Opinion
DOCKET NO. A-2695-12T1
05-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAHID BASKERVILLE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was fifteen years old when he was one of a group of six who attacked and robbed four young people at the playground of the Mount Vernon School in Newark. Three victims were fatally shot. The lone survivor was sexually assaulted and shot in the face. Defendant entered into a plea agreement after the trial court granted the State's motion to have the jurisdiction of the Family Court waived and the matter prosecuted in the Law Division. In this appeal, defendant challenges both the decision to waive jurisdiction to the Law Division and his sentence. We affirm.
I.
Within one week of the attacks, defendant was arrested and charged with acts of juvenile delinquency. The Family Court found probable cause to charge the defendant as an adult. N.J.S.A. 2A:4A-26(a)(2).
We have not been provided with a transcript of the probable cause phase of the waiver hearing.
Before the rehabilitation portion of the waiver hearing was conducted, defense counsel advised the court that he would not be presenting an expert witness or any other witnesses on the issue of whether defendant could be rehabilitated by the age of nineteen. He asked the court to consider letters written by defendant's relatives and to preclude the State from pursuing its own psychological evaluation of defendant in light of the fact the defense was not presenting any witnesses. The court denied this request and set a date for a voir dire of defendant and his legal guardian to confirm they fully understood what rights they were waiving by not presenting any witnesses.
Before the rehabilitation phase of the hearing, N.J.S.A. 2A:4A-26(e); R. 5:22-2, commenced, the judge addressed counsel and defendant regarding the decision to present no witnesses. The judge told defendant that since he had found probable cause, the purpose of the hearing was to determine whether or not defendant could be rehabilitated before he reached the age of nineteen. Defendant replied that he understood. The judge went on to explain there are ways for the defense to show he could be rehabilitated, which include presenting evidence from an expert who would interview defendant and prepare a report, and testimony from defendant, family members and others. He asked defendant if he and his attorney had discussed the issue of not presenting an expert at the rehabilitation hearing. Defendant stated his counsel had explained this to him, answered any questions he had and he was satisfied with the decision not to present expert testimony. The judge then advised defendant of his right to testify at the hearing and "tell [the court] anything that [he] would want to tell . . . with regard to the issue of whether or not [he] can be rehabilitated between now and [his] 19th birthday." Defendant stated he understood he had the right to do so, had discussed this with his attorney and that his attorney answered all his questions. The judge further asked defendant if he had any questions "about any of this what is going on here today." Defendant replied, "No, sir." Defense counsel then reiterated that defendant would not be presenting any testimony but merely relying upon the letters provided by defendant's relatives.
Although defendant's mother did not attend the hearing, several of his relatives, including his grandfather, were present. The judge interviewed them to determine if they had any questions about the decision not to present witnesses. Defendant's grandfather expressed some reservation, but he agreed the matter had been discussed with defendant's mother, who was his legal guardian, and she agreed with the decision not to proceed with any expert testimony.
Counsel added:
[G]iven the laws that the Court is certainly aware of and the positions that counsel is asked to take as a matter of strategy with respect to expert opinions. . . . And not having to divulge opinions which may not have been helpful, that the discussion with [defendant] and his guardian I think should satisfy the Court and the State insofar as our decision to not place any expert testimony on the record.The judge concluded that defendant had made the decision not to present expert testimony or other witnesses with the advice of his legal guardian.
The letter from defendant's grandfather could not be located, and so, the court took testimony from him. The only other evidence submitted was the report from the State's expert. The prosecutor advised that because the expert's interview with defendant was "brief" and "uneventful," the State's expert was not able "to posit an opinion," and so, the report provided "nothing which would . . . assist [the court]." After setting forth his findings, which incorporated findings made in the first phase of the hearing, the judge concluded defendant had not sustained his burden of showing a probability of rehabilitation that substantially outweighed the reasons for waiver. Accordingly, the judge waived the case to the Law Division.
Defendant was indicted for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two, three, four, and five); three counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts six, seven, and eight); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1)-(2) (count nine); three counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (counts ten, eleven, and twelve); first-degree attempt to commit murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1)-(2) (count thirteen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count fourteen); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count fifteen); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count sixteen); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count seventeen); second-degree aggravated sexual assault N.J.S.A. 2C:14-2(a)(3) (count eighteen); and second-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (count nineteen).
