On appeal from Superior Court, Chancery Division, Family Part, Camden County.
Petrella, Long and Keefe. The opinion of the court was delivered by Long, J.A.D.
After a bench trial, J.L.A., a juvenile, was adjudicated a delinquent and committed to Jamesburg for an indeterminate term not to exceed four years for acts which, if committed by an adult, would have constituted first-degree robbery, contrary to N.J.S.A. 2C:15-1. He was also committed to a consecutive term not to exceed three years for acts which, if committed by an adult, would have constituted aggravated assault, contrary to N.J.S.A. 2C:12-1b(1).
J.L.A. appeals, contending that:
THE ADJUDICATIONS OF DELINQUENCY ON THE ARMED ROBBERY AND AGGRAVATED ASSAULT CHARGES WERE AGAINST THE WEIGHT OF THE EVIDENCE AND MUST THEREFORE BE REVERSED. .
THE TRIAL COURT'S REFUSAL TO GRANT A CONTINUANCE FOR THE DEFENSE TO CALL OFFICER KLINE DENIED DEFENDANT A FAIR TRIAL.
THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE UPON JUVENILE J.L.A., SINCE THE CODE OF JUVENILE JUSTICE (N.J.S.A. 2A:4A-20 ET SEQ.) CONTAINS NO PROVISION AUTHORIZING THE IMPOSITION OF CONSECUTIVE [DISPOSITIONS].
ASSUMING CONSECUTIVE DISPOSITIONS ARE AUTHORIZED BY THE CODE OF JUVENILE JUSTICE, THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE DISPOSITIONS UPON J.L.A.
We have carefully reviewed this record in light of these contentions and have concluded that the issues raised in Points I and II of J.L.A.'s brief are clearly without merit. R. 2:11-3(e)(2).
However, we agree with J.L.A. that consecutive Dispositions are unauthorized by the Code of Juvenile Justice. N.J.S.A. 2A:4A-20 to -91.
The Juvenile Code became effective in December, 1983. Its stated purposes are fundamentally rehabilitative:
a. To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of juveniles coming within the provisions of this act;
b. Consistent with the protection of the public interest, to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute therefor an adequate program of supervision, care and rehabilitation;
c. To separate juveniles from the family environment only when necessary for their health, safety or welfare or in the interests of public safety;
d. To secure for each child coming under the jurisdiction of the court such care, guidance and control, preferably in his own home, as will conduce to the child's welfare and the best interests of the State; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents;
e. To insure that children under the jurisdiction of the court are wards of the State, subject to the discipline and entitled to the protection of the State, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them. [ N.J.S.A. 2A:4A-21].
To this end, a detailed methodology to deal with juvenile offenders was established by the Code of Juvenile Justice, including 18 separate Dispositional options. N.J.S.A. 2A:4A-43. Among the available Dispositions are in-home supervision, probation, civil commitment, fines, restitution and community service. Additionally, incarceration is included as an available Disposition. N.J.S.A. 2A:4A-44. Extended terms may be imposed in the limited circumstances delineated in N.J.S.A. 2A:4A-44d(3). Finally, the Code of Juvenile Justice allows, in appropriate cases, referral to adult court where harsher adult penalties apply. N.J.S.A. 2A:4A-26.
Not mentioned in the Code is the alternative of imposing consecutive Dispositions upon a juvenile adjudicated delinquent for more than one offense. J.L.A. argues that the absence of a reference to consecutive Dispositions is an indication of the Legislature's intent to omit that option. The State counters
that if the Legislature had intended to prohibit consecutive terms of incarceration it would have done so, and that, without a clear statement to that effect, we should interpret the statute as allowing for consecutive treatment.
