Can a Juvenile Be Tried as an Adult for Various Sex Crimes Against a Minor?

State of New Jersey in the Interest of Z.S.

Appellate Docket No.: A-3516-19T1

Decided August 18, 2020

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.

In a recent published decision, the Appellate Division reviewed a waiver of a juvenile to be tried as an adult for various sex crimes against a minor.

In Z.S., police responded to a 9-1-1 call that one or more individuals were attempting to break into a house. Several individuals outside the home told the detective that their five-year-old relative, A.L., had been sexually assaulted by someone inside the house. The detective entered the house, where Z.S.’s mother allegedly told the detective that Z.S. had admitted to his stepfather that he had sexually assaulted A.L.  The victim’s statement and additional witness statements had revealed that Z.S. and A.L. performed oral sex on each other.

Z.S. was charged with offenses that would have constituted the following crimes if committed by an adult: aggravated sexual assault (first-degree), N.J.SA. 2C:14-2(a)(1) (count one) and endangering the welfare of a child (third-degree), N.J.S.A. 2C:24- 4(a) (count two). At the time of the commission of the alleged offenses, Z.S. was seventeen years old.

The State sought waiver to try Z.S. as an adult.  In 2016, the legislature had modified the waiver law to require prosecutors to consider the following factors when requesting 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 JusticeCommission, 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.

[N.J.S.A. 2A:4A-26.1(c)(3).]

The State had provided a written statement of reasons, as required by the law, as to why Z.S. should be waived. The defense provided mitigating evidence such as school records and psychiatric reports, showing Z.S. issues with school, his ADHD and bipolar disorder, as well as Z.S. having the mental capacity similar to a 15 year old (he was 17 at the time.)  The State then provided a supplemental written statement of reasons slightly modifying the original based on this new mitigating evidence, but still requesting a waive.

The trial court found that the prosecutor did not abuse his discretion when seeking waiver, and allowed Z.S. to be tried as a adult.  Z.S. appealed.

On appeal, the Appellate Division found that the State’s original and supplemental statement of reasons were vastly deficient.  Most of the Appellate Divisions concerns involved the State using the factors of the 2000 legislative changes, and not the updated factors changed in 2016.  The Appellate Division remanded for a new waiver hearing for the State to consider all the factors of the 2016 law in its written statement of reasons.

In juvenile cases such as this where the State seeks to try a defendant as an adult, they must issue a written statement of reasons that addresses every single factor in the 2016 law.  It must state reasons for the weight of each of the factors, and a waiver cannot be sought by putting weight on a single deciding factor.  After the written statement of reasons is issued, the defense is allowed to provide mitigating evidence to any of the factors to show reasons why the individual should be tried as a juvenile in the Family Division, having significant protections and focuses on rehabilitation instead of punishment and deterrence. The State is allowed to supplement their statement of reasons based on the mitigating evidence.

If your child is subject to juvenile proceedings and it is possible the State will attempt to try them as an adult, it is vital to hire an attorney versed in the appropriate evidence used to mitigate the State’s statement of reasons, such as school records, psychiatric records, and other key evidence such as family witnesses and other members of the public.  The prosecutor has tremendous discretion in seeking a waiver, and this request cannot be taken lightly by any means.

If you or your child has been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. Failing to hire a defense attorney and putting your faith in a public defender could give you adverse results.

At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us immediately. At Hark & Hark, we represent clients for any case in any town in New Jersey including Barnegat Township, Barnegat Light Borough, Bay Head Borough, Beach Haven Borough, Beachwood Borough, Berkeley Township, Brick Township, Eagleswood Township, Harvey Cedars Borough, Island Heights Borough, Jackson Township, Lacey Township, Lakehurst Borough, Lakewood Township, Lavallette Borough, Little Egg Harbor Township, Long Beach Township, Manchester Township, Mantoloking Borough, Ocean Gate Borough, Ocean Township, Pine Beach Borough, Plumsted Township, Point Pleasant Beach Borough, Point Pleasant Borough, Seaside Heights Borough, Seaside Park Borough, Ship Bottom Borough, South Toms River Borough, Surf City Borough, Stafford Township, Toms River Township, and Tuckerton Borough.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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