Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee,GP He was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. Visit Website www.njlaws.com
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
http://www.njlaws.com/

Sunday, October 19, 2014

HANDLING A JUVENILE DELIQUENCY CASE

HANDLING A JUVENILE DELIQUENCY CASE
     By:  Kenneth A. Vercammen

Handling juvenile delinquency cases is becoming a sub-specialty that requires special knowledge of the juvenile justice system.  Juvenile cases are difficult to handle for different reasons: 
(1) The juveniles often refuse to admit to their attorney any participation in the offense despite clear guilt.
(2) The parents sometimes refuse to acknowledge their child's involvement.
(3) Different rules and court systems are involved.
When the client is first in the office, we have him fill out the Confidential New Criminal Case Interview Sheet.  We obtain background information such as their name, address, the offenses charged, date of the person's arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions.  Our interview sheet also asks if there is anything else important.  The extent to which the client fills out the form lets us know whether or not the client will follow instructions and cooperate with us.
After reviewing the complaint and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story.  We also ask them if there is anything else of importance in connection with the case that we should know.  The client may have pending serious criminal charges in another state or county.  I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed.  By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer.  The ABA adopted Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients.  I also provide all my clients with a brochure explaining how to appear in court, a brochure on surcharges, a brochure on points, and a brochure regarding alcohol counseling/substance abuse treatment, if applicable.
I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why the court should impose the minimum license suspension.  This provides us with information for mitigation and penalties and also provides information to be considered by the judge in sentencing.

       I.   WHO IS THE CLIENT?

The client must be the juvenile charged.  It is not the parent or grandmother who pays the bills.  It is important to preserve the confidence of the client.  I let the juvenile know that they can call us whenever they want, and we will not tell their parents anything told in confidence.
Discovery in non-motor vehicle cases is requested in writing to the
County Prosecutor, not the town Municipal Prosecutor.  Motor vehicle charges alone are heard by the Municipal Court Judge and handled by the Municipal Prosecutor.
Trial Call is the next appearance and the defense counsel will receive discovery, if it has not previously been received.  Applicable motions should be filed prior to the trial call:  Motion to Suppress, Compel Additional Discovery, Dismiss Complaint, etc.
Juveniles have most of the same rights under the Constitution as adults:
 - 4th Amendment - No unreasonable searches
 - 5th Amendment - Right to Remain Silent
 - 6th Amendment - Right to Attorney
 - 6th Amendment - Right to Cross Examine Witnesses
 Unlike adults, juveniles do not have a right to a jury trial and do not have to post bail.
         It is a popular misconception that juvenile arrests are automatically erased when the juvenile turns 18.  The criminal "charge", even if later dismissed, stays on their record forever unless they have their attorney file a formal petition for Expungement.
          Once we receive our retainer, we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor and court and hand a copy to the client.  We occasionally call the court to advise them that we will be handling the case. 
Law is a business.  I try to impress my clients and hope that they will send additional clients.

       II.   POST INTERVIEW PREPARATION
We also make a Motion to Suppress where there is a question regarding the validity of a stop or search.  New Jersey will also permit you to make a Motion to Dismiss on De Minimis Infractions for non-substantial offenses (i.e. shoplifting one candy bar).  Any other Motions to Dismiss should be made in writing such as statute of limitations or lack of jurisdiction.
         Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result regarding alcohol or drugs, you can make a Motion in Limine or suggest a pre-trial conference.  It is often a good idea to try to have the judge decide a crucial issue by motion in order to save you a six-hour trial.

          III.  ADDITIONAL DISCOVERY PHASE
 Upon receiving discovery, we forward a photocopy of all discovery to our client.  We then discuss with the client whether or not we have a reasonable prospect of winning.
In the case involving essential witnesses, we may write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter.  The attorney could not testify if the witness provides an inconsistent statement but our law clerks could testify.  I sometimes speak to the witness myself later to make a decision to determine whether or not the witnesses are credible.  You must protect yourself from looking like a fool.  Oftentimes the clients are not telling the truth and the witnesses are not telling the truth.

