RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0548-20

STATE OF NEW JERSEY

IN THE INTEREST OF J.D.,

a Juvenile.

__________________________

Argued February 23, 2021 – Decided May 5, 2021

Before Judges Fisher, Gilson, and Gummer.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Chancery Division, Family Part, 

Monmouth County, Docket Nos. FJ-13-0137-20, FJ13-0491-20 and FJ-13-0492-20.

Thomas C. Huth argued the cause for appellant (The 

Law Offices of Jonathan F. Marshall and Jeff Thakker, 

attorneys; Jeff Thakker, of counsel; Thomas C. Huth, 

on the briefs).

Nancy A. Hulett, Assistant Prosecutor, argued the cause 

for respondent (Yolanda Ciccone, Middlesex County 

Prosecutor, attorney; Nancy A. Hulett, of counsel and 

on the brief).

Mary Clare Patterson, admitted pursuant to Rule 1:21-

3(b), argued the cause for amicus curiae American Civil 

Liberties Union of New Jersey (Rutgers Criminal and 

Youth Justice Clinic, Rutgers Law, and American Civil 

Liberties Union of New Jersey Foundation, attorneys; 

Laura A. Cohen, Distinguished Clinical Professor of 

Law, of counsel and on the brief; Alexander Shalom 

and Jeanne LoCicero, on the brief).

APPROVED FOR PUBLICATION

May 5, 2020

APPELLATE DIVISION
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A-0548-20

Carol M. Henderson, Assistant Attorney General, 

argued the cause for amicus curiae Attorney General of 

New Jersey (Gurbir S. Grewal, Attorney General, 

attorney; Carol M. Henderson, of counsel and on the 

brief).

The opinion of the court was delivered by

GILSON, J.A.D.

In 2019, three women alleged that J.D. sexually assaulted them years 

earlier when they and J.D. were minors. The State filed juvenile delinquency

complaints against J.D. and moved to waive certain charges to the Criminal Part 

to try J.D. as an adult on the alleged assaults that occurred when he was between 

the ages of fifteen and seventeen.

This appeal presents a question of first impression: whether the waiver 

procedures and hearing should be governed by the current statute, which became 

effective in March 2016, or by a hybrid of the statute at the time of the alleged 

offenses and the current statute. The trial court held that the current statute 

would govern.

On leave granted, J.D. argues that because all the waiver statutes are 

ameliorative, he should be allowed to select those parts of the repealed and 

current statutes that give him the greatest benefit. We hold that the current 

statute governs the waiver proceedings. Accordingly, we affirm.
3

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I.

J.D. was born in October 1990. He grew up in a household with his 

parents and several siblings, including two adopted sisters: K.D. and M.N. The 

adopted sisters are both approximately a year younger than J.D. M.N. was born 

in August 1991, and K.D. was born in February 1992. 

In 2019, K.D. and M.N. alleged that J.D. had sexually assaulted them 

numerous times over the course of several years when they were all minors. 

They both gave statements to law enforcement personnel. In her statements, 

K.D. detailed that J.D. sexually assaulted her beginning when she was 

approximately ten or eleven years old and continuing until she was seventeen 

years old. According to K.D., the assaults included forced oral, vaginal, and 

anal penetrations.

1

 

M.N. reported that J.D. sexually assaulted her several times when she was 

between the ages of ten and sixteen. The assaults included forced oral and 

vaginal penetrations.

Law enforcement personnel also interviewed D.M., who had dated J.D. 

when she was between the ages of fourteen and sixteen. D.M. reported that she 

1

 K.D. also alleged that another brother and a cousin had sexually assaulted her. 

This appeal involves only the allegations against J.D.; the record does not inform 

us of the status of the allegations against the other brother and cousin.
4

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had had sexual relations with J.D. while they were dating. She asserted that J.D. 

was physically abusive to her when she did not want to have sex with him. She 

described two occasions when J.D. started to have sexual intercourse with her, 

she told him to stop, but he did not. Instead, J.D. got angry, she became

frightened, and although she did not want to continue, J.D. continued having 

sexual intercourse until he was finished. 

In 2019 and 2020, J.D. was charged with delinquency in seven juvenile 

complaints. Some of the complaints issued in 2020 superseded complaints 

issued in 2019. Three of the complaints charged J.D. with sexual assaults 

involving the three victims that occurred between October 2005 and October 

2008, when J.D. was between the ages of fifteen and seventeen. Those juvenile 

complaints alleged that if the offenses had been committed as an adult, they 

would constitute second-degree sexual assaults, N.J.S.A. 2C:14-2(c)(1). The 

four other juvenile complaints charged J.D. with sexual assaults committed prior 

to his fifteenth birthday. 

