STATE OF NEW JERSEY VS. J.V. (13-12-1177, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0101-16

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.V.,

Defendant-Appellant.
_______________________

Submitted December 5, 2018 – Decided February 5, 2019
Remanded by the Supreme Court June 11, 2020.
Resubmitted June 12, 2020 – Decided July 2, 2020
Remanded by the Supreme Court November 20, 2020.
Resubmitted November 23, 2020 – Decided July 28, 2021

Before Judges Ostrer and Mayer.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 13-12-1177.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Carol M. Henderson, Assistant Attorney
General, of counsel and on the brief).
PER CURIAM

Defendant was sixty-five days shy of his eighteenth birthday when he

robbed a man of his cell phone and stabbed him nine times in the head, neck and

shoulders. After waiver to adult court, defendant pleaded guilty to first-degree

attempted murder, see N.J.S.A. 2C:5-1, 11-3(a), and first-degree armed robbery,

see N.J.S.A. 2C:15-1(a)(1), (2). The trial court sentenced him to eighteen years,

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

In our initial decision, we determined that the new statute concerning a

juvenile's waiver to adult court, N.J.S.A. 2A:4A-26.1(c)(3), which was enacted

in 2015, see L. 2015, c. 89, § 1, should apply retroactively to defendant's case.

State v. J.V. (J.V. I), No. A-0101-16 (App. Div. Feb. 5, 2019) (slip op. at 14).

We remanded for the trial court to consider N.J.S.A. 2A:4A:26.1(c)(3)(e) and

(j), the new statute's standards pertaining to special education and mental health.

But the Supreme Court reversed our retroactivity holding and remanded for

consideration of defendant's remaining arguments. State v. J.V. (J.V. II), 242

N.J. 432, 444, 448 (2020). We then rejected defendant's sentencing arguments,

State v. J.V. (J.V. III.), No. A-0101-16 (App. Div. July 2, 2020) (slip op. at 6-

9). We assume the reader's familiarity with these prior decisions.

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 On November 20, 2020, the Supreme Court again returned this matter,

instructing us to consider "defendant's arguments originally raised under the

former waiver statute, N.J.S.A. 2A:4A-26." State v. J.V. (J.V. IV), 244 N.J.

400, 400 (2020).

Consequently, we must address POINT I(B) of defendant's initial

appellate brief:

EVEN UNDER N.J.S.A. 2A:4A-26, THE OLDER
WAIVER STATUTE, THE PROSECUTOR ABUSED
HER DISCRETION BY OVEREMPHASIZING THE
PURPORTED "PREMEDITATED" NATURE OF THE
VIOLENT ASSAULT.

In short, defendant contends that the prosecutor abused her discretion in

waiving jurisdiction to adult court because she lacked sufficient evidence to

conclude, in describing defendant's role and his harm to the victim, that

defendant's attack was "premeditated." We disagree and affirm.

I.

In 2013 (the year the prosecutor sought waiver), the Code of Juvenile

Justice provided that, where there is probable cause to believe that a juvenile

fourteen or older committed one or more specified delinquent acts (including

first-degree robbery and attempted murder), "the court shall . . . waive

jurisdiction" and refer the case to adult court upon the prosecutor's motion. See

3 A-0101-16
N.J.S.A. 2A:4A-26(a). Defendant does not dispute the fact that he was over

fourteen or that he committed the requisite act(s); instead, he challenges the

prosecutor's exercise of discretion in seeking waiver.

The prosecutor characterized defendant's crime in her written statement

of reasons seeking waiver of jurisdiction, which she prepared to comply with

the Attorney General's Juvenile Waiver Guidelines. Off. of the Att'y Gen.,

Juvenile Waiver Guidelines 7 (Mar. 14, 2000) [hereinafter Guidelines],

http://www.njdcj.org/agguide/pdfs/AG-Juvenile-Waiver-Guidelines.pdf. 1 She

began her statement by briefly describing the nature of the offense:

On May 12, 2013, at approximately 3:45 p.m., the
victim . . . was waiting for a train at the Passaic Train
Station. At that time, he was approached by juvenile,
[J.V.], who requested to borrow his cell phone. The
victim lent the juvenile his cell phone, and was
promptly informed by the juvenile that he did not intend
to return his phone. When the victim tried to retrieve
his phone, the juvenile pulled out a kitchen knife and
repeatedly stabbed the victim in the head, and
ultimately fled with the phone. Witnesses called the

1
The Attorney General promulgated the Guidelines pursuant to L. 1999, c. 373,
§ 1 (codified at N.J.S.A. 2A:4A-26(f), then repealed by L. 2015, c. 89, § 6) "to
ensure the uniform application" of the statute authorizing so-called
"prosecutorial" waivers — that is, cases in which "the authority to make the
waiver decision has been transferred from the judiciary to the county
prosecutor." Guidelines at 2; see also State in the Interest of V.A., 212 N.J. 1,
9-12 (2012) (describing source and substance of Guidelines). Under the new
waiver statute, the Attorney General also "may develop" guidelines to ensure
uniform application of the law. N.J.S.A. 2A:4A-26.1(c).

