EVIDENCE - CRIMINAL LAW- STATE OF NJ IN THE INTEREST OF D.H. ( A-1654-08T4)

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1654-08T41654-08T4

STATE OF NEW JERSEY IN THE INTEREST OF D.H.

_______________________

Submitted January 5, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Gloucester County,

Nos. FJ-08-858-08, FJ-08-927-08, FJ-08-1331-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant D.H. (Gilbert G. Miller, Designated

Counsel, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor,

attorney for respondent State of New Jersey

(Joseph H. Enos, Jr., Assistant Prosecutor,

on the brief).

PER CURIAM

D.H., a juvenile, was charged with acts which, if committed by an adult, would constitute burglary and theft. Following trial, he was found not guilty of burglary but guilty of theft. He appeals. After reviewing the record in light of the contentions advanced on appeal, we reverse.

On the morning of July 23, 2007, John Rooney walked to his car, parked in front of his residence, intending to drive to work. He found that the car doors had been opened and the interior ransacked. In the trunk was a box in which he had stored a GPS navigation system he had only recently obtained; the box was empty. Mr. Rooney summoned the police and the officer who responded to the scene carefully removed the box from the trunk and later delivered it to an investigator in his department. The investigator dusted the box and found several latent fingerprints. He did not attempt to lift the prints himself but forwarded the box to the county prosecutor's office to complete the process.

Detective Nicholas Kappre of the prosecutor's Crime Scene Unit took the box and lifted eight partial latent prints which he forwarded to the New Jersey State Police AFIS (Automated Fingerprint Identification System) unit. Of those eight, only two were found to be suitable for purposes of comparison. Detective Kappre received back a card containing ten prints that had been selected by AFIS, together with a computer print-out containing an enlargement of the latent print and the known print. Detective Kappre compared the latent print with the known print he had received from AFIS and testified that they were a match.

Detective Kappre also received from AFIS a list of twenty-five potential matches, identified by SBI number. Detective Kappre did not investigate any of those other potential matches to perform a comparison. There was testimony from which it could be inferred that D.H. headed this list, with the word "hit" next to his identification. There was no testimony to explain the significance of the term "hit" and no testimony linking D.H. to that SBI number. Nor did Detective Kappre take defendant's fingerprints to compare them either to the latent prints retrieved from the box or the ten-print card or enlargements he had received from AFIS.

Although Detective Kappre had received some training in fingerprint identification, he had never testified before on the question of fingerprint comparison. There was no attempt to qualify Detective Kappre to testify as an expert with respect to the workings of AFIS.

The trial was unfortunately protracted and heard in segments over eight days from May through September, 2008. Detective Kappre was the last witness for the prosecution. At the conclusion of his testimony on July 10, 2008, the prosecutor stated that the State was resting its case, and she then began to move documents into evidence, including the AFIS print screens Kappre had received from the State Police. Defense counsel objected, asserting they were hearsay, and that no foundation had been laid for their admission.

The trial court permitted the prosecution to recall Detective Kappre to the stand. For unavoidable reasons, the trial did not resume until August 7. Over defendant's objection, Detective Kappre took the stand. He testified that he had received from AFIS the latent prints he had taken from the box, the print screen AFIS had prepared comparing the latent prints and the known prints stored in the AFIS system and the ten-print card. Defendant objected to Kappre's testimony that the ten-print card contained D.H.'s name; he also testified that he believed the latent prints on the GPS box belonged to D.H.

On appeal, D.H. raises the following contentions for our consideration:

POINT I THE TRIAL COURT PERMITTED INADMISSIBLE HEARSAY THAT THE FINGERPRINTS FEATURED ON THE 10-PRINT CARDS SUPPLIED TO INVESTIGATOR KAPPRE BY AFIS AND THE WEST DEPTFORD POLICE, AND ON EXHIBITS D-7 AND D-8 WERE THE JUVENILE'S

POINT II THE COURT'S DECISION TO PERMIT THE STATE TO REOPEN ITS CASE VIOLATED THE JUVENILE'S RIGHT AGAINST DOUBLE JEOPARDY

POINT III THE JUVENILE WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS

POINT IV THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE

Hearsay is a "statement, other than one by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Admissibility of hearsay evidence is governed both by the hearsay exceptions set forth in N.J.R.E. 803 and 804, in criminal matters, by analysis of whether the proffered evidence is "testimonial" in nature under Crawford v. Washington, 541 U.S. 36,124 S. Ct. 1354, 158 L. Ed.2d 177 (2004).

The trial court ruled that the print screens Detective Kappre received from AFIS were admissible under the business records exception to the hearsay rule.

Under N.J.R.E. 803(c)(6), Records of Regularly Conducted Activity, business records are an exception to the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose, or circumstances of preparation indicate that it is not trustworthy.

