RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3763-20

STATE OF NEW JERSEY

IN THE INTEREST OF A.W.,

a Juvenile.

___________________________

Submitted February 2, 2022 – Decided March 7, 2022

Before Judges Whipple, Geiger, and Susswein.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Chancery Division, Family Part, 

Essex County, Docket Nos. FJ-07-0388-21 and FJ-07-

0508-21.

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for appellant (Frank J. Ducoat, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief). 

Joseph E. Krakora, Public Defender, attorney for 

respondent (Stefan Van Jura, Assistant Deputy Public 

Defender, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals the July 23, 2021 Family Part order 

denying the prosecutor's application to transfer jurisdiction of this juvenile 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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delinquency matter to the Law Division pursuant to N.J.S.A. 2A:4A-26.1. That 

process is commonly referred to as "waiving" a juvenile over to adult criminal 

court. A.W.1is charged as a juvenile with carjacking, unlawful possession of a 

weapon, possession of a weapon for an unlawful purpose, and conspiracy to 

commit carjacking. He was seventeen years old at the time he allegedly 

committed these offenses. 

After carefully reviewing the record in light of the applicable legal 

principles, we are constrained to reverse and remand the matter for a new 

juvenile waiver hearing in the Family Part. The written statement of reasons 

submitted by the prosecutor was flawed and was not properly approved within 

the prosecutor's chain of command. Additionally, in weighing the statutory 

factors that militate for and against waiving the prosecution over to the adult 

criminal court, the Family Part Judge appears to have substituted her own 

judgment for that of the prosecutor. Given the import of the waiver decision to 

the interests of both the juvenile and the public, we deem it prudent to remand 

for a new hearing to address deficiencies in the process that resulted in the 

Family Part judge denying waiver. We believe a remand is necessary to ensure 

1

 We use initials to protect the identity of the juvenile involved in this case. See

R. 1:38-3(d). 
3

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that the waiver decision is based on complete and accurate information, 

affording appropriate deference to the prosecutor's exercise of discretion in 

weighing the relevant factors under the statutory framework.

I.

We discern the following pertinent facts and procedural history from the 

record. In doing so, we are mindful that A.W. has not yet been tried and is 

presumed innocent.

On the morning of August 11, 2020, the owner of a black Jeep Cherokee 

reported to the Verona Police Department that his vehicle had been stolen from 

his driveway. Later that same morning, South Orange Police Department 

officers responded to a report that an Audi Q5 had been stolen during a 

carjacking incident. The owner of the Audi stated that he had noticed a black 

Jeep Cherokee when he stopped at a bank and later when he arrived at a 

Maplewood day care facility to drop off his three-year-old son. The Jeep 

Cherokee pulled in front of the Audi and blocked it. A young black male 

wearing a dark short-sleeved shirt exited the Jeep, displayed a black handgun, 

and demanded, "give me everything you got." The gunman then entered the 

Audi Q5 and drove away in the same direction as the Jeep. Fortunately, the 
4

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victim was able to remove his three-year-old child from the Audi before it sped 

off. 

The carjacked Audi was recovered in Newark following a police pursuit 

and crash. Video provided by bystanders shows a young black male exit the 

Audi and enter the passenger side of the Jeep. The Jeep was later recovered in 

Newark. Police found latent fingerprints in both stolen vehicles. 

The State Police Automated Fingerprint Identification System (AFIS) 

established that A.W.'s fingerprints were found in both stolen vehicles, and that 

co-defendant Jeremy Delgado's2fingerprints were found in the Jeep Cherokee. 

The owners of the Audi and the Jeep told police that they do not know A.W. or 

Delgado and did not give them permission to use their respective vehicles.

On August 19, 2020, A.W. was taken into custody and charged as a 

juvenile with first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); second-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); second-degree 

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and 

second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2(a)(1) and 

N.J.S.A. 2C:15-2(a)(2). The prosecutor later filed an additional juvenile 

delinquency complaint charging A.W. with third-degree theft of the Jeep 

2

 Delgado is an adult and is not a party to this waiver litigation. 
5

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Cherokee, N.J.S.A. 2C:20-2(b)(2)(b). Delgado was charged by complaintwarrant and later indicted for the same offenses. 

On October 8, 2020, the State filed a notice of motion for jurisdictional 

waiver to adult court and provided a written statement of reasons supporting the 

motion. The statement of reasons explained that A.W. had previously been 

arrested for various offenses, been placed on probation, violated probation three 

times between May 2019 and January 2020, and had bench warrants issued for 

his non-appearance. The initial statement of reasons also represented that A.W. 

had previously served a custodial disposition in a state juvenile facility. 

On December 9, 2020, the Family Part judge held a status conference at 

which A.W. objected to the State's waiver motion and submitted documentation 

in opposition. The defense noted that the prosecutor's original statement of 

reasons had not been "approved by the County Prosecutor and/or the 

[p]rosecutor's designee before submission of the request for waiver by the 

assigned assistant prosecutor to the [c]ourt," as required by N.J.S.A. 2A:4A26.1(a). 

