SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3942-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN PEREZ,

Defendant-Appellant.

____________________________

Submitted October 16, 2018 – Decided

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 11-12-

2992.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Rebecca L. Gindi, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent (John J. Lafferty, IV, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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 cas es is limited. R. 1:36-3.

November 26, 2018
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Defendant Jonathan Perez appeals from his March 31, 2017 conviction 

and sentence after pleading guilty to aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1). Defendant argues the trial court's grant of an involuntary waiver from 

the Family Part to the Law Division was error. He further argues the trial court's 

ruling he was competent to stand trial was error and his sentence was excessive. 

We affirm in part and vacate and remand in part.

Defendant, who was seventeen years old at the time, was charged with 

acts that, if committed by an adult, would have constituted second-degree 

robbery, N.J.S.A. 2C:15-1(a)(1) (charge one); second-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(1) (charge two); fourth-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5(d) (charge three); third-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (charge four); first-degree 

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

3(a)(2) (charge six); and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) 

(count seven). These charges stem from a brutal assault and robbery that 

resulted in the elderly victim's death. 

The State moved to waive jurisdiction to the Law Division pursuant to 

N.J.S.A. 2A:4A-26. In its application, the State recounted the facts and 

investigation, pointed out defendant was born on August 13, 1993, and indicated 
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the First Assistant Prosecutor authorized the filing of the waiver motion. 

Attached as exhibits were the juvenile delinquency complaints, police reports, 

preliminary autopsy findings of the medical examiner, prosecutor's waiver 

authorization, and a printout of defendant's juvenile court record. The waiver 

authorization form noted defendant was charged with murder, felony murder, 

and armed robbery, and faced a maximum term of incarceration in the Law 

Division of thirty years to life, subject to the provisions of the No Early Release 

Act (NERA), N.J.S.A. 2C:43-7.2, but a maximum term of incarceration of an 

indeterminate twenty years in the Family Part. With regard to deterrence 

considerations, the prosecutor indicated the sentencing exposure and application 

of NERA militated in favor of waiver. The prosecutor also stated that a plea to 

juvenile delinquency charges in lieu of waiver had not been offered to defendant.

The following facts were submitted by the detective who testified at the 

waiver hearing conducted on September 22, 2011. At approximately 2:00 a.m. 

on July 29, 2011, patrol units of the Atlantic City Police Department were 

flagged down and also summoned by a 911 call regarding a man who was

assaulted and lying on the ground. The responding officers found the victim, 

who exhibited substantial facial injuries, lying unconscious on the sidewalk, in 
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a pool of blood. Medical assistance was requested and the victim, who remained 

unconscious and unresponsive, was transported to the hospital by ambulance. 

Investigating officers photographed and recovered two beer cans, a 

disposable lighter, a milk crate, and a baseball cap from the scene. 

The assault was captured on a surveillance video. The video depicted 

perpetrator striking the victim with a milk crate. The milk crate recovered at the 

scene appeared to have a blood stain on it. 

The assault occurred at 2 a.m. The next evening a bartender working at a 

nearby bar contacted police and advised them a patron in the bar witnessed the 

assault. The witness told the bartender the perpetrator just walked by the bar. 

When police spoke to the witness, Maria Delgado, she provided information 

regarding the perpetrator, who she was familiar with. She described the 

perpetrator as a tall Mexican male, between fifteen and seventeen years old, who 

was wearing a blue and white striped shirt when he walked by the bar. She told 

police his name is Jonathan and provided his address in Atlantic City. 

Police learned that both Delgado and another witness, Clara Tornes, 

witnessed the assault. They identified the victim as Alfred Kessleski, who they 

called Papi. They saw three neighborhood males named Jonathan, Willy, and 
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Passole (phonetic) with the victim, and saw defendant with the victim's wallet 

in his hands just after the assault. 

Police located defendant, who matched the images on the video and the 

descriptions given by Delgado and Tornes. They brought defendant to the bar, 

where he was identified by Delgado and Tornes. Defendant was then 

transported to police headquarters. 

After being informed of her rights, defendant's mother signed a consent to 

search form for the search of defendant's residence. Police retrieved a pair of 

black and red Nike sneakers with what appeared to be blood on them from 

defendant's bedroom. The police also seized defendant's blue and white striped 

shirt and the pants he was wearing. The pants had a blood stain on them. The 

pants and sneakers tested presumptively positive for human blood, as did the 

milk crate recovered from the scene.

