Opinion
DOCKET NO. A-3090-14T3
11-02-2015
STATE OF NEW JERSEY IN THE INTEREST OF T.L.
James P. McClain, Atlantic County Prosecutor, attorney for appellant State of New Jersey (Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent T.L. (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-0510-15. James P. McClain, Atlantic County Prosecutor, attorney for appellant State of New Jersey (Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent T.L. (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
T.L., a juvenile, was charged in an Atlantic County juvenile complaint with acts that, if committed by an adult, would constitute fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1), and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(1). The complaint alleged that defendant slammed his mother's arm in a microwave causing redness and swelling, punched and broke the microwave door, threw and broke his mother's cell phone, and caused other damage to their home. The complaint was signed by a Galloway Township police officer. A separate charge of disorderly conduct against a police officer was also filed against defendant.
A copy of this complaint is not included in the parties' appendices although it is referred to in the briefs and transcripts.
The Family Part held a hearing on the charges on January 29, 2015. T.L.'s mother, T.R., advised the court that she was unable to afford a private attorney for her son, and that she was "not going to qualify for a public defender . . . [and] [n]ot only that, I'm the victim." T.R. also stated: "I spoke to the prosecutor about dismissing the charges two weeks ago when I was here last, and she told me on the phone that I didn't have to get an attorney."
The prosecutor expressed concern that T.R. might be required to bear the cost of her son's legal representation even though she was the victim of his unlawful conduct. The court noted that, in any event, there was another charge involving a separate victim "that needs to be adjudicated and [T.L.] needs representation on that as well." The judge then "appoint[ed] the public defender" to represent T.L. on the charges.
At a pre-trial conference on February 12, 2015, at which assigned counsel appeared for T.L., T.R. again told the court that she did not wish to pursue the case against her son. The court advised T.R. that, because she had not signed the complaint, she was not in a position to dismiss it. The State indicated that it required additional time as it was still evaluating its position on the legal fee issue. The court acceded to the State's request and re-listed the matter for a final pre-trial conference.
At the next hearing on February 19, 2015 the prosecutor announced that
the State is not in a position to dismiss the charges. However, if the [c]ourt is to set either a trial date or a pretrial conference date, the case may very well be resolved prior to that date. And if it's not necessary for either the victim or the juvenile to . . . return [], I would so advise the [c]ourt and the defendant and his mother as well.The prosecutor then candidly conceded that the State could not proceed on the two charges involving T.R. without her testimony. The court confirmed that T.R. did not wish to testify against her son, and, when questioned under oath, T.R. stated that no one forced, coerced, or threatened her not to testify. Consequently, the court dismissed those charges on the basis that the State could not prove them beyond a reasonable doubt. The court then scheduled further proceedings on the remaining disorderly conduct complaint involving the police victim.
The ultimate resolution of this charge cannot be ascertained from the record and is not the subject of this appeal. --------
On appeal, the State does not argue that the court improperly dismissed the charges. Nor does it seek to vacate the February 19, 2015 dismissal order or request reinstatement of the dismissed charges against T.L. Rather, "the State asks this court to declare the Public Defender's practice of requiring reimbursement under N.J.S.A. 2A:158A-16 and N.J.S.A. 2A:158A-25 unconstitutional and also contrary to the Rules of Professional Conduct [(RPCs)]."
The State's sole request for relief suffers from several fundamental flaws. First, although the State seeks to declare the Public Defender's fee "practice" invalid, the Office of the Public Defender is not a party to this appeal, nor has it sought leave to intervene. Second, although the prosecutor stated that she was "still consulting with [her] superiors regarding the mother's position as a victim to be required to pay for the juvenile's [] legal fees," the State never formally requested such relief in the trial court. Importantly, it also never advanced any argument before the trial court that the Public Defender's "practice" in such matters was unconstitutional or created a "non-waivable conflict of interest" under the RPCs. Moreover, rather than simply being a "policy" or "practice," the Office of the Public Defender is mandated by statute to seek reimbursement. See N.J.S.A. 2A:158A-16; N.J.S.A. 2A:158A-25.
Although an appellate court may consider allegations of error not brought to the trial judge's attention, it need not do so. Generally, unless such an issue (even a constitutional issue) goes to the jurisdiction of the trial court or concerns matters of substantial public interest, the appellate court will not consider it. State v. Robinson, 200 N.J. 1, 20-22 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2015). "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).
Further hampering our review is the fact that the record with respect to the Public Defender's fee "practice" when confronted with parents of juveniles who are themselves victims of the child's delinquent acts is sparse and not fully developed. For these reasons, we decline to entertain the State's requested relief. Parenthetically, we note that the court acted correctly in appointing counsel to represent T.L., who also faced separate charges filed by the police victim. Further, in opting not to testify against her son even after counsel was appointed, T.R. gave no indication that the fee issue played any role.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION