STATE OF NEW JERSEY IN THE INTEREST OF R.O., a juvenile. v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1540-05T31540-05T3

STATE OF NEW JERSEY

IN THE INTEREST OF R.O.,

a juvenile.

____________________________________

 

Argued February 28, 2007 - Decided June 13, 2007

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FJ-12-002795-04-M.

Rotimi A. Owoh argued the cause for appellant R.O.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

R.O., a juvenile born on September 15, 1990, appeals from an adjudication of delinquency for committing an act which, if committed by an adult, would have constituted fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have while in or upon any school building. N.J.S.A. 2C:39-5(e)(2). We affirm.

The adjudication arose out of an incident that occurred at R.O.'s middle school when school officials learned that R.O. was in possession of a knife. R.O. told school officials he had found the knife on the school bus. However, he did not turn in the knife until after he was confronted by school officials.

On appeal, R.O. presents the following arguments:

POINT I

TRIAL OF THE JUVENILE WITHOUT ACCESS TO WITNESSES VIOLATED THE JUVENILE'S RIGHT TO DUE PROCESS, COMPULSORY PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A FAIR TRIAL.

POINT II

RESTRICTION OF THE ABILITY OF DEFENSE COUNSEL TO CROSS[-]EXAMINE THE STATE WITNESS CONSTITUTED AN UNCONSTITUTIONAL INFRING[E]MENT ON THE RIGHT TO CONFRONT A WITNESS IN VIOLATION OF THE JUVENILE'S SIXTH AMENDMENT RIGHTS.

POINT III

THE COURT ERRED TO EXCLUDE THE MEMORANDUM DATED JUNE 16, 2004 FROM EVIDENCE.

POINT IV

THE COURT ERRED TO DENY DEFENSE MOTION TO DISCLOSE THE IDENTITY OF THE SO-CALLED INFORMER.

POINT V

THE LOWER COURT'S STATED NEED FOR "FINALITY" WAS AN IMPROPER JUSTIFICATION TO DENY DEFENSE MOTION TO COMPEL PRODUCTION OF ATTENDANCE LOGS RELATING TO DE AND THE NAME OF THE PERSON WHO ALLEGEDLY PICKED UP DE FROM SCHOOL ON MARCH 3, 2004.

POINT VI

SELECTIVE APPLICATION OF THE NO-COMMINGLING RULE BY THE COURT WAS UNFAIR TO THE JUVENILE.

POINT VII

TRIAL COURT'S COMMENTS THAT THERE IS NOTHING DEFENSE COULD DO TO CHANGE HIS MIND AS TO THE CREDIBILITY OF THE STATE WITNESS WAS UNFAIR BECAUSE IT DEPRIVED THE JUVENILE THE RIGHT TO HAVE HIS MOTION HEARD BY SOMEONE WITH AN OPEN MIND.

VIII

JUVENILE SHOULD BE GRANTED A NEW TRIAL BECAUSE THERE IS NEW EVIDENCE THAT WITNESSES MENTIONED IN THE MEMORANDUM DATED JUNE 16, 2004 ARE IDENTIFIABLE AND AVAILABLE CONTRARY TO REPRESENTATION MADE TO THE COURT BEFORE THE TRIAL.

IX

THE DENIAL OF DEFENSE MOTION FOR DISCOVERY RELATING TO SELECTIVE ENFORCEMENT OF THE ZERO TOLERANCE POLICY DENIED THE JUVENILE THE RIGHT TO PRESENT A COMPLETE DEFENSE.

X

FALSE AND PERJURED TESTIMONY WAS USED TO SECURE THE FINDING OF DELINQUENCY.

XI

PROSECUTOR FILED AN AMENDED COMPLAINT CONTAINING FALSE INFORMATION IN RETALIATION FOR THE JUVENILE'S REJECTION OF THE OFFER OF DEFERRED ADJUDICATION.

XII

THE CONDUCT AND ACTIONS OF PROSECUTOR AND THE STATE WITNESS COMBINED IN AGGREGATE TO DENY THE JUVENILE ACCESS TO WITNESSES AND INFORMATION NECESSARY FOR A FAIR TRIAL.

XIII

THE STATE DENIED THE JUVENILE HIS RIGHT TO A FAIR TRIAL BY FURNISHING THE COURT FALSE AND MISLEADING INFORMATION THAT THE STATE WITNESS TALKED TO "UDAY" ON A "LATER DATE."

