                        RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0392-15T3


STATE IN THE INTEREST OF               APPROVED FOR PUBLICATION
J.F.,
                                            June 16, 2016

    A Juvenile.                           APPELLATE DIVISION

______________________________

         Argued March 2, 2016 – Decided June 16, 2016

         Before Judges Fuentes, Koblitz and Gilson
         (Judge Gilson concurring).

         On appeal from Superior Court of New Jersey,
         Chancery Division, Family Part, Atlantic
         County, Docket No. FJ-01-620-14.

         Sevan Biramian, Assistant Prosecutor, argued
         the cause for appellant State of New Jersey
         (James    P.   McClain,    Atlantic   County
         Prosecutor, attorney; Elliot J. Almanza,
         Assistant Prosecutor, of counsel and on the
         brief).

         Robert   Lougy,  Acting  Attorney  General,
         attorney for appellant State of New Jersey
         (Sarah Lichter, Deputy Attorney General, on
         the supplemental brief).

         Janet A. Allegro, Designated Counsel, argued
         the cause for respondent J.F. (Joseph E.
         Krakora,   Public  Defender,  attorney   for
         respondent; Ms. Allegro, of counsel and on
         the brief).

    The opinion of the court was delivered by

KOBLITZ, J.A.D.
      After leave was granted, the State appeals from the August

27,   2015     order    of     Judge      Michael        Blee    denying    the     State's

application, filed pursuant to N.J.S.A. 2A:4A-26 and Rule 5:22-

2, to waive jurisdiction of J.F.1 to adult court for certain

offenses he allegedly committed when he was fourteen years old.

Following an extensive hearing, Judge Blee found that J.F. had

met his burden of proving the probability of his rehabilitation

before   age    nineteen,        and    that       the    probability      substantially

outweighed      the     State's         reasons         for     waiver.        We     affirm

substantially for the reasons set forth in Judge Blee's August

13, 2015 written opinion.                 We also determine, after receiving

supplemental       briefs      on   the      issue       at   our   request,      that    the

State's position is contrary to the intent of the Legislature's

recent     repeal      and    replacement          of    N.J.S.A.     2A:4A-26,2       which

excludes     the    possibility         of    waiver      to    adult     court     for   all

juveniles      whose         unlawful        behavior         occurred     before      their

fifteenth birthday.             N.J.S.A. 2A:4A-26.1(c)(1).                  We therefore

also affirm on the alternate basis that the new statutory age

requirement as applied retroactively precludes waiver of J.F.3


1
   We use initials to protect the confidentiality of the
juveniles. R. 1:38-3(d)(5).
2
  See Act of Aug. 10, 2015, ch. 89, 2015 N.J. Laws 89; N.J.S.A.
2A:4A-26.1.
3
  It is a well-settled principle that a court may provide several
bases in reaching its ultimate conclusion. See Massachusetts v.
                                                      (continued)


                                               2                                    A-0392-15T3
                                       I.

      On January 8, 2014, when J.F. was only fourteen years and

eleven months old, he was involved in an incident in which he

was alleged to have shot two victims under the age of eighteen.

One   victim,   fifteen-year-old       D.T.,      was   shot   in   the   leg   and

buttocks, and the other, thirteen-year-old A.M.S., was shot in

the chest and died as a result of his wounds.

      A juvenile complaint was filed against J.F., charging him

with conduct that if he were an adult would constitute first-

degree purposeful murder, N.J.S.A. 2C:11-3(a)(1), second-degree

aggravated      assault,        N.J.S.A.       2C:12-1(b)(1),       second-degree

unlawful   possession      of    a   handgun,     N.J.S.A.     2C:39-5(b),4     and

second-degree possession of a handgun for an unlawful purpose,


(continued)
United States, 333 U.S. 611, 623, 68 S. Ct. 747, 754, 92 L. Ed.
968, 977 (1948) (where a case might have been decided on either
one of two independent grounds, but was decided on the basis of
both, the decision "rested as much upon the one determination as
the other . . . [and] the adjudication is effective for both");
McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th
Cir. 1977) ("It has long been settled that all alternative
rationales for a given result have precedential value.");
DeVincenzo v. W. N.Y., 120 N.J.L. 541, 543 (Sup. Ct. 1938)
(finding that alternative reasons provided in a prior decision
were not dicta because "[t]hey were the views of the court
embodying one of two reasons, both of which, obviously, were
effective in bringing the court to its conclusion").
4
  The juvenile complaint erroneously categorizes the charge as a
first-degree offense.   Possession of a handgun, however, is a
second-degree crime, N.J.S.A. 2C:39-5(b)(1), except when the
person has a prior conviction for certain specified crimes,
converting it to a first-degree crime. N.J.S.A. 2C:39-5(j).



                                           3                              A-0392-15T3
N.J.S.A.    2C:39-4(a).         Additional    charges    were    later    brought:

conduct that if he were an adult would constitute first-degree

knowing murder, N.J.S.A. 2C:11-3(a)(2); an additional count of

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); nine

counts   of    fourth-degree      aggravated        assault,    N.J.S.A.      2C:12-

1(b)(4); eight counts of third-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4; fourth-degree unlawful disposition of

a   firearm,    N.J.S.A.    2C:39-9(d);      fourth-degree       tampering     with

evidence,      N.J.S.A.    2C:28-6(1);        and     third-degree       hindering

apprehension, N.J.S.A. 2C:29-3(b)(1).

      The State moved, pursuant to N.J.S.A. 2A:4A-26 and Rule

5:22-2, for the involuntary waiver of jurisdiction of J.F. from

the Family Part to the Law Division, Criminal Part.                   Judge Blee

conducted a twelve-day waiver hearing.