 IV. PREPARING FOR TRIAL
         If it is a drug case, we may make an objection to the entry of the lab certificate as evidence at trial.  We are also under a responsibility to provide any reciprocal discovery to the prosecutor.  Occasionally, we will call the prosecutor ahead of time to see if a matter can be worked out or plea bargained. In a rare, more serious case the Prosecutor can file a motion to have the case transferred to the adult superior court


THE OFFENSE AND ARREST

Police are permitted to arrest if they see a crime or are provided with information that a juvenile committed a crime.  The police then sign a Complaint Form, which later is forwarded to the Superior Court, Family Part, in the county where the juvenile lives.  Generally, the juvenile will be released to the custody of parents or guardians.  Rule 5:21-5. A person is a juvenile for delinquency purposes until his/her 18th birthday.  For serious crimes, if the juvenile is a threat to themselves or the community, or if the juvenile is a habitual offender, they can be brought to the County Juvenile Detention Center.  They will remain in detention until released by the Superior Court Judge at a recall hearing, after a probable cause hearing or at the conclusion of the case.  It is rare and serious when a juvenile is held at the Detention Center.

MIRANDA WARNING AND CONFESSIONS

Police must provide Miranda Warning to juveniles.  Parents/guardians do not have to be present for police questioning.  If a confession is sought and you need to try and preclude the admission of a confession, the issue will be whether the waiver of Miranda Warning was "knowing and voluntary" by the juvenile.
Caselaw indicates both juveniles and even retarded citizens can waive their right to remain silent.

DIVERSION OF CRIMINAL CHARGES

In many counties, the County Prosecutor's office screens each complaint initially, but staff within the Family Court can make the decision to divert the case or not.   Diversion for many cases means removing them from court altogether and sending them for total handling to a Juvenile Conference Committee (J.C.C.) or intake service conference.  See the Criminal Justice System, "Guide for School Personnel," Middlesex County Prosecutor's Office, p. 20 (1996).
The first rung on the diversion ladder is the Juvenile Conference Committee (J.C.C.), which is a town-based group of citizens who work with the juvenile offender to devise an appropriate resolution of the case.  Rule 5:25-1.
Citizen members are appointed to recommend to the court how to handle selected juvenile cases.  Members meet with the juveniles and make recommendations, which may include restitution, participation in a job placement or community service program, counseling, or other conditions.
For juveniles with prior charges or more serious charges, the case is put on the formal trial calendar.  These proceedings resemble adult criminal proceedings. The juvenile must be represented by an attorney and the state is represented by an Assistant Prosecutor.
In a "deferred adjudication" the judge may direct the juvenile to perform a job, write an essay, be on unsupervised probation, or direct other requirements.  The juvenile must earn dismissal by fulfilling conditions such as restitution, community service, counseling, or school attendance.



FORMAL TRIAL
If the case goes to trial, the judge serves as the fact-finder and makes all decisions, unlike adult court where those charged can have a jury trial.  The trial is held before a Superior Court Judge in the county where the juvenile resides.  Rule 5:19-1.
Another major difference in juvenile cases is that the prosecutor does not make binding sentencing recommendations as part of a plea bargain.  The judge has total discretion regarding the sentence imposed.  If the juvenile pleads guilty or is found delinquent (guilty), the judge has the discretion on sentence - deferred adjudication, probation, incarceration, residential placement, restitution, fine, etc.  Criminal Justice System, supra at 21.
Relatively few juveniles are currently incarcerated but the number may increase as legislative changes require jail terms for juveniles who commit certain offenses such as auto thefts and for juveniles who continue to commit more and more heinous offenses.
For the most serious crimes, the County Prosecutor can make a motion to remove to the Adult Criminal Court.  Rule 5:22-1, Rule 5:22-2.

FIRST APPEARANCE IN FORMAL TRIAL CASES

The Court itself will send a copy of the Complaint to the juvenile's parents and a Mandatory Notice to Appear for an Interview for Public Defender Eligibility. The Public Defender handles only indigent cases, juveniles whose parents are on welfare, unemployed, and have no assets.
This mandatory appearance is unnecessary once the client retains an attorney and the attorney sends in a Notice of Appearance.

THE TRIAL

         Interview witnesses to determine if they will be credible and help your client. Serve your subpoenas on witnesses in sufficient time prior to trial. Have your legal research done prior to trial, such as on constructive possession of drugs or stolen property.

