STATE OF NEW JERSEY IN THE INTEREST OF E.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4517-08T44517-08T4

STATE OF NEW JERSEY IN

THE INTEREST OF E.H., R.C.

and R.D.,

Juveniles-Respondents.

________________________________

 

Submitted October 27, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part, Cape May County, Docket Nos. FJ-05-625-09, FJ-05-626-09, FJ-05-627-09, FJ-05-628-09, FJ-05-629-09, FJ-05-630-09, FJ-05-631-09, FJ-05-632-09, FJ-05-637-09, FJ-05-638-09, FJ-05-639-09, FJ-05-640-09, FJ-05-645-09, FJ-05-679-09, FJ-05-680-09, FJ-05-681-09, FJ-05-684-09, FJ-05-685-09 and FJ-05-686-09.

Robert L. Taylor, Cape May County Prosecutor, attorney for appellant

State of New Jersey (J. Vincent

Molitor, Assistant Prosecutor, of

counsel and on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent E.H. (Lon Taylor,

Assistant Deputy Public Defender, of

counsel and on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent R.C. (Alison

Perrone, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent R.D. (Michele

A. Adubato, Designated Counsel, on the

brief).

PER CURIAM

By leave granted, the State appeals from the Family Part's denial of its timely motions to prosecute E.H., R.C. and R.D., all sixteen years old or older, in the Law Division. The State alleged that on January 4, 2009, all three of the defendants engaged in conduct at 306 East Pine Street in Wildwood that would, if they were adults, constitute aggravated arson, N.J.S.A. 2C:17-1a, arson, N.J.S.A. 2C:17-1b, failure to report a fire, N.J.S.A. 2C:17-1c, burglary, N.J.S.A. 2C:18-2, and criminal mischief, N.J.S.A. 2C:17-3. R.D. was also charged with witness tampering, N.J.S.A. 2C:28-5, based upon his role in a subsequent simple assault of a person who provided information about the East Pine Street arson to the police.

We conclude that denial of the motions without affording the State an opportunity to address the deficiencies in the "statements of reasons" was inconsistent with the court's limited authority to review the prosecutor's decision. See State v. Dalglish, 86 N.J. 503, 509-10 (1981) (discussing the need to remand to the prosecutor for reconsideration); State ex rel. R.C., 351 N.J. Super. 248, 261 (App. Div. 2002) (discussing circumstances under which a procedural defect in a timely motion may be cured). Accordingly, we remand with direction for further proceedings in conformity with this opinion.

I

Because of the ages of these juveniles and the charge of aggravated arson and lesser offenses arising from or related to that serious offense, the State's motions for waiver of the Family Part's jurisdiction over E.H., R.D. and R.C. fell within the Attorney General's Juvenile Waiver Guidelines (March 14, 2000). N.J.S.A. 2A:4A-26e, f; see R.C., supra, 351 N.J. Super. at 254-55 & nn.2 & 3. Consequently, the County Prosecutor had "primary responsibility" for the waiver decisions. State v. J.M., 182 N.J. 402, 412 (2005); State v. Read, 397 N.J. Super. 598, 604 (App. Div.), certif. denied, 196 N.J. 85 (2008). The prosecutor was required to discharge his obligation in accordance with the statute and with the Guidelines developed by the Attorney General, at the Legislature's direction "to ensure the uniform application . . . throughout the State." N.J.S.A. 2A:4A-26f; R.C., supra, 351 N.J. Super. at 253-55.

The State's obligations were to: file timely motions or establish good cause for delay, N.J.S.A. 2A:4A-26d; establish probable cause supporting the charge of aggravated arson against each juvenile, N.J.S.A. 2A:4A-26a(2)(A); J.M., supra, 182 N.J. at 412; prepare "statements of reasons" addressing the seven factors identified in the Guidelines that the prosecutor "considered and deemed applicable," Guidelines, supra, at 7; R.C., supra, 351 N.J. Super. at 255; obtain approval of the motions and the "statements of reasons" from the County Prosecutor or his designee, Guidelines, supra, at 7; R.C., supra, 351 N.J. Super. at 261; and, submit the approved and timely motions, along with the accompanying statements of reasons for review by the court, R.C., supra, 351 N.J. Super. at 256-61; see J.M., supra, 182 N.J. at 419 (approving R.C.); Read, supra, 397 N.J. Super. at 605.

