assault if committed by an adult, N.J.S.A. 2A:4A-43.1,
is constitutional. Before testing may be ordered, a court
must find probable cause to believe that the victim has
been exposed to a risk that the transmission of the virus
may have occurred. Results of the test may not be used
against the offender in a criminal proceeding and must be
maintained according to the confidentiality require-
ments of the statute.
See also N.J.S.A. 2A:4A-43.4, concerning similar
AIDS/HIV testing for juveniles charged with or
adjudicated delinquent for any crime or offense where
someone suffers a hypodermic needle prick and there is
probable cause to believe the juvenile is an intravenous
drug user, or where someone had contact with the
juvenile which likely involved the transmission of bodily
fluids.
I. Megan’s Law
State in the Interest of B.G., 289 N.J. Super. 361 (App.
Div.), certif. denied, 145 N.J. 374 (1996), held that the
registration and community notification provisions of
“Megan’s Law” (N.J.S.A. 2C:7-1 through-5 and N.J.S.A.
2C:7-6 through-11, respectively) are not inconsistent
with the Code of Juvenile Justice and are applicable to
juveniles such as B.G. who was adjudicated delinquent
for conduct which would have constituted second degree
sexual assault if committed by an adult. Moreover, the
registration and community notification requirements
do not constitute part of a disposition entered in a case
under the Juvenile Code, and thus these Megan’s Law
requirements do not terminate on the juvenile’s
eighteenth birthday.
VII. CONSTITUTIONAL AND PROCEDURAL
RIGHTS
A. Generally
By statute (N.J.S.A. 2A:4A-40), all defenses available
to an adult charged with a crime, offense or violation shall
be available to a juvenile charged with committing an act
of delinquency. All federal and state constitutional rights
guaranteed to criminal defendants, except the rights to
indictment, trial by jury and bail, are applicable to cases
arising under the juvenile justice act.
State v. Ferguson, 255 N.J. Super. 530 (App. Div.
1992).
Since all defenses available to an adult as well as all
constitutional rights (except indictment, jury trial and
bail) are granted to a juvenile (N.J.S.A. 2A:4A-40), a
juvenile has a right to testify at a jurisdictional waiver
hearing. He also has the correlative right to be so advised
by defense counsel. Id. at 538-539.N.J.S.A. 2A:4A-39, in addition to specially
providing for a right to counsel, provides standards for the
waiving of any right afforded to a juvenile during a court
proceeding. Specifically, a competent juvenile may not
waive any rights except in the presence of and after
consultation with counsel, and unless a parent has first
been afforded a reasonable opportunity to consult with
the juvenile and juvenile’s counsel regarding this
decision. The parent or guardian may not waive the
rights of a competent juvenile. An incompetent juvenile,
however, may not waive any right. A guardian ad litem
shall be appointed for an incompetent juvenile and may
waive rights after consultation with the juvenile and
juvenile’s counsel. All waivers shall be executed in
writing or recorded and be in the language regularly
spoken by the juvenile. Before accepting a waiver, the
court shall question the juvenile and his counsel to see if
the waiver is knowing, willing and voluntary.B. Counsel- Required
N.J.S.A. 2A:4A-39 and R. 5:3-4 provide that a
juvenile has the right to be represented at every critical
stage in the proceedings which may result in his
institutional commitment or other consequence of
magnitude. This standard is also applicable to any family
member facing these potential consequences.In re Gault, 387 U.S. 1 (1967). A proceeding where
the issue is whether the child will be found to be
‘delinquent’ and subject to the loss of his liberty for years
is comparable in seriousness to a felony prosecution. The
juvenile needs the assistance of counsel to cope with
problems of law, to make skilled inquiry into the facts, to
insist upon regularity of the proceedings, and to ascertain
whether he has a defense and to prepare and submit it.
Assistance of counsel is essential for the determination of
delinquency, carrying with it the awesome prospect of
incarceration in a state institution. The Due Process
Clause of the Fourteenth Amendment requires that in
respect of proceedings to determine delinquency which
may result in commitment to an institution in which the
juvenile’s freedom is curtailed, the child and his parents
must be notified of the child’s right to be represented by
counsel retained by them, or if they are unable to afford
counsel, that counsel will be appointed to represent the