On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County.
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.
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;
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 ...