On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Pressler, Scalera and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant was convicted of first degree aggravated assault, N.J.S.A. 2C:14-2a;*fn1 second degree sexual assault, N.J.S.A. 2C:14-2b; and endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to concurrent terms aggregating 17 years in the custody of the Commissioner of Corrections.*fn2 On this appeal defendant argues:
POINT I THE DEFENDANT'S RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE, PARAGRAPH TEN OF THE NEW JERSEY CONSTITUTION IS VIOLATED BY THE IMPLEMENTATION OF THE PROCEDURES PROVIDED FOR IN N.J.S.A. 2A:8A-32.4.
POINT II THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S REQUEST FOR A PSYCHIATRIC EXAMINATION OF THE ACCUSING WITNESS PRIOR TO ALLOWING HER CLOSED CIRCUIT TELEVISION TESTIMONY.
POINT III THE TRIAL COURT'S DENIAL OF THE DEFENDANT-MOTION TO DISMISS THE INDICTMENT FOR LACK OF SPECIFICITY AS TO THE DATES OF ALLEGED OFFENSE.
The facts clearly support the finding that defendant committed the offenses, and there is no issue directed to the weight or
sufficiency of the evidence. The principal issues before us relate to the manner in which J.V. was permitted to testify at trial.
We hold that defendant did not receive an adequate Evid.R. 8 hearing to assure that the requirements of N.J.S.A. 2A:84A-32.4 were satisfied, which would allow J.V., the victim who was seven years old when the events occurred and ten years old at the time of trial, to testify without face-to-face confrontation by the defendant.
Prior to trial the State made a motion to have the victim testify through the use of closed circuit television, pursuant to N.J.S.A. 2A:84A-32.4. Defendant, in response, made a motion for the victim to be examined by his psychiatrist for the purpose of determining whether, in fact, she would be traumatized by the experience of testifying about the abuse in open court. Defendant also argued that the statute itself which permits testimony by closed circuit television is unconstitutional.
The judge concluded that the statute was not unconstitutional. However, while originally indicating that he "would like to have a psychiatrist tell me whether or not he thinks bringing this child into this courtroom is going to harm her", the judge noted that the statute didn't require such an examination. The judge ultimately decided that he would hold a hearing in camera so that he could make a final determination as to whether an expert was actually needed.
The victim testified at an Evid.R. 8 hearing. She was in the jury room with defense counsel and the prosecutor while the judge and the defendant viewed the proceeding on closed circuit television.*fn3 ...