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                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-0223-18T4


                Argued March 27, 2019 – Decided June 14, 2019

                Before Judges Alvarez and Mawla.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Family Part, Monmouth County,
                Docket No. FJ-13-0312-18.

                Monica do Outeiro, Assistant Prosecutor, argued the
                cause for appellant State of New Jersey (Christopher J.
                Gramiccioni, Monmouth County Prosecutor, attorney;
                Monica do Outeiro, of counsel and on the brief).

                Mitchell J. Ansell argued the cause for respondent
                G.M.C. (Ansell Grimm & Aaron, attorneys; Mitchell J.
                Ansell, of counsel and on the brief).


       G.M.C. was sixteen years old when juvenile complaints were lodged

against him, charging him with, had they been brought against an adult, the

following offenses:                  first-degree aggravated sexual assault,  N.J.S.A.
2C:14-2(a)(7); second-degree sexual assault,  N.J.S.A. 2C:14-2(c)(1); third-

degree invasion of privacy (filming),  N.J.S.A. 2C:14-9(b)(1); third-degree

endangering the welfare of a child,  N.J.S.A. 2C:24-4(a)(1); and third-degree

invasion of privacy (disclosure of images),  N.J.S.A. 2C:14-9(c)(1).          The

Monmouth County Prosecutor's Office sought waiver of the juvenile to adult

court.     See  N.J.S.A. 2A:4A-26.1.    After reviewing additional information

provided by G.M.C., the Prosecutor's Office reiterated its intent and reasons for

the filing of a waiver motion. On July 30, 2018, after a several-day waiver

hearing, a family court judge over the course of approximately two hours and

sixty-five transcript pages denied waiver. The State's interlocutory appeal and

request for a stay was granted. We now reverse and remand.

         The charges arose from an encounter at a social event between G.M.C.

and the victim, whom for the sake of anonymity, we will refer to as Mary. She

too was sixteen. Along with approximately thirty adolescents, they attended a

pajama-themed party where alcohol was consumed. Parts of the basement where

the party took place were blocked off. After engaging in "heavy petting," as

described by the judge, G.M.C. and Mary walked into a closed off darkened

area. G.M.C., who had no prior delinquency history, was drunk. Mary was also

visibly drunk, her speech was slurred, and she stumbled as she walked. While

on the sofa, a group of boys sprayed Febreze on Mary's bottom and slapped it

with such force that the following day she had hand marks on her buttocks.

      Mary and G.M.C. had intercourse in the darkened room. G.M.C. filmed

himself penetrating Mary from behind on his cell phone, displaying her bare

torso, and her head hanging down. He forwarded the clip to several friends;

only one said it showed Mary's head hitting repeatedly against the wall. In the

days following the incident, G.M.C. sent the following text to his friends:

"[w]hen your first time having sex was rape."

      G.M.C. left the room when he was finished. Concerned about Mary's

well-being, some of his friends checked on her and immediately told Mary's

friends that she was ill. Mary was on the floor vomiting. She continued to be

sick until driven home by a friend's mother.

      The following morning, Mary discussed with her mother her fear that

sexual things had happened at the party. She did not understand how she could

have gotten bruise marks on her body or how her clothing had torn. Over the

course of several months, Mary learned that G.M.C.'s video had been circulated

among his friends and their mutual acquaintances, and she attempted to

communicate with him about it. She repeatedly told G.M.C. that she was more

interested in putting the episode behind her than anything else.

      G.M.C. denied having recorded the encounter and said that their friends

were lying. When Mary learned that G.M.C. had continued to disseminate the

clip, her mother contacted the authorities. At that point the family's focus was

the destruction of the film. Unfortunately, after securing clearance from his

sergeant, the first investigating officer urged G.M.C. and his friends to all delete

the video, which apparently they did.