             V.   PLEA TO A LESSER DEFENSE

If the client is going to enter a guilty plea to any offense, it is important that they understand what the offense is and put a factual basis on the record.  You will be embarrassed if your client is pleading guilty to a drunk driving case and the judge asked your client what he had to drink, the client insists he only had one beer.  The judge will send you back to your seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record.  Having previously obtained for my client their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.
Most states, such as New Jersey have a conditional discharge, pre-trial intervention, or other programs that are available to clients charged with drug offenses who have never previously been arrested or previously been convicted of the drug offense.  Again, to avoid embarrassment, it is a good idea to speak with the prosecutor and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a conditional discharge type program.  Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing.  After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.


IMPORTANT LAWS MOST JUVENILES DON'T KNOW ABOUT

Assault:  Any assault committed against any teacher, school board employee, school board member, or school administrator is an aggravated assault.  NJSA 2C:12-1 et seq.

Graffiti:  Penalties were increased for graffiti, and include driver's license loss for juveniles, P.L. 1995 c. 251.  Amends NJSA 2C:17-3 (Criminal mischief and other statutes).  In the case of a person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of one year after the day the person reaches the age of 17 years.  If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this section, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.  Any person convicted of criminal mischief involving graffiti may be required to pay to the owner monetary restitution and perform community service and remove graffiti.

Drugs:  Sample Mandatory Penalties for Juvenile - Possession of Small
Amounts   of Marijuana:
-Suspension of Driver's License:  2C:35-16    Six months to two years from date of sentence.
-DEDR Penalty $500 required under NJSA 2C:35-15a.  This $500 penalty is required even in juvenile cases, as required by statute. State in
Intent of LM  22   NJ Super 88, (App. Div. 88)   court denied 114 NJ 485
(1989)
-Drug Lab Fee $50    2C:35-20a
-VCCB $50 according to 2C:43-3.1a(2)(o)
-Safe Streets - Fee due upon conviction, PTI or CD $75

About the Author:
Kenneth A. Vercammen is a trial attorney in Metuchen, Middlesex
County, New Jersey. Kenneth Vercammen was selected one of only three attorneys as a Super Lawyer 2007-2008 in NJ Monthly in the Criminal - DWI. Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

 He is the past chair of the NJ State Bar Association Municipal Court Section. He is the Deputy chair of the ABA Criminal Law committee, GP Division.
     
KENNETH  VERCAMMEN  ATTORNEY AT LAW 
2053 Woodbridge Ave. Edison, NJ 08817      732-572-0500

NJ LAWS LEGAL WEBSITE: www.njlaws.com
Criminal website    www.BeNotGuilty.com

He has lectured on traffic and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College.   He often lectures for the New Jersey State Bar Association on personal injury, criminal /municipal court law and drunk driving.   He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters.

Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings,  Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Saturday, October 18, 2014

State In the Interest of V.A. makes it more difficult for prosecutors to send juvenile cases to adult court

State In the Interest of V.A. makes it more difficult for prosecutors to send juvenile cases to adult court  

Decided September 12, 2012

lavecchia, J., writing for a majority of the Court.

In these appeals, the Court considers the standard governing judicial review of a prosecutor’s decision to waive certain juveniles into adult criminal court.

Under N.J.S.A. 2A:4A-26, the prosecutor may, in his discretion, file a motion to waive a juvenile charged with certain enumerated offenses into adult criminal court. In 2000, the Legislature amended N.J.S.A. 2A:4A-26 to eliminate the opportunity for juveniles aged sixteen and over to present rehabilitation evidence to defeat waiver. Once the State has established probable cause that the juvenile committed an enumerated offense, waiver is required. Thus, the Legislature vested the prosecutor’s office with the primary responsibility for waiver decisions regarding such juveniles. The Legislature directed the Attorney General to issue guidelines to ensure uniform application of this prosecutorial discretion and thereby eliminate arbitrariness or abuse of discretionary power. The Attorney General promulgated “Juvenile Waiver Guidelines,” which provided that the prosecutor must weigh the following factors when determining whether to file a juvenile waiver motion: “Nature of the Offense,” “Deterrence,” “Effect on Co-Defendants,” “Maximum Sentence and Length of Time Served,” “Prior Record,” “Trial Considerations,” and “Victim’s Input.” A written statement of reasons containing an account of all factors considered and deemed applicable must be submitted with the motion for waiver.

