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State in Interest of Presha

April 4, 1995

STATE OF NEW JERSEY IN THE INTEREST OF PHILLIP PRESHA, DEFENDANT.


Schlesinger, J.s.c.

The opinion of the court was delivered by: Schlesinger

OPINION

SCHLESINGER, J.S.C.

This is an application made by three newspapers pursuant to R. 5:19-2 and N.J.S.A. 2A:4A-60.i. to intervene and to permit public attendance during all court proceedings in this juvenile delinquency matter. The motion to intervene is unopposed and is granted. The juvenile opposes the merits of the application, whereas the State of New Jersey takes a neutral stance and submits to the court's discretion. The initial proceeding involved is the so-called "waiver" hearing designed to determine whether or not this juvenile should be treated as an adult offender pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2.

I. THE FACTUAL BACKGROUND

On Monday, February 27, 1995, at a little after midnight, James and Sara Oldham, age 70 and 73, respectively, were brutally attacked and stabbed in the living room of their home on Pastoral Lane in the Pennypacker Park Section of Willingboro. The two attackers broke into the Oldham's home around midnight by kicking in the front door. The victim's telephone line was cut prior to entry. Both James and Sara Oldham were threatened with death and stabbed. According to Mr. Oldham, both intruders held knives and wore hoods or masks which concealed their faces. The intruders took $50 from Mrs. Oldham's purse and then left through the front door. The Oldham's cries for help drew the attention of neighbors who dialed 911 and came to assist the couple. The attackers fled on foot through fresh snow. The tracks led to the home of Phillip Presha, a juvenile born on March 11, 1978 who lived on Poplar Lane. The police arrested Phillip Presha and an adult present at Phillip Presha's home when they arrived. Both Phillip Presha and the adult were charged with Attempted Murder, Aggravated Assault, Robbery, Burglary, Theft and Possession of a Weapon for Unlawful Purpose.

II. WHAT IS THE APPLICABLE STATUTORY STANDARD?

This application must be evaluated by the standards set forth in the statute, N.J.S.A. 2A:4A-60.i. and R. 5:19-2. The statute and Rule provide in their pertinent part as follows:

The Court may, upon application by . . . members of the news media, permit public attendance during any court proceeding at a delinquency case, where it determines that there is no substantial likelihood that specific harm to the juvenile would result.

[(emphasis added)]

It should be noted that N.J.S.A. 2A:4A-60.f. which deals with post adjudication confidentiality does contain specific language indicating that the juvenile has the burden of persuasion on the issue of whether there is a substantial risk of specific harm. That sub-section provides in its pertinent parts as follows:

Information as to the identity of a juvenile adjudicated delinquent, the offense, the adjudication and the Disposition shall be disclosed to the public where the offense for which the juvenile has been adjudicated delinquent if committed by an adult, would constitute a crime of the first, second or third degree . . . unless upon application at the time of Disposition the juvenile demonstrates substantial likelihood that specific harm would result from such disclosure.

[Id. ]

Although N.J.S.A. 2A:4A-60.i. is inartfully worded, and does not contain the presumption which is contained in N.J.S.A. 2A:4A-60.f., the burden of production and persuasion generally is placed upon the party with better access to the relevant information. J.E. on Behalf of G.E. v. State, 131 N.J. 552, 569-70, 622 A.2d 227 (1993). That party is clearly the juvenile and even though subsection i. does not contain the "juvenile demonstrated" language set forth in subsection f., it does not appear that the Legislature intended to place the burden of persuasion upon the intervenors. The construction of a statute should not produce a result which is "at odds with the sense of the situation," Roman v. Sharper, 53 N.J. 338, 340, 250 A.2d 745 (1969). The juvenile is the only one who would have access to the pertinent information which would establish a substantial risk of specific harm, and thus should have the burden of persuasion on this issue. Although it is not significant, it would appear that the burden of going forward, as opposed to the burden of persuasion, would remain upon the applicants. However, that burden would be extremely minimal and consist only of establishing the fact that the applicants have the standing to ...


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