New Jersey does not require that the custodian of the records testify as a condition to their admission. Supreme Court Committee Comment toN.J.R.E. 803(c)(6) (1991). However, a foundation must be laid establishing that the documents are admissible. Ibid.

Under the old rule, "the custodian or other qualified witness" had to testify as to the identity and mode of preparation of the business record. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2009) (quoting N.J.S.A. 2A:82-35). The new rule is "substantially similar." Ibid. The primary difference is requiring the document be made in regular business practice. Ibid. (cited with approval in State v.Sweet, 195 N.J. 357, 370 n.8 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2858, 174 L. Ed.2d 601 (2009)).

The New Jersey Supreme Court in State v. Matulewicz, 101 N.J. 27, 29 (1985), found that in order for evidence to be admitted under the business records exception: "First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." (finding State Police chemist's laboratory report inadmissible as a business record because the factual record below was "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation of the . . . report"). Although Matulewicz was decided under the old statute, it has been held as the standard by the New Jersey Supreme Court after the current rule for business records was adopted in 1991. See, e.g., Sweet, supra, 195 N.J. at 370; Feldman v. Lederle Labs. (Feldman III), 132 N.J. 339, 354 (1993).

No foundation was ever laid for entry of the AFIS documents. The writing must be made in the regular course of business and made by someone with actual knowledge, or someone who with actual knowledge supplied the information. N.J.R.E. 803(c)(6). While the person with "actual knowledge" need not be the person who lays the foundation for entry of the business record, Hahnemann University Hospital v. Dudnick, 292 N.J. Super. 11, 17-18 (App. Div. 1996), the foundation must be laid by someone with personal knowledge that the records were kept in the ordinary course of business and the circumstances in which the records were made. N.J.R.E. 803(c)(6); N.J.R.E. 602 (a witness can only testify to matters he or she has personal knowledge of).

Detective Kappre did not have the requisite knowledge to lay the foundation for the admission of these AFIS records as business records. He had only the barest knowledge of AFIS and could testify only that it used an algorithm to generate a response to a request. The trial court, in a proper exercise of its discretion, admitted Kappre as an expert in fingerprint comparison, and thus he properly expressed the opinion that the latent prints removed from the GPS box matched the prints on the screen he received from AFIS. He had no basis, however, upon which to testify that the enlarged prints he received from AFIS to compare with the latent prints were, in fact, the prints of D.H.

In addition to the enlargements, Detective Kappre also received two 10-print cards, one from AFIS, and one from the municipal police which, testimony indicates, bore D.H.'s name. Those cards were never received in evidence, however. And, even if they had been proffered, they would suffer from the same evidential deficiency as the enlargements; Detective Kappre lacked the knowledge to testify that the cards in fact contained D.H.'s prints for he had no knowledge of their preparation or recordation.

In addition to citing the business records exception to the hearsay rule, the trial court ruled that these documents received from AFIS were admissible as public records under N.J.R.E. 1005. This rule provides, "The contents of an official record or of a writing authorized to be recorded or filed, if otherwise admissible, may be proved by a copy, certified as correct in accordance with Rule 902, or testified to be correct by a witness who has compared it with the original." N.J.R.E. 1005 specifies, however, that the document must be "otherwise admissible." Here, the AFIS records were not "otherwise admissible" in the absence of a proper foundation, which Kappre was not equipped to provide.

We also note, although defendant does not explicitly raise it in his brief, that Kappre testified that the prints received from AFIS were computer-generated and that the process of taking fingerprints by computer, as opposed to by a manual ink roll, involves certain distortions. Kappre was not asked to explain the significance of these distortions and their effect, if any, on his comparison of these prints. We recently addressed an analogous situation in Rodd v. Raritan Radiologic Associates, P.A., 373 N.J. Super. 154 (App. Div. 2004), in which we held inadmissible, in the absence of foundational testimony, a computer-generated blow-up of a mammogram. We noted that the radiologist, who testified about this blow-up, "offered no account of how the films were scanned into the computer, or how the computer program operated. Consequently, he added very little to explain the circumstances surrounding the computer images' creation. . . ." Id. at 169. Here, there was no testimony as to the creation of AFIS's records.

Because we are satisfied that these records were improperly admitted into evidence, and they are the only link between D.H. and the theft, his adjudication must be reversed. This makes it unnecessary to address his remaining contentions.

The order adjudicating D.H. a delinquent is reversed.

We note for the sake of completeness that we are not called upon to consider whether the trial court's determinations should be upheld under the principles of "invited error" recently articulated by the Supreme Court in Division of Youth & Family Services v. M.C. III, __ N.J. __ (2010) (slip op. at 23-25); here defense counsel objected to the admission of these documents.

