A 0822 23 State Of New Jersey V Jd

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-0822-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

J.D.,

Defendant-Appellant.
________________________

Submitted March 24, 2025 – Decided July 23, 2025

Before Judges Sabatino and Jacobs.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 22-03-0370.

Jennifer N. Sellitti, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).

William E. Reynolds, Atlantic County Prosecutor,
attorney for respondent (Courtney Cittadini, Chief
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
In this appeal, we decide a single question: whether the Family Part judge

erred in finding the State did not abuse its discretion in seeking a jurisdictional

waiver and involuntary transfer of juvenile defendant J.D.1 to the Criminal Part

to face prosecution for multiple sexual offenses. Having reviewed the record

and applicable principles of law, we determine the judge did not err and affirm.

In September 2020, when defendant was seventeen-and-a-half-years old,

his stepfather (T.H.), observed a video on defendant's phone of him vaginally

penetrating his nine-year-old stepsister, A.H. T.H. informed defendant's

mother, S.H., who contacted the New Jersey Division of Child Protection and

Permanency ("DCPP" or the "Division"). DCPP referred the matter to the

Atlantic County Prosecutor's Office ("ACPO"). A.H. was interviewed by a

sergeant from ACPO and confirmed the details of the assault. After securing a

warrant, detectives obtained other videos of sexual assaults from J.D.'s phone.

One video showed M.B., a six-year-old, standing and performing oral sex on

defendant. Defendant can be heard telling the child, "Keep sucking it, you said

you liked it." Another video involved a three-year-old victim performing oral

sex on defendant. In all, evidence was collected relating to acts of penetration

1
We use initials to protect the minors' privacy interests. R. 1:38-3(d)(12).
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against four of defendant's female relatives whose ages were three, six, nine,

and thirteen at the time of the assault.

After completing its investigation, the ACPO formally charged defendant.

The State issued multiple charges for what in adult criminal court would

constitute the offenses of first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(2)(A), second-degree photographing or filming a child performing a

prohibited sexual act, N.J.S.A. 2C:24-4(b)(4), and second- and third-degree

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

Waiver Proceeding

The State submitted its first Statement of Reasons in support of its motion

for waiver of jurisdiction in June 2021, issuing a supplemental letter in support

in October 2021, after reviewing an evaluation by psychologist retained by

defendant, Dr. David Bogacki. Dr. Bogacki submitted a report diagnosing J.D.

with pedophilia disorder and attention deficit hyperactivity disorder, among

other disorders. He opined that these disorders combined to cause J.D. to be

psychologically about two or three years below his chronological age. He

further opined that J.D., who has no prior juvenile record, could be rehabilitated,

militating against waiver.

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N.J.S.A. 2A:4A-26.1 promulgates the criteria the State must satisfy when

seeking a waiver of jurisdiction. Defendant stipulated to the initial criteria; that

he was fifteen years of age or older at the time of the delinquent acts and that

there is probable cause to believe the juvenile committed a delinquent act which,

if committed by an adult, would constitute one of the enumerated offenses

delineated in N.J.S.A. 2A:4A-26.l(c)(2)(a)-(o). The State then evaluated the

factors outlined in N.J.S.A. 2A:4A-26.l(c)(3)(a)-(k) in support of its waiver

application. Results of that evaluation were detailed in a twenty-one-page

submission filed with the Family Part. The State assessed each statutory waiver

factor, summarized as follows:

Nature and Circumstances of the Offense (Factor
a): The State emphasized the seriousness of the
assaults, the disparity in size and power between
defendant and victims, the threats and coercion used,
the vulnerability of the disabled victim, and the
significant adult court sentences defendant faced. Dr.
Bogacki’s report did not alter this assessment.

Whether the Offense Was Against a Person or Property
(Factor b): This was considered especially important
given multiple victims, and Dr. Bogacki’s report did
not change this view.