Defendant's five co-defendants (Rodolfo Godinez, Jose Carranza, Melvin Jovel, Alexander Alfaro, and Gerardo Gomez), were charged in counts one through seventeen. Only defendant and Carranza were charged in counts eighteen and nineteen.
Defendant entered a guilty plea, pursuant to a negotiated plea agreement, to one count of conspiracy to commit robbery, four robbery counts, and one count of aggravated sexual contact (counts one, two, three, four, five, and eighteen). In exchange for defendant's guilty plea and his testimony against two of his co-defendants, the State agreed to recommend an aggregate sentence of thirty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; the Graves Act, N.J.S.A. 2C:43-6(c); Megan's Law, N.J.S.A. 2C:7-1 to -23; and parole supervision for life, N.J.S.A. 2C:43-7.2. The State also agreed to dismiss the remaining thirteen counts of the indictment.
Count eighteen was amended from second-degree sexual assault to third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a).
We summarize the testimony defendant gave to provide a factual basis for his guilty plea:
On August 4, 2007, defendant went to the home of his friend, Alexander Alfaro, arriving at approximately noon. He and Alfaro drank malt liquor and played video games with Gerardo Gomez. During the course of the day, defendant also used cocaine. Later that day, Alfaro called his brother, Rudolfo Godinez, to ask for money so they could go to the movies. A few minutes later, Godinez called Alfaro and instructed him, "Meet me at the playground." Alfaro took a machete, put it in his pants and covered the machete with his shirt. Defendant testified he did not ask Alfaro anything about the machete because he "didn't mind." As defendant, Alfaro and Gomez left Alfaro's apartment, Jose Carranza pulled up in a cab and walked with them to the school playground.
Defendant described his mental state as stable, despite the use of alcohol and cocaine. He knew they were going to the playground "[t]o collect money" so they could go to the movies. It was 8:30 p.m. and dark when they arrived at the playground bleachers, where Godinez and Melvin Jovel were drinking.
Defendant stated there were three African-American teenagers, two males and one female, near a car parked to the left of the playground, listening to music coming from the car radio. Another African-American female teenager was on a lower level of the playground.
Godinez handed Jovel a handgun. Jovel walked up to the car as the four teenagers were getting in. He ordered them to "[g]et the fuck out of the car" and get down on the ground. Defendant testified he remained at the bleachers while his companions "swarmed" around the teenagers, ordering them, "Run your fucking pockets." Alfaro had his machete at his side. None of the teenagers resisted as Carranza and Jovel robbed them of cellphones and wallets. Defendant stated he and Gomez were backing up his friends in the robbery. There was "no doubt" the robbery was being done at gunpoint.
Godinez then ordered Gomez, Alfaro, and Jovel to go downstairs to the lower level with three of the teenagers, two males and one female. Defendant observed that Jovel was carrying a .357 magnum handgun and Alfaro had his machete. The teenagers did not resist.
Defendant and Carranza remained on the upper level of the playground with the other female, who was lying face down on the ground, saying, "Oh, Jesus, stop." Carranza touched her vagina through her pants and then told defendant to do the same. Defendant started rubbing her clothed buttocks and Carranza told him, "That's not how you do it." Carranza then pulled down her pants and proceeded to feel her vagina.
Defendant did not know exactly what was happening with the others but knew "something was going down." Gomez returned, carrying a .32 revolver, and pointed it at the face of the female who was lying face down, being held by defendant and Carranza. Gomez held the gun "at point blank range" to the female's face and defendant heard the gun click. Godinez came back and used his hand to make "a cut throat gesture." Defendant testified he shook his head "as if to say no." Carranza then used a twelve-inch kitchen knife to "slic[e] her neck" numerous times. The girl was crying and said, "Stop."
Defendant heard three gunshots come from the lower area where the other teenagers had been taken. The female Carranza had been cutting stood up and backed up towards the steps. Jovel moved toward her and shot her in the face. She fell to the ground. Defendant and his companions all ran away.
