State in Interest of J.S.

Citation642 A.2d 430,273 N.J.Super. 450
PartiesSTATE of New Jersey in the Interest of J.S., a Juvenile.
Decision Date10 February 1994
CourtSuperior Court of New Jersey
OPINION

BATTEN, J.S.C.

This matter comes before this court, upon stipulated facts and consent of all counsel, for summary disposition as to an issue yet to be decided by any reported opinions in this state: specifically, does the September 30, 1993 pre-dispositional retraction of prior sworn testimony by the juvenile at the August 26, 1993 plea of guilt to a charge of burglary (FJ-05-657-94d) occur "... in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter," and, as such, fall within the statutory definition of retraction as contained in N.J.S.A. 2C:28-1(d)? The facts, as stipulated by counsel, are these:

FACTS

1. On 5/19/93, Robinson's Farm Market in the Villas section of Lower Township was burglarized; cash and cigarettes of a value in excess of $500.00 were stolen;

2. On 5/28/93, the juvenile, J.S., gave a taped statement to the Lower Township Police Department, admitting his involvement in the burglary and implicating Michael, Albert and Fred Hamilton as being involved with him during the commission of the crime;

3. On 6/2/93, complaints were filed against the Hamiltons and J.S. by Lower Township Police, charging all four with burglary and theft;

4. On 7/21/93, Indictment 93-07-00267 was returned against Michael, Albert and Fred Hamilton, charging them with the burglary of Robinson's Farm Market;

5. On 8/13/93, Michael Hamilton entered a guilty plea to indictment 93-07-00267 as well as other unrelated indictments;

6. On 8/26/93, J.S. (then represented by Public Defender Jesse Deane in the absence of his regularly assigned attorney, Deputy Public Defender Timothy D. Gorny), pled guilty to the May 19, 1993 burglary and implicated, while under oath, Michael, Albert and Fred Hamilton as participants in this offense;

7. On 9/2/93, J.S. advised Public Defender Gorny that, in fact, only Michael Hamilton was with him at the time of the burglary and that Albert and Fred Hamilton were not involved. He further stated that he had implicated Albert and Fred because he felt that if he did not, the police would take him to jail;

8. On 9/3/93, Public Defender Gorney contacted Assistant Prosecutor Barbara Bakley and informed her of J.S.'s intention to retract his earlier statement as it pertained to Albert and Fred Hamilton 9. On 9/16/93, J.S. appeared before this court and, through counsel, indicated that he wished to retract, prior to sentencing, his earlier statements involving Albert and Fred Hamilton. At that time, due to Prosecutor Bakley's unavailability, the retraction was continued to the next court date;

10. On 9/30/93, J.S. formally, while under oath, retracted his prior statement implicating Albert and Fred Hamilton. He affirmed, however, his intention to adhere to his guilty plea and he reaffirmed the involvement of Michael Hamilton in the crime;

11. On 10/5/93, indictment 93-07-00267, as it pertained to Fred Hamilton, was dismissed (other unrelated charges against Fred Hamilton were still pending prosecution);

12. On 10/5/93, the Lower Township Police Department filed Complaint # FJ-05-657-94D, charging J.S. with perjury, pursuant to N.J.S.A. 2C:28-1, and unsworn falsification to authorities, pursuant to N.J.S.A. 2C:28-3;

13. On 10/15/93, Michael Hamilton was sentenced for his role in the Robinson burglary, as well as the other offenses to which he plead guilty;

14. On 10/18/93, Albert Hamilton plead guilty to an unrelated offense and, due to the retraction by J.S., Indictment 93-07-00267 was dismissed;

15. On January 13, 1994, the Court entered a finding of guilt against J.S. as to the charge of unsworn falsification to authorities as defined in N.J.S.A. 2C:28-3; as to the remaining charge of perjury, the court entertained oral argument and reserved decision specifically on the heretofore undecided issue: "Does the attempted retraction, offered subsequent to a plea of guilty yet prior to disposition of the juvenile (or, by analogy, prior to sentencing of a defendant) occur within the same 'proceeding or matter in which it was made prior to the termination of the proceeding or matter'?" N.J.S.A. 2C:28-1(d).

