STATE OF NEW JERSEY IN THE INTEREST OF A.S.

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NOT FOR PUBLICATION WITHOUT THE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 A.S.

___________________________

June 15, 2015

Submitted November 6, 2014 Decided

Before Judges Waugh and Maven.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FJ-05-47-13.

Joseph E. Krakora, Public Defender, attorney for appellant A.S. (Mark P. Stalford, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent State of New Jersey (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A.S. (Albert)1 appeals the Family Part's May 21, 2013 order amending the order of disposition in this juvenile matter to impose fines and penalties. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Albert was a resident of Pennsylvania during the time period relevant to this appeal. He was born in November 1994 and was seventeen years old at the time of his arrest in Ocean City on May 25, 2012. Albert was subsequently charged with offenses that, if committed by an adult, would have been third-degree burglary, N.J.S.A. 2C:18-2(a)(1), third-degree theft, N.J.S.A. 2C:20-3(a), and third-degree conspiracy, N.J.S.A. 2C:5-2(a), all committed in Cape May County.

After his arrest, the State sought to determine whether Albert had any juvenile violations in Pennsylvania. On July 19, the Montgomery County Juvenile Probation Department reported that it had no records concerning Albert. The State also determined that he had no prior juvenile involvement in New Jersey.

Following plea discussions between the State and Albert's attorney, Albert accepted a plea offer from the State. On October 23, he pled guilty to an amended charge of what would be fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a), if committed by an adult. In return, the State agreed to a six-month deferred disposition pursuant to N.J.S.A. 2A:4A-43(b)(1), with the charges to be dismissed in six months if there were no further violations. Albert waived preparation of a predisposition report and the judge entered the order of disposition in accordance with the plea agreement that day. At the time the plea was entered, both the prosecutor and defense counsel noted that the agreement was based on his age and the fact that Albert had no other juvenile involvement in New Jersey and Pennsylvania. The judge entered the order of disposition with the same understanding.

In March 2013, the Montgomery County Juvenile Probation Department notified the State that Albert was involved in a motor vehicle accident in Pennsylvania on July 4, 2012, and consequently charged with aggravated assault, terroristic threats, criminal mischief, driving under the influence, and underage drinking. On July 23, 2012, Albert pled guilty in Pennsylvania and was sentenced to electronic in-home detention, probation, community service, a curfew, and $10,000 in restitution.

The State notified defense counsel, and requested that the judge reopen the case. The judge scheduled a proceeding for April 16, but Albert failed to appear. The State moved to reopen on April 26, seeking either to amend the disposition or revoke the plea. On May 21, the judge granted the State's motion. Although he did not disturb the plea, the judge imposed the fines and penalties that would have been assessed had the disposition been probation based on conduct amounting to a fourth-degree offense. This appeal followed.

II.

Albert raises the following issues

POINT I: MODIFYING THE JUVENILE'S DISPOSITION VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE U.S. CONST. AMENDS V AND XIV; AND N.J. CONST. ART. I 11.

POINT II: THE COURT ERRED IN GRANTING THE STATE'S MOTION TO AMEND THE DISPOSITION TO AN ADJUDICATION OF DELINQUENCY FROM A DEFERRED DISPOSITION.

Albert argues that, because the term of the deferred disposition ended on April 22, 2013, the case had been dismissed under the terms of the initial disposition order prior to the filing of the State's motion to reopen on April 26. He also contends that the imposition of penalties violated the double jeopardy provisions of the United States and the New Jersey Constitutions.

The Family Part exercises "exclusive jurisdiction in all cases where it is charged that a juvenile has committed an act of delinquency . . . ." N.J.S.A. 2A:4A-24(a); State in the Interest of C.V., 201 N.J. 281, 295 (2010). New Jersey's Code of Juvenile Justice (Code), N.J.S.A. 2A:4A-20 to -48, authorizes a Family Part judge to enter a range of dispositions consistent with its "rehabilitative goals." N.J.S.A. 2A:4A-43(b); C.V., supra, 201 N.J. at 295; State in the Interest of J.L.A., 136 N.J. 370, 376-77 (1994). A deferred disposition is one of the available dispositions. N.J.S.A. 2A:4A-43(b)(1).

Whatever disposition is made, the Family Part retains jurisdiction over the case during the period of the dispositional term. R. 5:24-5; State ex. rel. R.M., 141 N.J. 434, 453 (1995). The Family Part also retains the authority "to correct, change or modify an order of disposition at any time pursuant to law." R. 5:24-6; R.M., supra, 141 N.J. at 453.

The juvenile's "previous record" is one of the factors that must be weighed by the judge in determining a disposition. N.J.S.A. 2A:4A-43(a)(3). At the plea hearing, both Albert's attorney and the prosecutor told the judge that one basis for the plea offer involving a six-month deferred disposition was Albert's lack of prior criminal involvement. It is equally clear that the judge based his decision to accept the recommendation and impose the deferred disposition on his understanding that Albert had no prior criminal involvement. At the time Albert was present in court, he knew his Pennsylvania charges had already been adjudicated. Although he was not asked to verify the fact that he had no prior criminal involvement, he knew that the deferred disposition was based on inaccurate information.

Though the State's formal motion to modify the disposition or vacate the plea was not filed until after the expiration of the six-month dispositional period, the judge in fact reopened the case by scheduling a proceeding for April 16, 2013. The judge was unable to proceed that day because Albert did not attend. Inasmuch as the case had been reopened by the judge prior to the expiration of the dispositional term, we determine that the matter was still pending and had not been dismissed when the amended dispositional order was entered on May 21.

We also find no merit in Albert's double jeopardy argument. In State v. Martinez, 387 N.J. Super. 129, 142-43 (App. Div.), certif. denied, 188 N.J. 579 (2006), we observed that

[b]oth the Fifth Amendment to the Federal Constitution, and Article I, paragraph 11 of the New Jersey Constitution have been interpreted to provide three forms of constitutional protection: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against the second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense.

We also noted that, "[i]n the context of multiple prosecutions, [our Supreme] Court has held that the State Constitution provides the same and no greater protection than that of the federal double jeopardy clause." Id. at 144.

Albert was not prosecuted twice for the same offense, because the charges had not been dismissed for the reasons stated above. Based on his knowledge that the deferred disposition was based on the judge's incorrect belief that he had no other criminal involvement, Albert had no "legitimate expectation regarding the finality of his sentence." State v. Towey, 244 N.J. Super. 582, 597 (App. Div.) (citing United States v. DiFrancesco, 449 U.S. 117, 136, 101 S. Ct. 426, 437, 66 L. Ed. 2d 328 (1980)), certif. denied, 122 N.J. 159 (1990).

Affirmed.

1 We use a pseudonym in this case for the purpose of confidentiality.