The court granted the State's motion for leave to appeal in these four appeals involving seven juveniles, all charged with crimes or disorderly persons offenses under Title 35 and 36 of the Criminal Code. N.J.S.A. 2A:4A-71(b) provides such complaints "shall be referred for court action, unless the prosecutor otherwise consents to diversion." When the complaints were screened by intake services, the prosecutor did not consent.
In two of the appeals, the Family Part judge, without notice or hearing, diverted complaints charging the juveniles with criminal offenses, concluding that N.J.S.A. 2A:4A-73(a), vested the judge, not the prosecutor, with discretion to divert any juvenile complaint. The court reversed, noting that Rule 5:20-1(c) provides complaints charging juveniles with crimes "shall not be diverted unless the prosecutor consents thereto."
In the other two appeals, the juveniles were charged with disorderly persons offenses under Title 35 and 36 of the Criminal Code. In one of the appeals, the judge diverted the case without any hearing. The court reversed.
In the other appeal, the judge held a hearing, noted the prosecutor's objection and ordered diversion. The court affirmed, concluding that although the failure to include these offenses within the scope of Rule 5:20-1(c) may have been inadvertent, the plain language of the Rule did not limit the judge's discretion to divert the complaints over the State's objection. The court referred the opinion to the Committee on Practice in the Family Part for consideration.