The prosecutor's decision was "subject to judicial review only for a 'patent and gross' abuse of discretion," the purpose of which is to guard against "arbitrary exercise of this discretionary authority." R.C., supra, 351 N.J. Super. at 260; J.M., supra, 182 N.J. at 412; Read, supra, 397 N.J. Super. at 604. Accordingly, the Family Part was required to grant the motions unless the juveniles "show[ed] by clear and convincing evidence that the [prosecutor's] decision constituted a patent and gross abuse of discretion." R.C., supra, 351 N.J. Super. at 251.

The motions denied by the trial court were narrower than the motions initially filed by the State and approved by the Cape May County Prosecutor's designee. After the "statements of reasons" in support of the initial motions were filed, the assistant prosecutor modified the motions to exclude additional charges against these juveniles involving less serious offenses committed between October 30, 2008 and January 6, 2009 on properties other than 306 East Pine Street. There was no indication that the modified motions were approved by the County Prosecutor or his designee, and the statements of reasons were not modified.

Despite the absence of evidence of the requisite approval, the trial court denied the motions on the merits. The court relied, in large part, on the fact that the "statements of reasons" included reasons no longer applicable in light of the amended motions.

II

The fire that gave rise to the charges was reported at about 9:30 p.m. on January 4, 2009. It was burning in an unoccupied rooming house at 306 East Pine Street in Wildwood. The rooming house is situated on a block where the structures on adjacent properties are close to one another; the building adjacent to 306 East Pine Street was a newly erected and still unoccupied condominium. Although the rooming house was vacant and scheduled for demolition, it had been kept locked. The fire, which had two points of origin in a room on the second floor, was extinguished by the fire department but not before the first, second and third floors of the rooming house were damaged.

The fire did not obliterate graffiti that had been left on the interior walls of the rooming house. The graffiti initials, sayings, writings and drawings was "tagging," which is markings left on property indicating the maker's association with the place. On previous occasions, the police had found the same "tags" in other properties in Wildwood that been entered and vandalized between October 30, 2008 and January 6, 2009.

Based upon information provided by an officer assigned to the Wildwood High School, the police questioned eighteen-year-old Justin Ort about the fire and the other property crimes. Ort, who was linked to and ultimately charged as an adult for crimes against the other Wildwood properties but not with any offense involving 306 East Pine Street, told the police what he had heard about the fire.

The police subsequently interviewed E.H., R.C., R.D. and several juveniles under the age of sixteen. R.C. admitted that he, E.H., R.D. and two younger juveniles, A.H. and S.J., entered the rooming house at 306 East Pine Street, without permission, to drink alcohol and smoke marijuana. According to R.C., they "all decided to burn the place down." They used a lighter, "marker," paper and rum to set a blanket or a towel on fire. R.C. had previously resided in the rooming house, and the room in which the fire was started was formerly his bedroom. R.C. also admitted involvement in the offenses committed in other Wildwood properties and named Ort, E.H., R.D., S.J. and A.A. as participants. All of these juveniles were interviewed, and they implicated themselves and one another in the offenses committed at 306 East Pine and elsewhere in Wildwood. Through the interviews, the police linked the juveniles and Ort with their individual graffiti "tags" and the "tags" to the various property crimes in Wildwood. E.H., R.C., R.D., A.H. and S.J., were charged with delinquent acts committed at 306 East Pine Street. Ort, E.H., R.C., R.D., S.J. and A.A. were charged with offenses committed at the other properties.

On the night of the fire, E.H. and R.D. were seventeen years old and R.C. was sixteen. E.H.'s eighteenth birthday was less than two weeks after the fire. Ort was eighteen, and S.J., A.H. and A.A. were all under the age of sixteen.