      Mary and her family pursued criminal charges. In a memorandum dated

September 22, 2017, an assistant prosecutor at the Monmouth County

Prosecutor's Office recommended that this case be submitted for consideration

for involuntary waiver to the Law Division. The assistant prosecutor reviewed

the eleven statutory factors under  N.J.S.A. 2A:4A-26.1(c)(3) and concluded that

waiver was appropriate. Regarding the nature and circumstances of the offense,

the prosecutor noted:

                   The juvenile at issue in this case, [G.M.C.]
            engaged in vaginal intercourse with [Mary] while she
            was visibly intoxicated, physically helpless and unable
            to provide consent. During the course of this sexual
            assault, [G.M.C.] recorded a cell phone video of
            himself with [Mary] and, subsequently, forwarded that
            video to seven . . . other juveniles. The State has
            sufficient probable cause to charge [G.M.C.] with
            aggravated sexual assault and sexual assault pursuant
            to the new waiver statute, as well as invasion of privacy
            and endangering the welfare of a child. A conviction
            for aggravated sexual assault, sexual assault or

            endangering the welfare of a child would also result in
            compulsory registration as a sex-offender pursuant to
             N.J.S.A. 2C:7-2b(2). The circumstances of [G.M.C.'s]
            violation of [Mary's] person and privacy, as well as the
            seriousness of the charged offenses, warrants the
            elevation of this case via involuntary waiver to the adult
            criminal court.

The prosecutor found that the "offenses involved a sexual assault against

[Mary's] person and a gross violation of her privacy," and concluded that the

juvenile's actions were sophisticated and predatory. The prosecutor wrote:

                   [G.M.C.'s] conduct as it relates to the charged
            offenses was both sophisticated and predatory. He was
            aware of the off-limits areas in advance of the party. At
            the time he led [Mary] into the basement gym, she was
            visibly intoxicated and unable to walk without
            stumbling. For the duration of the assault, the lights in
            the gym remained off and the door was barred by a
            foosball table. Filming a cell phone video while
            committing the assault was a deliberate act of
            debasement. And, in the months that followed, he lied
            to [Mary] while simultaneously disseminating the video
            and unabashedly sharing the nature of his conduct
            therein. This was neither a childish misinterpretation
            of the situation, nor was it a misunderstanding.
            [G.M.C.'s] behavior was calculated and cruel. This
            level of criminal sophistication warrants the elevation
            of this case via involuntary waiver to the adult criminal

A December 7, 2017 addendum included the prosecutor's review of additional

material supplied by the juvenile.

      In denying waiver, the judge said:

      I still in my mind . . . distinguish between a sexual
assault and a rape. . . . [I]n my mind there is a

       . . . [T]here have been some, not many, but some
cases of sexual assault involving juveniles which in my
mind absolutely were the traditional case of rape, all
right, where there were generally two or more generally
males involved, either at gunpoint or weapon, clearly
manhandling a person into . . . an area where . . . there
was nobody around, sometime in an abandon[ed]
house, sometimes in an abandon[ed] shed, shack, and
just simply taking advantage of the person as well as
beating the person, threatening the person.

      . . . [T]he factual scenarios themselves were so
egregious, and it was those types of cases that the State
felt the need to waive, and generally they were
successful in their waiver[.]


       [The prosecutor's] . . . statement of facts . . . used
the term[s] "sophistication" and "predatory." . . .

       By looking at that information and considering
what I knew just in terms of the research going on, I
had . . . an issue. I was concerned. I wanted -- I was
curious as to how the State was going to support the use
of those terms.

      To get into the facts of the case, which I believe
is crucial, because this is where the . . . dispute -- the
abuse of discretion and the clear error of judgment
enters in.


       And it seems clear that this young lady, the
alleged victim here, and I call her the alleged victim
here . . . .

      . . . Some people would argue that, you know,
really what did . . . she drink and how could she
possibly have gotten as drunk as she says she was.
That's really not important.

     . . . I think it's an issue here, whether or not this
young lady was intoxicated to the point that she didn't
understand what was going on.

     . . . Her position really has been that she doesn't
remember much of what happened.


      . . . I really saw nothing that stood out to me that
would substantiate that she was led into the back. The
terms that were used were they walked hand in hand.

