On certification to the Superior Court, Appellate Division, whose opinion is reported at 207 N.J. Super. 19 (1986).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.
[104 NJ Page 113] This appeal, on certification granted, 104 N.J. 112 (1986), requires us to address yet another facet of the "sensitive and delicate issues surrounding * * * the sexual abuse of children." See State v. R.W., 104 N.J. 14, 16 (1986). The issue as posed in the State's petition for certification is whether a complaint in a juvenile delinquency action, charging sexual assault on a victim younger than thirteen years of age, must specify an exact date of occurrence. The answer to that question is "no." For constitutional due process purposes, the adequacy of a charge
set forth in a juvenile delinquency complaint, as in a criminal indictment, turns on whether the notice contained in the complaint sufficiently apprises the accused of the offense with which he is charged to enable him to prepare a defense. The Appellate Division held that a juvenile complaint must set forth a specific date or dates of the offense. Because we conclude that "fair notice" in this context is not concerned exclusively with specificity of a date of offense, we reverse the judgment below.
In January 1985 the victim of the alleged sexual assault, L.T., was seven years old. She lived in Millville with her grandmother. Also living in the home were the juvenile, K.A.W., then seventeen years old, and his guardian, as well as L.T.'s sister. Although it is not part of the record, we were informed at oral argument that around that time there was a presentation at L.T.'s school designed to help the youngsters recognize, and thus avoid, situations that posed a danger of sexual assault. Sometime after that presentation L.T. told two of her classmates that she had been sexually abused by her housemate, K.A.W. The classmates in turn notified the school authorities, who reported the charge to the Division of Youth and Family Services (DYFS).
When interviewed by a DYFS worker and later by a police officer, L.T. said that on a number of occasions K.A.W. had come into her bedroom and touched her with his penis on her stomach and between her legs. She explained that she had never previously related these incidents to anyone, out of fear both that her grandmother would punish her and that K.A.W. would make good his threat to beat her if she revealed what he had done.
When confronted, K.A.W. denied any sexual involvement with L.T. They no longer reside in the same household.
About a month after the foregoing incidents were reported, K.A.W. was formally charged under N.J.S.A. 2A:4A-23 with juvenile delinquency, based on conduct that if committed by an adult would constitute a crime, namely, the second-degree crime of sexual assault as defined by N.J.S.A. 2C:14-2(b) ("An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim."). The juvenile complaint alleged that in midyear 1984 K.A.W. "committed an act of sexual assault upon [L.T.] by placing his genital upon the stomach of the victim with intent to sexually gratify the accused."
In June 1985 K.A.W. moved to dismiss the complaint "or, in the alternative, for a more specific statement as to the date and time of the alleged sexual assault." At the hearing on the motion the State moved to amend the complaint to reflect the time of the alleged offense as having occurred "on divers dates from January 1983 through August 1984," rather than simply "midyear 1984." In the course of the colloquy on the motion to amend, which the court granted, it became apparent that the victim complained of "more than one incident;" that the State was contending that "this was an ongoing occurrence" and hence analogous to a conspiracy charge (thereby obviating the need for specificity concerning the time of the offense, see, e.g., State v. Maddox, 153 N.J. Super. 201, 208 (App.Div.1977)); that the State had supplied the juvenile with full discovery; and that as of the date of the hearing on the motion, "more specific information [was] simply not available."
In support of his motion to dismiss the now-amended complaint K.A.W. argued that so lacking was the complaint in essential information about when the act of juvenile delinquency was alleged to have occurred that he was unable to construct a defense. The absence of that information, he said, prejudiced him in at least two ways, as his attorney contended at the argument on the motion:
[W]e have a potential alibi for at least a portion of that time during which the divers dates fell. [K.A.W.] visited his mother in Virginia during last summer. He was down there for approximately a month or so.
It is during the summer as -- even as amended we are up to 8/84 as part of the divers dates. He was with his mother in Virginia for a good portion of that time, for a period of weeks. Unless we know specifically what dates are involved here, we can't even allege an alibi to combat it.
Further, at this point if we now set forth this alibi, as I've done here by way of argument, the prosecutor's in the position where the prosecution can now design its case to fall outside the bounds of the period that he was in Virginia. That's the reverse of what the usual process is and sequence of events in terms of the prosecution presenting its case, and the defense presenting a -- an alibi defense, or whatever other defense there may be.
Furthermore, investigation by its very nature may turn up things -- I mean, the point is you want to learn facts. Until we know specifically the entire prosecution case, it makes it rather difficult to conduct an investigation to find out ...