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State in Interest of L.B.

Decided: February 29, 1968.

THE STATE OF NEW JERSEY IN THE INTEREST OF L.B.


Kentz, J.J. & D.r.c.

Kentz

A complaint was filled charging the juvenile with the possession of stolen property. The complaint was placed on the Formal Calendar as provided by R.R. 6:9-1 (c), and counsel was assigned to represent the juvenile pursuant to R.R. 6:3-4 (c) and (d). The County Prosecutor was requested to appear and prosecute the complaint in accordance with R.R. 6:3-5. Subsequently, an amended complaint was filed in place of the original complaint and the amended complaint was likewise listed on the Formal Calendar for hearing.

At a preliminary hearing, the defendant moved to (a) dismiss the amended complaint because it was insufficient to charge the juvenile with an offense under N.J.S. 2 A:4-14, (b) suppress certain evidence on the ground that it was the product of an unlawful search and seizure in violation of the Fourth Amendment to the Constitution of the United States, and (c) transfer the hearing on the motion to suppress to the Superior or County Court by virtue of R.R. 3:2 A -6.

The pertinent facts are as follows. At 4:40 in the morning of July 17, 1967, the juvenile was a passenger in an automobile being driven in the City of Plainfield by an adult in an area restricted because of emergent conditions then existing. The car was halted by members of the Plainfield Police Department and the New Jersey National Guard as it was leaving this restricted, trouble-torn area. The complainant then observed certain contraband in the car and thereupon ordered the juvenile to get out of the vehicle and to lie down on the street with which orders the juvenile complied. The juvenile was then searched and found on his person were two sets of keys allegedly belonging to vehicles

parked in a garage and owned by the proprietor of a package goods store in the City of Plainfield.

I

The first question I will consider is whether the amended complaint was sufficient to charge the juvenile with an offense under N.J.S. 2 A:4-14.

The amended complaint alleges that:

"That the above named juvenile, under the age of 18 years, is a delinquent child under N.J.S. 2 A:4-14 in that on July 17, 1967, at about 4:40 a.m. and while at the intersection of New Street and West 4th Street, located in the City of Plainfield, he was in possession of stolen property, namely two keys belonging to vehicles parked in a garage and owned by Lou's Liquors of 204 Muhlenberg Place, Plainfield. Said property being taken during a riot."

Defendant contended that the State failed to charge the juvenile with an offense because there is no criminal offense for "possession" of stolen property; but rather possession is only an element of the offense of receiving stolen property under N.J.S. 2 A:139-1.

R.R. 6:8-1, states in pertinent part that:

"The complaint is a written statement of the essential facts upon which the allegation of delinquent conduct of a juvenile is founded." (Emphasis added).

What constitutes compliance with this Rule has never been expressed by our courts in a reported decision.

In contrast to the above quoted Rule, R.R. 3:2-1 speaks of complaints in criminal proceedings and states in part that "the complaint is a written statement of the essential facts constituting the offense charged". (Emphasis added). The criminal complaint must charge a specific offense while it is only necessary to charge the juvenile with wrongful conduct. From a comparison of these rules it is clear that the complaint in juvenile proceedings need not be drawn with the same exactitude as a criminal complaint.

This does not mean, however, that any vague allegation drawn in the form of a juvenile complaint is adequate to charge the juvenile with delinquency. The Supreme Court of the United States in In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2 d 527 (1967), held that juvenile proceedings must be governed by due process of law which includes adequate notice not only of the hearing date but also of the facts constituting the alleged misconduct. It has been the rule in this State that due process of law requires that the defendant, in any case where the possibility of punishment arises, be notified sufficiently of the charges against him so that he may adequately prepare a defense. See: Hewitt v. Hollahan, 56 N.J. Super. 372, 377-378 (App. Div. 1959); Rushin v. Bd. of Child Welfare, 65 N.J. Super. 504, 514-515 (App. Div. 1961); Parsekian v. Cresse, 75 N.J. Super. 405, 411 (App. Div. 1962); State v. Gagliardi, 57 N.J. Super. 238, 242 (App. Div. 1959).

Juveniles in this State are not charged with criminal offenses, rather as stated above, they are charged with delinquent conduct as defined in N.J.S. 2 A:4-14. Here the juvenile was charged with possession of stolen property. N.J.S. 2 A:139-1 provides, with certain exceptions, that possession of stolen property within one year of the date of its unlawful taking is sufficient evidence to convict for receiving stolen property which is a high misdemeanor. Thus the concept of possession is almost equivalent to that of receiving, and in a juvenile matter such as this, where the defendant cannot be convicted of a crime, the two concepts are virtually synonymous. Surely in terms of due process, the defendant cannot argue that by using the word "possession" instead of "receiving", he was unable to determine what conduct formed the basis of the complaint.

This court is designed to aid the juveniles brought before it, and not to quibble over the niceties of criminal law and procedure. Complaints in this court are rarely drawn by the prosecutor or under the supervision of an attorney but rather by parents, policemen, neighbors, school authorities and other persons interested in the welfare of the child but unfamiliar

for the most part with the exact wording of a criminal statute. To require these persons to search through our criminal statutes in order to form a juvenile complaint would not only be foolish in that the juvenile cannot be convicted of a crime, but would be a great disservice both to society and the juvenile as well.

For the above stated reasons, I deny the motion to dismiss the complaint as urged by the defendant.

II

Next I will take up the question of whether a motion to suppress may be made in a juvenile proceeding, and if so, whether such motion should be heard by the juvenile and domestic relations court or whether the hearing should be transferred to another court pursuant to R.R. 3:2 A -6 as urged by the juvenile.

A review of the Rules (Part VI) governing this Court discloses no express provision for the making of a motion in a juvenile proceeding to suppress evidence. Nevertheless, there is a constitutional right derived from the Fourth Amendment to the Constitution of the United States that must be safeguarded and preserved for the juvenile. State v. Lowry, 95 N.J. Super. 307, 312-319 (Law Div. 1967); Urbasek v. People, 76 Ill. App. 2 d 375, 222 N.E. 2 d 233 (App. Ct. 1966). Cf. In re Gault, supra.; Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2 d 84 (1966); State in the Interest of Carlo, 48 N.J. 224 (1966).

By reason of the foregoing, I conclude that a motion to suppress may be made in a juvenile proceeding.

Having reached this conclusion, where should such a motion be made? Does R.R. 3:2 A -6 apply to the juvenile and domestic relations court and require this Court to relinquish its jurisdiction to the Superior or the County Court for the purpose of hearing a suppress motion? The question has never been answered by our appellate courts.

R.R. 3:2 A -6 provides in part as follows:

"On notice to the prosecutor of the county in which the penal proceeding is pending or threatened and to the applicant for the warrant, if the search was with a warrant, and pursuant to Rule 3:5-5 and 3:11-1, a person claiming to be aggrieved by an unlawful search and seizure, and having reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding, may apply only to the Superior Court or County Court for the county in which the evidence was obtained for the return of property seized and ...


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