They reconvened at Alfaro's apartment where they shut off the lights. Godinez told them to be quiet as they waited for a ride and gave some of the stolen money to Carranza and Alfaro. Defendant received none and was not sure if Jovel received anything. The stolen cellphones were distributed at a later time. When their ride arrived, five of them went to a motel in New York, where they were joined by members of MS-13, a Hispanic gang. Eventually, they returned to their homes.
Consistent with the plea agreement, the sentencing judge merged count one into counts two, three, four, and five. On each robbery count, the court imposed a fifteen-year sentence, subject to an eighty-five percent period of parole ineligibility under NERA, a seven and one-half year period of parole ineligibility under the Graves Act, N.J.S.A. 2C:39-4(a)(2), and five years of parole supervision upon release. The sentences on counts two and three were ordered to run consecutive to each other and concurrent to the sentences on counts four and five. On count eighteen, the court imposed a four-year sentence, to run concurrent to the robbery sentences, and parole supervision for life.
In this appeal, defendant presents the following arguments for our consideration:
POINT I
IMPOSITION OF A 30 YEAR BASE CUSTODIAL TERM ON DEFENDANT'S CONVICTIONS WAS MANIFESTLY EXCESSIVE AND A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.
A. THE 15 YEAR BASE CUSTODIAL TERMS IMPOSED ON COUNTS
TWO, THREE, FOUR AND FIVE, AND THE 4 YEAR BASE CUSTODIAL TERM IMPOSED ON COUNT EIGHTEEN, WERE MANIFESTLY EXCESSIVE.
B. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON COUNTS TWO AND THREE.
POINT II
THE MOTION COURT ERRED IN GRANTING THE STATE'S MOTION TO WAIVE THE CHARGES AGAINST DEFENDANT TO THE LAW DIVISION.
After reviewing these arguments in light of the record and the applicable law, we find no merit in any of these arguments.
II.
Defendant raises several arguments in support of his challenge to his sentence. He faults the sentencing judge for failing to acknowledge he had the discretion to reject the plea agreement and sentence defendant to a lesser term. Noting the custodial terms imposed for each count exceeded the minimum term authorized for each of the offenses, defendant contends that the sentencing judge was required to engage in a deliberative process and explain why the minimum sentence was not imposed for each offense, particularly since the court found the aggravating and mitigating factors to be in balance. He also states there is "no objective reason" to support the sentencing judge's finding of aggravating factors 1, 2, or 3, N.J.S.A. 2C:44- 1(a)(1),(2), (3), or his declining to find mitigating factor 7, N.J.S.A. 2C:44-1(b)(7). Finally, he argues that the sentencing judge abused his discretion in imposing consecutive sentences for the two robbery counts.
A.
Appellate review of criminal sentences is governed by the "clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). In the sentencing context,
an appellate court . . . can (a) review sentences to determine if . . . the sentencing guidelines[] were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."These standards apply as well to sentences that result from guilty pleas, including those guilty pleas that are entered as part of a plea agreement." State v. Sainz, 107 N.J. 283, 292 (1987).
[Id. at 364-65.]
When sentence is imposed pursuant to a negotiated plea agreement, it "is presumed to be reasonable because a defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" State v. Fuentes, 217 N.J. 57, 70-71 (2014) (alterations in original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div.), certif. denied, 85 N.J. 136 (1980)); see also State v. Spinks, 66 N.J. 568, 573 (1975) (stating "an appellate court should ordinarily defer to the presumed reasonableness of a bargained sentence and not hold it to be excessive except in compelling circumstances"). However, "[e]ven a sentence recommended as part of a plea agreement . . . may be vacated if it does not comport with the sentencing provisions of our Code of Criminal Justice." Fuentes, supra, 217 N.J. at 71.
The sentence imposed did not violate any sentencing provisions of our Code and defendant has not argued to the contrary. The judge recognized his discretion to deviate from the plea agreement, having acknowledged that a "presumption of reasonableness" attaches to a plea-bargained sentence, see id. at 70-71, and found nothing in the record warranting a deviation from the negotiated agreement. In fact, the judge alluded to his prerogative when he stated he would have rejected the plea bargain had defendant not cooperated with authorities. Therefore, defendant's argument that it was an abuse of discretion for the judge to fail to acknowledge his discretion to reject the plea agreement and sentence defendant to a lower term lacks merit.
