Deferred
Adjudication in a Juvenile Delinquency Case
By: Kenneth A. Vercammen
In a Juvenile case, if the child is a first time offender the attorney
can make a Motion for a t"deferred adjudication" . If the Motion by
the attorney is granted, the judge may direct the juvenile to perform a job,
write an essay, be on unsupervised probation, or direct other
requirements. The juvenile must earn
dismissal of the charges by fulfilling conditions such as restitution,
community service, counseling, or school attendance.
The court can order any disposition to aid in your
child’s rehabilitation and to reinforce your child’s accountability including fines,
community service, and/or a term of supervision such as probation, deferred
disposition, or a period of confinement.
In some instances, formal disposition can be deferred
or delayed for up to one year. During this period, your child must complete any
special conditions ordered by the judge and must not be charged with a new
offense. If he or she meets all conditions during the deferral period, the
complaint will be dismissed. If conditions are not met, the original complaint
will go back to court and be heard by the judge.
Source: https://www.judiciary.state.nj.us/prose/11358_juv_delq_proc_child.pdf
Handling juvenile delinquency cases is becoming a sub-specialty that
requires special knowledge of the juvenile justice system. Juvenile cases are difficult to handle for
different reasons:
(1) The
juveniles often refuse to admit to their attorney any participation in the
offense despite clear guilt.
(2) The
parents sometimes refuse to acknowledge their child's involvement.
(3) Different
rules and court systems are involved.
When the client is first in the office, we have him fill out the
Confidential New Criminal Case Interview Sheet.
We obtain background information such as their name, address, the
offenses charged, date of the person's arrest, other witnesses, statements
given to them by the police, their occupation and information regarding prior
criminal convictions. Our interview
sheet also asks if there is anything else important. The extent to which the client fills out the
form lets us know whether or not the client will follow instructions and
cooperate with us.
After reviewing the complaint and the interview sheet, I ask a series of
questions of the client. We request the client wait until the end of the
interview before explaining their side of the story. We also ask them if there is anything else of
importance in connection with the case that we should know. The client may have pending serious criminal
charges in another state or county. I
usually open up our statute book and show the clients the specific language of
the offense they are charged with and explain to them the maximum penalties
that could be imposed. By understanding
the charges they are facing, my clients are more likely to realize the
seriousness of the offense and pay our retainer. The ABA adopted Rules of Professional Conduct
indicate a retainer letter or written statement of fees is required for new
clients. I also provide all my clients
with a brochure explaining how to appear in court, a brochure on surcharges, a
brochure on points, and a brochure regarding alcohol counseling/substance abuse
treatment, if applicable.
I recommend that my clients provide me with a list of between 10 to 15
reasons why they should not go to jail and why the court should impose the
minimum license suspension. This
provides us with information for mitigation and penalties and also provides
information to be considered by the judge in sentencing.
I.
WHO IS THE CLIENT?
The client must be the juvenile charged.
It is not the parent or grandmother who pays the bills. It is important to preserve the confidence of
the client. I let the juvenile know that
they can call us whenever they want, and we will not tell their parents
anything told in confidence.
Discovery in non-motor vehicle cases is requested in writing to the
County
Prosecutor, not the town Municipal Prosecutor.
Motor vehicle charges alone are heard by the Municipal Court Judge and
handled by the Municipal Prosecutor.
Trial Call is the next appearance and the defense counsel will receive
discovery, if it has not previously been received. Applicable motions should be filed prior to
the trial call: Motion to Suppress,
Compel Additional Discovery, Dismiss Complaint, etc.
Juveniles have
most of the same rights under the Constitution as adults:
- 4th Amendment - No unreasonable searches
- 5th Amendment - Right to Remain Silent
- 6th Amendment - Right to Attorney
- 6th Amendment - Right to Cross Examine
Witnesses
Unlike adults, juveniles do not have a right
to a jury trial and do not have to post bail.
It
is a popular misconception that juvenile arrests are automatically erased when
the juvenile turns 18. The criminal
"charge", even if later dismissed, stays on their record forever
unless they have their attorney file a formal petition for Expungement.
Once we receive our retainer, we begin work
right away. Usually while the client is still in the office, we prepare a
discovery letter on the computer to the prosecutor and court and hand a copy to
the client. We occasionally call the
court to advise them that we will be handling the case.
Law is a business. I try to
impress my clients and hope that they will send additional clients.
II.
POST INTERVIEW PREPARATION
We also make a Motion to Suppress where there is a question regarding the
validity of a stop or search. New Jersey
will also permit you to make a Motion to Dismiss on De Minimis Infractions for
non-substantial offenses (i.e. shoplifting one candy bar). Any other Motions to Dismiss should be made
in writing such as statute of limitations or lack of jurisdiction.