The surveillance video of the incident was played for the court. It depicted 

an individual sitting on a milk crate. Delgado and Tornes are seen. The victim 

is hit by a milk crate and falls. Defendant is shown hitting the victim. Defendant 

is shown picking the victim up, throwing him to the sidewalk, and stomping on 

him. Defendant then rolls the victim over, takes his wallet, and runs off. 

Moments later, the police arrive, and Delgado and Tornes are seen again.
6

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The video of the incident depicts defendant wearing a red t-shirt and jeans. 

Defendant was also captured on a surveillance video at the Atlantic City Public 

Safety Building wearing a red t-shirt and jeans about an hour and a half before 

the incident. This video was also played for the court. The detective identified 

defendant as the person depicted in the video.

The victim died at the hospital on August 2, 2011. An autopsy was 

performed by a medical examiner. The autopsy lists the cause of death as blunt 

head trauma and the manner of death as a homicide. The preliminary autopsy 

findings were the victim sustained fractures of two ribs, his occipital bone, and 

facial bones; subdural hemorrhages; a subarachnoid hemorrhage; a parenchymal 

hemorrhage; multiple facial lacerations and abrasions; and abrasions of the left 

chest, elbow, and right thumb.

Defendant was charged with the seven juvenile offenses. Defendant did 

not introduce any evidence or present any witnesses at the waiver hearing. The 

assault took place only fifteen days before defendant's eighteenth birthday. 

The court noted all the State had to show was that defendant was at least 

sixteen years old and there was probable cause he committed an offense making 

him eligible for waiver to adult court. The family part judge found defendant 

was seventeen years old on the date of the incident. After recounting the 
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evidence submitted by the State during the hearing, the judge also found there 

was probable cause for the murder, felony murder, aggravated assault, weapon

possession, and robbery charges. The judge ordered jurisdiction waived to the 

Law Division.

Defendant was subsequently indicted for murder (count one), first-degree 

robbery (count two), felony murder (count three), and possession of a weapon 

for unlawful purposes (count four). 

For the next four years, defendant was not found competent to stand trial. 

On July 23, 2013, defendant was found unfit to proceed to trial, and was 

transferred to the Ann Klein Forensic Center (AKFC). On April 28, 2015, 

defendant was again found unfit to proceed to trial and required 

institutionalization because he was a danger to himself, others, or property. 

On August 18, 2016, the trial court conducted a testimonial competency 

hearing. Defendant's appearance at the hearing was waived. Joanna Bajgier, 

M.D., a board-certified psychiatrist, and Jonathan H. Mack, Ph.D., a retired 

licensed clinical neuropsychologist, testified for the State. Charles Kaska, 

Ph.D., a retired forensic psychologist, testified for the defense. Admitted into 

evidence were the competency evaluation report prepared by Dr. Bajgier and the 

forensic mental health evaluation report prepared by Dr. Mack. 
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Dr. Bajgier was defendant's treating psychiatrist at AKFC, seeing him on 

at least a weekly basis. In her report dated September 18, 2015, Bajgier stated 

defendant basically had a ninth-grade education, was able to speak both English 

and Spanish, and "appears to have fair command of the English language." He 

was described as being "alert, fully oriented, and cooperative with the 

evaluation." Dr. Bajgier reported defendant stated "his mood was 'good' and his 

affect was neutral. His thought process was goal-directed and speech was 

normal. He denied any type of hallucinations and did not appear to be 

experiencing any. He did not express any delusional thought content. He denied 

any suicidal or homicidal thinking."

Dr. Bajgier found defendant's "short- and long-term memory was intact, 

as indicated by his ability to recall [three] of [three] words after [five] minutes 

and recall presidents in reverse order back to Clinton." She described his

concentration ability as "intact, as he was able to attend to questions without 

being distracted by others coming and going in the room."

Dr. Bajgier noted that on September 11, 2015, defendant "reported to an 

officer that he had been 'lying' about having a mental illness and that he wanted 

to meet with me to discuss." When she met with defendant, he "stated he 'has 

no mental problem,' and that he had been malingering in hopes that his case 
9

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would somehow go away." Defendant "denied ever having hallucinations, 

paranoia, or mood disorder symptoms." As a result, Dr. Bajgier discontinued 

his anti-psychotic medication. Tellingly, Dr. Bajgier reported defendant had no 

current psychiatric diagnosis.

