On appeal from Juvenile and Domestic Relations Court, Cape May County.
[165 NJSuper Page 164] The appellant juvenile was engaged in a loud verbal altercation with the driver of a pickup truck who was attempting to enter the parking area of a commercial mall when appellant was standing in or walking past the entrance. Hearing the disturbance, local police intervened and, when one of them asked him what the problem was, appellant, according to the State's evidence in the juvenile delinquency proceedings below, became belligerent and yelled loudly that it "was none of [the officer's] fucking business." He continued arguing with the driver, whereupon one of the officers took his elbow to lead him aside. Appellant screamed at them to "take [their] fucking hands off him or he would kick their white asses" (appellant was a 17-year-old black). This was repeated to the point that a small group of shoppers gathered to watch and listen. The police attempted to remove appellant by police patrol
car, whereupon the juvenile spat in an officer's face, repeated that action later, and kicked two of the officers, inflicting painful bruises on one of them.
Appellant was charged with three acts of juvenile delinquency labelled "disorderly," with specification of "2A:170-29" and "2A:170-26" as the statutes offended had the acts been committed by an adult. Substantively, the charges were of using loud and offensive language and of two acts of "assault and battery on a police officer * * *," one being the spitting and the other the kicking. The statutes cited constitute as disorderly conduct, respectively, the offenses of uttering loud and offensive language in a public place and of assault or assault and battery.
One of the grounds of appeal here assigned is the grant by the trial judge of the State's motion prior to the hearing to amend the complaint to charge two acts of assault and battery on a police officer, in violation of N.J.S.A. 2A:90-4, which constitutes that offense a high misdemeanor as contrasted with the disorderly persons offenses originally charged. The court in granting the amendment indicated it was relying upon an appellate decision which it understood to hold that there was no such disorderly persons offense as assault and battery when the victim of the offense was a policeman and that such conduct constituted only the indictable crime proscribed by N.J.S.A. 2A:90-4. The decision alluded to is State v. Moran , 136 N.J. Super. 188 (App. Div. 1975), aff'd 73 N.J. 79 (1977).
Defendant was found guilty of delinquency on all charges after offering purportedly exculpatory testimony, including the fact that he had been called "nigger" by the truck driver, and he was given concurrent indeterminate sentences at Yardville.
We deal first with the amendment to charge the indictable offense of assault and battery on a police officer. Preliminarily,
we reject the State's contention that the amendment is harmless because the ultimate adjudication is juvenile delinquency and it makes no difference as to the kind of delinquency adjudicated. We disagree. The order of disposition recites the statute offended under the adjudication, and it is obvious that a record of delinquency for commission of what would be a high misdemeanor as distinguished from what would be disorderly conduct if committed by an adult can have substantial adverse effects on the juvenile's future, particularly in the event of later brushes with the law. In addition, the period of confinement and parole may not exceed the maximum provided by law for the offense if committed by an adult. N.J.S.A. 2A:4-61(h).
We are in disagreement with the trial court's holding that the act of assault and battery on one who at the time is a police officer is, if committed by an adult, subject to prosecution only as the high misdemeanor ordained by N.J.S.A. 2A:90-4 and not as a disorderly persons offense. The court's ruling was based on language contained in State v. Moran, supra , 136 N.J. Super. at 192. However the view expressed in Moran is at variance with and without consideration of the contrary doctrine expressed by the Supreme Court in State v. States , 44 N.J. 285, 291-292 (1965). In States defendant sought to have an assault and battery complaint dismissed in municipal court on the theory that since the alleged assault was upon a municipal police officer it was mandatory to charge under N.J.S.A. 2A:90-4, thereby entitling him to a jury trial in County or Superior Court. 44 N.J. at 291. The Supreme Court, in rejecting the contention, stated that
The mere fact that two statutes overlap in prohibiting the same act does not mean that the later law automatically repeals the earlier one pro tanto , or that an alleged offender can only be prosecuted for the more serious offense. Repeals by implication are not favored and it is a cardinal rule of statutory construction that both laws should be given effect if reasonably ...