4 A-0101-16
 police, and followed the juvenile, and as a result, the
juvenile was apprehended near the train station;
covered with the victim's blood on his shirt, and with
the victim's cell phone in his possession. Upon
apprehension, the juvenile informed the police of the
location in which he dropped the knife, and ultimately
the bloody knife was recovered. The juvenile was
identified by two eyewitnesses, as well as the victim, as
the perpetrator of the attack. After being read his
Miranda rights, the juvenile admitted that he went to
the train station, armed with a black handled knife, with
a blade the length of his hand, with the intention of
robbing someone. He stated that his plan was to ask
someone if he could use their phone. He further
explained that he saw the victim waiting at the station
and proceeded to ask him if he could use his phone, and
that once he was given the phone to use, he informed
the victim that he was not going to return it. Finally,
the juvenile demonstrated how he stabbed the victim
around the right side of his face when the victim tried
to retrieve his phone.

The prosecutor then addressed each of the fifteen prescribed factors, see

Guidelines at 5-6, and determined that nine factors supported the State's waiver

motion: (1) "[n]ature and circumstances of crime"; (2) "[r]ole of juvenile"; (3)

"[g]rave and serious harm to victim or community"; (4) "[p]otential for grave

and serious harm to victim or community"; (5) "[u]se or possession of a

weapon"; (6) "[n]eed to deter juvenile and others from committing similar

crimes"; (7) "[n]eed for longer term of incarceration permissible for adults"; (8)

"[l]ikelihood of conviction or need for [g]rand [j]ury investigation"; and (9)

5 A-0101-16
"victim's request for waiver." Conversely, she determined that six factors did

not apply to defendant's case: (1) "[d]eath of victim"; (2) "[i]n cases with

codefendants, waiver would avoid injustice"; (3) "[s]eriousness of prior

adjudications of delinquency"; (4) "[p]rior waiver and conviction"; (5) "[g]ang

involvement"; and (6) "[h]istory of physical violence indicating substantial

danger to others."

Relevant to defendant's appeal, the prosecutor elaborated on the "[r]ole of

[the] juvenile," stating that defendant "carried out a premeditated, unprovoked,

vicious attack on an innocent stranger"; she also elaborated on "[g]rave and

serious harm to victim or community," stating that "[t]his premeditated,

unprovoked, vicious attack caused grave and serious physical and emotional

harm to the victim." With respect to this factor, the prosecutor also detailed the

serious nature of the victim's injuries, disability, and disfigurement.

At the waiver hearing, Passaic Police Detective Thomas L. Ragsdale

described the police investigation of the attack. He also described defendant's

custodial statement, which defendant gave in Spanish with a Spanish-speaking

officer's help. 2 The detective's testimony substantiated the prosecutor's

2
The statement was video-recorded and transcribed, but defendant has not
included the video or the transcript in the record on appeal.

6 A-0101-16
description (quoted above) of the offense and confirmed defendant's criminal

intent. Asked to discuss defendant's interview, the detective testified that

defendant admitted to taking "a kitchen knife" "with a blade at least the length

of his hand" and going "to the train station" "[t]o rob someone of . . . their cell

phone." He testified, too, that defendant claimed that the victim threw the first

punch, which defendant countered by stabbing the victim.

The detective also recounted the victim's version of the crime. According

to the victim, defendant asked the victim if he could use his phone. The victim

obliged. But not long after that, defendant said that he was going to keep the

phone, and he punched the victim. The victim defended himself as defendant

continued to punch him — but he soon realized that the punches were really

stabbings.

In the prosecutor's summation in support of waiver, she asserted that "this

was a premeditated attack, vicious attack, on an innocent man." Defense counsel

challenged neither the prosecutor's exercise of discretion in seeking waiver, nor

the presence of probable cause to charge defendant with what would be

attempted murder and first-degree robbery if committed by an adult. The court

credited Detective Ragsdale, recounted the evidence, and granted the State's

motion.

7 A-0101-16
 Many months later, in defendant's allocution supporting his guilty plea,

defendant described his criminal purpose. He said he went to the train station

"[t]o rob," and he took a kitchen knife with a four-inch blade to assist him in the

robbery. After he told the victim that he was going to keep his phone, the victim

said, "[G]ive it back to me, the phone is mine." Asked what happened next,

defendant testified, "Then I started stabbing him." Asked, "[A]s you were

stabbing him, what was your intent at that point?" defendant answered, "Kill

him."

II.

