On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FJ-06-1780-03.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2005
Before Judges Cuff, Lintner and Gilroy.
On March 5, 2003, the Cumberland County Prosecutor's Office filed juvenile complaints charging L.R., K.W., and R.N. with acts which, if committed by an adult, would constitute third- degree criminal mischief, N.J.S.A. 2C:17-3a(1), for scratching the side of an automobile owned by Warren Crescenzo.*fn1 The complaints were administratively screened and scheduled for a "counsel non-mandatory" proceeding pursuant to the Juvenile Referee Program, R. 5:25-2. Following a two-day hearing on March 28 and April 28, 2003, the referee found there were sufficient facts to adjudicate both K.W and L.R. delinquent of the charge of criminal mischief. He adjourned disposition for six months and ordered each juvenile to pay restitution of $66 to Crescenzo to reimburse him for his auto insurance deductible and $200 to the Teachers Insurance Plan.*fn2 The Family Court judge accepted the referee's recommendation and signed an Order on April 28, 2003, finding L.R. guilty of criminal mischief, adjourning disposition for six months, and ordering restitution.
On August 28, 2003, the Cumberland County Prosecutor's Office filed a second juvenile complaint charging L.R. with acts which, if committed by an adult, would constitute third-degree burglary, N.J.S.A. 2C:18-2a(1) (Count One), and third-degree manufacturing or possessing burglar's tools, N.J.S.A. 2C:5-5a(2) (Count Two).*fn3 On October 2, 2003, L.R. pled guilty to an amended Count One charge, which, if committed by an adult, would constitute criminal trespass contrary to N.J.S.A. 2C:18-3, a disorderly persons offense. Count Two was dismissed pursuant to the plea agreement. The Family Court judge accepted defendant's plea as voluntary, "with advice of counsel and with the agreement of his mother."
That same day, consistent with the plea agreement, the judge sentenced defendant to one year of probation on the trespassing offense. The judge imposed an additional one-year period of probation to run concurrent with the probation imposed on the trespassing offense for reoffending within the six-month period of adjourned disposition. Because the earlier disposition was for a third-degree offense, the judge ordered L.R. to provide a DNA sample. Reserving his right to appeal the DNA sample requirement, the following colloquy took place between the judge and L.R.'s counsel, culminating in the granting of L.R.'s request for a stay of the order requiring him to provide his DNA pending appeal:
THE COURT: All right. So he will have probation for one year and also, because of the degree of criminal mischief, do you understand, sir, by pleading guilty, you will have to be fingerprinted and have a DNA sample?
THE COURT: Does that change your mind on the plea?
THE COURT: [Room] 252 for a swab in your cheek to have your DNA, since you have now been found guilty of a third degree offense. And the juvenile is responsible for the cost of that test as well.
COUNSEL: Judge, I just want to indicate for the record, and I understand Your Honor's ruling -- I'm not quarreling it with respect to the DNA. I'm going to indicate that my reading of the statute would be that it should not be given retroactive application. In this particular case, this young man wasn't even before a court. He was adjudicat[ed] by a hearing officer. So I would say that, in this case in particular, it should not really apply since he wasn't adjudicated by a court.
THE COURT: I don't -- the statute doesn't say that, does it?
COUNSEL: Well, I know it doesn't say it but it's a consequence of magnitude, especially the juvenile to be put into a DNA data bank. So what I would say is that other cases where there are consequences of magnitude, when a case isn't heard by a court, consequences of magnitude aren't supposed to flow from them. In other words, if it's heard by a hearing officer, incarceration can't flow from that because he wasn't in front of a court. I would say that having your name, when you're 14 years old, put on a DNA registry is similarly a consequence of magnitude that should not flow from an uncounseled hearing, not in front [of] a jury, ordained or appointed court of law.
THE COURT: However, today, because he was given an adjourned disposition by the hearing officer, he violated that by reoffending during that time. He is now back before a Superior Court judge for sentencing on that and I find it is appropriate, given the degree of the offense, to follow the new statute and require him to deposit his DNA sample.
COUNSEL: All right. Just for the record, I also take the position that, in the event that the juvenile may want to appeal on that issue, I'm also objecting on the grounds that it's being given improperly, I would submit, retroactive application. That wasn't a consequence of magnitude, a punishment that was on the table at the time the offense was committed or ...