                           RECORD IMPOUNDED

                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0433-14T2

STATE OF NEW JERSEY                         APPROVED FOR PUBLICATION

IN THE INTEREST OF N.H.,                             July 6, 2015

                                                  APPELLATE DIVISION
    A Juvenile.

_____________________________________________

              Argued April 21, 2015 – Decided July 6, 2015

              Before Judges Fisher, Accurso and Manahan.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Essex County, Docket No. FJ-07-2832-14.

              Frank J. Ducoat, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for appellant State of New Jersey
              (Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney; Mr. Ducoat, of counsel
              and on the brief).

              Jacqueline   E.   Turner,   Assistant   Deputy
              Public   Defender,   argued   the  cause   for
              respondent N.H. (Joseph E. Krakora, Public
              Defender, attorney; Ms. Turner, of counsel
              and on the brief).

    The opinion of the court was delivered by

MANAHAN, J.S.C. (temporarily assigned)

    On leave granted, the State appeals an order granting N.H.

"full   and    complete"   discovery   of   the    State's    "entire   file."

N.H. was charged in a juvenile complaint with offenses which, if
committed by an adult, would constitute purposeful and knowing

murder and unlawful possession of a weapon.                      After the complaint

was filed, the State moved to waive jurisdiction pursuant to

N.J.S.A. 2A:4A-26e.            We affirm.

      The    underlying        facts     which    gave    rise    to    the    complaint

involve     a   fistfight        among    high    school     students.           N.H.,    a

participant in the fight, is alleged to have used a handgun

taken    from     a    friend's    waistband      to     shoot   the    decedent      four

times, including a shot to the back of decedent's head.                               N.H.

later admitted to possessing and firing the handgun, but claimed

he shot at the ground.

      In her oral decision on the motion, Judge Wasserman held

that New Jersey's "open discovery" policy per Rule 3:13-3(a) and

the Supreme Court's decision in State ex rel. P.M.P., 200 N.J.

166     (2009),       required    the    State     to    provide       N.H.    with    the

discovery sought.

      On    appeal,      the    State    argues    that    given    the       preliminary

stage of the case as pre-waiver and pre-indictment, N.H. is not

entitled to full and complete discovery.                         Rather, the State

argues required discovery is only that which is exculpatory and

upon which the State will rely to meet its probable cause burden




                                            2                                    A-0433-14T2
at the waiver hearing.           In this, the State would serve as the

arbiter of what discovery was requisite.1

       In opposition, N.H. argues that the right to full discovery

is   triggered     upon   the    filing   of    the   complaint        which     is   the

"functional equivalent" of an indictment.                  N.H. further argues

that the State's position that it may unilaterally determine

what    constitutes       relevant        discovery       is     antithetical          to

controlling decisions of law and "common sense."

       We commence our analysis with that which has been agreed

upon   by   both   parties.       That    is,    neither       the    Juvenile    Code,

N.J.S.A.    2A:4A-20      to    -48,   nor     Part   V   of    the    Court     Rules,

explicitly addresses discovery in juvenile cases.                        In State in

Interest of K.A.W., 104 N.J. 112, 121 (1986), our Supreme Court

noted the "practice" for the provision of discovery:

                 Even though the Juvenile Code contains
            no provision for discovery, the custom
            almost invariable in matters such as this is
            for the State to open its file to the
            juvenile, and hence at no time has there
            been a recommendation from the appropriate
            Supreme Court committee for us to amend our
            Rules to structure discovery procedures in
            juvenile delinquency actions similar to
            those   embodied  in  our   Rules  governing
            criminal practice, Rules 3:13-1 to -4, nor
            does it appear that any question has ever

1
  During oral argument, the State expanded its argument to
include a "flood gate" concern if the State was required to
provide full discovery prior to a waiver hearing.       We reject
this argument as well for the reasons expressed herein.



                                          3                                    A-0433-14T2
             arisen in that regard.      The process         has
             become, commendably, self-regulating.            We
             see no need to intrude at this juncture.

         Given the issue in dispute, we find the "practice," almost

thirty years after K.A.W., is no longer "self-regulating" and

that we are now required to "intrude."            Without our intrusion,

the discovery practice governing juvenile actions may be guided

by   a    prior   disfavored   practice   of   "discovery   by   grace"2   or

discovery provided by the prosecutor although not compelled by

statute, rule or decision.

         In the absence of a specific rule, discovery in juvenile

cases has been guided by resort to the rules that govern the

practice and procedure in adult criminal proceedings.3             Rule 3:1-

1 provides:

                  The rules in Part III govern the
             practice and procedure in all indictable and
             non-indictable proceedings in the Superior
             Court Law Division and, insofar as they are
             applicable, the practice and procedure on
             indictable offenses in all other courts,
             including . . . the practice and procedure
             in juvenile delinquency proceedings in the




2
  For a discussion of this practice see, Stephen A. Saltzburg,
American Criminal Procedure 709 (2nd ed. 1983).
3
   In accord with Rule 3:13-3(b)(1), upon the return of an
indictment, the State is required to provide full and complete
discovery to a defendant named in the indictment within seven
days.