DECISION

The affirmative defense of retraction is defined, per N.J.S.A. 2C:28-1(d) as follows: "It is an affirmative defense under this section that the actor retracted the falsification in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter without having caused irreparable harm to any party." In a general sense, retraction can only occur in the same "proceeding or matter" in which the perjurious comments were offered and only then in the absence of irreparable harm to any party thereto. Here, the State argues that the attempted retraction occurred subsequent to entry of the plea of guilt to the charge of burglary and, as such, was not offered "... in the course of the proceeding or matter in which it was made." N.J.S.A. 2C:28-1(d); the retraction thus being untimely, the affirmative defense is not available to the juvenile now charged with perjury. The defense, on the other hand, argues in favor of a more comprehensive interpretation of the phrase, "proceeding or matter", asserting the attempted retraction to have been offered prior to disposition (i.e., sentencing) and, as such, "in the course of the proceeding or matter in which it was made"; the retraction thus being timely, the affirmative defense of retraction precludes prosecution of the juvenile for perjury per N.J.S.A. 2C:28-1. To decide this issue, the court must interpret, for the first time, the scope of the phrase, "proceeding or matter", generally, and the terms, "proceeding" and "matter," specifically.

Counsel for the defendant argues, correctly, that the terminology utilized in the statute is "capable of two interpretations." Defense counsel argues that the "proceeding" of September 30, 1993 (scheduled specially for purposes of the retraction of prior testimony that wrongly incriminated other defendants) was yet "the proceeding or matter in which it was made" as contemplated by N.J.S.A. 2C:28-1(d) and, as such, avails the defendant of the affirmative defense of retraction in this perjury prosecution. In support of this position, the defense cites the definition of "proceeding" as contained in Black's Law Dictionary 1083 (5th ed. 1979):

The word may be used synonymously with "action" or "suit" to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing of the complaint until the entry of a final judgment, or may be used to describe any act done by authority of a court of law and every step required to be taken in any cause by either party. The proceedings of a suit embrace all matters that occur in its progress judicially.

Defense counsel also cites the Model Jury Charge for "official proceeding," noting its similar interpretation:

The term official proceeding is defined as a proceeding heard or which may be heard before any legislative, judicial, administrative or other governmental agency or official authorized to take evidence, under oath, including any referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceeding. The term official proceeding is intended to include any type of proceeding where the taking of testimony under oath is authorized.

Defense counsel notes, in his brief, however, that: "... once again, the term proceeding or matter is left open as to whether it deals with one particular judicial event on one day or whether it deals with the case or proceeding taken as a whole from start to ultimate conclusion." That ambiguity, argues to the defense, should be resolved consistent with the 1971 commentary to N.J.S.A. 2C:28-1(d):

"Those who do recognize the defense do so in the hope of providing an incentive for the witness to correct his misstatement and tell the truth before the end of the proceeding [emphasis added]."

The State, on the other hand, argues in support of the more narrow interpretation of the term "proceeding or matter," asserting its position that the failure of the juvenile to retract his false statement on August 26th, 1993 (the date the statements were made), or, if not on the same day, at least within the same procedural setting (i.e., the entry of a plea), a fortiori renders any subsequent occasion of attempted retraction a new or different "proceeding or matter," thus denying the defendant the affirmative defense of retraction. N.J.S.A. 2C:28-1(d). The State cites State v. Bielecki, 196 N.J.Super. 332, 482 A.2d 527 (App.Div.1984) as authority for this position. In this decision, however, the Appellate Division did not address the precise issue presently before this court. On the contrary, the court in Bielecki, supra. "affirm[ed] for the reasons stated by Judge Muir and our additional rejection of the several grounds on appeal." 196 N.J.Super. 332, 336, 482 A.2d 527. The only portion of the trial court opinion thereupon noted was Judge Muir's conclusion that "It would be incongruous [sic] to suggest that a public official, a Chief of Police, a person who is sworn to uphold the law, the Chief law enforcement officer of Mount Olive Township, can admit to perjury, recant it and then be immune from any kind of sanction." Id. at 335, 482 A.2d 527.

That holding by Judge Muir did not pertain, however, to the interpretation of "proceeding or matter" within the context of N.J.S.A. 2C:28-1(d) or the application of that phrase and its legislative intendment to the adjudication of the timeliness of attempted retractions. On the...

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