On January 30, 2020, the State moved to waive from the Family Part and 

refer to the Criminal Part the three complaints charging J.D. with the sexual 

assaults that allegedly occurred when J.D. was between the ages of fifteen and 

seventeen. In preparation for the waiver hearing, an issue arose concerning 
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whether the hearing would be governed by the statute in place when the assaults

allegedly occurred, N.J.S.A. 2A:4A-26, or the statute that became effective on 

March 1, 2016, N.J.S.A. 2A:4A-26.1, after the alleged assaults occurred.

After receiving briefs and hearing oral argument, the trial court issued an 

order on September 15, 2020, ruling that the waiver hearing will be governed by 

the current statute, N.J.S.A. 2A:4A-26.1. In making that ruling, the court relied 

on the recent Supreme Court decision, State v. J.V., 242 N.J. 432 (2020). In 

J.V., the Court held that a juvenile "who was waived to adult court, pled guilty, 

and was sentenced" before N.J.S.A. 2A:4A-26.1 "became effective cannot claim 

the benefit[s] of the new juvenile waiver statute." Id. at 448. The trial court 

reasoned that the J.V. Court's discussion of the prospective application of 

N.J.S.A. 2A:4A-26.1 meant that the statute was to govern all waiver proceedings 

after March 1, 2016. 

Before the waiver hearing took place, we granted J.D. leave to appeal the 

September 15, 2020 order. We also invited the Attorney General and the 

American Civil Liberties Union of New Jersey (ACLU) to participate as amici. 

Both filed briefs and appeared for oral argument. The ACLU's brief was 

submitted by the Rutgers Criminal and Youth Justice Clinic.
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II.

On appeal, J.D. argues that he should be allowed to proceed under

N.J.S.A. 2A:4A-26(e), which allowed a juvenile to oppose waiver to adult court 

by showing amenability to rehabilitation before reaching nineteen years of age. 

J.D. articulates that argument as follows:

WHETHER ONE CONFINES THE INQUIRY TO 

THE STATUTORY LANGUAGE, OR WHETHER 

ONE CONSIDERS THE PARENS PATRIAE POLICY 

UNDERLYING JUVENILE JUSTICE, AN ADULT 

WHO CAN PROVE REHABILITATION UNDER 

THE STANDARDS WHICH PREEXISTED N.J.S.A. 

2A:4A-26.1 (WHEN THE ALLEGED DELINQUENT 

ACTS OCCURRED) SHOULD HAVE THE 

OPPORTUNITY TO DO SO; RETROACTIVE 

STATUTORY WAIVER IS ERRONEOUS AND 

UNJUST IN THIS INSTANCE.

The ACLU supports J.D.'s position and argues that because the current waiver 

statute is ameliorative, the family court should allow J.D. to try to show he was 

amenable to rehabilitation as allowed under N.J.S.A. 2A:4A-26(e), which was 

in effect at the time the alleged assaults were committed.

The prosecutor and Attorney General both argue the trial court correctly 

decided that the current waiver statute governs. They contend that that ruling is 

supported by the Supreme Court's decision in J.V., other case law, and the 

Savings Clause, N.J.S.A. 1:1-15.
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In reviewing a juvenile waiver decision, appellate courts normally assess 

"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 judgment' in all of the circumstances." State v. R.G.D., 108 N.J. 

1, 15 (1987) (citing State v. Humphreys, 89 N.J. 4, 13 (1982)). The issue before 

us, however, is a question of law: which statute governs the waiver proceedings. 

Accordingly, we conduct a de novo review. Ardan v. Bd. of Rev., 231 N.J. 589, 

608 (2018); Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016).

We hold that the language of the current waiver statute, coupled with 

consideration of the Savings Clause, establishes that the current statute should 

govern J.D.'s waiver hearing. To give context to our holding, we begin with a 

brief overview of the prior and present waiver statutes. 

A.

"Over the years, the Legislature has revised the waiver statute on a number 

of occasions." State in the Interest of N.H., 226 N.J. 242, 249 (2016) (citations 

omitted). The two revisions most relevant to J.D.'s circumstances are the 2003 

and 2016 statutory revisions. See L. 2003, c. 39, § 8; and L. 2015, c. 89, § 1. 

