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State in Interest of S.S.

Decided: May 5, 1994.

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


On appeal from the Superior Court, Chancery Division -- Family Part, Camden County

Before Judges Gaulkin, D'Annunzio and Wallace

Gaulkin

The opinion of the court was delivered by GAULKIN, P.J.A.D.

The issue here is whether N.J.S.A. 2A:4A-61, a provision of the New Jersey Code of Juvenile Justice adopted in 1982, allows or prohibits the fingerprinting of a juvenile 14 years of age or older charged with delinquency on the basis of an act, which, if committed by an adult, would constitute a crime. We hold that the statute authorizes such fingerprinting.

On April 23, 1992, S.S., then 15 years old, was charged with delinquency for receiving stolen property and theft of a car. The local police fingerprinted S.S. and retained his prints for criminal identification purposes; the charges were apparently dismissed. On October 3, 1992 another automobile was stolen in the same municipality. When it was recovered three days later, the police obtained latent fingerprints from the interior. The prints were compared with those taken from S.S.; both sets were found to be from the same person. S.S. was then charged with delinquency for the second automobile burglary and theft. He moved in the Family Part to suppress the fingerprint evidence, claiming that the police had no authority to fingerprint him when he was first charged. The motion was granted. We granted the State's motion for leave to appeal and now reverse.

N.J.S.A. 2A:4A-61 provides in its entirety as follows:

a. Fingerprints of a juvenile may be taken only in the following circumstances:

(1) Where latent fingerprints are found during the investigation of an offense and a law enforcement officer has reason to believe that they are those of a juvenile, he may, with the consent of the court or juvenile and his parent or guardian fingerprint the juvenile for the purpose of comparison with the latent fingerprints. Fingerprint records taken pursuant to this paragraph may be retained by the department or agency taking them and shall be destroyed when the purpose for the taking of fingerprints has been fulfilled.

(2) Where a juvenile is detained in or committed to an institution, that institution may fingerprint the juvenile for the purpose of identification. Fingerprint records taken pursuant to this paragraph may be retained by the institution taking them and shall be destroyed when the purpose for taking them has been fulfilled, except that if the juvenile was detained or committed as the result of an adjudication of delinquency, the fingerprint records may be retained by the institution.

(3) Where a juvenile 14 years of age or older is charged with delinquency on the basis of an act which, if committed by an adult, would constitute a crime, fingerprint records taken pursuant to this paragraph may be retained by a law enforcement agency for criminal identification purposes.

b. No juvenile under the age of 14 shall be photographed for criminal identification purposes without the consent of the court or of the juvenile and his parent or guardian.

The parties agree that subsection a(3) was the only arguable authority for the police to take S.S.'s fingerprints in April 1992. That subsection should be read, the State says, "as though the third comma were a semi-colon":

a. Fingerprints of a juvenile may be taken only in the following circumstances:

(3) Where a juvenile 14 years of age or older is charged with delinquency on the basis of an act which, if committed by an adult, would constitute a crime; fingerprint records taken pursuant to this paragraph may be retained by a ...


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