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State in re M.S.

Decided: February 27, 1976.

STATE OF NEW JERSEY, IN THE INTEREST OF M.S., JUVENILE-APPELLANT. STATE OF NEW JERSEY, IN THE INTEREST OF E.O., JUVENILE-APPELLANT. STATE OF NEW JERSEY, IN THE INTEREST OF D.K., JUVENILE-APPELLANT. STATE OF NEW JERSEY, IN THE INTEREST OF E.M., JUVENILE-APPELLANT


Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Kolovsky, P.J.A.D.

Kolovsky

[139 NJSuper Page 504] All four of the above appeals, consolidated for argument, involve the same principal issue. May a juvenile, who has been taken into custody on a charge that he or she is a juvenile in need of supervision and placed, by order entered following a shelter care hearing (N.J.S.A. 2A:4-58) by a judge of the Juvenile and Domestic Relations Court (Juvenile Court), in a shelter care facility pending final disposition, be charged as and adjudicated a

juvenile delinquent for leaving the shelter without permission? The Juvenile Court judge in each case answered that question in the affirmative, ruling that the juvenile's conduct, had it been committed by an adult, would constitute the crime of "escape," in violation of N.J.S.A. 2A:104-6.*fn1 Each juvenile was found delinquent for escaping from the shelter where she or he had been placed pursuant to court order. In one of the cases, State in the Interest of M.S. , a written opinion was filed and is reported in 129 N.J. Super. 61 (J. & D.R. Ct. 1974).

A dispositional hearing followed each adjudication of delinquency. M.S. was remanded to the Division of Youth and Family Services to effectuate her placement; E.O. was placed on formal probation for one year on condition that she attend "Mt. Carmel Guild or N.J. Rehabilitation" for counselling, and D.K. and E.M. were each placed on probation for one year.

These appeals followed. In each of the separate briefs filed by the Public Defender on behalf of the four juveniles it is argued, in essence, that running away from a shelter care facility does not constitute a violation of the "escape" statute, and to rule that it does violates the purpose and spirit of the 1973 revision of the Juvenile Court Act which became effective on March 1, 1974. L. 1973, c. 306; N.J.S.A. 2A:4-42 et seq.

(In addition, the brief filed for M.S. argues that the application of the escape statute to her conduct violates her rights to due process and the equal protection of the law. The constitutional arguments thus presented are so obviously lacking in merit as not to warrant any discussion.)

The county prosecutor filed an answering brief in each case. The Attorney General, as an amicus curiae , filed one brief applicable to all four appeals. But neither the prosecutor nor the Attorney General argues in support of the rulings made by the trial courts.

On the contrary, the prosecutor contends that the juveniles' conduct in leaving the shelter care facilities "should not constitute a violation of the escape statute." The Attorney General argues that (1) the juveniles should not be deemed to have been in custody or confinement under civil process within the contemplation of the escape statute, and (2) even if they be deemed to have been in such custody, there was no violation of the escape statute because "application of the statute must * * * be premised upon the use of force or fraud to effectuate the escape," and allegedly none of the juveniles used either force or fraud to effectuate their respective escapes.

Neither the arguments presented in the briefs submitted nor the expansion thereof offered at oral argument of the appeals convinces us that the trial courts erred in their rulings. On the contrary, we are satisfied that those rulings were correct and affirm substantially for the reasons given by Judge Matturri in his opinion in State in the Interest of M.S., supra , with the following additional observations.

The argument that the application of the escape statute to juveniles in need of supervision violates the purpose and spirit of the 1973 revision of the Juvenile Court Act is bottomed on the fact that under the 1973 statute a juvenile's acts of misbehavior, ungovernability or unruliness which do not violate the criminal law do not -- as they would under the prior law -- subject him to adjudication as a delinquent.

Under the 1973 act delinquency means the commission of an act by a juvenile which if committed by an adult would constitute an indictable or disorderly persons offense, or a violation of any other penal statute, ordinance or regulation. (Excepted from the last group is a violation of specified sections of Title 39, "Motor Vehicles", committed by juveniles ...


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