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State in Interest of S.Z. and M.C.

Decided: January 5, 1981.

STATE OF NEW JERSEY IN THE INTEREST OF S.Z. AND M.C., JUVENILE-APPELLANTS


On appeal from Juvenile and Domestic Relations Court, Bergen County.

Fritz, Polow and Joelson. The opinion of the court was delivered by Joelson, J.A.D.

Joelson

This is an appeal by the State from the granting of defendants' motions at the end of the State's case for dismissal of complaints against them in the Juvenile and Domestic Relations Court.

The complaints which were tried jointly charge that each juvenile "did throw a stone and break the front window of complainant's place of business. . .". They further state that if committed by an adult, "these acts would constitute a violation of 2C:17-3(1)." It is obvious that this statutory reference is to N.J.S.A. 2C:17-3 a(1), and the trial court so considered.

The basis for defendants' motions was that the facts as alleged in the complaints and proved by the State did not constitute a violation of N.J.S.A. 2C:17-3 a(1). The State contends that these motions were untimely because governed by R. 3:10-3. The State also argues that even if the motions were properly to be considered on their merits, the trial judge erred in dismissing the complaints. We agree on both points raised by the State and reverse.

The gravamen of the motions for dismissal was that the mere act of throwing the rocks through the window as alleged in the complaints was not sufficient to justify a finding of violation of N.J.S.A. 2C:17-3 a(1) because that statute requires as an element the employment of fire, explosives or other dangerous means. These are clearly the kinds of motions covered by R. 3:10-3 which should not be considered during trial. R. 3:10-3 provides as follows:

The defense that the indictment or accusation fails to charge an offense and the defense that the charge is based on a statute or regulation promulgated pursuant to statute which is unconstitutional or invalid in whole or in part may only be raised by motion either before trial or within 10 days after a verdict of guilty or within such further time as the court may fix during such 10-day period, or on appeal. Such defenses shall not be considered during trial.

We are satisfied that R. 3:10-3 applies to complaints in the Juvenile and Domestic Relations Court. R. 3:1-1 provides that the rules in Part III govern practice and procedure in all

criminal proceedings "except in juvenile delinquency and criminal proceedings in the juvenile and domestic relations court which are otherwise expressly provided for in Part V." We find nothing in Part V which otherwise provides. Thus since R. 3:10-3 controls, the motions should clearly not have been considered during trial.

Furthermore, the trial judge erred in his interpretation of N.J.S.A. 2C:17-3 a(1), which provides as follows:

A person is guilty of criminal mischief if he:

(1) Damages tangible property of another purposely, recklessly, or negligently in the employment of fire, explosives or other dangerous ...


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