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State in Interest of A.H.

January 24, 1997


Raymond A. Batten, J.s.c.

The opinion of the court was delivered by: Batten


This pretrial motion to dismiss juvenile complaints on double jeopardy grounds requires consideration and adjudication of the effect of a finding of innocence by a referee at the Conclusion of an informal "trial/non-mandatory counsel" proceeding, on the record, and the rights, if any, of the complaining witness to "appeal" the referee's finding to this court for formal hearing de novo. Neither statute nor rule of court resolves these issues. The single reported opinion most factually similar, State in the Interest of L.D., 174 N.J. Super. 263, 416 A.2d 410 (App.Div. 1980), predates the advent of "referee" proceedings and thus specifically and deliberately left unresolved the very issue which this court must now decide:

...whether an adjudication on an 'informal hearing' occurring in the usual predictable procedural course of things precludes a later "formal hearing".

[ 174 N.J. Super. at 264.]

The circumstances here involved are not unique; indeed, they likely will occur and recur in our trial courts as juvenile filings escalate in volume and our judicial institution must, in response, rely more heavily upon diversionary alternatives to formal/counsel-mandatory trial, that is, informal counsel-non-mandatory referee proceedings. The facts are these:

Juvenile A.H. (hereinafter "juvenile"), age 14, was charged on April 4, 1996, and May 5, 1996, with conduct which, if committed by an adult, would constitute, respectively, criminal trespass (N.J.S.A. 2C:18-3(b)(1)) and criminal mischief (N.J.S.A. 2C:17-3), disorderly persons offenses. The complainant in each matter is Jane Malewicz (hereinafter "complainant"), whose residence, # 4 - 7th Street, Edgewood, Middle Township, New Jersey, is the situs of the alleged offenses. The complaints were screened administratively and scheduled for "trial/non-mandatory counsel" for July 12, 1996. *fn1 That proceeding, conducted on the record and before a referee appointed pursuant to R. 5:25-2, was prosecuted by complainant's privately retained counsel. The juvenile was also represented by privately retained counsel. The record before the referee consisted entirely of sworn testimony by the complainant. The juvenile did not testify; nor did defense counsel call any witnesses. At the Conclusion of presentation of the complainant's case, the defense rested. The referee thereupon found that the record did not contain sufficient factual basis to sustain an adjudication of delinquency and "dismissed" the criminal mischief and criminal trespass charges subject only to the acceptance of the recommendation by the court by way of executed order; R. 5:25-2. *fn2

By oral request of July 12, 1996, and confirming letter dated July 16, 1996, counsel for complainant requested "that the matter be reheard and testimony taken before a Judge of the Superior Court." Complainant, as explained by her counsel, "is not satisfied with the [referee's] finding and wishes to have the matter reheard...." These complaints were then rescreened to the "formal/counsel mandatory" list and trial was scheduled for October 8, 1996. The complainant, juvenile and respective counsel appeared; defense counsel then moved, pre-trial, for dismissal of all charges on grounds of double jeopardy. Trial was continued and counsel were afforded opportunity to submit briefs on the issue. By motion filed October 15, 1996, the juvenile now seeks:

" order of the court dismissing the complaint...and entering a finding of not guilty; the alternative, [an order] accepting the referee's decision and incorporating that decision ... the alternative, ... an order ... directing the State to provide defense counsel with a transcript of the proceedings from which it appeals, and that the court conduct the requested appeal from the record of all papers on file ... including the transcript of the full hearing below"

The juvenile asserts that a second and formal hearing, with the attendant implications of possible commitment consequent to adjudications of delinquency on these charges and the violation of conditions of informal Disposition and adjudications on former charges *fn3 would violate his right to due process of law and would place him twice in jeopardy for the same offenses, contrary to N.J.S.A. 2C:1-9, *fn4 N.J.S.A. 2A:4A-40, *fn5 as well as N.J. Const. Article I, paragraph 11 *fn6 and N.J. Const. amend V *fn7 The complainant, in response, cites State In Interest of J.J., 132 N.J. Super 464, 334 A.2d 80 (Cty. Ct. 1975) as authority for her position that the prior informal proceeding did not subject the juvenile to jeopardy. The juvenile, in reply, distinguishes the facts therein confronting Judge King from the facts here stipulated. To varying degree, each argument enjoys merit; neither, however, prevails. Facts not yet found in any reported opinion and adoption of R. 5:25-2 subsequent to all other reported opinions compel new and different analysis.

First, informal juvenile hearings before an official other than a Judge of the Superior Court, such as R. 5:25-2 referee, are relatively recent phenomena. The rule, entitled "Referees", states:

The Judge of the family part may with the approval of the Chief Justice appoint a suitable person to act as referee. The recommendations of the referee shall be without effect unless approved by the court and incorporated in an appropriate order or judgment of the court.

Effective December 31, 1983, the rule postdates the reported cases cited by both counsel, In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967); State in Interest of G.J., 108 N.J. Super. 186, 260 A.2d 513 (App.Div. 1969), cert. den. 55 N.J. 447 (1970); State in Interest of J.J., 132 N.J. Super. 464, 334 A.2d 80 (J.&D.R. Ct. 1975), and authorizes a type of diversionary, informal proceeding theretofore handled in all regards by Judges of the Superior Court. The rule provision requiring approval by the court and incorporation of the referee's recommendation in an ...

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