The waiver statute was also amended in 2008, but in ways irrelevant to the issues 

on this appeal.
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Under the versions of the waiver statute that existed between 2003 and 

2015, a prosecutor had discretion to seek waiver of charges constituting serious 

crimes, including sexual assault committed by a juvenile fourteen years of age 

or older. N.J.S.A. 2A:4A-26(a) (2003). The Attorney General issued guidelines 

identifying seven factors prosecutors should consider in exercising that 

discretion. John J. Farmer, Jr. & Paul H. Zoubek, Off. of the Att'y Gen., Juvenile 

Waiver Guidelines 5-6 (2000), https://www.nj.gov/oag/dcj/agguide/pdfs/AGJuvenile-Waiver-Guidelines.pdf (the AG Guidelines); see also State in the 

Interest of Z.S., 464 N.J. Super. 507, 515-16 (App. Div. 2020) (discussing the 

evolution of the waiver statute). 

The AG Guidelines "directed prosecutors filing a waiver motion to include 

a statement of reasons addressing the prosecution's consideration and the

applicability of the factors." J.V., 242 N.J. at 437 (citing the AG Guidelines, at 

7). Our Supreme Court required prosecutors to submit that written statement of 

reasons with the waiver motion, so that judges could "determine that the reasons

for seeking waiver are not arbitrary." State v. J.M., 182 N.J. 402, 419 (2005). 

The prior waiver statute also included a provision allowing a juvenile who 

was fourteen or fifteen years old and who had been charged with serious crimes

to try to demonstrate that he or she could be rehabilitated before turning nineteen 
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years old. N.J.S.A. 2A:4A-26(e) (2003). That rehabilitation showing was not 

available to juveniles who were age sixteen or older. Ibid. Specifically, 

N.J.S.A. 2A:4A-26(e) stated:

If 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 [nineteen] substantially outweighs

the reasons for waiver, waiver shall not be granted. 

This subsection shall not apply with respect to a 

juvenile [sixteen] years of age or older who is charged 

with committing any of the [enumerated] acts[, which 

if committed as an adult would constitute serious 

crimes].

In 2015, the Legislature enacted major revisions to the juvenile justice 

system, including a revamping of the waiver statute. L. 2015, c. 89, § 1. Section 

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

The juvenile waiver statute that took effect on March 1, 2016 raised the

age of eligibility for waiver from fourteen to fifteen years and mandated eleven 

factors for prosecutors to consider when seeking to waive a juvenile to adult 

court. N.H., 226 N.J. at 251-52. Those statutory factors "encompass and expand 

upon the factors listed in the [AG] Guidelines." Id. at 252. The factors include

the juvenile's age and maturity, eligibility for special education, mental health 

status, and history of substance abuse or emotional instability. N.J.S.A. 2A:4A26.1(c)(3)(d), (e), and (j).
10 A-0548-20

The current waiver statute does not include the rehabilitation showing 

allowed by N.J.S.A. 2A:4A-26(e). Instead, the current statute requires the 

prosecutor to "offer proof of [the] juvenile's age and demonstrate probable cause 

that the juvenile committed an act listed in the statute. The State must also 

present evidence that it considered the relevant statutory factors, and its decision 

is reviewed for abuse of discretion." N.H., 226 N.J. at 257 (citing N.J.S.A. 

2A:4A-26.1(b) to (c)).

B.

The issue on this appeal is not whether the current version of the waiver 

statute applies retroactively to J.D. J.D. seeks to use all provisions of the current 

statute and the repealed provision allowing a juvenile to try to demonstrate 

amenability to rehabilitation under N.J.S.A. 2A:4A-26(e). He argues that 

because the statutes were and are ameliorative, he should be able to take those 

portions that work best for him.

In determining whether a repealed provision of the waiver statute is 

available to J.D., our goal is to ascertain the intent of the Legislature. J.V., 242 

N.J. at 442 (citing State v. S.B., 230 N.J. 62, 67 (2017)) (reiterating that "[t]he 

overriding goal of all statutory interpretation 'is to determine as best we can the 

intent of the Legislature, and to give effect to that intent.'"). That process begins 
11 A-0548-20

with the plain language of the statute. Murray v. Plainfield Rescue Squad, 210 

N.J. 581, 592 (2012).

The current waiver statute is plain in its elimination of Section 26(e) and 

in not adding a similar, separate opportunity for the juvenile to prove 

amenability to rehabilitation. Instead, the current statute provides a unitary 

process for all waiver motions. N.J.S.A. 2A:4A-26.1. In that regard, Section 

26.1 mandates a probable cause hearing at which the court must also review the 

prosecutor's statement of reasons for seeking waiver. Ibid.; see also N.H., 226 

N.J. at 254-55.

Significantly, the Legislature codified the factors the prosecutor must 

consider and address in the statement of reasons submitted to the court. N.J.S.A. 

