PHILLIP A. DIXON VS. NEW JERSEY DEPARTMENT OF CORRECTIONSÂ (NEW JERSEY DEPARTMENT OF CORRECTIONS)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1491-15T3
STATE OF NEW JERSEY IN THE
INTEREST OF I.T., a minor.
________________________________________________________________
Submitted February 14, 2017 – Decided March 7, 2017
Before Judges Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FJ-02-88-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison Perrone, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Senior Assistant Prosecutor, of counsel and
on the brief; Matthew Fitzpatrick, Assistant
Prosecutor, on the brief).
PER CURIAM
In this appeal from an order adjudicating a juvenile
delinquent and requiring restitution, the juvenile argues that the
court deprived him of his right to counsel. We disagree and
affirm.
In June 2014, then thirteen-year-old I.T. was charged with
conduct that, if he were adjudicated as an adult, would constitute
fourth-degree theft, N.J.S.A. 2C:20-3.1 I.T. appeared without
counsel before a hearing officer who determined that the State's
evidence proved beyond a reasonable doubt that I.T. committed the
charged act. The hearing officer recommended that I.T.'s sentence
be postponed so he could complete a six-month period of adjustment
(POA) and make restitution. I.T.'s mother, who attended the
hearing, disagreed with the recommendation and asked for review
by the judge assigned to the matter.
In accordance with I.T.'s mother's request, the matter was
referred to a Family Part judge and scheduled for an informal
hearing to be held on November 18, 2014. I.T. was not represented
by counsel nor did a prosecutor appear on behalf of the State. A
sergeant for the local police department involved with the matter
began his presentation by stating that it was "made clear to the
juvenile and his family that no punitive measures were being
sought." After the judge considered the testimony presented at
the hearing, he found that the State proved beyond a reasonable
doubt that I.T. committed the charged act, but postponed
disposition to allow for a one-year POA. The order of disposition
1
The facts surrounding the theft are not germane to our
consideration of I.T.'s appeal.
2 A-1491-15T3
entered by the judge required I.T. to make restitution in the
amount of $675, find and maintain employment, and have no contact
with his victim. The order further stated that "compliance with
the conditions of the [o]rder will result in the matter being
dismissed on November 18, 2015 . . . ."
By October 2015, I.T. had yet to make restitution. The trial
court re-listed the matter for November 10, 2015, before the same
judge for a hearing. The order scheduling the hearing advised
that the matter was now listed on the court's "formal" calendar
and that I.T. "must be represented by an attorney."
I.T. appeared at the hearing with counsel. His attorney made
an application for a new trial at which I.T. could be represented
by counsel. After considering the parties' arguments, the judge
denied I.T.'s motion, converted the POA to an adjudication without
committing I.T. or imposing any period of supervisory probation.
The judge entered an order of disposition that stated,
"adjudication of delinquency based on [I.T.'s] failure to pay
court ordered restitution" and required restitution be paid within
thirty days or the restitution amount would be reduced to a civil
judgment.
This appeal followed.
On appeal, I.T. contends that his "adjudication of
delinquency must be reversed and the matter remanded for a new
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hearing at which [he] is represented by counsel." The State
disagrees and contends that I.T. did not have a "right to the
assistance of counsel at an informal hearing where [he did] not
face commitment or a consequence of magnitude as a potential
disposition."
We conclude that the juvenile's argument in this case is
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add only the following brief
comments.
A child charged with conduct, which if committed by an adult
would be a crime, is entitled to counsel "at every critical stage
in the proceeding which, in the opinion of the court may result
in the institutional commitment of the juvenile." N.J.S.A. 2A:4A-
39(a). See also State ex rel. P.M.P., 200 N.J. 166, 175-76 (2009)
(citing In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 1451, 18 L.
Ed. 2d 527, 554 (1967)); Pressler & Verniero, Current N.J. Court
Rules, comment 2.2 to R. 5:3-4 (2017) (a juvenile is entitled to
counsel when he is facing "the potential for institutional
commitment or other consequence of magnitude").
Here, I.T. appeared before the hearing officer and the judge
initially in informal proceedings where he was not facing the
possibility of commitment or any other consequence of magnitude.
A hearing officer cannot recommend incarceration or other
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consequence of magnitude, see N.J.S.A. 2A:4A-74(d)(4); State ex
rel. L.R., 382 N.J. Super. 605, 620 (App. Div. 2006), certif.
denied, 189 N.J. 642 (2007), and "[u]nder our rules the juvenile
may not be committed if his case is on the informal calendar"
before a judge. State v. W., 115 N.J. Super. 286, 300 (App. Div.
1971) (citing State v. Interest of G.J., 108 N.J. Super. 186 (App.
Div. 1969), certif. denied, 55 N.J. 447 (1970)), aff'd o.b., State
v. R.W., 61 N.J. 118 (1972). "[A]bsence of counsel at the previous
[informal] hearings [was] harmless beyond a reasonable doubt,"
G.J., supra, 108 N.J. Super. at 188, because I.T. was required to
pay restitution only. He did not suffer a consequence of magnitude
based on a finding following an uncounseled informal hearing.
Affirmed.
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