STATE OF NEW JERSEY VS. JONATHAN PEREZ (11-12-2992, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-5620-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN PEREZ,

Defendant-Appellant.
_________________________

Argued September 15, 2021 – Decided October 7, 2021

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 11-12-2992.

Before Judges Hoffman and Geiger.

Brian P. Keenan, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Brian P. Keenan, of counsel
and on the brief).

Debra B. Albuquerque, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Cary Shill, Acting Atlantic County
Prosecutor, attorney; John J. Lafferty, IV, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM

Defendant Jonathan Perez appeals from a June 20, 2019 Family Part order

granting an involuntary waiver from the Family Part to the Law Division and a

June 28, 2019 judgment imposing a twenty-four-year sentence subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on his conviction for first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). We affirm.

I.

We recounted the underlying facts in State v. Perez, No. A-3942-16 (App.

Div. Nov. 26, 2018), certif. denied, State v. Perez, 238 N.J. 379 (2019).

At approximately 2:00 a.m. on July 29, 2011, patrol
units of the Atlantic City Police Department were
flagged down and also summoned by a 911 call
regarding a man who was assaulted and lying on the
ground. The responding officers found the victim, who
exhibited substantial facial injuries, lying unconscious
on the sidewalk, in a pool of blood. Medical assistance
was requested and the victim, who remained
unconscious and unresponsive, was transported to the
hospital by ambulance.

....

[A] surveillance video of the incident depicted an
individual sitting on a milk crate. . . . . The victim is hit
by a milk crate and falls. Defendant is shown hitting
[and] . . . picking the victim up, throwing him to the
sidewalk, and stomping on him. Defendant then rolls
the victim over, takes his wallet, and runs off.

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 [Ibid. (slip op. at 3-5).]

The victim died at the hospital three days later. Id. at 6. The autopsy report

"list[ed] the cause of death as blunt head trauma and the manner of death as a

homicide. The preliminary autopsy findings were the victim sustained fractures

of two ribs, his occipital bone, and facial bones; subdural hemorrhages; a

subarachnoid hemorrhage; a parenchymal hemorrhage"; and other injuries. Ibid.

The assault took place just fifteen days before defendant's eighteenth

birthday. Defendant was charged with acts that, if committed by an adult, would

have constituted first-degree murder, N.J.S.A. 2C:11-3(a)(2); first-degree felony

murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1(a);

second-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(d).

The State moved to waive jurisdiction to the Law Division under the

former waiver statute, N.J.S.A. 2A:4A-26. It noted defendant faced a maximum

thirty-year to life NERA term if convicted in adult court, but a maximum

indeterminate twenty-year term in the Family Part. The State did not offer a

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plea to juvenile delinquency charges to defendant. Defendant did not introduce

evidence or present witnesses at the waiver hearing.

Applying N.J.S.A. 2A:4A-26, the judge noted the State was only required

to show there was probable cause that defendant committed an offense rendering

him eligible for waiver and that he was at least sixteen years old when the

offenses were committed. Perez, (slip op. at 3). The judge found probable cause

for the charges and that defendant was seventeen years old when the incident

occurred, and ordered jurisdiction waived to the Law Division. Id. at 6-7.

Over the course of several years, defendant was found not competent to

stand trial. Ultimately, in October 2016, defendant was deemed competent to

stand trial.

In February 2017, defendant pled guilty to an amended charge of first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), in exchange for a

recommended twenty-four-year NERA term and dismissal of the remaining

charges. The plea agreement preserved defendant's right to appeal the juvenile

waiver and competency to stand trial rulings.

Defendant was twenty-three years old when sentenced. He had no prior

adjudications of juvenile delinquency or criminal convictions. The judge found

aggravating factors one (offense committed in an especially heinous, cruel, or

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depraved manner), N.J.S.A. 2C:44-1(a)(1); three (risk defendant will commit

another offense), N.J.S.A. 2C:44-1(a)(3); nine (need for deterrence), N.J.S.A.

2C:44-1(a)(9); and mitigating factor seven (defendant has no history of prior

delinquency or criminal activity), N.J.S.A. 2C:44-1(b)(7). Defendant was

sentenced in accordance with the plea agreement and received 2072 days credit

for time served.

