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State ex rel Z.W.

January 5, 2009

STATE OF NEW JERSEY IN THE INTEREST OF Z.W.


On appeal from an Interlocutory Order of the Superior Court, Chancery Division, Family Part, Essex County, Docket No. FJ-2584-08.

The opinion of the court was delivered by: Lewinn, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 12, 2008

Before Judges Wefing, Yannotti and LeWinn.

The State appeals pursuant to leave granted from the trial court's order of May 6, 2008 that: (1) denied the request of the Essex County Prosecutor's Office (ECPO) that the court conduct an in camera review of a psychological evaluation obtained by the Division of Youth and Family Services (DYFS) of K.W., the minor witness to a sexual assault allegedly committed by the charged juvenile, Z.W.; (2) required the ECPO to review that report and determine whether it should be disclosed to defense counsel in whole or in part and, if so, to disclose it; and (3) required the ECPO to obtain an additional DYFS investigatory report, review it and furnish to defense counsel all or any part of that report that the ECPO deemed to be within its discovery obligations. On May 13, 2008, the trial court entered an order denying the ECPO's motion for reconsideration. We reverse.

Z.W. is a fourteen-year-old boy accused of sexually molesting his four-year-old nephew. The incident was witnessed by the victim's six-year-old sister, K.W., who reported it to her mother who, in turn, contacted the police. We have been advised that DYFS conducted an investigation of this incident and found that the allegations were not substantiated. As part of its investigation, DYFS ordered a psychological evaluation of K.W., and released a copy of that report to the ECPO. Defense counsel demanded a copy of the report in discovery; the ECPO requested the trial court to conduct a preliminary in camera review.

In support of its order of May 6, 2008, the trial court held that, pursuant to N.J.S.A. 9:6-8.10a(a), DYFS is authorized to disclose information it obtains in investigating child abuse reports to specific entities identified in the statute, and the ECPO is identified therein as an approved recipient of such reports. The court further found that "the ECPO is 'authorized by law' to disclose [the information] by virtue of sources including Federal and State constitutions and the New Jersey Rules of Court. . . ." Therefore, the court concluded, "whenever the ECPO is . . . 'authorized by law' to disclose DYFS investigatory information[,]" pursuant to N.J.S.A. 9:6-8.10a(b), "the disclosure statute [N.J.S.A. 9:6-8.10a(a)] does not prohibit the ECPO from disclosing such information directly to counsel for the accused juvenile[.]"

The order also stated that "the present record clearly establishes that the ECPO is aware of the existence of additional DYFS investigatory information relevant to th[is] . . . matter, namely a DYFS incident report expressly referenced in [the psychological evaluation.]" The order concluded that the ECPO "has been advised of its obligation to obtain, and if appropriate, disclose to defense counsel information contained in such additional DYFS investigatory information, pursuant to sources including Kyles v. Whitley, 514 U.S. 419, 437-38, [115 S.Ct. 1555,1567-68, 131 L.Ed. 2d 490, 508] (1995). . . ."

In support Of its request for an in camera review, the ECPO relied upon Pa. v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed. 2d 40 (1987), and State v. Cusick, 219 N.J. Super. 452 (App. Div.) certif. denied, 109 N.J. 54 (1987). In its order, the court deemed those cases "distinguishable on the grounds that [they] addressed records sought directly from DYFS, as opposed to the case sub judice wherein DYFS had already disclosed the records to an authorized recipient, namely the ECPO[.]"

On appeal, the ECPO raises the following arguments for our consideration:

POINT I

THE TRIAL COURT IMPROPERLY DENIED THE STATE'S REQUEST FOR AN IN CAMERA REVIEW OF ...


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