Matthews, Seidman and Horn.
The single issue on this appeal is whether the procedure used for extraditing the juvenile-appellant was "improper and violated due process" as contended by him.
On December 30, 1975 the juvenile, a 17-year-old resident of New Jersey, was charged with criminal homicide, murder, conspiracy to rob and murder, robbery, aggravated assault and related charges arising out of the unlawful possession of firearms. These charges arose out of the alleged involvement of said juvenile and another youth in the holdup of a gas station in Delaware County, Pennsylvania. After the incident the juvenile fled to this State.
On March 4, 1976 a Governor's Requisition Warrant was filed by the Commonwealth of Pennsylvania, and on April 6, 1976 a judge of the Court of Common Pleas of Delaware County, Pennsylvania, certified that Juvenile Court
jurisdiction did not attach, since the crime charged was murder. In Pennsylvania a juvenile charged with murder is treated as an adult unless he makes an affirmative showing that he would be amenable to treatment as a juvenile. Commonwealth v. Pyle , 462 Pa. 613, 342 A.2d 101, 106-07 (Sup. Ct. 1975).
Thereafter, the State of New Jersey issued a rendition warrant for the juvenile, and an extradition proceeding took place in which the trial judge below found that extradition should be granted. A stay pending appeal was also granted.
Appellant's contention specifically is that a denial of due process resulted because the trial judge permitted him to be extradited as an adult pursuant to N.J.S.A. 2A:160-6 et seq. , without a preliminary hearing, while under the jurisdiction of the Juvenile and Domestic Relations Court in New Jersey. He asserts that a preliminary hearing should have been held to determine the status of the juvenile as an adult or as a juvenile, as is required by the Interstate Compact on Juveniles, N.J.S.A. 9:23-1 et seq. He also refers to R. 5:9-5(b) and N.J.S.A. 2A:4-48 as further support for his contention. This rule and the statute require that a hearing must be held before a juvenile may be tried in New Jersey criminal courts as an adult.
N.J.S.A. 9:23-1, Art. V, which is concerned with juvenile escapees and absconders, provides that an appropriate authority from whose probation or parole supervision a delinquent juvenile has absconded shall present to the appropriate court or the executive authority of the state where the juvenile is alleged to be located a written requisition for his return, with the particulars of his adjudication as a delinquent, the circumstances of the breach of terms of his probation or parole or escape, and the location of the juvenile, if known. Upon receipt of such requisition in proper form demanding the return of a juvenile who has absconded or escaped, the court or executive authority is required to issue an order to any peace officer, directing
him to take into custody and detain the juvenile. It further provides:
No delinquent juvenile detained upon such order shall be delivered over to the officer whom the appropriate person or authority demanding him shall have appointed to receive him, unless he shall first be taken forthwith before a judge of an appropriate court in the State, who shall inform him of the demand made for his return and who may appoint counsel or guardian ad litem for him. If the judge of such court shall find that the requisition is in order, he shall deliver such delinquent juvenile over to the officer whom the appropriate person or authority demanding him shall have appointed to receive him. The judge, however, may fix a reasonable time to be allowed for the purpose of testing the legality of the proceeding. [ N.J.S.A. 9:23-1, Art. V]
N.J.S.A. 9:23-1.2, which became effective in 1975, approximately 20 years after the adoption of the Interstate Compact on Juveniles, provides that all the provisions and procedures of Arts. V and VI of said Compact on Juveniles shall be construed to apply to any juvenile ...