STATE OF NEW JERSEY IN THE INTEREST OF N.P. STATE OF NEW JERSEY IN THE INTEREST OF D.S. STATE OF NEW JERSEY IN THE INTEREST OF A.W., J.D., J.DO., A.S., and J.Z. STATE OF NEW JERSEYIN THE INTEREST OF N.P.
January 16, 2018
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).
Offices of William M. Fetky, attorney for respondent A.S.
(Michael J. Cennimo, on the brief).
Judges Messano, Accurso and Vernoia.
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)).
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.
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.
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
in the Interest of N.P. (A-0135-17)
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.
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
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)."
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
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.
in the Interest of N.P. (A-0841-17)
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.
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.
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. 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
in the Interest of D.S. (A-0138-17)
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).
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.
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.
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
in the Interest of A.W., J.P., J.DO., A.S, and J.Z.
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