On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County.
Approved for Publication October 27, 1995.
Before Judges Landau, *fn1 Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by KLEINER, J.A.D.
S.M., a fifteen-year old juvenile, was convicted of two counts of juvenile delinquency which, if committed by an adult, would constitute: (1) first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1); and second-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2b. Both charges relate to one event on December 3, 1993, when S.M. was employed to baby-sit A.K., a five-year old male child.
A.K. informed his father that during the afternoon, S.M. "blew through my penis." A.K.'s father immediately contacted police authorities and a police investigator interviewed A.K. At the subsequent trial, the court found A.K. competent to testify. On direct examination, A.K. related that S.M. placed his mouth on A.K.'s penis and instructed A.K. to touch S.M.'s penis while S.M. remained fully clothed. The State presented the testimony of A.K.'s father, who was permitted to repeat A.K.'s version of the events as it had been stated when the incident was first reported. The State also introduced the testimony of the police investigator who repeated the version of the incident as told by A.K. at the initial interview. The two prior statements were consistent with A. K.'s trial testimony. In no rendition did A.K. clearly indicate that his penis entered S.M.'s mouth.
S.M. testified on his own behalf. He admitted that the incident occurred and indicated that although he did place his mouth upon A.K.'s penis, he did not cause the penis to enter his mouth. S.M.'s counsel vigorously argued that the proven facts failed to establish a violation of N.J.S.A. 2C:14-2a(1), and that S.M. should only be found guilty of two second-degree offenses in violation of N.J.S.A. 2C:14-2b. The trial court rejected S.M.'s argument, concluding that the act of "fellatio" does not require proof of the insertion or attempted insertion of the victim's penis into the mouth of the perpetrator.
On July 14, 1994, S.M. was sentenced to the Training School for Boys at Jamesburg for a period not to exceed eighteen months on each count of the juvenile delinquency complaint. The sentence on count two was to be served concurrent with the sentence on count one. The court also imposed a $30 penalty payable to the Violent Crimes Compensation Board on each count.
On October 6, 1994, S.M. appeared before the Family Part seeking reconsideration of his original sentence. On October 27, 1994, the trial Judge granted S.M.'s motion for reconsideration of sentence and placed S.M. under a two-year period of probation. As conditions of that probation, the Judge placed S.M. under "house arrest" and required S.M. to obtain and complete psychological counseling, to follow the recommendation of his physician, and to attend and complete an educational program.
On appeal from both his conviction and his sentence, S.M. raises three points of error:
THE FEDERAL AND STATE DUE PROCESS AND FAIR TRIAL RIGHTS OF JUVENILE S.M. WERE VIOLATED BY THE TRIAL JUDGE'S APPLICATION OF AN ERRONEOUS DEFINITION OF "FELLATIO" TO FIND THAT S.M. HAD COMMITTED A FIRST DEGREE SEXUAL OFFENSE.
A. THE TRIAL JUDGE ERRONEOUSLY HELD THAT "FELLATIO", AS THAT TERM IS USED IN THE SEXUAL ASSAULT STATUTE, DOES NOT REQUIRE INSERTION OR ATTEMPTED INSERTION OF THE PENIS INTO THE ORAL CAVITY.
B. S.M.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BECAUSE THE SEXUAL ASSAULT STATUTE, AS APPLIED TO ...