STATE OF NEW JERSEY IN THE INTEREST OF A.D., A MINOR A-3720-09T4; A-3721-09T4

5-9-11 The denial of the state's motion to transfer jurisdiction from the family part to the Law Division is reversed where defendants were 17 years old when they were charged with Chart 1 offenses. Both defendants were just shy of eighteen when they were charged with Chart 1 offenses, including murder. Defendants' claims of duress and renunciation do not negate the existence of probable cause to believe they committed a delinquent act and are insufficient to defeat waiver.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. A.R., J.R., W.B., AND J.H. IN THE MATTER OF N.R., I.R., AND J.H. A-3161-10T4

5-10-11 The undisputed facts revealed that defendant left his ten-

month child to sleep on a twin bed without railings, while a

ten-year old child also slept in the bed, near an operating

radiator; the ten-month old child was found the next morning on

the floor suffering severe burns from the hot radiator. The

trial court found defendant was merely negligent and the child

neither abused nor neglected within the meaning of N.J.S.A. 9:6-

8.21(c). The court granted leave to appeal and reversed,

concluding in its application of the statutory standard, as

interpreted in G.S. v. Dep't of Human Servs., 157 N.J. 161

(1991), that defendant was grossly negligent because "an

ordinary reasonable person" would understand the situation posed

dangerous risks and defendant acted without regard for the

potential serious consequences.

9:6-3. Cruelty and neglect of children; crime of fourth degree; remedies

9:6-3. Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree. If a fine be imposed, the court may direct the same to be paid in whole or in part to the parent, or to the guardian, custodian or trustee of such minor child or children; provided, however, that whenever in the judgment of the court it shall appear to the best interest of the child to place it in the temporary care or custody of a society or corporation, organized or incorporated under the laws of this State, having as one of its objects the prevention of cruelty to children, and the society or corporation is willing to assume such custody and control, the court may postpone sentence and place the child in the custody of such society or corporation, and may place defendant on probation, either with the county probation officers or an officer of the society or corporation to which the child is ordered, and may order the parent, guardian or person having the custody and control of such child to pay to such society or corporation a certain stated sum for the maintenance of such child. When, however, a child is so placed in the custody of such society or corporation, and defendant fails to make the payments as ordered by the court, the court shall cause the arrest and arraignment before it of such defendant, and shall impose upon the defendant the penalty provided in this section.

Defense of Rutgers College Students for Criminal Arrest

By Kenneth A. Vercammen, Past Chair NJ State Bar Municipal Court and DWI Section Our office often represents college students charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted of possession of drugs or a crime, you can face jail, high fines, Probation over 18 months and other penalties. Dont give up! Our Law Office can provide experienced attorney representation for marijuana, underage drinking and other criminal matters. Our website kennethvercammen.com provides information on criminal offenses we can be retained to represent people. Consequences of a Criminal Guilty Plea in Superior Court 1 If you plead guilty you will have a criminal record 2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom. 3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment 3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field. 4. On employment applications, you will have to answer yes that you were convicted of a crime. 5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty. 6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 7 In all drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school. 8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing. 9. You must pay restitution if the court finds there is a victim who has suffered a loss. 10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 12. You must wait 5-10 years to expunge a first offense. 2C:52-3 13. You lose the presumption against incarceration in future cases. 2C:44-1 14. You may lose your right to vote. The defense of a person charged with possession of marijuana or other criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with marijuana, hashish or other illegal cannabis derivatives. The Superior Court handles possession of larger amounts of marijuana, or other illegal drugs and possession with intent to distribute drugs

Corporal punishment considered to be child abuse DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v C.H.,

Corporal punishment considered to be child abuse

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES v C.H.,

Decided

Before Judges Axelrad, Sapp-Peterson and Espinosa.

On appeal from a Final Decision of the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 07-551.

Marianne Rebel Brown, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Clinton Page, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

SAPP-PETERSON, J.A.D.

Appellant C.H. appeals from a final administrative agency decision by the Director of the New Jersey Division of Youth and Family Services (Division) finding that on November 20, 2003, appellant had committed an act of child abuse as defined by N.J.S.A. 9:6-8.21(c)(4)(b) by failing to exercise a minimum degree of care by unreasonably inflicting excessive corporal punishment upon her daughter, T.H. We affirm.

