State ex rel. C.F.

458 N.J.Super. 134

203 A.3d 916

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.

DOCKET NOS. A-0326-18T3

A-0329-18T3

A-0330-18T3

Superior Court of New Jersey, Appellate Division.

Argued December 17, 2018

Decided February 6, 2019

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.

Brian 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).

Sarah 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 the brief).

Monica 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).

Before Judges Messano, Gooden Brown and Rose.

The opinion of the court was delivered by

ROSE, J.A.D.

These 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.,¹ 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.

On 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.² 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 proceedings.

I.

Because 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 appeals.

In 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, 182 A.3d 960. 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, 182 A.3d 960.

Each of 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, 182 A.3d 960. Thereafter, the judge diverted the complaints to an Intake Services Conference (ISC)³ or a Juvenile Conference Committee (JCC).⁴ Ibid.

Pertinent to this appeal, we cited the mandatory language of Section 71,⁵ 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, 182 A.3d 960 (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, 182 A.3d 960 (emphasis added).

However, "The judge did not follow th[at] procedure in the appeals involving N.P., and in the appeal involving D.S." Id. at 494, 182 A.3d 960. 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, 182 A.3d 960. 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, 182 A.3d 960 (emphasis added).

Notably, 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, 182 A.3d 960 n.10.

II.

Against that backdrop, we glean the facts underlying the juveniles' arrests in the present matters from the allegations set forth in the complaints and the police reports.

State in the Interest of C.F.

(A-0326-18)

At 11:30 p.m. on May 18, 2018, Perth Amboy police approached a parked vehicle in a high crime area. When C.F. opened the driver-side door, officers "detected a strong odor of raw marijuana coming from inside of the vehicle." After C.F. and the three other occupants were ordered out of the vehicle, police seized three baggies containing marijuana from the driver-side area, and two packages of cigars commonly used for inhaling marijuana in the center console. C.F. purportedly admitted ownership of the marijuana and paraphernalia. He was then arrested and charged with possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2, both of which are disorderly persons offenses if committed by an adult.

State in the Interest of A.G.

(A-0329-18)

Just before midnight on August 25, 2016, North Plainfield police officers stopped A.G. and another juvenile, who said they were walking around trying to find a ride home to Dunellen. During the conversation, A.G. removed his hand from his pocket and attempted to toss a clear plastic baggie containing marijuana into a storm drain. A.G. was arrested and charged with possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense. On August 14, 2017, A.G.'s complaint was transferred from Somerset County to Middlesex County for further proceedings. See R. 5:19-1(a)(1) (requiring, absent good cause, "venue shall be laid in the county of the juvenile's domicile").

State in the Interest of T.S.

(A-0330-18)

At approximately 9:45 p.m. on March 19, 2018, T.S. was a passenger in a car pulled over for a traffic infraction by Lawrence police officers. After detecting an odor of marijuana, police searched T.S. and recovered two small baggies of marijuana from her rear pocket. T.S. was arrested and charged with possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense. On May 22, 2018, the complaint was transferred from Mercer County to Middlesex County for further proceedings. See R. 5:19-1(a)(1).

In June 2018, the prosecutor screened the complaints filed against C.F., A.G., and T.S., and referred their matters to the mandatory counsel calendar. Thereafter, consistent with the prosecutor's recommendations, intake services referred the complaints for court action. Although intake services' screening form lists the factors set forth in Section 71, the only factor marked on each form was the prosecutor's recommendation for court action.

Citing our opinion in N.P., the judge notified the State of her intention to divert the complaints charging all three juveniles. The judge afforded the State an opportunity to object within one week or the matters would be diverted. The judge did not, however, notify the juveniles of her intention.

Following the State's objection, the judge held a hearing on July 27, 2018 addressing all three matters. The prosecutor appeared at the hearing, and objected to the judge's determination that the juveniles were not required to be present at their hearings. Relying on N.P., the judge concluded we only required the State, and not the juveniles, the opportunity to be heard. According to the judge, "requir[ing] the juveniles to be [in court] would defeat the whole purpose of diver[sion] ... [b]ecause ... it would essentially expose them to the formal calendar."

Because the juveniles were not present at the hearing, the prosecutor did not provide the judge with the police reports,...