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State in Interest of W.E.C.

Decided: December 12, 1979.

STATE IN THE INTEREST OF W.E.C.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 165 N.J. Super. 161 (1979).

For reversal in part and reinstatement -- Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the court was delivered by Sullivan, J.

Sullivan

This appeal involves the propriety of certain amendments to complaints charging W.E.C., the juvenile herein, with delinquency. The amendments were allowed by the Juvenile Court immediately prior to the commencement of the hearing on the complaints. The Appellate Division, in an opinion reported at 165 N.J. Super. 161 (1979), held that the amendments were in violation of R. 5:9-3(b) as well as a mistaken exercise of discretion and, therefore, improper. We conclude otherwise.

W.E.C. was involved in an altercation with two police officers who had responded to a disturbance in the parking area of a shopping mall. The underlying facts are set forth in the Appellate Division opinion and need not be repeated. 165 N.J. Super. at 164-165.

As a result of the altercation, W.E.C. was taken into custody and each officer swore out a complaint charging him with delinquency. One complaint charged that W.E.C. "did commit an assault and battery on a police officer by spitting into the officer's face several times while being placed under arrest and while inside the police station."*fn1 The other complaint, after identifying the complainant as a police officer, charged that W.E.C. "did commit an assault and battery on the complainant by kicking the complainant about the legs." Both complaints alleged that such conduct, if committed by an adult, would constitute a violation of N.J.S.A. 2A:170-26, the disorderly person offense of simple assault and battery.

Just prior to the commencement of the hearing in Juvenile Court, the prosecutor moved to amend the complaints so as to change the statutory citations from N.J.S.A. 2A:170-26 (simple assault and battery) to N.J.S.A. 2A:90-4 (assault and battery upon a police officer, a high misdemeanor). Counsel for W.E.C. objected to the amendment but the trial court ruled that "all assaults on a police officer are cognizable under" N.J.S.A. 2A:90-4. The court offered to continue the case if "surprise" was claimed. However, counsel for W.E.C. declined the offer saying that surprise was not the basis of his objection.

A hearing was then held on the amended complaints at which the two officers and W.E.C. testified. At the conclusion, the court found that all charges had been sustained and adjudged W.E.C. a delinquent. Based on a prior juvenile record of repeated antisocial conduct, the court sentenced W.E.C. to concurrent indeterminate terms at the Youth Reception and Correction Center at Yardville.

On appeal, the Appellate Division held that, contrary to the trial court's statement of reasons, an assault on a police officer could be treated by the prosecuting authorities either as merely disorderly conduct, or as a high misdemeanor. We agree that, depending on the facts and circumstances, the prosecuting authority would have such discretion. See State v. States, 44 N.J. 285, 291-292 (1965).

However, the Appellate Division also held that the amendments herein were improper and in violation of R. 5:9-3(b) which provides:

Amendment of Complaint. The Court may amend the complaint to correct an error in form or the description of the offense intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his defense on the merits. The court may adjourn the hearing for such time and on such terms as it deems proper.

The Appellate Division held that since the complaints originally denominated W.E.C.'s conduct as a disorderly person's offense, the amendments, which changed the denomination to that of assault on a police officer, charged "another or different offense." The Appellate Division noted 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." The Appellate Division added that under the ...


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