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Prosecuting A Juvenile As An Adult

Newark NJ Defense Lawyers To The Prosecution Of Your Child As An Adult

It can be shocking to learn that your child is the subject of criminal charges and especially so when the prosecutor is seeking to remove the case from the juvenile court and prosecute your son/daughter as an adult. The end result if your child is waived up to adult court is the loss of all the benefits that exist in the juvenile system (e.g. more favorable terms of incarceration, rehabilitation being the overriding goal, special programs, etc.) and no parent wants that.  If your child is accused of robbery, aggravated assault, distributing drugs or another serious offense and he/she may be treated as an adult, you should give us a call at 973-710-1520. Our former prosecutors and defense team will provide you with a thorough consultation, free of charge, and plot a course for successfully defending your child. We know how to protect juveniles are ready to help you.

Who Determines Whether A Juvenile Should Be Prosecuted As An Adult?

N.J.S. 2A:4A-26 and Court Rule 5:22-2 outline the standard that is to be followed in determining whether a juvenile case shall be waived up to the Criminal Division of the Superior Court (i.e. adult court). The process is referred to as “waiver” because the only way a child may be prosecuted in the Superior Court is if the Family Court, Juvenile Division, waives its exclusive jurisdiction to decide charges involving a juvenile. In accordance with the aforesaid standards, there are some instances where the authority to waive and refer a case to the adult court rests with the court and others where the where referral to the adult court is discretionary on the part of the court and others where the discretion rests with the prosecutor. In either instance, however, the process of removing a charge from the juvenile court must be instituted by the prosecutor.

How Does The Prosecutor Waiver A Child Up To The Adult Criminal Division?

The County Prosecutor’s Office must file a motion to transfer the case to the Criminal Division. The motion must set forth the basis for waiving the case to adult court and must be filed within thirty (30) days of receipt of the criminal complaint. The only way the prosecutor can file the motion outside this period is if there is no prejudice (e.g. there was consent for a time extension, etc.).

When Can A Case Be Transferred To The Adult Court?

If a juvenile is 14 years of age or older and there exists a reasonable basis to believe that he/she committed a crime (i.e. probable cause), the case may be transferred if one of the following apply:

  • The offense involves homicide (other than death by auto), first degree robbery, carjacking, a sexual assault, second degree aggravated assault, kidnapping, drug inducted death, leader of a narcotics trafficking network, maintaining a CDS production facility, distribution of drugs, aggravated arson, theft of an automobile, or a first or second degree organized street crime;
  • The juvenile was previously convicted of a crime set forth in paragraph (1);
  • The juvenile was previously sentenced and confined to an adult jail/prison;
  • The offense was committed in a particularly aggressive, violent or willful manner;
  • The charge involves conspiracy to commit the offenses outlined in (1) or (4).
  • The offense is possession of a firearm with an unlawful purpose against another or the juvenile possessed a firearm while committing an aggravated assault, aggravated criminal sexual contact, burglary or escape; or
  • The offense involves a computer criminal activity of the first or second degree.

A case may be waived if one of the listed bases applies. The defendant may, however, overcome this eligibility by showing that the probability that he/she can be rehabilitated by the juvenile system prior to reaching the age of 19 substantially outweighs the factors supporting waiver.  The ability to present this argument to defeat a waiver motion does not apply where the juvenile is 16 years of age or older and paragraph (1) applies; in other words, transferring a subsection (1) crime for someone 16 or older is at the discretion of the prosecutor.

What Factors Will The Prosecutor Consider In Determining Whether To Seek A Waiver?

The Attorney General’s Office has adopted guidelines for prosecutors to follow in determining to file a waiver motion. The seven (7) factors to be considered include: (1) nature of the offense (e.g. death or serious injury, involvement of a weapon, role of juvenile, and other circumstances of conduct); (2) need to deter this and other juveniles from undertaking this conduct; (3) effect of waiver on any co-defendants; (4) the length of the prison/jail sentences that would likely be served in the adult versus the juvenile system; (5) prior record of the accused; (6) likelihood of conviction; and (7) position of the victim.

Experienced Juvenile Attorneys To Fight Waiver Of Your Child & Prosecution As An Adult

If you would like assistance regarding trying your child as an adult, please do not hesitate to contact our office. We can be reached 24/7 for a free consultation at 973-710-1520. Our Juvenile Criminal Defense Law Firm is ready to assist you and your child now.