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NOT FOR PUBLICATION WITHOUT THE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-0223-18T4
STATE OF NEW JERSEY
IN THE INTEREST OF G.M.C.
Argued March 27, 2019 – Decided June 14, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FJ-13-0312-18.
Monica do Outeiro, Assistant Prosecutor, argued the
cause for appellant State of New Jersey (Christopher J.
Gramiccioni, Monmouth County Prosecutor, attorney;
Monica do Outeiro, of counsel and on the brief).
Mitchell J. Ansell argued the cause for respondent
G.M.C. (Ansell Grimm & Aaron, attorneys; Mitchell J.
Ansell, of counsel and on the brief).
PER CURIAM
G.M.C. was sixteen years old when juvenile complaints were lodged
against him, charging him with, had they been brought against an adult, the
following offenses:

first-degree aggravated sexual assault, N.J.S.A.

 2C:14-2(a)(7); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); thirddegree invasion of privacy (filming), N.J.S.A. 2C:14-9(b)(1); third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1); and third-degree
invasion of privacy (disclosure of images), N.J.S.A. 2C:14-9(c)(1).

The

Monmouth County Prosecutor's Office sought waiver of the juvenile to adult
court.

See N.J.S.A. 2A:4A-26.1.

After reviewing additional information

provided by G.M.C., the Prosecutor's Office reiterated its intent and reasons for
the filing of a waiver motion. On July 30, 2018, after a several-day waiver
hearing, a family court judge over the course of approximately two hours and
sixty-five transcript pages denied waiver. The State's interlocutory appeal and
request for a stay was granted. We now reverse and remand.
The charges arose from an encounter at a social event between G.M.C.
and the victim, whom for the sake of anonymity, we will refer to as Mary. She
too was sixteen. Along with approximately thirty adolescents, they attended a
pajama-themed party where alcohol was consumed. Parts of the basement where
the party took place were blocked off. After engaging in "heavy petting," as
described by the judge, G.M.C. and Mary walked into a closed off darkened
area. G.M.C., who had no prior delinquency history, was drunk. Mary was also
visibly drunk, her speech was slurred, and she stumbled as she walked. While

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 on the sofa, a group of boys sprayed Febreze on Mary's bottom and slapped it
with such force that the following day she had hand marks on her buttocks.
Mary and G.M.C. had intercourse in the darkened room. G.M.C. filmed
himself penetrating Mary from behind on his cell phone, displaying her bare
torso, and her head hanging down. He forwarded the clip to several friends;
only one said it showed Mary's head hitting repeatedly against the wall. In the
days following the incident, G.M.C. sent the following text to his friends:
"[w]hen your first time having sex was rape."
G.M.C. left the room when he was finished. Concerned about Mary's
well-being, some of his friends checked on her and immediately told Mary's
friends that she was ill. Mary was on the floor vomiting. She continued to be
sick until driven home by a friend's mother.
The following morning, Mary discussed with her mother her fear that
sexual things had happened at the party. She did not understand how she could
have gotten bruise marks on her body or how her clothing had torn. Over the
course of several months, Mary learned that G.M.C.'s video had been circulated
among his friends and their mutual acquaintances, and she attempted to
communicate with him about it. She repeatedly told G.M.C. that she was more
interested in putting the episode behind her than anything else.

