                                 NOT FOR PUBLICATION WITHOUT THE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 cas es is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3942-16T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JONATHAN PEREZ,

     Defendant-Appellant.
____________________________

                   Submitted October 16, 2018 – Decided November 26, 2018

                   Before Judges Hoffman and Geiger.

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

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Rebecca L. Gindi, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (John J. Lafferty, IV, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jonathan Perez appeals from his March 31, 2017 conviction

and sentence after pleading guilty to aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1). Defendant argues the trial court's grant of an involuntary waiver from

the Family Part to the Law Division was error. He further argues the trial court's

ruling he was competent to stand trial was error and his sentence was excessive.

We affirm in part and vacate and remand in part.

      Defendant, who was seventeen years old at the time, was charged with

acts that, if committed by an adult, would have constituted second-degree

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

assault, N.J.S.A. 2C:12-1(b)(1) (charge two); fourth-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(d) (charge three); third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (charge four); first-degree

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

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

(count seven).   These charges stem from a brutal assault and robbery that

resulted in the elderly victim's death.

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

N.J.S.A. 2A:4A-26.      In its application, the State recounted the facts and

investigation, pointed out defendant was born on August 13, 1993, and indicated


                                                                         A-3942-16T2
                                          2
the First Assistant Prosecutor authorized the filing of the waiver motion.

Attached as exhibits were the juvenile delinquency complaints, police reports,

preliminary autopsy findings of the medical examiner, prosecutor's waiver

authorization, and a printout of defendant's juvenile court record. The waiver

authorization form noted defendant was charged with murder, felony murder,

and armed robbery, and faced a maximum term of incarceration in the Law

Division of thirty years to life, subject to the provisions of the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, but a maximum term of incarceration of an

indeterminate twenty years in the Family Part.        With regard to deterrence

considerations, the prosecutor indicated the sentencing exposure and application

of NERA militated in favor of waiver. The prosecutor also stated that a plea to

juvenile delinquency charges in lieu of waiver had not been offered to defendant.

      The following facts were submitted by the detective who testified at the

waiver hearing conducted on September 22, 2011. 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-3942-16T2
                                        3
a pool of blood. Medical assistance was requested and the victim, who remained

unconscious and unresponsive, was transported to the hospital by ambulance.

      Investigating officers photographed and recovered two beer cans, a

disposable lighter, a milk crate, and a baseball cap from the scene.

      The assault was captured on a surveillance video. The video depicted

perpetrator striking the victim with a milk crate. The milk crate recovered at the

scene appeared to have a blood stain on it.

      The assault occurred at 2 a.m. The next evening a bartender working at a

nearby bar contacted police and advised them a patron in the bar witnessed the

assault. The witness told the bartender the perpetrator just walked by the bar.

When police spoke to the witness, Maria Delgado, she provided information

regarding the perpetrator, who she was familiar with.         She described the

perpetrator as a tall Mexican male, between fifteen and seventeen years old, who

was wearing a blue and white striped shirt when he walked by the bar. She told

police his name is Jonathan and provided his address in Atlantic City.

      Police learned that both Delgado and another witness, Clara Tornes,

witnessed the assault. They identified the victim as Alfred Kessleski, who they

called Papi. They saw three neighborhood males named Jonathan, Willy, and




                                                                         A-3942-16T2
                                        4
Passole (phonetic) with the victim, and saw defendant with the victim's wallet

in his hands just after the assault.

      Police located defendant, who matched the images on the video and the

descriptions given by Delgado and Tornes. They brought defendant to the bar,

where he was identified by Delgado and Tornes.             Defendant was then

transported to police headquarters.

      After being informed of her rights, defendant's mother signed a consent to

search form for the search of defendant's residence. Police retrieved a pair of

black and red Nike sneakers with what appeared to be blood on them from

defendant's bedroom. The police also seized defendant's blue and white striped

shirt and the pants he was wearing. The pants had a blood stain on them. The

pants and sneakers tested presumptively positive for human blood, as did the

milk crate recovered from the scene.

      The surveillance video of the incident was played for the court. It depicted

an individual sitting on a milk crate. Delgado and Tornes are seen. The victim

is hit by a milk crate and falls. Defendant is shown hitting the victim. Defendant

is shown 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.

Moments later, the police arrive, and Delgado and Tornes are seen again.


                                                                         A-3942-16T2
                                        5
      The video of the incident depicts defendant wearing a red t-shirt and jeans.

Defendant was also captured on a surveillance video at the Atlantic City Public

Safety Building wearing a red t-shirt and jeans about an hour and a half before

the incident. This video was also played for the court. The detective identified

defendant as the person depicted in the video.

      The victim died at the hospital on August 2, 2011. An autopsy was

performed by a medical examiner. The autopsy lists 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; multiple facial lacerations and abrasions; and abrasions of the left

chest, elbow, and right thumb.

      Defendant was charged with the seven juvenile offenses. Defendant did

not introduce any evidence or present any witnesses at the waiver hearing. The

assault took place only fifteen days before defendant's eighteenth birthday.

      The court noted all the State had to show was that defendant was at least

sixteen years old and there was probable cause he committed an offense making

him eligible for waiver to adult court. The family part judge found defendant

was seventeen years old on the date of the incident. After recounting the


                                                                         A-3942-16T2
                                        6
evidence submitted by the State during the hearing, the judge also found there

was probable cause for the murder, felony murder, aggravated assault, weapon

possession, and robbery charges. The judge ordered jurisdiction waived to the

Law Division.

      Defendant was subsequently indicted for murder (count one), first-degree

robbery (count two), felony murder (count three), and possession of a weapon

for unlawful purposes (count four).

      For the next four years, defendant was not found competent to stand trial.

On July 23, 2013, defendant was found unfit to proceed to trial, and was

transferred to the Ann Klein Forensic Center (AKFC). On April 28, 2015,

defendant was again found unfit to proceed to trial and required

institutionalization because he was a danger to himself, others, or property.

      On August 18, 2016, the trial court conducted a testimonial competency

hearing. Defendant's appearance at the hearing was waived. Joanna Bajgier,

M.D., a board-certified psychiatrist, and Jonathan H. Mack, Ph.D., a retired

licensed clinical neuropsychologist, testified for the State.    Charles Kaska,

Ph.D., a retired forensic psychologist, testified for the defense. Admitted into

evidence were the competency evaluation report prepared by Dr. Bajgier and the

forensic mental health evaluation report prepared by Dr. Mack.


                                                                         A-3942-16T2
                                        7
      Dr. Bajgier was defendant's treating psychiatrist at AKFC, seeing him on

at least a weekly basis. In her report dated September 18, 2015, Bajgier stated

defendant basically had a ninth-grade education, was able to speak both English

and Spanish, and "appears to have fair command of the English language." He

was described as being "alert, fully oriented, and cooperative with the

evaluation." Dr. Bajgier reported defendant stated "his mood was 'good' and his

affect was neutral. His thought process was goal-directed and speech was

normal.   He denied any type of hallucinations and did not appear to be

experiencing any. He did not express any delusional thought content. He denied

any suicidal or homicidal thinking."

      Dr. Bajgier found defendant's "short- and long-term memory was intact,

as indicated by his ability to recall [three] of [three] words after [five] minutes

and recall presidents in reverse order back to Clinton." She described his

concentration ability as "intact, as he was able to attend to questions without

being distracted by others coming and going in the room."

      Dr. Bajgier noted that on September 11, 2015, defendant "reported to an

officer that he had been 'lying' about having a mental illness and that he wanted

to meet with me to discuss." When she met with defendant, he "stated he 'has

no mental problem,' and that he had been malingering in hopes that his case


                                                                          A-3942-16T2
                                        8
would somehow go away."          Defendant "denied ever having hallucinations,

paranoia, or mood disorder symptoms." As a result, Dr. Bajgier discontinued

his anti-psychotic medication. Tellingly, Dr. Bajgier reported defendant had no

current psychiatric diagnosis.

      Dr. Bajgier performed a competency skills assessment of the defendant to

determine whether mental illness or retardation affected his mental status such

that it would interfere with his comprehension of the legal issues or the roles of

the parties in his trial or with his ability to assist in his defense. The assessment

revealed defendant was alert and fully oriented to time, place, and things.

Defendant understood he was charged with murder. He stated a judge "listens

to the facts," and is "not on the side of the prosecutor, not on my side, he's on

nobody's side. He just listens to the facts." Defendant stated the prosecutor

"proves you're guilty, wants a conviction." He said his lawyer "proves my

innocence." Defendant acknowledged he understands his right to testify or not,

and if he chooses to testify, he would be obligated to tell the truth.

      When questioned regarding the role of the jury, defendant said the jury

will "vote guilty or not guilty." Defendant understood the concept of a guilty

plea, stating that he was previously offered a plea bargain for 30 years. He said




                                                                            A-3942-16T2
                                         9
that a person might enter a guilty plea in order to "get less time" than they could

be sentenced to if found guilty at trial.

      With regard to defendant's ability to participate in an adequate

presentation of his defense, Dr. Bajgier concluded defendant

             does have the ability to participate in an adequate
             presentation of his defense. He understands what he is
             charged with, knows the date of the alleged offense, and
             was able to recall some of the evidence that the
             prosecution may have against him. He is motivated to
             obtain the best outcome for himself. He is not suffering
             from a mental illness that could interfere with his
             abilities.

             [Emphasis added.]

      Dr. Bajgier testified that based on the results of her mental status

examination, defendant was alert, fully oriented, and cooperative with the

evaluation. She further stated upon his entrance to AKFC, defendant's test

results and statements raised suspicions of malingering.

      As part of his two-day psychological evaluation of defendant, Dr. Mack

performed a battery of psychological tests, including a Competence Assessment

for Standing Trial for Defendants with Mental Retardation. Based on the test

results and interview, Dr. Mack opined defendant:

             is clearly feigning incompetency to stand trial and that
             [defendant] does actually understand the criminal
             justice system, is capable of rationally understanding

                                                                          A-3942-16T2
                                        10
            the courtroom proceedings, does have an accurate
            understanding of his own case, but is pretending not to
            be competent in order to deliberately and intentionally
            remain out of prison and in a psychiatric facility.

      Dr. Mack further concluded defendant "qualifies for the DSM-5 diagnosis

of Malingering (DSM-5 Z76.5)." He also concluded that, by history, defendant

may have learning disabilities, but there was "no definitive evidence" defendant

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

Kaska." Dr. Mack noted that "Dr. Kaska failed to use the current edition of the

Wechsler Adult Intelligence Scale and also failed to do his own symptom

validity testing to determine if the IQ scores were accurate." He also stated:

"Dr. Kaska did not use the Test of Memory Malingering, The Validity Indicator

Profile, the SIRS-2, the SIMS or any other measures of cognitive effort or

symptom reporting response bias, to validate his findings[.]" Dr. Mack also

found Dr. Kaska's use of the Rorschach test was "of markedly questionable

validity in the context of forensic mental health evaluations."

      Dr. Mack found it was likely defendant was "exaggerating his adaptive

functioning difficulties" when administered the Vineland Adaptive Behavioral

Scales "to support his claim of incompetency." He noted defendant's low IQ

scores were invalid given his malingering. Dr. Mack opined defendant was

competent to stand trial.

                                                                       A-3942-16T2
                                       11
      During his testimony, Dr. Mack emphasized that for defendant to receive

the scores he had obtained on four of the tests that were administered, which

were designed to detect malingering, defendant had to be intentionally feigning

incompetence. He characterized defendant's statements as containing numerous

inconsistencies. Defendant failed multiple malingering tests, with the test scores

pointing to a deliberate intention to lie. Dr. Mack further emphasized that

defendant's answers to some of his questions about the criminal justice system

were inconsistent, and that the "hallmark of malingering is inconsistency."

Additionally, Dr. Mack testified defendant lied to mental health professionals

regarding his competency, and that the results of some of the tests he

administered could not be relied on because of the malingering exhibited by

defendant. He concluded defendant was "pretty much straight-up feigning."

      Based on a ninety-minute interview with defendant and a previous

psychological evaluation he performed in June 2012, Dr. Kaska opined:

            [Defendant's] primary limitations are intellectual and
            educational: He scored in the mildly retarded range
            when I tested him three years ago and he cannot read or
            write. But his current presentation suggests that he may
            be additionally handicapped by a thought disorder
            characterized by tangential thoughts and paranoid
            ideation. There is also a growing suspicion of auditory
            hallucinations but it remains undetermined whether he
            is experiencing "voices" or simply reporting his own
            troubling thoughts.

                                                                         A-3942-16T2
                                       12
                  The appropriate diagnostic formulation is beyond
            the scope of this evaluation and needs to be developed
            by clinical staff at the center. What is clear is that
            [defendant] is not at this time competent to stand trial
            and will not be so until his mental state is stabilized
            through a regimen of proper medication, therapy and
            education regarding court proceedings.

      Dr. Kaska testified that defendant appeared to have an understanding of

the roles of certain court personnel and the nature of the proceedings.

Nevertheless, Dr. Kaska testified it is possible for a person to feign

incompetence and still be incompetent to stand trial. On cross-examination, Dr.

Kaska acknowledged the best way to determine defendant's competency is by

looking to the opinions of professionals who see him on a regular basis. During

his 2015 interview, defendant did not display any unusual mannerisms and was

able to focus his attention. Defendant's command of the English language had

improved and he was able to use and understand advanced legal terminology.

      In an October 21, 2016 written opinion, the trial court found defendant

competent to stand trial by a preponderance of the evidence.           The judge

concluded Dr. Bajgier's testimony was the "most persuasive" and the

conclusions reached by Dr. Bajgier and Dr. Mack to be "much more thorough

and persuasive than that of Dr. Kaska." In reaching those conclusions the judge

engaged in the following analysis:


                                                                         A-3942-16T2
                                      13
Not only is Dr. Bajgier [d]efendant's current
psychiatrist and has been seeing [d]efendant for over a
year, but her testimony regarding [d]efendant's
competency is supported by numerous pieces of
evidence. Over the course of more than a year, Dr.
Bajgier has had the opportunity to test, communicate
with, and evaluate the competency of the [d]efendant.
Not only has [d]efendant's testing results shown
evidence of malingering, [d]efendant has openly
admitted to this.      Defendant has stated that he
understands that going to trial can lead to jail time, and
[d]efendant would much rather remain in AKFC, rather
than be sent to jail. Evidence of malingering is shown
through numerous tests conducted by Dr. Bajgier and
Dr. Mack.       Both doctor[]s testified to the fact
[d]efendant has been very open about his desires, which
tend to show competency. Through direct interaction
with [d]efendant and various testing conducted, Dr.
Bajgier and Dr. Mack concluded that [d]efendant is
malingering, and therefore would be competent to stand
trial.

       Only Dr. Kaska opined otherwise, basing his
evaluation off of limited interactions with the
[d]efendant. Dr. Kaska's conclusion is derived from a
90-minute interview in December of 2015 and a
psychological evaluation conducted in June of 2012,
Dr. Kaska, in his report . . . stated that [d]efendant was
able to "focus and sustain his attention" even though
there were noises coming from outside the hall. Also,
[d]efendant stated that he "only speak[s] English when
I feel like it," and Dr. Kaska noted that [d]efendant's
English has improved.            However, Dr. Kaska's
conclusion is merely based off of this 90-minute
interview with the [d]efendant, and a psychological
evaluation that is over four years old. In contrast, Dr.
Bajgier's evaluation of the [d]efendant is more in depth,
and involved conducting numerous psychological

                                                             A-3942-16T2
                           14
             examinations. Dr. Bajgier noted that the [d]efendant
             was alert and fully oriented, knew the charges against
             him, understood the roles of the judge, prosecutor, the
             defense attorney, and his rights to not testify when
             asked. Defendant also stated that he is motivated to
             obtain the best outcome for himself. Additionally, Dr.
             Mack agreed with the conclusion of Dr. Bajgier. Dr.
             Mack conducted numerous tests, including a CAST-
             MR exam and the ECST-R. These exams were
             developed to determine whether an individual is
             competent to stand trial. Dr. Mack's conclusion, one
             which Dr. Bajgier also agrees with, is that [d]efendant
             is deliberately feigning incompetency to stand trial.
             There were numerous inconsistencies with his
             statements, and at one point, [d]efendant even stated
             that he knew there was a lot of evidence against him
             and asked "what's the point of me going to trial?" and
             that it is a "waste of time."

      On February 27, 2017, defendant entered into a plea agreement, pleading

guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A.

2C:11-4(a)(1), in exchange for a sentencing recommendation of a 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 has no prior

adjudications of juvenile delinquency or other criminal convictions. Defendant

claims he was under the influence of alcohol, cocaine, and psychiatric

medications when he committed the offense.

                                                                       A-3942-16T2
                                      15
      At sentencing, the trial court found aggravating factors one (offense

committed in an especially heinous, cruel, or 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); and 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. This appeal followed.

      Defendant argues:

            POINT I

            BECAUSE THE FAMILY PART FAILED TO
            ENGAGE IN ANY REVIEW ON THE RECORD OF
            THE PROSECUTOR'S STATEMENT OF REASONS
            FOR WAIVER AND BECAUSE THE STATEMENT
            OF REASONS WAS DEFICIENT, THIS COURT
            MUST REMAND THIS MATTER TO THE FAMILY
            PART FOR A NEW WAIVER HEARING
            PURSUANT TO THE NEW WAIVER STATUTE,
            N.J.S.A. 2A:4A-26.1.

            POINT II

            THE MOTION COURT ERRED IN FINDING J.P.
            COMPETENT TO STAND TRIAL BECAUSE THE
            PROSECUTOR FAILED TO PROVE J.P.'S
            COMPETENCE BY A PREPONDERANCE OF THE
            EVIDENCE AND BECAUSE THE COURT
            OVERVALUED THE EVIDENCE OF J.P.'S
            TREATING PSYCHIATRIST.          U.S. CONST.,
            AMEND. XIV; N.J. CONST., ART. I, PAR. 10.

                                                                         A-3942-16T2
                                       16
            POINT III

            J.P.'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 J.P.'S AGE,
            ATTENDANT CIRCUMSTANCES, AND MENTAL
            ILLNESS, AND IMPROPERLY FOUND NON-
            STATUTORY AGGRAVATING FACTORS.

      The waiver statute in effect at the time of the waiver hearing in 2011,

N.J.S.A. 2A:4A-26, did not require consideration of the factors imposed by the

successor statute, N.J.S.A. 2A:4A-26.1(c)(3), which went into effect more than

four years later on March 1, 2016, L. 2015, c. 89, § 1. Instead, the statute only

required the State to prove defendant was at least sixteen years old at the time

the offense was committed and there was probable cause defendant committed

a delinquent act which if committed by an adult would constitute certain

enumerated offenses. N.J.S.A. 2A:4A-26. "Simply stated, when a sixteen-year

old or above is charged with an enumerated offense, the prosecutor need only

establish probable cause for the court to waive the juvenile to adult court." State

v. J.M., 182 N.J. 402, 412 (2005).

      The State has discretion to seek waiver of juvenile charges decision from

the Family Part to the Law Division. J.M., 182 N.J. at 419. The Attorney



                                                                          A-3942-16T2
                                       17
General was required by statute to establish guidelines for seeking waiver.

N.J.S.A. 2A:4A-26(f).

            The Legislature required the Attorney General to issue
            such guidelines to eliminate arbitrariness or abuse of
            discretionary power and to permit statewide uniformity
            in the exercise of prosecutorial discretion. See State ex
            rel. R.C., 351 N.J. Super. 248, 257 (App. Div. 2002).

                  Consistent with that mandate, the Attorney
            General prepared and published the guidelines for the
            prosecutor to follow in determining whether to seek
            waiver. Attorney General's Juvenile Waiver Guidelines
            (March 14, 2000).       The guidelines require the
            prosecutor to prepare a statement of reasons for a
            waiver application.

            [J.M., 182 N.J. at 419.]

The statement of reasons should accompany the waiver motion. Ibid.

      The Guidelines instructed prosecutors to consider the following factors in

deciding whether to seek a waiver: (1) the nature of the offense, including the

death of a victim, the role of the juvenile therein, whether grave and serious

harm was inflicted on the victim, and the use or possession of a weapon during

the course of the offense; (2) the need for deterrence; (3) the effect of waiver on

the prosecution of any co-defendants; (4) the maximum sentence and length of

time served; (5) the juvenile's prior record; (6) the likelihood of conviction and

the potential need for a grand jury investigation; and (7) the victim's or the


                                                                          A-3942-16T2
                                       18
victim's family's input. Guidelines at 5-6. The prosecutor briefly addressed

these factors in the statement of reasons for the waiver submitted to the court as

part of the State's waiver application.

      Acts of delinquency that, if committed by an adult, would constitute

criminal murder, first-degree robbery, and second-degree aggravated assault are

enumerated offenses under the both the current waiver statute, N.J.S.A. 2A:4A-

26.1(c)(1)(2) (a), (c), and (g), and the prior waiver statute, N.J.S.A. 2A:4A-

26(a)(1)(a) (repealed).    Defendant was seventeen when the offenses were

committed.        Consequently, the statutory enumerated offenses and age

requirements were met.

      The Family Part judge next considered whether there was probable cause

for the juvenile charges. "Probable cause is a well-grounded suspicion or belief

that the juvenile committed the alleged crime." J.M., 182 N.J. at 417 (citing

State v. Moore, 181 N.J. 40, 45 (2004)). Based on the evidence adduced during

the hearing, the judge found there was probable cause for each of the charges

brought against defendant. We agree. The evidence presented by the State at

the waiver hearing was more than sufficient to establish probable cause for each

of the charges.




                                                                         A-3942-16T2
                                          19
      The judge considered the waiver of defendant's juvenile charges to adult

court automatic given defendant's age, the charges he faced, and the existence

of probable cause for the charges. However, the waiver hearing "involves more

than just a determination of probable cause." State ex rel. N.H., 226 N.J. 242,

255 (2016). A prosecutor's decision to waive a juvenile complaint to adult court

is subject to review to determine "whether the waiver complied with the

'Juvenile Waiver Guidelines' issued by the Attorney General and whether it

constituted a gross and patent abuse of discretion." State ex rel. D.Y., 398 N.J.

Super. 128, 132 (App. Div. 2008). The Family Part judge did not reach or decide

either of those issues. Therefore, the case must be remanded to the Family Part

to make these determinations. J.M., 182 N.J. at 419; D.Y., 398 N.J. Super. at

132; R.C., 351 N.J. Super. at 262. 1

      This matter is on direct appeal. Defendant argues N.J.S.A. 2A:4A-26.1

should be given pipeline retroactivity and applied on remand. We agree. The

Supreme Court has applied pipeline retroactivity to the revised waiver statute.

N.H., 226 N.J. at 249. Therefore, the waiver hearing shall be "controlled by the



1
  We do not vacate the finding the State established probable cause defendant
committed the offenses charged. Therefore, on remand, the Family Part should
not reconsider the issue of probable cause.


                                                                        A-3942-16T2
                                       20
revised waiver statute." 2 Ibid. On remand, the prosecutor and the Family Part

judge shall consider the factors set forth in N.J.S.A. 2A:4A-26.1(c)(3). The

prosecutor shall be afforded a reasonable period to submit a revised statement

of reasons for the waiver addressing each of the statutory factors. The remand

judge shall make findings and conclusions of law. R. 1:7-4(a).

      We next address the trial court's determination defendant was competent

to stand trial. "The test for competency to stand trial arises from basic concepts

of due process." State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007).

When a defendant is tried while incompetent to stand trial, that defendant has

been "deprived of his due process right to a fair trial." State v. Cecil, 260 N.J.

Super. 475, 480 (App. Div. 1992).        The State has the burden of proving

competence to stand trial by a preponderance of the evidence. State v. Lambert,

275 N.J. Super. 125, 129 (App. Div. 1994). At a minimum, the State must show

the defendant "has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding and . . . a rational as well as factual

understanding of the proceedings against him." Purnell, 394 N.J. Super. at 47


2
   The recently published opinion in State v. Bass, ___ N.J. Super. ___ (App.
Div. Nov. 14, 2018) is distinguishable. In Bass, defendant appealed from the
denial of his fourth petition for post-conviction relief. The "defendant's direct
appeal ha[d] long since been concluded." Id. (slip op. at 14). Therefore, pipeline
retroactivity did not apply in Bass.
                                                                          A-3942-16T2
                                       21
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

      The test for competency to stand trial in New Jersey is codified in N.J.S.A.

2C:4-4(a), which provides: "No person who lacks capacity to understand the

proceedings against him or to assist in his own defense shall be tried, convicted

or sentenced for the commission of an offense so long as such incapacity

endures." The proofs must establish that the defendant understands his presence

in a courtroom facing criminal charges; the role of the judge, prosecutor and

defense attorney; his rights and the consequences of waiver of the same; and his

ability to participate in his own defense. N.J.S.A. 2C:4-4(b).

      Our review of a trial court's competency determination is "'typically, and

properly, highly deferential.'" State v. M.J.K., 369 N.J. Super. 532, 548 (App.

Div. 2004) (quoting State v. Moya, 329 N.J. Super. 499, 506 (App. Div. 2000)).

We do not review the factual record to determine how we would decide the

matter if we were "the court of first instance." State v. Johnson, 42 N.J. 146,

161 (1964).     Moreover, a trial court's determination on the subject of

competency will be sustained if there is sufficient supporting evidence in the

record. Purnell, 394 N.J. Super. at 50.

      We have considered the defendant's contentions in light of the record and

applicable legal principles and conclude the judge did not abuse her discretion


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in finding defendant competent to stand trial. We affirm substantially for the

reasons expressed by the judge in her well-reasoned written opinion. We add

the following comments.

      "[E]xpert testimony is needed where the factfinder would not be expected

to have sufficient knowledge or experience and would have to speculate without

the aid of expert testimony." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430

(App. Div. 2001) (citation omitted). "Expert testimony, however, 'need not be

given greater weight than other evidence nor more weight than it would

otherwise deserve in light of common sense and experience.'" State v. M.J.K.,

369 N.J. Super. 532, 549 (App. Div. 2004) (quoting Torres, 342 N.J. Super. at

430). The factfinder, of course, is free to accept or reject all or part of an expert's

testimony. Ibid. "Respecting expert opinions of psychiatrists or psychologists,

the court, sitting as a factfinder, must use its 'common sense and ordinary

experience.'" Ibid. (quoting In re Yaccarino, 117 N.J. 175, 196 (1989)). "This

is particularly true when, as here, the factfinder is confronted with directly

divergent opinions expressed by the experts." Ibid.

      Faced with the divergent opinions expressed by the experts, the judge,

sitting as the factfinder, gave more weight to the conclusions reached by Dr.

Bajgier and Dr. Mack, finding them to be "much more thorough and persuasive


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than that of Dr. Kaska." The judge determined defendant was competent to stand

trial by applying the standards contained in N.J.S.A. 2C:4-4.        The judge's

findings in this regard are based on evidence adduced at the hearing, which

included extensive expert testimony from both sides. The judge's findings,

which are fully supported by the record, command our deference.

         Finally, defendant argues his sentence must be vacated and the matter

remanded for resentencing because the trial court failed to consider his age, the

attendant circumstances, and his mental illness and improperly found non-

statutory aggravating factors. In light of our remand of the trial court's waiver

decision, we do not reach defendant's sentencing argument.

         In sum, we vacate the waiver of the juvenile charges to the Law Division

and remand for the Family Part to conduct a new waiver hearing pursuant to

N.J.S.A. 2A:4A-26.1, but affirm the finding that probable cause existed for the

juvenile charges. We affirm the order finding defendant competent to stand

trial.

         Affirmed in part and vacated and remanded in part for proceedings

consistent with this opinion. We do not retain jurisdiction.




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