Dr. Bajgier performed a competency skills assessment of the defendant to 

determine whether mental illness or retardation affected his mental status such 

that it would interfere with his comprehension of the legal issues or the roles of 

the parties in his trial or with his ability to assist in his defense. The assessment 

revealed defendant was alert and fully oriented to time, place, and things. 

Defendant understood he was charged with murder. He stated a judge "listens 

to the facts," and is "not on the side of the prosecutor, not on my side, he's on 

nobody's side. He just listens to the facts." Defendant stated the prosecutor 

"proves you're guilty, wants a conviction." He said his lawyer "proves my 

innocence." Defendant acknowledged he understands his right to testify or not, 

and if he chooses to testify, he would be obligated to tell the truth.

When questioned regarding the role of the jury, defendant said the jury 

will "vote guilty or not guilty." Defendant understood the concept of a guilty 

plea, stating that he was previously offered a plea bargain for 30 years. He said 
10 A-3942-16T2

that a person might enter a guilty plea in order to "get less time" than they could 

be sentenced to if found guilty at trial. 

With regard to defendant's ability to participate in an adequate 

presentation of his defense, Dr. Bajgier concluded defendant

does have the ability to participate in an adequate 

presentation of his defense. He understands what he is 

charged with, knows the date of the alleged offense, and 

was able to recall some of the evidence that the 

prosecution may have against him. He is motivated to 

obtain the best outcome for himself. He is not suffering 

from a mental illness that could interfere with his 

abilities.

[Emphasis added.]

Dr. Bajgier testified that based on the results of her mental status 

examination, defendant was alert, fully oriented, and cooperative with the 

evaluation. She further stated upon his entrance to AKFC, defendant's test 

results and statements raised suspicions of malingering.

As part of his two-day psychological evaluation of defendant, Dr. Mack 

performed a battery of psychological tests, including a Competence Assessment 

for Standing Trial for Defendants with Mental Retardation. Based on the test 

results and interview, Dr. Mack opined defendant:

is clearly feigning incompetency to stand trial and that 

[defendant] does actually understand the criminal 

justice system, is capable of rationally understanding 
11 A-3942-16T2

the courtroom proceedings, does have an accurate 

understanding of his own case, but is pretending not to 

be competent in order to deliberately and intentionally 

remain out of prison and in a psychiatric facility.

Dr. Mack further concluded defendant "qualifies for the DSM-5 diagnosis 

of Malingering (DSM-5 Z76.5)." He also concluded that, by history, defendant 

may have learning disabilities, but there was "no definitive evidence" defendant

has "Mild Intellectual Disability/Mild Mental Retardation as opined by Dr. 

Kaska." Dr. Mack noted that "Dr. Kaska failed to use the current edition of the 

Wechsler Adult Intelligence Scale and also failed to do his own symptom 

validity testing to determine if the IQ scores were accurate." He also stated: 

"Dr. Kaska did not use the Test of Memory Malingering, The Validity Indicator 

Profile, the SIRS-2, the SIMS or any other measures of cognitive effort or 

symptom reporting response bias, to validate his findings[.]" Dr. Mack also 

found Dr. Kaska's use of the Rorschach test was "of markedly questionable 

validity in the context of forensic mental health evaluations."

Dr. Mack found it was likely defendant was "exaggerating his adaptive 

functioning difficulties" when administered the Vineland Adaptive Behavioral 

Scales "to support his claim of incompetency." He noted defendant's low IQ 

scores were invalid given his malingering. Dr. Mack opined defendant was 

competent to stand trial.
12 A-3942-16T2

During his testimony, Dr. Mack emphasized that for defendant to receive 

the scores he had obtained on four of the tests that were administered, which 

were designed to detect malingering, defendant had to be intentionally feigning 

incompetence. He characterized defendant's statements as containing numerous 

inconsistencies. Defendant failed multiple malingering tests, with the test scores 

pointing to a deliberate intention to lie. Dr. Mack further emphasized that 

defendant's answers to some of his questions about the criminal justice system 

were inconsistent, and that the "hallmark of malingering is inconsistency." 

Additionally, Dr. Mack testified defendant lied to mental health professionals 

regarding his competency, and that the results of some of the tests he 

administered could not be relied on because of the malingering exhibited by 

defendant. He concluded defendant was "pretty much straight-up feigning." 

