NOT FOR PUBLICATION WITHOUT THE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.
2 A-0101-16
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.
12 A-0101-16