Defendant appealed the involuntary waiver, the competency to stand trial

ruling, and his sentence. We held that the State established probable cause for

the charges. Perez, (slip op. at 9, 20 n.1). We affirmed the ruling that defendant

was competent to stand trial. Id. at 22-23.

As to involuntary waiver, we noted that the Family Part judge did not

reach or decide whether the prosecutor's decision to waive jurisdiction to the

Law Division complied with the substantive requirements of the Attorney

General's Juvenile Waiver Guidelines (March 14, 2000) and "whether it

constituted a patent and gross abuse of discretion." Id. at 20 (quoting State ex

rel. D.Y., 398 N.J. Super. 128, 132 (App. Div. 2008)). Because the case was on

direct appeal and the revised waiver statute, N.J.S.A. 2A:4A-26.1, is afforded

pipeline retroactivity, id. at 20 (citing State ex rel. N.H., 226 N.J. 242, 255

(2016)), we remanded the case to the Family Part to make those determinations,

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including consideration of the factors set forth in N.J.S.A. 2A:4A-26.1(c)(3).

Id. at 20-21. The prosecutor was permitted "to submit a revised statement of

reasons for the waiver addressing each of the factors" enumerated in N.J.S.A.

2A:4A-26.1(c)(3). Id. at 21. We did not reach defendant's sentencing

arguments. Id. at 24.

On remand, the prosecutor submitted a revised statement of reasons

addressing the following statutory factors "to be considered by the prosecutor

when deciding whether to seek 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;

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 (h) If the juvenile previously served a custodial
disposition in a State juvenile facility operated by the
Juvenile Justice Commission, 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).]

As to factor (a), the nature and circumstances of the offenses charged, the

prosecutor recounted the facts of the robbery and homicide and noted defendant

was charged with murder, which weighed heavily in favor of waiver.

As to factor (b), whether the offense was against a person or property, the

prosecutor described the gruesome nature of the offenses committed against a

person, which weighed heavily in favor of waiver.

As to factor (c), the degree of the juvenile’s culpability, the prosecutor

stated defendant was "solely responsible" for the victim's death, which weighed

heavily in favor of waiver.

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 As to factor (d), the age and maturity of the juvenile, the prosecutor noted

defendant was only two weeks shy of his eighteenth birthday when he fatally

assaulted the victim, and submitted this weighed heavily in favor of waiver.

As to factor (e), classification that the juvenile is eligible for special

education, the prosecutor acknowledged defendant "came from an intact,

supportive family" and attended special education classes. While defendant

reportedly "had below average academic functioning," the prosecutor

emphasized that the "reports were prepared while [defendant] was feigning

incompetence." The prosecutor submitted this weighed in favor of waiver.

As to factor (f), the degree of criminal sophistication exhibited by the

juvenile, the prosecutor noted defendant "brutally and viciously attacked [the]

victim" and was the "sole attacker," which weighed heavily in favor of waiver.

As to factor (g), the nature and extent of any prior adjudications of

delinquency and the dispositions imposed, the prosecutor noted defendant had

four juvenile arrests that were either referred to an intake officer, resulted in a

deferred disposition and eventual dismissal, or handled by a juvenile referee.

The prosecutor found defendant's "escalating criminal activity weigh[ed]

heavily in favor of waiver."

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 As to factor (h), whether the juvenile previously served a custodial

disposition in a State juvenile facility operated by the Juvenile Justice

Commission, the prosecutor acknowledged this factor did not favor waiver as

defendant had not served a custodial disposition.

As to factor (i), the current or prior involvement of the juvenile with child

welfare agencies, the prosecutor noted defendant reported that the Division of

Youth and Family Services (DYFS) was involved with his family for a few years

when he was twelve, relating to problems at school and truancy. However,

"DYFS involvement is not mentioned in any other record, and other reports have

indicated that his family had no DYFS involvement[]. Accordingly, no

materials have been provided to the [S]tate to indicate that he had involvement

with child welfare agencies."