The incident that triggered the Division's finding against C.H. resulted from a referral it received on November 21, 2003, from T.H.'s school nurse, who reported that T.H.'s teacher brought T.H. to her office where she observed red demarcations on the right side of T.H.'s face, three to four inches long, and also observed dark red scratches, two inches in length, on T.H.'s right elbow and left cheek, as well as a greenish demarcation on the middle of her back. The Division dispatched two workers to the school where they interviewed T.H., who stated that her mother had beaten her with a paddle the previous evening after learning that she had told a neighbor that they were without electricity in the home. The school nurse did not believe that T.H. required medical attention. The workers took pictures of the bruises they observed and returned to their office where they discussed the matter with their supervisor. It was agreed at that time that there was no need to involve the police or the prosecutor.

Later that day, the workers appeared at C.H.'s home and advised her of why they were there. C.H. explained that the electricity had gone out on November 19, due to a storm and was restored on November 20. She confirmed that T.H. had gone across the street to a neighbor's house and told the neighbor that there was no electricity in their home. She admitted to spanking T.H. but only on her buttocks while T.H. was still clothed. She told the workers that T.H. had no marks on her when she left for school earlier that day and offered a number of possibilities for the marks, including the sensitive nature of T.H.'s skin that may have developed into a rash from lotion, playing with the cat around her neck, as T.H. was known to do, or doing somersaults. C.H. also suggested the injuries may have been sustained at school.

Two weeks later, at the request of the Division, Dr. Patty Vitale conducted a physical examination of T.H., who was accompanied to the examination by C.H. Dr. Vitale authored a report that was admitted into evidence at the hearing without objection. In the report, Dr. Vitale noted that she found T.H. to be a "well-developed" and "well-nourished female." She was unable to confirm the injuries to the face and elbow because the injuries had since "desorbed without any residual." Although she observed some old scarring on the body, there was no indication of the source of those scars.

Dr. Vitale's report also discussed her conversation with C.H. during which C.H. told her that T.H.'s story was not true and that T.H., like all children, sometimes did not tell the truth. C.H. also explained to Dr. Vitale that she used other forms of discipline upon T.H., but spanked her when "more significant discipline [was] required." She also shared with Dr. Vitale her experience with undisciplined children in her professional capacity and that she intended to use discipline in an effort to prevent her daughter from "end[ing] up on the streets or doing drugs[.]"

Dr. Vitale, in addition to performing a physical examination of T.H., also interviewed her. T.H. told Dr. Vitale that "mom started beating me" using a paddle "[o]n my eye like two times and on my back, that's it[,]" and that her mom hit her with the paddle on her "[f]ace, eyes, [and] cheek." T.H. told Dr. Vitale that this was the only time that C.H. had ever hit her in this way. However, when Dr. Vitale asked her if her mother had ever hit her in the face, she said "No" and reported that her cheek had been red because she scraped herself at home. Further, when asked whether her mom hit her on the face or whether she fell, she said, "I fell."

Dr. Vitale concluded that C.H.'s discipline was inappropriate and that she had used excessive force when disciplining T.H. Dr. Vitale also expressed her concern that C.H. believed that the discipline she administered to T.H. was appropriate. She believed that C.H. would benefit from parenting education and recommended that the Division "assess whether mom could benefit from additional support services."

In a letter dated February 23, 2004, the Division notified C.H. that it had affirmed the finding made by its district office that child abuse was substantiated as to T.H. C.H. appealed this decision and the matter was assigned to an administrative law judge (ALJ) as a contested case and a hearing was conducted. See N.J.S.A. 52:14F-1 to -23.

Following the presentation of the evidence, the ALJ found the evidence was insufficient to sustain the allegation that C.H. committed an act of physical child abuse under N.J.S.A. 9:6-8.21(c) and that the Division "did not have 'good cause' to make a finding of substantiated child abuse."

Specifically, the ALJ concluded:

There is no evidence in the record to establish that the injuries suffered by T.H. were either life-threatening or so serious as to cause any disfigurement or loss or impairment of the function of any bodily organ. There is no indication that either the school nurse or the DYFS investigator believed these injuries were sufficiently serious so as to require medical attention. I FIND that these are not serious injuries that are likely to cause death or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ. I also FIND that there is no evidence in the record that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired. Obviously, if there had been a series of these incidents involving respondent, my findings could differ greatly, since multiple incidents might create or allow to be created a substantial or ongoing risk of physical injury to such child.

