On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FJ-13-2272-04, FJ-13-2233-04, and FJ-13-2778-04.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2006
Before Judges Lintner, Parrillo and Holston, Jr.
In these appeals, consolidated for the purpose of this opinion, a Family Court judge imposed suspended sentences in three separate, unrelated juvenile cases involving defendants M.C., M.P., and S.J. The State contends that the sentences imposed are illegal. The limited issue for us to determine is whether the Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -91 (the Code), should be interpreted to permit suspended sentences. The Code is silent on the subject of suspended sentences. Nevertheless, we conclude that its provisions are sufficiently flexible to permit our courts to impose suspended sentences as a viable disposition, given its fundamental rehabilitative and penal objectives.
The underlying facts are undisputed. Each of the juveniles involved pled guilty pursuant to negotiated plea agreements. On March 16, 2004, M.C. pled guilty to acts which, if committed by an adult, would constitute third-degree distribution of cocaine, N.J.S.A. 2C:35-5, and disorderly persons possession of marijuana under fifty grams, N.J.S.A. 2C:35-10a(4).*fn1 M.C. was sentenced to time served and loss of his driver's license for six months for possession of marijuana. On the plea to distribution of cocaine, a one-year suspended custodial sentence was imposed with a two-year period of probation.
On April 12, 2004, M.P. pled guilty to acts which, if committed by an adult, would constitute third-degree distribution of heroin within 1000 feet from a school.*fn2 A two-year suspended custodial sentence was imposed with two years of probation. M.P.'s right to obtain a driver's license was also suspended for six months. Three days later, S.J. pled guilty to charges in four separate complaints. Those charges included acts which, if committed by an adult, would constitute three separate disorderly persons simple assaults, N.J.S.A. 2C:12-1a,*fn3 fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, and third-degree theft, N.J.S.A. 2C:20-3. S.J. received a two-year suspended sentence, as well as a two-year period of probation.
The State moved to vacate the suspended sentences as illegal. Rejecting the juveniles' contention that double jeopardy prevented him from deciding the issue, the judge treated the State's application as a motion for reconsideration and denied the motion.
On appeal, the State contends that the omission of a provision permitting suspended dispositional incarceration in N.J.S.A. 2A:4A-43b(1) to -(20), which it asserts provides "an exhaustive list of 20 dispositions," renders a suspended term of incarceration "not authorized" and "illegal" under the Code. Defendants counter, arguing in part that the mere omission of suspended sentences as a disposition does not "automatically" signal an intention on the part of the Legislature to prohibit the Family Court from imposing suspended sentences. Defendants also argue in part that the Juvenile Code and Criminal Code overlap. They assert that R. 5:1-1, which provides, "[j]uvenile delinquency actions shall be governed by the rules in Part III insofar as applicable and except as otherwise provided by the rules in Part V," when coupled with R. 3:21-7 and N.J.S.A. 2C:43-2b, which allow suspended sentences for adults, leads to the conclusion that suspended sentences are permitted because the Code does not address the issue. We reject the State's argument that mere omission in the Code of a suspended sentence as an authorized disposition renders it illegal. Likewise, we disagree with defendants' assertion that suspended sentences are implicitly permitted from a reading of R. 5:1-1, R. 3:21-7 and N.J.S.A. 2C:43-2b. We, however, agree that suspended sentences are neither directly nor indirectly prohibited by the Code.
We begin our analysis with the provisions of N.J.S.A. 2A:4A-43b, which list twenty dispositions available to judges when imposing sentence upon a juvenile offender.
If a juvenile is adjudged delinquent . . . the court may order incarceration pursuant to [N.J.S.A. 2A:4A-44] or any one or more of the following dispositions:
(1) Adjourn formal entry of disposition of the case for a period not to exceed 12 months for the purpose of determining whether the juvenile makes a satisfactory adjustment, and if during the period of continuance the juvenile makes such an adjustment, dismiss the complaint; provided that if the court adjourns formal entry of disposition of delinquency for a violation of an offense defined in chapter 35 or 36 of Title 2C of the New Jersey Statutes the court shall assess the mandatory penalty set forth in N.J.S. 2C:35-15 but may waive imposition of the penalty set forth in N.J.S. 2C:35-16 for juveniles adjudicated delinquent;
(2) Release the juvenile to the supervision of the juvenile's parent or guardian;
(3) Place the juvenile on probation to the chief probation officer of the county or to any other suitable person who agrees to accept the duty of probation supervision for a period not to exceed three years upon such written conditions as the court deems will aid rehabilitation of the juvenile;
(4) Transfer custody of the juvenile to any relative or other person determined by the court to be qualified to care for the juvenile;
(5) Place the juvenile under the care and responsibility of the Department of Human Services so that the commissioner may designate a division or organizational unit in the department pursuant to P.L. 1951, c. 138 (C. 30:4C-1 et seq.) for the purpose of providing services in or out of the home. . . .;
(6) Place the juvenile under the care and custody of the Commissioner of Human Services for the purpose of receiving the services of the Division of Developmental Disabilities of that department, provided that the juvenile has been determined to be ...