      Now, I'm not saying that this young lady was not
under the influence. I don't know whether she was
extremely intoxicated or not, but no question she was
under the influence.


       . . . I am bound in making my decision as to
arbitrariness or abuse of discretion by the totality of the


      It is extremely difficult for the [c]ourt to
understand the meaning of the term "sophistication"
and "predatory" and to find that what happened on this

day, even giving the State the benefit of the doubt as to
their version of what happened, that this was
sophisticated or predatory.


      But factually, it apparently didn't lead the young
lady to do anything else about this, at least as far as the
[c]ourt is aware, until the famous conversation, or
infamous conversation, with [H.V.].

       And there's no way that you can just downplay
the effect the wording of that conversation . . . .


       . . . [T]he State isolated that statement and held
onto that statement in determining what they . . . chose
to believe happened here.


       . . . We have no testimony of the young lady, but
we will at some point, I presume, have testimony of the
young lady explaining why she decided or went to her
mother who decided a couple of days later that we need
to go to the police and discuss criminal charges. There
wasn't a mention at that point of what type of criminal
charges, to just discuss criminal charges.

      . . . [I]t's not impossible for the [c]ourt to think
that once the video is deleted it's a lot easier to bring
the criminal charges. But I'm only . . . speculating,
okay. All I know is they waited until . . . they were
reasonably convinced that the video was deleted that
they decided to go to explore their options.

      After describing the sexually explicit text messages between G.M.C. and

his friends regarding the incident, the judge said:

               It really doesn't make a lot of difference because the
               whole paragraph to me is just a 16-year-old kid saying
               stupid crap to his friends.

                     He goes back and forth. I think it concerned the
               [c]ourt somewhat, "Boy, if I had a knife on me -- on me
               when I -- when I fucked her, I'd be the epitome of this
               show." I mean, . . . so childish, so stupid. But anything
               out of the ordinary for a 16-year-old . . . to be saying to
               boys, to his friends. And then, of course, he goes back
               to saying, "I fucked her, not raped her. Calm down. If
               you have the video, get rid of it."


                     . . . [D]o I believe that it shows in any way a
               calculation or cruelty on his part or sophistication or a
               predatory nature? No, I do not.


                     . . . [T]his young man comes from a good family
               who put him into an excellent school where he was
               doing extremely well.

                     . . . He is clearly a candidate for not just college
               but probably for a good college. His scores for college
               entry were very high.

The judge also detailed G.M.C.'s extracurricular activities, including being an

Eagle scout.

      The judge expressed concern that the prosecutor did not indicate in the

memorandum that she had explained to Mary and her mother the devastating

effect a waiver would have on G.M.C.'s life. He interpreted State in re V.A.,

 212 N.J. 1 (2012), to mean the prosecutor had to "focus clearly on both sides

here." The judge said it was important "to look at the children who you are

dealing with and determine where does the proof lie, where does the culpability

lie." By focusing only on the juvenile's culpability, the State had violated V.A.

He further opined that the State had to consider "some of those factors that are

set forth in V.A. which are not specifically set forth in the statute." Therefore,

the judge concluded that the waiver motion should be denied because the

prosecutor abused her discretion and incorrectly assessed the statutory factors.

      On appeal, the State raises only one issue. It contends that the judge erred

in denying the waiver motion because, in the process, he substituted his

judgment for that of the prosecutor.


      In a juvenile delinquency case before the Family Court, the State may seek

waiver of the juvenile to adult court without consent, by filing a motion for

referral and a written statement of reasons.  N.J.S.A. 2A:4A-26.1(a). Charges

cannot be transferred to the Law Division unless the State can establish: 1) the

juvenile was at least fifteen years of age at the time of the incident and 2)

probable cause exists that a certain enumerated crime was committed, including

aggravated sexual assault and sexual assault.  N.J.S.A. 2A:4A-26.1(c); see State

in re N.H.,  226 N.J. 242, 251 (2016). The court may still deny a referral motion,

however, "if it is clearly convinced that the prosecutor abused his [or her]

discretion" in considering the eleven factors listed in the statute.  N.J.S.A.