XIV

THE CUM[]ULATIVE EFFECT OF PROSECUTORIAL MISCONDUCT AND THE CONDUCT OF THE STATE WITNESS COMBINED IN AGGREGATE TO DENY THE JUVENILE DUE PROCESS AND A FAIR TRIAL.

XV

THE TRIAL COURT ERRED IN DENYING DEFENSE MOTION TO DISMISS THE AMENDMENT TO THE ORIGINAL COMPLAINT.

XVI

THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT A VIOLATION OF 2C:39-5(e)(2).

After reviewing the record and the applicable law, we conclude that these arguments all lack merit and, with the exception of Points IX and XV, are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

In Point IX, R.O. contends Judge Nieves erred in denying his request for discovery in connection with his claim that both the school policy and the relevant statutes were being selectively enforced against him. We disagree.

At a pretrial hearing on December 10, 2004, defense counsel argued that the anti-violence policy at R.O.'s school had been selectively enforced against him, and requested discovery regarding the past enforcement of that policy by the school board and related prosecutions by the Middlesex County's Prosecutor's Office. In support of this position, defense counsel asserted that he had proof that a white student, who was involved in an altercation at school while in the possession of scissors, was not suspended. Judge Nieves denied defense counsel's request, ruling that one incident of allegedly disparate treatment did not establish a colorable basis for a claim of selective enforcement. State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991).

Thereafter, at the November 18, 2005 hearing on R.O.'s motion for reconsideration following his second motion for a new trial, defense counsel advised the court that he had new evidence of the selective enforcement of the school violence policy. He explained that as a result of his administrative appeal of R.O.'s suspension from school, he had received a statement from M.D. regarding another incident involving a white child. The court, however, refused to consider this untimely-acquired information and denied the motion.

Generally, a claim of selective enforcement is not established without discovery of the requisite records which show enforcement patterns during a period of time in a given geographical location. These records are usually within the exclusive control of the enforcement agency. However, in order to obtain discovery of such records, a defendant must first make a showing of "a colorable basis for a claim of selective enforcement." Ibid. In other words, "a defendant must present 'some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements.'" Id. at 32 (quoting U.S. v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir. 1974)). Thus, the evidence produced by a defendant must take the question of selective enforcement "past the frivolous state" and raise a reasonable doubt as to whether the statute at issue is being enforced in an evenhanded fashion. Id. at 33 (quoting U.S. v. Hazel, 696 F.2d 473, 475 (6th Cir. 1983)).

R.O. contends that he presented a colorable basis for a claim of selective prosecution at both the school board and county levels, and that he should now be granted a new trial so that he can obtain and review the discovery to which he is entitled. At oral argument before this court, however, defense counsel conceded that of the two incidents presented to Judge Nieves involving students found in possession of weapons at R.O.'s school who, according to R.O., were treated more favorably than he, only one involved a white student. The other student to whom more favorable treatment was afforded was also a minority. Under these circumstances, we are not persuaded that the court abused its discretion in denying defense counsel's discovery request.

In Point XV, R.O. contends that Judge Nieves erred in denying his motion to dismiss the amended complaint. Here's the basis for this contention.

R.O. was initially charged with a single count of knowingly possessing a knife under inappropriate circumstances, in violation of N.J.S.A. 2C:39-5(d). Shortly thereafter, the Middlesex County Prosecutor's Office notified R.O.'s parent as follows:

[B]e advised that in the event you wish to go to trial in this matter, the State's offer [of deferred adjudication] will automatically be withdrawn and, in the event your son is convicted at trial, the State will seek a custodial sentence.

Also, when you come to court on May 17, 2004, a new complaint will have been prepared which, in addition to charging a violation of 2C:39-5(d), will also charge your son with violations of 2C:39-4(d) and 2C:39-5(e)(2). You will receive copies o[f] the amended complaint on May 17.

R.O. rejected the State's offer, and the Prosecutor filed an amended complaint adding two new charges: (1) third-degree possession of a knife with the purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4(d) (Count II); and (2) fourth-degree possession of a knife on school property, in violation of N.J.S.A. 2C:39-5(e)(2) (Count III).

Defense counsel moved to dismiss the amended complaint, arguing the amendment violated R. 5:20-1(d) and there was no evidence that R.O. had any intent to harm anyone or anything. Defense counsel also contended the amended complaint was filed in retaliation for R.O.'s decision not to accept the State's plea offer.

