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State in Interest of J.S.

Decided: February 10, 1994.

STATE OF NEW JERSEY IN THE INTEREST OF: J.S., A JUVENILE


Batten

Batten

OPINION

BATTEN, J.S.C.

This matter comes before this court, upon stipulated facts and consent of all counsel, for summary Disposition as to an issue yet to be decided by any reported opinions in this state: specifically, does the September 30, 1993, pre-Dispositional retraction of prior sworn testimony by the juvenile at the August 26, 1993, plea of guilt to a charge of burglary (FJ-05-657-94d) occur ". . . in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter," and, as such, fall within the statutory definition of retraction as contained in

N.J.S.A. 2C:28-1(d)? The facts, as stipulated by counsel, are these:

FACTS

1. On 5/19/93, Robinson's Farm Market in the Villas section of Lower Township was burglarized; cash and cigarettes of a value in excess of $500.00 were stolen;

2. On 5/28/93, the juvenile, J.S., gave a taped statement to the Lower Township Police Department, admitting his involvement in the burglary and implicating Michael, Albert and Fred Hamilton as being involved with him during the commission of the crime;

3. On 6/2/93, complaints were filed against the Hamiltons and J.S. by Lower Township Police, charging all four with burlary and theft;

4. On 7/21/93, Indictment 93-07-00267 was returned against Michael, Albert and Fred Hamilton, charging them with the burglary of Robinson's Farm Market;

5. On 8/13/93, Michael Hamilton entered a guilty plea to indictment 93-07-00267 as well as other unrelated indictments;

6. On 8/26/93, J.S. (then represented by Public Defender Jesse Deane in the absence of his regularly assigned attorney, Deputy Public Defender Timothy D. Gorny), pled guilty to the May 19, 1993, burglary and implicated, while under oath, Michael, Albert and Fred Hamilton as participants in this offense;

7. On 9/2/93, J.S. advised Public Defender Gorny that, in fact, only Michael Hamilton was with him at the time of the burglary and that Albert and Fred Hamilton were not involved. He further stated that he had implicated Albert and Fred because he felt that if he did not, the police would take him to jail;

8. On 9/3/93, Public Defender Gorney contacted Assistant Prosecutor Barbara Bakley and informed her J.S.'s intention to retract his earlier statement as it pertained to Albert and Fred Hamilton;

9. On 9/16/93, J.S. appeared before this court and, through counsel, indicated that he wished to retract, prior to sentencing, his earlier statements involving Albert and Fred Hamilton. At that time, due to Prosecutor Bakley's unavailability, the retraction was continued to the next court date;

10. On 9/30/93, J.S. formally, while under oath, retracted his prior statement implicating Albert and Fred Hamilton. He affirmed, however, his intention to adhere to his guilty plea and he reaffirmed the involvement of Michael Hamilton in the crime;

11. On 10/5/93, indictment 93-07-00267, as it pertained to Fred Hamilton, was dismissed (other unrelated charges against Fred Hamilton were still pending prosecution);

12. On 10/5/93, the Lower Township Police Department filed Complaint #FJ-05-657-94D, charging J.S. with perjury, pursuant to N.J.S.A. 2C:28-1, and unsworn falsification ...


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