In addition, the contention that the sentencing judge must justify why the minimum authorized sentence is not imposed implicitly assumes the minimum sentence constitutes a presumptive sentence. However, since the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005), there are no presumptive terms in our Code and judges are not required "to balance the aggravating and mitigating factors . . . from the fixed point of a statutory presumptive." Id. at 488.
B.
We therefore turn to defendant's challenge to the trial court's assessment of aggravating and mitigating factors.
In State v. O'Donnell, 117 N.J. 210 (1989), the Court detailed the scope of an appellate court's review of aggravating and mitigating factors:
[A] trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence. The role of the appellate court is different. It does not sit to substitute its judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors
that are supported by competent credible evidence in the record.
[Id. at 215 (internal citations omitted).]
During his analysis of the aggravating and mitigating factors, the sentencing judge was mindful of his obligation to only consider the crimes defendant pleaded guilty to and only those actions which exceeded the conduct required to establish an element of the offense. The judge found aggravating factors one, two, three, and nine, N.J.S.A. 2C:44-1(a)(1),(2),(3),(9).
"[T]he Legislature chose comprehensive language to define aggravating factor one." State v. Lawless, 214 N.J. 594, 609 (2013).
Under this factor, the sentencing court reviews the severity of the defendant's crime, the single most important factor in the sentencing process, assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public. The paramount reason we focus on the severity of the crime is to assure the protection of the public and the deterrence of others. The higher the degree of the crime, the greater the public need for protection and the more need for deterrence.
In that inquiry — focused on the magnitude of the offense as a measure of the need to shield the public and deter future crimes — courts applying aggravating factor one focus on the gravity of the defendant's conduct, considering both its impact on its immediate victim and the overall circumstances surrounding the criminal event.
[Id. at 609-10 (citations and internal quotation marks omitted).]See, e.g., O'Donnell, supra, 117 N.J. at 217-18 (finding factor one applies when a defendant commits a crime in a particular manner designed to increase a victim's pain or suffering).
The court found factor one applied due to the severity of the crimes and the level of terror that was purposely inflicted upon all the victims. The court found that defendant's conduct "demonstrated cruel and depraved conduct," particularly in light of the fact that he sexually contacted one victim as she "continually pleaded to God for mercy."
In finding aggravating factor two, the court explained that defendant knew that all the victims were "particularly vulnerable, or incapable of exercise of normal physical powers of resistance" since "[t]hey were set upon, [and] surrounded, with weapons." At sentencing, defense counsel argued this factor should not apply, contending the victims were "not particularly vulnerable" within the meaning of the statute because they were not physically or mentally challenged. However, the O'Donnell Court squarely addressed this issue, stating that "[o]n its face, the statute does not limit 'vulnerability' to age or other physical disabilities of the victim." Id. at 218. Instead, if "a victim is so constrained as to make physical resistance virtually impossible, he or she has been rendered vulnerable within the meaning of [N.J.S.A. 2C:44-1(a)(2)]." Id. at 219.
Here, the court found the robbery victims were particularly vulnerable as they were made to lie face down on the ground and were surrounded by six actors, two of whom were armed. See Lawless, supra, 214 N.J. at 611 ("[I]f a defendant is convicted of offenses against multiple victims, the harm inflicted upon all such victims can be considered when the sentencing court applies aggravating factor two."). The court found that the victim sexually assaulted by defendant was "extraordinarily vulnerable" since she was separated from her companions, leaving her with no one "in a position to aid her."
The court based its finding of aggravating factor three, the likelihood of defendant committing another offense, on the "sheer depravity" of his current offenses and the court's impression that defendant's "chilling testimony" reflected a "mind-set [sic]" that armed robbery was "no big deal" and was just "part of what [defendant] does." Cf. O'Donnell, supra, 117 N.J. at 216 (finding the defendant's "almost boastful" attitude towards his offense evidenced a belief that defendant could take the law into his own hands, thus supporting the trial court's finding that the defendant was likely to commit future offenses).