On January 9, 2009, the judge concluded that there was probable cause to believe that E.H., R.C., R.D., A.H. and S.J. all committed acts amounting to second- or third-degree arson of 306 East Pine Street. They were temporarily detained and released on January 23, 2009. The orders of release prohibited them from having contact with one another or Ort.

On February 2, 2009, R.D. and S.J. were arrested and charged with assaulting Ort in retaliation for his having provided information about the arson to the police. According to Ort and his sister, R.D. and S.J. approached Ort, accused him of providing information to the police, indicated that he would get what he deserved and followed him; S.J. punched Ort in the face.

On February 3, 2009, the State filed timely waiver motions seeking leave to prosecute E.H., R.C. and R.D. as adults. N.J.S.A. 2A:4A-26d; R. 5:22-2(a). The motion encompassed the following charges: E.H., R.C. and R.D.'s charges for aggravated arson, arson, failure to report a fire and criminal mischief arising from the 306 East Pine Street incident; R.D.'s charge of witness tampering based on his role in the assault of Ort; and E.H., R.C. and R.D.'s numerous charges for burglary, criminal mischief and theft arising from the various incidents involving other properties in Wildwood that occurred between October 30, 2008 and January 6, 2009.

In support of the State's motions, the assistant prosecutor served and filed a "statement of reasons" for each defendant. Those "statements of reasons" had been approved by the First Assistant Prosecutor, presumably the County Prosecutor's designee. See N.J.S.A. 2A:4A-26f; Guidelines, supra, at 7.

The Guidelines identify seven factors relevant to the prosecutorial decision. R.C., supra, 351 N.J. Super. at 255; Guidelines, supra, at 5-6. Those factors are: "(1) nature of the offense; (2) deterrence; (3) effect on co-defendants; (4) maximum sentence and length of time served; (5) prior record; (6) trial considerations; and (7) victim's input." R.C., supra, at 255.

In elaborating on considerations relevant to the "nature of the offense," the Guidelines direct the prosecutor to consider the "death of a victim"; "nature and circumstances of the act"; "role of the juvenile"; "grave and serious harm inflicted on the victim or the community"; "potential for grave and serious harm to the victim or the community"; and "use or possession of a weapon." Id. at 5. The prosecutor's "statements of reasons" discussed the "potential devastation" and risk of death inherent in a fire at 306 East Pine Street. In that regard, the statements reiterated observations to the same effect made by the judge at the time of the probable cause hearing. The statements also relied on the intentional nature of the conduct that started the fire the use of paper and alcohol to set the blanket afire; R.C.'s statement of a shared intent to burn the place down; and the fact that none of the juveniles reported the fire. Each statement of reasons also described the juvenile's involvement in burglaries and property crimes, apart from 306 East Pine Street, that involved at least twenty-five victims. In addition, the statement of reasons submitted in support of R.D.'s waiver included an account of the State's evidence of his role in the assault of Ort and the court order barring him from having any contact with Ort or with S.J., who punched Ort in R.D.'s presence.

The analysis of the "effect on co-defendants" was the same in each case. The Guidelines explain that the focus of this factor is "to avoid an injustice if similarly situated individuals are tried in separate trials." Id. at 5. The statements of reasons submitted included the following:

Effect on Co-Defendants - Seven (7) co-defendants are involved: one adult, Justin Ort, age 19, and six juveniles. Specific benefits would result from keeping the defendants together within the legal system, such as increased judicial efficiency in holding hearings on the same issues only once. An inherent benefit exists in avoiding separating the defendants into separate legal systems where judicial services would be duplicated. Inconsistent dispositions or verdicts could create the appearance of special treatment being afforded to certain defendants although they committed the same crimes together. The adult co-defendant would be handled in the adult criminal system although he is only slightly older than this juvenile and would be subject to different punishment.

