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Juvenile Waiver

Essex, Union, Hudson County Juvenile Delinquency Waiver Lawyer

The consequences that young people face in juvenile court are significantly less than what they would face in the criminal court. However, if the juvenile court grants a waiver application for charges of a juvenile crime, the case is transferred to the adult criminal court where the juvenile will be prosecuted as an adult. At the Newark, New Jersey, Law Offices of Kevin Crawford Orr, we can help you fight a waiver application.

  

  

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Law Offices of Kevin Crawford Orr • (973) 824-5520

  

What is a Juvenile Waiver Application?

A juvenile waiver application in New Jersey, if granted, results in the transfer of the charges to the adult criminal court and the loss of the protections and lesser penalties of the juvenile court.

The grounds for waiver are very fact specific and require the assistance of an experienced lawyer like Kevin C. Orr, Esq.

Prior to March 1, 2016, a prosecutor's decision on whether or not to file a waiver application used to be made under the New Jersey Attorney General Guidelines "Juvenile Waiver Guidelines - 3/14/2000." The Attorney General is developing new guidelines to and a link will be provided to them when they are available.

The Court Rule on a New Jersey Juvenile Waiver Application

This Court Rule is being revised "Rule Revisions Ordered" to comply with statory changes, effective March 1, 2016.

Prior to March 1, 2016, a juvenile waiver application in New Jersey was governed by the Rule 5:22-2 of the New Jersey Rules of 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 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.

    SOURCE. Source__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.

    The New Jersey Statute on Juvenile Waiver (effective 3/1/16)

    § 2A:4A-26.1. Filing motion seeking waiver of jurisdiction; hearing.

    a. A prosecutor seeking waiver of jurisdiction of a juvenile delinquency case by the Superior Court, Chancery Division, Family Part to an appropriate court and prosecuting authority without the consent of the juvenile shall file a motion within 60 days after the receipt of the complaint, which time may be extended 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 paragraph (3) of subsection c. of this section, together with an explanation as to how evaluation of those facts support waiver for each particular juvenile.

    b. At a hearing, the court shall receive the evidence offered by the State and by the juvenile. The State shall provide proof to satisfy the requirements set forth in paragraphs (1) and (2) of subsection c. of this section. The court also shall review whether the State considered the factors set forth in paragraph (3) of subsection c. of this section.

    c. Except as provided in paragraph (3) of this subsection, the court shall waive jurisdiction of a juvenile delinquency case without the juvenile's consent and shall refer the case to the appropriate court and prosecuting authority having jurisdiction if:

      (1) The juvenile was 15 years of age or older at the time of the alleged delinquent act; and

      (2) There is probable cause to believe that the juvenile committed a delinquent act which if committed by an adult would constitute:

        (a) criminal homicide, other than death by auto;

        (b) strict liability for drug-induced deaths;

        (c) first degree robbery;

        (d) carjacking;

        (e) aggravated sexual assault;

        (f) sexual assault;

        (g) second degree aggravated assault;

        (h) kidnapping;

        (i) aggravated arson;

        (j) possession of a firearm with a purpose to use it unlawfully against the person of another under subsection a. of N.J.S.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;

        (k) a violation of N.J.S.2C:35-3 (Leader of a Narcotics Trafficking Network);

        (l) a violation of N.J.S.2C:35-4 (Maintaining and Operating a CDS Production Facility);

        (m) a violation of section 1 of P.L.1998, c.26 (C.2C:39-4.1) (Weapons Possession while Committing certain CDS Offenses);

        (n) an attempt or conspiracy to commit any of the crimes enumerated in subparagraphs (a) through (m) of this paragraph; or

        (o) a crime committed at a time when the juvenile previously had been sentenced and confined in an adult correctional facility.

      (3) 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 discretion in considering the following factors in deciding whether to seek a waiver:

        (a) The nature and circumstances of the offense charged;

        (b) Whether the offense was against a person or property, allocating more weight for crimes against the person;

        (c) Degree of the juvenile's culpability;

        (d) Age and maturity of the juvenile;

        (e) Any classification that the juvenile is eligible for special education to the extent this information is provided to the prosecution by the juvenile or by the court;

        (f) Degree of criminal sophistication exhibited by the juvenile;

        (g) Nature and extent of any prior history of delinquency of the juvenile and dispositions imposed for those adjudications;

        (h) If the juvenile previously served a custodial disposition in a State juvenile facility operated by the Juvenile Justice Commission, and the response of the juvenile to the programs provided at the facility to the extent this information is provided to the prosecution by the Juvenile Justice Commission;

        (i) Current or prior involvement of the juvenile with child welfare agencies;

        (j) Evidence of mental health concerns, substance abuse, or emotional instability of the juvenile to the extent this information is provided to the prosecution by the juvenile or by the court; and

        (k) If there is an identifiable victim, the input of the victim or victim's family.