In connection with an attack on Omar Estrada, juveniles V.A., M.R., and C.T., all sixteen years old or older, were charged with offenses enumerated in N.J.S.A. 2A:4A-26. The State filed waiver motions for the juveniles and submitted a statement of reasons for each juvenile. The statements were virtually identical to one another with the exception of their prior records. For nature of the offense, the State described all participants’ actions in one narrative, providing considerable detail about the juveniles’ actions leading up to, during, and after the assault. In addressing deterrence, the State provided: “The need to deter the juvenile and others from engaging in this sort of activity is abundantly clear.” Regarding the effect that waiver will have on co-defendants, the State asserted that defendants should be tried together in adult court “[i]n the interests of judicial efficacy and parity in sentencing.” For the maximum sentence factor, the State noted that each youth would face a maximum of ten years if adjudicated as a juvenile and forty years, subject to the No Early Release Act (NERA), if convicted as an adult. The juveniles’ prior records were recounted in individualized fashion and, for trial considerations, the State provided that there is a strong likelihood of indictment and conviction, and noted the seriousness of the crime committed and the need for adequate punishment. Finally, the prosecutor stated for each juvenile that the “[victim supports this application.”

The Family Court determined that probable cause existed for enumerated offenses charged but concluded that the prosecutor’s decision to waive the juveniles constituted a patent and gross abuse of discretion. The court therefore denied the State’s motions for waiver. The Appellate Division reversed, concluding that the State’s decision to seek waiver did not constitute a patent and gross abuse of discretion. State ex rel. V.A., 420 N.J. Super. 302 (App. Div. 2011). The panel remanded for the entry of orders waiving V.A., M.R., and C.T. to adult court. The Court granted V.A., M.R., and C.T. leave to appeal. 208 N.J. 334 (2011); 208 N.J. 384 (2011).

HELD: The abuse of discretion standard, rather than the patent and gross abuse of discretion standard, governs judicial review of a prosecutor’s decision to waive a juvenile aged sixteen and over charged with an enumerated offense under N.J.S.A. 2A:4A-26 into adult criminal court.

1. Shortly after the 2000 amendments to the juvenile waiver statute, in State ex rel. R.C., 351 N.J. Super. 248 (App. Div. 2002), the Appellate Division concluded that the patent and gross abuse of discretion standard applicable to a prosecutor’s refusal to consent to a defendant’s admission into a Pretrial Intervention (PTI) program also governs the review of a prosecutor’s motion to waive a sixteen-year-old juvenile charged with an enumerated offense into adult court. The Court has not squarely addressed this question.  

2. Although generous deference must be allotted to prosecutors in light of the 2000 amendments, the Court has embraced the abuse of discretion standard as a generous deference to prosecutorial actions. The Court has applied the abuse of discretion standard when the prosecutorial determination visits on the individual a harsher set of circumstances, rather than the denial or conferral of a benefit. The latter circumstance is what is at stake in the PTI context. More fundamentally, however, the charging process generally, and at work in a PTI determination, is an inherently prosecutorial function and is the reason for greater deference. In the circumstances presented here, without the prosecutor’s motion to the juvenile court, the juvenile remains in that venue for any charges that are brought.
3. The discretionary prosecutorial decision at issue here places the juvenile at risk of enhanced punishment. In State v. Lagares, 127 N.J. 20 (1992), the Court applied an abuse of discretion standard to a prosecutor’s discretionary decision to seek a mandatory extended-term sentence. In light of the enhanced punishment looming as a result of the prosecutor’s waiver decision here, the Court finds that the abuse of discretion standard utilized in Lagares is more appropriate. Lagares imposed a “heavy” abuse of discretion standard to be carried by a defendant seeking to avoid a prosecutor’s application for an extended term made in compliance with guidelines issued. Here, the Court imposes a similar abuse of discretion standard to be met when the family court reviews the prosecutor’s waiver decision made in connection with the juvenile waiver Guidelines. As in Lagares, a juvenile must show clearly and convincingly that a prosecutor abused his or her discretion in order to secure relief. An abuse of discretion review does not allow the court to substitute its judgment for the prosecutor’s; it is appropriately deferential to the prosecutor’s decision to seek waiver while furthering the goal of uniform application by providing an additional level of protection against arbitrariness in a critical decision affecting the quantity and quality of punishment for a juvenile.
4. To ensure a meaningful review under the abuse of discretion standard, the prosecutor’s statement of reasons must evidence that the prosecutor actually considered each Guideline factor for each particular juvenile. The prosecutor’s statement of reasons must provide enough of a fact-based explanation to support the conclusion that the factor supports waiver. Cursory or conclusory statements as justification for waiver will not suffice to allow the court to perform its review because such statements provide no meaningful explanation of the prosecutor’s reasoning. Here, the statements of reasons sufficiently explained the nature of the offenses; presented sufficient individualized information about the youths’ past records; and provided minimal but nonetheless individualized information on the effect on co-defendants, maximum sentence, trial considerations, and victim’s input. However, the State’s explanations on deterrence are clearly deficient to permit review. The deterrence factor was addressed with a curt statement, announced in conclusory fashion, that “[t]he need to deter the juvenile and others from engaging in this sort of activity is abundantly clear.” That explanation failed to explain how deterrence of the particular individual, and of others generally, is served by waiving each of these juveniles to adult criminal proceedings. Therefore, the statements of reasons require a more full explanation of the deterrence assessment of the three juveniles.
The judgment of the Appellate Division is reversed in respect of the standard of review to be applied and the matter is remanded for further proceedings consistent with this opinion.