On December 31, 2020, the State filed a supplemental submission on its 

waiver motion and sought joinder of the two juvenile delinquency complaints. 
6

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In response to A.W.'s objection that neither the County Prosecutor nor a 

designee had approved the initial statement of reasons, the State explained, 

the waiver was decided after the following steps: the 

undersigned [assistant] prosecutor reviewed the file and 

the[n] spoke with the victim; the undersigned 

prosecutor presented this case to the undersigned's two 

immediate supervisors of the Special Prosecutions 

Unit, who after discussing the case individually, agreed 

this matter should be waived . . . from the Family Court 

to Criminal Court; this matter was explained to the

Chief Assistant Prosecutor of Major Crimes during 

several meetings; and following defense counsel's 

motion, this matter was formally presented to the Chief 

Assistant Prosecutor solely for his signature, which was 

approved on December 10, 2020. Contrary to [d]efense 

counsel's argument that this was presented without 

care, numerous prosecutors at different levels reviewed 

and approved this matter for the waiver.

The supplemental filing also stated that A.W. "has numerous prior 

detentions from his many arrests, and one prior custodial adjudication on May 

29, 2019 for [thirty-four] days [committed to a juvenile facility]."

On January 19, 2021, the Family Part judge convened a second status 

conference at which she granted the State's motion for joinder of the two juvenile 

complaints without objection.

On May 18, 2021—two days before the scheduled waiver hearing—the 

State supplemented its initial statements of reasons to address two 

Individualized Educations Programs (IEPs) dated January 19, 2017 and January 
7

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17, 2018, and a Treatment Assessment Services for the Courts (TASC)3

evaluation dated September 28, 2020. The prosecutor's supplemental statement 

of reasons reads in pertinent part: 

(e) Special Classification of Juvenile

The State has received two . . . IEP reports that 

classify the juvenile as being emotionally disturbed 

which interfered with his learning ability and required 

Behavioral Disabilities Special Classes. No other 

disabilities were mentioned. This factor weighs against 

the waiver of the juvenile.

(j) Evidence of Mental Health Concerns/Substance 

Abuse/Emotional Instability of Juvenile

The State has received a TASC evaluation that 

states that the juvenile has a history of marijuana and 

opiate use that began at [thirteen] and [sixteen] years of

age respectively, and the juvenile has opioid 

dependence. Additionally, the report stated that the 

juvenile reported serious depression and serious 

anxiety as prior psychological problems. This factor 

weighs against the waiver of the juvenile. 

. . . .

The factors in favor of waiver outweigh those 

which support handling this matter in family court. 

Specifically, the nature of the offense, wherein the 

juvenile committed an armed carjacking which 

involved danger to a three[-]year[-]old child, weigh in 

3

 The TASC program evaluates defendants for substance abuse problems to 

determine clinical eligibility and suitability for admission to the Drug Court 

Program. See State v. Harris, 466 N.J. Super. 502, 541 (App. Div. 2021).
8

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favor of a jurisdictional waiver. The incident shows a 

blatant disregard for the value of human life or 

property.

While the State has reviewed the juvenile's prior 

history of behavioral and substance problems, as well 

as the prior history of contacts with the system, the 

State does not believe this mitigation outweighs the 

other factors in its analysis . . . .

THE WAIVER HEARING

On May 19 and 20, 2021, the court convened a probable cause and waiver 

hearing. On the first day of the hearing, the State elicited testimony from South 

Orange Police Department Detective Frank Auriemma, the lead detective 

investigating the carjacking incident. Detective Auriemma testified that police 

obtained two surveillance videos that show the theft of the Jeep Cherokee in 

Verona, two videos that show the carjacking, and one video that shows the Audi 

crashing in Newark after the carjacking. One video shows "a Hispanic actor 

wearing red and white clothing" entering the passenger side of the Jeep and "a 

tall, thin black male wearing black and white" clothing entering the driver's side. 

The black male operated the vehicle and reversed out of the driveway. 

Another video shows the Jeep following the Audi as it was being operated 

by its owner. The victim's three-year-old son was in the Audi. The video shows 

the perpetrator brandishing a handgun and the driver frantically retrieving a 
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child from the back seat just before the carjacker drives the Audi away. Another 

video shows police pursuing the Jeep driven by a Hispanic male wearing red and 

the Audi driven by a young black male. The stolen vehicles were traveling at 

seventy-three miles per hour on a road with a thirty-five mile per hour speed 

limit.

Detective Auriemma testified that approximately twenty minutes after the 

carjacking, the Audi overturned and crashed in Newark. A video shows the 

driver of the Audi exit the crashed vehicle and enter the passenger side of the 

Jeep. Police found the Jeep four or five blocks from where the Audi crashed.

On the second day of the waiver hearing, counsel for the State and 

defendant both consented to admitting into evidence the IEPs and the TASC 

evaluation. The prosecutor argued there was probable cause to support the 

waiver application and then elaborated on the State's reasons for seeking waiver 

in the context of the relevant factors set forth in N.J.S.A. 2A:4A-26.1(c)(3)(a)–

(k).4 

As to the first enumerated factor, N.J.S.A. 2A:4A-26.1(c)(3)(a) ("[t]he 

nature and circumstances of the offense charged"), the State explained that the 

nature of the present crimes weighs heavily in favor of waiver because A.W. is 

4

 We list the eleven statutory factors in section II of this opinion. 
10 A-3763-20

charged with carjacking—one of the most serious non-homicide crimes in the 

penal code—as well as both conspiracy to commit carjacking and using a firearm 

during the carjacking episode. The State further argued that A.W. led police on 

a "significant and dangerous chase through South Orange into Newark to avoid 

apprehension." 