Degree of Juvenile's Culpability (Factor c): Strong
evidence of guilt was seen to increase defendant's
culpability. Although the defense raised mental health
issues, the prosecutor concluded these did not negate
intent, but revised the weight of this factor from

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significant to moderate after considering Dr. Bogacki’s
report.

Age and Maturity (Factor d): Initially, the State
contemplated defendant's age [seventeen] and maturity
favored waiver. However, following Dr. Bogacki’s
evaluation, the State adjusted its position to indicate
only slight or minimal weight in favor of waiver.

Eligibility for Special Education (Factor
e): Defendant’s [Individual Education Program]
indicated special education status due to [Attention
Deficit Hyperactivity Disorder]. Although evidence
from the psychological evaluations was inconsistent,
the State ultimately treated this factor as neutral.

Criminal Sophistication (Factor f): The State viewed
defendant as moderately sophisticated, given the
planning, evasion, training of victims, and use of
signals and modified (compilation) videos for
gratification.

Prior Delinquency History (Factor g): Despite no prior
arrests, there were earlier child welfare referrals related
to similar conduct that weighted slightly in favor of
waiver.

Previous Custodial Disposition (Factor h): Because
defendant had not been previously detained, this factor
did not support waiver.

Child Welfare Agency Involvement (Factor i): Past
agency involvement was noted, but the State considered
this a neutral factor.

Mental Health Concerns (Factor j): Initially weighed
neutrally; after Dr. Bogacki’s report, the State found

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this factor strongly favored keeping the case in juvenile
court.

Victim or Family Input (Factor k): The victims'
families described serious trauma and wanted
defendant held accountable, weighing in favor of
waiver.

On October 28, 2021, after an evidentiary hearing at which Dr. Bogacki

testified, the court issued an oral opinion, later reduced to writing, finding the

waiver factors weighed in favor of the State and concluding the State had not

abused its discretion. Defendant moved for leave to appeal, which our court

denied.

Plea negotiations ensued, and defendant pled guilty to several counts of

aggravated sexual assault. The court imposed a twenty-five-year sentence as

mandated by the Jessica Lunsford Act, N.J.S.A. 2C:14-2(a).

On appeal, defendant argues the court erred in finding the State had not

abused its discretion. Specifically, he contends the State failed to explain its

reasoning, engaged in no original analysis, failed to consider relevant

information, and misapplied the statutory factors.

II.

"The decision whether to seek waiver vests in the prosecutor." State in

the Int. of E.S., 252 N.J. 331, 342 (2022). "'The Juvenile Code allows

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prosecutors to seek to proceed in adult court against juveniles who have

committed certain serious offenses' through the waiver process set forth in

N.J.S.A. 2A:4A-26.1." Ibid. (quoting State in the Int. of N.H., 226 N.J. 242,

248 (2016)). "Under the waiver statute, prosecutors have sixty days after receipt

of a complaint to move for waiver." Ibid. (citing N.J.S.A. 2A:4A-26.1(a)). The

prosecution must establish that "[t]he juvenile was fifteen years of age or older

at the time of the alleged delinquent act; and . . . [t]here is probable cause to

believe that the juvenile committed a delinquent act which if committed by an

adult would constitute" one or more enumerated offenses. N.J.S.A. 2A:4A-

26.1(c)(1) to (2). "Probable cause signifies that there 'is a well-grounded

suspicion or belief that the juvenile committed the alleged crime. '" E.S., 252

N.J. at 342 (quoting State v. A.D., 212 N.J. 200, 205 (2012) (internal quotation

omitted)).

If a juvenile is eligible for waiver under subsections (c)(1) and (c)(2) of

the statute, the prosecutor considers a statutory list of eleven factors to determine

whether to seek waiver in a given case. N.J.S.A. 2A:4A-26.1(c)(3)(a) to (k).