                                     4                              A-0433-14T2
         Chancery Division, Family Part except      as
         otherwise provided for in Part V.[4]

    Where no rule within Part V is applicable, courts have

referred to Part III rules for guidance.    State in Interest of

J.R., 244 N.J. Super. 630, 637-39 (App. Div. 1990) (applying, in

the absence of a Part V rule on point, Rules 3:9-2 (pleas) and

3:21-4(b) (sentence) to a juvenile proceeding).

4
  Prior to December 1983, R. 3:1-1 stated specifically that the
rules in Part III governed "the practice and procedure on
indictable offenses in all other courts except in juvenile
delinquency and criminal proceedings in the juvenile and
domestic relations court which are otherwise expressly provided
for in Part V."     R. 3:3-1 (1982) (emphasis added). So, in
practice, the former excluded application of the Part III
discovery rules in juvenile court and left it to be "self-
regulating."

As of December 1983, Rule 3:1-1 was amended to the current
language that specifically states that the Part III discovery
rules apply in juvenile proceedings in the family part. Judge
Pressler's comment on the 1983 change was: "[t]he amendment . . .
makes clear that the trial of juvenile delinquency actions are
governed by Part III rules to the extent not otherwise provided
by Part V rules.    The Part III rules also are applicable to
criminal actions tried in the Family Part." Pressler, Current
N.J. Court Rules, Special Supplement, Family Part, Special Civil
Part, comment on R. 3:1-1 (1984).

In the comments to the 1985 Rules, Judge Pressler noted that the
new rule was directly contrary to the previous source rule.
Pressler, Current N.J. Court Rules, comment on R. 3:1-1 (1984).
Judge Pressler also observed that juvenile proceedings had
"become   increasingly   subject   to    'adult'   due   process
requirements," and as such, "it was clearly practicable to
effect as close a conformance as possible in the practice in
adult and juvenile actions."     Pressler, Current N.J. Court
Rules, comment on R. 3:1-1 (1984).     The juvenile courts were
abolished in 1983.




                                5                        A-0433-14T2
       The core of the State's argument in support of limited

discovery is that the waiver hearing with its less demanding

burden of persuasion of "probable cause" requires the provision

of   only   that   discovery   deemed      relevant    for    the   juvenile   to

defend the State's application.            The argument is also premised

on the proposition that in "preliminary" proceedings the State

may arrogate to itself the role of "architect of discovery."                    We

disagree.

      The safeguards implicated by provision of full discovery to

N.H. after the complaint was filed are not abrogated because a

determination is pending whether the case should be transferred

to adult court per N.J.S.A. 2A:4A-26.                 This is so since the

critical    and    significant   consequences         which    flow   from     the

complaint    alone,   filed    prior    to    the     prosecutor's    referral,

implicate potential substantial deprivation of N.H.'s personal

liberty.     Should N.H. be adjudicated delinquent on the charges

in the complaint, he is subject to twenty years' incarceration

on the murder charge, N.J.S.A. 2A:4A-44d(1)(a), and three years'

incarceration on the possession of a weapon charge.                    N.J.S.A.

2A:4A-44d(1)(d).5




5
  Should N.H. be extended term eligible he could be subject to an
additional five years. N.J.S.A. 2A:4A-44d(3).



                                       6                                A-0433-14T2
       As the judge noted in her decision, our Supreme Court has

explicitly     addressed       the    complaint's          critical       stage    in     the

juvenile     process    albeit       on   the    issue      of    when    the     right   to

counsel attached in P.M.P., supra, 200 N.J. at 166.                             In P.M.P.,

the    Court   held     "when       the   Prosecutor's           Office    initiates        a

juvenile     complaint       and    obtains     a    judicially        approved     arrest

warrant, a critical stage in the proceeding has been reached,

implicating the juvenile's statutory right to counsel."                             Id. at

178.     As P.M.P. noted "when the Prosecutor's Office files a

juvenile complaint, it already                  has determined that it has a

prima facie case against the defendant.                       Consequently, because

the juvenile does not have the right to indictment, the filing

of the complaint . . . takes on added significance."                                Id. at

177.    Here, as in P.M.P., the complaints were signed under oath

by a detective from the Essex County Prosecutor's Office.

       The   standard    for       determining       the    provision      of    discovery

must    take    into     consideration          the        guiding     principle         that

"liberal" discovery is the rule and that "limited" discovery is

the exception.         See, e.g., Jenkins v. Rainner, 69 N.J. 50, 56

(1976) (discussing "the tide flowing toward a wider scope of

discovery.").         Full    discovery        at    the    earliest      stage     in    the

proceedings     promotes       fairness        for    both       the   juvenile      facing

charges and the State.             See State in Interest of A.B., 219 N.J.




                                           7                                       A-0433-14T2
542,    555-56   (2014);      see     also   R.   3:13-3(b)(2)   (providing        for

discovery by the State).

       In reaching our decision we do not suggest or comment on

the wisdom of an amendment to the Juvenile Code or to the Court

Rules    to   provide      for      discovery     procedures     in    a     juvenile

delinquency      action.         We     leave     that   determination       to    the

legislature      and    the      appropriate       Supreme     Court       committee.

Rather, we have "intruded" on the existing "practice" to confirm

a juvenile's right to full discovery at a critical stage in the

proceeding; a right which vests upon the filing of the juvenile

complaint.

       Affirmed.




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