As to the second statutory factor, N.J.S.A. 2A:4A-26.1(c)(3)(b) 

("[w]hether the offense was against a person or property, allocating more weight 

for crimes against the person"), the State argued that the present crimes weigh 

in favor of waiver because they were committed against multiple victims, not 

just property, and presented a danger to the public. 

As to the third factor, N.J.S.A. 2A:4A-26.1(c)(3)(c), (the "degree of the 

juvenile's culpability,"), the State reasoned that A.W.'s culpability weighs in 

favor of waiver, arguing that A.W. was more culpable than Delgado because he 

personally brandished a firearm to commit the carjacking and crashed the stolen 

car while fleeing. 

As to the fourth factor, N.J.S.A. 2A:4A-26.1(c)(3)(d), (A.W.'s "[a]ge and 

maturity"), the prosecutor argued it was neutral, militating neither for nor 

against waiver, because the IEPs show that A.W. "does actually seem quite 

capable. It seems like he is someone who understands his position and the 
11 A-3763-20

challenges he faces, or he faced at those times, and did understand what he had 

to do, but was having difficulty getting to that point." The State further argued, 

as to factor nine, N.J.S.A. 2A:4A-26.1(c)(3)(i) ("[c]urrent or prior involvement 

of the juvenile with child welfare agencies"), that this factor is neutral. 

As to factor ten, N.J.S.A. 2A:4A-26.1(c)(3)(j) ("[e]vidence of mental 

health concerns, substance abuse, or emotional instability of the juvenile to the 

extent this information is provided to the prosecution by the juvenile or by the 

court"), the State acknowledged that A.W.'s mental health and substance abuse 

issues weigh against waiver. A.W.'s TASC evaluation found that he suffers from 

a drug dependency involving opiates, depression, and anxiety.

As to factor eight, N.J.S.A. 2A:4A-26.1(c)(3)(h) ("[i]f the juvenile 

previously served a custodial disposition in a State juvenile facility operated by 

the Juvenile Justice Commission"), the State conceded that in its original 

statement of reasons, it had presented and relied on inaccurate information as to 

A.W.'s prior criminal history with respect to whether he had previously served 

a custodial disposition. The prosecutor explained: 

As part of the original submission, the State did list all 

of his prior arrests, for which some were dismissed, as 

well as ones for which he did receive probation and then 

subsequent violations of probation. During one of 

those times, he did have a sentence, or not a sentence, 

a time at which he was in custody. I apologize. I 
12 A-3763-20

understand there is no excuse for it. I misread that as 

being a custodial sentence. So, as part of that, the State 

did state that that was part of the reason that weighed 

in favor of a waiver.

The State nonetheless argued at the hearing that ultimately, it did not rely 

on prior arrests that did not result in adjudications of delinquency. The judge 

did not accept that argument, responding: 

The second submission by the State that you wish 

to rely on and that you are arguing based on, I don't 

have anything for Mr. Fennelly, Mr. Higgins or anyone 

else that is the designee of the State that indicates that 

they were apprised that the representations of this 

young man's prior history were not accurate. And that's 

a heavy, that's one of the heavy factors for a waiver. 

I know you said in your brief that you discussed 

everything fully with Mr. Fennelly, that he signed off 

on it, to include that the young man served a custodial 

disposition in a State facility operated by the Juvenile 

Justice Commission is just not accurate. And I accept 

your representation that you didn't understand that to be 

the case. But it still exists as part of your underpinning 

for both your original filing on October 8th of 2020, 

which was shortly before the statute would have 

expired and then your subsequent filing after being put 

on notice by the defense that they intended to raise 

these as significant concerns.

. . . .

If I accept Mr. Fennelly as the prosecutor's 

designee for this particular matter, I have nothing from 

October to today that says Mr. Fennelly reconsidered 

the fact that he didn't get the correct information about 
13 A-3763-20

this young man's prior history when it was presented to 

him for his consideration for waiver. Prior history is a 

significantly weighted factor in the waiver statute. 

That's my concern.

. . . . 

The Court's concern is the lack of detailed 

presentation of the waiver application itself. And in 

this instance a second filing unsupported with either an 

affidavit or certification as to the State's efforts to cure 

the unintentional errors that it made in filing the initial 

application in October.

THE FAMILY PART JUDGE'S RULING

On July 23, 2021, the Family Part judge issued a written opinion, finding 

probable cause5for each of the charged offenses and joining the complaints for 

waiver purposes. However, the judge denied the State's application for waiver 

5

 The defense has not cross-appealed the finding of probable cause, which is an 

essential predicate to waiver. See N.J.S.A. 2A:4A-26.1(c)(2). We note the State 

on appeal argues that much of the Family Part judge's written opinion denying 

waiver focuses on what the judge described as "obvious shortcomings" in the 

State's investigation. The State argues that the judge's criticisms of the 

investigation show "a serious misunderstanding of a judge's role when reviewing 

a waiver motion." We need not address the State's argument except to note that 

once probable cause is established, as it was in this case, evidentiary issues and 

"legitimate concerns raised as to the limited investigation conducted," to use the 

judge's phraseology, are not factors bearing on the propriety of the prosecutor's 

decision to seek waiver to adult court. Such problems are appropriately 

addressed by the trial court, whether that be in the Family Part or adult Criminal 

Part. 
14 A-3763-20

to adult court. The judge concluded that the State failed to properly analyze 

statutory factors (e), (g), (h), and (j) and thus abused its discretion. 

With respect to factors (g) and (h), the judge reasoned: 

[i]n the State's notice of motion dated October 08, 2020, 

the State[] includes facts and circumstances in sections 

(g) and (h) of the statement of reasons that are not in 

accordance with the clear parameters of N.J.S.A. 

2A:4A-26. In addition, the State failed to comply with 

the requirement that the State's application be approved 

by the County Prosecutor and/or the Prosecutor's 

designee before submission of the request for waiver by 

the assigned assistant prosecutor to the Court.

The judge further noted, "[t]he State erroneously included any and all 

charges filed against A.W. including charges that have been dismissed and 

erroneously stated that A.W, served a custodial sentence." The court rejected 

the State's argument "that it was not incorrect to include prior arrests, concluding 

without support that 'nowhere does the language (of the statute) state that prior 

arrests are not to be considered or presented in a waiver.'" The court added: 

There is nothing in the [s]tatutes' plain language 

that indicates the State should consider and include 

arrests without adjudication in the analysis. The State 

eventually acknowledged that its inclusion of this 

material was erroneous but contends that the errors are 

on "[of] moment[.]" The State contends that its 

inclusion and reliance upon A.W. serving a "custodial 

term" at a Juvenile Justice Commission Facility[] was 

based on the State's erroneous reading of A.W.'s 

F.A.C.T.S. history (Family Automated Court Tracking 
15 A-3763-20

System) believing that time spent by A.W. at the Essex 

County Detention Center prior to adjudication qualified 

as a custodial term.

The alleged failure of the State to understand 

what constitutes a custodial term in a J.J.C. (Juvenile 

Justice Commission) facility and the assistant 

prosecutor's reliance upon same as justification for the 

State's error is misplaced and the Court finds it[] of 

significant moment by including this erroneous 

information [in] allowing Chief Assistant Prosecutor 

Fennelly to consider and rely upon same as he reviewed 

the assistant prosecutor's application before submission 

to the Court compounded the error. The Court finds 

that the reliance in factors (g) and (h) on incorrect 

information constitutes an abuse of discretion by the 

State, whether same was intentional or not. The failure 

to properly address the juvenile's actual history and 

lack of custodial dispositions negates the State's 

position that it properly assessed factors (g) and (h) in

either the submission with a signature or without. The 

documents are exactly the same and both contain 

erroneous, prejudicial information that the State relied 

upon and upon which the State determined "weigh 

heavily in favor of waiver."

With respect to factors (e) and (j),6the court noted that despite A.W.'s two 

IEPs and a TASC evaluation showing that A.W. was emotionally disturbed, 

required Behavioral Disabilities Special Classes, and has substance abuse and 

6

 In her written opinion, the judge at one point referred to factor (f), which 

appears to be a typographical error. The context of the judge's analysis clearly 

indicates that she was focusing on factor (j). We also note that the judge listed 

(j) in the conclusion as opposed to (f). 
16 A-3763-20

mental health issues, "the State in three [] one[-]sentence paragraphs concluded 

that the factors favoring waiver outweigh the foregoing concerns." The court 

found "that the State's assessment of factors [e] and [j] are lacking in specificity 

and detail and are conclusory in nature."

On August 26, 2021, the State filed a motion for leave to appeal the order 

denying jurisdictional waiver. On August 27, 2021, we granted the State's 

motion. This appeal follows. 

The State raises the following contentions for our consideration: 

POINT I

THE COURT BELOW SUBSTITUTED ITS 

JUDGMENT FOR THE PROSECUTOR'S WHEN IT 

DENIED THE STATE’S WAIVER MOTION.

A. THE WAIVER STATUTE AND APPLICABLE 

CASELAW.

B. THE LOWER COURT'S DECISION IS 

FUNDAMENTALLY FLAWED AND MUST BE 

REVERSED.

I. FACTOR G PERMITS CONSIDERATION 

OF A JUVENILE'S ENTIRE HISTORY OF 

DELINQUENCY, NOT JUST PRIOR 

ADJUDICATIONS. REGARDLESS, IN THIS 

CASE, THE PROSECUTOR MADE CLEAR 

THAT HE WITHDREW ANY 

CONSIDERATION OF THOSE PRIOR 

CONTACTS IN SEEKING WAIVER.
17 A-3763-20

II. THE PROSECUTOR'S INITIAL 

SUBMISSION OF AN UNSIGNED VERSION 

OF HIS STATEMENT OF REASONS, AND HIS 

FINDING THAT FACTOR H WEIGHED IN 

FAVOR OF WAIVER, WERE REASONABLE, 

DE MINIMIS MISTAKES QUICKLY 

CORRECTED.

III. THE PROSECUTOR'S ANALYSIS OF 

FACTORS E AND J, WHILE PERHAPS NOT 

AN "ACADEMIC TOME," WAS SUFFICIENT 

GIVEN THE EVIDENCE A.W. PRESENTED 

AND THE CHARGED OFFENSES.

IV. THE JUDGE ERRED IN GIVING 

OVERWHELMING WEIGHT TO HER 

PERSONAL DISSATISFACTION WITH THE 

STATE'S INVESTIGATION AND PROOFS.

V. RATHER THAN IMPOSE THE DRASTIC 

REMEDY OF DENYING WAIVER, THE 

JUDGE SHOULD HAVE REMANDED THE 

MATTER BACK TO THE PROSECUTOR TO 

CURE THE SUPPOSED DEFICIENCIES IN 

HIS STATEMENTS OF REASONS.