2A:4A-26.1(c)(3); R. 5:22-2.

      The prosecutor will ordinarily be found to have abused his or her

discretion if the decision: 1) fails to consider all relevant factors; 2) considered

irrelevant or inappropriate factors; or 3) "amounted to a clear error in judgment."

V.A.,  212 N.J. at 22 (quoting State v. Bender,  80 N.J. 84, 93 (1979)). Deference

should be accorded to the Family Division's expertise, common sense, and

experience in adjudicating such matters. State in re J.F.,  446 N.J. Super. 39, 52

(App. Div. 2016) (quoting State v. R.G.D.,  108 N.J. 1, 16 n.7 (1987)).

      Abuse of discretion review, however, does not mean a court "substitute[s]

its judgment for that of the prosecutor." V.A.,  212 N.J. at 8. Rather, it is limited

to ensure the prosecutor made an individualized decision about the juvenile that

was not arbitrary or otherwise beyond the scope of the statute. Ibid. Likewise,

cursory or conclusory statements "lacking in detail" will not suffice. Id. at 8-9.

The prosecutor's statement of reasons for waiver must refrain from "mere

regurgitation of the Guidelines' language" and reliance on incomplete

information, or information outside the bounds necessary for seeking waiver.

Id. at 28.

      The current waiver statute,  N.J.S.A. 2A:4A-26.1 was amended March 1,

2016. See N.H.,  226 N.J. at 248-49. As the Court said in N.H., it "appears to

have adopted parts of the Guidelines and case law." Id. at 250. The waiver

motion requires a written statement setting forth the facts the prosecutor

employed to assess the elements outlined in the statute, and "should apply the

factors to the individual juvenile and not simply mirror the statutory language

in a cursory fashion." Ibid.


      In this case, the prosecutor's memorandum considered, factor-by-factor,

each statutory element. It was undisputed that G.M.C. was fifteen years of age

or older at the time of the alleged delinquent act.  N.J.S.A. 2A:4A-26.1(c)(1).

Nor was it disputed that there was adequate probable cause. See  N.J.S.A.

2A:4A-26.1(c)(2). The delinquent act in question, if committed by an adult in

this case, would have been aggravated sexual assault and sexual assault, two of

the enumerated offenses that allow for waiver.

      In denying waiver, the trial court minutely considered the circumstances

of the offense, made an independent assessment of the juvenile's culpability, and

considered G.M.C.'s prior good character and "the input of the victim or the

victim's family."    N.J.S.A. 2A:4A-26.1(c)(3).      His consideration of these

elements, however, sounded as if he had conducted a bench trial on the charges

rather than neutrally reviewed the State's application.

      The likelihood of conviction was not for the judge to decide on a waiver

motion. His skeptical scrutiny of G.M.C.'s friend, who said the video depicted

Mary's head banging against a wall, the victim's credibility, and the motives and

conduct of the victim's family went beyond review of the prosecutor's decision

for abuse of discretion. The judge also accorded great weight to the fact that

G.M.C. might have reasonably believed that Mary wanted to engage in sexual

intercourse—without taking into consideration her level of intoxication—

essentially accepting G.M.C.'s defense theory as would the finder of fact at a

trial. Rather than focusing on whether the prosecutor's consideration of the

statutory factors supported the application, the judge decided the case for


      G.M.C. was sixteen at the time the event occurred. That the juvenile came

from a good family and had good test scores we assume would not condemn the

juveniles who do not come from good families and do not have good test scores

from withstanding waiver applications. Whether or not the State can prove its

case beyond a reasonable doubt is a question best left to another day.

      The State's memorandum addressed every statutory element.                The

prosecutor's decision was patently not one that the judge would have reached,

but that is not the test. The test is whether the State, which obviously believed

Mary's description of the events to the minimum level necessary for the filing

of charges, was mistaken in its judgment. The memorandum in support of

waiver did not consider any irrelevant factors, only those included in the statute.

The decision to seek waiver did not amount to a clear error in judgment. See

V.A.,  212 N.J. at 22.

      Reversed and remanded.


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