Gaulkin, Havey and Brochin. Rudd, J.s.c.
This is phase II of a plenary hearing which was initiated by the State, on September 21, 1992, pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2. At the time of the alleged incident, the defendant was a 17 year old juvenile. He is now 18 years old and will be referred to as Y.B., aka P.J. The victim is a 4 year old boy who will be referred to as T.D. The defendant and the victim are cousins.
This matter stems from an incident that occurred on September 4, 1992, for which Y.B. was charged by the Newark Police Department with aggravated sexual assault and endangering the welfare of a child he was supervising, crimes of the first and third degree. N.J.S.A. 2C:14-2, N.J.S.A. 2C:24-4.
On September 21, 1992, the State brought a motion for an order waiving this court's jurisdiction over Y.B. and transferring the matter to the Adult Court pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2. Consequently, a Phase I plenary hearing date was set.
On October 26, 1992, at the phase I plenary hearing, I found probable cause to believe that while Y.B. was supervising T.D. and watching pornographic movies, he sexually assaulted T.D. by inserting his penis into T.D.'s anus twice and into his mouth once. I based these findings on T.D.'s graphic statement made to Detective Foster which connects Y.B. to the sexual assault. Hearsay evidence is permitted in probable cause hearings State v. Price, 108 N.J. Super. 272, 260 A.2d 877 (Law Div.1970).
Specifically, T.D.'s statement reveals that he is capable of making his own decisions and was not merely being led. For example, when Detective Foster asked, "T.D., did P.J. put his ding-a-ling in your mouth?" T.D. answered, "Yes." Then, Detective Foster asked, "T.D., did P.J. ask you to touch his ding-a-ling?" T.D. replied, "No." If T.D. was merely being led, he would have responded "Yes," rather then "No".
Similarly, T.D.'s statement reveals that he is capable of responding to questions with good discretionary answers. For instance, when Detective Foster asked, "T.D., did P.J. take your clothes off?" T.D. answered, "No, he pulled my pants down . . ."
Lastly, T.D. stated that Y.B. was "watching a nasty movie and then he stuck his ding-a-ling in my butt." I can not think of a better word than "nasty" to describe pornographic. It is a decisive description of what was arousing Y.B., and coming from T.D. gives T.D. a creditability as to all of his testimony. T.D. further stated that after he told Y.B. that it "hurt" when Y.B. inserted his penis into his anus, "he [Y.B.] did it again in the bathroom, and when someone knocked we pulled our pants back up and waited for them to leave before coming out of the bathroom." T.D. also stated that Y.B. told him "not to tell nobody what we did."
This brings us to the matter at hand, phase II of the plenary hearing pursuant to N.J.S.A. ...