II.

We begin our analysis by acknowledging the legal principles governing 

this appeal. As our Supreme Court has recognized, "'waiver to the adult court 

is the single most serious act that the juvenile court can perform' . . . because 

once waiver of jurisdiction occurs, the child loses all the protective and 

rehabilitative possibilities available to the Family Part." State v. R.G.D., 108 
18 A-3763-20

N.J. 1, 4–5 (1987) (citation omitted). A juvenile charged with committing 

criminal acts, "if they are proven, usually will be exposed [in adult court] to 

much more severe punitive sanctions, often including lengthy prison terms and 

mandatory periods of parole ineligibility." State in the Int. of Z.S., 464 N.J. 

Super. 507, 513 (App. Div. 2020). In this instance, if jurisdiction is transferred 

to adult court, A.W. will be subject to the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2, on the carjacking charge, and the Graves Act7 on the 

handgun charges. NERA requires that a convicted defendant serve 85% of the 

prison term before becoming eligible for parole. The Graves Act also requires 

a term of imprisonment with a minimum term of parole ineligibility. In stark 

contrast, if A.W. were to instead be tried in juvenile court and adjudicated 

delinquent, he would not face a mandatory term of imprisonment and parole 

ineligibility. 

Our standard of review in juvenile waiver cases "is whether the correct 

legal standard has been applied, whether inappropriate factors have been 

considered, and whether the exercise of discretion constituted a 'clear error of 

7

 The Graves Act is named for Senator Francis X. Graves, Jr., who sponsored 

legislation in the 1980s mandating imprisonment and parole ineligibility terms 

for persons who committed certain offenses while armed with a firearm. The 

term now refers to all gun crimes that carry a mandatory minimum term of 

imprisonment. 
19 A-3763-20

judgment' in all of the circumstances." State in the Int. of J.F., 446 N.J. Super. 

39, 51–52 (App. Div. 2016) (quoting R.G.D., 108 N.J. at 15). Furthermore, "the 

standard of review of the prosecutor's waiver decision is deferential. The trial 

court should uphold the [prosecutor's] decision unless it is 'clearly convinced 

that the prosecutor abused his [or her] discretion in considering' the enumerated 

statutory factors." Z.S., 464 N.J. Super. at 519–20. 

Under this deferential standard, a Family Part judge may not substitute his 

or her judgment for that of the prosecutor. State in the Int. of V.A., 212 N.J. 1, 

8 (2012). Rather, the juvenile court conducts a limited, yet substantive, review 

to ensure the prosecutor made an individualized decision about the juvenile that 

was neither arbitrary nor abused the prosecutor's considerable discretion. Ibid.; 

see also State in the Int. of N.H., 226 N.J. 242, 255 (2016) ("[U]nder the new 

law as well as the old, the prosecutor's decision to seek waiver is subject to 

review—at the hearing—for abuse of discretion."). 

In 2015, the Legislature enacted major revisions to our State's juvenile 

justice system, including a revamping of the waiver statute. Those reforms took

effect in March 2016. L. 2015, c. 89, § 1; Z.S., 464 N.J. Super. at 515–16. 

"Section 26 of Title 2A:4A was repealed and replaced with new Section 26.1." 

Z.S., 464 N.J. Super. at 516. 
20 A-3763-20

The revised statute retains the deference that must be accorded to the 

prosecutor's decision to seek waiver. Id. at 519 (citing N.H., 226 N.J. at 249). 

Furthermore, and of significant importance in this appeal, the revised statute 

continues the strong presumption of waiver for juveniles who commit serious 

acts. Ibid. As we noted in Z.S., juveniles who commit serious crimes carry a 

"heavy burden" to defeat a prosecutor's waiver motion. Ibid. (citing R.G.D., 108 

N.J. at 12). 

The statutory revisions that took effect in 2016 list the factors that 

prosecutors must consider in exercising their discretion to seek waiver to adult 

court. Those factors are: 

(a) The nature and circumstances of the offense 

charged;

(b) Whether the offense was against a person or 

property, allocating more weight for crimes against the 

person;

(c) Degree of the juvenile's culpability;

(d) Age and maturity of the juvenile;

(e) Any classification that the juvenile is eligible for 

special education to the extent this information is 

provided to the prosecution by the juvenile or by the 

court;

(f) Degree of criminal sophistication exhibited by the 

juvenile;
21 A-3763-20

(g) Nature and extent of any prior history of 

delinquency of the juvenile and dispositions imposed 

for those adjudications;

(h) If the juvenile previously served a custodial 

disposition in a State juvenile facility operated by the 

Juvenile Justice Commission, and the response of the 

juvenile to the programs provided at the facility to the 

extent this information is provided to the prosecution 

by the Juvenile Justice Commission;

(i) Current or prior involvement of the juvenile with 

child welfare agencies;

(j) Evidence of mental health concerns, substance 

abuse, or emotional instability of the juvenile to the 

extent this information is provided to the prosecution 

by the juvenile or by the court; and

(k) If there is an identifiable victim, the input of the 

victim or victim's family.

[N.J.S.A. 2A:4A-26.1(c)(3).]

In Z.S., we carefully and comprehensively explained the guiding 

principles governing judicial review of the exercise of prosecutorial discretion 

in deciding whether a case will be heard in adult or juvenile court. 464 N.J. 

Super. at 533. As we recognized in Z.S., our Supreme Court has made clear that 

"the State has an 'affirmative obligation to show that it assessed all the 

[statutory] factors' concerning waiver, and the court must review this 

assessment." Ibid. (alteration in original) (citing N.H., 226 N.J. at 251; N.J.S.A. 
22 A-3763-20

2A:4A-26.1(b)). The State must provide a written assessment at the time of its 

waiver motion, laying out the facts it relied on to assess the eleven statutory 

"factors 'together with an explanation as to how evaluation of those facts support 

waiver for each particular juvenile.'" Ibid. (quoting N.J.S.A. 2A:4A-26.1(a)). 

We emphasized in Z.S. that the sufficiency of the prosecutor's written 

statement of reasons is vital, and that it "should apply the factors to the 

individual juvenile and not simply mirror the statutory language in a cursory 

fashion." Ibid. (quoting N.H., 226 N.J. at 250). We explained, 

[a] fundamental aspect of the statutory procedure is that 

the prosecutor's reasons for seeking waiver must be 

expressed in written form, with fair notice to the 

opposing side. The juvenile's attorney must not be 

forced to guess why the prosecutor believes a particular 

factor does or does not apply, and why that factor is 

comparatively strong, neutral, or weak. The defense 

lawyer, and the juvenile himself, must be informed 

about why this momentous decision to waive is being 

pursued. A fulsome explanation will enable the defense 

to prepare to counter it, possibly with additional 

mitigating evidence about the circumstances of the 

offense or about the juvenile's personal characteristics. 

Upon learning the prosecutor's reasoning, the defense 

may seek further mitigating opinions from experts, as 

well as records of medical or mental health treatment, 

or additional documents from schools or governmental 

agencies.

[Id. at 533–34.]
23 A-3763-20

We further emphasized in Z.S. that the statement of reasons "cannot be 

incomplete or superficial," cannot make "conclusory assertions that are devoid 

of analysis," and, as math teachers tell their students, must "show the work." Id.

at 534. We nonetheless made clear, "[t]his is not to say that prosecutor waiver 

statements must emulate Victorian novels or academic tomes. They need not 

elaborate about minutiae." Id. at 535. Importantly, we also acknowledged that 

"because positive and negative factors will often exist, the prosecutor's ultimate 

conclusion balancing those offsetting factors may not be amenable to precise 

articulation." Ibid.

We add that while the significance of the written statement of reasons 

cannot be overstated, it is not an end unto itself. Rather, it is a means to achieve 

a just result. The statement of reasons provides the foundation for the waiver 

hearing. As we noted in Z.S., "[o]ral argument [at the waiver hearing] should 

not be the first time the defense learns of the prosecutor's reasons" for seeking 

to try the minor as an adult. Id. at 543. The written statement of reasons, 

however, does not supplant the hearing, nor render it a perfunctory ritual. So 

long as the defense has sufficient notice and a fair opportunity to respond to the 

prosecutor's arguments, a prosecutor is not categorically precluded at the 

hearing from amplifying, supplementing, or correcting information or argument 
24 A-3763-20

contained in the written statement of reasons. We do not apply to the statement 

of reasons, in other words, the "four corners" rule used, for example, in 

reviewing the sufficiency of a search warrant application. Cf. State v. Sheehan, 

217 N.J. Super. 20, 24 (App. Div. 1987) ("As a general rule, questions 

concerning the validity of a search warrant hinge upon the information contained 

within the four corners of the supporting affidavit."); but cf. Z.S., 464 N.J. 

Super. at 543 (distinguishing State v. Hoffman, 399 N.J. Super 207, 217–18 

(App. Div. 2008), a Pretrial Intervention (PTI) case where the prosecutor had 

"covered the grounds for rejection amply at the hearing before the trial court," 

even though shortcomings existed in the letter rejecting PTI. In Hoffman, we 

reasoned that the stakes in a juvenile waiver proceeding are far greater than those 

at a PTI hearing, and therefore found it inappropriate to remand.). 

As we have already noted, the critical process of weighing competing 

statutory factors "may not be amenable to precise articulation." Z.S., 464 N.J. 

Super. at 535. The weighing process, moreover, is qualitative. It is "not a 

mechanical quantitative process." Id. at 542. As we emphasized in Z.S., "[t]o 

be sure . . . the waiver analysis is not a counting exercise. Some factors can 

have more importance or probative strength than others." Ibid. 
25 A-3763-20

Z.S. makes clear that "[n]o one factor . . . may be treated as dispositive—

such as the severity of the charged offense." Id. at 535. Subject to that caveat, 

we reiterate and stress that under the deferential standard of judicial review we 

apply, the decision as to how much weight to accord each statutory factor 

remains vested in the discretion of the prosecutor. So too, the final balancing of 

factors that militate for and against waiver is a prosecutorial function subject 

only to limited judicial review under the deferential abuse-of-discretion 

standard. Accordingly, even if a prosecutor's assessment of a particular factor 

is erroneous, the net result of the cumulative weighing process may not 

automatically constitute an abuse of discretion with respect to the final decision 

whether to waive jurisdiction to adult court. A prosecutorial error with respect 

to gauging the value of a particular statutory factor, in other words, may be 

harmless in the sense that correcting the error would not change the ultimate 

result. We nonetheless caution that any errors must be reviewed carefully for 

their effect, and when in doubt, a reviewing court may require the prosecutor to 

reevaluate his or her final qualitative evaluation, taking into account the 

corrected factor(s). 
26 A-3763-20

III.

