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

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

• (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.

Note: Source-R.R.. (1969) 5:9-5(b), (c). Adopted December 20, 1983, to be effective December 31, 1983; paragraph (b)(2)(E) amended July 14, 1992 to be effective September 1, 1992; paragraphs (a), (b)(2)(F) and (b)(4) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (b)(2)(D), (E) and (F) amended, paragraph (b)(2)(G) adopted June 28, 1996 to be effective September 1, 1996; paragraphs (b) and (b)(1) amended, former paragraphs (b)(2), (b)(3), and (b)(4) deleted, new paragraphs (b)(2), (b)(3), and (b)(4) added July 10, 2002 to be effective September 3, 2002; paragraphs (b)(2)(B) and (b)(2)(C) amended, new paragraph (b)(2)(D) adopted, paragraph (b)(3) caption amended, paragraphs (b)(3)(B) and (b)(3)(C) amended, new paragraph (b)(3)(D) adopted July 28, 2004 to be effective September 1, 2004; new paragraph (b) added, and former paragraphs (b), (c), (d) redesignated as paragraphs (c), (d), (e) June 15, 2007 to be effective September 1, 2007.

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.

Note: Source-R.R.. (1969) 5:9-5(d). Adopted December 20, 1983, to be effective December 31, 1983; caption and text amended November 5, 1986 to be effective January 1, 1987.

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.