Based on a ninety-minute interview with defendant and a previous 

psychological evaluation he performed in June 2012, Dr. Kaska opined:

[Defendant's] primary limitations are intellectual and 

educational: He scored in the mildly retarded range 

when I tested him three years ago and he cannot read or 

write. But his current presentation suggests that he may 

be additionally handicapped by a thought disorder 

characterized by tangential thoughts and paranoid 

ideation. There is also a growing suspicion of auditory 

hallucinations but it remains undetermined whether he 

is experiencing "voices" or simply reporting his own 

troubling thoughts.
13 A-3942-16T2

The appropriate diagnostic formulation is beyond 

the scope of this evaluation and needs to be developed 

by clinical staff at the center. What is clear is that 

[defendant] is not at this time competent to stand trial 

and will not be so until his mental state is stabilized 

through a regimen of proper medication, therapy and 

education regarding court proceedings.

Dr. Kaska testified that defendant appeared to have an understanding of 

the roles of certain court personnel and the nature of the proceedings. 

Nevertheless, Dr. Kaska testified it is possible for a person to feign 

incompetence and still be incompetent to stand trial. On cross-examination, Dr. 

Kaska acknowledged the best way to determine defendant's competency is by 

looking to the opinions of professionals who see him on a regular basis. During 

his 2015 interview, defendant did not display any unusual mannerisms and was 

able to focus his attention. Defendant's command of the English language had 

improved and he was able to use and understand advanced legal terminology. 

In an October 21, 2016 written opinion, the trial court found defendant 

competent to stand trial by a preponderance of the evidence. The judge 

concluded Dr. Bajgier's testimony was the "most persuasive" and the 

conclusions reached by Dr. Bajgier and Dr. Mack to be "much more thorough 

and persuasive than that of Dr. Kaska." In reaching those conclusions the judge 

engaged in the following analysis:
14 A-3942-16T2

Not only is Dr. Bajgier [d]efendant's current 

psychiatrist and has been seeing [d]efendant for over a 

year, but her testimony regarding [d]efendant's 

competency is supported by numerous pieces of 

evidence. Over the course of more than a year, Dr. 

Bajgier has had the opportunity to test, communicate 

with, and evaluate the competency of the [d]efendant. 

Not only has [d]efendant's testing results shown 

evidence of malingering, [d]efendant has openly 

admitted to this. Defendant has stated that he 

understands that going to trial can lead to jail time, and 

[d]efendant would much rather remain in AKFC, rather 

than be sent to jail. Evidence of malingering is shown 

through numerous tests conducted by Dr. Bajgier and 

Dr. Mack. Both doctor[]s testified to the fact 

[d]efendant has been very open about his desires, which 

tend to show competency. Through direct interaction 

with [d]efendant and various testing conducted, Dr. 

Bajgier and Dr. Mack concluded that [d]efendant is 

malingering, and therefore would be competent to stand 

trial. 

Only Dr. Kaska opined otherwise, basing his 

evaluation off of limited interactions with the 

[d]efendant. Dr. Kaska's conclusion is derived from a 

90-minute interview in December of 2015 and a 

psychological evaluation conducted in June of 2012, 

Dr. Kaska, in his report . . . stated that [d]efendant was 

able to "focus and sustain his attention" even though 

there were noises coming from outside the hall. Also, 

[d]efendant stated that he "only speak[s] English when 

I feel like it," and Dr. Kaska noted that [d]efendant's 

English has improved. However, Dr. Kaska's 

conclusion is merely based off of this 90-minute 

interview with the [d]efendant, and a psychological 

evaluation that is over four years old. In contrast, Dr. 

Bajgier's evaluation of the [d]efendant is more in depth, 

and involved conducting numerous psychological 
15 A-3942-16T2

examinations. Dr. Bajgier noted that the [d]efendant 

was alert and fully oriented, knew the charges against 

him, understood the roles of the judge, prosecutor, the 

defense attorney, and his rights to not testify when 

asked. Defendant also stated that he is motivated to 

obtain the best outcome for himself. Additionally, Dr. 

Mack agreed with the conclusion of Dr. Bajgier. Dr. 

Mack conducted numerous tests, including a CASTMR exam and the ECST-R. These exams were 

developed to determine whether an individual is 

competent to stand trial. Dr. Mack's conclusion, one 

which Dr. Bajgier also agrees with, is that [d]efendant 

is deliberately feigning incompetency to stand trial. 