2A:4A-26.1(c)(3). The Legislature also added new factors, including some 

meant to identify and protect vulnerable and disadvantaged juveniles. See

N.J.S.A. 2A:4A-26.1(c)(3)(a), (c), (f), (g), and (h). We have already observed 

that those "new factors arguably allow some consideration of [a] juvenile's 

prospects for rehabilitation, at least implicitly, by requiring the prosecutor to 

assess a juvenile's 'age and maturity,' 'culpability,' 'criminal sophistication,' and 

prior history with the juvenile justice system." Z.S., 464 N.J. Super. at 517.
12 A-0548-20

Examined in full context, the repeal of Section 26(e) and the expansion of 

the factors to be considered by the prosecutor reflect a conscious choice by the 

Legislature to no longer require a separate consideration of the possibility of 

rehabilitation. That the Legislature was consciously eliminating a separate 

consideration of the possibility of rehabilitation is supported by the legislative 

history. In a statement concerning L. 2015, c. 89, § 1, the Assembly 

Appropriations Committee expressly recognized that the Legislature was 

eliminating "amenability hearing[s]" and "replac[ing them] with a streamlined 

process for determining whether a juvenile case should be transferred to an adult 

criminal court." Assemb. Appropriations Comm. Statement to S. 2003 2 (June 

15, 2015).

In summary, considering the full context of the plain language in light of 

the repealed provisions reveals the Legislature's conscious choice to have the 

current version apply to all waiver hearings taking place after March 1, 2016, 

the effective date of the new statute. L. 2015, c. 89, § 1.

Accordingly, we hold that the rule of lenity does not allow J.D. to use both 

the repealed waiver statute and the current statute. The rule of lenity provides 

that "if a statutory ambiguity cannot be resolved by analysis of the relevant text 

and the use of extrinsic aids, the rule requires that the ambiguity be resolved in 
13 A-0548-20

favor of the defendant." State v. Regis, 208 N.J. 439, 451 (2011) (citing State 

v. Gelman, 195 N.J. 475, 482 (2008)). "[T]he rule of lenity is applied only if a 

statute is ambiguous, and that ambiguity is not resolved by a review of 'all 

sources of legislative intent.'" Id. at 452 (quoting State v. D.A., 191 N.J. 158,

165 (2007)). Section 26.1 is not ambiguous in eliminating the separate 

amenability hearing and replacing it with a unitary hearing for determining 

whether a juvenile case should be transferred to an adult criminal court. 

The Savings Clause also supports a prospective application of the current 

waiver statute. That Clause generally precludes retroactive application of 

legislation that amends or repeals a substantive statute, or part of a statute, unless 

the amendment or repeal itself expressly states that it is to have a different 

application. The Savings Clause also states that revised statutes are generally 

to be applied as they "shall relate to mere matters of practice or mode of 

procedure." N.J.S.A. 1:1-15.

The language of the Savings Clause explains that procedural changes are 

generally not applied retroactively to concluded proceedings but do apply to 

proceedings taking place after the effective date of the new statute:

[W]hen the Revised Statutes, or other act by which such 

repeal or alteration is effectuated, shall relate to mere 

matters of practice or mode of procedure, the 

proceedings had thereafter on the indictment or in the 
14 A-0548-20

prosecution for such offenses, liabilities, penalties or 

forfeitures shall be in such respects, as far as is

practicable, in accordance with the provisions of the 

Revised Statutes or such subsequent act.

[Ibid.]

Although a waiver hearing is not always merely a matter of "practice or mode 

of procedure," the procedures to be followed should be uniform and not based 

on a hybrid process of selecting some procedures from a repealed statute.

C.

The question presented to us on this appeal is not directly answered by 

existing case law. As already noted, the issue is not whether the current statute 

applies retroactively. 

The holding in J.V. does not directly control this case. See 242 N.J. at 

448. There, J.V. had been waived to adult court, pled guilty, and was sentenced 

before Section 26.1 became effective. Ibid. Our Supreme Court ruled that the 

new provisions under the revised statute should not be applied retroactively to 

J.V. Ibid. 

The holding in State in the Interest of J.F. also does not directly govern 

this case. 446 N.J. Super. 39, 55-57 (App. Div. 2016). In J.F. we held that 

Section 26.1's new age-eligibility provisions are to be retroactively applied. 

Ibid. There, the State had filed an interlocutory appeal challenging the Family 
15 A-0548-20

judge's refusal to waive a juvenile accused of committing murder at age fourteen

to adult court. Id. at 41-42. At the time of the State's waiver motion, N.J.S.A. 