      Atlantic City Police Sergeant David Weiss testified to the

following.       J.F.     was    identified    as     the   shooter      by    other

juveniles who were present at the January 8, 2014 incident.

Weiss learned that the victim, A.M.S., had been involved in a

fight with J.F.'s cousin the day before the incident.                    The fight

was recorded on a cell-phone camera, and posted to Facebook.5




5
  Facebook is a website whose self-described mission "is to give
people the power to share and make the world more open and
connected."          About          Facebook,          Facebook,
                                                     (continued)


                                       4                                   A-0392-15T3
A.M.S. had indicated that there would be retaliation for the

fight,    and     another   minor,    C.G.,       also    threatened        to    become

involved in the fight.        On the day of the shooting, C.G. went to

the school with several others to fight J.F.'s cousin.                                When

school    let   out,   C.G.   and    the       group   began    to   walk    from      the

school.     C.G. then encountered J.F. riding a bicycle.                             C.G.

punched J.F. four to five times in the face, ran away, and

informed the group that J.F. had a gun.                        Shortly thereafter,

C.G. and the group encountered J.F., who pulled out the gun and

opened fire.       The group then ran away until A.M.S. collapsed.

    Sergeant Weiss stated that J.F. and his cousin were allied

with the "Stanley Holmes Alliances," while the victims and their

friends    were    associated   with       the    "Back    Maryland     Alliances."

Weiss also repeated comments by others alleging past criminal

activity by J.F.

    Atlantic City Police Sergeant Christopher Barber testified

that certain photographs taken at Harborfields depicting J.F.

and other residents had been sent from the institution and later

posted online with gang verbiage written on them.6                          The State




(continued)
https://www.facebook.com/facebook/info/?tab=page_info       (last
visited Apr. 14, 2016).
6
  Harborfields is a juvenile detention center located in Egg
Harbor.   See Youth Detention – Harborfields, Atlantic County
                                                      (continued)


                                           5                                     A-0392-15T3
offered these postings to demonstrate that J.F. was affiliated

with a gang while he was in Harborfields.             Barber also discussed

several Twitter7 postings that he alleged demonstrated J.F.'s

gang involvement.

      Frederick Wilson, an employee at Harborfields, testified

that the staff did not open the outgoing mail from residents.

Wilson described a point system which allowed the residents to

purchase, among other things, photographs of themselves.                 Wilson

testified that J.F. was one of the top two residents in earning

points.      Detective      Lauren   Laielli   of     the    Atlantic    County

Sheriff's    Office,   testified      that   she     spoke   with   a    former

resident    of   Harborfields,       who   advised    her    of   gang     feuds

occurring there between the Stanley Holmes gang and the Back

Maryland gang.    She testified that she was told J.F. would shout

gang references at her informant while they were both housed at

Harborfields.

      During the rehabilitation phase of the trial, J.F. first

offered the testimony of R.A., J.F.'s aunt, who was a caseworker

for   the   Division   of   Child    Protection     and   Permanency.        R.A.


(continued)
Government,                http://www.atlantic-county.org/public-
safety/harborfields.asp (last visited Apr. 12, 2016).
7
  Twitter is self-described as "an information network made up of
140-character messages called Tweets."      Getting Started With
Twitter,   Twitter,   https://support.twitter.com/articles/215585
(last visited April 12, 2016).



                                       6                                A-0392-15T3
testified that she was aware that J.F. was beaten up more than

once by neighborhood residents.              In one incident, J.F. was beat

up and kicked in the head, and was taken to the hospital for

treatment.       R.A.     testified    that     J.F.   was    always    quiet    and

reserved, and that he was "never a bad child."

      Rochelle    Andress,     a    social      worker     who   had    worked    at

Harborfields      since    1997,      described     the      daily    routine    for

residents at Harborfields, and also gave a description of the

living   arrangements       and     rehabilitative        services.        Andress

testified    that    the     Juvenile        Justice     Commission     supervises

Harborfields, and its overall goal is to "rehabilitate juveniles

and help them reach their full potential."                     Andress described

the   different     programs      offered     at   Jamesburg8    for    juveniles,

including    certain      vocational     training,        cognitive     behavioral

therapies and counseling.          Regarding J.F., she stated:

            We don't have any problems with [J.F.]. He
            gets along well with others. He's compliant
            and respectful when he interacts with the
            staff. He participates in everything that we
            provide to him. Been pos[itive] most of the
            time that he's been there. Haven't had any
            problems with him at all I mean and he's
            been there for a year and generally in that
            amount of time behavior tend to rear their

8
  Jamesburg is also known as the New Jersey Training School, a
juvenile detention center located in Monroe Township. See
generally New Jersey Training School, Office of the Attorney
General, http://www.nj.gov/oag/jjc/secure_njts.htm (last visited
Apr. 12, 2016).



                                         7                                A-0392-15T3
               ugly little head with kids and with him we
               just have not had that.      He's been, you
               know, in my opinion a model resident.

Andress   described       the    rating   and     point       system    utilized     at

Harborfields,       stating     that   J.F.      had     positive       ratings     and

responds well to the program.             J.F. was a high "point earner."

Andress explained that J.F. had earned enough points to have

special visits, which allowed him extra time to see his family.

J.F. and his mother speak regularly over the phone.                         According

to Andress, J.F.'s mother was in the top one percent as far as

parent involvement with J.F.

    J.F. was also involved in a number of afterschool programs

at Harborfields.         Andress described the programs, in particular

a program that sought to teach the residents about decision-

making skills.       J.F. elected to participate on his own, which

was not typical of most residents.                  J.F. had been respectful

throughout his stay and was in the top five percent of students

at Harborfields in terms of behavior.                  Andress opined that J.F.

had potential and had done well in the structured environment of

Harborfields.

    Andress also had been provided gang awareness training at

Harborfields.       She explained that Harborfields did not have a

policy    on    separating      juveniles      based     on   gang     affiliations.

Andress   had     read   the    State's       expert's    report       on   J.F.   that




                                          8                                   A-0392-15T3
mentioned    a    gang,    but   was    unaware       of    J.F.       having   any     gang

affiliation until an investigator came to the school inquiring

about photographs containing gang verbiage.                        Andress testified

that it is likely that members of the Back Maryland gang attend

classes    at    Harborfields     with        J.F.,    but      there     had     been    no

incidents caused by their attendance together.

       Shannon Rawson, J.F.'s eighth grade teacher, described an

instance in 2012 when J.F. complained of being "jumped" by grown

men.      Rawson    contacted    J.F.'s       mother       to    inform     her    of    the

incident.       Another juvenile stated in class that he was going to

shoot J.F. in the face, and have other juveniles come beat him

up.    Boys would frequently come to J.F.'s school to fight him or

his    younger     brother.        On     another          occasion,       J.F.    cried,

complaining that other boys were fighting with him outside of

the school.       Rawson had not witnessed J.F. act as the aggressor;

he often protected himself and his brother.

       Rawson    also     witnessed     A.M.S.    fight         with    J.F.'s    younger

brother.    The day of the shooting, Rawson saw a cell phone video

depicting J.F. "riding up on a bike and this big, fat Spanish

kid hitting him from behind and knocking him off the bike. And

he's -- and then the gang of boys who were in the crowd jumped

on him."    Rawson explained that another boy approached J.F. from

behind and punched him in the back of the head.




                                          9                                       A-0392-15T3
    Dr.     Ronald   S.   Gruen,   a   clinical   psychologist,   testified

that he met with J.F. twice.                On his first visit, J.F. was

guarded and distrusting, but on his second visit he was more

forthcoming.     Dr. Gruen conducted a lengthy clinical interview

followed by psychological testing.             Dr. Gruen stated that J.F.

expressed

            the fact that he was pursued and harassed
            and beaten up many times by this other
            gentleman that he subsequently shot. And
            that he had appealed to the authorities at
            Crawford School, he had told his mother.
            His mother had told the police and the
            school officials and nothing was really done
            in his opinion and he just couldn’t stand it
            anymore.   He could not stand constantly --
            he said he felt paranoid, he had eyes in the
            back of his head when he would leave the
            school building. He was very unnerved, very
            nervous, upset and feeling he just had no
            way out.

Dr. Gruen believed J.F.'s claims of being threatened and beaten

up were legitimate.       J.F. denied being in a gang, although Dr.

Gruen did not completely believe him.             J.F.'s recitation of his

poor treatment was consistent with J.F.'s eighth-grade teacher's

account.    J.F. was respectful in their interactions.            Dr. Gruen

stated:

            He really suffered from poor self-esteem and
            he felt obligated to protect his brother and
            he didn't feel he was doing a very good job
            of that either. And I think that, you know,
            this tormented him. And when you're a young
            adolescent like that, you want to be king of




                                       10                          A-0392-15T3
             the hill.   And I think he felt very small
             and very defenseless.

Dr. Gruen discussed how bullying might affect a fourteen-year-

old   high     school   student,      stating      that    "desperate   people   do

desperate things."

      Dr. Gruen also testified that he met with J.F.'s mother,

who appeared to care for J.F. deeply.                    Dr. Gruen testified that

the     mother-son      bond    is     a        strong    factor   in   assessing

rehabilitation potential.            J.F.'s mother indicated that she made

several attempts to end the bullying, having spoken with other

parents and the authorities.

      Dr. Gruen also spoke with Andress, who gave J.F. a strong

endorsement.       Dr. Gruen noted that in his other interactions

with the administration at Harborfields, he generally did not

get a positive response about the juveniles detained there.

      Dr. Gruen stated that J.F.'s age was also a positive factor

in terms of rehabilitation, noting that at fourteen years old, a

child    has    not     truly   formed      his     personality,    which    could

therefore be influenced in a positive direction.                   Dr. Gruen did

not believe J.F. suffered from antisocial personality disorder

despite some behavioral issues.                 Dr. Gruen believed J.F.'s drug

involvement negatively impacted his rehabilitation, but he did

not view this as a long-term issue.                  J.F. seemed relieved that

he was at Harborfields and not on the street being bullied.                      The



                                           11                             A-0392-15T3
Family    Court       could    offer     the      proper    services    for    J.F.     to

continue    on    a    path    to     rehabilitation.         Jamesburg       offered    a

"closed setting" where J.F. would be monitored, and he would

benefit    from       the     group    and     individual     therapy,     vocational

training, and schooling.                Dr. Gruen's ultimate conclusion was

that J.F. could be rehabilitated by the age of nineteen.

    In     rebuttal,        the     State    called   Dr.    Louis     Schlesinger,      a

forensic psychologist.                Dr. Schlesinger testified that he met

with J.F. once and did not have any contact with J.F.'s mother.

Dr. Schlesinger testified to J.F.'s family circumstances, noting

that his mother had been a constant presence in J.F.'s life, but

that J.F. had no contact with his biological father, who was

imprisoned in a different state.                    Dr. Schlesinger conducted a

battery of psychological tests.                   Dr. Schlesinger described J.F.

as follows:

            He was pleasant, he was very pleasant.    He
            was very cooperative.   He was very polite.
            He worked carefully. He seemed to me to be
            motivated.   He presented himself, to me,
            throughout -- initially as being bullied by
            a group of individuals, as a victim of being
            bullied. Eventually, I told him that I knew
            all the details of all this, and he became a
            little bit more forthcoming. He told me his
            background adequately. I thought he denied
            and minimized his involvement with youth
            gang activity, as well as his drug-selling
            behavior and drug use, as well. I challenged
            him at a few points, as I do with every
            individual, and he kept his composure.    He
            was never disrespectful throughout, ever.



                                             12                                 A-0392-15T3
              He was not hostile.    He did become tearful
              when discussing his future.

              His concentration was fine. I was with him
              for over five hours. His attention span and
              concentration were fine.   There was nothing
              bizarre about him.   He wasn't inappropriate
              in any way, and he was just very super-
              polite throughout.

Dr. Schlesinger stated that J.F. described a situation in which

he    was    bullied,   which       led     J.F.    to    protect       himself     and    his

younger      brother    by     getting      involved       in    the    shooting.          Dr.

Schlesinger testified that J.F. denied knowledge of any gangs.

       Dr.    Schlesinger       noted      that    although       Dr.    Gruen's     report

correctly stated        that J.F. had no prior criminal record,                             he

believed not being caught was different from not being involved

in past criminal conduct.                  Dr. Schlesinger testified that J.F.

had    admitted        using       marijuana,        and        previously     had        used

prescription      drugs.        He    opined       that    J.F.'s      inconsistent        and

untruthful      answers      to      his    interview       questions        were    not     a

positive      indicator      for   rehabilitation.              Dr.    Schlesinger        also

testified that J.F. had average to low-average intelligence, and

demonstrated some personality deficiencies that could later lead

to a personality disorder.                   Other tests evidenced that J.F.

might be mildly depressed and have problems with impulses and

inner anger.       He stated J.F. appeared to suffer from a conduct

disorder.




                                             13                                     A-0392-15T3
       Dr.     Schlesinger            opined       that      J.F.         had     accepted

responsibility for his actions relating to the shooting, but had

not accepted responsibility for many other actions.                               Although

J.F.    had     made     a     good    institutional         adjustment          while    at

Harborfields,        J.F.'s      contact          with     gang     members       strongly

influenced Dr. Schlesinger's opinion of J.F.'s probability for

rehabilitation.          Dr. Schlesinger opined that J.F.'s "mind is

still in the street."            Dr. Schlesinger concluded rehabilitation

was "only remotely possible."

       In his detailed forty-five-page written opinion, Judge Blee

found, pursuant to N.J.S.A. 2A:26A-26, the State proved probable

cause for the charge of first-degree murder, but that J.F. had

demonstrated       the   probability         of    rehabilitation         prior    to    age

nineteen      by   use   of    the    procedures,        services,    and       facilities

available to the court, substantially outweighed the reasons for

waiver.

       Judge Blee found J.F. had been bullied for two years prior

to   the     incident    and    had     no   prior       exposure    to    the    juvenile

justice system "in terms of charges, court-ordered services, or

supervision."          Judge Blee found significant evidence of social

media interaction evidencing J.F.'s affiliation with a gang, but




                                             14                                    A-0392-15T3
noted that the State had not charged him with gang criminality.9

The    judge    stated    J.F.'s    gang    involvement     "was    a     significant

factor     to      consider        in      weighing   the      possibility            of

rehabilitation."         Judge Blee wrote:

               Due to J.F.'s young age and the strong
               possibility of lengthy incarceration, any
               gang affiliations the Juvenile has are
               likely to be severed by the time J.F. is
               released from custody.      It is very likely
               that   current     gang    members    will   be
               disassociated from the gang and living
               relatively normal lives, incarcerated or
               deceased.    There is also the possibility
               that the present gangs will be dissolved at
               the time J.F. is released. The court notes
               that although there was evidence presented
               at the hearing demonstrating possible gang
               affiliations,    the    court    must   equally
               consider the fact that the Juvenile has not
               had exposure to the juvenile justice system
               in terms of charges, court-ordered services,
               or supervision prior to the incident.

The judge also considered J.F.'s post-incident conduct.                            J.F.

had     been     compliant    and       respectful    during        his     time      at

Harborfields,       receiving      positive      reviews     from       supervisors.

Judge Blee was "disturbed with the communication from J.F. to

other    alleged      gang    member[s],"       but   explained         that      these

individuals appeared to be J.F.'s only friends, and because he

was just beginning the rehabilitative process, some error in

judgment was to be expected.


9
    See N.J.S.A. 2C:33-29.



                                           15                                  A-0392-15T3
    Judge Blee also found the testimony of Sergeants Weiss and

Barber    to    be     "credible"     and    the     testimony         of    social      worker

Andress    and       J.F.'s    teacher      Rawson    to     be    "highly         credible,"

noting     that        Andress's       testimony          had     provided         important

information      about       J.F.'s   behavior       at    Harborfields.              Rawson's

testimony regarding the background of J.F. as a student and the

conflicts      he     faced   "had    the    most     significant           impact     on      the

court."

    Judge        Blee     found      Dr.    Gruen's       evaluation          of   J.F.        was

"thoughtful      and     comprehensive,       and     that      his    conclusions            were

credible       and     well-supported."            Judge        Blee    found      that        Dr.

Schlesinger          testified    credibly        about     J.F.'s          ability      to     be

rehabilitated,         but    found   that    Dr.     Gruen's      opinion         was    "more

reasonable and persuasive."

    Judge Blee found J.F. clearly presented a number of risk

factors, "including an absent father, gang involvement, previous

drug use, and defiance."              He found that J.F. was thriving "in a

structured, safe, organized, and closely monitored environment."

