Opinion
DOCKET NO. A-4724-12T4
03-04-2014
STATE OF NEW JERSEY IN THE INTEREST OF J.S., A Juvenile.
Lon C. Taylor, Assistant Deputy Public Defender, argued the cause for appellant J.S. (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief). Joseph D. Rutala, Assistant Prosecutor, argued the cause for respondent State of New Jersey (John T. Lenahan, Salem County Prosecutor, attorney; Mr. Rutala, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Indictment Nos. FJ-17-665-08, FJ-17-599-08, FJ-17-600-08, FJ-17-624-08.
Lon C. Taylor, Assistant Deputy Public Defender, argued the cause for appellant J.S. (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).
Joseph D. Rutala, Assistant Prosecutor, argued the cause for respondent State of New Jersey (John T. Lenahan, Salem County Prosecutor, attorney; Mr. Rutala, on the brief). PER CURIAM
In this appeal, J.S. appeals the February 28, 2013 Family Part order denying his motion to recall his transfer from the Juvenile Justice Commission (JCC) to the Department of Corrections (DOC). We affirm.
In 2008, J.S. pled guilty to offenses which, if committed by an adult, constitute three counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a). Judge Benjamin C. Telsey, the Family Part judge presiding over the proceedings, imposed a final disposition committing J.S. to the custody of the JCC for six years. J.S. was seventeen years old at the time of his commitment, meaning that if he served the entire six-year sentence, he would be released sometime in 2014, at age twenty-three. However, in May 2009, after he turned eighteen years old, the JCC transferred J.S. to the DOC, which, in turn, assigned him to the Adult Diagnostic Treatment Center (ADTC). The transfer occurred without any hearing or legal representation on behalf of J.S.
While committed to the ADTC, J.S. participated in a sex offender treatment program, until that program was interrupted by our decision in Williams v. N.J. Dep't of Corr., 423, N.J. Super. 176, 189 (App. Div. 2011). In Williams we held the DOC Commissioner exceeded his authority under N.J.S.A. 30:4—91.2 and the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, when he housed inmates in the ADTC who were ineligible for such confinement under J.S.A. 2C:47—3(h)(3). In response to this decision, the ADTC separated out those inmates assigned to the facility pursuant to the SOA from those who were sent to the ADTC to complete their sentences because they had a sex offense history. This resulted in the cessation of services to J.S.
On June 5, 2012, J.S. filed a pro se motion seeking resentencing pursuant to the SOA. After he was assigned counsel, he withdrew his earlier motion and instead filed a motion seeking recall of his earlier transfer from the JCC to the DOC. J.S. alleged the transfer was unconstitutional.
Judge Telsey conducted oral argument and agreed that J.S.'s transfer was improper because the transfer was accomplished without a hearing, violating J.S.'s right to due process. The judge concluded, however, that the Family Part lacked jurisdiction to address the transfer issue, which the judge found was an issue over which the administrative agency had exclusive jurisdiction.
The judge determined, however, the Family Part had jurisdiction to consider J.S.'s claim that he was no longer receiving adequate rehabilitative services. The judge conducted a two-day plenary hearing after which he denied J.S.'s motion to recall his transfer based upon the inadequacy of the rehabilitative services. The present appeal followed.
The sole issue J.S. raises on appeal is that the Family Part judge had jurisdiction to remedy his improper transfer from the JCC to the ADTC. We disagree.
The Family Part of the Superior Court 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 ex rel. C.V., 201 N.J. 281, 295 (2010). The N.J. Code of Juvenile Justice (Code), N.J.S.A. 2A:4A—20 to —48, authorizes a Family Part judge "to enter dispositions that comport with the Code's rehabilitative goals." C.V., supra, 201 N.J. at 295; State ex rel. J.L.A., 136 N.J. 370, 376—77 (1994). The Code authorizes a Family Part judge numerous options to fashion an appropriate disposition, N.J.S.A. 2A:4A—43(b), and provides guidance for judges considering incarceration as an appropriate disposition, N.J.S.A. 2A:4A—44.
See, however, State v. R.G.D., 108 N.J. 1, 8 (1987), where the Court noted that "[p]ublic concern about unrehabilitated juvenile offenders [has] stimulated a 'just des[s]erts' approach to the juvenile justice system."
The Family Part judge also retains jurisdiction in any delinquency matter to change or modify a disposition at any time by way of a recall hearing. State ex rel. R.M., 141 N.J. 434, 453 (1995); see R. 5:24—3, —5, and —6; N.J.S.A. 2A:4A—43 and —44. This would include any challenge to the adequacy of the rehabilitative goals of the disposition. C.V., supra, 201 N.J. at 295.
Once, however, a Family Part judge determines that a juvenile requires incarceration and commits that juvenile to the care, custody and control of the JJC, the Family Part judge has no authority to direct the conditions of a juvenile's confinement, such as the facility to which the juvenile should be assigned, the level of restrictions or privileges given to a juvenile, or oversight of sanctions imposed on a juvenile for conduct in the assigned facility. Cf. Breeder v. N.J. Dep't of Corrs., 132 N.J. 457, 469 (1993) (explaining sentencing is a "judicial function" and "the [Department of Corrections] fulfills the executive function of administering a system of imprisonment").
Here, Judge Telsey fashioned a disposition committing J.S. to the custody of the JCC. In that regard, he performed a judicial function. See C.V., supra, 201 N.J. at 295—96, (discussing the authority reposed in Family Part judges to fashion an appropriate response to delinquent behavior). If for example, J.S. demonstrated that he had not been rehabilitated, or as J.S. alleged, he was not being afforded adequate rehabilitative services, Judge Telsey retained jurisdiction to recall J.S. and modify the disposition. N.J.S.A. 2A:14A—45. This is a wholly different function than oversight of the place and terms of confinement.
Oversight of the terms and conditions of placement is not a dispositional concern and is not within the jurisdiction of a Family Part judge. As we most recently stated:
Once the decision to incarcerate has been made, the decision with respect to the appropriate place for incarceration is within the authority and expertise of the JJC. N.J.S.A. 2A:4A-44(d)(1) (JJC "shall provide for the juvenile's placement in a suitable juvenile facility."). Consequently, that body should make the final decision, with the concurrence of the DOC commissioner as required by N.J.S.A. 52:17B-175(e), after conducting the required hearing directly or through a hearing officer.Consequently, having determined that incarceration was the proper disposition, the place of confinement and the day-to-day issues that arise during J.S.'s confinement, no matter the magnitude of those issues, are not a concern that affects the fundamental decision of whether the needs of the juvenile and the public require incarceration. Ibid.
[State ex. rel. J.J., 427 N.J. Super. 541, 557 (App. Div. 2012).]
We do not by our decision suggest that J.S. is without a remedy to challenge his due process violation claims associated with his transfer. He may avail himself of administrative remedies. Upon exhaustion of those remedies, J.S., if not satisfied with the outcome, may pursue review of the agency action through the appellate review process. We simply hold that the Family Part judge does not have the authority under the guise of a recall motion to address whether the transfer from the JCC to the ADTC violated his constitutional rights of due process.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION