STATE IN THE INTEREST OF K.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0458-04T40458-04T4

STATE IN THE INTEREST OF

K.W.

____________________________________

 

Submitted May 24, 2006 - Decided July 19, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Ocean County, Docket No. FJ-15-3032-04.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Shepard Kays,

Designated Counsel, on the brief).

Thomas F. Kelaher, Ocean County

Prosecutor, attorney for respondent

(William Kyle Meighan, Assistant

Prosecutor, on the brief).

PER CURIAM

K.W. appeals from the order of the Family Part placing him in the custody of the Juvenile Justice Commission ("JJC") for a period of two years, after the court found him guilty of violating the terms of his probation. We affirm.

K.W. is now eighteen-years-old. At the age of fourteen he pled guilty to possession of an imitation firearm, in violation of N.J.S.A. 2C:39-4e, and aggravated assault by attempting to cause significant bodily injury, in violation of N.J.S.A. 2C:12-1b(7), offenses that if committed by an adult would have constituted fourth-degree and third-degree crimes, respectively. The court sentenced K.W. to an eighteen-month term of probation, under the Juvenile Intensive Supervision Program ("JISP").

Ten months after entering JISP, K.W. pled guilty to violating the terms and conditions of his probation. Despite his failure to abide by the terms of probation, the court decided to allow K.W. to continue on probation subject to JISP, but imposed the additional condition of completing a residential program commonly referred to as a "Field's program." Only a few months after this second chance, K.W. was involuntarily discharged from the Field's program. As a result, the court found him guilty of violating the terms of probation, and imposed a two-year term of incarceration.

Against these facts, K.W. now appeals raising the following arguments:

POINT I

THE COURT RELIED UPON HEARSAY TESTIMONY THAT WAS NOT RELIABLE AND THEREFORE DENIED THE DEFENDANT A FAIR HEARING.

POINT II

THE SENTENCE GIVEN DEFENDANT WAS EXCESSIVE.

We reject these arguments and affirm. A juvenile charged with violation of probation does not enjoy the same procedural rights attendant upon a criminal prosecution.

A charge of a violation of probation is not a criminal prosecution but rather "a part of the correction process." State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499 (1986). Therefore, a defendant accused of violating the terms of probation is not entitled to indictment or trial by jury, State v. Zachowski, 53 N.J. Super. 431, 440 (App. Div. 1959), and he may be found guilty by a simple preponderance of the evidence. State v. Reyes, supra, 207 N.J. Super. at 134-37. Furthermore, a violation of probation may be based on hearsay evidence which would be inadmissible in a criminal trial. Id. at 138-39.

But while a charge of a violation of probation is not a criminal prosecution, it may result in a loss of liberty. Consequently the United States Constitution requires a defendant charged with a violation of probation to be accorded due process of law[.] Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756, 1759-60, 36 L. Ed. 2d 656, 661-62 (1973). The Code of Criminal Justice codifies and to some extent expands upon the due process rights guaranteed by the Constitution by providing that an accused probationer is entitled to "a hearing upon written notice to the defendant of the grounds on which such action is proposed, . . . the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel." N.J.S.A. 2C:45-4; see State v. Reyes, supra, 207 N.J. Super. at 134.

[State v. Thomas, 356 N.J. Super. 299, 308-09 n.2 (App. Div. 2002) (quoting State v. Lavoy, 259 N.J. Super. 594, 600 (App. Div. 1992)).]

Judge Villano conducted the probation violation hearing here well within the appropriate procedural framework, and in a manner consistent with K.W.'s due process rights. The two-year sentence imposed by Judge Villano was well within her discretion under the authority granted to her by the Juvenile Justice Code. N.J.S.A. 2A:4A-44d.

 
Affirmed.

 

K.W. was placed at the Albert Elias Residential Community Home, a twenty-bed residential program located in Mercer County that is designed to serve younger male juvenile offenders. Office of the Attorney General, Juvenile Justice Commission, http://www.state.nj.us/lps/jjc/group_centers.htm (last visited June 27, 2006). We take judicial notice that due to the intensive nature of the therapeutic programs offered by these facilities, a Field's program is generally viewed as the placement of last resort before imposing a term of incarceration.

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4

A-0458-04T4

RECORD IMPOUNDED

July 19, 2006