Judge Blee concluded J.F. had demonstrated that there was a

probability of rehabilitation before he turned nineteen.

    Judge Blee then balanced the reasons for waiver against the

prospects of rehabilitation.                 Judge Blee analyzed J.F.'s case

pursuant to the five factors enunciated in State ex rel. C.A.H.,




                                             16                                       A-0392-15T3
89 N.J. 326 (1982).         He found that the first and second factors,

seriousness of the alleged offense and deliberate nature of the

offense, militated in favor of waiver.                     The third factor, age of

the offender, militated against waiver because J.F. was fourteen

at the time of the offense.                  The       fourth and fifth factors,

history of prior infractions and prior exposure to the juvenile

justice      system,     given       J.F.'s        prior     drug     use,       but       also

considering that J.F. had no exposure to the juvenile justice

system prior to the instant offense, militated against waiver.

Judge      Blee   also     considered          other       factors,       such        as    the

presumption of waiver in murder cases, the legislature's intent

in adding judicial oversight of waiver cases for juveniles under

sixteen, the need for deterrence balanced against J.F.'s age and

the     sentencing     disparity       for        murder    between       juveniles          and

adults.      Ultimately, Judge Blee determined that "J.F.'s strong

and     compelling       prospects       for       rehabilitation          substantially

outweigh the standard of the attenuated argument of deterrence

in this case."

                                          II.

      On    appeal,      the     State    contends         that     the    trial           judge

improperly found certain testimony favoring the juvenile more

credible than appropriate and gave less weight to the State's

evidence     concerning        the   juvenile's       gang    ties    than       he    should




                                             17                                       A-0392-15T3
have.     The State also argues that the trial judge erred in

assessing    the    probability     of     J.F.’s   rehabilitation.        We

disagree.

      Our standard of review in juvenile waiver cases "is whether

the     correct    legal     standard      has   been    applied,   whether

inappropriate      factors   have   been   considered,    and   whether   the

exercise of discretion constituted a 'clear error of judgment'

in all of the circumstances."            State v. R.G.D., 108 N.J. 1, 15

(1987) (quoting State v. Humphreys, 89 N.J. 4, 13 (1982)).                When

reviewing these matters, it is required that "1) findings of

fact be grounded in competent, reasonably credible evidence, 2)

correct legal principles be applied, and 3) the judicial power

to modify a trial court's exercise of discretion will be applied

only when there is a clear error of judgment that shocks the

judicial conscience."        State ex rel. A.D., 212 N.J. 200, 215

(2012) (quoting R.G.D., supra, 108 N.J. at 15).                 Importantly,

consideration should be given to the experience of the Family

Court in adjudicating juvenile waiver cases:

            The common sense and experience of the
            Family Part must always be brought to bear
            on the ultimate question of rehabilitative
            potential.   For although the weight to be
            given to expert or other evidence bearing on
            the probability of rehabilitation properly
            is to be judged by such factors as the
            extent to which the witness may have tested
            the juvenile, the manner of testimony, or
            the interest of the witness, none can



                                     18                             A-0392-15T3
            properly substitute for the court's ultimate
            responsibility to determine whether the
            statutory criteria have been met.

            [R.G.D., supra, 108 N.J. at 16 n.7.]

      In   his   lengthy    written   opinion,   Judge   Blee   applied    the

settled waiver law to the facts as he found them.               As a Family

Court judge, he has expertise in matters concerning juveniles,

as   did   several   of     the   witnesses   who   appeared    before    him,

including the two experts, J.F.'s teacher and the social worker

at Harborfields.     We defer to Judge Blee's expertise, and affirm

on the basis of his thorough opinion, which was based on the

"competent, reasonably credible evidence."           See A.D., supra, 212

N.J. at 215.

                                      III.

      Judge Blee's August 13, 2015 opinion stated that he was not

applying the recent legislation signed by the Governor on August

10, 2015, effective March 1, 2016, which repealed and replaced

N.J.S.A. 2A:4A-26.         See Act of Aug. 10, 2015, ch. 89, 2015 N.J.

Laws 89.    Under the revised waiver statute, a juvenile cannot be

waived to the Law Division unless the State can establish that

"the juvenile was 15 years of age or older at the time of the

delinquent act."      N.J.S.A. 2A:4A-26.1(c)(1).         J.F. was fourteen

years old at the time of the shooting.              Thus, if the revised

statute were applied, J.F. would not be subject to waiver.




                                       19                           A-0392-15T3
       The State argues in its supplemental brief that we should

not apply the revised waiver statute in this case.                                  The State

contends that criminal statutes are generally presumed to have a

prospective        effect,       and   should       not     be    applied         to     pending

appellate cases.

       As   a    general       principle,      in   criminal          as    well       as    other

statutes, "the law favors prospective, rather than retroactive,

application       of     new    legislation       unless    a    recognized            exception

applies."        Ardan v. Bd. of Review, ___ N.J. Super. ___ (2016)

(slip op. at 10); State v. Parolin, 171 N.J. 223, 233 (2002).

That presumption, however, "is no more than a rule of statutory

interpretation."           State v. Bey, 112 N.J. 45, 103 (1988) (quoting

Rothman v. Rothman, 65 N.J. 219, 224 (1974)).                                 "Courts must

apply a two-part test to determine whether a statute should be

applied retroactively: (1) whether the Legislature intended to

give   the       statute       retroactive     application;           and     [if       so]      (2)

whether      retroactive         application        'will       result       in    either        an

unconstitutional interference with vested rights or a manifest

injustice.'"            Ardan v. Bd. of Review, supra, slip op. at 10

(quoting        James    v.    N.J.    Mfrs.    Ins.      Co.,    216       N.J.       552,      563

(2014)).