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 G.M.C. denied having recorded the encounter and said that their friends
were lying. When Mary learned that G.M.C. had continued to disseminate the
clip, her mother contacted the authorities. At that point the family's focus was
the destruction of the film. Unfortunately, after securing clearance from his
sergeant, the first investigating officer urged G.M.C. and his friends to all delete
the video, which apparently they did.
Mary and her family pursued criminal charges. In a memorandum dated
September 22, 2017, an assistant prosecutor at the Monmouth County
Prosecutor's Office recommended that this case be submitted for consideration
for involuntary waiver to the Law Division. The assistant prosecutor reviewed
the eleven statutory factors under N.J.S.A. 2A:4A-26.1(c)(3) and concluded that
waiver was appropriate. Regarding the nature and circumstances of the offense,
the prosecutor noted:
The juvenile at issue in this case, [G.M.C.]
engaged in vaginal intercourse with [Mary] while she
was visibly intoxicated, physically helpless and unable
to provide consent. During the course of this sexual
assault, [G.M.C.] recorded a cell phone video of
himself with [Mary] and, subsequently, forwarded that
video to seven . . . other juveniles. The State has
sufficient probable cause to charge [G.M.C.] with
aggravated sexual assault and sexual assault pursuant
to the new waiver statute, as well as invasion of privacy
and endangering the welfare of a child. A conviction
for aggravated sexual assault, sexual assault or
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 endangering the welfare of a child would also result in
compulsory registration as a sex-offender pursuant to
N.J.S.A. 2C:7-2b(2). The circumstances of [G.M.C.'s]
violation of [Mary's] person and privacy, as well as the
seriousness of the charged offenses, warrants the
elevation of this case via involuntary waiver to the adult
criminal court.
The prosecutor found that the "offenses involved a sexual assault against
[Mary's] person and a gross violation of her privacy," and concluded that the
juvenile's actions were sophisticated and predatory. The prosecutor wrote:
[G.M.C.'s] conduct as it relates to the charged
offenses was both sophisticated and predatory. He was
aware of the off-limits areas in advance of the party. At
the time he led [Mary] into the basement gym, she was
visibly intoxicated and unable to walk without
stumbling. For the duration of the assault, the lights in
the gym remained off and the door was barred by a
foosball table. Filming a cell phone video while
committing the assault was a deliberate act of
debasement. And, in the months that followed, he lied
to [Mary] while simultaneously disseminating the video
and unabashedly sharing the nature of his conduct
therein. This was neither a childish misinterpretation
of the situation, nor was it a misunderstanding.
[G.M.C.'s] behavior was calculated and cruel. This
level of criminal sophistication warrants the elevation
of this case via involuntary waiver to the adult criminal
court.
A December 7, 2017 addendum included the prosecutor's review of additional
material supplied by the juvenile.
In denying waiver, the judge said:
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 I still in my mind . . . distinguish between a sexual
assault and a rape. . . . [I]n my mind there is a
distinction.
. . . [T]here have been some, not many, but some
cases of sexual assault involving juveniles which in my
mind absolutely were the traditional case of rape, all
right, where there were generally two or more generally
males involved, either at gunpoint or weapon, clearly
manhandling a person into . . . an area where . . . there
was nobody around, sometime in an abandon[ed]
house, sometimes in an abandon[ed] shed, shack, and
just simply taking advantage of the person as well as
beating the person, threatening the person.
. . . [T]he factual scenarios themselves were so
egregious, and it was those types of cases that the State
felt the need to waive, and generally they were
successful in their waiver[.]
....
[The prosecutor's] . . . statement of facts . . . used
the term[s] "sophistication" and "predatory." . . .
By looking at that information and considering
what I knew just in terms of the research going on, I
had . . . an issue. I was concerned. I wanted -- I was
curious as to how the State was going to support the use
of those terms.
....
To get into the facts of the case, which I believe
is crucial, because this is where the . . . dispute -- the
abuse of discretion and the clear error of judgment
enters in.
....
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 And it seems clear that this young lady, the
alleged victim here, and I call her the alleged victim
here . . . .
. . . Some people would argue that, you know,
really what did . . . she drink and how could she
possibly have gotten as drunk as she says she was.
That's really not important.
. . . I think it's an issue here, whether or not this
young lady was intoxicated to the point that she didn't
understand what was going on.
. . . Her position really has been that she doesn't
remember much of what happened.
....
. . . I really saw nothing that stood out to me that
would substantiate that she was led into the back. The
terms that were used were they walked hand in hand.
Now, I'm not saying that this young lady was not
under the influence. I don't know whether she was
extremely intoxicated or not, but no question she was
under the influence.
....
. . . I am bound in making my decision as to
arbitrariness or abuse of discretion by the totality of the
circumstances.
....
It is extremely difficult for the [c]ourt to
understand the meaning of the term "sophistication"
and "predatory" and to find that what happened on this
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 day, even giving the State the benefit of the doubt as to
their version of what happened, that this was
sophisticated or predatory.
....
But factually, it apparently didn't lead the young
lady to do anything else about this, at least as far as the
[c]ourt is aware, until the famous conversation, or
infamous conversation, with [H.V.].
And there's no way that you can just downplay
the effect the wording of that conversation . . . .
....
. . . [T]he State isolated that statement and held
onto that statement in determining what they . . . chose
to believe happened here.
....
. . . We have no testimony of the young lady, but
we will at some point, I presume, have testimony of the
young lady explaining why she decided or went to her
mother who decided a couple of days later that we need
to go to the police and discuss criminal charges. There
wasn't a mention at that point of what type of criminal
charges, to just discuss criminal charges.
. . . [I]t's not impossible for the [c]ourt to think
that once the video is deleted it's a lot easier to bring
the criminal charges. But I'm only . . . speculating,
okay. All I know is they waited until . . . they were
reasonably convinced that the video was deleted that
they decided to go to explore their options.