There were numerous inconsistencies with his 

statements, and at one point, [d]efendant even stated 

that he knew there was a lot of evidence against him 

and asked "what's the point of me going to trial?" and 

that it is a "waste of time." 

On February 27, 2017, defendant entered into a plea agreement, pleading 

guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 

2C:11-4(a)(1), in exchange for a sentencing recommendation of a twenty-fouryear NERA term and dismissal of the remaining charges. The plea agreement 

preserved defendant's right to appeal the juvenile waiver and competency to 

stand trial rulings. 

Defendant was twenty-three years old when sentenced. He has no prior 

adjudications of juvenile delinquency or other criminal convictions. Defendant 

claims he was under the influence of alcohol, cocaine, and psychiatric 

medications when he committed the offense. 
16 A-3942-16T2

At sentencing, the trial court found aggravating factors one (offense 

committed in an especially heinous, cruel, or depraved manner), N.J.S.A. 2C:44-

1(a)(1); three (risk defendant will commit another offense), N.J.S.A. 2C:44-

1(a)(3); and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(9); and mitigating 

factor seven (defendant has no history of prior delinquency or criminal activity), 

N.J.S.A. 2C:44-1(b)(7). Defendant was sentenced in accordance with the plea 

agreement. This appeal followed.

Defendant argues:

POINT I

BECAUSE THE FAMILY PART FAILED TO 

ENGAGE IN ANY REVIEW ON THE RECORD OF 

THE PROSECUTOR'S STATEMENT OF REASONS 

FOR WAIVER AND BECAUSE THE STATEMENT 

OF REASONS WAS DEFICIENT, THIS COURT 

MUST REMAND THIS MATTER TO THE FAMILY 

PART FOR A NEW WAIVER HEARING 

PURSUANT TO THE NEW WAIVER STATUTE, 

N.J.S.A. 2A:4A-26.1.

POINT II

THE MOTION COURT ERRED IN FINDING J.P. 

COMPETENT TO STAND TRIAL BECAUSE THE 

PROSECUTOR FAILED TO PROVE J.P.'S 

COMPETENCE BY A PREPONDERANCE OF THE 

EVIDENCE AND BECAUSE THE COURT 

OVERVALUED THE EVIDENCE OF J.P.'S 

TREATING PSYCHIATRIST. U.S. CONST., 

AMEND. XIV; N.J. CONST., ART. I, PAR. 10.
17 A-3942-16T2

POINT III

J.P.'S TWENTY-FOUR YEAR NERA SENTENCE, 

INCURRED FOR AN OFFENSE COMMITTED 

WHILE A JUVENILE, MUST BE VACATED AND 

THE MATTER REMANDED BECAUSE THE 

COURT FAILED TO CONSIDER J.P.'S AGE, 

ATTENDANT CIRCUMSTANCES, AND MENTAL 

ILLNESS, AND IMPROPERLY FOUND NONSTATUTORY AGGRAVATING FACTORS.

The waiver statute in effect at the time of the waiver hearing in 2011, 

N.J.S.A. 2A:4A-26, did not require consideration of the factors imposed by the 

successor statute, N.J.S.A. 2A:4A-26.1(c)(3), which went into effect more than 

four years later on March 1, 2016, L. 2015, c. 89, § 1. Instead, the statute only 

required the State to prove defendant was at least sixteen years old at the time 

the offense was committed and there was probable cause defendant committed 

a delinquent act which if committed by an adult would constitute certain 

enumerated offenses. N.J.S.A. 2A:4A-26. "Simply stated, when a sixteen-year 

old or above is charged with an enumerated offense, the prosecutor need only 

establish probable cause for the court to waive the juvenile to adult court." State 

v. J.M., 182 N.J. 402, 412 (2005). 

The State has discretion to seek waiver of juvenile charges decision from 

the Family Part to the Law Division. J.M., 182 N.J. at 419. The Attorney 
18 A-3942-16T2

General was required by statute to establish guidelines for seeking waiver. 

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

The Legislature required the Attorney General to issue 

such guidelines to eliminate arbitrariness or abuse of 

discretionary power and to permit statewide uniformity 

in the exercise of prosecutorial discretion. See State ex 

rel. R.C., 351 N.J. Super. 248, 257 (App. Div. 2002).