Oftentimes
in cases that deal with just one triable issue such as the admissibility of a
blood test result regarding alcohol or drugs, you can make a Motion in Limine
or suggest a pre-trial conference. It is
often a good idea to try to have the judge decide a crucial issue by motion in
order to save you a six-hour trial.
III.
ADDITIONAL DISCOVERY PHASE
Upon receiving discovery, we
forward a photocopy of all discovery to our client. We then discuss with the client whether or
not we have a reasonable prospect of winning.
In the case involving essential witnesses, we may write to the witnesses
and ask them to call us so that we can find out what really happened. If
possible I have a law clerk call up after we send the initial letter. The attorney could not testify if the witness
provides an inconsistent statement but our law clerks could testify. I sometimes speak to the witness myself later
to make a decision to determine whether or not the witnesses are credible. You must protect yourself from looking like a
fool. Oftentimes the clients are not
telling the truth and the witnesses are not telling the truth.
IV. PREPARING FOR TRIAL
If
it is a drug case, we may make an objection to the entry of the lab certificate
as evidence at trial. We are also under
a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, we will call the prosecutor
ahead of time to see if a matter can be worked out or plea bargained. In a rare, more serious case
the Prosecutor can file a motion to have the case transferred to the adult
superior court
THE OFFENSE
AND ARREST
Police are permitted to arrest if they see a crime or are provided with
information that a juvenile committed a crime.
The police then sign a Complaint Form, which later is forwarded to the
Superior Court, Family Part, in the county where the juvenile lives. Generally, the juvenile will be released to
the custody of parents or guardians.
Rule 5:21-5. A person is a juvenile for delinquency purposes until
his/her 18th birthday. For
serious crimes, if the juvenile is a threat to themselves or the community, or
if the juvenile is a habitual offender, they can be brought to the County
Juvenile Detention Center. They will
remain in detention until released by the Superior Court Judge at a recall
hearing, after a probable cause hearing or at the conclusion of the case. It is rare and serious when a juvenile is
held at the Detention Center.
MIRANDA
WARNING AND CONFESSIONS
Police must provide Miranda Warning to juveniles. Parents/guardians do not have to be present
for police questioning. If a confession
is sought and you need to try and preclude the admission of a confession, the
issue will be whether the waiver of Miranda Warning was "knowing and
voluntary" by the juvenile.
Caselaw indicates both juveniles and even retarded citizens can waive
their right to remain silent.
DIVERSION OF
CRIMINAL CHARGES
In many counties, the
County Prosecutor's office screens each complaint initially, but staff within
the Family Court can make the decision to divert the case or not. Diversion for many cases means removing them
from court altogether and sending them for total handling to a Juvenile
Conference Committee (J.C.C.) or intake service conference. See the Criminal Justice System, "Guide
for School Personnel," Middlesex County Prosecutor's Office, p. 20 (1996).
The first rung on the diversion ladder is the Juvenile Conference
Committee (J.C.C.), which is a town-based group of citizens who work with the
juvenile offender to devise an appropriate resolution of the case. Rule 5:25-1.
Citizen members are appointed to recommend to the court how to handle
selected juvenile cases. Members meet
with the juveniles and make recommendations, which may include restitution,
participation in a job placement or community service program, counseling, or
other conditions.
For juveniles with prior charges or more serious charges, the case is put
on the formal trial calendar. These
proceedings resemble adult criminal proceedings. The juvenile must be
represented by an attorney and the state is represented by an Assistant
Prosecutor.
In a "deferred adjudication" the judge may direct the juvenile
to perform a job, write an essay, be on unsupervised probation, or direct other
requirements. The juvenile must earn
dismissal by fulfilling conditions such as restitution, community service,
counseling, or school attendance.
FORMAL TRIAL
If the case goes to trial, the judge serves as the fact-finder and makes
all decisions, unlike adult court where those charged can have a jury
trial. The trial is held before a
Superior Court Judge in the county where the juvenile resides. Rule 5:19-1.
Another major difference in juvenile cases is that the prosecutor does
not make binding sentencing recommendations as part of a plea bargain. The judge has total discretion regarding the
sentence imposed. If the juvenile pleads
guilty or is found delinquent (guilty), the judge has the discretion on
sentence - deferred adjudication, probation, incarceration, residential
placement, restitution, fine, etc.
Criminal Justice System, supra at 21.
Relatively few juveniles are currently incarcerated but the number may
increase as legislative changes require jail terms for juveniles who commit certain
offenses such as auto thefts and for juveniles who continue to commit more and
more heinous offenses.
For the most serious crimes, the County Prosecutor can make a motion to
remove to the Adult Criminal Court. Rule
5:22-1, Rule 5:22-2.