The analysis of the other factors varied with respect to each defendant. In discussing "trial considerations," the statement included a brief summary of the evidence linking each individual to the 306 East Pine Street incident and the other property crimes. With respect to this factor, the Guidelines provide no guidance beyond instruction to consider "the likelihood of conviction and the potential need for a grand jury investigation." Id. at 6.

Portions of the various statements of reasons addressing the juveniles' prior records were specific to each defendant and unique. The Guidelines direct consideration of the juvenile's prior record, including: "the seriousness of any acts" resulting in prior adjudications of delinquency; prior adult convictions; involvement in a "gang"; and history of "physical violence toward others and the extent to which the juvenile may present a substantial danger to others." Ibid.

E.H., who had reached his eighteenth birthday by February 3, 2009, had been charged in eight complaints alleging acts of delinquency that, if he had been an adult, would constitute simple assault, criminal mischief, harassment, contempt, fighting and possession of a controlled dangerous substance. With the exception of the drug charge, which was dismissed after trial, the complaints were diverted. In addition, a pending complaint charged E.H. with harassment of a high school classmate by uttering a threat to get a gun and shoot him.

Complaints charging R.C. with acts that would amount to criminal mischief on September 14, 2006 and trespass on October 19 and November 3, 2006 had been diverted. On November 11, 2007, he was adjudicated delinquent on a charge of receiving stolen property, but disposition of that third-degree offense had been deferred for one year.

R.D. had no prior record of contact with the juvenile justice system.

With respect to deterrence, the Guidelines direct prosecutors to "consider the need for deterring the juvenile and others . . . ." Id. at 5. In discussing the need to deter R.D., who had no prior adjudications of juvenile complaints, the prosecutor observed that despite his confinement for two weeks on the arson charge and his release on the condition that he not contact any of his co-defendants, his participation in the subsequent assault of his co-defendant Ort indicated that he would not be rehabilitated in the juvenile system and that adult prosecution would be appropriate.

Relying upon R.C.'s deferred disposition for receiving stolen property, the prosecutor stated: "A priority should be placed on deterring this juvenile from continuing to commit crimes as an adult. In addition, general deterrence serves to provide a measure of crime prevention in the community by deterring those who would contemplate committing such acts."

The prosecutor discussed reasons for deterring E.H. with reference to his age and prior record. Noting that the eighteen year old had been involved with the juvenile justice system since 2005 and had not been deterred, the prosecutor determined that "[a] priority should be placed on deterring [E.H.] from continuing to commit crimes as an adult" and stressed the importance of general deterrence.

None of the statements of reasons included discussion of the "maximum sentence and length of time served" beyond a comparison of the maximum base terms available in the Family Part and Law Division. With respect to that factor, the Guidelines state:

The prosecutor shall consider and compare the maximum sentences that may be imposed under the juvenile or criminal codes and the amount of time likely to be served. Furthermore, the prosecutor may consider the likely effect on the amount of time served by the juvenile of enhanced sentencing provisions, such as the extended term provisions of the juvenile code contained in N.J.S.A. 2A:4A-44, the No Early Release Act, the Graves Act or any other mandatory or enhanced dispositions or sentences.

[Id. at 5-6.]

None of the statements of reasons addressed "victim's input." The response given in each statement was, "None at this time." The Guidelines direct: "If there is an identifiable victim, the prosecutor should confer with the victim or victim's family regarding the victim's input on the waiver decision. However, the waiver decision rests with the prosecutor, not the victim." Id. at 6.

Upon initial consideration of the motions, the court directed the State to file a brief "articulating the basis" for its decision to seek waiver of the charges involving properties other than the rooming house at 306 East Pine. In a responsive letter dated March 4, 2009, the assistant prosecutor narrowed the State's motions to eliminate charges involving properties other than 306 East Pine Street. The letter did not include any indication of approval by the First Assistant, and the State did not revise the "statements of reasons" to address the Guidelines' factors in light of the modified motions.

Nonetheless, the judge considered the applications on the merits and found them deficient. The court's denial was largely based on its determination that the sections of the statements of reasons addressing the "nature of the offense," "effect on co-defendants" and "trial considerations" included references to the property crimes other than those committed at 306 East Pine Street.