I am convinced that C.H. is a good parent who believed she was acting in her daughter's best interest. I FIND that what occurred was an isolated incident and did not involve the infliction of excessive corporal punishment resulting in serious injuries or impairment.

The ALJ recommended the reversal of the Division's findings and that C.H.'s name should not be placed on the Central Registry of substantiated child abusers.

The Director issued a final agency decision rejecting the recommendation of the ALJ. The Director found striking T.H. "repeatedly with a paddle, multiple times and with sufficient force to cause marks could certainly qualify as abuse per N.J.S.A. 9:6-8.21(c)(4)(b)[.]" Additionally, the Director expressed the view that when consideration is given to the reason why C.H. admittedly struck her daughter, because she told the neighbor there was no electricity in their home, C.H.'s actions went "beyond any semblance of reason, and provide[d] no justification for C.H.'s decision to administer any measure of corporal punishment" to a five-year old child.

The Director also considered that there had been "a history of questionable administration of corporal punishment." She noted that C.H. testified that she had physically paddled T.H. two months earlier and told Division investigators that she physically disciplined T.H. one to two times per month. Further, during a prior Division investigation conducted in 2001, when T.H. was only three years old, C.H. admitted that she routinely disciplined T.H. by pinching the child's inner thighs. The Director concluded that the "pattern of corporal punishment on such a young child is troubling and, when considered in concert with [the] instant matter, there is ample support to uphold this substantiation." The ensuing appeal followed.

On appeal C.H. contends:

POINT I

THE FINDING BY [THE] ADMINISTRATIVE LAW JUDGE . . . THAT C.H. DID NOT ABUSE OR NEGLECT HER DAUGHTER WAS NOT REJECTED BY [THE] DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, ON A TIMELY BASIS. [THE ADMINISTRATIVE LAW JUDGE]'S FINDING SHOULD BE ADOPTED.

POINT II

THE DEPARTMENT OF FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MEET THE STANDARD REQUIRED TO MODIFY OR REJECT THE FINDING OF THE ADMINISTRATIVE LAW JUDGE.

POINT III

THE RECORD DOES NOT SUBSTANTIATE A FINDING OF CHILD ABUSE. THE FINAL DECISION OF THE DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION[] OF YOUTH AND FAMILY SERVICES MUST BE REVERSED.

We first dispense, as meritless, appellant's contention that the Director failed to reject the ALJ's recommended decision in a timely fashion. The Division obtained two orders extending the time in which to issue its final agency decision. See N.J.A.C. 1:1-18.8 (permitting extensions of time limits in which to file a final decision). The final decision was issued prior to the expiration of the second extension.

Turning to the remaining arguments, we begin by noting that in challenging an agency's determination, an appellant carries a substantial burden of persuasion, and the agency's determination carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). Consequently, the scope of our review of the issue before us remains limited. "Reviewing courts should give considerable weight to any agency's interpretation of a statute the agency is charged with enforcing." G.S. v.Dep't of Human Servs., 157 N.J. 161, 170 (1999). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). "Although we recognize that deference is generally given to an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions." Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., supra, 157 N.J. at 170). Additionally, where an agency head rejects a recommendation of an ALJ, the basis for rejecting the recommendation must be set forth by the agency head with particularity and new or modified findings supported by sufficient, competent, and credible evidence in the record must be made. N.J.S.A. 52:14B-10(c).

Here, in rejecting the ALJ's recommendation, the Director found the ALJ's conclusion that "there is no evidence in the record that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired" was "inconsistent with the evidence in the record." We agree.

N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child as:

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 . . . (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[.]

[N.J.S.A. 9:6-8.21(c) (emphasis added).]

We have held that the phrase "minimum degree of care" refers to conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S. v Dep't of Human Servs., supra, 157 N.J. at 178. Child abuse ranges from situations of "slight inadvertence to malicious purpose to inflict injury." Ibid. As the Director stated, there is absolutely nothing reasonable about inflicting harm, in the form of paddling, upon a five-year-old child because the child told a neighbor that their home was without electricity, a situation which the Director appropriately characterized as "innocuous." Moreover, evidence that T.H.'s "physical, mental or emotional condition . . . is in imminent danger of becoming impaired as the result of the failure of [C.H.] to exercise a minimum degree of care" because of the unreasonable infliction of corporal punishment was established by C.H.'s admitted use of corporal punishment regularly, including the pinching of T.H. when she was three years old as a form of punishment and her belief that no one could tell her how to discipline her own child. As we have previously recognized, "[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'" N.J. Div. of Youth and Family Servs. v. C.M., 181 N.J. Super. 190, 201 (App. Div. 1981). See also Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002).

