complaints involving J.F., then a juvenile, were filed. Each complaint was executed by two Gloucester Township, Camden County, detectives. One complaint charged that on July 9, 1974 J.F. committed an act of delinquency, homicide, in violation of N.J.S.A. 2A:113-1, by stabbing one George Baptiste with a knife and inflicting wounds upon him from which said Baptiste died. The second complaints charged the juvenile with having committed acts of delinquency, atrocious assault and battery, by inflicting knife wounds upon Joseph Goughen and Gregory Baptiste, in violation of N.J.S.A. 2A:90-1, also on July 9, 1974.
A hearing on the State's motion for waiver and transfer of the charges to the Camden County Prosecutor without the consent of the juvenile was conducted by a judge of the Juvenile and Domestic Relations Court on February 21 and 25, 1975 in the presence of an assistant county prosecutor, the juvenile and his counsel. At the hearing it was stipulated that the juvenile was born July 18, 1956, so that at the time of the alleged commission of the acts charged in the respective complaints he would have attained his 18th birthday eight days later.
The trial judge found that all the criteria for transfer as set forth in N.J.S.A. 2A:4-48 and R. 5:9-5(b) were not present. Under that statute and rule, before a judge may order a transfer in a case like the instant one he must find that (1) the juvenile was 16 years of age or over at the time when the delinquent act or acts were committed, and (2) there is probable cause to believe that the juvenile committed a delinquent act that would constitute homicide if committed by an adult, or committed an offense against the person in an aggressive, violent and willful manner. In addition
to the foregoing he must also be satisfied that (3) the adequate protection of the public requires such waiver and (4) there are no reasonable prospects for rehabilitation of the juvenile by use of the proceedings, services and facilities available to the court pursuant to law.*fn1
The judge found specifically that the State had failed to establish probable cause to believe that the juvenile committed the acts charged in the complaints. He also found that the public could be protected by the facilities available to the Juvenile Court. However, in discussing the evidence the judge stated: "And the fact one man's dead, and two others were supposedly stabbed, to me * * * that is a very serious matter, and that would require the protection of the public."
The present statute and rule which govern became effective in 1974.*fn2 The superseded statute and rule, N.J.S.A. 2A:4-15 and R.R. 6:9-7, authorized the court to refer the case of a 16 or 17-year-old to the county prosecutor if it appeared that the youth was an habitual offender or had been charged with an offense of a heinous nature under circumstances which might require imposition of sentence rather than disposition permitted by the Juvenile Delinquency Act for the welfare of society. State v. Van Buren , 29 N.J. 548, 554 (1959). We are not referred to any case in this State which has been decided under the present statute and rule.
So long as a juvenile is under the jurisdiction of the Juvenile and Domestic Relations Court the procedural course is deemed protective rather than punitive. State v. Smith , 32 N.J. 501, 530 (1960). In State v. Van Buren, supra , 29 N.J. at 557, decided under the former statute and rule, it was said that a case may be referred to the prosecutor when the circumstances indicate that if the charge is ultimately established, society would be better served by the criminal process by reason of the greater security which may be achieved or the deterring effect which that process is thought to accomplish. Notwithstanding the changes that have been wrought with respect to the criteria governing the judge's determination whether to transfer to the prosecutor or not, the foregoing thesis is as viable today as it was when pronounced.
In dealing with crime the protection of society must always be a primary consideration, whether the criminal acts are committed by juveniles or adults. If there is a possibility of rehabilitation and the undertaking to that end does not conflict with the required protection of society, and there is no other persuasive reason for taking some other course, ...