Finding a need to deter defendant and others from committing similar offenses, the court also found aggravating factor nine. The court declined to find aggravating factor five, N.J.S.A. 2C:44-1(a)(5), because there was no evidence defendant was a member of a gang.
As to the mitigating factors, the court found mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), assigning it "paramount weight" in light of the risk defendant assumed by cooperating with law enforcement authorities in the prosecution of his co-defendants. The court also found mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13), applicable because defendant was a youthful offender whose conduct was influenced by a person more mature than he. However, the court gave limited weight to this factor as defendant was fifteen years old, and was not forced to participate in the crimes. The court also gave consideration to nonstatutory mitigating factors: defendant's youth and sincere remorse.
Although defendant did not have any prior adjudications or convictions, the court refused to find mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). The court based this decision upon defendant's admission of illegal drug use and the record of his prior arrests that had not resulted in adjudications. See State v. Torres, 313 N.J. Super. 129, 162 (App. Div.) ("A sentencing court may consider a juvenile record even if the charges did not result in convictions."), certif. denied, 156 N.J. 425 (1998); State v. Tanksley, 245 N.J. Super. 390, 396 (App. Div. 1991) ("A sentencing judge may consider a defendant's juvenile record of charges that did not result in convictions.").
The court found the aggravating and mitigating factors were in balance and imposed sentence in accordance with the plea agreement. The court emphasized that had defendant's cooperation with authorities not been as "pronounced as it was, [the court] would have rejected the plea agreement." The court also noted that it was this cooperation that induced the prosecution to recommend the thirty-year sentence.
The judge's findings of aggravating and mitigating factors were "based upon competent credible evidence in the record." See Roth, supra, 95 N.J. at 364 (1984). We discern no abuse of discretion in the judge's findings and analysis or in the sentence imposed.
C.
Defendant argues that the court "misapplied its discretion in imposing consecutive sentences . . . because the crimes were not independent of each other and represented a single period of aberrant behavior." This argument has no merit.
While there are no statutorily set rules for imposing consecutive sentences, the Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), provided the following guidelines:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
[Id. at 643-44.]
A sentencing court applies these factors qualitatively, not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court "may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (holding that concurrent sentences were not mandated even where the crimes were connected by a "unity of specific purpose," "were somewhat interdependent of one another," and were both committed in a short time frame), certif. denied, 165 N.J. 492 (2000). Crimes involving multiple victims suffering separate and distinct harm "represent especially suitable circumstances for the imposition of consecutive sentences." Carey, supra, 168 N.J. at 428.
The trial court must expressly state the reasons for imposing consecutive sentences or risk remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987). However, "where the facts and circumstances leave little doubt as to the propriety of the sentence imposed," and where "there is no showing that the sentence is clearly mistaken," the appellate court may affirm. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (internal quotation marks omitted) (affirming the trial court's sentence even though the judge did not "carefully articulate" the Yarbough factors), certif. denied, 177 N.J. 492 (2003).
Here, the court provided the following reasons for the imposition of consecutive sentences:
In determining that it is necessary to impose consecutive sentencing, the Court relies primarily on the fact that the defendant to a plea bargain [in] which the State would recommend no more than a 30-year-term of incarceration, in exchange for defendant's cooperation and testimony. But it also finds, in applying the Yarbough factors, these crimes clearly involve multiple victims and the convictions were numerous. Analyzing these facts, I will impose consecutive sentencing.
This statement of reasons reflects a consideration of the Yarbough factors, particularly the multiplicity of victims and offenses. See Carey, supra, 168 N.J. at 429-30 (opining that "two consecutive terms of imprisonment should ordinarily be imposed in multiple-victims cases"). In addition, the court specifically noted that the sentence was not based exclusively upon the sentence recommendation in the plea agreement. The court's finding that two Yarbough factors were present is amply supported by the record. We find no abuse of discretion in the imposition of consecutive sentences on the facts of this case.
III.
Defendant asserts that the Family Court erred in waiving his case to the Law Division. The sole basis advanced for this argument is that his grandfather testified "defendant was a 'good kid' whose involvement in this case was the result of a 'bad decision' and not a malevolent intent." Notably, defendant has not argued that it was an abuse of discretion for the prosecutor to seek the waiver.
