September 26, 2008
STATE IN THE INTEREST OF S.B., J.G., M.E., J.N. AND D.H., JUVENILES
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FJ-09-1886-07, FJ-09-1883-07, FJ-09-1885-07, FJ-09-1882-07, and FJ-09-1880-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Collester and C.S. Fisher.
The State appeals pursuant to Rule 2:3-1(b)(1) from the dismissal of the juvenile complaints against S.B., J.G., M.E., J.N., and D.H. Following receipt of the State's brief, counsel for juvenile M.E. filed a brief in opposition in which juveniles S.B., J.G., and J.N. join. On August 7, 2007, we granted partial dismissal of the appeal as to the juvenile D.H.
Juvenile complaints were filed against each of the five juveniles charging the offenses of second-degree robbery, contrary to N.J.S.A. 2C:15-1, second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), and second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2. According to the State's version of events, at about 7:40 p.m. on December 28, 2006, the five juveniles assaulted and robbed Liu Yi, a delivery person for the Sky Dragon Chinese Restaurant, in front of 195 Custer Avenue in Jersey City. It so happened that five Jersey City police officers were on surveillance in the area, and the officers witnessed the robbery. All five juveniles were apprehended after attempting to flee.
March 12, 2007 was the first trial date on the juvenile complaints. All of the juvenile defendants were present in court with their attorneys and ready to proceed. The State's police witnesses also appeared. At approximately 9:15 the assistant prosecutor noticed that the victim was not present and requested Detective Khalil Hassan to call the victim. Detective Hassan placed calls to the Yi's Jersey City home and the restaurant where he worked but was unable to locate him. At about 9:45 Detective Hassan left the prosecutor's office to search for Yi.
At about 10:25 the case was called for trial. The trial assistant prosecutor had just received word from her trial partner that Detective Hassan had found the victim who had "car trouble."*fn1 The following colloquy then took place:
MS. KAZANCHY: Your Honor, at this time the State is respectfully requesting an adjournment. I would like to address the opportunity to put my reasons on the record.
THE COURT: As you know, at 9:00 the schedule was for. And this is a difficult trial to schedule, because I have five . . . attorneys. I have five young people. I have five sets of parents. We have a Mandarin interpreter at your request. All at the ready since 9:00 this morning, so -
MS. KAZANCHY: I understand, Judge.
THE COURT: So, what's the problem?
MS. KAZANCHY: If I can just put it on the record. On 9:45 when I saw that my victim was not here, I had had contact with this victim. He's come in every time on time. On the day I spoke to him -
THE COURT: Was he subpoenaed?
MS. KAZANCHY: Yes. He spoke -
THE COURT: A real subpoena? Did he get a subpoena served?
MS. KAZANCHY: He got it, because when -
THE COURT: No, no, no. Was he served with a subpoena?
MS. KAZANCHY: Yes. I saw it in his hands.
THE COURT: Do you have proof of service?
How was he served?
MS. KAZANCHY: Your Honor, I just got a hold of our detective. He actually just talked to the victim, and is picking him up right now. He -
THE COURT: It's 10:34, so, I'm really not all that interested, and I hate to sound cruel -
MS. KAZANCHY: Your Honor -
THE COURT: Was he served with a subpoena?
MS. KAZANCHY: He was. . . .
THE COURT: Where's the proof of service?
MS. KAZANCHY: We don't keep proof of service.
THE COURT: Okay. Then how I know - how do you know he was served?
MS. KAZANCHY: Because when I met with him, he had the subpoena in his hand.
THE COURT: Okay. You need to - I think you need to familiarize yourself with the rule book that says a subpoena needs to be served in a certain way. Okay? Not stuck in the mail, and you know, because somebody had it in their hand that means they got the mail. . . .
MS. KAZANCHY: . . . [W]e sent a detective to his house. He first went to his place of business, he wasn't there. You heard Ms. Maloney represent that the victim had car trouble, he's on his way. . . .
THE COURT: Did anybody call? Did he call to tell you there was car trouble?
MS. KAZANCHY: We called him, yes, Your Honor. . . .
THE COURT: That's not what I asked. . . . Did he call you and tell your, you know, I know I got to be there at 9:00, and it's already 9:30, and my car is not starting.
ASSISTANT PROSECUTOR MALONEY: He did not. . . .
THE COURT: It's 10:30 in the morning.
It's hard enough to get a trial going where I have one attorney, one parent, one juvenile, one prosecutor, and no interpreter. I have all these people here, and no witness, with the promise that they're coming, who's not even been validly subpoenaed as far as I can see. Okay? So, anyone want to say anything?
MR. MILLER: I move to dismiss, Your Honor.
Ms. KAZANCHY: Your Honor, I have - I can start my case. I am ready to start, and I'm ready to call my first witness. Okay?
THE COURT: Okay. That's the chance that you take. Your understand that, you know -
Ms. KAZANCHY: I understand, Judge.
THE COURT: Okay. Just so the record is clear. If the case is dismissed at this point, then as far as I know it's without prejudice, but if you get - I presume you're going to need this victim to prove . . . the case. Once you start, people may think that jeopardy attaches, but you -
Ms. KAZANCHY: Your Honor, would you give me two minutes to talk to my detective?
THE COURT: No, there's more -
Ms. KAZANCHY: Since I haven't been able to speak with him personally.
THE COURT: It's 10:32 in the morning.
There is no more time. Okay? There is no more time. If you want to start, or you don't want to start. Which one is it? The choice is your's (sic). Okay. I need an answer now, do you want to start? It is 10:32 in the morning. Would you like to start or would you not like to start?
Ms. KAZANCHY: Your Honor, I would like two minutes to talk to my detective.
THE COURT: No, you've asked me twice.
Do not asked (sic) me a third time. Do you want to start the trial, or do you not? I need an answer. I'm not getting an answer, the case is dismissed. Okay?
Initially we note that the record does not indicate whether the dismissal of the juvenile complaints was with or without prejudice. The State asserts that when the assistant prosecutor asked that question, the trial judge refused to answer it and that this exchange occurred "off the record." The defense states that the dismissal was without prejudice, leaving the State the opportunity to re-file its complaints within the statutory time frame.
We conclude that the dismissal of the complaints constituted a mistaken exercise of discretion. As we stated in State in the Interest of D.J.C., 257 N.J. Super. 118 (App. Div. 1992),
There is an overriding policy which is firmly embedded in our law which disfavors the procedural dismissal of cases except on the merits. Procedural dismissal is a choice of last resort not one of the first instance. Surely, dismissal should not ordinarily, if ever, be used punitively or as a method of calendar control.
[Id. at 121.]
We fail to understand the judge's rationale for dismissing the case, whether with or without prejudice, in light of the prosecutor's representation that she had been advised that the victim was being driven by a detective to the courthouse.
Furthermore, the prosecutor indicated that she was ready to proceed with police witnesses prior to the victim's arrival.
The court's action in raising the issue of double jeopardy and forcing the prosecutor to make a decision without the opportunity for adequate reflection or to verify the time of arrival of her witness was unnecessary and uncalled for. The matter is remanded for trial.