2A:4A-26 governed waiver proceedings and permitted the State to seek the 

involuntary waiver of a fourteen-year-old juvenile. Id. at 43. Following a 

hearing, the Family judge denied the State's application, finding that the juvenile 

had met his burden under the previous waiver statute by proving the probability 

of his rehabilitation and that the probability of rehabilitation outweighed the 

State's reasons for waiver. Id. at 42. By the time the Family judge made his 

decision, the Legislature had enacted Section 26.1, but that section was not yet 

in effect. Id. at 52. We ruled that the new statute was ameliorative and that the 

minimum age eligibility requirement should be applied retroactively. Id. at 56.

The discussions in J.V. and J.F. addressing when a criminal statute should 

be applied prospectively and when it should be applied retroactively are helpful. 

See J.V., 242 N.J. at 442-44; see also J.F., 446 N.J. Super. at 53-55. 

Nevertheless, those discussions and the holdings in those cases do not directly 

apply to or control this case.

Citing to State v. Fowlkes, 169 N.J. 387 (2001), and In re Smigelski, 30 

N.J. 513 (1959), J.D. and the ACLU argue that J.D. should get the benefit of 

both statutes, particularly the provisions according him the most relief. In 
16 A-0548-20

Fowlkes, the Court considered whether the Brimage2 guidelines, which 

established a uniform statewide sentencing regime for certain drug offenses, 

would apply to a defendant who committed an offense before the new guidelines 

took effect, but who was sentenced after the guidelines became effective. 169 

N.J. at 396. The Court recognized that the new guidelines were designed to 

"ameliorate inequitable, arbitrary, and unfair treatment" but would subject 

Fowlkes to a more severe penalty. Id. at 397. Consequently, the Court reasoned 

that "[a]s a matter of fairness and equity, defendants who committed offenses 

pre-Brimage and who would fare worse under post-Brimage guidelines should 

be sentenced in accordance with the guidelines in effect prior to Brimage." Ibid.

The proceedings in Smigelski were complex and involved the changing 

law concerning when a juvenile could be prosecuted as an adult. 30 N.J. at 517-

20. There, the Court allowed the juvenile to elect whether an ameliorative law 

concerning commitments of juveniles would be retroactively applied to his 

commitment. Id. at 527. At the time the juvenile committed his offense of

murder and when he was committed, the law allowed an indefinite commitment. 

Id. at 517, 519. Thereafter, however, the law changed, and a juvenile could be 

committed to a term of confinement only for a defined period. Id. at 526-27. 

2

 State v. Brimage, 153 N.J. 1, 23 (1998). 
17 A-0548-20

On review of the denial of a writ of habeas corpus, the Court held that the 

juvenile could decide whether the repealed or new statute would apply to his 

commitment, reasoning that the "choice should rest . . . with the affected party, 

and applicability should not be compellable by the State." Id. at 527.

Neither Fowlkes nor Smigelski answered the question presented to us. 

Their facts and procedural histories are distinguishable. Moreover, in neither 

case did the Court suggest — as J.D. and the ACLU argue here — that a juvenile 

can pick and choose provisions from both repealed and revised statutes. 

Accordingly, those cases do not support J.D.'s argument that he should be 

allowed to use both the repealed and current waiver statutes. 

D.

Finally, we point out some practical effects of our ruling. J.D. is not losing 

a significant procedure. He incorrectly argues that, under the prior statute, he 

would be able to show that he was amenable to rehabilitation even for the 

charges that occurred when he was sixteen and seventeen years old. Section 

26(e) was clear in stating that juveniles who were sixteen or seventeen years old 

could not argue that they were amenable to rehabilitation for serious crimes, 

including sexual assault. N.J.S.A. 2A:4A-26(e).
18 A-0548-20

In addition, it is clear from J.D.'s papers that he intended to argue that he 

had already demonstrated amenability because he did not have any criminal 

charges until these matters arose. Because he would only be able to make that 

argument concerning the charges when he was fifteen, the charges that arose 

when he was sixteen and seventeen would make an amenability showing more 

difficult. It would certainly eliminate the argument J.D. apparently wanted to 

make; that his lack of a criminal record demonstrates his amenability to 

rehabilitation.

Finally, J.D. has not articulated any good public policy reason explaining

why he should obtain an advantage that is no longer available to juveniles. In 

other words, J.D. wants all the advantages under the current waiver statute, as 

well as the ability to show amenability to rehabilitation. If a fifteen-year-old 

was currently charged with the same offenses as J.D., that juvenile would not 

have the opportunity to prove amenability to rehabilitation in a separate hearing. 

The delay in the disclosures of the allegations against J.D. should not afford him 

a procedure that is no longer available to juveniles.

Affirmed.