       Under the first part of the test enunciated in James, the

presumption        against       retroactivity         "can      be        overcome         by    an




                                             20                                         A-0392-15T3
indication of contrary legislative intent, either expressed in

the language of the statute itself, or implied in its purpose."

See Bey, supra, 112 N.J. at 103.                      When an appellate court finds

that     retroactive        legislative            intent      exists,     it     is      well-

established that the court must "apply the statute in effect at

the time of its decision . . . to effectuate the current policy

declared by the legislative body."                          Ibid. (quoting Kruvant v.

Mayor    &    Council      of    Twp.     of    Cedar       Grove,   82    N.J.    435,      440

(1980)).

       Within the first part of the test, three exceptions to the

general rule of prospective application are well-established:

(1) when the Legislature intended retroactive application of the

statute either expressly, as "stated in the language of the

statute or in the pertinent legislative history," or implicitly,

requiring retroactive application to "make the statute workable

or to give it the most sensible interpretation"; (2) when the

statute       is   "ameliorative           or      curative";        or    (3)    when       the

"expectations         of        the     parties          may     warrant         retroactive

application."        Gibbons v. Gibbons, 86 N.J. 515, 522-23 (1981).

"Under       the   second       exception       to    the    general      rule,    the     term

'ameliorative'        refers       only       to     criminal    laws     that     effect       a

reduction in a criminal penalty."                      Street v. Universal Mar., 300

N.J.    Super.      578,    582       (App.     Div.    1997)    (quoting        Kendall      v.




                                                21                                     A-0392-15T3
Snedeker, 219 N.J. Super. 283, 286 (App. Div. 1987)).                          "The

ameliorative exception first appeared in New Jersey in the case

of   In   re    Smigelski,    30    N.J.   513,   527   (1959),   in   which   the

Supreme    Court    held     that   a   statutory    amendment    restricting     a

juvenile's possible exposure to commitment was ameliorative and

thus could be applied retroactively."                Kendall, supra, 219 N.J.

Super. at 286.        Our Supreme Court cited People v. Oliver, 151

N.Y.S.2d 367 (1956), a New York case, for this proposition.

Smigelski, supra, 30 N.J. at 527.               Oliver states:

               [W]here an ameliorative statute takes the
               form of a reduction of punishment for a
               particular crime, the law is settled that
               the lesser penalty may be meted out in all
               cases decided after the effective date of
               the enactment, even though the underlying
               act may have been committed before that
               date.

               . . . A legislative mitigation of the
               penalty for a particular crime represents a
               legislative judgment that the lesser penalty
               or the different treatment is sufficient to
               meet the legitimate ends of the criminal
               law.   Nothing is to be gained by imposing
               the more severe penalty after such a
               pronouncement; the excess in punishment can,
               by hypothesis, serve no purpose other than
               to satisfy a desire for vengeance. As to a
               mitigation of penalties, then, it is safe to
               assume, as the modern rule does, that it was
               the legislative design that the lighter
               penalty should be imposed in all cases that
               subsequently reach the courts.

               [Oliver, supra, 151 N.Y.S.2d at 373.]




                                           22                            A-0392-15T3
We note that "[e]very statutory amendment which ameliorates or

mitigates a penalty for a crime is not automatically subject to

a presumption of retroactivity.        The ameliorative amendment must

be aimed at mitigating a legislatively perceived undue severity

in the existing criminal law."        Kendall, supra, 219 N.J. Super.

at 286 n.1.

     The revised waiver statute was intended to ameliorate the

punitive sentencing previously meted out to adolescent offenders

after   waiver.   The   legislative     action   was   also   intended    to

address the treatment needs of children.10         The increase in the

minimum waiver age is part of that emphasis on rehabilitation

rather than punishment, a part of the effort to ensure that

children do not become prey to adult inmates nor suffer the many

societal consequences of an adult criminal record.11            Among the

changes in the revised waiver statute is the new post-waiver

provision, requiring that a juvenile case be remanded to the

Family Part for disposition if the juvenile is convicted of an


10
   See Reforms to the Juvenile Justice System: Committee Meeting
on S. 2003 Before the S. Law & Pub. Safety Comm'n, 216th Leg.,
2d Sess. (March 12, 2015) (statement of Sen. Nellie Pou); see
also Michael Booth, Christie OKs Juvenile Justice Reforms,
N.J.L.J.              (Aug.               11,              2015),
http://www.njlawjournal.com/id=1202734482923/Christie-OKs-
Juvenile-Justice-Reforms?slreturn=20160319110141.
11
   See Reforms to the Juvenile Justice System: Committee Meeting
on S. 2003 Before the S. Law & Pub. Safety Comm'n, 216th Leg.,
2d Sess. (March 12, 2015) (statement of Sen. Nellie Pou).



                                  23                              A-0392-15T3
offense    that      would     not    have   initially        rendered    him   or    her

eligible      for    waiver,    N.J.S.A.      2A:4A-26.1(f)(2).           The   statute

also    for    the    first        time   provides     a      presumption    that,     if

convicted after waiver, the juvenile will serve any custodial

sentence imposed in a state juvenile facility until the age of

twenty-one, and gives the Juvenile Justice Commission (JJC) the

discretion to allow the individual, with his or her consent, to

continue      to    serve    the     sentence     in   that    facility     even   after

turning twenty-one, N.J.S.A. 2A:4A-26.1(f)(1).12

       Scientific      knowledge          regarding     the     limited     biological

development of the teenage mind has advanced13 and society no


12
   We do not opine on the retroactivity of the other provisions
in the revised waiver statute because they are not relevant to
the issues before us.
13
   With improvements in magnetic resonance imaging technology,
studies have shown that the frontal lobe, where decisions
regarding judgment and risk-taking are made, does not fully
develop in juveniles until their mid-twenties.            See Michele
Deitch et al., From Time Out to Hard Time: Young Children in the
Adult      Criminal       Justice      System       13-14      (2009),
http://www.utexas.edu/lbj/archive/news/images/file/From%20Time%2
0Out%20to%20Hard%20Time-revised%20final.pdf        (discussing     the
cognitive    and    psychological     development     of    juveniles;
specifically, frontal lobe development and its relation to
decision-making in juveniles); see also Graham v. Florida, 560
U.S. 48, 68, 130 S. Ct. 2011, 2026, 176 L. Ed. 2d 825, 841
(2010) ("As compared to adults, juveniles have a 'lack of
maturity and an underdeveloped sense of responsibility'; they
'are more vulnerable or susceptible to negative influences and
outside   pressures,    including    peer    pressure';    and   their
characters    are    'not    as   well    formed.'    These    salient
characteristics mean that '[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender
                                                           (continued)


                                             24                                 A-0392-15T3
longer   thinks       of    a    fourteen-year-old           as    a    fully   developed

individual who might be incapable of rehabilitation.                                 Recent

scientific research establishes that children under the age of

fifteen will change through maturation.                           The Legislature, in

raising the age requirement for waiver by one year, determined

that children who commit offenses when under the age of fifteen

should   never    be       waived       up   to    face    adult       penalties.        This

legislative determination to ameliorate an unduly harsh penalty

for   fourteen-year-old             juveniles         supports          the    retroactive

application of the revised waiver statute.                         See Kendall, supra,

219 N.J. Super. at 286 n.1.

      Finding that the revised age requirement of the statute

should be applied retroactively to J.F. pursuant to the first

part of the James test, we must next consider the second part of

the two-part test.           See Ardan v. Bd. of Review, supra, slip op.

at 13.    The State makes no argument that it would suffer an

"unconstitutional interference with a vested right or a manifest

injustice."           See       ibid.        Retroactively          applying     the      age

requirement      of    the      revised      waiver       statute      would    impose     no



(continued)
whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable
corruption.'" (alterations in original) (citations omitted)
(quoting Roper v. Simmons, 543 U.S. 551, 569-70, 573, 125 S. Ct.
1183, 1195, 1197, 161 L. Ed. 2d 1, 22, 24 (2005))).



                                              25                                    A-0392-15T3
"unfairness   [or]   inequity".        See   Oberhand       v.     Dir.,   Div.    of

Taxation, 193 N.J. 558, 572 (2008) (quoting In re D.C., 146 N.J.

31, 58 (1996)).      Thus, the second part of the James test does

not limit retroactive application of the revised waiver statute.

    Were we to disagree with Judge Blee's findings and consider

the extraordinary action urged by the State — waiving J.F. based

on our review of the record without a remand — we would be

constrained to "apply the statute in effect at the time of [our]

decision" in accordance with the "current policy declared by the

legislative   body."     Bey,     supra,      112    N.J.     at    103    (quoting

Kruvant, supra, 82 N.J. at 440).

    Alternatively,      were      we     to         reverse        Judge    Blee's

determination and remand for a new waiver hearing, the judge

would apply the age requirement of the revised waiver statute,

not only for the reasons expressed above, but also because the

"savings statute" anticipates the utilization of more lenient

sentencing provisions enacted prior to the imposition of the

penalty.   Pursuant to N.J.S.A. 1:1-15:

           No offense committed, and no liability,
           penalty or forfeiture, either civil or
           criminal, incurred, previous to the time of
           the repeal or alteration of any act or part
           of any act, by the enactment of the Revised
           Statutes or by any act heretofore or
           hereafter enacted, shall be discharged,
           released or affected by the repeal or
           alteration of the statute under which such
           offense, liability, penalty or forfeiture



                                    26                                     A-0392-15T3
             was   incurred,   unless  it   is   expressly
             declared in the act by which such repeal or
             alteration is effectuated, that an offense,
             liability, penalty or forfeiture already
             committed or incurred shall be thereby
             discharged, released or affected; . . . .

             [(Emphasis added).]

"[T]he   savings   statute      was   designed   to    prevent    a   new     law    —

absent an express declaration when the new law is enacted — from

'discharg[ing], releas[ing] or affect[ing]' the application of

an existing law, but it contains different triggering events for

different occurrences."          State ex rel. C.F., 444 N.J. Super.

179,   188    (2016)   (second,       third,   and    fourth     alterations        in

original) (quoting N.J.S.A. 1:1-15).                 The statute contains an

important distinction, noting that "'offense[s]' are 'committed'

and    'penalt[ies]'      are   'incurred.'"          Ibid.    (alterations         in

original) (quoting N.J.S.A. 1:1-15).             In evaluating retroactive

application, we consider the "date an offense was committed in

determining whether a new law, which discharges, releases or

affects an offense, should be applied to that offense, but . . .

look to the date a penalty was incurred to determine whether a

new law should discharge, release or affect the penalty for the

offense."     Id. at 188-89.

       In C.F., we scrutinized whether a defendant, who was a

juvenile at the time the offense was committed forty years ago,

should   be    punished     according     to   the     current    more      lenient



                                        27                                  A-0392-15T3
sentencing laws, calling for a maximum of ten years in prison,

or   the    1976      statute    authorizing      an   indeterminate      to    life

sentence:

              [P]unishment for criminal offenses is based
              not only on the need to confine an offender
              for the protection of society, but also to
              deter   future  criminal   conduct  and   to
              rehabilitate the offender.    These concerns
              are not necessarily served by imposing a
              penalty society no longer deems proper.   In
              this sense, it has been recognized that an
              "ameliorative"  statute  "may    be  applied
              retroactively."

