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State ex rel. N.P.

Superior Court of New Jersey, Appellate Division

March 8, 2018


          Argued January 16, 2018

         On appeal from an interlocutory order of Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FJ-12-1462-17 in A-0135-17; FJ-12-1501-17 in A-0138-17; FJ-12-1415-17, FJ-12-1416-17, FJ-12-1417-17, FJ-12-1418-17 and FJ-12-1419-17 in A-0308-17; and FJ-12-0282-18 in A-0841-17.

          Christopher L. Kuberiet, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Andrew C. Carey, Middlesex County Prosecutor, attorney; Joie D. Piderit, Assistant Prosecutor, of counsel and on the briefs).

          Law Offices of William M. Fetky, attorney for respondent A.S. (Michael J. Cennimo, on the brief).

          Before Judges Messano, Accurso and Vernoia.

          MESSANO, P.J.A.D.

         The Code of Juvenile Justice (the Code), N.J.S.A. 2A:4A-20 to -48, grants the Family Part "exclusive jurisdiction in all cases where it is charged that a juvenile has committed an act of delinquency." N.J.S.A. 2A:4A-24(a); see also N.J.S.A. 2A:4A-23 (defining delinquency as "the commission of an act by a juvenile which if committed by an adult would constitute . . . [a] crime . . . disorderly persons offense or petty disorderly persons offense. or .violation of any other penal statute, ordinance or regulation"). "One of the 'major hallmarks of the Code' was to provide the newly created, specialized family court with flexibility in juvenile dispositions." State ex rel. C.V., 201 N.J. 281, 295 (2010) (quoting State ex rel. M.C., 384 N.J.Super. 116, 127 (App. Div. 2006)).

         We have said, "[e]ven with respect to a juvenile charged with conduct that would be a crime if committed by an adult, the overriding goal of the juvenile justice system is rehabilitation, not punishment." State ex rel. S.S., 367 N.J.Super. 400, 407 (App. Div. 2004), aff'd, 183 N.J. 20 (2005). The Court, nevertheless, has emphasized that while "rehabilitation traditionally has been regarded as the overarching objective of statutory schemes addressing juvenile delinquency . . . and . . . rehabilitation remains a primary goal of the . . . Code[, ]" the "Code also reflects a correlative emphasis on public safety and deterrence." State ex rel. J.L.A., 136 N.J. 370, 377-78 (1994); compare e.g., N.J.S.A. 2A:4A-21(a) (stating one purpose of the Code is "the care, protection, and wholesome mental and physical development of juveniles"), with N.J.S.A. 2A:4A-21(f) (stating another purpose is to "insure that any services and sanctions for juveniles provide balanced attention to the protection of the community, . . . [and] accountability for offenses committed"). In short, the Code "provides a comprehensive scheme that empowers Family Part judges to tailor dispositions toward aiding and rehabilitating juveniles charged with delinquent acts, while simultaneously ensuring protection of the public from dangerous and/or repetitive juvenile offenders." C.V., 201 N.J. at 285.

         We granted the State's motions for leave to appeal in these four appeals involving seven different juveniles and now consolidate the appeals in a single opinion. We must construe specific provisions of the Code and our Court Rules that reflect the rehabilitative and deterrent purposes of the Code, and which govern the balance of authority and responsibility between the prosecutor and the court in attempting to achieve those goals.


         Before addressing the legal issues presented, we provide some factual background as to each appeal, all of which are taken from orders entered by the same Family Part judge.[1]

         State in the Interest of N.P. (A-0135-17)

         On April 7, 2017, N.P., then sixteen-years old, was a backseat passenger in a car stopped by East Brunswick Police. Upon approaching the car, the officer claimed to have detected the odor of burnt marijuana. Subsequent investigation revealed ten white pills in N.P.'s jacket pocket. He was arrested and charged with unlawful possession of a prescription drug, N.J.S.A. 2C:35-10.5(e)(2), a fourth-degree crime.

         The prosecutor recommended the complaint proceed to court on the "mandatory counsel calendar." The probation officer assigned to court intake services noted the prosecutor's recommendation and placed the matter on the July 3, 2017 court calendar.

         On June 30, without notice or hearing, the judge entered an order that is the subject of our review. She noted the complaint was referred to court pursuant to N.J.S.A. 2A:4A-71(b) because it charged N.P. with a fourth-degree crime and the prosecutor had not consented to its diversion. However, citing N.J.S.A. 2A:4A-73(a), the judge diverted the complaint to the Juvenile Conference Committee (JCC), noting she was providing a statement of reasons to the complainant "pursuant to N.J.S.A. 2A:4A-73(b)."

         The letter sent by the judge to the complaining police officer stated this was N.P.'s first involvement with the juvenile justice system, and the offense with which he was charged "resulted in no personal injury or property damage." The judge also identified the "most important factor" in her decision - "the availability of appropriate services outside referral to the court."

         The judge stated that given the nature of the offenses, even "if th[e] matter were heard in court and [N.P.] plead[ed] guilty ..., it [was] probable ... he would be given a deferred disposition." See N.J.S.A. 2A:4A-43(b)(1). She explained that under a deferred disposition, there would be no monitoring or counseling for N.P. However, the JCC could impose "a multitude of creative conditions" and provide "the individualized attention [N.P.] may need." The judge explained that the JCC met in the evening, a more convenient time for all involved, and the officer would be able to attend its meetings.

         State in the Interest of N.P. (A-0841-17)

         Now seventeen-years-old, N.P. was arrested again on July 13, 2017, when a Spotswood police officer approached a car in a school parking lot at 11:30 p.m. An adult was in the driver's seat and N.P. was in the front passenger seat. Police allegedly found a small amount of marijuana in the center console and subsequently seized several bags with small traces of marijuana as well as smoking devices. N.P. was charged with possession of marijuana, N.J.S.A. 2C:35-10(a)(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2, both disorderly persons offenses.

         On August 15, 2017, the prosecutor screened the case, referred it to the mandatory counsel calendar, and intake services forwarded the complaint to court, noting the prosecutor did not consent to its diversion. On September 12, without notice or hearing, the judge entered the order under review, diverting the complaint to an Intake Services Conference (ISC) pursuant to N.J.S.A. 2A:4A-73(a). The order also noted the complaint alleged disorderly persons violations of chapter 35 of the Criminal Code, and pursuant to N.J.S.A. 2A:4A-71, the prosecutor had not consented to diversion.

         Upon receiving notice that an ISC conference was set for October 2, the State objected in a letter to probation, noting we had already granted leave to appeal in A-0135-17, and questioning whether intake services had considered the factors listed in N.J.S.A. 2A:4A-71(b) (listing eleven factors "intake services shall consider ... in determining whether to recommend diversion"). The judge responded in writing, noting that although we had granted leave to appeal the June 30, 2017 order regarding N.P.'s April arrest, we had not stayed proceedings in the Family Part.[2] She further explained that it had been the practice for many years in the vicinage to "escalate cases to the [ISC] when a juvenile incurs a subsequent charge while pending before the [JCC]." "[M]ore importantly, " the judge concluded N.P. would benefit from services ISC could put in place while N.P.'s "enrollment to the [JCC] was pending." The judge summarized: "The [c]ourt is confident that its decision to divert the complaint to the [ISC] is in the [J]uvenile's best interests and furthers the purpose of the . . . Code, which is to rehabilitate the [j]uvenile."

         State in the Interest of D.S. (A-0138-17)

         On February 23, 2017, sixteen-year-old D.S. entered Colonia High School, where he was not a student, and allegedly participated in two classes before being asked to leave. The State also alleged D.S. posted a recording of his exploits on Twitter and criticized the lax security at the school. Several days later, police arrested D.S. and charged him with fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a).

         For reasons unexplained by the record, the prosecutor did not screen the complaint until June, and, on June 29, 2017, intake services referred the complaint to court, noting the prosecutor did not consent to diversion. On June 30, once again without a hearing, the judge entered the order under review diverting the case to the JCC pursuant to N.J.S.A. 2A:4A-73(a). The judge sent a letter to the complaining witness, the principal of Colonia High School, noting D.S. was a first time offender whose alleged offense involved no personal injury or property damage.

         The principal, school security officer and superintendent of schools signed a letter dated July 6, 2017, objecting to the court's diversion order. On July 20, the judge returned the letter because it was an ex parte communication.

         In her written statement of reasons filed in response to the State's motion for leave to appeal, the judge explained that the State's policy of objecting to diversion was contrary to past practices, since the State had consented to diversion in at least five other cases involving trespass on school property.[3]

         State in the Interest of A.W., J.P., J.DO., A.S, and J.Z. (A-0308-17)

         On March 11, 2017, a South River officer stopped a car containing five juveniles because it had a broken taillight. The officer allegedly smelled burnt marijuana coming from the car, and an ensuing investigation revealed a bag with less than fifty grams of marijuana and a pipe. The juveniles, sixteen-year-old A.W., seventeen-year-old J.D., sixteen-year-old J.Do., sixteen-year-old, A.S., and seventeen-year-old J.Z., were arrested and charged with possession ...

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