Mark A. Sullivan, Jr., J.s.c.
[241 NJSuper Page 446] The issue in this case is one of first impression. It involves the application of Evid.R. 63(33) which was adopted June 13, 1989. That rule provides:
"A statement by a child under the age of 12 relating to a sexual offense under the Code of Criminal Justice committed on, with, or against that child is admissible in a criminal proceeding brought against a defendant for the commission of such offense if (a) the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 8(1), that on the basis of the time, content, and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of paragraph (b) of Rule 17."
The indictment in this matter charges the defendant with aggravated sexual assault, sexual assault and endangering the welfare of a child. The allegations are that he committed an act of sexual penetration of LL, a three-year-old girl.
The purpose of this motion is to determine the admissibility of certain out-of-court statements of LL pursuant to the above cited rule. The statements consist of three separate items. The first consists of statements made by the alleged victim to her mother. The second item consists of statements made to an investigator from the Monmouth County Prosecutor's Sex Crimes Unit. The third is the alleged victim's Grand Jury Testimony.
At the pre-trial hearing conducted on this issue, the following testimony was elicited:
LL's mother, who will be referred to herein as KD, testified that on November 5, 1987 she was at her sister's home, next door to her own home in Freehold, when she heard her daughter, who was outside in the driveway between the two houses, scream. She ran outside and found her three-year-old daughter standing, fully dressed, in the driveway shouting "The man, the man." She noticed that the little girl had had a bowel movement in her pants and she took her inside to clean her off. Suspecting that something improper had happened, she called
the police. Not much more information was forthcoming from the girl at this point.
The mother testified that the girl started having nightmares that night and started wetting the bed.*fn1 The mother discovered a scratch on her stomach which she said she received from "the man."
Over the course of the next few days the mother showed the girl a catalogue of men's clothes and asked her to identify the clothes the man was wearing. The girl picked out a green vest, an orange baseball hat, a flannel shirt, jeans and hiking boots. She also said that the man had a secret that she couldn't tell.
At some later point the girl told her mother that the man said his name was "Mark L", "L" being her own last name. LL went on to say that the man did magic tricks with an orange ball and that he was wearing earrings. She further stated that, when the man left, he put a bicycle in a red van, that there was another man and a little girl in the van and that they drove away.
As a result of all of this, LL's mother arranged to have her receive counseling. The counselor told LL's mother not to question her about the event, but to let her talk about it when she brought it up herself. KD testified that, as time passed, LL would not go to sleep at night without checking all the doors to see that they were locked. Later the girl told her mother that "the man" had worn a clown mask when he came up the driveway. She went on to say that they had been at the man's house before and that he had a little girl of his own. She then told her mother that "the man" asked her to come to "Jersey Freeze", a local ice cream parlor, ...