On appeal from the Superior Court, Chancery Division, Family Part, Ocean County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c. (temporarily assigned).
We granted the State leave to appeal the denial of its application to waive jurisdiction in this case from the Chancery Division, Family Part, to the Law Division, Criminal Part, pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2. Respondent, S.M., a juvenile, was charged with delinquency under N.J.S.A. 2A:4A-23, by committing an act which if committed by an adult would constitute the crime of murder in violation of N.J.S.A. 2C:11-3a(1), (2). The critical issue for resolution is whether the juvenile sustained his burden of preventing waiver under N.J.S.A. 2A:4A-26.
That statute, adopted as part of the 1983 Code of Juvenile Justice, provides, in subsection a, that upon 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 . . ." 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 . . .*fn1
The statute further provides:
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(b)(1), (2)(A) and (4).
On November 12, 1985 the body of 13-year old B.H. was found lying face down in a creek near Garfield Avenue in Toms
River. The victim was nude from the waist down, there was a bag over her head and her body was partially ...