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State in Interest of D.A.M.

Decided: January 27, 1975.

STATE OF NEW JERSEY, IN THE INTEREST OF D.A.M., JUVENILE-APPELLANT


Halpern, Crahay and Ackerman.

Per Curiam

[132 NJSuper Page 193] The juvenile, D.A.M., was adjudged a delinquent when he was found guilty by the trial judge of having committed an armed robbery. His motion for a new trial was denied, and he was sentenced to a suspended indeterminate term to the Youth Reception and Correction

Center at Yardville upon the condition that he attend Highfields.

He argues on this appeal that the adjudication of delinquency be reversed because:

Point I The court's consideration of the juvenile's failure to testify at the hearing as evidence of guilt violated the juvenile's Fifth and Fourteenth Amendment right to remain silent and was plain error.

Point II The court's undue participation in the conduct of the hearing and its prejudgment of the case deprived the juvenile of a fair and impartial trial.

We find no merit in the arguments advanced under Point II. The trial judge in this case properly exercised his discretionary power to interrogate witnesses when he had cause to doubt their veracity and sought to obtain a better understanding of the confusing testimony of defendant's mother, brother and other State witnesses. State v. Riley, 28 N.J. 188 (1958), app. dism. 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1958), cert. den. 361 U.S. 879, 80 S. Ct. 166, 4 L. Ed. 2d 117 (1959); State v. Ray, 43 N.J. 19 (1964); Della Salla v. Hackensack Parking Authority, 30 N.J. Super. 534 (App. Div. 1954).

However, we find merit in the arguments made under Point I, and reverse. At the trial the victim, Edward Roper, was the State's only witness, he testified that defendant was one of two men who had robbed him during the early evening of February 24, 1973. While defendant did not testify, his mother and sister-in-law testified that he was at his mother's home during the time the robbery allegedly occurred.

We should also note, at this point that on the motion for a new trial defendant's brother Dennis testified that he and Roy Bennett had robbed Roper and that defendant was not involved. Dennis had pled guilty to robbing Roper, but the charges against him were dropped when he pled guilty to other crimes while confined to jail. In addition, Jessie Moore, who was unrelated to defendant, testified that he was

with defendant at defendant's mother's home when the alleged robbery occurred.

In the process of rendering his oral opinion at the original hearing the trial judge said:

I also must take note of the fact that the juvenile has not taken the stand to deny any of the allegations in this matter and even though we cannot mention to a jury, I am sure the jury would have that in mind as to why an individual ...


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