On appeal from Union County Juvenile and Domestic Relations Court.
Fritz, Kole and Lane. The opinion of the court was delivered by Fritz, P.J.A.D.
The sole issue presented in this appeal is whether the dismissal of a complaint against a juvenile after a proceeding in the Juvenile and Domestic Relations Court, at which only the juvenile defendant appeared and related his version of the incident in question, bars, by reason of double jeopardy, prosecution of a later complaint charging the same juvenile with the same offense.
The circumstances are unique. It is unlikely the identical situation will recur. We mention this at the outset because important double jeopardy considerations have been here debated and we are interested that this opinion not be read more broadly than is intended. For instance, we do not decide here whether an adjudication on an "informal hearing" occurring in the usual predictable procedural course of things precludes a later "formal hearing." See State In Interest of J.J. , 132 N.J. Super. 464 (J.&D.R.Ct.1975).
We borrow from the recitation of procedural facts which appears in the written opinion of the trial judge. Other than with respect to certain exceptions we take and to which we advert immediately thereafter, this appears correctly to reflect that which did in fact happen:
On January 8, 1978, a complaint was filed by [complainant] against the juvenile, [L.D.], charging commission of an assault and battery upon complainant on January 7, 1978. The matter was first listed on the representation mandatory calendar, and subsequently, with the consent of the Prosecutor, was transferred by the presiding judge to the representation not mandatory calendar. It was ultimately listed for hearing on March 16, 1978, before this court. On the same date, hearing was listed as to a co-defendant . . . on a complaint filed by another complainant arising out of the same incident, as well as on several other unrelated complaints filed against [co-defendant], all of these being listed on the representation mandatory calendar. Counsel for [co-defendant] requested an adjournment of the March 16th hearing; for that reason, and since this court was personally acquainted with the victim in one of the other complaints filed against [co-defendant], this court ordered that all of [the co-defendant] hearings be adjourned for hearing by another judge. It now appears that the Prosecutor, although not involved in the [L.D.] hearing, assumed that it also would be adjourned, and without the court's knowledge, advised the complaining witness . . . that the [L.D.] hearing had been adjourned. As a result, the complaining witness did not appear. When the case was called, [L.D.] and his parents appeared and requested that the matter then be heard, citing several earlier appearances in court. The defendant stated that he did not believe that his conduct on the day in question constituted an assault, and asked to be permitted to testify. The court agreed to hear the case, determined that the complaining witness had not appeared although duly notified, and heard the defendant's testimony. The court then dismissed the complaint against the defendant. Subsequently, on March 23, 1978, the Prosecutor filed a new and identical complaint against the juvenile, alleging the same facts and charge. That complaint was listed on the representation mandatory calendar, and the Public Defender's office, representing the defendant, has now moved to dismiss the complaint, on the ground of former jeopardy.
The trial judge granted the motion to dismiss and filed a written opinion. This appeal by the State followed. R. 2:3-1(b).
Four important additions, amendments or corrections to the above abstract from the written opinion of the judge have substantial significance. First, with respect to the "assumption" of the prosecutor that the L.D. matter would be adjourned, it would appear that the prosecutor reasonably believed that the L.D. hearing and the hearing for the codefendant would be listed "both the same date and time." Second, while it is true
that the parents referred to earlier appearances and requested that the matter be heard, it is to be observed that neither of the two (at most) prior appearances were for adjudicatory hearing purposes. Of perhaps greater significance, the desire to be heard really sprang from a desire not to be tried with the codefendant. No question remains regarding the motivation of the parents after this colloquy with the court is considered:
[MOTHER]: Well why can't you try him? [The codefendant's] is very bad. The, the situation with [codefendant] is completely different. If [L.D.] is tried with [codefendant], I mean ...