Consistent with that mandate, the Attorney 

General prepared and published the guidelines for the 

prosecutor to follow in determining whether to seek 

waiver. Attorney General's Juvenile Waiver Guidelines

(March 14, 2000). The guidelines require the 

prosecutor to prepare a statement of reasons for a 

waiver application.

[J.M., 182 N.J. at 419.]

The statement of reasons should accompany the waiver motion. Ibid.

The Guidelines instructed prosecutors to consider the following factors in 

deciding whether to seek a waiver: (1) the nature of the offense, including the 

death of a victim, the role of the juvenile therein, whether grave and serious 

harm was inflicted on the victim, and the use or possession of a weapon during 

the course of the offense; (2) the need for deterrence; (3) the effect of waiver on 

the prosecution of any co-defendants; (4) the maximum sentence and length of 

time served; (5) the juvenile's prior record; (6) the likelihood of conviction and 

the potential need for a grand jury investigation; and (7) the victim's or the 
19 A-3942-16T2

victim's family's input. Guidelines at 5-6. The prosecutor briefly addressed 

these factors in the statement of reasons for the waiver submitted to the court as 

part of the State's waiver application. 

Acts of delinquency that, if committed by an adult, would constitute 

criminal murder, first-degree robbery, and second-degree aggravated assault are 

enumerated offenses under the both the current waiver statute, N.J.S.A. 2A:4A26.1(c)(1)(2) (a), (c), and (g), and the prior waiver statute, N.J.S.A. 2A:4A26(a)(1)(a) (repealed). Defendant was seventeen when the offenses were

committed. Consequently, the statutory enumerated offenses and age 

requirements were met. 

The Family Part judge next considered whether there was probable cause 

for the juvenile charges. "Probable cause is a well-grounded suspicion or belief 

that the juvenile committed the alleged crime." J.M., 182 N.J. at 417 (citing 

State v. Moore, 181 N.J. 40, 45 (2004)). Based on the evidence adduced during 

the hearing, the judge found there was probable cause for each of the charges 

brought against defendant. We agree. The evidence presented by the State at 

the waiver hearing was more than sufficient to establish probable cause for each 

of the charges. 
20 A-3942-16T2

The judge considered the waiver of defendant's juvenile charges to adult 

court automatic given defendant's age, the charges he faced, and the existence 

of probable cause for the charges. However, the waiver hearing "involves more 

than just a determination of probable cause." State ex rel. N.H., 226 N.J. 242, 

255 (2016). A prosecutor's decision to waive a juvenile complaint to adult court 

is subject to review to determine "whether the waiver complied with the 

'Juvenile Waiver Guidelines' issued by the Attorney General and whether it 

constituted a gross and patent abuse of discretion." State ex rel. D.Y., 398 N.J. 

Super. 128, 132 (App. Div. 2008). The Family Part judge did not reach or decide 

either of those issues. Therefore, the case must be remanded to the Family Part 

to make these determinations. J.M., 182 N.J. at 419; D.Y., 398 N.J. Super. at

132; R.C., 351 N.J. Super. at 262.1 

This matter is on direct appeal. Defendant argues N.J.S.A. 2A:4A-26.1 

should be given pipeline retroactivity and applied on remand. We agree. The 

Supreme Court has applied pipeline retroactivity to the revised waiver statute. 

N.H., 226 N.J. at 249. Therefore, the waiver hearing shall be "controlled by the 

 

1

 We do not vacate the finding the State established probable cause defendant 

committed the offenses charged. Therefore, on remand, the Family Part should 

not reconsider the issue of probable cause.
21 A-3942-16T2

revised waiver statute."2 Ibid. On remand, the prosecutor and the Family Part 

judge shall consider the factors set forth in N.J.S.A. 2A:4A-26.1(c)(3). The 

prosecutor shall be afforded a reasonable period to submit a revised statement 

of reasons for the waiver addressing each of the statutory factors. The remand 

judge shall make findings and conclusions of law. R. 1:7-4(a).

We next address the trial court's determination defendant was competent 

to stand trial. "The test for competency to stand trial arises from basic concepts 

of due process." State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007). 

When a defendant is tried while incompetent to stand trial, that defendant has 

been "deprived of his due process right to a fair trial." State v. Cecil, 260 N.J. 