(continued)

(continued)

10

A-1654-08T4

RECORD IMPOUNDED

RECENT CHANGES IN MUNICIPAL COURT LAW: 2010 – Law Center- Seminar, Books and Audio CD for sale

RECENT CHANGES IN MUNICIPAL COURT LAW: 2010 – Law Center- Seminar, Books and Audio CD for sale

Monday, May 03, 2010
5:30 PM to 9:00 PM
New Jersey Law Center, New Brunswick / S1507-15379

KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Chair, ABA Elder Law Committee
Past GP Solo Section Attorney of the Year
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates

Speakers include:
HON. JOAN ROBINSON GROSS, PJMC
(Union County)
Chair, Supreme Court Municipal Practice Committee (Union County)

WILLIAM G. BRIGIANI, ESQ.


NORMA M. MURGADO, ESQ.
Chief Prosecutor (Elizabeth)
Assistant Prosecutor (Woodbridge)


JOHN MENZEL, ESQ.
Moore & Menzel

Are you prepared to prosecute or defend your client in new Alcotest cases?

This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court.

An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.

Program Preview:
• Criminal Case Law and Legislative Update
• The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues
• Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff
• Recent developments in traffic law, merged traffic tickets and more
• DWI and Chun
• Ask the Experts

Tuition fees Reg. Fee Reg. Type Seminar # S1507-15378
GENERAL TUITION (REG) $169.00 REG
NJICLE SEASON TICKETS (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $145.00 YL
Paralegals (PAR) $119.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JUD

Seminar number S1507-15379

DOOR REGISTRATIONS: $189
Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.

New Jersey Institute for Continuing Legal Education
The non-profit continuing education service of:
The New Jersey State Bar Association
Rutgers - The State University of New Jersey
Seton Hall University
One Constitution Square,
New Brunswick, New Jersey 08901-1520
Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com

Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Division

Major Municipal Court and Criminal Cases
to be discussed

1. State in the Interest of J.A. 195 NJ 324

2. State v. Buda
195 NJ 278
2b State v. Coder 198 NJ 451 (2009)

3. State v. Sweet
195 NJ 357

4 State v. Moran 408 NJ Super. 412 (App Div. 2009)

5 Herring v United States
129 S. Ct. 695 (2009)

6. State v Smith 408 NJ Super. 484 (App. Div. 2009)

7. Patel v. MVC __ NJ __
(Sup Ct. 2009)

8. State v. Marquez 408 NJ Super. 273 (App. Div. 2009)

9 Melendez-Diaz v Mass
129 S. Ct. 2527 (2009)

10 State v. Reeds
197 NJ 280 (2009)

11. State v. Hewitt
400 NJ Super. 376 (2008)

12 State v. Spell
142 NJ 514 (2008)

13. State v. Bogan
200 NJ 61 (2009)

14. State v. Baum
199 NJ 407 (2009)

15. State v. Best 403 NJ. Super. 428 (App. Div. 2008) [cert granted]

16 State v. Amelio
197 NJ 207 (2008)

17. Arizona v Johnson
172 L. Ed. 2d 694 (2009)

18 State v. Bertrand 408 NJ
Super. 584 (App. Div. 2009)

19 State v. Nyhammer
197 NJ 383 (2009)

20 State v. Filson 409 NJ
Super. 246 (Law Div. 2009)

21 State v. Popovich
405 NJ Super. 392 (App. Div. 2009)
22. State v. Pena-Flores
198 NJ 6 (2009)
23 Arizona v. Gant
129 S. Ct. 1710 (2009)

Child abuse law Definitions. 9:6-8.21

Child abuse law Definitions. 9:6-8.21
1.As used in this act, unless the specific context indicates otherwise:

a."Parent or guardian" means any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care. Parent or guardian includes a teacher, employee or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare and any other staff person of an institution regardless of whether or not the person is responsible for the care or supervision of the child. Parent or guardian also includes a teaching staff member or other employee, whether compensated or uncompensated, of a day school as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21).

b."Child" means any child alleged to have been abused or neglected.

c."Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) commits or allows to be committed an act of sexual abuse against the child; (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined; (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; (7) or a child who is in an institution and (a) has been placed there inappropriately for a continued period of time with the knowledge that the placement has resulted or may continue to result in harm to the child's mental or physical well-being or (b) who has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation.

A child shall not be considered abused or neglected pursuant to paragraph (7) of subsection c. of this section if the acts or omissions described therein occur in a day school as defined in this section.