See also Trying juveniles as adults will become tougher, N.J. Supreme Court ruleshttp://www.nj.com/politics/index.ssf/2012/09/trying_juveniles_as_adults_wil.html— Prosecutors must meet a tougher test before they can try juveniles as adults, giving younger offenders more power to avoid being sent to prison, the state Supreme Court ruled today.
In a 3-2 decision, the court also said prosecutors must explain why trying a juvenile as an adult would better deter that person, as well as others, from committing future crimes.
Juvenile justice advocates hailed the decision as an acknowledgement of the negative consequences of putting young offenders in prison with adult criminals.
They said imprisoning young people as adults creates a permanent criminal record, which makes it difficult for offenders to get a job or take out a loan. The advocates also said juveniles in adult facilities are more likely to commit suicide or be physically and sexually abused.
Attorney Laura Cohen, who joined the case on behalf of more than two dozen state and national advocacy organizations and individuals, said the ruling was "enormous."
"They have to take a hard look at the young person and ask, ‘We know in most cases transfer to the adult system won’t deter future crime, but will it deter in this case?’" Cohen said.
The state Attorney General’s Office, which supported the Middlesex Prosecutor’s Office’s contention that four juveniles deserved to be tried as adults because of the severity of their crimes, said the ruling would not prevent prosecutors from successfully making such requests in the future.
"The court provides some clear direction on what detail should be included in a waiver application," said spokesman Peter Aseltine. "We anticipate that prosecutors will not have any problem complying with this decision and obtaining waivers where appropriate."
Writing for the majority, Justice Jaynee LaVecchia said given the consequences of adult prosecutions, juveniles need only prove prosecutors abused their discretion when they ask to waive a case to adult court, rather than prove a "patent and gross" abuse of discretion.
In a dissenting opinion, Justice Anne Patterson said the Legislature in 2000 granted prosecutors broad discretion over when to transfer a juvenile case, and guidelines by the Attorney General’s Office were enough to prevent arbitrary decisions.
In the case, three juveniles aged 16 and older challenged a lower court decision granting the Middlesex County prosecutor’s request to try them as adults on charges of aggravated assault, robbery and conspiracy. A fourth juvenile was involved in the case but was not a party on appeal.
The juveniles were charged in connection with a 2009 attack on Omar Estrada, who was walking in Woodbridge Township when he was struck in the back of the head from behind, kicked and robbed.
If convicted as juveniles, the teenagers face a maximum 10 years in juvenile detention. If convicted as adults, they face a maximum 40 years in state prison.
When prosecutors ask to send criminal cases against juveniles age 16 and older to adult court, they must address several factors, including the nature of the offenses, how the move would help deter future offenses and the maximum possible adult sentence.
The Middlesex County Prosecutor’s Office argued "the need to deter the juvenile(s) and others from engaging in this sort of activity is abundantly clear." The trial court rejected the request based on a report that juveniles sent to adult court were more likely to commit violent crimes. A state appeals court reversed that decision, but the Supreme Court said the prosecution’s explanation was inadequate.
The case was sent to the trial court to allow the prosecutors to expand upon their request to try the juveniles as adults. Middlesex County Prosecutor Bruce Kaplan said in a statement he will provide a more complete explanation. "Even under this new, increased level of court review, our previous statement of reasons pursuant to Attorney General guidelines was found sufficient in all other respects," Kaplan said.
Courts across the country are grappling with questions about how to handle juvenile offenders. In June, the U.S. Supreme Court banned states from imposing mandatory life sentences on juveniles. Lon Taylor, an assistant deputy public defender who represented one of the juveniles, said the New Jersey decision was a "dramatic change" to the juvenile justice system.

