STATE OF NEW JERSEY IN THE INTEREST OF C.F. STATE OF NEW JERSEY IN THE INTEREST OF A.G. STATE OF NEW JERSEY IN THE INTEREST OF T.S.
December 17, 2018
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Middlesex County, Docket Nos. FJ-12-0124-19,
FJ-12-1196-18, and FJ-12-1197-18.
Christopher L.C. Kuberiet, First 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).
Respondents have not filed briefs.
P. Keenan, Assistant Deputy Public Defender, argued the cause
for amicus curiae New Jersey Office of Public Defender
(Joseph E. Krakora, Public Defender, attorney; Brian P.
Keenan, on the brief).
C. Hunt, Deputy Attorney General, argued the cause for amicus
curiae Attorney General of New Jersey (Gurbir S. Grewal,
Attorney General, attorney; Sarah C. Hunt, of counsel and on
do Outeiro, Assistant Prosecutor, argued the cause for amicus
curiae New Jersey Juvenile Prosecutor's Leadership
Network (Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney; Monica do Outeiro, on the brief).
Judges Messano, Gooden Brown and Rose.
three appeals, calendared back-to-back and consolidated for
purposes of our opinion, require us to decide whether a
Family Part judge may divert a delinquency complaint from
court action without affording the juvenile offender the
opportunity to appear at the hearing. Citing our decision in
State in the Interest of N.P.,  a Family Part
judge determined she only was required to notice the State of
the hearing. In essence, the judge reasoned requiring
juveniles to appear in court for conduct that would
constitute disorderly persons offenses under chapter 35 and
chapter 36 of Title 2C of the New Jersey statutes would
frustrate the purposes of the Family Part's diversionary
programs. We granted the State's motions for leave to
appeal from the judge's three orders diverting separate
complaints charging C.F., A.G., and T.S. with chapter 35 and
chapter 36 offenses.
appeal, the State contends the judge erred by: (1) failing to
notice the juveniles of the diversionary hearings; and (2)
diverting the complaints without the benefit of full
assessments by court intake services evaluating the
juveniles' personal and family
circumstances. We granted motions to appear as amici
curiae by the Office of the Attorney General of New Jersey
(Attorney General), the New Jersey Juvenile Prosecutor's
Leadership Network (NJJPLN), and the New Jersey Office of the
Public Defender (Public Defender). All amici join in the
arguments advanced by the State, urging us to reverse the
judge's orders and remand each matter for a hearing,
after notice is provided to the parties and intake services
conducts a full assessment of each juvenile's background.
After reviewing the record in light of the contentions
advanced on appeal, we reverse and remand for further
we conclude the judge erred in her narrow interpretation of
our notice requirement set forth in N.P., we
commence our review with a brief discussion of the relevant
facts and legal principles we addressed in that opinion to
give context to the judge's decisions in the present
N.P., we granted the State's motions for leave
to appeal from four Family Part orders, diverting the
complaints of seven juvenile offenders. 453 N.J.Super. at
484. In sum, N.P. was arrested on two occasions and charged
in separate complaints with a fourth-degree offense and
chapter 35 and chapter 36 disorderly persons offenses; D.S.
was charged in a complaint with a fourth-degree offense; and
the remaining five juveniles were arrested together (five
co-juveniles) following a motor vehicle stop and charged in
separate complaints with chapter 35 and chapter 36 disorderly
persons offenses. Id. at 485-88.
the complaints charged a non-divertible offense, i.e.,
"a crime which, if committed by an adult, would be a
crime of the first, second, third or fourth degree, or . . .
a repetitive disorderly persons offense or any disorderly
persons offense defined in chapter 35 or chapter 36 of Title
2C." N.J.S.A. 2A:4A-71(b) (Section 71). Absent the
prosecutor's consent, intake services "shall"
refer the non-divertible offenses set forth in Section 71 for
court action. Ibid. Accordingly, intake services
referred all seven complaints in N.P. for court
action. N.P., 453 N.J.Super. at 485-88. Thereafter,
the judge diverted the complaints to an Intake Services
Conference (ISC) or a Juvenile Conference Committee
to this appeal, we cited the mandatory language of Section
71, and determined "every complaint in
th[o]se four appeals charged non-divertible offenses and the
prosecutor did not 'otherwise consent to
diversion,' [as such] each complaint should have been
heard by the judge in open court." Id. at 494
(second alteration in original). Notably, following referral
of the five co-juveniles' complaints for court action,
"the judge held hearings as to each complaint on the
record with the prosecutor, defense counsel and the
juvenile present." Id. at 488 (emphasis
"The judge did not follow th[at] procedure in the
appeals involving N.P., and in the appeal involving
D.S." Id. at 494. Accordingly, we reversed the
judge's orders in those appeals and remanded the
complaints pertaining to N.P. and D.S. for hearings.
Id. at 497. We concluded it was "prudent to
have the judge accord the State and defense counsel
an opportunity to be heard before any further action [wa]s
taken." Id. at 499 (emphasis added).
because our opinion in N.P. focused on the
judge's exclusion of the prosecutor from the judge's
decision to divert the complaints at issue, we
"reject[ed] any contention that the judge's
unilateral entry of a diversion order, without
notice to the State and an opportunity to be heard, is the
'court action' envisioned by Section 71 or . . .
Rule [5:20-1(c)]." Id. at 495 n.10.
that backdrop, we glean the facts underlying the
juveniles' arrests in the present matters from the
allegations set forth ...