No child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall for this reason alone be considered to be abused or neglected.

d."Law guardian" means an attorney admitted to the practice of law in this State, regularly employed by the Office of the Public Defender or appointed by the court, and designated under this act to represent minors in alleged cases of child abuse or neglect and in termination of parental rights proceedings.

e."Attorney" means an attorney admitted to the practice of law in this State who shall be privately retained; or, in the instance of an indigent parent or guardian, an attorney from the Office of the Public Defender or an attorney appointed by the court who shall be appointed in order to avoid conflict between the interests of the child and the parent or guardian in regard to representation.

f."Division" means the Division of Youth and Family Services in the Department of Children and Families unless otherwise specified.

g."Institution" means a public or private facility in the State which provides children with out of home care, supervision or maintenance. Institution includes, but is not limited to, a correctional facility, detention facility, treatment facility, day care center, residential school, shelter and hospital.

h."Day school" means a public or private school which provides general or special educational services to day students in grades kindergarten through 12. Day school does not include a residential facility, whether public or private, which provides care on a 24-hour basis.

L.1974, c.119, s.1; amended 1977, c.209, s.1; 1987, c.341, s.6; 1994, c.58, s.39; 1999, c.53, s.55; 2004, c.130, s.27; 2005, c.169, s.1; 2006, c.47, s.47.

9:6-8.22 Jurisdiction of Superior Court, Chancery Division, Family Part.

2.The Superior Court, Chancery Division, Family Part in each county shall have jurisdiction over all noncriminal proceedings involving alleged cases of child abuse or neglect, and shall be charged with the immediate protection of said children, whereby the safety of the children shall be of paramount concern. All noncriminal cases involving child abuse shall be commenced in or transferred to this court from other courts as they are made known to the other courts. Commencement of cases of child abuse or neglect must be the first order of priority in the Family Part.

L.1974,c.119,s.2; amended 1977, c.209, s.2; 1991, c.91, s.198; 1999, c.53, s.6.

9:6-8.23. Law guardian; appointment
3. a. Any minor who is the subject of a child abuse or neglect proceeding under this act must be represented by a law guardian to help protect his interests and to help him express his wishes to the court. However, nothing in this act shall be construed to preclude any other interested person or agency from appearing by counsel.

b. The Superior Court, Chancery Division, Family Part, on its own motion, will make appointments of law guardians.

Volunteers needed for Metuchen Public Defender

Volunteers needed for Metuchen Public Defender

The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen invites persons interested in helping others or getting experience in law/ criminal justice to apply to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and occasional Friday morning court sessions.


VOLUNTEER LEGAL INTERNS NEEDED
PUBLIC DEFENDER OF METUCHEN

Court times: WEDNESDAY 1pm PM [approx]- 8:30 PM, every other Friday 9-12, plus hearing preparation work.

Volunteer Internship Description:

-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses

-Make demands for Discovery on Prosecutor and review police reports

-Attend hearings and learn from experienced trial attorneys

-Prepare Motions to Suppress Evidence and Motions to Compel Discovery
-Conduct appropriate Legal research
-Acquire skills in Criminal Law and Procedure by active participation
-Participate in Public Relations activities and help organize seminars
- Update Lists of Prosecutors, Judges and Attorneys for publication of
NJ Municipal Court Law Review
- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.
- Learn how to add criminal statutes and criminal articles to legal blogs and websites.

Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given research assignments. You can work more hours if you want. Help people less fortunate than you who are down on their luck. This is an unpaid internship helping indigent persons.
Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week.
For Summer- College graduates and Law students only. Minimum Volunteer time commitment in summer- 18 hours per week. Send cover letter and resume. After sending resume, call to schedule interview
732-572-0500.
We sponsor a state wide website www.njlaws.com with information on criminal, litigation, personal injury, and probate matters. It is helpful if applicants have some familiarity with HTML programming, web page design and maintenance and Internet technology. If you can update a website, please indicate so in the first paragraph of your cover letter. This office is committed to excellence and service to clients and the community. Applicants must have attention to detail. We attempt to give assignments which will be meaningful and memorable but, nevertheless, expect that interns will pitch in on whatever needs to be done.
Interested students must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered.
Details on internships at http://www.njlaws.com/intern.htm

Mail or fax cover letter and resume to
Kenneth Vercammen, Esq.
Public Defender for the Borough of Metuchen
c/o 2053 Woodbridge Ave., Edison, NJ 08817
Fax 732-572-0030