      The Attorney General may develop for dissemination to the county prosecutors those guidelines or directives deemed necessary or appropriate to ensure the uniform application of this section throughout the State.

    d. An order waiving jurisdiction over a case and referring the case to the appropriate court and prosecuting authority shall specify the alleged act upon which the referral is based and all other delinquent acts charged against the juvenile arising out of or related to the same transaction.

    e. Testimony of a juvenile at a hearing to determine referral under this section shall not be admissible for any purpose in any subsequent hearing to determine delinquency or guilt of any offense.

    f. Upon waiver of jurisdiction and referral to the appropriate court and prosecuting authority having jurisdiction:

      (1) The case shall proceed as if it originated in that court and shall be subject to the sentencing provisions available to that court; provided, however, upon conviction for any offense which is subject to waiver pursuant to paragraph (2) of subsection c. of this section, there shall be a presumption that the juvenile shall serve any custodial sentence imposed in a State juvenile facility operated by the Juvenile Justice Commission until the juvenile reaches the age of 21, except that:

        (a) a juvenile who has not reached the age of 21 may, in the discretion of the Juvenile Justice Commission, be transferred to the Department of Corrections in accordance with the plan established pursuant to subsection e. of section 7 of P.L.1995, c.284 (C.52:17B-175) and regulations adopted pursuant to that section; and

        (b) a juvenile who has reached or exceeds the age of 21 may continue to serve a sentence in a State juvenile facility operated by the Juvenile Justice Commission in the discretion of the Juvenile Justice Commission and if the juvenile so consents; otherwise the juvenile shall serve the remainder of the custodial sentence in a State correctional facility;

      (2) If a juvenile is not convicted of an offense set forth in paragraph (2) of subsection c. of this section, a conviction for any other offense shall be deemed a juvenile adjudication and be remanded to the Superior Court, Chancery Division, Family Part for disposition, in accordance with the dispositional options available to that court and all records related to the act of delinquency shall be subject to the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60);

      (3) With the consent of the defense and the prosecutor, at any point in the proceedings subsequent to the decision ordering waiver the court may remand to the Superior Court, Chancery Division, Family Part if it appears that:

        (a) the interests of the public and the best interests of the juvenile require access to programs or procedures uniquely available to that court; and

        (b) the interests of the public are no longer served by waiver.

    g. (1) The Juvenile Justice Commission, in consultation with the Attorney General, shall establish a program to collect, record, and analyze data regarding waiver of jurisdiction of a juvenile delinquency case by the Superior Court, Chancery Division, Family Part to an appropriate court and prosecuting authority. In furtherance of this program, the Juvenile Justice Commission shall, in cooperation with the Administrative Office of the Courts, Attorney General, and county prosecutors, collect data related to the decision to seek waiver of jurisdiction of a juvenile delinquency case, which shall include but not be limited to data concerning:

      (a) youth demographics, including age, gender, race, and ethnicity;

      (b) case characteristics, including the degree of the offense waived, the degree of the offense convicted, and the final court resolution;

      (c) case processing times; and

      (d) waiver rates by race and ethnicity.

    (2) The commission shall prepare and publish on its Internet website biennial reports summarizing the data collected, recorded, and analyzed pursuant to paragraph (1) of this subsection.

    (3) The commission shall, pursuant to section 2 of P.L. 1991, c.164 (C.52:14-19.1), biennially prepare and transmit to the Governor and the Legislature the reports required in paragraph (2) of this subsection, along with any recommendations the commission may have for legislation concerning waiver of jurisdiction of juvenile delinquency cases.

    History: L. 2015, c. 89, § 1, eff. Mar. 1, 2016.

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    The consequences of a juvenile waiver are serious. At the Essex County Law Offices of Kevin Crawford Orr, we can help. Contact us today for more information.


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