At a waiver hearing, the court reviews the evidence offered by both the

State and the juvenile. N.J.S.A. 2A:4A-26.1(b). If the prosecution makes the

requisite showing, "the court shall waive jurisdiction of a juvenile delinquency

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case." N.J.S.A. 2A:4A-26.1(c). However, "[t]he court may deny a motion by

the prosecutor to waive jurisdiction of a juvenile delinquency case if it is clearly

convinced that the prosecutor abused his discretion in considering the [eleven

statutory] factors in deciding whether to seek a waiver." N.J.S.A. 2A:4A-

26.1(c)(3); accord State in the Int. of Z.S., 464 N.J. Super. 507, 519 (App. Div.

2020). "Thus, although the court is not bound by a prosecutor's decision to seek

waiver, it reviews that decision under the deferential abuse of discretion

standard." E.S., 252 N.J. at 343 (citing N.H., 226 N.J. at 249-51; Z.S., 464 N.J.

Super. at 519-20). The Family Part conducts a review to ensure the prosecutor

has made an individualized decision about the juvenile, one that did not abuse

the prosecutor's considerable discretion or was arbitrary. State in the Int. of

V.A., 212 N.J. 1, 8 (2012); see also N.H., 226 N.J. at 255. The statute has a

presumption in favor of waiver for juveniles who commit serious criminal acts.

Such a juvenile must overcome an associated "heavy burden" to defeat a waiver

motion. Z.S., 464 N.J. Super. at 519 (citing State v. R.G.D., 108 N.J. 1, 12

(1987)).

We have reviewed the record and the court's ruling in this case. We are

satisfied that the court considered Dr. Bogacki's report, incorporating the

report's conclusions into its own findings. The court's review of the State's

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detailed, individualized Statement of Reasons reflected a nuanced approach in

which the State found certain factors weighed in favor of waiver while others

did not.

As highlighted in defendant's brief, and predictably enough, the State and

Dr. Bogacki disagreed as to whether certain factors should be weighed in favor

or against waiver. But differences in opinion are not tantamount to abuses of

discretion.

We also recognize the State did not spell out the full language of factor

(g) in its Statement of Reasons, omitting "of delinquency of the juvenile and

dispositions imposed for those adjudications" from the caption "nature and

extent of any prior history" in one portion of the assessment. However, in its

discussion of factors (f), (g), and (i), the State did note in the record referrals to

the Division that J.D. abused A.H. as far back as 2015 and abused S.D. several

times in the preceding three years. While neither of those allegations led to a

finding of delinquency, their veracity was not contested and were properly

considered by the State and the court. See generally, State v. J.M., 182 N.J. 402,

417 (2005). We also do not share defendant's contention that the trial court's

decision must be reversed because it may have given "short shrift" to non-

statutory factors of rehabilitation and deterrence. As the court fairly

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commented, even if not explicitly cited within the Statement of Reasons, the

court construed the controlling statute

to leave room for the concept [of rehabilitation] as
being impliedly subsumed within other factors.
However, because it is not enumerated in the revised
law, deterrence should not be afforded the full weight
of a listed factor. Instead, like rehabilitation, it is at
most a subsidiary and optional consideration.

That interpretation of the current statutory framework is consistent with our

decision in Z.S., where, in discussing differences between the former and

revised statutory framework, we observed,

Such language [("possibility of rehabilitation")] is
omitted from the 2016 revised statute. Even so, the new
factors arguably allow some consideration of the
juvenile's prospects for rehabilitation, at least
implicitly, by requiring the prosecutor to assess a
juvenile's "age and maturity," "culpability," "criminal
sophistication," and prior history with the juvenile
justice system.

[464 N.J. Super. at 517 (quoting N.J.S.A. 2A:4A-
26.1(c)(3)(a), (c), (f), (g), (h)).]

In sum, nothing in defendant's arguments persuades us that any of the

State's assessments was arbitrary or unsupported by evidence in the record. In

finding no abuse of discretion by the State in its application for waiver, the

Family Part did not err.

Affirmed.

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