As to factor (j), evidence of mental health concerns, substance abuse, or

emotional instability of the juvenile, the prosecutor contended that defendant

"feigned incompetence" to stand trial. Jonathan H. Mack, Psy.D., a clinical

neuropsychologist, opined defendant was likely "exaggerating his adaptive

functioning difficulties" during testing "to support his claim of incompetency,"

and noted defendant's low IQ scores were invalid due to his malingering. The

prosecutor contended defendant's "admission that he 'malingered and falsified

A-5620-18
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his mental issues,' in order to get a better plea offer," demonstrated "a higher

degree of understanding and comprehension." Dr. Mack found him competent

to stand trial.

Dr. Joanna Bajgier was defendant's treating psychiatrist. Her September

18, 2015 report noted defendant was able to speak Spanish and English and was

"alert" and "fully oriented" during the evaluation. She found his thought

processes were goal directed and his speech was normal. Defendant denied

having hallucinations and did not express any delusional thought content. As a

result of defendant's statements to Dr. Bajgier and admission to a corrections

officer that he lied about being mentally ill, his antipsychotic medication was

discontinued. Dr. Bajgier found defendant competent to stand trial.

The prosecutor submitted these facts weighed heavily in favor of waiver

but did not address defendant's substance abuse.

As to factor (k), the input of the victim or victim’s family, the prosecutor

noted the deceased victim was seventy-one years old when brutally attacked.

The prosecutor did not provide any input from the victim's family.

On June 20, 2019, the court conducted the waiver motion rehearing.

Counsel relied on the written submission and numerous exhibits. The exhibits

included the expert reports relating to the competency to stand trial motion. No

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witnesses testified during the rehearing. The remand judge issued a lengthy oral

decision granting involuntary waiver under N.J.S.A. 2A:4A-26.1. She

recounted the evidence adduced during the hearing to determine defendant's

competency to stand trial and relied on the motion judge's findings, including

the credibility and weight to be given to the expert reports. The judge also

performed a comprehensive review of the prosecutor's revised statement of

reasons.

As to factor (a), the judge described the nature and circumstances of the

charges that defendant faced and noted "[t]he video depicted a single assailant."

(Defendant did not object to the State's position as to factor (a). The judge found

the prosecutor's position was adequately set forth and accurate.

As to factor (b), the judge noted that defendant did not take issue with the

prosecutor's position that the offenses were committed against an identified

person, the murder charge is the most serious offense in the criminal code, and

this factor weighed heavily in favor of waiver.

As to factor (c), the degree of defendant's culpability, the judge again

noted that the video depicted defendant as the sole assailant who caused the

victim's death. Defendant did not take issue with this factor weighing heavily

in favor of waiver.

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 As to factor (d), defendant's age and maturity, the judge noted that

defendant was only two weeks shy of his eighteenth birthday on the date of the

incident. Defendant objected to the State relying solely on his chronological

age without considering his maturity level. Defendant argued he only had a

ninth-grade education and that there were past reports of low IQ, illiteracy, lack

of social sophistication, and limited receptive and expressive ability. The State

countered that Dr. Bajgier found defendant understood the court system and had

admitted to playing the system and recounted her other findings. The judge

found defendant was over the age of fourteen when the offenses were committed.

See N.J.S.A. 2A:4A-26.1(c)(1). She also found no information had "been

provided to rebut that [defendant] is mature enough to understand the

seriousness of the criminal act," "what the circumstances were, the harm he was

causing" to the victim, "and the seriousness of the offense. . . ." The judge also

found this factor was adequately considered by the prosecutor.

As to factor (e), classification for special education, the judge noted the

prosecutor acknowledged that defendant attended special education classes and

that Dr. Charles Kaska, a psychiatrist, opined that defendant had below average

academic functioning. Defendant objected to the prosecutor's conclusion that

the following factors weighed in favor of waiver: defendant's special education,

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history of cognitive delay, and diagnosis of an unspecified learning disability.

Defendant further contended that his feigning incompetence should be

disregarded under this factor. The State countered that Dr. Mack found it likely

that defendant exaggerated his adaptive functioning difficulties as part of his

malingering to support his claim of incompetency.

The judge concluded the prosecutor gave individualized attention to th is

factor and that it weighed in favor of waiver. The judge found that although

defendant "had a low functioning ability [and] was in special education classes

for some time, the extent to which [defendant's] mental health issues or

classifications in school affected his ability to act on July 11th is not clear." She

noted that defendant's ability to malinger seemed to indicate "a higher degree of

understanding and comprehension."