In a footnote, defendant reserves his "right to argue in post-conviction relief that trial counsel's decision not to present expert testimony . . . was ineffective assistance of counsel." We need not address this argument here.
N.J.S.A. 2A:4A-26 provides in pertinent part:
a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that:
(1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and
(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:
(a) Criminal homicide other than death by auto, . . . robbery which would constitute a crime of the first degree, . . . aggravated sexual assault, sexual assault, aggravated assault which would constitute a crime of the second degree . . . .
. . . .
e. If the juvenile can 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, waiver shall not be granted. This subsection shall 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) . . . .
A juvenile can, however, defeat the "presumption in favor of waiver," State v. R.G.D., 108 N.J. 1, 12 (1987), by showing "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." N.J.S.A. 2A:4A-26(e). The juvenile bears the burden of proof as to both parts - showing the likelihood of rehabilitation and that this likelihood of rehabilitation outweighs the reasons for waiver. R.G.D., supra, 108 N.J. at 11. "Moreover, for juveniles who have committed serious offenses, the range of discretion for courts to balance deterrence and rehabilitation is greatly reduced." State v. Scott, 141 N.J. 457, 472 (1995).
We apply an abuse of discretion standard to our review of a waiver motion. State in re V.A., 212 N.J. 1, 8 (2012); State v. Onque, 290 N.J. Super. 578, 584 (App. Div.), certif. denied, 146 N.J. 497 (1996). That standard "is appropriately deferential to the prosecutor's decision to seek waiver when the statutory conditions are present . . . ." V.A., supra, 212 N.J. at 8. The three-part abuse of discretion test announced in Roth, supra, 95 N.J. at 364-65, applies, requiring that "1) findings of fact be grounded in competent, reasonably credible evidence, 2) correct legal principles be applied, and 3) the judicial power to modify a trial court's exercise of discretion will be applied only when there is a clear error of judgment that shocks the judicial conscience." R.G.D., supra, 108 N.J. at 15.
The abuse of discretion standard also applies to the family court's review of the prosecutor's waiver decision when "a juvenile, aged sixteen or older charged with an enumerated offense, . . . seeks to avoid the statutory direction that waiver 'shall' be ordered when a prosecutor brings such a motion and demonstrates probable cause for the offense charged." State in re V.A., 212 N.J. 1, 25-26 (2012).
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In rendering his waiver decision, the judge stated there was no question defendant's involvement in the "unwarranted, unjustified" offenses was "significant." The judge expressed his understanding for defendant's family's position, as reflected in the supporting letters and the testimony of his grandfather, and found defendant had significant support from his family, all law-abiding people, who attempted to remove defendant from negative influences. But, the judge stated, defendant "simply could not cut himself from the strings that attached him to these friends of his in the City of Newark." Citing defendant's admission he had ample opportunity to remove himself from the situation, but chose not to do so and participated in the criminal activity, the judge stated he could not find that defendant would never put himself into a similar situation.
The court noted defendant's burden to show a probability of rehabilitation by the age of nineteen and, further, that such probability substantially outweighed the reasons for waiver. The judge stated defendant did not appear to have any mental health issues or any significant substance abuse issues. The judge made it "very, very clear" the absence of expert testimony was not fatal to the rehabilitation issue. However, under the circumstances of the case, the judge found the testimony of defendant's grandfather and the letters from family were insufficient to carry his burden of showing a probability of rehabilitation.
The court found further that, even if defendant had sustained his burden as to the probability of rehabilitation, that probability did not substantially outweigh the reasons for waiver. The court noted the gravity of the offenses, an overwhelming need to deter defendant, and the societal need for appropriate punishment for these types of offenses. Accordingly, the court found "the reasons for waiver overwhelmingly outweigh any possibility of rehabilitation." Since the Family Court judge's findings of fact were "grounded in competent, reasonably credible evidence" and he applied the "correct legal principles," there is no "clear error of judgment that shocks the judicial conscience." See R.G.D., supra, 108 N.J. at 15.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION