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State v. R.W.

Decided: June 30, 1971.

STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT,
v.
IN THE INTEREST OF R.W., JUVENILE-APPELLANT



Lewis, Gaulkin and Mintz. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

R.W. was adjudged a juvenile delinquent upon a complaint which charged that at 11 P.M. on December 10, 1969, on Route 4, he "did * * * have in his possession a stolen bike * * * rings, key chains, one jacket, a hand flashlight and one knife, stolen from Gimble's [sic] and J. C. Penny's department stores, Paramus" and "the act or acts when committed by a person of the age of 18 * * * would be in violation of 2A:119-2." N.J.S.A. 2A:119-2 defines larceny as a misdemeanor when the value is under $200.

The principal ground of appeal is that the adjudication was based upon R.W.'s oral confession of theft which should not have been admitted in evidence. The State concedes that if the confession was improperly admitted, the adjudication must be reversed.

The Public Defender argues that the confession was inadmissible because made without the boy's parents or counsel being present, and without having given him all of the Miranda warnings. The brief also says, "The Court abused its discretion in failing to determine whether or not the confession was voluntary." It is not clear to us what appellant means by this last point. The argument made under it seems to be that, since it was apparent that the boy was very young and mentally deficient, the judge should have made more inquiry than did either counsel as to the circumstances surrounding the interrogation. But the case was tried without a jury; there was never any claim (and there is none in the brief) of threats, force, prolonged interrogation or improper means or influence exerted on the boy, or that the confession was untrue. Defense counsel asked no questions directed to this area, nor did he ask the judge to do so. The boy did not take the stand. Although we think the prosecution should have developed the facts and the happenings, from arrest to interrogation, more fully, we do not think the case should be remanded for such proof, since appellant does not claim anything would be discovered other

than the age of the boy, his low mentality, the place of interrogation and the lateness of the hour when he was questioned, which we already know.

R.W. was born in August 1957 and was just over 12 years old when he and his companion, W.T., 15 years old, were taken into custody and then to Paramus police headquarters. The record does not disclose the circumstances of the arrest; whoever arrested them did not testify.

Detective Plucinsky, assigned to the juvenile bureau of the Paramus police department, whose workday ended at 11 P.M., was summoned from his home and arrived at headquarters at 12:45 A.M. When he asked the boys their names and addresses, they gave fictitious names and false addresses in Paterson. The detective called the Paterson police to reach the parents; the Paterson police reported that "the two addresses were a burnt-out home and a vacant home." The detective told the boys that if he "didn't get their correct names, addresses and phone numbers, [he] would be forced to place them in the [Juvenile] Shelter," but they continued to refuse to give their true names and addresses.

The boys had been found in possession of the items enumerated in the complaint. In response to the detective's questions, R.W. picked out certain ones and said he had stolen them from department stores whose names he did not remember. These items carried Gimbel's or Penney's stock and price tags. The others, he said, were stolen by his companion.

We are told that the boys were then placed in the shelter. The shelter learned their names and notified their parents to be in Bergen County Juvenile Court at 9 A.M. The parents of neither boy appeared at that time, and the Bergen County Juvenile Court transferred the case to the Passaic County Juvenile Court, probably because the boys lived in Passaic County and were already under the supervision of that court.

We are informed by the Public Defender that R.W.'s contact with the Juvenile Court dates back to June 7, 1967, when R.W. was not quite ten years old. On that date he

was found guilty of breaking, entering and larceny and placed on probation under the supervision of a minister. In October 1968 six more complaints against him of larceny were sustained. This time he was sent to the Diagnostic Center at Menlo Park for examination. The Center reported that he was a "borderline mentally-retarded child with an I.Q. of 72." Because of this and its other findings, the Center recommended that he be placed in a training school "such as the Elwyn School in Pennsylvania or the E. R. Johnstone Training and Research Center." However, these are private schools; a judge may not commit to them; the parents must apply for such placement. Apparently R.W.'s mother opposed such a placement. Consequently, R.W. was continued on probation.

On May 21, 1969 defendant (and four other boys) was again charged with breaking, entering and larceny in a dwelling. This complaint was sustained on June 19, 1969, and he was again placed on probation. Then, in December 1969, came the present arrest.

Probably because of the boy's previous record, the case was placed on the "formal" calendar (R. 5:9-1) and the Public Defender was assigned to represent him. The case was tried on January 5, 1970.

The State produced no evidence other than the detective's account of the confession and the items which the boy admitted he stole. The Public Defender offered no evidence.

After both sides rested and defendant's motion for acquittal was denied, the judge sustained the complaint. He then asked defendant's father (who was present) and the Public Defender for suggestions as to what disposition should be made of the boy. They offered none. Thereupon the judge, after reviewing the boy's record and the probation officers' reports, said that Johnstone Training and Research Center (hereafter Johnstone) would have been the best place for the boy but, since the mother refused to send him there, the best place to which he had power to commit him was the Skillman Training Center, a division of the State Home

for Boys. He felt he had to send him there because of his repeated misdeeds and "because he's getting absolutely no supervision at home and * * * we're never going to be able to do anything with him as long as he's home." Consequently, he committed him "to the State Home for Boys * * * with the specific request that he be assigned to Skillman * * * and if the father or the mother can arrange a private school placement anywhere else, I'll recall him."

(Parenthetically, we note that during the discussion with counsel and the father before the boy was committed it was reported that "R. informed Mr. Donati [his probation officer] that he did not care what happens to him. He doesn't care if he is sent to Jamesburg. He also asked Mr. Donati to place him in the Shelter for Christmas because he wanted some peace and quiet * * *")

Apparently, neither the father, counsel nor the judge knew that, in July 1969, the boy's mother had changed her mind and had applied, through the Board of Children's Services, to have him admitted to Johnstone. Why he was not then admitted we do not know. However, after he reached Skillman, it was arranged (on the basis of the mother's application of July 1969 or a later one) that he enter Johnstone. To enable him to do that, he was paroled from Skillman, his attendance at Johnstone being made a condition of his parole.

Shortly after entering Johnstone, and while home on furlough, he and other juveniles allegedly broke, entered and committed larceny. Even though defendant was then on parole from Skillman, the last-mentioned complaint against him was placed on the inactive list "until R.W.'s attendance at Johnstone is concluded." He was returned to Johnstone, where he is now.

The Public Defender filed this appeal in February 1970, when defendant was in Skillman. When he appeared before us the Public Defender knew nothing of what had happened to the boy ...


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