http://www.nj.com/politics/index.ssf/2012/09/trying_juveniles_as_adults_wil.html

Waiver of Juvenile criminal charge to adult court

5:22-2. Referral Without Juvenile's Consent

  • (a) Motion for Referral. A motion seeking waiver of jurisdiction by the Family Part shall be filed by the prosecutor within 30 days after the receipt of the complaint, which time shall not be extended except for good cause shown.
  • (b) Probable Cause; Evidence. At the referral hearing, the court shall receive the evidence offered by the State and by the juvenile, limited to the issue of probable cause. The court also shall permit cross-examination of any witnesses.
  • (c) Standards for Referral. The court shall waive jurisdiction of a juvenile delinquency action without the juvenile's consent and shall refer the action to the appropriate court and prosecuting authority having jurisdiction under the following circumstances:
    • (1) Judicial Discretion for Juveniles Age 14 or Older and Charged with a Chart 2 Offense. The juvenile must have been 14 years of age or older at the time of the alleged delinquent act and there must be probable cause to believe that he or she committed a delinquent act which if committed by an adult would constitute:
      • (A) a crime committed at a time when the juvenile had previously been adjudicated delinquent, or convicted of:
        • 1. criminal homicide, other than death by auto; or
        • 2. strict liability for drug-induced deaths (N.J.S.A. 2C:35-9); or
        • 3. first degree robbery; or
        • 4. carjacking; or
        • 5. aggravated sexual assault; or
        • 6. sexual assault; or
        • 7. second degree aggravated assault; or
        • 8. kidnapping; or
        • 9. aggravated arson; or
      • (B) a crime committed at a time when the juvenile had previously been sentenced to and confined in an adult penal institution; or
      • (C) an offense against a person committed in an aggressive, violent, and willful manner, other than a Chart 1 offense enumerated in N.J.S.A. 2A:4A-26a(2)(a); or the unlawful possession of a firearm, destructive device or other prohibited weapon; or arson; or death by auto if the juvenile was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug; or an attempt or conspiracy to commit any of these crimes; or
      • (D) a violation of N.J.S.A. 2C:35-3 (Leader of a Narcotics Trafficking Network), N.J.S.A. 2C:35-4 (Maintaining and Operating a CDS Production Facility), N.J.S.A. 2C:35-5 (Manufacturing, Distributing or Dispensing Narcotics), or an attempt or conspiracy to commit any of these crimes, other than where the violation, attempt or conspiracy involves the distribution for pecuniary gain of any controlled dangerous substance or controlled substance analog while on any school property or within 1000 feet of such school property; or
      • (E) a crime or crimes that are part of a continuing criminal activity in concert with two or more persons, when the circumstances show that the juvenile has knowingly devoted himself or herself to criminal activity as a source of livelihood; or
      • (F) theft of an automobile.
        On a finding of probable cause for any of the offenses enumerated above, the burden is on the prosecution to show that the nature and circumstances of the charge or the juvenile's prior record are sufficiently serious that the interests of the public require waiver. Waiver shall not be granted, however, if the juvenile can show that the probability of his or her rehabilitation prior to reaching the age of 19 by use of the procedures, services, and facilities available to the court substantially outweighs the reasons for waiver.
    • (2) Judicial Discretion for Juveniles Age 14 or 15 and Charged with a Chart 1 Offense or with Certain Drug Offenses Committed Within a School Zone. The juvenile must have been 14 or 15 years old at the time of the alleged delinquent act and there must be probable cause to believe that he or she committed a delinquent act that if committed by an adult would constitute
      • (A) criminal homicide, other than death by auto; or strict liability for drug-induced deaths; or first degree robbery; or carjacking; or aggravated sexual assault; or sexual assault; or second degree aggravated assault; or kidnapping; or aggravated arson; or an attempt or conspiracy to commit any of these crimes; or
      • (B) possession of a firearm with a purpose to use it unlawfully against the person of another under subsection (a) of N.J.S.A. 2C:39-4, or possession of a firearm while committing or attempting to commit, including the immediate flight therefrom, aggravated assault, aggravated criminal sexual contact, burglary or escape; or
