By: Robert A. Bianchi, Esq., Morris County Prosecutor (2007-2013)
7 Sayreville Players Charged.- Can They Be Prosecuted as Adults? The Answer is YES!
NJ.com is reporting that 7 Juvenile Sayreville Football Players, ages 15-17, have been charged with crimes acts of delinquency that, as charged, are equivalent to the adult charges of aggravated sexual assault, sexual assault, hazing, and criminal restraint.
From a “Prosecutor’s Perspective” the next question is whether to move (or “waive”) these charges from the Family part where juveniles are prosecuted to the Criminal Part to be prosecuted as adults.
Under N.J.S.A. 2A:4A-26, a prosecutor may file a motion within 30 days to prosecute a juvenile as an adult. When a juvenile who is 14 years old or older is charged with an aggravated sexual assault or sexual assault, the prosecutor can try that juvenile as an adult simply by filing a motion and nothing more.
Generally, N.J.S.A. 2A:4A-26(e) allows the juvenile to oppose the waiver and show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver. HOWEVER, subsection (e) does not apply with respect to a juvenile 16 years of age or older who is charged with committing any of the acts enumerated in subparagraph (a), (i) or (j) of paragraph (2) of subsection a. of this section. Notably, Aggravated Sexual Assault and Sexual Assault are two crimes enumerated in sub-paragraph a.2(a).
Furthermore, although there is no the opportunity to oppose wavier through N.J.S.A. 2A:4A-26(e), there is still a review by the trial court (as well as the ability to appeal at the Appellate level) to determine if a Prosecutor’s decision to waive a juvenile to adult court was an “abuse of discretion.”
Shortly after N.J.S.A. 2A:4A was amended in 2000 to exclude the wavier opposition for the above mentioned enumerated crimes, the New Jersey Attorney General issued “Juvenile Waiver Guidelines” on March 14, 2000. According to these Guidelines, the assistant prosecutor making the initial waiver decision is required to prepare a written statement delineating the reasons for waiver, which are required to be reviewed and approved to the County Prosecutor. The reasons articulated in the written statement are guided by specific factors included within the Attorney General “Juvenile Waiver Guidelines”.
The statement of reasons, although previously only required to be considered and prepared for the County Prosecutor, are now required to be included in the Prosecutor’s motion to waive an juvenile to adult Court. Accordingly, the Juvenile Court, after considering the statement of reasons, must assess the Prosecutor’s determination under the “abuse of discretion” standard. See, State in re V.A., 212 N.J. 25 (2012). Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto… (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. State in re V.A., 212 N.J. 1, 22 (2012).
That said, when applying the abuse of discretion standard to such statements, it must be borne in mind that a juvenile seeking to avoid the “norm” of waiver in these circumstances, when probable cause is found to exist, must carry a heavy burden to clearly and convincingly show that the prosecutor was arbitrary or committed an abuse of his or her considerable discretionary authority to compel waiver. State in re V.A., 212 N.J. 1, 29, 50 (2012)
Defendants are innocent until proven guilty beyond a reasonable doubt!