As to factor (f), the juvenile's degree of criminal sophistication, defendant

did not take issue with the prosecutor's position that the defendant's conduct as

the sole attacker weighed heavily in favor of waiver.

As to factor (g), the nature and extent of any prior history, defendant did

not contend the prosecutor's recitation of defendant's juvenile history was

inaccurate.

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 As to factor (h), the court noted the prosecutor acknowledged that

defendant had not served a custodial disposition in a state juvenile facility.

As to factor (i), current or prior involvement with child welfare agencies,

the judge noted that defendant self-reported (to Dr. Mack) that DYFS was

involved with his family for a few years beginning when he about twelve years

old, and this was secondary to his truancy from school. DYFS involvement was

not indicated in any records and other reports indicated his family had no DYFS

involvement. The prosecutor claimed this weighed in favor of waiver. The

defendant argued the prosecutor ignored this information. The judge explained

that the only information regarding child welfare agency involvement was what

defendant self-reported, however incomplete, and that the prosecutor did not

ignore this information. The judge concluded that while there may have been

some DYFS involvement, it did not weigh against waiver.

As to factor (j), evidence of mental health concerns, substance abuse or

emotional instability, the judge noted Dr. Mack opined that defendant was

feigning incompetency to avoid trial, exaggerating his adaptive functioning

difficulties during testing, and malingering. The prosecutor asserted this

weighed strongly in favor of waiver. Defendant contended the prosecutor

ignored that defendant had been diagnosed with substance abuse (cannabis abuse

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and alcohol dependence) and was under the influence of alcohol, cocaine, and

psychiatric medications when he committed the offenses. Defendant reported

that he had been drinking alcohol from an early age, smoking marijuana, using

cocaine on a regular basis, and admitted to selling drugs to support his habit.

The judge noted the prosecutor did not address the substance abuse.

Nevertheless, the judge discounted the self-reported substance abuse because

defendant was malingering.

As to factor (k), identifiable victim and input of the victim's family,

defendant does not take issue with there being an identified victim and the

absence of family input.

Considering the prosecutor's statement of reasons as a whole, the judge

found that except for factor (j), the prosecutor considered and addressed each

statutory factor and did not abuse his discretion in applying for waiver. Coupled

with the finding of probable cause for the charges and defendant's age, the judge

granted the waiver to the law Division. This appeal followed.

In this appeal, defendant argues:

POINT I

THE PROSECUTOR'S DECISION TO WAIVE
[DEFENDANT] TO ADULT COURT WAS AN
ABUSE OF DISCRETION BECAUSE THE
PROSECUTOR CONSIDERED INAPPROPRIATE

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FACTORS, FAILED TO CONSIDER RELEVANT
FACTORS, AND THE DECISION CONSTITUTED A
CLEAR ERROR IN JUDGMENT.

A. The Prosecutor Abused Her Discretion by
Improperly Ignoring Ample Credible Evidence in the
Record that [Defendant] was Classified as Eligible for
Special Education N.J.S.A. 2A:4A-26.1(c)(3)(e), and
Improperly Concluding that this Factor Weighed in
Favor of Waiver.

B. The Prosecutor's Dismissal of an Abundance of
Evidence Regarding [Defendant's] Substance Abuse
and Mental Health Concerns and Clear Error in
Judgement in Determining that Factor (j) Weighed in
Favor of Waiver, was an Abuse of Discretion.

C. The Prosecutor Abused Her Discretion in Finding
that Because There was no Documented History of
[Defendant's] Involvement with a Child Welfare
Agency, that the Corresponding Factor, N.J.S.A.
2A:4A-26.1(c)(3)(i), Weighed in Favor of Waiver to
Adult Court.

D. The State's Improper Consideration of Two
Dismissed Arrests and a Juvenile Diversion in Finding
That Factor (g), which Requires Consideration of Prior
"Adjudications" and "Dispositions," Weighs Heavily in
Favor of Waiver, when [defendant] has no Prior
Adjudications or Dispositions, Constitutes an Abuse of
Discretion and is a Violation of State v. K.S., 220 N.J.
N.J. 190 (2015).

E. Because a spontaneous attack by a juvenile under
the influence does not evince criminal sophistication,
the prosecutor abused her discretion in finding factor
(f), the "[d]egree of criminal sophistication exhibited

A-5620-18
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by the juvenile," N.J.S.A. 2A:4A-26.1, weighed heavily
in favor of waiver.

