STATE OF NEW JERSEY IN THE INTEREST OF K.S.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY

IN THE INTEREST OF

K.S.H., a minor.

________________________

June 1, 2015

Submitted May 19, 2015 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-241-14.

Joseph E. Krakora, Public Defender, attorney for appellant K.S.H. (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Acting Momouth County Prosecutor, attorney for respondent State of New Jersey (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Mark W. Morris, Legal Assistant, on the brief).

PER CURIAM

K.S.H., a juvenile, appeals from a December 11, 2013 disposition order finding that he committed an act which, if committed by an adult, would constitute fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1. K.S.H. argues that the trial judge should have granted his motion for acquittal at the close of the State's evidence. We agree and reverse.

The statute the juvenile was charged with violating provides as follows

A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.

[N.J.S.A. 2C:29-1(a) (emphasis added).]

As the juvenile's counsel pointed out to the judge at the beginning of the adjudication hearing, the complaint charged K.S.H. with failing to desist disorderly behavior and failing to speak with a police officer who was conducting an investigation. The complaint charged that K.S.H.

purposely obstruct[ed] the administration of law by failing to comply with Officer Carrie Colbert, a law enforcement officer . . . , specifically by failing to comply with verbal commands to desist their [sic] disorderly behavior and speak with the officer regarding an investigation for a large group fighting, in violation of [N.J.S.A. 2C:29-1(a).]

[(Emphasis added).]

The State presented one witness, Officer Colbert. She testified that she responded to a dispatch report of a group of juveniles fighting and throwing bicycles around. On arriving at the scene, she encountered a group of young people sitting or standing around the foot-high retaining wall in front of a house. She did not see any fighting going on. The officer noticed K.S.H. after he made a disrespectful remark to her, and she noticed that there was a bicycle on the sidewalk in front of him. She told K.S.H. and several of his companions to get off the sidewalk, and they complied by moving onto the retaining wall and yard.1 She then told K.S.H. to move his bike off the sidewalk. Again, he complied.

Concerned that the crowd was becoming hostile, the officer then told K.S.H. to step off the retaining wall and come speak to her, at a location away from the crowd of young people. He did not move off the wall despite being told to do so two or three times. According to the officer, defendant did not flee but made "furtive" movements and she thought he was about to flee. At that point, Officer Colbert grabbed K.S.H. off the wall and arrested him. He offered no resistance and went with her to the police car. That was the State's case.

Defense counsel then moved for a directed verdict of acquittal, arguing that the State had failed to prove the allegations of the complaint. That is, there was no evidence that defendant had obstructed the officer by engaging in the offense of disorderly conduct, which is what the complaint alleged he had done. Counsel also argued that refusing to speak to the officer was not an offense, and could not constitute obstruction of law under the statute. He further contended there was no evidence that defendant fled from the officer. Without asking the judge to amend the complaint, R. 5:20-1(d), the prosecutor contended that defendant violated the statute by refusing to step off the wall and speak to the officer apart from the crowd, and by attempting to flee.

In denying the motion, the judge acknowledged that refusing to give information to an officer is insufficient to constitute obstruction. See State v. Camillo, 382 N.J. Super. 113, 118 (App. Div. 2005). However, he found that the juvenile failed "to comply with . . . the officer's commands" to step off the wall and, "although he didn't flee," he made movements "leading her to believe that [flight] was a possibility." On that basis, he denied the motion.

Later, concluding that "[t]he complaints . . . don't have to be artfully drawn," the judge adjudicated K.S.H. delinquent, despite his counsel's argument that the State failed to prove he committed any of the acts alleged in the complaint.

Having reviewed the record, we conclude that the court should have granted the motion for a judgment of acquittal. As a matter of due process, a juvenile, like an adult defendant, has a right to be apprised, in advance of the trial, of the charges against him. See State in the Interest of K.A.W., 104 N.J. 112, 119-20 (1986). In this case, the State charged defendant with obstructing the administration of law by committing the predicate "unlawful act" of disorderly conduct. See N.J.S.A. 2C:29-1(a). Even viewing the evidence in the light most favorable to the prosecution, the State failed to prove that defendant committed any disorderly conduct. See State v. Reyes, 50 N.J. 454, 459 (1967). The State also charged defendant with failing to speak with a police officer. However, as even the prosecutor conceded, refusing to speak with a police officer does not constitute obstruction. Camillo, supra, 382 N.J. Super. at 118. Therefore, the case should have been dismissed after the State presented its evidence.

Accordingly, the December 11, 2013 disposition order is reversed.

1 There was no suggestion that K.S.H. or his companions were trespassing, and later testimony from his cousin established that the house belonged to K.S.H.'s aunt.