SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0101-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.V.,

Defendant-Appellant.

_______________________

Submitted December 5, 2018 – Decided

Before Judges Koblitz, Ostrer and Mayer. 

On appeal from Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 13-12-1177.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michele E. Friedman, Assistant Deputy 

Public Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Carol M. Henderson, Assistant Attorney 

General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

February 5, 2019
2

A-0101-16T3

Defendant appeals from his waiver to adult court, arguing the new waiver 

statute should have been applied in light of his mental health disability. We

agree, and reverse and remand for a new waiver hearing. On May 12, 2013, 

defendant was charged in a juvenile delinquency complaint with actions that, if 

committed by an adult, would constitute first-degree attempted murder, N.J.S.A. 

2C:5-1, N.J.S.A. 2C:11-3(a) (count one); first-degree robbery, N.J.S.A. 2C:15-

1(a)(1) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(d) (count three); and third-degree possession of a weapon for unlawful 

purpose, N.J.S.A. 2C:39-4(d) (count four). On June 4, 2013, the prosecutor filed 

a motion to waive Family Court jurisdiction over the matter and prosecute 

defendant as an adult pursuant to N.J.S.A. 2A:4A-26 and Rule 5:2-2.

1

 

After a hearing, on October 23, 2013, the court granted the prosecutor's 

waiver application. Two months later, defendant was indicted on the same four 

counts as the delinquency complaint, and in October 2014, after a three-day 

competency hearing, was deemed competent to stand trial. Defendant pled 

guilty to counts one and two of the indictment and, on September 18, 2015, was 

sentenced, consistent with the plea agreement, to concurrent terms of eighteen

 

1

 On August 10, 2015, N.J.S.A. 2A:4A-26 was repealed and replaced by 

N.J.S.A. 2A:4A-26.1, with an effective date of March 1, 2016. See L. 2015, c.

89.
3

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years in prison, subject to an eighty-five percent parole disqualifier pursuant to

the No Early Release Act, N.J.S.A. 2C:43-7.2. 

The following facts are gleaned from defendant's waiver hearing and 

subsequent factual basis at his guilty plea hearing. On the afternoon of May 12, 

2013, when defendant was seventeen years old, he walked from his home to the 

Passaic train station carrying a knife, with the intention of robbing someone of 

either a cell phone or money. Upon arriving at the train station, defendant 

approached the victim and asked to borrow his cell phone.

The victim was startled at first, but saw that defendant was a "kid" and 

handed his phone to defendant. Defendant then pretended to make a call, 

pressing the buttons and holding the phone to his ear while pacing back and 

forth. After a few moments, defendant walked back to the victim and said he 

was keeping the phone. They got into a physical fight, with each claiming the 

other threw the first punch. Defendant stabbed the victim nine times.

After defendant's arrest, he was brought to the police station, where the 

officers learned that defendant was a juvenile. Defendant's father came to the 

police station, and defendant was given his Miranda2 warnings and agreed to 

 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
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speak with the officers. The interview was conducted in Spanish with the aid of 

a Spanish-speaking police officer, and was video-taped. Defendant confessed. 

Defendant stated he did not know his birthday, and gave confused or nonsensical 

responses to some of the Miranda questions.

The prosecutor's statement of reasons submitted in support of the juvenile 

waiver motion addressed each of the fifteen factors in the Attorney General 

Juvenile Waiver Guidelines (Guidelines),

3 written in 2000 pursuant to the thenapplicable statute, N.J.S.A. 2A:4A-26(f), directing 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 this section 

throughout the State." None of these factors require the prosecutor to consider a 

juvenile's mental or learning disabilities. The prosecutor determined nine 

factors supported the State's waiver motion: (1) "[n]ature and circumstances of 

crime"; (2) "[r]ole of the juvenile" – noting defendant "carried out a 

premeditated, unprovoked, vicious attack on an innocent stranger"; (3) "[g]rave 

and serious harm to victim or community" – noting "[t]he victim received over 

sixty stitches," had part of his ear severed and re-attached, leading to 

 

3

 Off. of the Att'y Gen., Juvenile Waiver Guidelines, (Mar. 14, 2000),

http://www.njdcj.org/agguide/pdfs/AG-Juvenile-Waiver-Guidelines.pdf. 
5

A-0101-16T3

disfigurement, and suffered injury to his vocal cords, affecting his employment 

as an "on-air radio producer"; (4) "[p]otential for grave and serious harm to 

victim or community" – noting the attack was committed against a stranger, in 

broad daylight, in a public space; (5) "[u]se or possession of a weapon" –

referring to the kitchen knife; (6) "[n]eed to deter juvenile and others from 

committing similar crimes" – citing the "brutal nature of [the] attack" and the 

need to send a message to others; (7) "[n]eed for longer term of incarceration 

permissible for adults"; (8) "[l]ikelihood of conviction or need for [g]rand [j]ury 

investigation" – citing three witness identifications, the evidence collected from 

defendant's person, and defendant's confession; and (9) "victim's request for 

waiver." 