The judge observed:

A major difficulty for the State's positions as advanced in the statement of reasons for the waivers is that at the time the statement was composed, the State was asking for a waiver, not only on the aggravated arson charge against each defendant, but was also asking affirmatively for an order to waive 45 counts total of third degree burglary, third degree criminal mischief, third degree theft, and fourth degree criminal mischief. Now . . . that the State had dropped its motion to waive those 45 counts of non-enumerated charges, in my view the entire frame of reference for the written statement of reasons has correspondingly shrunk while the statement itself reads the same.

In addition to this criticism of the State's reliance on the numerous property crimes no longer at issue on these waiver motions, the judge found other problems with the statements of reasons. He faulted the State for addressing only the potential harm of this fire and not explaining why waiver would be appropriate in light of the fact that no injuries of that sort were caused. In addition, the judge noted Guidelines sub-factors relevant to "prior record" that were not applicable in this case. In the judge's view, the Guidelines envisioned waiver of juveniles whose "prior records" indicated that they were "hardened criminals." He concluded that the State's reasons were inadequate, especially those for R.D., who had no prior involvement in the juvenile justice system and might be amenable to rehabilitation if he received services available to other juveniles. He further found all of the statements of reasons deficient due to the State's failure to obtain victim input.

The judge concluded: "[I]t has been clearly and convincingly established that the Prosecutor's decision to waive [these juveniles] is so wide of the mark that fundamental fairness [and] justice require judicial intervention. I find that the decision to waive [re]flects a patent and gross abuse of discretion."

III

It was error to deny these apparently unapproved, modified waiver motions without determining whether the County Prosecutor's designee approved the modified motions and without giving the County Prosecutor an opportunity to correct the deficiencies in the statements of reasons that the court perceived. Well-established principles governing review for a "patent and gross" abuse of discretion required a prompt remand to the prosecutor in this case.

A

The deferential review required under a "patent and gross" abuse of discretion standard "preserve[s] prosecutorial discretion," recognizes the prosecutors' "fundamental responsibility . . . for deciding whom to prosecute" and, in this context, effectuates the Legislature's intent to augment not diminish prosecutors' authority to initiate criminal proceedings in lieu of delinquency proceedings in cases falling within the Guidelines. See Dalglish, supra, 86 N.J. at 509 (discussing reasons for deferential review of decisions involving pretrial intervention programs); R.C., supra, 351 N.J. Super. at 259-60 (discussing reasons for deferential review of waiver decision). It applies to prosecutorial decisions falling within the Guidelines because those decisions involve considerations characteristic of those "'made by prosecutors in their law enforcement capacity.'" R.C., supra, 351 N.J. Super. at 260 (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).

Where non-compliance with the Guidelines is at issue, a deviation from the procedural requirements or substantive standards developed by the Attorney General does not amount to a "patent and gross abuse" of discretion unless it is one that will clearly undermine or subvert the Legislature's goal of statewide uniformity that is clearly stated in N.J.S.A. 2A:4A-26f. See Dalglish, supra, 86 N.J. at 509 (explaining the distinction between an abuse and a "patent and gross abuse" of discretion) (quoting State v. Bender, 80 N.J. 84, 93 (1979)); R.C., supra, 351 N.J. Super. at 256-57 (discussing the defendant's right to review for compliance with the Guidelines that were developed to ensure uniformity); see also State v. Watkins, 193 N.J. 507, 520 (2008) (describing a "patent and gross abuse" of discretion as "a decision that 'has gone so wide of the mark sought to be accomplished . . . that fundamental fairness and justice require judicial intervention'" (emphasis added)) (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)).

The question for the court is whether waiver, on the balance of factors upon which the prosecutor relied, would be contrary to the "predominant views" of other prosecutors applying the Guidelines. See Dalglish, supra, 86 N.J. at 510; id. at 511. The court's view of the decision as harsh or unwise is not material, because the decision is not the court's to make. State v. DeMarco, 107 N.J. 562, 566-67 (1987).