We next apply the foregoing foundational principles to the matter before 

us. We first address the Family Part judge's conclusion that the prosecutor 

improperly considered A.W.'s juvenile record, factor (g), by accounting for 

arrests that did not result in an adjudication of delinquency. The prosecutor 

made clear at the waiver hearing that it had withdrawn any consideration of 

arrests that resulted in dismissals. We decline to address the State's argument 

on appeal that factor (g) permits consideration of arrests that did not result in 

adjudication, since the prosecutor essentially abandoned that contention before 

the motion court by arguing that it was not relying on such arrests. We leave 

that statutory construction issue to be decided in a future case where the State 

actually relies on dismissed juvenile complaints to support its application of 

factor (g) as militating for waiver. See Indep. Realty Co. v. Twp. of N. Bergen, 

376 N.J. Super. 295, 301 (App. Div. 2005) ("Although there is no express 

language in New Jersey's Constitution which confines the exercise of our 

judicial power to actual cases and controversies, . . . nevertheless it is well 

settled that we will not render advisory opinions or function in the abstract.")

As we have noted, nothing in the statutory framework categorically 

precludes the prosecutor at a waiver hearing from amending or correcting 
27 A-3763-20

information or argument contained in the written statement of reasons, so long 

as the defense has a fair opportunity to respond to the new information or 

argument. In this instance, we see no prejudice to A.W. by the State's 

announcement at the hearing that it would focus solely on his prior adjudications 

of delinquency and probation violations8in applying factor (g). Accordingly, 

the Family Part judge should not have focused on the State's initial reliance on 

arrests that did not result in an adjudication of delinquency. Rather, the judge 

should have focused on whether the State abused its discretion in relying on 

A.W.'s prior adjudications of delinquency and probation violations in 

determining that factor (g) militates in favor of waiver. Clearly, A.W.'s juvenile 

record militates in favor of waiver, especially because he is presently charged 

with carjacking—an aggravated form of robbery—after having previously been 

adjudicated delinquent for robbery. 

We nonetheless recognize that the judge was properly concerned as to 

whether the State's revised assessment had been reviewed and approved by the 

County Prosecutor or his designee. It is conceivable that prior to withdrawing 

its consideration of dismissed juvenile complaints at the waiver hearing, the 

8

 The record shows that A.W. has been adjudicated delinquent for seconddegree robbery and third-degree theft. He also was found to have violated 

juvenile probation on three occasions. 
28 A-3763-20

State had initially given added weight to this factor based on those arrests. We 

note that review and approval by the County Prosecutor or his designee is 

required not just for the assessment of individual factors, but also as to the 

overall balancing of the factors militating for and against waiver. We reiterate 

the admonition in Z.S. that "[n]o one factor . . . may be treated as dispositive

. . . ." 464 N.J. Super. at 535. Rather, it is the totality of relevant factors that 

determines ultimately whether waiver is appropriate. It thus follows that a 

significant change to the assessment made in the initial statement of reasons, as

occurred at the hearing in this case with respect to A.W.'s juvenile history, must 

be reviewed and approved by the County Prosecutor or his designee. 

Accordingly, as we later explain, on remand, we expect the prosecutor to 

issue a revised statement of reasons in advance of the new waiver hearing that 

focuses on A.W.'s delinquency adjudications and probation violations and 

indicates whether the prosecutor accords low, medium, or high value to this 

factor in favor of waiver. 

We turn next to the mistake made by the prosecutor with respect to factor 

(h) regarding whether A.W. had previously served a custodial disposition in a 

State juvenile facility operated by the Juvenile Justice Commission (J.J.C.). In 

reviewing A.W.'s juvenile court record, the prosecutor who prepared the initial 
29 A-3763-20

statement of reasons incorrectly attributed a period of pretrial detention in the 

county detention center as a custodial disposition. The Family Part judge found 

this mistake to be "of significant moment." However, this error was identified 

and corrected at the waiver hearing. As we have noted, the prosecutor's waiver 

decision is not bound to the four corners of the written statement of reasons. 

The correction of the prosecutor's initial unintended error, of course, changes 

the calculus of the totality of relevant factors, but does not, in our view, 

constitute an abuse of discretion sufficient to justify denial of the State's waiver 

application. 

We next address the Family Part judge's conclusion that the State did not 

adequately address factors (e) and (j) with respect to the IEPs and TASC 

evaluation. Those documents had been provided by the defense after the initial 

statement of reasons was submitted. The judge criticized the State's cursory 

written supplementation. 

Importantly, the prosecutor acknowledged that these evaluations militated 

against waiver, but concluded that waiver was still appropriate considering all 

other relevant factors. We reiterate that the weighing process is not a 

mechanical one and that the prosecutor's assessment of the weight afforded to 

each factor is entitled to deference. 
30 A-3763-20

Furthermore, the prosecutor at the waiver hearing elaborated on the 

significance of those documents. With respect to factor (e), the prosecutor at 

the hearing stated:

As the evidence has been presented through the IEP, he 

was designated as having I think the phrasing is 

emotionally disturbed, but he ultimately as a result of 

that was given a special education plan within the 

Newark school system. I did read [the IEPs] carefully, 

and I do recognize some of the challenges that the 

juvenile faced. I would understand that this, with the 

supplemental submissions of defense counsel would 

weigh against the mitigation—or would be mitigating 

would weigh against the waiver. But I also do think 

that the IEPs are interesting in the sense that, again, it 

does show that he actually I think is quite aware of what 

is happening, what's going on. He does seem quite 

mature in terms of understanding the challenges that he 

faces and seems to sort of recognize his own problems 

with them. It's not as though he is completely unaware 

of what's happening. He knows what he has to do, it's 

just that he is having difficulty doing it.