Judge Nieves reserved decision on the motion in order to give the State an opportunity to provide (1) any incident reports in the possession of the school district, (2) three copies of the student handbook, and (3) the full name of a potential witness alleged to have been riding the bus on the day in question. When the court subsequently addressed the motion, the assistant prosecutor advised the court that the State had decided not to pursue Count II of the amended complaint, but that the amendment was nonetheless permissible.

Defense counsel argued that the dismissal did not resolve defendant's contention that the amendment was motivated out of malice or the fact that the addition of Count III alone violated R. 5:20-1(d). Defense counsel conceded, however, that the only difference between Counts I and III was that Count III required proof that the weapon possession occurred on school grounds.

In ruling upon defense counsel's motion, Judge Nieves first found that it was entirely permissible for the Prosecutor's Office to file additional charges in a juvenile matter based upon further review of the case. He noted, however, that based upon the Prosecutor's letter of May 6, 2004, had the Prosecutor not dismissed Count II, his "ruling would be a different ruling based upon [the assistant prosecutor's] letter." The judge was persuaded, however, there was no prejudice to R.O. in permitting Count III to go forward. The judge explained that based upon the language contained in the original complaint, R.O. and his counsel had notice that the possession was alleged to have occurred at R.O.'s school. Additionally, the judge noted that both Count III and Count I were fourth-degree offenses. Finally, the judge reasoned that the trial judge would have the authority to merge the counts at the conclusion of the formal hearing.

Defendant's trial proceeded before another judge. Following his delinquency adjudication, R.O. filed a motion for a new trial before the trial judge, contending Judge Nieves erred when he denied the motion to dismiss the amended complaint and that the denial constituted a violation of due process because "the State cannot take an adverse action against you for exercising that right [to plead not guilty]." Defense counsel argued that the school board had admitted, in the ongoing administrative appeal of R.O.'s school suspension, that there was no basis to think that R.O. intended to harm anyone or anything with the knife.

The judge denied the new trial motion, finding that it was not unusual for complaints to be amended in juvenile cases and that the charges added were not out of the ordinary. For similar reasons, the trial judge denied R.O.'s second motion for a new trial and his motion for reconsideration.

In our view, irrespective of the tone of the Prosecutor's May 6, 2004 letter, the State's subsequent decision to drop Count II eliminated any possibility of prejudice to R.O. as a result of the amended complaint. As noted by Judge Nieves, the remaining Count III, like Count I, alleged a fourth-degree offense. Further, Count III differed from Count I only in that the alleged possession had to have occurred at a school, a circumstance previously noted in the original complaint. Moreover, following Judge Daley's adjudication of delinquency, he dismissed Count I by merging it into Count III. Accordingly, we affirm Judge Nieves' decision refusing to dismiss Count III of the amended complaint.

 
Affirmed.

Defense counsel moved before this court to supplement the record with additional documents obtained as part of an administrative appeal. We reserved decision on the motion until oral argument.

The documents revealed sixty-two incidents of weapons offenses which occurred in twenty-one different elementary and secondary schools over the course of seven years. Of the incidents involving white students, twenty-one were reported to the police, but did not result in a formal complaint. Four incidents were not reported to the police at all. None of the white students were suspended beyond six days. All of the eleven black students involved with weapons offenses were referred to local police, resulting in formal complaints, and all were suspended in excess of six days. The materials on eight incidents were incomplete as to race and/or disposition, and the balance involved either Asian or Hispanic students.

At oral argument, the State revealed that the information caused the Middlesex County Prosecutor's Office to convene a task force to review the matters, and the review concluded that there was no selective enforcement.

While R.O.'s information may, on its face, suggest selective enforcement, there are too many variables contained in the information for this court to conclude that a colorable case of selective enforcement has been established sufficient to warrant reversal of R.O.'s adjudication. For example, none of the sixty-two incidents reported involve R.O.'s school. The police departments where the incidents were reported vary, as do the school districts and municipalities. Accordingly, we deny defendant's motion to supplement the record, as we are persuaded that these claims and the Prosecutor's Task Force review are more appropriately addressed elsewhere.

Rule 5:20-1(d) provides that "[t]he court may amend the complaint to correct an error in form or the description of the offense intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in the defense on the merits."

(continued)

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11

A-1540-05T3

RECORD IMPOUNDED

June 13, 2007