http://www.kennethvercammen.com/Public-Defender-volunteer.html

Defending a Juvenile Delinquency Case

Defending a Juvenile Delinquency Case

By Kenneth A. Vercammen
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, and (3) different
rules and court systems are involved.
When the client is first in the office,
have him fill out an interview sheet. After reviewing the complaint and the interview
sheet, ask a series of questions of the client. You should request the client wait until the end of the interview before explaining their side of the story. Also ask them if there is anything else of importance
in connection with the case that you should know. The client may have pending serious criminal charges in another
state or county. The ABA-adopted Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients.
As a recommendation, have the client provide you 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 you with information for mitigation
and penalties and also provides information
to be considered by the judge in sentencing.
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. Let the juvenile know that they can call you whenever they want, and that you will not tell their parents anything told in confidence.
Discovery in nonmotor 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: Fourth Amendment — no unreasonable searches; Fifth Amendment — right to remain silent; Sixth Amendment — right to attorney and the right to cross-examine
witnesses. However, 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.
M
iranda Warning and Confessions
Police must provide a Miranda warning to juveniles. Two recent cases drastically change that require counsel prior to custodial interrogation:
1. State in the Interest of P.M.P., 200 N.J. 166 (2009): The filing of the complaint and the obtaining of a judicially
approved arrest warrant by the Camden County Prosecutor’s Office was a critical stage in the proceedings, and pursuant to N.J.S.A. 2A:4A-39B(1), P.M.P. had the right to counsel and could not waive that right except in the presence of and after consultation with his attorney. Therefore, the trial court properly granted P.M.P.’s motion to suppress his statement.
2. State of in the Interest of A.S,
CRIMINAL LAW
Defending a Juvenile Delinquency Case
Vercammen is a trial attorney in Edison. He often lectures for the New Jersey State Bar Association, New Jersey
Institute for Continuing Legal Education
and Middlesex County College on personal injury, criminal/municipal court law, drunk driving and contested probate estate administration.
R
eprinted with permission from the NOVEMEMBERER 23, 2009 edition of New Jersey Law Journal. © 2009 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
409 N.J.Super. 99 ( 2009): The court suppressed
the confession of the 14-year-old adoptive daughter of F.D., who committed an act of fellatio upon F.D.’s four-year-old grandson, because in incorrectly explaining
the daughter’s Miranda rights and in participating in her interrogation, F.D. placed the interests of her grandson ahead of the interests of her daughter. The court suggested that in circumstances in which a parent has a conflict of interest arising from a familial relationship to both the alleged
juvenile perpetrator and victim, an attorney should represent the juvenile during
any custodial interrogation.
T
he 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 18 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.
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).
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.
Post-Interview Preparation
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 nonsubstantial
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.
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.
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.
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.
Plea to a Lesser Offense
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. 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 you or of the court.
Juvenile trials are heard in the Superior Court without a jury. Defense counsel should bring Court Rule 5 dealing with family court juvenile cases to court. Always do you best for every client. Seek proposed resolutions which assist in the rehabilitation of your juvenile.■
Published in NEW JERSEY LAW JOURNAL, NOVEMBER 23, 2009 198 N.J.L.J. 722 Reprinted with permission

Juvenile Delinquency Proceedings

Juvenile
Delinquency
Proceedings
and
Your Child
A Guide for
Parents and Guardians

WHAT IS JUVENILE DELINQUENCY?
Delinquency is defined as an act by a juvenile under the age of 18
that if committed by an adult would constitute a crime, a disorderly
persons offense, a petty disorderly persons offense, or a violation
of any other penal statute, ordinance or regulation.

WHAT ARE THE COURT’S GOALS IN RESOLVING JUVENILE
DELINQUENCY CASES?
In juvenile matters, the court’s goals are rehabilitation and
accountability. The court handles each case on an individual basis
according to the law and based on the individual circumstances of
the case.

WHY IS MY CHILD IN THE COURT SYSTEM?
Your child will be appearing in court because someone has
accused your child of committing an act that is against the law in
New Jersey. The court will provide you with a copy of the
complaint, a legal court document describing the alleged illegal
conduct.
In the majority of cases, police sign complaints based on either
personal observation or information supplied by others such as
victims. Complaints also can be signed by school officials or
victims or by probation officers in cases of violations of probation
(VOPs).

CAN MY CHILD BE HELD IN A JUVENILE FACILITY BASED
UPON THE SIGNING OF A COMPLAINT?
A child may be taken into custody and held in a juvenile facility
based on the nature of the offense, the need to protect society, a
past record of adjudications of delinquency, a recent failure to
appear at court proceedings, or failure to remain where placed by
the court or court intake service.
If your child is not held in a shelter or detention setting, you will
receive notice of when and where to appear to address the
charge(s).


DOES MY CHILD NEED A LAWYER?
A parent, guardian, or caregiver should always consider
consulting an attorney for any legal matter or court appearance
although not all cases require an attorney.

In all formal court hearings before a judge, your child must have an
attorney. This type of proceeding is known as a counsel mandatory
or formal court hearing. If there is a possibility of
removing your child from home, the court will require your child to
be represented by an attorney. If you cannot afford an attorney,
you must, on behalf of your child, submit an application known as a
5A form to the court to determine if your child is eligible to receive
the services of a public defender or a court-appointed attorney. If
you fail to appear as required by the court to complete an
application for assignment of counsel, the court may issue a
warrant for your arrest.