The prosecutor determined six factors did not apply to defendant's case: 

(1) death of the victim; (2) "[s]eriousness of prior adjudications of delinquency"; 

(3) "[p]rior waiver and conviction"; (4) "[g]ang involvement"; (5) "history of 

physical violence indicating substantial danger to others"; and (6) "[i]n cases 

with codefendants, waiver would avoid injustice." The prosecutor argued that 

the Guidelines factors supported waiver, and the Family Part judge agreed. 

Defense counsel then moved for bail, stating that defendant "ha[s] an IQ of 
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A-0101-16T3

[fifty-eight]," has been "in a special school most his life," and attempted suicide

"at least" six times while being held at the juvenile detention center. 

Later, at the conclusion of a three-day competency hearing, the Criminal 

Part judge stated: "[t]here is no doubt that [defendant] is an impaired individual. 

There is no doubt that he is functioning in the borderline to mild mental 

retardation range." However, she ultimately found defendant, "though,

obviously limited, does have a basic and legally adequate understanding" of the 

proceedings, standards, and consequences, and was therefore competent to stand 

trial.

When sentencing defendant, the judge found aggravating factors one, two, 

three, and nine, and mitigating factor seven. N.J.S.A. 2C:44-1. The judge gave 

reasons for each factor found.

For aggravating factor three, risk of committing another offense, the judge 

noted the vicious, premeditated nature of the attack gave her "great concern, if 

[defendant] was capable of this, that there is a substantial risk of committing 

another offense." The judge also acknowledged defendant's limited mental 

functioning and emotional issues, and found that "[t]o the extent [those 

characteristics] contributed to his behavior, if it did, then that would be part of 

the risk." 
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Turning to the mitigating factors, the judge found factor seven, no prior 

record, applied. In light of the harm to the victim, the judge accorded this factor 

"very little weight." The judge also explained:

The difficulties he has had in the past with learning 

disabilities, borderline functioning, depression, to some 

extent is a mitigating factor and I think sometimes the 

same information can be an aggravating factor because 

it contributes to risk and can be a mitigating factor 

because he didn’t ask for these other issues. So to some 

extent, that is a mitigating factor.

Defendant raises the following issues:

POINT I: THIS COURT SHOULD REVERSE THE 

ORDER WAIVING JURISDICTION TO ADULT 

COURT AND REMAND THE MATTER FOR A NEW 

HEARING BECAUSE J.V. IS ENTITLED TO 

PIPELINE RETROACTIVE APPLICATION OF 

N.J.S.A. 2A:4A-26.1(c)(3). MOREOVER, EVEN 

UNDER THE FORMER STATUTE, N.J.S.A. 2A:4A26, THE PROSECUTOR ABUSED HER 

DISCRETION IN SEEKING WAIVER, THUS 

WARRANTING REVERSAL OF THE WAIVER 

ORDER.

A. IN ACCORDANCE WITH RECENT CASE LAW, 

THE COURT SHOULD FIND THAT N.J.S.A. 2A:4A26.1(c)(3) APPLIES RETROACTIVELY IN THIS 

CASE, AND REMAND THE MATTER FOR A NEW 

WAIVER HEARING.

B. EVEN UNDER N.J.S.A. 2A:4A-26, THE OLDER 

WAIVER STATUTE, THE PROSECUTOR ABUSED 

HER DISCRETION BY OVEREMPHASIZING THE 
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A-0101-16T3

PURPORTED "PREMEDITATED" NATURE OF THE 

VIOLENT ASSAULT.

POINT II: THE MATTER SHOULD BE REMANDED 

FOR RESENTENCING BECAUSE THE SENTENCE 

IS MANIFESTLY EXCESSIVE AND UNDULY 

PUNITIVE.

A. THE SENTENCE IMPOSED AGAINST THIS 

JUVENILE OFFENDER IS UNCONSTITUTIONAL, 

BECAUSE IT DOES NOT TAKE INTO ACCOUNT 

THE FACTORS SET FORTH UNDER MILLER V. 

ALABAMA.

[4] MOREOVER, THE COURT ABUSED 

ITS DISCRETION IN ASCRIBING "VERY LITTLE 

WEIGHT" TO J.V.'S UNBLEMISHED RECORD 

AND STATUS AS A YOUTHFUL OFFENDER.

