On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FJ-15-2473-01.
Before Judges Skillman, Wallace, Jr. and Carchman.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Since 1983, the Code of Juvenile Justice (Juvenile Code) has provided that a juvenile over the age of fourteen who is charged with any of certain enumerated serious offenses, commonly referred to as "Chart 1" offenses, see State v. R.G.D., 108 N.J. 1, 11-12 (1987), may be waived to adult court for trial if there is probable cause to believe the juvenile has committed the offense, unless "the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available in the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver." N.J.S.A. 2A:4A-26e (formerly N.J.S.A. 2A:4A-26a(3)). In 2000, the Legislature amended this section of the Juvenile Code to eliminate the right of a juvenile sixteen years of age or older to defeat a prosecutor's motion to waive a charge of a Chart 1 offense to adult court by showing a probability of rehabilitation before the age of nineteen. L. 1999, c. 373, § 1. This amendment also required the Attorney General to "develop for dissemination to the county prosecutors those guidelines or directives deemed necessary or appropriate to ensure the uniform application of [the waiver] section throughout the State." N.J.S.A. 2A:4A-26f.
Pursuant to this directive, the Attorney General issued Guidelines that identify factors a prosecutor must consider in determining whether to file a motion for waiver to adult court. The Attorney General's Guidelines also provide that "[t]he assistant prosecutor making the initial waiver decision shall prepare a written statement of reasons for waiver . . . [that] shall include an account of all factors considered and deemed applicable[,] . . . [which] shall be reviewed and approved by the County Prosecutor or by his or her designee."
The primary issues presented by this appeal are whether a prosecutor's motion for waiver to adult court of a charge of a Chart 1 offense against a juvenile over sixteen must be supported by the "written statement of reasons for waiver" required by the Attorney General's Guidelines and whether a prosecutor's waiver decision is subject to judicial review.
We conclude that a prosecutor's motion for waiver to adult court of a juvenile complaint that falls within the Attorney General's Guidelines must be accompanied by a copy of the prosecutor's statement of reasons and that a prosecutor's waiver decision is subject to judicial review. We also conclude that a prosecutor's motion for waiver of such a complaint must be granted unless the juvenile shows by clear and convincing evidence that the decision constituted a patent and gross abuse of discretion. Because the trial court granted the Prosecutor's motion to waive this case to adult court without reviewing the adequacy of his statement of reasons, we vacate the order of waiver and remand the case to the Family Part.
This case was initiated by the filing of a juvenile delinquency complaint charging R.C. with acts which, if committed by an adult, would constitute aggravated arson, in violation of N.J.S.A. 2C:17-1a(2), criminal mischief, in violation of N.J.S.A. 2C:17-3a(1), and burglary, in violation of N.J.S.A. 2C:18-2a(1). These charges were based on allegations that R.C., who was then sixteen years old, and three other juveniles, who were under sixteen, broke into a car dealership late on the night of March 10, 2001, and set a fire that caused several million dollars in property damage.
The Ocean County Prosecutor filed a motion with the Family Part within the thirty-day period allowed under N.J.S.A. 2A:4A-26d and Rule 5:22-2 to waive the complaint against R.C. to the Law Division. The juvenile opposed the motion on the ground that it was not supported by the "written statement of reasons for waiver" required by the Attorney General's Guidelines.
Before the return date, the Prosecutor submitted a document to the trial court, dated May 29, 2001, which was entitled "Written Statement of Reasons for Waiver in 'Prosecutorial Waiver' Case[,] Juvenile - [R.C.], . . . Most Serious Charge - Aggravated Arson." In addition, the assistant prosecutor responsible for handling the case submitted a certification which stated that she had met with the Prosecutor on April 17, 2001, and showed him various documents that outlined the factual allegations underlying the charges against R.C. and his confederates, the juveniles' ages, and their prior records. The assistant prosecutor stated that she discussed the case with the Prosecutor, and that he had "[taken] into consideration the nature and circumstances of the fire, the role of [R.C.], and the need to deter [R.C.]" in deciding to file a motion to waive the charges to the Law Division. The assistant prosecutor concluded her certification with a representation that the May 29, 2001 written statement of reasons for trying R.C. as an adult "merely incorporate[d] the conclusions" reached in her April 17, 2001 meeting with the Prosecutor.
The Prosecutor contended that the juvenile's argument that the waiver was defective because it was not supported by a written statement of reasons was mooted by the submission of his May 29, 2001 "Written Statement of Reasons for Waiver." In the alternative, the Prosecutor contended that the preparation of such a statement is only "an internal office procedure," and therefore he was not required to submit it to the juvenile or to the court.
The trial court concluded that the only issue a court is required to decide when a prosecutor moves to waive a charge of Chart 1 offense against a juvenile over the age of sixteen to adult court is whether there is "probable cause" to believe that the juvenile has committed an act which, if committed by an adult, would constitute one of the serious offenses enumerated in the second sentence of N.J.S.A. 2A:4A-26e. The court concluded that a prosecutor is not required to submit a statement of reasons for the waiver to either the juvenile or the court, and that this decision is not subject to judicial review. The court further concluded that if a juvenile is charged with multiple acts of juvenile delinquency arising out of the same incident, only one of which is subject to automatic waiver upon application of the prosecutor, the other charges are not subject to the waiver. *fn1 Accordingly, the court entered an order granting the Prosecutor's motion to waive the aggravated arson charge against R.C. to the Law Division but denying his motion to also waive the criminal mischief and burglary charges.
We granted R.C.'s motion for leave to appeal from the part of the order that waived the aggravated arson charge to the Law Division. Subsequently, we denied the Prosecutor's motion for leave to cross-appeal from the part of the order that denied his motion to also waive the other charges against R.C. We granted the Public Defender's motion to file an amicus curiae brief in support of the juvenile's ...