On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County.
Approved for Publication April 10, 1996.
Before Judges Shebell, Stern and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by SHEBELL, P.J.A.D.
B.G., a juvenile, appeals from his adjudication of delinquency for conduct that would have constituted second degree sexual assault if committed by an adult in violation of N.J.S.A. 2C:14-2b. The assault consisted of B.G.'s sexual contact, when he was 12 years old, with his stepbrother, J.B., who was four years and seven days younger than he. B.G. did not deny that contact occurred. His defense was that he did not do it with the conscious intent to gain sexual gratification or to degrade the victim. The Family Part Judge disbelieved B.G. and his expert, who testified that the occurrence was only an impulsive act of an exploratory nature.
On December 15, 1994, B.G. was sentenced to three years of probation and sixty days of incarceration at the Warren Acres Detention Center, fifty days of which were suspended. Probation was conditioned on the juvenile's continued attendance at counselling sessions and school. The Judge advised the juvenile of his obligation to register in accordance with the recently enacted "Megan's Law." The juvenile's motion to prohibit disclosure of his identity to the public was denied.
On appeal, B.G. contends:
POINT ONE: THE OUT-OF-COURT STATEMENTS OF J.B. MADE TO DETECTIVE AYCOCK WERE NOT SUFFICIENTLY TRUSTWORTHY TO BE ADMITTED INTO EVIDENCE. (NOT RAISED BELOW).
POINT TWO: THE TRIAL COURT IMPROPERLY ADMITTED INTO EVIDENCE THE STATEMENTS MADE BY J.B. TO LINDA CIFELLI AND IMPROPERLY ADMITTED INTO EVIDENCE A DRAWING (S-6) WHICH J.B. MADE FOR THE PSYCHOLOGIST.
POINT THREE: THE FAMILY COURT JUDGE DENIED THE JUVENILE DUE PROCESS AND THE RIGHT TO COMPULSORY PROCESS WHEN SHE REFUSED TO ALLOW TRIAL COUNSEL TO CALL L.G. AS A WITNESS AND ORDERED THAT COUNSEL BE APPOINTED FOR L.G. TO ADVISE HIM OF HIS RIGHTS ALTHOUGH HIS MOTHER WHO WAS IN COURT HAD NO OBJECTION TO HIS TESTIFYING. U.S. CONST. AMEND. VI, XIV, N.J. CONST. (1947) ART. 1, P 10.
POINT FOUR: B.G. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S FAILURE TO REQUEST A DETERMINATION ON THE ADMISSIBILITY OF THE VICTIM'S OUT-OF-COURT VIDEOTAPED STATEMENT AND STATEMENT TO THE PSYCHOLOGIST; HIS FAILURE TO REQUEST A MIRANDA HEARING ON THE ADMISSIBILITY OF THE JUVENILE'S OUT-OF-COURT STATEMENTS TO DET. AYCOCK; HIS FAILURE TO OBJECT TO THE STATE AND COURT'S LEADING QUESTIONS TO THE VICTIM AND FAILURE TO OBJECT TO THE USE OF A TURTLE TO DEMONSTRATE HOW THE ALLEGED SEXUAL CONTACT OCCURRED. U.S. CONST. AMENDS. VI, XIV, N.J. CONST. (1947), ART. I. PARAS. 1 AND 10.
POINT FIVE: IT WAS WHOLLY IMPROPER TO ALLOW THE STATE TO ELICIT TESTIMONY FROM THE VICTIM USING A TURTLE TO DEMONSTRATE THE ALLEGED SEXUAL ASSAULT AND TO ASK LEADING AND SUGGESTIVE QUESTIONS. (NOT RAISED BELOW).
POINT SIX: THAT PART OF THE JUVENILE'S DISPOSITION ORDERING HIM TO SERVE SIXTY DAYS AT WARREN ACRES WAS ILLEGAL BECAUSE THE CODE OF JUVENILE JUSTICE PROHIBITS THE INCARCERATION OF A DEVELOPMENTALLY DISABLED JUVENILE IN A CORRECTIONAL FACILITY. (NOT RAISED BELOW).
POINT SEVEN: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT AUTHORIZED DISCLOSING THIS JUVENILE'S IDENTITY TO THE PUBLIC. MOREOVER, N.J.S.A. 2A:4A-60 VIOLATES LONGSTANDING STATE AND FEDERAL POLICY DECISIONS REGARDING THE ...