Super. 475, 480 (App. Div. 1992). The State has the burden of proving 

competence to stand trial by a preponderance of the evidence. State v. Lambert, 

275 N.J. Super. 125, 129 (App. Div. 1994). At a minimum, the State must show 

the defendant "has sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding and . . . a rational as well as factual 

understanding of the proceedings against him." Purnell, 394 N.J. Super. at 47 

 

2

 The recently published opinion in State v. Bass, ___ N.J. Super. ___ (App. 

Div. Nov. 14, 2018) is distinguishable. In Bass, defendant appealed from the 

denial of his fourth petition for post-conviction relief. The "defendant's direct 

appeal ha[d] long since been concluded." Id. (slip op. at 14). Therefore, pipeline 

retroactivity did not apply in Bass.
22 A-3942-16T2

(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

The test for competency to stand trial in New Jersey is codified in N.J.S.A. 

2C:4-4(a), which provides: "No person who lacks capacity to understand the 

proceedings against him or to assist in his own defense shall be tried, convicted 

or sentenced for the commission of an offense so long as such incapacity 

endures." The proofs must establish that the defendant understands his presence 

in a courtroom facing criminal charges; the role of the judge, prosecutor and 

defense attorney; his rights and the consequences of waiver of the same; and his 

ability to participate in his own defense. N.J.S.A. 2C:4-4(b).

Our review of a trial court's competency determination is "'typically, and 

properly, highly deferential.'" State v. M.J.K., 369 N.J. Super. 532, 548 (App. 

Div. 2004) (quoting State v. Moya, 329 N.J. Super. 499, 506 (App. Div. 2000)). 

We do not review the factual record to determine how we would decide the 

matter if we were "the court of first instance." State v. Johnson, 42 N.J. 146, 

161 (1964). Moreover, a trial court's determination on the subject of 

competency will be sustained if there is sufficient supporting evidence in the 

record. Purnell, 394 N.J. Super. at 50.

We have considered the defendant's contentions in light of the record and 

applicable legal principles and conclude the judge did not abuse her discretion 
23 A-3942-16T2

in finding defendant competent to stand trial. We affirm substantially for the 

reasons expressed by the judge in her well-reasoned written opinion. We add 

the following comments.

"[E]xpert testimony is needed where the factfinder would not be expected 

to have sufficient knowledge or experience and would have to speculate without 

the aid of expert testimony." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 

(App. Div. 2001) (citation omitted). "Expert testimony, however, 'need not be 

given greater weight than other evidence nor more weight than it would 

otherwise deserve in light of common sense and experience.'" State v. M.J.K., 

369 N.J. Super. 532, 549 (App. Div. 2004) (quoting Torres, 342 N.J. Super. at

430). The factfinder, of course, is free to accept or reject all or part of an expert's 

testimony. Ibid. "Respecting expert opinions of psychiatrists or psychologists, 

the court, sitting as a factfinder, must use its 'common sense and ordinary 

experience.'" Ibid. (quoting In re Yaccarino, 117 N.J. 175, 196 (1989)). "This 

is particularly true when, as here, the factfinder is confronted with directly 

divergent opinions expressed by the experts." Ibid.

Faced with the divergent opinions expressed by the experts, the judge, 

sitting as the factfinder, gave more weight to the conclusions reached by Dr. 

Bajgier and Dr. Mack, finding them to be "much more thorough and persuasive 
24 A-3942-16T2

than that of Dr. Kaska." The judge determined defendant was competent to stand 

trial by applying the standards contained in N.J.S.A. 2C:4-4. The judge's 

findings in this regard are based on evidence adduced at the hearing, which 

included extensive expert testimony from both sides. The judge's findings, 

which are fully supported by the record, command our deference. 

Finally, defendant argues his sentence must be vacated and the matter 

remanded for resentencing because the trial court failed to consider his age, the 

attendant circumstances, and his mental illness and improperly found nonstatutory aggravating factors. In light of our remand of the trial court's waiver 

decision, we do not reach defendant's sentencing argument. 

In sum, we vacate the waiver of the juvenile charges to the Law Division 

and remand for the Family Part to conduct a new waiver hearing pursuant to 

N.J.S.A. 2A:4A-26.1, but affirm the finding that probable cause existed for the 

juvenile charges. We affirm the order finding defendant competent to stand 

trial. 

Affirmed in part and vacated and remanded in part for proceedings 

consistent with this opinion. We do not retain jurisdiction.