With respect to factor (j), the State recognized the significance of the 

TASC evaluation, acknowledging A.W.'s history of marijuana use that began at 

age thirteen and opiate use that began at age sixteen. The prosecutor also 

acknowledged that A.W. had psychological problems in the form of "serious 

depression and serious anxiety." 
31 A-3763-20

Although the judge criticized the State's analysis of these factors as 

"conclusory," the fact remains that the prosecutor deemed these factors to 

militate against waiver. In Z.S., we explained,

[n]or should the statement of reasons ignore or gloss 

over highly relevant information. If, for example, the 

defense attorney has presented evidence under factor (j) 

that the juvenile has mental health concerns, substance 

abuse problems, or emotional instability, it will not 

suffice for the statement of reasons to say, without 

further explanation, that such evidence was 

"considered" but doesn't matter. The written statement 

must reasonably address the content of the defense 

material and explain why it is flawed, inadequately 

supported, internally contradictory, or otherwise 

unpersuasive.

[464 N.J. Super. at 534.]

In this instance, the prosecutor is not contesting or discounting the TASC 

evaluation or IEPs. To the contrary, the prosecutor is accepting them as 

militating against waiver. Accordingly, less detail is required to explain the 

prosecutor's analysis of these documents than would be required if the 

prosecutor had instead contested or discounted them.

The gravamen of the judge's finding of a prosecutorial abuse of discretion 

is that the State did not accord sufficient weight to factors (e) and (j) in relation 

to the factors that militate in favor of waiver, such as the severity of charged 

crimes; the danger posed to public safety, including the danger to a three-year-
32 A-3763-20

old child who might unwittingly have been kidnapped and seriously injured in 

the ensuing crash; and A.W.'s juvenile history, which includes a prior robbery 

adjudication. That leads us to conclude that the judge did not afford appropriate 

deference to the prosecutor's exercise of discretion in conducting the qualitative 

weighing process, but instead substituted her own judgment for that of the 

prosecutor.

We nonetheless decline to reverse the judge's ruling and order that A.W. 

be waived over to adult court. We recognize that A.W. is charged with a serious 

violent crime while armed with a handgun, and that he has previously been 

adjudicated delinquent for robbery. The State refers to the "obvious imbalance 

in favor of waiver." We are not satisfied, however, that all of the procedural 

safeguards prescribed in the waiver statute have been followed. We generally 

agree with the Family Part judge that the statement of reasons was flawed. The 

State's position on the reasons for waiver was, metaphorically, a moving target. 

As a result, it remains uncertain whether the final calculus of factors militating 

for and against waiver had been properly reviewed and approved by the County 

Prosecutor or his designee. That approval is an important safeguard within the 

waiver process to ensure an appropriate and uniform exercise of prosecutorial 

discretion. Precisely because the standard of judicial review is limited and 
33 A-3763-20

deferential, it is important that the exercise of prosecutorial discretion is 

carefully circumscribed with the chain of command of the prosecutor's office. 

Given that the stakes are "so momentous," Z.S., 464 N.J. Super. at 513, it 

is essential to make certain that all procedural and substantive safeguards are 

adhered to. It is necessary, in other words, to dot all the "i's" and cross all the 

"t's" before A.W. is made to face adult prosecution for a first-degree NERA 

offense. The interests of both the juvenile and the public require strict 

compliance with the waiver statute. We therefore remand to the Family Part for

a new waiver hearing. 

We instruct that the prosecutor shall prepare a new, comprehensive, and 

up-to-date written statement of reasons. As to each statutory factor, the 

prosecutor shall not only indicate whether the fact-sensitive circumstances 

relevant to that factor militate for or against waiver, or are neutral, but also 

whether the prosecutor accords low, medium, or high value to that factor. 

Furthermore, the narrative explanations in the statement of reasons as to each 

factor shall be sufficiently detailed. Id. at 534 ("The statement of reasons cannot 

be incomplete or superficial. Conclusory assertions that are devoid of analysis 

are inadequate."). The statement of reasons, moreover, must be approved in 

writing by the County Prosecutor or his designee.
34 A-3763-20

The new statement of reasons shall be served upon the Family Part court 9

and defense counsel within thirty days of this opinion. The court shall thereafter 

schedule a new waiver hearing as soon as practicable. Because we are 

essentially wiping the slate clean to address mistakes made by both the 

prosecutor and the Family Part judge, and because the waiver decision is vested 

in the discretion of the prosecutor subject to limited judicial review, we offer no 

opinion on whether A.W. should be tried as a juvenile or as an adult. 

Reversed and remanded for proceedings consistent with this opinion. We 

do not retain jurisdiction.

9

 It is our understanding that the judge who denied the State's waiver application 

is no longer assigned to the Family Part. We therefore need not address the 

State's request that any remand be assigned to a new judge.