B. THE COURT IMPROPERLY RELIED ON J.V.'S

EMOTIONAL AND PSYCHOLOGICAL 

LIMITATIONS AS A BASIS FOR 

SIMULTANEOUSLY FINDING AGGRAVATING 

FACTOR THREE, AND WEIGHING THOSE SAME 

DEFICIENCIES IN MITIGATION "TO SOME 

EXTENT." 

C. GIVEN THAT A REMAND IS WARRANTED, 

THE COURT SHOULD ORDER THAT A 

PSYCHOLOGICAL EXAMINATION BE 

CONDUCTED PRIOR TO THE RESENTENCING 

HEARING.

Juvenile waiver decisions are reviewed for abuse of discretion. State in

the Interest of V.A., 212 N.J. 1, 25 (2012). The reviewing court looks to 

 

4

 567 U.S. 460 (2012).
9

A-0101-16T3

"whether the correct legal standard has been applied, whether inappropriate 

factors have been considered, and whether the exercise of discretion 

constitute[s] a clear error of judgment in all of the circumstances." State in the 

Interest of J.F., 446 N.J. Super. 39, 51-52 (App. Div. 2016) (quoting State v. 

R.G.D., 108 N.J. 1, 15 (1987)). In conducting this analysis, the court must make 

sure that "findings of fact [were] grounded in competent, reasonably credible 

evidence, [and] . . . correct legal principles [were] applied . . . ." State in the 

Interest of A.D., 212 N.J. 200, 215 (2012) (quoting R.G.D., 108 N.J. at 15).

Defendant argues the matter must be remanded for a new waiver hearing 

in light of the 2015 repeal and replacement of the juvenile waiver statute. 

Defendant asserts the portions of the new waiver statute at issue here – N.J.S.A. 

2A:4A-26.1(b), 2A:4A 26.1(c)(3)(e) and (j) – require the prosecutor to consider 

his eligibility for special education, as well as mental health concerns, before 

seeking waiver. The new statute also directs the prosecutor to consider evidence 

presented by the accused and the court with regard to these factors. Thus, 

defendant may not have been subject to adult sentencing consequences if waiver 

had been considered under the new framework. He argues the new statute is 

ameliorative, and therefore must apply retroactively. Defendant relies on J.F., 
10 A-0101-16T3

where we held a different subsection of the new waiver statute applied

retroactively. 

No published opinion addresses whether N.J.S.A. 2A:4A-26.1(c)(3) – the 

portion of the juvenile waiver statute at issue here – should be applied 

retroactively. Two recent published opinions address the retroactivity of other 

sections of the statute.

In June 2016, we held Section (c)(1) of the new juvenile waiver statute, 

which raised the minimum waiver age from fourteen to fifteen, applied 

retroactively. See J.F., 446 N.J. Super. at 55-56. In that case, the State appealed 

from the trial court's denial of a waiver motion for a juvenile who was fourteen 

years old at the time of the offense. Id. at 41. The waiver hearing was held on 

August 13, 2015 – after the enactment of the new juvenile waiver statute, but 

before its stated effective date. Id. at 52-53. The trial court found the juvenile 

sufficiently proved a probability of rehabilitation under the version of the 

juvenile waiver statute in effect at the time of the waiver hearing, which was 

N.J.S.A. 2A:4A-26. Id. at 42. On appeal, we affirmed for the substantive 

reasons provided by the trial court, but also held that the amended juvenile 

waiver statute should apply retroactively, barring defendant from being waived 

into adult court based on his age. Id. at 42. In so holding, the majority found:
11 A-0101-16T3

[t]he revised waiver statute was intended to ameliorate 

the punitive sentencing previously meted out to 

adolescent offenders after waiver. The legislative 

action was also intended to address the treatment needs 

of children. The increase in the minimum waiver age 

is part of that emphasis on rehabilitation rather than 

punishment, a part of the effort to ensure that children 

do not become prey to adult inmates nor suffer the 

many societal consequences of an adult criminal record. 

[Id. at 55.] 

In finding Section (c)(1) to be ameliorative for the purposes of 

retroactivity, we explained that "a waiver to adult court is part of the extended 

process of determining the severity of the sentence that will be doled out after a 

determination that the juvenile has committed an offense." Id. at 58.

Two months after J.F. was decided, our Supreme Court briefly addressed 

the question of retroactivity of the new juvenile waiver statute, but declined to 

conduct a "full-blown retroactivity analysis." State in the Interest of N.H., 226 

N.J. 242, 249 (2016). In N.H., the State appealed from a trial court's ruling that 

defendant was entitled to full discovery before the waiver hearing. Id. at 247. 