      • (C) a violation of N.J.S.A. 2C:35-3 (Leader of a Narcotics Trafficking Network), N.J.S.A. 2C:35-4 (Maintaining and Operating a CDS Production Facility), N.J.S.A. 2C:35-5 (Manufacturing, Distributing or Dispensing Narcotics), or an attempt or conspiracy to commit any of these crimes; and which violation, attempt or conspiracy involves the distribution for pecuniary gain of any controlled dangerous substance or controlled substance analog while on any school property or within 1000 feet of such school property; or
      • (D) computer activity that would be a crime of the first or second degree pursuant to section 4 or section 10 of P.L.1984, c.184 (N.J.S.A. 2C:20-25 or 2C:20-31).
        On a finding of probable cause for any of these enumerated offenses, there is a rebuttable presumption that waiver will occur. The juvenile can rebut this presumption only by demonstrating that the probability of his or her rehabilitation prior to reaching the age of 19 by use of the procedures, services or facilities available to the court substantially outweighs the reasons for waiver.
    • (3) Prosecutorial Discretion for Juveniles Age 16 or Older and Charged with a Chart 1 Offense or Certain Other Enumerated Offenses. The juvenile must have been 16 years of age or older at the time of the alleged delinquent act and there must be probable cause to believe that he or she committed a delinquent act that if committed by an adult would constitute
      • (A) criminal homicide, other than death by auto; or strict liability for drug-induced deaths; or first degree robbery; or carjacking; or aggravated sexual assault; or sexual assault; or second degree aggravated assault; or kidnapping; or aggravated arson; or
      • (B) possession of a firearm with a purpose to use it unlawfully against the person of another under subsection (a) of N.J.S.A. 2C:39-4, or possession of a firearm while committing or attempting to commit, including the immediate flight therefrom, aggravated assault, aggravated criminal sexual contact, burglary or escape; or
      • (C) a violation of N.J.S.A. 2C:35-3 (Leader of a Narcotics Trafficking Network), N.J.S.A. 2C:35-4 (Maintaining and Operating a CDS Production Facility), or N.J.S.A. 2C:39-4.1 (Weapons Possession While Committing Certain CDS Offenses); or
      • (D) computer activity that would be a crime of the first or second degree pursuant to section 4 or section 10 of P.L.1984, c.184 (N.J.S.A. 2C:20-25 or C.2C:20-31).
        On a finding of probable cause for any of these enumerated offenses, no additional showing is required for waiver to occur. Jurisdiction of the case shall be transferred immediately.
    • (4) Judicial Discretion for Juveniles Age 16 or 17 and Charged with Certain Drug Offenses Committed Within a School Zone. The juvenile must have been 16 years of age or older at the time of the alleged delinquent act and there must be probable cause to believe that he or she committed a delinquent act that if committed by an adult would constitute
      • (A) a violation of N.J.S.A. 2C:35-5 (Manufacturing, Distributing or Dispensing Narcotics), or an attempt or conspiracy to commit this crime; and which violation, attempt or conspiracy involves the distribution for pecuniary gain of any controlled dangerous substance or controlled substance analog while on school property or within 1000 feet of such school property.
        On a finding of probable cause for any such offense, there is a rebuttable presumption that waiver will occur. The juvenile can rebut this presumption only by demonstrating that the probability of his or her rehabilitation prior to reaching the age of 19 by use of the procedures, services and facilities available to the court substantially outweighs the reasons for waiver.
    • (d) Order of Reference. An order referring a case shall incorporate therein not only the alleged act or acts upon which the referral is based but all other delinquent acts charged against the juvenile arising out of or related to the same transaction.
    • (e) Admissibility of Testimony Given at Referral Hearing. No testimony of a juvenile at a hearing to determine referral by this rule shall be admissible for any purpose in any subsequent hearing to determine delinquency or guilt of any offense.
5:22-3. Detention Hearing After Referral
When a case is referred to another court as provided by R. 5:22-1 or R. 5:22-2, the court waiving jurisdiction shall, on hearing, determine pursuant to the criteria set forth in N.J.S. 2A:4A-36(a) whether the juvenile, if in custody pending trial, shall be confined in an adult or juvenile detention facility. In no case shall a juvenile be remanded to an adult detention facility prior to the hearing provided for herein.
5:22-4. Proceedings After Transfer
Whenever a case is referred to another court as provided by R. 5:22-1 or R. 5:22-2, the action shall proceed in the same manner as if it has been instituted in that court in the first instance.