New rule 5:22-2. Waiver ofJurisdiction and Referral without the Juvenile's Consent

New rule 5:22-2. Waiver ofJurisdiction and Referral without the Juvenile's Consent

(a) Motion for Waiver of Jurisdiction and Referral. A motion seeking waiver of

jurisdiction by the Family Part shall be filed by the prosecutor within [30] 60 days after the

receipt of the complaint, which time may [shall not] be extended [except] for good cause shown.

The motion shall be accompanied by a written statement of reasons clearly setting forth the facts

used in assessing all factors contained in N.J.S.A. 2A:4A-26. l et seq., together with an

explanation as to how evaluation of those facts support waiver for the particular juvenile.

(hl [Probable Cause; Evidence] Waiver Hearing. At the waiver [referral] hearing, the

court shall receive the evidence offered by the State and by the juvenile [, limited to the issue of

probable cause]. 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. The court also shall perniit cross-examination of any witnesses. The State shall provide

proof to satisfy the requirements ofN.J.S.A. 2A:4A-26. l(c)(l) with respect to the age of the

juvenile and N.J.S.A. 2A:4A-26. l(c)(2) with respect to probable cause to believe that the

juvenile committed one of the enumerated delinquent acts. The court also shall review whether

the State considered the factors set forth in N.J.S.A. 2A:4A-26.l(c)(3). [The court also shall

permit cross-examination of any witnesses.]

(c) Factors to be Considered. The court may deny a motion by the prosecutor to waive

jurisdiction of a juvenile delinquency case if it is clearly convinced that the prosecutor abused his

or her discretion in considering the factors set forth within N.J.S.A. 2A:4A-26. l(c)(3).

[(c)] (d) 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

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court and prosecuting authority having jurisdiction pursuant to N.J.S.A. 2A:4A-26. l(c). [ under

the following circumstances:]

[(l) 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 rnbbery; 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,

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hallucinogenic, or habit-producing drug; or an attempt or conspiracy to commit any of these

crimes; or]

[(D) a violation ofN.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 ofa 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]

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[(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 ofN.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

section4 or section 10 ofP.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

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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 J

[(A) criminal homicide, other than death by auto; or strict liability for drug-induced

deaths; or frrst degree robbery; or carjacking; or aggravated sexual assault; or sexual assault; or

second degree aggravated assault; or kidnapping; or aggravated arson; or J

[(B) possession of a firearm with a purpose to use it unlawfully against the person of

another under subsection (a) ofN.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 J

[(C) a violation ofN.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. J

[( 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 J

[(A) a violation ofN.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

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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.]

W, [(d)] Order to Waive Jurisdiction and for Referral [of Reference]. An order waiving

jurisdiction of the case and referring [a] the case to the appropriate court and prosecuting

authority [ and] shall [incorporate] specify therein [ not only] the alleged act or acts upon which

the referral is based, [but] and 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-RR. (1969) 5:9-S(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; caption amended, paragraphs (a) and (b)

caption and text amended, new paragraph ( c) adopted, former paragraph ( c) redesignated as

paragraph (d) and text amended, former paragraph (d) redesignated as paragraph (e) and caption

and text amended, former paragraph ( e) deleted with text relocated