In Robert M., the Division appealed the dismissal of its complaint for continuing custody of the four biological children of the defendants. Id. at 47. In addition to their own biological children, the defendants adopted three children from Russia, one of whom died less than one year later. Id. at 47-50. His death was ruled a homicide and the defendants were arrested and initially charged with child endangerment but were later indicted and charged with, among other offenses, aggravated manslaughter. Id. at 52. They entered pleas of not guilty and were awaiting trial at the time the trial court conducted its fact-finding hearing on the abuse and neglect charges. Id. at 57. At the hearing, the court excluded interviews that had been taken of the four older children in connection with a risk assessment the Division had requested because of discovery violations. Id. at 58. During these interviews, the children described the discipline to which the decedent had been exposed. Id. at 53-55. We granted leave to the Division to appeal the dismissal of its complaint and concluded the trial court committed reversible error when it excluded "relevant proof of parental abuse which could be considered on the question of past or potential abuse of the other children." Id. at 67. We observed that:

[a]lthough the absence of past physical abuse to the natural children may infer their future safety, the alleged treatment of [the decedent] could be a dangerous harbinger to one or more of the others. As we stated in J.& E. v. M.& F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)[:]

Predictions as to probable future conduct can only be based upon past performance . . . . We cannot conceive that the Legislature intended to guarantee parents at least one chance to kill or abuse each child. Evidence of parents' fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.

[Id. at 68 (emphasis added).]

"[A]s a part of its burden of proof, [in abuse and neglect cases] the State must still demonstrate by a preponderance of the competent, material and relevant evidence . . . the probability of present or future harm." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). The evidence presented regarding the Division's prior experience with C.H. was relevant to meeting this burden. The ALJ permitted the Division to introduce evidence of its prior experience with C.H. in connection with an earlier referral as relevant to the issue of C.H.'s knowledge that the manner in which she was disciplining T.H. was of concern to the Division. Contrary to C.H.'s argument on appeal, this evidence was also relevant to the likelihood that she would continue to expose T.H. to the unjustifiable discipline to which she exposed T.H. on November 20, 2003.

We are persuaded that there was more than sufficient evidence in the record demonstrating that the ALJ's ultimate findings that the incident of November 20, 2003 was isolated and that abuse had not been substantiated were not supported by the record. The Director properly considered the entire record presented to the ALJ before rejecting the recommendation and clearly articulated her reasons for doing so. N.J.S.A. 52:14B-10(c).

Affirmed.

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

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 welcomes persons to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and every other Friday morning court sessions.

Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given projects to provide information to the public on updated criminal laws and statutes. Help people less fortunate than you who are down on their luck. This is an unpaid internship helping indigent persons.

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. http://criminal-jury.blogspot.com/

Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week. Must be over 18 years old and have a car. You can work more hours if you want and more than 12 weeks.

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

We are 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 the volunteers will pitch in on whatever needs to be done.

Interested persons 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.

PUBLIC DEFENDER OF METUCHEN

Att: Kenneth Vercammen, Esq.

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

State in the Interest of A.S. (A-58/59-09)

