NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
A-5620-18 2 [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
A-5620-18 3 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
A-5620-18 4 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,
A-5620-18 5 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;
A-5620-18 6 (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.
A-5620-18 7 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."
A-5620-18 8 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 9 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
A-5620-18 10 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.
A-5620-18 11 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,
A-5620-18 12 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.
A-5620-18 13 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
A-5620-18 14 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
A-5620-18 15 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 16 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.
A-5620-18 17 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
A-5620-18 18 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)).
A-5620-18 19 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
A-5620-18 20 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.
A-5620-18 21 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
A-5620-18 22 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.
A-5620-18 23 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
A-5620-18 24 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
A-5620-18 25 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.
A-5620-18 26 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
A-5620-18 27 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
A-5620-18 28 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
A-5620-18 29 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.
A-5620-18 30