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 After describing the sexually explicit text messages between G.M.C. and
his friends regarding the incident, the judge said:
It really doesn't make a lot of difference because the
whole paragraph to me is just a 16-year-old kid saying
stupid crap to his friends.
He goes back and forth. I think it concerned the
[c]ourt somewhat, "Boy, if I had a knife on me -- on me
when I -- when I fucked her, I'd be the epitome of this
show." I mean, . . . so childish, so stupid. But anything
out of the ordinary for a 16-year-old . . . to be saying to
boys, to his friends. And then, of course, he goes back
to saying, "I fucked her, not raped her. Calm down. If
you have the video, get rid of it."
....
. . . [D]o I believe that it shows in any way a
calculation or cruelty on his part or sophistication or a
predatory nature? No, I do not.
....
. . . [T]his young man comes from a good family
who put him into an excellent school where he was
doing extremely well.
. . . He is clearly a candidate for not just college
but probably for a good college. His scores for college
entry were very high.
The judge also detailed G.M.C.'s extracurricular activities, including being an
Eagle scout.

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 The judge expressed concern that the prosecutor did not indicate in the
memorandum that she had explained to Mary and her mother the devastating
effect a waiver would have on G.M.C.'s life. He interpreted State in re V.A.,
212 N.J. 1 (2012), to mean the prosecutor had to "focus clearly on both sides
here." The judge said it was important "to look at the children who you are
dealing with and determine where does the proof lie, where does the culpability
lie." By focusing only on the juvenile's culpability, the State had violated V.A.
He further opined that the State had to consider "some of those factors that are
set forth in V.A. which are not specifically set forth in the statute." Therefore,
the judge concluded that the waiver motion should be denied because the
prosecutor abused her discretion and incorrectly assessed the statutory factors.
On appeal, the State raises only one issue. It contends that the judge erred
in denying the waiver motion because, in the process, he substituted his
judgment for that of the prosecutor.
I.
In a juvenile delinquency case before the Family Court, the State may seek
waiver of the juvenile to adult court without consent, by filing a motion for
referral and a written statement of reasons. N.J.S.A. 2A:4A-26.1(a). Charges
cannot be transferred to the Law Division unless the State can establish: 1) the