In construing this statute, we are mindful that our role is to give effect to the Legislature's intent. Johnson Machinery Co., Inc. v. Manville Sales Corp., 248 N.J. Super. 285, 303, 590 A.2d 1206 (App.Div.1991). See also Monmouth County v. Wissell, 68 N.J. 35, 42, 342 A.2d 199 (1975); Cedar Cove v. Stanzione, 233 N.J. Super. 336, 340, 558 A.2d 1351 (App.Div.1989), rev'd on other grounds, 122 N.J. 202, 584 A.2d 784 (1991); Coletti v. Union County Bd. of Chosen Freeholders, 217 N.J. Super. 31, 35, 524 A.2d 1270 (App.Div.1987); State v. H.J.B., 240 N.J. Super. 216, 220-21, 572 A.2d 1205 (Law Div.1990); Shapiro v. Essex County Bd. of Chosen Freeholders, 177 N.J. Super. 87, 92-93, 424 A.2d 1203 (Law Div.1980), aff'd 183 N.J. Super. 24, 443 A.2d 219 (App.Div.), aff'd, 91 N.J. 430, 453 A.2d 158 (1982). Among the sources of legislative intent are the language chosen by the Legislature, the policy behind the act, its legislative history, and concepts of reasonableness. Cedar Cove, supra, 233 N.J. Super. at 340, 558 A.2d 1351; Shapiro, supra, 177 N.J. Super. at 93, 424 A.2d 1203. Statutes are to be read sensibly and the controlling legislative intent is to be presumed as "consonant to reason and good discretion." Schierstead v. City of Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959) (citations omitted). "In construing a statute, we assume that the Legislature intended a reasonable approach . . .", Roman v. Sharper, 53 N.J. 338, 341, 250 A.2d 745 (1969), not one "at odds with the sense of the situation." Id. at 340, 250 A.2d 745; Cedar Cove, supra, 233 N.J. Super. at 341, 558 A.2d 1351.
A full review of the legislative history of the Code of Juvenile Justice sheds no light on the issue before us. The statement of policy underlying the Code, as expressed in N.J.S.A. 2A:4A-21, is helpful insofar as it affirms the thrust of
the Code as being fundamentally redemptive and not retributive. However, because the Code nevertheless makes specific provision for incarceration, extended terms and waiver to adult court, its rehabilitative theme is not dispositive on the issue of consecutive Dispositions.
As to precedent, this is a case of first impression. Although prior decisions have been rendered regarding consecutive sentences for youthful adult offenders, an entirely distinct category, See State v. Carroll, 66 N.J. 558, 334 A.2d 17 (1975); State v. Horton, 45 N.J. Super. 44, 131 A.2d 425 (App.Div.1957), no decision on the issue of consecutive juvenile Dispositions has issued since the effective date of the Code in 1983. Even prior to the enactment of the Code, only one decision on this subject was reported. In State in the Interest of T.B., 149 N.J. Super. 1, 372 A.2d 1345 (App.Div.1977), a panel of this court declared consecutive Dispositions to be authorized under then current law, disapproved a general use of such Dispositions and questioned whether they are "contrary to the rehabilitative purpose of the Act . . ." Id. at 5 n. 1, 372 A.2d 1345.
In short, it seems to us that it is the language of the Code of Juvenile Justice itself, tested against established canons of statutory construction, which is the key to what the Legislature intended in enacting it. We begin with the omission of specific authorization for consecutive Dispositions. While we are ordinarily wary of placing too much emphasis on legislative silence, we think it speaks volumes in this case. A review of the statute demonstrates this point. N.J.S.A. 2A:4A-43 sets forth the legislatively approved Dispositions.
(1) Adjourn formal entry of Disposition of the case for a period not to exceed 12 months for the purpose of determining whether the juvenile makes a satisfactory adjustment, and if during the period of continuance the juvenile makes such an adjustment, dismiss the complaint; provided that if the court adjourns formal entry of Disposition of delinquency for a violation of an offense defined in chapter 35 or 36 of Title 2C, of the New Jersey Statutes the court shall assess the mandatory penalty as set forth in N.J.S. 2C:35-15 but may waive imposition of the penalty set forth in N.J.S. 2C:35-16 for juveniles adjudicated delinquent;
(2) Release the juvenile to the supervision of his or her parent or guardian;
(3) Place the juvenile on probation to the chief probation officer of the county or to any other suitable person who agrees to accept the duty of probation supervision for a period not to exceed 3 years upon such written conditions as the court deems will aid rehabilitation of the juvenile;
(4) Transfer custody of the juvenile to any relative or other person determined by the court to be qualified to care for the juvenile;
(5) Place the juvenile under the care of the Department of Human Services under the responsibility of the Division of Youth and Family Services pursuant to P.L.1951, c. 138, s. 2(c) (C. 30:4C-2(c)) for the purpose of providing services in or out of the home. Within 14 days, unless for good cause shown, but not later than 30 days, the Department of Human Services shall submit to the court a service plan, which shall be presumed valid, detailing the specifics of any Disposition order. The plan shall be developed within the limits of fiscal and other resources available to the department. If the court determines that the service plan is inappropriate, given existing resources, the department may request a hearing on that determination;
(6) Place the juvenile under the care and custody of the Commissioner of the Department of Human Services for the purpose of receiving the services of the Division of Mental Retardation of that department, provided that the juvenile has been determined to be ...