FIRST APPEARANCE
IN FORMAL TRIAL CASES
The Court itself will send a copy of the Complaint to the juvenile's
parents and a Mandatory Notice to Appear for an Interview for Public Defender
Eligibility. The Public Defender handles only indigent cases, juveniles whose
parents are on welfare, unemployed, and have no assets.
This mandatory appearance is unnecessary once the client retains an
attorney and the attorney sends in a Notice of Appearance.
THE TRIAL
Interview
witnesses to determine if they will be credible and help your client. Serve
your subpoenas on witnesses in sufficient time prior to trial. Have your legal
research done prior to trial, such as on constructive possession of drugs or
stolen property.
V. PLEA TO A LESSER DEFENSE
If the client is going to enter a guilty plea to any offense, it is
important that they understand what the offense is and put a factual basis on
the record. You will be embarrassed if
your client is pleading guilty to a drunk driving case and the judge asked your
client what he had to drink, the client insists he only had one beer. The judge will send you back to your seat and
must refuse to take the guilty plea unless an adequate factual basis is put on
the record. Having previously obtained
for my client their favorable background, I usually put on the record reasons
why the judge should give them the minimum penalties.
Most states, such as New Jersey have a conditional discharge, pre-trial
intervention, or other programs that are available to clients charged with drug
offenses who have never previously been arrested or previously been convicted
of the drug offense. Again, to avoid
embarrassment, it is a good idea to speak with the prosecutor and the police
officer because they may have a criminal abstract to indicate that the client
is not eligible for a conditional discharge type program. Letters of reference and character reference
letters are helpful in cases where the judge has wide discretion in his
sentencing. After the client pleads
guilty, it is a good idea to also ask the client on the record if he has any
questions of myself or of the court.
IMPORTANT LAWS
MOST JUVENILES DON'T KNOW ABOUT
Assault: Any assault committed against any teacher,
school board employee, school board member, or school administrator is an
aggravated assault. NJSA 2C:12-1 et seq.
Graffiti: Penalties were increased for graffiti, and
include driver's license loss for juveniles, P.L. 1995 c. 251. Amends NJSA 2C:17-3 (Criminal mischief and
other statutes). In the case of a person
who at the time of the imposition of sentence is less than 17 years of age, the
period of the suspension of driving privileges authorized herein, including a
suspension of the privilege of operating a motorized bicycle, shall commence on
the day the sentence is imposed and shall run for a period of one year after
the day the person reaches the age of 17 years.
If the driving privilege of any person is under revocation, suspension,
or postponement for a violation of any provision of this Title or Title 39 of
the Revised Statutes at the time of any conviction or adjudication of
delinquency for a violation of any offense defined in this section, the
revocation, suspension, or postponement period imposed herein shall commence as
of the date of termination of the existing revocation, suspension, or
postponement. Any person convicted of
criminal mischief involving graffiti may be required to pay to the owner
monetary restitution and perform community service and remove graffiti.
Drugs: Sample Mandatory Penalties for Juvenile -
Possession of Small
Amounts of Marijuana:
-Suspension of
Driver's License: 2C:35-16 Six months to two years from date of
sentence.
-DEDR Penalty
$500 required under NJSA 2C:35-15a. This
$500 penalty is required even in juvenile cases, as required by statute. State
in
Intent of
LM 22
NJ Super 88, (App. Div. 88)
court denied 114 NJ 485
(1989)
-Drug Lab Fee
$50 2C:35-20a
-VCCB $50
according to 2C:43-3.1a(2)(o)
-Safe Streets
- Fee due upon conviction, PTI or CD $75
About the Author:
Kenneth A.
Vercammen is a trial attorney in Metuchen, Middlesex
County, New Jersey. Kenneth
Vercammen was included in the Super
Lawyer directory published by West and NJ Monthly in the Criminal - DWI.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and
past president of the Middlesex County Municipal Prosecutor's Association.
He
is the past chair of the NJ State Bar Association Municipal Court Section. He
is the Deputy chair of the ABA Criminal Law committee, GP Division.
KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817 732-572-0500
Criminal website
www.BeNotGuilty.com
He has lectured on traffic and criminal law for the New Jersey State Bar
Association, New Jersey Institute for Continuing Legal Education and Middlesex
County College. He often lectures for
the New Jersey State Bar Association on personal injury, criminal /municipal
court law and drunk driving. He has
published 125 articles in national and New Jersey publications on municipal
court and litigation topics. He has served as a Special Acting Prosecutor in
seven different cities and towns in New Jersey and also successfully defended
hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New
Jersey several times each week on many personal injury matters, Municipal Court
trials, matrimonial hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences
as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme
Court),with the Delaware County, PA District Attorney Office handling Probable
Cause Hearings, Middlesex County
Probation Dept as a Probation Officer, and an Executive Assistant to Scranton
District Magistrate, Thomas Hart, in Scranton, PA.