State in the Interest of A.S. (A-58/59-09)
Argued April 27, 2010 -- Decided July 29, 2010
LaVECCHIA, J., writing for a unanimous Court.
The issue in this appeal is whether, under the totality of the circumstances, A.S., a juvenile, knowingly,
voluntarily, and intelligently confessed to conduct that, if committed by an adult, would constitute first-degree
aggravated sexual assault.
A.S. was the adoptive daughter of F.D. A.S. and F.D. lived in one-half of a duplex; the other half was
inhabited by F.D.’s daughter T.B., and T.B.’s four-year-old son C.J., who was F.D.’s grandson. While A.S. was
home with C.J. on the night of November 25, 2007, she allegedly performed fellatio on the boy for a period of
approximately ten minutes. Although A.S. told C.J. not to tell anyone about the incident, after his bath the next
night around midnight, C.J. told his mother what A.S. had done. T.B. had F.D. come over and T.B. repeated what
she heard had happened the previous day. F.D. confronted A.S. Later that night, T.B. contacted the police and at
some point during the following day, while still at home, A.S. apparently confessed to the act in the presence of T.B.
and F.D., stating that she did not know why she did it.
C.J. and A.S. were interviewed by detectives at the Somerset County Prosecutor’s Office. A detective
interviewed A.S., with F.D. present. Although the interview was videotaped, a transcript or verbatim record of the
tape was not admitted into evidence at trial; however, the actual VHS cassettes, though of poor quality, were
introduced into evidence. At the outset of the interview the detective requested that F.D. read to A.S. her Miranda
rights, which she did in less than one minute without any clarification. F.D. then read aloud the portion of the form
dealing with her rights as a parent and she expressed some concerns. The detective attempted to clarify F.D.’s rights
and blamed her confusion on the fact that the form was written by a lawyer. That exchange took almost three
minutes.
F.D. and A.S. engaged in a conversation in which A.S., when asked if she wanted an attorney, inquired
about an attorney’s functions. Both F.D. and the detective explained that the attorney would represent her and, as
explained by F.D., the attorney would “make sure your rights are not violated.” In addition, A.S. was told that the
attorney would not speak for her and that she had to answer questions and answer them truthfully because that
would demonstrate that she was a “good person.” Throughout, F.D. insisted that A.S. tell the detective what she did.
Eventually, more than thirty minutes into the interview, A.S. confessed that she had “sucked [C.J.’s] tinky” for ten
minutes and then went to sleep. After A.S. confessed, the interview continued for thirty more minutes. F.D.
interjected and asked A.S. questions throughout, chastising her several times. The questions addressed to A.S. were
greeted with long periods of silence on her part, some lasting over a minute, causing the detective to say “[we] can’t
do this all night.”
Defense counsel filed a motion to suppress the videotaped interview, and that motion was argued as part of
A.S.’s delinquency adjudication. Counsel contended that A.S.’s confession should be suppressed because A.S.
understood neither her right to remain silent nor her right to an attorney and that her confession was not freely and
voluntarily given. Counsel also argued that F.D. had acted as an interrogator and had unduly pressured A.S. to
confess, abdicating her responsibility as a parent to A.S. and instead advancing the interests of her grandson. A.S.
testified, acknowledging that she was not yelled at or threatened, and stating that although she was in ninth grade,
she only read at a third-grade level. A.S. testified that she really didn’t want to answer the questions posed to her,
and that was why she remained silent so often during the questioning, but that questions kept coming and that she
felt pressured.
2
The juvenile court denied the motion to suppress the videotaped interview. The court characterized, with
understatement, the procedure by which the Miranda warnings were given as “a little unusual” and “probably not the
best police practice.” Nonetheless, the court was satisfied that A.S. was read and understood her rights. The court
then found that A.S. had committed an act that, if performed by an adult, would constitute first-degree aggravated
sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1), and adjudicated her delinquent. The court noted that there was
ample evidence in the record to support its finding whether or not it admitted A.S.’s videotaped statement into
evidence.
A.S. appealed and a “troubled” Appellate Division affirmed. The Appellate Division applied the totality of
the circumstances test that the Supreme Court annunciated in State v. Presha, 163 N.J. 304 (2000), and
determined that “the State has failed to meet its burden of demonstrating beyond a reasonable doubt that A.S.’s
confession was knowingly, intelligently and voluntarily given.” The Appellate Division found that A.S. did not
understand her Miranda rights and that the efforts made to help her understand those rights were not only
ineffectual, but actually misinformed her. Additionally, the Appellate Division was concerned by F.D.’s conflict of
interest because of her relationship to both A.S. and the victim, her grandson C.J., characterizing F.D.’s role not as a
parent, but rather as an “interrogator.” In order to avoid such problems in future cases in which the parental figure
has a close relationship with both the victim and the accused, the Appellate Division posited that “the prudent
approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights
and her potential culpability, a procedure adopted elsewhere.” Despite those concerns, the Appellate Division