Generally, when a court applying this standard of review identifies procedural or substantive deficiencies that affect a prosecutorial decision, a remand to "afford[] the prosecutor an opportunity to reconsider" in light of the court's decision is appropriate. See Dalglish, supra, 86 N.J. at 509-10. The court should override the prosecutor's determination and substitute its judgment without a remand only when it is clear that a remand "will serve no useful purpose." Id. at 510. This is not to say that remands for amplification of the prosecutor's "statement of reasons" should be routinely ordered, however.

Because the Legislature's central goals in vesting primary responsibility for these waiver decisions in the county prosecutors were "to conserve prosecutorial and judicial resources and to expedite criminal prosecutions," Read, supra, 397 N.J. Super. at 604; see R.C., supra, 351 N.J. Super. at 254, a remand would be inappropriate to correct a deficiency or irregularity that is not critical to the court's decision: when it is apparent that the decision rests solely upon an impermissible ground and must be deemed to be a product of a "patent and gross abuse of discretion," a denial without remand is warranted; conversely, when the prosecutor's decision is clearly justifiable and not capable of undermining statewide uniformity even when the defect is considered, then the motion should be granted. In either circumstance, a remand would serve no useful purpose and would improperly delay the decision.

B

In this case there was a deviation from the Guidelines' procedural requirements that warranted a remand to the prosecutor prior to a denial on the merits there was no indication that the County Prosecutor or his designee had approved the modified waiver motions. This procedural defect had the clear capacity to undermine the legislative goal of statewide uniformity. The Guidelines mandate for review and approval is not a technicality that can be overlooked; it is obviously an essential first step to achieving the Legislature's goal of statewide uniformity by ensuring that the responsibility for the waiver decision is exercised with the approval of the County Prosecutor and not by a variety of individual assistants.

Courts reviewing motions subject to the Guidelines should require some evidence of compliance with the review and approval procedure before ruling on the merits. See R.C., supra, 351 N.J. Super. at 262 (concluding that a certification from the assistant prosecutor attesting to the process of review and approval in that case, complied "with the essential objectives of N.J.S.A. 2A:4A-26f and the Guidelines"). If a postponement of the decision will not undermine the Legislature's goal of an expeditious decision or result in actual prejudice to the juvenile, the court should permit the State to obtain that essential approval.

Because there was no indication that the modified motions in this case were approved by the County Prosecutor or his designee, it was error to deny them on the merits. The harmfulness of that legal error is apparent in this case because the court's denial was, in large part, grounded on the court's proper determination that the approved "statements of reasons" filed with the initial motions included reasons that were not applicable to the modified motions. It is quite probable that if the trial court had remanded and indicated the irrelevance of several reasons offered by the prosecutor, then additional review by the County Prosecutor or his designee would have resulted in either a modification of the supporting "statements of reasons" or withdrawal of the modified motions. The principles governing review for a "patent and gross abuse" of discretion set forth above required that the responsible person in the prosecutor's office be given an opportunity to approve or disapprove the modified motions in light of the court's reasonable concerns.

Accordingly, we reverse and direct the court to permit the prosecutor to approve and submit amended "statements of reasons" that are wholly relevant to the modified waiver motions or, in the alternative, withdraw the motions.

C

Because we are remanding, we provide additional guidance. Preliminarily, nothing in the Guidelines suggests that waiver is limited to cases in which each of the seven factors and their various sub-factors is present and favors waiver. Generally, when factors relevant to a discretionary decision are enumerated, the decision-maker is expected to conduct a qualitative analysis of those that are relevant and to make a judgment dictated by their weight. See State v. Nwobu, 139 N.J. 236, 253-54 (1995); State v. Roth, 95 N.J. 334, 365-66 (1984).

There is no reason to conclude that a different approach was intended here. In fact, the Attorney General's intent to have prosecutors weigh the relevant factors is suggested by the Guidelines, which provide that the "statement shall include an account of all factors considered and deemed applicable" and reference both sentencing decisions and decisions to deny admission to PTI. Guidelines, supra, at 4, 7; R.C., supra, 351 N.J. Super. at 255.

