On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FJ-10-384-00.
Before Judges Baime, Newman and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The novel issue in this juvenile delinquency appeal is whether the Family Part is mandated by N.J.S.A. 2C:33-3.1 to impose a six- month suspension or postponement of the juvenile's driver's license privilege when the juvenile pleads guilty to or is adjudicated delinquent of making a false alarm, contrary to N.J.S.A. 2C:33- 3(a), and the court enters a deferred disposition pursuant to N.J.S.A. 2A:4A-43b(1) that results in dismissal of the delinquency complaint if the juvenile makes a satisfactory adjustment during the period of continuance. We hold that the penalties set forth in N.J.S.A. 2C:33-3.1 are not mandated when the Family Part elects to enter an adjourned disposition pursuant to N.J.S.A. 2A:4A-43b(1).*fn1
This issue arises in the context of the following factual and procedural history. N.L. was born on August 20, 1989. On March 7, 2000, when N.L. was age 10, he was charged with an act of juvenile delinquency which, if committed by an adult, would constitute fourth-degree making a false public alarm, contrary to N.J.S.A. 2C:33-3(a).*fn2 Specifically, N.L. was charged with pulling a fire alarm in the hallway of Copper Hill School in Flemington on March 6, 2000, without any fire or smoke being present, causing the fire alarm to go off and the school to be evacuated. N.J.S.A. 2C:33-3.1, entitled "Penalties for Juvenile Violating N.J.S. 2C:33-3," was enacted by L. 1999, c. 195, § 2, effective August 31, 1999. N.J.S.A. 2C:33-3.1a provides that where a juvenile is "adjudicated delinquent for a violation of N.J.S. 2C:33-3 the court shall suspend or postpone the juvenile's right to operate a motor vehicle including a motorized bicycle for a period of six months, in addition to any other disposition ordered by the court under [N.J.S.A. 2A:4A-43]."
Counsel for N.L. filed a motion in limine seeking a determination that the provisions of N.J.S.A. 2C:33-3.1 would not be applicable to N.L. if he were to receive a deferred disposition pursuant to N.J.S.A. 2A:4A-43b(1) "since such does not constitute an adjudication of juvenile delinquency which would require the imposition of a mandatory period of suspension or postponement of the juvenile's right to operate or receive a driver's license." Specifically, counsel for N.L. argued that when a court orders a deferred disposition pursuant to N.J.S.A. 2A:4A-43b(1), it cannot be said that the juvenile was "adjudicated delinquent;" hence, N.J.S.A. 2C:33-3.1 is inapplicable.
A hearing was conducted on N.L.'s motion in the Family Part on May 1, 2000. The judge entered an order on that date, ruling that the driver's license postponement provisions contained in N.J.S.A. 2C:33-3.1 would be applicable to N.L. if he received a deferred disposition pursuant to N.J.S.A. 2A:4A-43b(1). In a written statement of reasons, the judge stated, in pertinent part:
[T]he juvenile defendant argues that a deferred disposition is not really an adjudication because it results in a dismissal of the complaint if successfully completed. However, the juvenile fails to read N.J.S.A. 2A:4A-43b accurately because that statute permits the court to impose a disposition on a juvenile only if he is adjudged delinquent. Without a finding of delinquency, the court is without power to act. Nowhere does [State in the Interest of V.M., 279 N.J. Super. 535 (App. Div. 1995)], cited by the juvenile, conclude that a deferred disposition does not result in a finding of delinquency. Instead, V.M. addresses whether a deferred disposition is a disposition as contemplated in N.J.S.A. 2C:20-2.1. As to that subject, V.M. states: "Even though subsection b(1) characterizes the review period as one which would '[a]djourn formal entry of disposition,' it is nonetheless listed as a formal disposition. . . . Accordingly, we are satisfied that N.J.S.A. 2A:4A-43 is clear that the placement of a juvenile under a twelve-month adjustment is a disposition. The more difficult question is what consequences flow from this form of disposition." [V.M., supra, 279 N.J. Super. at 537.]
In V.M., the court assessed whether a deferred disposition required the suspension or postponement of a juvenile's driving privileges for theft of a motor vehicle under N.J.S.A. 2C:20-2.1. N.J.S.A. 2A:4A-43(b) provides in pertinent part: "if a juvenile is adjudged delinquent . . . the court may order . . . one or more of the following dispositions: (1) Adjourn formal entry of disposition of the case for a period not to exceed 12 months . . . and if . . . the juvenile makes [a satisfactory] . . . adjustment, dismiss the complaint;" however, the court shall assess mandatory drug enforcement and demand reduction penalties of N.J.S. 2C:35-15, but may waive imposition of the penalty under N.J.S.A. 2C:35-16, which is the loss of driving privileges required for drug offenders. In the case of V.M., the juveniles plead guilty to receiving stolen property in violation of N.J.S.A. 2C:20-7 and received a deferred disposition for twelve months. The "sentencing" court refused to impose the mandatory fines and penalties required by N.J.S.A. 2C:20-2.1. This statute reads in pertinent part: "In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle shall be subject . . . to suspension or postponement of the person's license to operate a motor vehicle. . . ." The V.M. court noted a serious question as to whether the term "subject to" was a mandatory penalty but found no need to resolve whether that phrase was an authorization or a mandate. Instead, the V.M. court said: "In our view it is incompatible with dismissal of the complaint to require imposition of mandatory penalties unless specifically required by N.J.S.A. 2A:4A-43" and concluded that if the penalties of N.J.S.A. 2C:20-22.1 were to be mandatory, the Legislature could have included those in N.J.S.A. 2A:4A-43 as mandatory along with N.J.S.A. 2C:35-15. [279 N.J. Super. at 539.] Since the Legislature did not, [the court] concluded N.J.S.A. 2C:20-2.1 was not mandatory for a deferred disposition. [Ibid.]
The V.M. court did not rule on whether N.J.S.A. 2C:20-2.1 would be mandatory for other juvenile dispositions. I note that N.J.S.A. 2C:20-2.1 was enacted in 1993 to increase penalties for theft or unlawful taking of motor vehicle[s] was however to be mandatory in adult sentencing. State v. Roma, 298 N.J. Super. 339 (App. Div. 1997)[, aff'd, 153 N.J. 162 (1998).] Unlike N.J.S.A. 2C:20-2.1, N.J.S.A.
2C:33-3.1, which was enacted to be effective August 31, 1999, does not suggest mere authorization to require the penalty. The language is directed specifically to juveniles and the terms are unequivocal. When a juvenile is adjudicated delinquent for making a false public alarm, "the court shall suspend or postpone the juvenile's right to operate a motor vehicle. . . ." As already noted, N.J.S.A. 2A:4A-43 requires an adjudication of delinquency before any disposition including a deferred disposition may be imposed by the court. Therefore, any juvenile who pleads or is found guilty of violating N.J.S.A. 2C:33-3, even though a deferred disposition is imposed, must have his or her license suspended or postponed for six months as part of that or "any other disposition." [Footnote omitted.]
On May 18, 2000, N.L. pled guilty to the charged act of delinquency and the Family Part adjourned formal entry of disposition of the case for a period of one year, pursuant to the provisions of N.J.S.A. 2A:4A-43b(1). If N.L. made a satisfactory adjustment during the period of continuance, the complaint was to be dismissed.*fn3
However, in accordance with its decision on N.L.'s motion in limine, the court required that N.L.'s privilege to apply for a motor vehicle driver's license be postponed for a period ...