WHAT HAPPENS IF MY CHILD IS DETAINED?
At times, the court may need to place your child in a detention
facility. If your child is held, an initial detention hearing will take
place as soon as possible but no later than the following day after
placement. At the hearing, you and your child will be told what the
charges are and whether or not an attorney will be required to
represent your child. The charges are listed on the complaint. You
and your child will have a chance to ask questions about the
process. At the end of this hearing, the court will make a decision
about releasing or holding your child. A parent or guardian is
expected to be present at all hearings.

WHAT HAPPENS IF MY CHILD IS NOT RELEASED AFTER THE
INITIAL DETENTION HEARING?
If your child is not released following the initial detention hearing,
another hearing will be held within two working days, unless
waived. At that time, your child must be represented by an
attorney. The judge will decide whether to continue holding your
child in detention. At the hearing, the prosecutor must present
enough evidence to satisfy the judge that the offense occurred and
that there is enough reason to believe that your child committed the
offense. If the judge is not satisfied on either count, then the judge
could dismiss the complaint. If the judge is satisfied with the
evidence presented, the case will be scheduled for a hearing.
If your child is held, a detention review hearing with your child’s
attorney present must be held within 14 days of the prior hearing.
If your child stays in detention, the judge must hold detention
review hearings every 21 court days (or less).

WHAT HAPPENS IF MY CHILD IS RELEASED AFTER THE
INITIAL DETENTION HEARING?
If your child is not detained after the initial detention hearing,
another court appearance will be scheduled. At that time, you,
your child and, if applicable, his or her attorney must appear before
the judge to answer the charges in the complaint.

CAN I ARRANGE FOR BAIL?
No, bail is not available for juveniles.

WHAT HAPPENS NEXT?
Court personnel will review the matter and determine how the case
will be handled.
HOW CAN THE COURT PROCESS MY CHILD’S CASE?
The court makes decisions on how cases are handled based on
the nature and seriousness of the offense, age of your child, any
prior record, and willingness of parties to cooperate. Cases are
handled in one of the following ways.
A. Juvenile Conference Committee (JCC) or Intake Services
Conference (ISC)
B. Juvenile referee/Informal court
C. Judge/Formal court


A. Juvenile Conference Committee
or Intake Services Conference
A delinquency complaint can be referred to a Juvenile Conference
Committee or Intake Services Conference. A Juvenile Conference
Committee is a trained citizen volunteer panel appointed by the
court. An Intake Services Conference is conducted by a Judiciary
staff person. The parent, the juvenile and the person who filed the
complaint are invited to discuss the offense and other related
factors. The committee or intake officer does not have the
authority to determine delinquency. This is an informal discussion
of the events and all parties must be in agreement. Attorneys are
not required. There is no chance of your child being sent away to a
juvenile facility. The disposition recommendations will be placed
on an agreement/court order signed by your child, you as his or her
parent/legal guardian, and the person who filed the complaint. This
agreement will then be forwarded to the judge for final approval.
The resolution of the case can include conditions such as curfew,
counseling, evaluation, community service, restitution, or any
condition that will aid in your child's rehabilitation. If the parties do
not agree to the proposed conditions, the terms can be discussed
and changed to all parties’ satisfaction. If all agree to the
conditions, a juvenile conference committee or intake staff person
will monitor the completion of the conditions. If the parties cannot
come to an agreement, the case may be sent back to the judge.
Upon successful completion of the agreed-upon conditions, the
case is dismissed. However, If your child fails to complete the
conditions or new complaints are signed prior to dismissal, the
original complaint will go back to court to be heard by a judge.

B. Juvenile Referee/Informal Court
A juvenile referee conducts a hearing at which your child will be
expected to admit or deny that he or she did what is alleged in the
complaint. If necessary, the juvenile referee will make a finding of
the facts and a determination of delinquency. The referee will
make a recommendation to the judge regarding the finding and
disposition. Dispositions that the referee recommends are subject
to approval by the judge and include those available in matters
handled by a judge with the exception of out-of-home placement. If
you disagree with the findings of the juvenile referee, you must tell
the referee immediately at the end of the hearing before the
findings and recommendations are sent to the judge.