The initial decision was issued before the adoption of the new juvenile waiver 

statute. Id. at 245-47. By the time the appeal made its way to the Supreme 

Court, however, the new statute had taken effect. 
12 A-0101-16T3

In addressing the retroactivity question, the Court noted there were "no 

material differences between the parts of the newly enacted and prior statutes 

which are relevant to this appeal." Id. at 249. Neither version of the statute 

addressed the extent of discovery to be provided before the waiver hearing. Id.

at 253. The Court held that "[a]s a seventeen-year-old charged with very serious 

acts, [defendant] is covered under both versions of the law. Statutory revisions 

about the process for the waiver decision do not alter existing law in a material 

way either. They are largely procedural in nature and encompass prior practice." 

Id. at 249. The Court addressed Section (c)(3)'s list of factors to be considered 

in the waiver decision, and noted that "[t]he new waiver law appears to have 

adopted parts of the Guidelines and case law," id. at 250, and "encompass and 

expand upon the factors listed in the Guidelines." Id. at 252. 

Focusing on the discovery issue, the Court explained that "the waiver of 

a juvenile to adult court 'is the single most serious act that the juvenile court can 

perform.'" Id. at 252 (quoting R.G.D., 108 N.J. at 4-5). Given the "critical 

nature" of this proceeding, the Court held that due process required defendant 

to be provided with full discovery before the hearing, absent certain extenuating 

circumstances. Id. at 256. The Court directed that, on remand, the waiver 

hearing should proceed in accordance with the new waiver statute. Id. at 249.
13 A-0101-16T3

More recently, we decided the case of an individual who had been waived 

to adult court and sentenced more than thirty years ago, stating:

[T]he waiver law was not only the same at the time 

defendant committed the offense, but also at the time of 

his waiver, conviction, and sentencing. There is no 

evidence the Legislature intended the waiver statute to 

reach concluded cases which have already passed 

through the proverbial "pipeline." Therefore, our 

application of the savings statute in C.F.—which we 

also relied upon in J.F.—has its limits, as demonstrated 

by this case, in which defendant's direct appeal has long 

since been concluded.

[State v. Bass, 457 N.J. Super. 1, 11-12 (App. Div. 

2018).]

Here, the question is whether the new juvenile statute should be applied 

to a situation where the defendant was not yet sentenced when the statute was 

enacted. The waiver statute is ameliorative and thus subject to retroactive 

application. See J.F., 446 N.J. Super. at 55-56. Any change in the waiver 

process may affect the severity of the outcome for the juvenile. Moreover, there 

is no apparent reason why retroactive application of Section (c)(3) would 

constitute a manifest injustice – nor does the State make such an argument here. 

Recently, we analyzed the purpose and goals of the savings statute, N.J.S.A. 1:1-

15, and held that "we look to the date an offense was committed in determining 

whether a new law, which discharges, releases or affects an offense, should be 
14 A-0101-16T3

applied to that offense, but we look to the date a penalty was incurred to 

determine whether a new law should discharge, release or affect the penalty for 

the offense." State in the Interest of C.F., 444 N.J. Super. 179, 188-89 (App. 

Div. 2016) (emphasis omitted). Here defendant was sentenced after the 

enactment of the more lenient waiver statute. It is undisputed that defendant has 

a mental disability which is included in two important factors in the new waiver 

statute, but is not relevant under the old one.

We remand for reconsideration of waiver by the Family Part judge, after

giving defendant an opportunity to present evidence to the prosecutor about the 

waiver factors concerning his mental health and special education classification,

as permitted under our new waiver statute. N.J.S.A. 2A:4A-26.1(c)(3)(e) and 

(j).

It is in line with the retroactivity we deemed appropriate in J.F. 446 N.J. 

Super. at 59; cf. N.H., 226 N.J. at 256 (directing that full discovery be provided 

to a juvenile prior to a waiver hearing). We do not intend by this remand to infer 

that waiver is or is not the correct outcome. Under these circumstances,

defendant should be given the benefit of the new procedures, especially in light 

of the serious consequences waiver entails. See N.H., 226 N.J. at 253 (referring 

to the "critical nature of waiver hearings").
15 A-0101-16T3

Reversed and remanded for the prosecutor to determine if the State wishes

to proceed with a waiver hearing under the new statute. In the event of an adult 

conviction, defendant's mental health deficits may only be used in mitigation,

and not aggravation of his sentence, absent convincing expert testimony that 

defendant's mental health interferes with deterrence. See State v. Nayee, 192 

N.J. 475 (2007) (remanding by order for the defendant's mental health to be 

considered under mitigating factor four in light of State v. Nataluk, 316 N.J. Super. 

336, 349 (App. Div. 1998), which states that a defendant's mental health 

problems could be considered a mitigating factor even if a jury rejected the 

defendant's insanity defense).

Reversed and remanded for further proceedings in conformity with this 

opinion. We do not retain jurisdiction.