King, J.c.c., Temporarily Assigned.
The juvenile was charged with the offense of breaking and entering into and larceny from a public school building on January 6, 1974. He appeared in the Camden County Juvenile and Domestic Relations Court at an informal hearing with his parents and without counsel on March 13, 1974 and admitted the allegations charged in the petition. The trial judge adjudicated the juvenile delinquent and placed him on probation for one year. His probation was conditioned upon obtaining entry into the Job Corps and in the interim attending weekly sessions at the probation office.
In July, 1974 a violation of probation was filed against the juvenile because he failed to fulfill the conditions of probation. A hearing on the violation of probation was scheduled. The original hearing court also scheduled a formal hearing on the original breaking and entering and larceny charges and required counsel to be present in the event that if an adjudication of delinquency resulted following formal hearing a disposition of commitment could be entertained as a possible alternative. See R. 5:3-3, In re Gault,
387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). The original trial judge then recused himself on his own motion because of his previous familiarity with the matter.
Juvenile now moves before this successor court to dismiss the charges on the ground that a second and formal hearing, with the implication of possible commitment, would violate his rights to due process of law and would place him twice in jeopardy for the same offense, contrary to the State and Federal Constitutions, and the provisions of the statute, N.J.S.A. 2A:4-60. No suggestive or controlling precedent is available for the resolution of this problem.
A similar situation was considered in State in the Interest of G.J., 108 N.J. Super. 186 (App. Div. 1969), cert. den. 55 N.J. 447 (1970). There the juvenile was not represented by counsel in the original informal proceeding at which she was adjudicated delinquent and placed on probation for chronic truancy. Subsequently, juvenile's absence from school persisted and she was charged with a violation of probation. At a formal hearing with Gault safeguards, including counsel, the court found that her continued truancy from school constituted a probation violation and her disposition was a commitment to the State Home for Girls. On appeal the juvenile urged that the commitment was illegal because it was based on a violation of probation resulting from her original determination of delinquency occurring at an informal hearing without counsel. The Appellate Division rejected that argument, reasoning that the commitment to the State Home was actually based on a new substantive finding of delinquency resulting from continuing truancy, rather than on a finding of a violation of probation. The fact that the matter came before the court on a violation of probation was not determinative so long as the underlying offense, chronic truancy, was sufficient in itself to support an adjudication and subsequent commitment.
In the present case the alleged violations of probation -- failing to obtain entry into the Job Corps and failing to attend weekly counselling sessions as ordered -- could not
support an independent adjudication of delinquency. The case of G.J. indicates that a court may not commit a juvenile for violation of probation alone, regardless of need for commitment or representation by counsel at the probation violation, if the original probation emanated from an uncounselled informal adjudication. The only possible way this present court may consider all of the options available in the treatment of this juvenile, including commitment or the threat of commitment if probation is not successful, would be to conduct a formal hearing on the original charges with all of the Gault safeguards, including counsel.
The pertinent section of the statute reads as follows:
All defenses available to an adult charged with a crime, offense or violation shall be available to a juvenile charged with committing an act of delinquency.
All cases arising under this act not referred as provided by sections 7 or 8 shall be heard and decided by the juvenile and domestic relations court without a jury. The right to be secure from unreasonable searches and seizures, the right not to be placed twice in jeopardy for the same offense, and the right of due process of law shall be applicable in ...