affirmed A.S.’s delinquency adjudication based on the other evidence in the record in light of the trial court’s
statement that A.S.’s confession was not absolutely necessary to its ruling.
Both parties appealed and the Supreme Court granted the State’s petition for certification and A.S.’s crosspetition
for certification. The Court also granted the Attorney General of New Jersey and the Office of the Child
Advocate of New Jersey status to appear as amici curiae.
HELD: Upon consideration of the totality of the circumstances, A.S.’s confession was not knowingly, intelligently,
and voluntarily given. In addition, the confession by far was the most damning piece of evidence against A.S. and
thus the Court cannot say that there was no reasonable possibility that its introduction into evidence contributed to
the delinquency adjudication, and so, in the particular circumstances presented in this case, the Court is constrained
to reverse A.S.’s conviction and remand for new proceedings.
1. The Court begins, as did the Appellate Division, with the decision in Presha, its seminal case addressing the
admissibility of juvenile confessions. In order for a juvenile’s confession to be admissible into evidence it must
satisfy the same standard that applies to adult confessions: that is, it must be made knowingly, intelligently, and
voluntarily. The Court looks to the totality of the circumstances in making that determination. In Presha, the Court
also noted the increased emphasis being placed on punishment as a rationale underlying the juvenile justice system,
as opposed to its traditional rehabilitative purposes. In light of that paradigm shift, the Court instructed courts to
consider the parent’s role as a “highly significant factor” in the totality of the circumstances analysis used to assess
whether a juvenile’s confession was knowing, intelligent, and voluntary. However, the mere presence of a parent is
insufficient to protect a juvenile’s rights, because presence alone cannot be said to provide the buffer between police
and the juvenile that the Court was contemplating in its decision in Presha. In order to serve as a buffer, the parent
must be acting with the interests of the juvenile in mind. (Pp. 19-22)
2. The factors relevant when making the totality of the circumstances determination include the child’s age,
education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was
repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved, prior
experience with the legal system, and the “highly significant factor” of parental involvement. A.S. was fourteen
years old at the time of the interrogation. That age put her on the cusp for heightened protections because a
fourteen-year-old is still of tender sensibilities and may have great difficulty withstanding the rigors of a police
interrogation. Furthermore, although A.S. was in ninth grade at school, she was not intellectually sophisticated. She
read at a third-grade level and had a “low-average” I.Q. of 83. In addition, she had no prior experience with the
legal system. In light of those facts, the actual efforts employed to inform A.S. of her constitutional rights were
woefully inadequate. Indeed, the detective abdicated his responsibility in that regard by having F.D. read A.S. her
rights, a procedure which tainted the interview from its outset and must not be utilized in the future. In addition,
telling a juvenile who does not understand her rights that an attorney would “make sure your rights aren’t violated”
3
is an empty gesture. Moreover, the attempts to inform A.S. of her rights contained actual misinformation. An
impartial review of the videotaped interview yields convincing evidence that the “greatest care” was not taken to
protect A.S.’s constitutional rights in this case. The Court therefore concludes, upon consideration of the totality of
the circumstances, that A.S.’s confession was not knowingly, intelligently, and voluntarily given. (Pp. 22-28)
3. The Court must determine whether the admission of A.S.’s confession into evidence was harmful: that is,
whether it was “clearly capable of producing an unjust result.” R. 2:10-2. The Appellate Division, although
“troubled,” affirmed A.S.’s delinquency adjudication in large part due to the juvenile court’s assessment that even if
the videotaped statement had not been introduced into evidence, the court still would have adjudicated A.S.
delinquent. The confession by far was the most damning piece of evidence against A.S. and thus the Court cannot
say that there was no reasonable possibility that its introduction into evidence contributed to the delinquency
adjudication, and so, in the particular circumstances presented in this case, the Court is constrained to reverse A.S.’s
conviction and remand for new proceedings. (Pp. 28-30)
4. Because the Court finds that A.S.’s confession was not voluntarily given under the totality of the circumstances
test as described in Presha, its decision does not hinge on whether F.D. had a conflict of interest that rendered her
unable to fulfill the parental role contemplated by Presha. The Court, however, declines to embrace a categorical
rule that an attorney must be present any time that there is perceived clash in the interests of a parent based on a
familial relationship with the victim or another involved in the investigation. Even in cases of such apparent
clashing interests, a parent may be able to fulfill the role envisioned in Presha. And in those cases where a parent is
truly conflicted, another adult – not necessarily an attorney – may be able to fulfill the parental assistance role
envisioned by Presha. (Pp. 30-33)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for new
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO, and
HOENS join in JUSTICE LaVECCHIA’s opinion.