C. Judge/Formal Court Calendar
A judge oversees the court hearing. At this hearing, your child will
be expected to enter a plea admitting or denying the charge.
These court cases are placed on the judge’s informal calendar or
on the formal calendar. If the case is on the informal calendar, also
known as counsel non-mandatory, your child may have a lawyer,
but it is not a requirement. If the case is on the formal calendar,
also known as counsel-mandatory, you must hire a lawyer. If you
cannot afford one, you will be advised to complete a 5A form to
determine eligibility for a public defender. Public defender
representation for juveniles facing delinquency charges is not free,
and you may be billed for services performed by the public
defender’s office. You should talk to your child’s public defender
about what your financial obligations will be.
If you do not apply for a public defender or do not qualify, a lawyer
will be assigned to represent your child. You will be required to pay
the lawyer at the end of the case. If the facts in the case are
disputed, the judge will decide the case. If the judge finds your
child delinquent, the judge will impose a disposition in accordance
with New Jersey law. If you disagree with the judge’s decision, you
can file an appeal within 45 days.

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.
Probation offers juveniles the opportunity to remain in the
community under supervision by a probation officer who oversees
their compliance with rules and conditions imposed by the judge.
Probation can last for a period of up to three years. If your child
does not obey the conditions of probation, there will be
consequences such as increased probation reporting or a curfew
and your child could be charged with a violation of probation
(VOP). If all conditions are met and your child shows significant
progress, your child may earn an earlier end to the probation term.
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.

In addition, for cases on the formal counsel mandatory calendar
only, the judge also has the option to order a period of confinement
in a juvenile detention facility, incarceration in a correctional facility
for youth, out-of-home placement, or a clinical residential treatment
or residential drug and alcohol treatment program. Although the
judge has the power to confine or incarcerate your child, this does
not mean that the judge will choose this as an option if your child is
found delinquent. The judge must order a pre-disposition report to
be completed by a court officer. This report will help the judge
determine the appropriate disposition. When there is a chance of
incarceration, your child must be represented by an attorney, and
you may direct questions to the attorney.

WHAT HAPPENS IF MY CHILD AND I CANNOT KEEP
A COURT DATE?
Notice of court dates will be given to you in advance. You, your
child or your child’s lawyer, if he or she has one, must notify the
court when your child cannot appear. If the court is not notified, the
judge can issue a warrant for your child’s arrest.

CAN MY CHILD OR I PRESENT WITNESSES?
Juvenile Conference Committee/Intake Services Conference: Yes,
you can invite witnesses, but witnesses are not required. Contact
the phone number listed on your notice for information or the
Juvenile Intake Unit for your county

Juvenile referee/Informal court: Yes, you can present witnesses.
Contact the juvenile team leader at the telephone number listed on
the court notice for information.
Judge/Formal court: Yes, please consult with your child’s lawyer.

WHAT HAPPENS AT THE HEARING?
If the judge finds that your child has committed the offense(s)
charged, the judge will enter a finding known as an adjudication
and make a decision known as entering a disposition.

WHAT DISPOSITIONS OR CONSEQUENCES CAN THE
COURT IMPOSE ON MY CHILD?
The dispositions and consequences that the court could impose on
your child in order to rehabilitate him/her and prevent future
delinquency include but are not limited to:
• adjourned disposition;
• community service;
• diversion;
• fines;
• probation;
• release to parent or guardian;
• required support services;
• required parental involvement;
• residential mental health and/or substance abuse and
alcohol treatment;
• restitution;
• transfer of custody;
• secure confinement/incarceration;
• suspension of driver’s license; and
• work, outdoor, academic, and/or vocational programs.
In some types of juvenile cases, there are mandatory dispositions,
and in some types of offenses, such as certain drug-related
matters, fines must be imposed by the court.


DOES MY CHILD HAVE THE RIGHT TO APPEAL?
If your child disagrees with the outcomes of the case, he or she has
the right to appeal the findings of the court within 45 days of the
final court order. Information on appeals can be found on the
Judiciary Web site at www.njcourts.com.

CAN A JUVENILE RECORD BE EXPUNGED?
For certain juvenile matters, expungement is permitted if five years
have passed since the final discharge of the person from legal
custody or supervision or if five years have passed since the entry
of any other court order not involving custody or supervision.
Certain offenses may not be expunged. For general information
regarding expungements, visit the Judiciary’s Web site at
www.judiciary.state.nj.us/prose/10557_expunge_kit.pdf, and for
information relating to your child’s specific case, consult an
attorney.

ARE JUVENILE COURT RECORDS CONFIDENTIAL?
Under New Jersey law, juvenile records are available only to
certain judicial, law enforcement, and governmental agencies as
specified in N.J.S.A. 2A:4A-60. Any other agency or person can
only have access to the records by making a motion before a judge
for good cause. You should be aware that the charge, adjudication,
and disposition information is available to victims, law enforcement
agencies, and schools. Further, if your child applies for certain
types of military, government, or law enforcement services, he or
she may be asked to disclose his or her juvenile record.

WILL THERE BE A RECORD OF MY CHILD’S
FINGERPRINTS AND DNA?
Yes, in most cases there will be a record of your child's fingerprints
and DNA. Juveniles who are found to be delinquent for an act that
if committed by an adult would be a crime by law must provide
fingerprints and a DNA sample. You should ask your child’s lawyer
about your child’s situation.