              [Id. at 190 (quoting Smigelski, supra, 30
              N.J. at 527).]

      For the very reasons expressed in C.F., the current age

provision should be applied to a juvenile such as J.F. who,

under the revised statute, would no longer face the possibility

of   waiver     as    a    result   of    any   offenses    he   committed      as   a

fourteen-year-old.          As we have previously outlined, a waiver to

adult court is part of the extended process of determining the

severity      of     the   sentence      that   will   be   doled   out     after    a

determination that the juvenile has committed an offense.

      Lastly, the State argues in its supplemental brief that the

holding    in      C.F.    is   inapplicable     because    a    juvenile      waiver

statute does not deal with penalties, but, rather, is merely a




                                           28                               A-0392-15T3
procedural mechanism.14     The State's argument that the revised

waiver   statute   is     procedural   squarely   contradicts      their

insistence on adherence to the prior waiver statute.       As stated

in N.J.S.A. 1:1-15:

          [W]hen the Revised Statutes, or other act by
          which    such   repeal    or   alteration   is
          effectuated, shall relate to mere matters of
          practice    or   mode    of   procedure,   the
          proceedings had thereafter on the indictment
          or in the prosecution for such offenses,
          liabilities, penalties or forfeitures shall
          be   in   such   respects,   as   far   as  is
          practicable,    in    accordance    with   the
          provisions of the Revised Statutes or such
          subsequent act.

          [(Emphasis added).]

Thus, were we to accept the State's argument that the statute is

procedural and also determine that a new hearing was warranted,

the revised waiver statute would control that hearing.

     We affirm both on the basis of Judge Blee's comprehensive

opinion and based upon the retroactive application of N.J.S.A.




14
   Although not argued by the State, we have considered the
Legislature's determination to make the statute effective seven
months   after   enactment.     In   determining   a   statute's
retroactivity, its effective date is relevant to the first
exception enunciated in Gibbons and not the analysis of whether
the statute was ameliorative. See Lombardo v. Revlon, Inc., 328
N.J. Super. 484, 490 (App. Div. 2000).   Further, the delay was
likely necessitated by the Attorney General's need to prepare
guidelines and the requirement that the JJC establish a program
to gather and report data. N.J.S.A. 2A:4A-26.1(c), (g).



                                  29                            A-0392-15T3
2A:4A-26.1(c)(1), which precludes the waiver of juveniles who

are less than fifteen years old at the time of the offense.

    Affirmed.




                               30                        A-0392-15T3
                             RECORD IMPOUNDED


GILSON, J.S.C. t/a, concurring.

      I join in parts I and II of the majority's well-reasoned

opinion.      I do not join in part III because we need not address

whether the age restriction in the recently revised N.J.S.A.

2A:4A-26.1(c)(1) applies retroactively.

      As the majority noted, Judge Blee did not apply the revised

statute, which became effective on March 1, 2016.                      Moreover, no

party   raised      the    retroactive    application        of   N.J.S.A.      2A:4A-

26.1(c)(1) on this appeal.            Instead, this court raised the issue

at   oral     argument     and,   thereafter,     we       directed    supplemental

briefing      on    that    issue.       Under   these       circumstances,       the

retroactive application of the age restriction in the revised

statute was not, in my view, an alternative holding.

      My decision not to join in part III of this opinion is

based on the principle that courts should not reach issues that

are not necessary to the resolution of a case and, thereby, run

the risk of giving an advisory opinion.                     See G.H. v. Twp. of

Galloway, 199 N.J. 135, 136 (2009) (declining to reach questions

of   limits    to   statutory     preemption     of    municipal       action    in   a

challenge to the viability of existing ordinances).                          In that

regard, our Supreme Court has consistently reasoned that "[t]he

judicial      function     operates    best   when     a    concrete    dispute       is
presented to the courts."             Ibid.        Indeed, the Court has recently

reminded      us   that   we    should       not    make    rulings      that    are       not

necessary to the disposition of the appeal.                      See State v. J.M.,

Jr., _____ N.J. _____ (2016) (slip op. at 18, 21) (reversing the

imposition of "a bright-line rule prohibiting the admission of

acquitted-act evidence" when such a ruling was "not necessary,"

"had    no    bearing     on    the     disposition        of   the   appeal[,]"           and

"effectively rendered an advisory opinion").

       Here,   affirming        Judge    Blee's      ruling     completely       resolves

this appeal.       The question of the retroactive application of the

new statutory age requirement is neither necessary nor does it

bear on the disposition of the appeal.

       Moreover,     as   the    majority        correctly      notes,     there      is   no

express language in the revised statute itself that addresses

whether      the   Legislature        intended      the    statute    to    be       applied

retroactively.       See L. 2015, c. 89.              Although the majority would

apply the revised statute retroactively to this appeal, it does

not    clarify     whether      the     revised      statute     applies        in    other

circumstances.       For example, does the revised statute apply to a

case where the juvenile has already been waived to adult court

and    the   trial   is   pending       or   has     actually     begun?         Does      the

revised statute apply to a case where the juvenile was waived to

adult court, was convicted, and is pending sentencing or appeal?




                                             2                                     A-0392-15T3
Posing     those   questions      illustrates        the   wisdom    of   avoiding

advisory    opinions,     which    are       not   presented    in    a   concrete

dispute.

    In     sum,    I   would   affirm    on    the    basis    of    Judge    Blee's

comprehensive opinion, and I would not reach the retroactive

application of N.J.S.A. 2A:4A-26.1(c)(1).




                                         3                                   A-0392-15T3
