On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, 00-04-0746.
Before Judges Kestin, Eichen and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2002
In this case we address an issue not previously resolved in our reported jurisprudence; whether a statement written out by the victim at the request of the police at the police station several hours after the crime qualifies as an excited utterance under N.J.R.E. 803 (c)(2). We conclude that such a written statement does not ordinarily come within this hearsay exception and that the admission of such a statement in this case constituted error which was not harmless. Accordingly, we reverse and remand for a new trial.
Defendant, Anthony Conigliaro, was charged with criminal sexual contact, N.J.S.A. 2C:14-3(b), and child abuse, N.J.S.A. 9:6-3, in separate counts for each charge relating to two dates, January 30, 2000 (counts 1 and 3) and February 2, 2000 (counts 2 and 4). All of the charges were fourth degree offenses and the victim of each was a minor, Sally. *fn1
After a jury trial, defendant was found not guilty on the counts relating to January 30, 2000, but guilty on the two counts concerning February 2, 2000. Concurrent sentences of fifteen months imprisonment were imposed on each count along with appropriate penalties. Defendant was also required to register under Megan's Law, N.J.S.A. 2C:7-2b(2), and to provide a blood sample for DNA analysis.
The facts established by Sally's trial testimony were as follows. Sally started working at a bakery in the fall of 1999, while she was in the tenth grade and sixteen years old. Defendant was employed full-time as a baker at the same bakery. She worked three to four hour shifts on Wednesday, Thursday, and Friday nights, as well as during the day on Saturdays and Sundays. She took orders from the bakery's customers, handled the cash register, and made sure that the customers received what they ordered. Defendant was Sally's supervisor and was present at the bakery during her shifts at least twice each week.
On Sunday, January 30, 2000, Sally arrived at the bakery for her shift at approximately 10:55 a.m. Defendant arrived at the bakery approximately an hour and a half later.
Sally testified that defendant called her into the back of the bakery, which was not unusual, as she often went there to clean dishes out of the sink or to get pies. On this occasion, defendant asked if he could touch her chest and she told him no. Defendant then grabbed and touched her breast with one hand, restraining her wrist with his other hand. Sally said she heard the door squeak, indicating a customer was entering the bakery, at which point she returned to the front to help the customer. Defendant left the bakery shortly thereafter.
Sally testified that she then called her friend E.T. on the telephone and told her that the defendant had grabbed her hand and touched her chest. She did not tell anyone in her family of the incident, nor did she report it to the authorities. She went to school on Monday, Tuesday, and Wednesday of that week.
Defendant arrived at the bakery on Wednesday, February 2, 2000, shortly after Sally had reported for work at 3:00 p.m.
At that time, there was a cleaning crew working in the back of the bakery and defendant instructed them to hurry up, finish and leave, which they did.
After the cleaning crew left, defendant called Sally into the back of the bakery. Sally complied with defendant's request, at which time defendant asked if he could touch her breasts. When Sally said "no," defendant pulled Sally toward him and grabbed her chest. Defendant told Sally that he was "hard," grabbed Sally's hand, put it on the crotch of his sweat pants, and forced her to rub her hand up and down and left and right.
A customer then came into the bakery, and Sally went back to the front of the store. After the customer made a purchase and left, defendant called Sally back to the rear of the bakery. Notwithstanding the prior episode, she complied. Defendant again pulled Sally toward him, lifted her up so her feet were off the ground, and asked Sally if she would like to "ride" him. Sally was able to get her feet back on the floor, but defendant pulled her back toward him so that her buttocks were rubbing against his erect penis.
While defendant was rubbing against Sally, he put his hands down her pants, under her underwear, and touched her vagina. Defendant had such a tight grip on Sally that, although she tried, she could not get away from him. At this time, a supplier's truck from South Jersey Paper arrived at the bakery. When defendant heard the supplier's employees, he let go of Sally and went into the rearmost part of the bakery.
Sally met with a South Jersey Paper representative, who requested that someone sign for the material that was just delivered. Sally stated that defendant was in the bakery and could sign. Defendant walked up from the back of the bakery and ...