Thus, courts should review the written "statement of reasons" to identify waiver decisions that are notable due to the potential impact on uniformity such as reliance on an impermissible factor; failure to address a factor that is relevant; or deviation from the Guidelines procedures that promotes that goal. Review should not be conducted with the purpose of detecting imperfections such as failure to explain why factors that have no relevance are inapplicable. As in the context of review of a prosecutor's decision on PTI, the "court's scrutiny" should generally be "limited to the reasons given by the prosecutor for his action," and "[a]bsent evidence to the contrary, it [should be] presumed that the prosecutor considered all relevant factors before rendering a decision." Dalglish, supra, 86 N.J. at 508-09 (internal quotations omitted); see R.C., supra, 351 N.J. Super. at 258 (noting that "a trial court's review of a prosecutor's statement of reasons to waive a juvenile complaint to adult court may be made summarily based on the court's review of the written statement and other pertinent documentary materials").

Accordingly, on remand the court should not deem the statements of reasons sufficiently likely to undermine uniformity because, for example, the conduct posed a serious risk of injury or death but did not actually cause that harm. Instead, the court should limit its "scrutiny" to the reasons stated by the prosecutor, presume that the prosecutor considered all relevant factors and focus on the ultimate question in review for a "patent and gross abuse" of this discretion whether the prosecutorial decision so deviates from the Guidelines that it would clearly subvert the goal of uniformity.

As noted above, because uniformity achieved through compliance with the Guidelines is the goal, factors not included in the Guidelines should not be considered. In this case, both the prosecutor and the court referred to reasons for waiver not identified in the Guidelines; we identify those irrelevant considerations to avoid repetition of that error.

First, N.J.S.A. 2A:4A-26e makes prospects for rehabilitation irrelevant in waiver cases that fall within the Guidelines, and probable rehabilitation is not a permissible consideration under the Guidelines. Read, supra, 397 N.J. Super. at 605-07.

Second, pursuant to N.J.S.A. 2A:4A-26a, the court's role in assessing the State's evidence is to determine whether there is probable cause in accordance with J.M., supra, 182 N.J. at 412-18; second-guessing of the strength of evidence in connection with review of the prosecutor's assessment of "trial considerations" would be inconsistent with the statutory limitation of the court's role. See also Read, supra, 397 N.J. Super. at 609-11 (discussing procedures that will follow in the Law Division if the Family Part waives its jurisdiction).

Third, "judicial economy" has no apparent relevance to the Guidelines factor addressing "effect on co-defendants"; the Guidelines explain that the consideration relevant to that factor is avoidance of "injustice" that might arise "if similarly situated culpable individuals are tried in separate trials." Id. at 5.

 
The order denying the motions is reversed, and the case is remanded to permit the trial court to set a schedule for prompt submissions and a prompt disposition of the modified motions in conformity with this opinion.

Deficiencies that may warrant remand rather than denial when consistent with the legislative goals of expeditious and efficient disposition include: "consideration of inappropriate factors"; "an incorrect evaluation of relevant factors"; failure to consider "relevant factors"; a statement of reasons that is "inadequate" or "fails to give a rational explanation." Id. at 509-10 (internal quotations and relevant citations omitted).

We agree with an unstated assumption that is implicit in the trial court's reasoning: where several of the Guidelines factors appear to militate against waiver, the prosecutor should explain why the weight of the factors that are present warrants adult prosecution. The Guidelines would be greatly improved if the Attorney General were to expressly articulate that approach, which is only inferable from the present text of the Guidelines.

To further illustrate, we note that judicial insistence upon a prosecutor obtaining input from the victims would be improper, because the Guidelines emphasize that the victim's view is not determinative and the Legislature has vested primary responsibility in the prosecutor.

(continued)

(continued)

2

A-4517-08T4

RECORD IMPOUNDED

January 4, 2010