F. The Prosecutor's Failure, When Evaluating
[defendant's] Degree of Culpability, to Consider
Evidence in the Record Showing Possible Coercion by
Other, More Mature Individuals, and the Fact that
[defendant] was Under the Influence of Alcohol and
Drugs at the Time of the Incident, Constitutes an Abuse
of Discretion.

G. Finding that [Defendant's] Age and Maturity,
N.J.S.A. 2A:4A-26.1(c)(3)(d), Weighed in Favor of
Waiver Based on His Chronological Age and One
Doctor's Malingering Diagnosis, when Facts Pertaining
to his Mental Status and Intellectual Ability Prove
Otherwise, was an Abuse of Discretion.

POINT II

SHOULD THIS COURT AFFIRM, THIS MATTER
MUST BE REMANDED TO THE TRIAL COURT
FOR A HEARING PURSUANT TO STATE V.
KOVACK, 91 N.J. 476 (1982).

POINT III

[DEFENDANT'S] TWENTY-FOUR-YEAR NERA
SENTENCE, INCURRED FOR AN OFFENSE
COMMITTED WHILE A JUVENILE, MUST BE
VACATED AND THE MATTER REMANDED
BECAUSE THE COURT FAILED TO CONSIDER
HIS AGE, ATTENDANT CIRCUMSTANCES, AND
MENTAL ILLNESS AND IMPROPERLY FOUND
NON-STATUTORY AGGRAVATING FACTORS.

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 II.

"[W]aiver to the adult court is the single most serious act that the juvenile

court can perform." State v. R.G.D., 108 N.J. 1, 4 (1987) (citation omitted).

Upon conviction, a juvenile waived to adult court "will be exposed to much more

severe punitive sanctions, often including lengthy prison terms and mandatory

periods of parole ineligibility. In addition, the offender will no longer be eligible

for the special programs available to juveniles." State in Int. of Z.S., 464 N.J.

Super. 507, 513 (App. Div. 2020).

In March 2000, the Attorney General adopted Guidelines (the AG

Guidelines) pursuant to N.J.S.A. 2A:4A-26(f), which

instructed prosecutors seeking to file a juvenile waiver
motion to consider: (1) the nature of the offense; (2)
the need for deterrence; (3) the effect of the waiver on
the prosecution of any co-defendants; (4) the maximum
sentence and length of time served; (5) the juvenile's
prior record; (6) trial considerations, such as the
likelihood of conviction and the potential need for a
grand jury investigation; and (7) the victim's input.

[State v. J.V., 242 N.J. 432, 437 (2020).]

The AG Guidelines "directed prosecutors filing a waiver motion to include a

statement of reasons addressing the prosecution's consideration and the

applicability of the factors." Ibid. Submission of the written statement of

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reasons enables judges to determine whether the reasons seeking waiver were

arbitrary. State v. J.M., 182 N.J. 402, 419 (2005)).

In 2015, the Legislature enacted major revisions to the waiver statute,

effective March 1, 2016. L. 2015, c. 89, § 1. The revised statute "requires the

waiver motion to be 'accompanied by a written statement of reasons' from the

prosecutor 'clearly setting forth the facts used in assessing all [of the enumerated

waiver] factors . . . together with an explanation as to how evaluation of those

facts supports waiver for each particular juvenile.'" Z.S., 464 N.J. Super. at 516

(quoting N.J.S.A. 2A:4A-26.1(a)). N.J.S.A. 2A:4A-26.1(c)(3) enumerates

eleven factors to be considered by the prosecutor "in deciding whether to seek a

waiver."

"The revised statute does continue the strong presumption in favor of

waiver for certain juveniles who commit serious acts and maintains the

associated 'heavy burden' on the juvenile to defeat a waiver motion." Z.S., 464

N.J. Super. at 519-20 (quoting R.G.D., 108 N.J. at 12).

Our standard of review of the prosecutor's waiver decision is deferential.

Ibid. "The trial court should uphold the decision unless it is 'clearly convinced

that the prosecutor abused his discretion in considering' the enumerated statutory

factors." Id. at 520 (quoting N.J.S.A. 2A:4A-26.1(c)(3)).