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 juvenile was at least fifteen years of age at the time of the incident and 2)
probable cause exists that a certain enumerated crime was committed, including
aggravated sexual assault and sexual assault. N.J.S.A. 2A:4A-26.1(c); see State
in re N.H., 226 N.J. 242, 251 (2016). The court may still deny a referral motion,
however, "if it is clearly convinced that the prosecutor abused his [or her]
discretion" in considering the eleven factors listed in the statute. N.J.S.A.
2A:4A-26.1(c)(3); R. 5:22-2.
The prosecutor will ordinarily be found to have abused his or her
discretion if the decision: 1) fails to consider all relevant factors; 2) considered
irrelevant or inappropriate factors; or 3) "amounted to a clear error in judgment."
V.A., 212 N.J. at 22 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). Deference
should be accorded to the Family Division's expertise, common sense, and
experience in adjudicating such matters. State in re J.F., 446 N.J. Super. 39, 52
(App. Div. 2016) (quoting State v. R.G.D., 108 N.J. 1, 16 n.7 (1987)).
Abuse of discretion review, however, does not mean a court "substitute[s]
its judgment for that of the prosecutor." V.A., 212 N.J. at 8. Rather, it is limited
to ensure the prosecutor made an individualized decision about the juvenile that
was not arbitrary or otherwise beyond the scope of the statute. Ibid. Likewise,
cursory or conclusory statements "lacking in detail" will not suffice. Id. at 8-9.

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 The prosecutor's statement of reasons for waiver must refrain from "mere
regurgitation of the Guidelines' language" and reliance on incomplete
information, or information outside the bounds necessary for seeking waiver.
Id. at 28.
The current waiver statute, N.J.S.A. 2A:4A-26.1 was amended March 1,
2016. See N.H., 226 N.J. at 248-49. As the Court said in N.H., it "appears to
have adopted parts of the Guidelines and case law." Id. at 250. The waiver
motion requires a written statement setting forth the facts the prosecutor
employed to assess the elements outlined in the statute, and "should apply the
factors to the individual juvenile and not simply mirror the statutory language
in a cursory fashion." Ibid.
II.
In this case, the prosecutor's memorandum considered, factor-by-factor,
each statutory element. It was undisputed that G.M.C. was fifteen years of age
or older at the time of the alleged delinquent act. N.J.S.A. 2A:4A-26.1(c)(1).
Nor was it disputed that there was adequate probable cause. See N.J.S.A.
2A:4A-26.1(c)(2). The delinquent act in question, if committed by an adult in
this case, would have been aggravated sexual assault and sexual assault, two of
the enumerated offenses that allow for waiver.

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 In denying waiver, the trial court minutely considered the circumstances
of the offense, made an independent assessment of the juvenile's culpability, and
considered G.M.C.'s prior good character and "the input of the victim or the
victim's family."

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

His consideration of these

elements, however, sounded as if he had conducted a bench trial on the charges
rather than neutrally reviewed the State's application.
The likelihood of conviction was not for the judge to decide on a waiver
motion. His skeptical scrutiny of G.M.C.'s friend, who said the video depicted
Mary's head banging against a wall, the victim's credibility, and the motives and
conduct of the victim's family went beyond review of the prosecutor's decision
for abuse of discretion. The judge also accorded great weight to the fact that
G.M.C. might have reasonably believed that Mary wanted to engage in sexual
intercourse—without taking into consideration her level of intoxication—
essentially accepting G.M.C.'s defense theory as would the finder of fact at a
trial. Rather than focusing on whether the prosecutor's consideration of the
statutory factors supported the application, the judge decided the case for
himself.
G.M.C. was sixteen at the time the event occurred. That the juvenile came
from a good family and had good test scores we assume would not condemn the

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 juveniles who do not come from good families and do not have good test scores
from withstanding waiver applications. Whether or not the State can prove its
case beyond a reasonable doubt is a question best left to another day.
The State's memorandum addressed every statutory element.

The

prosecutor's decision was patently not one that the judge would have reached,
but that is not the test. The test is whether the State, which obviously believed
Mary's description of the events to the minimum level necessary for the filing
of charges, was mistaken in its judgment. The memorandum in support of
waiver did not consider any irrelevant factors, only those included in the statute.
The decision to seek waiver did not amount to a clear error in judgment. See
V.A., 212 N.J. at 22.
Reversed and remanded.

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