In reviewing an N.J.S.A. 2A:4A-26 prosecutorial waiver, we apply the

same abuse-of-discretion standard as the trial court. See State in the Interest of

V.A., 212 N.J. 1, 8-9 (2012); cf. State v. Maddocks, 80 N.J. 98, 104-05 (1979)

(clarifying that in PTI context, "[i]ssues concerning the propriety of the

prosecutor's consideration of a particular factor are akin to 'questions of law'"

and are thus subject to de novo review). We will grant a defendant's application

for relief if that defendant "show[s] clearly and convincingly" that the prosecutor

abused his or her discretion. V.A., 212 N.J. at 26.

In applying that standard of review, we assess whether the prosecutor's

statement of reasons demonstrates "that the prosecutor actually considered" the

8 A-0101-16
factors listed in the Guidelines; that is, we assess whether the statement

"provide[s] enough of a fact-based explanation to support the conclusion that

the factor supports waiver." Id. at 26, 28. We also heed the well-settled

definition of an abuse of discretion: a court abuses its discretion "by relying on

an impermissible basis, by relying upon irrelevant or inappropriate factors, by

failing to consider all relevant factors, or by making a clear error in judgment."

State v. S.N., 231 N.J. 497, 500 (2018).

Here, defendant contends that the prosecutor abused her discretion by

relying on the premeditated nature of the attack, "notwithstanding the absence

of clear evidence that J.V. actually premeditated the attack in the record." 3

Defendant argues that there were no proofs that he "intended to kill [the victim]

. . . in advance," or that he "planned to use the knife as a means of furthering the

robbery" as opposed to defending himself if his planned theft "went awry."

Because defendant did not bring "to the attention of the trial . . . court" his

claim that the prosecutor abused her discretion, we review the claim for plain

error. R. 2:10-2. But defendant's arguments are unavailing. We find no error,

let alone plain error.

3
Defendant asserts that, because the prosecutor could not have considered
defendant's plea-allocution admissions when she decided to seek the waiver, we
cannot consider those admissions in reviewing her decision.

9 A-0101-16
 Defendant misplaces the burden when he argues the prosecutor did not

support her factual findings by "clear evidence." Rather, defendant is the one

who must "show clearly and convincingly," see V.A., 212 N.J. at 26, that the

prosecutor abused her discretion in her premeditation finding. Defendant has

failed to surmount that hurdle.

Defendant evidently presumes that an attack is not premeditated unless a

significant amount of time elapses between formulating a plan to attack and the

attack itself. However, "premeditation" as an element of first-degree murder

under our pre-Code law meant "the conception of the design or plan to kill."

State v. Di Paolo, 34 N.J. 279, 294-95 (1961). 4 "No specific period of time

[was] required[,] but if the time is sufficient to fully and clearly conceive the

design to kill and purposely and deliberately execute it, the requirements of [the]

statute are satisfied." State v. Pierce, 4 N.J. 252, 267-68 (1950) (rejecting

contention that there was insufficient time to commit premeditated murder

where shooting occurred during a confrontation). 5

4
N.J.S.A. 2A:113-2 (1965) (repealed 1978) stated: "Murder which is
perpetrated by means of poison, or by lying in wait, or by any other kind of
willful, deliberate and premeditated killing . . . is murder in the first degree."
5
Other jurisdictions have viewed "premeditation" similarly. See, e.g., People
v. Donnelly, 210 P. 523, 523 (Cal. 1922) (quoting People v. Cotta, 49 Cal. 166,
168 (1874)) (noting that, for there to be "concurrence of will, deliberation, and

10 A-0101-16
 The evidence presented at the waiver hearing, including circumstantial

evidence, was sufficient for the prosecutor to conclude that defendant's attack

was "premeditated." Defendant armed himself with a knife as he set off for the

train station to steal a cell phone. While defendant posits that he may have only

carried the weapon for self-defense, the contrary conclusion — that he intended

to use it against his victim — is not unreasonable, given the nature of the weapon

and the way defendant actually used it. See id. at 267 (stating that "[t]he weapon

used," among other factors, "may support an inference of deliberation and

premeditation").

But even if defendant did not set out for the station with the intent to stab

his victim, he had time enough to premeditate his attack during the

confrontation. The victim stated that defendant threw the first punch after the

victim asked for his phone back. However, as the victim soon realized,

defendant did not actually throw punches — although he could have. He instead

chose to stab the victim. We do not rely on defendant's plea-allocution

premeditation," "no appreciable" amount of time need elapse "between the
intention to kill, and the act of killing"; the intent and the act "may be as
instantaneous as successive thoughts of the mind"); Matthew A. Pauley, Murder
by Premeditation, 36 Am. Crim. L. Rev. 145, 148-56 (1999) (discussing and
critiquing this approach).

11 A-0101-16
admissions, but those admissions only confirm the prosecutor's initial

characterization of the attack.

In sum, applying our deferential standard of review, we discern no basis

to disturb the prosecutor's exercise of discretion based on her characterization

of defendant's attack as "premeditated."

Affirmed.

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