For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None.
Defendant, a juvenile, was adjudged a delinquent by the Union County Juvenile and Domestic Relations Court. The adjudication arose out of a charge that he was apprehended sniffing glue in contravention of N.J.S.A. 2A:4-14(m). Upon appeal to the Appellate Division, this adjudication was reversed on the ground that the "trial judge engaged in an impermissible decisional process which shifted the burden of proof to defendant." This Court granted the State's petition for certification. 55 N.J. 359.
The testimony was as follows: Officer John Vasquez of the Elizabeth Police Department testified that he and his partner were stopped by and received information from an "anonymous informer" that there were three youths sniffing glue on the third floor of a building at 10 McGlory Manor; that the three youths, later identified as defendants D., W. and M., were sitting in a hallway corner; that D. was holding a brown paper bag filled with airplane glue approximately seven inches from his face. According to this witness, all of the defendants "reeked" with glue, and their eyes were glazed and their speech slurred. At this point the defendants were arrested, the brown bag filled with airplane glue was confiscated, and the defendants were searched in order to ascertain if they had any other narcotics on them.
On cross-examination Officer Vasquez expressed some uncertainty as to the weather conditions on the night of the arrest. The witness stated that D. was the individual most obviously affected by the glue sniffing, but that both W. and M. also appeared to be under the influence of the glue. Officer Vasquez further testified that after apprehending the youths in the hallway, he smelled the breath
of each defendant, and each defendant had the odor of glue on his breath.
The testimony of Vasquez's partner, Officer McDaniel, differed materially in some respects from that of Vasquez. McDaniel asserted that he and his partner responded to a "call," communicated from the dispatcher at police headquarters, that there were some juveniles in the court of McGlory Manor. Upon approaching the three youths Officer McDaniel noticed that D. appeared to be in a stupor, but the physical characteristics of W. and M. "appeared to be normal." Although the odor of glue was readily evident on the breath of D., McDaniel did not detect any odor on the breath of either W. or M. This witness also stated that he actually saw D. with the bag over his nose sniffing glue.
After the cross-examination of Officer McDaniel was concluded, the attorney for defendant D., stressing the memory lapses of Officer Vasquez, moved for a dismissal of the charges against all of the defendants. In response to the attorney's argument, the court initially observed:
"THE COURT: Counsel, maybe I can save us all a moment. There is a testimony on the part of Vasquez that he smelt [ sic. ] the odor of glue on all their breaths. Isn't that sufficient, if believed, to warrant the charge of a conviction of the charge of glue sniffing?"
The attorney then continued his argument and suggested that any odor of glue may have been the product of poor ventilation and rainy weather. As to this point, the court remarked:
"THE COURT: And that, of course, is a matter of defense, isn't it?
THE COURT: But as of now, isn't there sufficient [evidence] here to avoid the motion for dismissal? Three boys are secluded in a rather secluded area. They have a bag, the contents of which is glue. One is found sniffing, glue was found on the breath of all three. Isn't this, of and by itself, sufficient to warrant a dismissal of a ...