On appeal from the Juvenile and Domestic Relations Court, Mercer County.
Crane, Milmed and King. The opinion of the court was delivered by King, J.A.D.
This appeal raises a speedy adjudicatory hearing issue under R. 5:8-6(d) which provides in full:
Detention or Shelter Care Hearing; Probable Cause Hearing.
The detention or shelter care hearing shall be attended by the juvenile and an appropriate adult custodian responsible for him, but shall take place in the absence of such custodian if process fails to produce his attendance. If the juvenile is not represented by counsel at the hearing and if the court continues his detention or shelter care after the hearing, the court shall forthwith schedule a second detention or shelter care hearing to be held within 2 court days thereafter at which the juvenile shall be represented by counsel as provided by R. 5:3-3(a). An order continuing the detention or shelter care shall provide for its periodic review at intervals not to exceed 14 days and shall schedule a hearing on the complaint within 30 days. No order for detention or shelter care shall be entered either at the first or second detention or shelter care hearing except in accordance with the provisions of paragraph (e) of this rule. Where a juvenile has been charged with delinquency and has been placed in detention, there must be a probable cause determination which shall be made at the second detention hearing, where such a hearing is necessary, and which shall be made in all other cases within 2 court days. [Emphasis added]
On June 13, 1978 two delinquency complaints were filed against C.B. in the Mercer County Juvenile and Domestic Relations Court. Complaint J-2498-77 alleged that C.B. had broken and entered a liquor store and stolen $3,239.58 and $100 in state lottery tickets. Complaint J-2499-77 alleged that C.B. committed a $19 larceny from the person. C.B. was not taken into custody on these charges.
On June 21, 1978 C.B. was taken into custody for allegedly participating in an atrocious assault and battery on, and a robbery of, August Hillman on that date. Complaints pertaining to that incident were filed on June 26, 1978. Complaint J-2647-77 alleged a robbery of $35; Complaint J-2650-77 alleged an assault with a lug wrench. A first detention hearing was held pursuant to R. 5:8-2(d) on June 22, the day following arrest. Detention hearings were thereafter held on June 23, June 26, July 11 and July 26.
At the July 26 detention hearing counsel for the juvenile moved that he be released from custody because an adjudicatory hearing had not been held within the 30-day interval since his detention as allegedly required by R. 5:8-6. The interval between June 21, the date of detention, and July 26 was 35 days. The judge released C.B. pursuant to this request. An adjudicatory hearing date of August 16, 1978 had been scheduled by this time. Although the record is unclear, apparently the delay was attributable to the victim's injuries. At the July 26 detention hearing the prosecutor told the judge: "The crime that he's being charged with is an extremely serious crime. The victim is still under medical supervision. . . . What was used in the atrocious assault was a tire iron. A man's jaw was broken in two places . . .." No application to dismiss the charges was made by defense counsel on July 26.
On August 16, the date scheduled for this adjudicatory hearing, counsel for C.B. moved to dismiss complaints J-2649-77 and J-2650-77, arising out of the June 21 assault and robbery of Mr. Hillman, because an adjudicatory hearing had not been commenced within the 30 days since arrest during which his client had been detained. The juvenile court judge refused to dismiss the charges. He concluded that C.B.'s July 26 release from custody, 35 days after initial detention, was a sufficient remedy for nonadherence to the 30-day provision of R. 5:8-6(d) which requires the court to "schedule a hearing on the complaint within 30 days" of the first counselled detention hearing, usually held three days after the juvenile is first taken into custody. The August 16 adjudicatory hearing was continued at the request of C.B.'s attorney in order to allow for time to make an ultimately unsuccessful motion for leave to take an interlocutory appeal to this court.
An adjudicatory hearing on the robbery and atrocious assault complaints was held on October 5, 1978. C.B.'s counsel again moved for a dismissal because he had been "incarcerated in the Youth House longer than 30 days." The motion to dismiss was
denied and C.B. was adjudicated delinquent on both complaints. Thereafter, C.B. pleaded guilty to the larceny complaint, J-2499-77, and the State agreed to dismiss the breaking and entering complaint, J-2498-77. On October 20, 1978 C.B. was sentenced to three concurrent indeterminate ...