State ex rel. S.S.

640 A.2d 1189, 273 N.J. Super. 31, 1994 N.J. Super. LEXIS 224
CourtNew Jersey Superior Court Appellate Division
DecidedMay 5, 1994
StatusPublished
Cited by2 cases

This text of 640 A.2d 1189 (State ex rel. S.S.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. S.S., 640 A.2d 1189, 273 N.J. Super. 31, 1994 N.J. Super. LEXIS 224 (N.J. Ct. App. 1994).

Opinion

The opinion of the court was delivered by

GAULKIN, P.J.A.D.

The issue here is whether N.J.S.A 2A:4A-61, a provision of the New Jersey Code of Juvenile Justice adopted in 1982, allows or prohibits the fingerprinting of a juvenile 14 years of age or older charged with delinquency on the basis of an act, which, if committed by an adult, would constitute a crime. We hold that the statute authorizes such fingerprinting.

On April 23, 1992, S.S., then 15 years old, was charged with delinquency for receiving stolen property and theft of a car. The local police fingerprinted S.S. and retained his prints for criminal identification purposes; the charges were apparently dismissed. On October 3, 1992 another automobile was stolen in the same municipality. When it was recovered three days later, the police obtained latent fingei’prints from the interior. The prints were compared with those taken from S.S.; both sets were found to be from the same person. S.S. was then charged with delinquency for the second automobile burglary and theft. He moved in the Family Part to suppress the fingerprint evidence, claiming that [33]*33the police had no authority to fingerprint him when he was first charged. The motion was granted. We granted the State’s motion for leave to appeal and now reverse.

N.J.S.A. 2A:4A-61 provides in its entirety as follows:

a. Fingerprints of a juvenile may be taken only in the following circumstances:
(1) Where latent fingerprints are found during the investigation of an offense and a law enforcement officer has reason to believe that they are those of a juvenile, he may, with the consent of the court or juvenile and his parent or guardian fingerprint the juvenile for the purpose of comparison with the latent fingerprints. Fingerprint records taken pursuant to this paragraph may be retained by the department or agency taking them and shall be destroyed when the purpose for the taking of fingerprints has been fulfilled.
(2) Where a juvenile is detained in or committed to an institution, that institution may fingerprint the juvenile for the purpose of identification. Fingerprint records taken pursuant to this paragraph may be retained by the institution taking them and shall be destroyed when the purpose for taking them has been fulfilled, except that if the juvenile was detained or committed as the result of an adjudication of delinquency, the fingerprint records may be retained by the institution.
(3) Where a juvenile 14 years of age or older is charged with delinquency on the basis of an act which, if committed by an adult, would constitute a crime, fingerprint records taken pursuant to this paragraph may be retained by a law enforcement agency for criminal identification purposes.
b. No juvenile under the age of 14 shall be photographed for criminal identification purposes without the consent of the court or of the juvenile and his parent or guardian.

The parties agree that subsection a(3) was the only arguable authority for the police to take S.S.’s fingerprints in April 1992. That subsection should be read, the State says, “as though the third comma were a semi-colon”:

a. Fingerprints of a juvenile may be taken only in the following circumstances:
(3) Where a juvenile 14 years of age or older is charged with delinquency on the basis of an act which, if committed by an adult, would constitute a crime; fingerprint records taken pursuant to this paragraph may be retained by a law enforcement agency for criminal identification purposes.

S.S. argues, to the contrary, that the statutory punctuation is correct and that a(3) “expresse[sj merely a retention [of fingerprints] authority,” while subsections a(l) and a(2) “concern taking [of fingerprints] authority.”

[34]*34The parties first support their respective readings with intricate textual analysis. Acknowledging that the statute “is not a model for legislative draftmanship,” the State says that “[t]he problem is largely one of parallelism.” The statute purports to define when fingerprints “may be taken,” but a(3) “lacks parallelism with the first two subsections” because “it consists of only one” sentence, which “does not contain the verb ‘fingerprint’ ” but rather uses “the verb phrase ‘may be retained.' ” But that lack of parallelism, the State urges, does not justify the conclusion that a(3) grants only authority to retain fingerprints. Such a reading ignores the statute’s introductory phrase that fingerprints of a juvenile “may be taken only in the following circumstances.” Further, the noun “paragraph,” which appears in each of the three subsections, should be read as the equivalent of “subsection”; since a(3) permits retention of “fingerprint records taken pursuant to this paragraph,” that “paragraph” must be read as authorizing the taking of fingerprints. Finally, if a(3) is read solely to authorize retention of fingerprints, it applies only to fingerprints taken under a(l), since a(2) already deals with retention of fingerprints taken thereunder; why, the State asks, would the legislature not simply include an a(3) “retention” authority in the last sentence of a(l)?

S.S. responds with an equally convoluted analysis of what he calls the “plain language” of the statute. According to S.S., the word “paragraph” as used in a(l), (2) and (3) should be read as referring “to the whole of section a,” but not section b. S.S. agrees that the “logical place” for subsection a(3) is within subsection a(l), but says there is no conflict between the two subsections because a(3) is “a ‘caveat,’ or expansion, of subsection a(l).” And, although he acknowledges that the State’s parallelism argument “at first glance ... has some appeal,” S.S. argues that the Legislature surely knew how to use “the active verb ‘to fingerprint’ ” and how to punctuate; accordingly, “it must be presumed that the statute was written, and punctuated, precisely as intended.”

[35]*35Either of those competing analyses might be used to justify, but neither could be said to compel, an outcome here. Equally uncompelling is the evidence relied on by the parties concerning the drafting of the statutory language and the ensuing administrative practice. There is no legislative statement or other extrinsic evidence directly explaining the wording or punctuation of N.J.S.A. 2A:4A-61; the inferences that might be drawn from the Legislature’s response to recommendations proposed in 1980 by the New Jersey Prosecutors’ Association and the New Jersey Division of Criminal Justice are conflicting and at best of marginal import. The evidence of the statute’s interpretation by law enforcement agencies is fragmentary and anecdotal; in any event, administrative interpretation can only test, not demonstrate, the soundness of a proffered statutory interpretation. See, e.g., Service Armament Co. v. Hyland, 70 N.J. 550, 563, 362 A.2d 13 (1976); Kingsley v. Hawthorne Fabrics, 41 N.J. 521, 528, 197 A.2d 673 (1964).

We find persuasive, however, the history of the legislative handling of juvenile fingerprinting and related matters.

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Bluebook (online)
640 A.2d 1189, 273 N.J. Super. 31, 1994 N.J. Super. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ss-njsuperctappdiv-1994.