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 We first address the sufficiency of the prosecutor's revised statement of

reasons for defendant's waiver to the Law Division. "[T]he State has an

'affirmative obligation to show that it assessed all the [statutory] factors'

concerning waiver, and the court must review this assessment." Id. at 533

(quoting State in Int. of N.H., 226 N.J. 242, 251 (2016)). In doing so, the State

must "lay[] out the facts it relied on to assess the eleven statutory factors,

'together with an explanation as to how evaluation of those facts support waiver

for each particular juvenile.'" Ibid. (quoting N.J.S.A. 2A:4A-26.1(a)). "The

statement of reasons should apply the factors to the individual juvenile and not

simply mirror the statutory language in a cursory manner." Ibid. (quoting N.H.,

226 N.J. at 250). It "cannot be incomplete or superficial" and should not "ignore

or gloss over highly relevant information." Z.S., 464 N.J. Super. at 534. "The

written statement must reasonably address the content of the defense material

and explain why it is flawed, inadequately supported, internally contradictory,

or otherwise unpersuasive." Ibid.

Based on our careful review of the record, we discern no abuse of

discretion warranting our intervention. Defendant did not demonstrate that the

prosecutor clearly and convincingly abused his discretion in considering the

statutory factors when considered in their entirety. Although the prosecutor did

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not discuss defendant's self-reported substance abuse (factor (j)), fully consider

his eligibility for special education (factor (e)), and gave no weight to

defendant's self-reported involvement with DYFS due to school problems and

truancy (factor (i)), the evidence submitted regarding those factors was minimal

and uncorroborated. The prosecutor fully considered and gave appropriate

weight to the other factors.

Without any supporting records, the self-reported DYFS involvement at

ages twelve to fourteen relating to truancy and problems at school would have

limited impact in a waiver analysis relating to a homicide that occurred years

later. Similarly, in the absence of any substance abuse evaluation

recommending inpatient or intensive outpatient treatment, defendant's self-

reported abuse of alcohol, marijuana, and cocaine would also have limited value,

particularly given defendant's malingering.

Moreover, even if factors (e), (i), and (j) weighed to some degree against

waiver, in balance, we are convinced that the statutory factors clearly favored

waiver to the Law Division. A "waiver analysis is not a counting exercise. Some

factors can have more importance or probative strength than others." Id. at 542.

As we noted in Z.S., "the severity of the charged offense may often be, quite

logically, a very weighty consideration in favor of waiver. . . ." Id. at 538 n.12.

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We are mindful that defendant was charged with murder, the most serious

offense in the Criminal Code. Defendant brutally assaulted the seventy-one-

year-old victim, rendering him unconscious and causing his death three days

later. Defendant inflicted severe head injuries by repeatedly striking and

stomping the victim's head. The assault was unprovoked, and the aged victim

offered no resistance. The fatal beating was inflicted out by defendant alone

when he was just fifteen days shy of his eighteenth birthday.

Additionally, the judge who ultimately determined that defendant was

competent to stand trial "gave more weight to the conclusions reached by Dr.

Bajgieer and Dr. Mack, finding them to be 'much more thorough and persuasive

than that of Dr. Kaska.'" Perez, (slip op. at 23-24). We concluded that those

findings were fully supported by the record. Id. at 24. Dr. Mack diagnosed

defendant with malingering. He found that while defendant may have learning

disabilities, "these are indeterminate without further testing" and such testing

was "not possible at this time . . . as [defendant] is clearly malingering." Dr.

Mack also opined there was "no definitive evidence" that defendant "has Mild

Intellectual Disability/Mild Mental Retardation, as opined by Dr. Kaska." Dr.

Mack found that the test data suggested that defendant's IQ test was invalid due

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to his malingering. He also questioned the validity of "any other measures of

cognitive effort or symptom reporting response bias . . . . "

The facts in Z.S. are distinguishable. Unlike the juvenile in Z.S.,

defendant did not produce an Individual Education Plan or any other school

records. He relied solely on self-reporting. Moreover, defendant was not

declared disabled and eligible for Supplemental Social Security Income (SSI).

As to the involvement of DYFS, defendant did not produce any DYFS

reports or testimony regarding the nature and extent of the Division's

involvement. In contrast to Z.S., there is no evidence in the record that

defendant was physically abused as a child. Defendant did not suffer untreated

sexual molestation at a young age. Importantly, defendant was not charged with

offenses directly related to any prior abuse.

The record supports the Family Part judge's detailed findings and

conclusions, and we are satisfied there was no abuse of discretion or denial of

justice under the law. We thus discern no basis to overturn her decision.

III.

Defendant argues that if we affirm the involuntary waiver, the case must

be remanded for a hearing pursuant to State v. Kovack, 91 N.J. 476 (1982). This

argument lacks sufficient merit to warrant extended discussion in this opinion.

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R. 2:11-3(e)(2). The plea forms and plea hearing transcript refute any claim that

defendant was not made fully aware of the recommended sentence, including

the parole ineligibility consequences of his plea under NERA. The imposition

of a twenty-four-year NERA term was not "beyond defendant's reasonable

expectations." Kovack, 91 N.J. at 483. A Kovack hearing is unnecessary where,

as here, the record demonstrates that defendant was advised of and understood

his "ineligibility for parole" under the recommended sentence. See id. at 481-

82 (quoting State v. Davis, 175 N.J. Super. 130, 148 (App. Div. 1980)).

IV.

Defendant argues that his twenty-four-year NERA term, imposed for an

offense committed as a juvenile, must be vacated because the sentencing judge

failed to consider his age, attendant circumstances, and mental illness, and

applied non-statutory aggravating factors. Defendant contends that had the

judge "properly considered his age and circumstances, [he] would likely have

received a lower sentence." We are unpersuaded.

The judge gave great weight to aggravating factor one, stating that

"defendant exhibited extreme violence and depravity in using a milk crate to

deliver injuries upon the victim that resulted in his death." The judge concluded

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that "[t]he extreme violence used against the victim was certainly above and

beyond that which was necessary to accomplish the offense."

The judge also gave great weight to aggravating factor three, finding "as

an aggravating circumstance," defendant's abuse of alcohol, malingering, and

feigning of mental issues that resulted in delaying the case, that showed

"defendant [was] not coming to complete terms with his criminality. . . ." This

was graphically illustrated by defendant's allocution at the sentencing hearing

when he reverted back to claiming that his feigned "mental issues" caused his

behavior.

I'd like to say that I wasn't in the right state of
mind when I committed this problem. I was having
problems with myself, and I was taking medication, and
drink and took alcohol. . . . But, what I did was while I
was hearing voices, and that's why I did what I did.

And that's what caused my problems, and that's
why I get involved in like this, and this is why I have
these problems. They're deep within me. That's why I
need to be on medication, and take it, for mental issues.

The judge found this lack of insight gave "reason to believe that, given the

opportunity to commit another offense, this defendant will, and he will do so

violently."

Defendant also contends the sentencing judge erred by considering his

substance abuse and malingering as "an aggravating circumstance. . . ." We

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disagree. We recognize that sentencing courts may not import aggravating

factors that are not delineated in the Code's sentencing scheme. State v. Thomas,

356 N.J. Super. 299, 310 (App. Div. 2002) (citing State v. Roth, 95 N.J. 334,

363-64 (1984); N.J.S.A. 2C:44-1(a)). Thus, a sentencing court may not consider

the defendant's drug addiction as an aggravating factor. State v. Baylass, 114

N.J. 169, 179 (1989). Nevertheless, "[w]hen a trial court imposes a sentence

based on defendant's guilty plea," it is not limited to defendant's admissions and

his version of the crime; "it should consider 'the whole person,' and all the

circumstances surrounding the commission of the crime." State v. Sainz, 107

N.J. 283, 292-93 (1987). Here, the judge considered defendant's abuse of

alcohol, malingering, and feigning mental illnesses as an "aggravating

circumstance" directly related to the risk defendant would reoffend, not as

independent aggravating factors. We discern no error.

The judge also applied aggravating factor nine, finding "an obvious need

to deter this defendant from further criminality. Only a substantial commitment

to State Prison will answer that need."

The judge applied mitigating factor seven, noting defendant had no prior

history of serious delinquency or criminal activity.

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 The judge concluded that the aggravating factors substantially outweighed

the single mitigating factor. These findings are fully supported by the record.

Defendant was sentenced in accordance with the negotiated plea agreement .

Therefore, a "presumption of reasonableness . . . attaches to [his sentence]."

State v. S.C., 289 N.J. Super. 61, 70 (App. Div. 1996) (alteration in original)

(quoting Sainz, 107 N.J. at 294).

Defendant further contends the judge erred by not weighing his mental

illness under mitigating factor four (substantial grounds tended to excuse or

justify defendant's conduct, though failing to establish a defense), N.J.S.A.

2C:44-1(b)(4). We disagree. First, defendant admittedly feigned his mental

illness by lying to evaluating and treating professionals. Second, defendant

proffered no expert that opined that his crimes were causally related to his

alleged mental illness. In that regard, even Dr. Kaska "did not observe any

evidence of a thought disorder." Third, if one disregards his feigned symptoms

and resulting diagnosis of a thought disorder, his remaining diagnoses do not

tend to excuse or justify his violent conduct. Fourth, defendant has not

demonstrated that he was so emotionally impaired and mentally limited that he

could not comprehend the wrongfulness of his conduct. Cf. State v. Jarbath, 114

N.J. 394, 414-15 (1989) (applying mitigating factor four to a defendant who was

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so emotionally impaired and intellectually disabled that she could not

comprehend the wrongfulness of her conduct). Fifth, as reflected by application

of aggravating factor one, defendant's unprovoked violence far exceeded that

necessary to steal the victim's wallet.

We reach a similar conclusion regarding defendant's substance abuse. He

claims he was under the influence of alcohol, marijuana, and cocaine during the

incident. Defendant does not claim that a drug-induced psychosis precipitated

the fatal attack. Indeed, defense counsel stated during the sentencing hearing

that defendant was "not asserting his mental health or intoxication or any of

those defenses." Nor has he proffered an expert opinion that these substances

somehow excused or justified his violent conduct. Moreover, drug dependency

is not a mitigating factor tending to excuse or justify a defendant's conduct, State

v. Ghertler, 114 N.J. 393, 389-90 (1989), and intoxication does not mitigate an

offense, State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993).

Finally, defendant argues that the sentencing judge erred by not

considering his youth. We disagree. "N.J.S.A. 2C:44-1(b) was amended

effective October 19, 2020, to add the defendant's youth (i.e., less than twenty -

six years of age) to the statutory mitigating factors." State v. Tormasi, 466 N.J.

Super. 51, 66 (App. Div. 2021) (citing N.J.S.A. 2C:44-1(b)(14)). Defendant was

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sentenced more than three years earlier on April 13, 2017. Mitigating factor

fourteen is applied prospectively. Therefore, unless we remand for

resentencing, mitigating factor fourteen does not apply. See State v. Bellamy,

468 N.J. Super. 29, 48 (App. Div. 2021) (mitigating factor fourteen applicable

on resentencing but not to "cases in the pipeline in which a youthful defendant

was sentenced before October 19, 2020").

Defendant was not sentenced to "life without parole" or "the practical

equivalent of life without parole" as defined in State v. Zuber, 227 N.J. 422,

446-48 (2017). He was sentenced to a 24-year NERA term that requires him to

serve 85 percent or 20-years and 146 days before he is eligible for parole. At

sentencing, defendant had already accrued 2072 days credit for time served. He

will be eligible for parole at age thirty-eight and will max out at age forty-two.

His twenty-four-year NERA term is hardly the practical equivalent of life

without parole. See Tormasi, 466 N.J. Super. at 66 (noting a life term with a

thirty-year parole bar resulting in eligibility for parole at age forty-seven was

"far from a de facto life sentence"); State v. Bass, 457 N.J. Super. 1, 13-143

(App. Div. 2018) (holding an aggregate life term with a thirty-five-year parole

bar was not the functional equivalent of life without parole). Because the

sentence was not the "practical equivalent of life without parole," the sentencing

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court was not required to consider the factors set forth in Miller v. Alabama, 567

U.S. 460 (2012), including defendant's age at the time of the offense. Zuber,

227 N.J. at 429. Accordingly, resentencing is not required. Tormasi, 466 N.J.

Super. at 66.

In sum, we affirm both the waiver of jurisdiction from the Family Part to

the Law Division and defendant's sentence.

Affirmed.

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