REMINDERS
• You should always make certain that the court
system in addition to your child’s attorney has your
correct address and telephone number. Contact the
number listed on the court notice or the Juvenile
Intake Unit listed on page 12 to advise of any changes
to your child’s address and/or telephone number.
• If you think that you or your child has been treated
unfairly or disrespectfully, you can contact the family
division manager or ombudsman.
• The vicinage ombudsman is also available to assist
with related concerns and questions. Contact
information is listed on page 12 of this publication.
At any time during a juvenile justice proceeding,
your child has the right to legal representation.


GLOSSARY


TERM DEFINITION
adjudication- A determination by a judge that a
juvenile has or has not committed the
charge(s) listed in the complaint.
allegation An accusation included on the
complaint form. When your child is
alleged to have committed an offense,
the state is required to prove that the
allegation is true.

complaint -A document filed with the court
accusing a person of a crime or
violation of the law. The complaint
contains the charge made against your
child.

counsel-mandatory
hearing
A court appearance in which the law
requires your child to have a lawyer.
This also is known as a formal hearing.

counsel nonmandatory
hearing
A court appearance in which the law
does not require your child to have a
lawyer, although it is always advisable
to consult with a lawyer. This also is
known as an informal hearing.
delinquency An act by a juvenile under the age of 18
that if committed by an adult would
constitute a crime, a disorderly persons
offense, a petty disorderly persons
offense, or a violation of any other
statute, ordinance, or regulation.
diversion or diverted
complaint
The reviewers of the complaint have
determined that the charge is not
serious enough to require going before
a judge or juvenile referee, so the
matter is sent to an alternative program
such as a Juvenile Conference
Committee for potential resolution.


formal court hearing- A court appearance in which the law
requires your child to have a lawyer.
This also is known as a counselmandatory
hearing.
informal court hearing A court appearance in which the law
does not require your child to have a
lawyer, although it is always advisable
to consult with a lawyer. This also is
known as a counsel non-mandatory
hearing.
incarceration Your child is confined in a juvenile
detention facility or youth correctional
facility.

waiving a right/waiver
of a right
Giving up the right to a process or
procedure such as a hearing.
waiver to be tried as
an adult
The transfer of a juvenile delinquency
charge to criminal court for processing
as an adult.
warrant A court order instructing the police to
pick up and transport your child to a
detention center, shelter or to the
courthouse for a hearing.
disposition A court-ordered outcome or resolution
to a case for juveniles is called a
disposition and for adults is called a
sentence.
detained or
in detention
Your child is being held in a detention
center or in a shelter facility.
public defender A defense attorney who can be
assigned to represent your child.
Public defender representation for
juveniles facing delinquency charges is
not free, and you may be billed for
services performed by the public
defender’s office.

Source: http://www.judiciary.state.nj.us/family/juvenilebooklet.pdf
COUNTY Family Division,
Superior Court
Juvenile Intake
Unit Ombudsman
Atlantic (609) 345-6700
x3451
(609) 345-6700
x3318 or 3305
(609) 345-6700
x3346
Bergen (201) 527-2501 (201) 527-2323 (201) 527-2734
Burlington (609) 518-2691 (609) 518-2680 (609) 518-2530
Camden (856) 379-2331 (856) 379-2200
x3651 (856) 379-2238
Cape May (609) 345-6700
x3451 (609) 463-6612 (609) 345-6700
x3346
Cumberland (856) 453-4580 (856) 453-4544 (856) 453-4538
Essex (973) 693-6667 (973) 693-6775 (973) 693-5728
Gloucester (856) 453-4580 (856) 686-7430 (856) 453-4538
Hudson (201) 795-6779 (201) 795-6745 (201) 217-5399
Hunterdon (908) 231-7617 (908) 237-5926 (908) 203-6131
Mercer (609) 571-4379 (609) 571-4390 (609) 571-4205
Middlesex (732) 519-3266 (732) 519-3266 (732) 519-3344
Monmouth (732) 677-4304 (732) 677-4091 (732) 677-4209
Morris (973) 656-4307 (973) 656-4308 (973) 656-3969
Ocean (732) 929-2042 (732) 929-4717 (732) 288-7212
Passaic (973) 247-8459 (973) 247-8459 (973) 247-8651
Salem (856) 453-4580 (856) 935-7510 (856) 453-4538
Somerset (908) 231-7617 (908) 231-7637 (908) 203-6131
Sussex (973) 656-4307 (973) 579-0615 (973) 656-3969
Union (908) 659-5800 (908) 659-5860 (908) 659-4646
Warren (908) 231-7617 (908) 475-6167 (908) 203-6131