On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-06-0798.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2006
Before Judges Stern, Sabatino and Messano.
Defendant was convicted by a jury of three counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and one count of third degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Defendant was sentenced to eight years in the custody of the Commissioner of Corrections on count three, one of the second degree endangering convictions, and to concurrent seven-year terms for the other endangering convictions. He also received a concurrent five-year term for the aggravated assault.
On this appeal defendant raises issues relating to the sufficiency of the evidence, the introduction of testimony, and the jury instructions. He also challenges the sentence. Because we conclude that the admission of testimony by a DYFS worker who interviewed the victim at a hospital after the third incident of alleged child abuse was not harmless, we reverse the conviction. Specifically, we hold that the statement to the DYFS worker was inadmissible under the Confrontation Clause of the Sixth Amendment to the Federal Constitution (and the co-extensive provisions of the New Jersey Constitution, see N.J. Const., art. I, ¶ 10; State v. Daniels, 364 N.J. Super. 357, 371-72 (App. Div. 2003), rev'd on other grounds, 182 N.J. 80 (2004))*fn1, and cannot constitute harmless error. In so doing, we sustain the introduction of other statements which were admissible under traditional hearsay exceptions and present no concerns under the Confrontation Clause. Those statements may be admitted on the retrial.
For purposes of our analysis of the present record, we adopt the State's version of facts as detailed in its brief.
The three-year old victim in this case, N.M., was [allegedly] assaulted by defendant on three separate occasions between July 2nd and October 18th, 2002. The last assault was the most severe, resulting in injuries to the child that required a two-week hospital stay. Specifically, Dr. Steven Kairys, the Chairman of Pediatrics and Director of the Child Protection Center at Jersey Shore University Medical Center, found "extensive injuries primarily to the head, the scalp, the eyes, the ears, the back of the neck . . . . a combination of extensive bruising that covered large parts of his neck and scalp. Both eyes were bruised . . . were beginning to show what's called raccoon eyes, bleeding blood around the eyes. Both ears were swollen red. There was bruising both in the earlobes, themselves, as well as behind the earlobes. There was bruising along the neck."
The victim had been residing in defendant's home for a brief period before the first injury occurred. Prior thereto, the child had never suffered a suspicious injury and DYFS had never been involved in preserving his safety and well-being. The child had been living with his teenage mother and her parents since his birth in November of 1998, but had been placed in defendant's home and in harm's way*fn2 when his mother moved in with defendant upon their engagement. As part of joining together as a family, defendant wanted and encouraged little N.M. to call him "Daddy." The boy's mother, defendant and N.M. did things together that families typically enjoy, such as having dinner, watching TV, playing cards, watching fireworks, going out for ice cream and going to parks.
The first indication that N.M. was being physically abused by defendant was on July 3rd, 2002. That morning, as N.M.'s mother [Christine] was driving the boy to her sister's house for daycare, as she usually did on weekdays when she worked, he blurted out from the backseat that, "Daddy beat me." The statement was voluntary and unsolicited. Christine was understandably surprised by the remark and asked N.M. when that had happened, to which the boy responded, "[a]t night."
Later that day, Christine received a phone call at work from her mother . . . advising that N.M. had an injury to his buttocks. Unbeknownst to Christine at that time, [Christine's mother and sister] took photos of the bruising, which to them looked to be in the shape of a handprint.
Christine asked defendant about the injury to N.M.'s buttocks; defendant said the boy had fallen in the bathtub. Christine accepted defendant's explanation and, at least for the time being, the episode was over.
The next incident was sometime in the month of August or September 2002. Again out of the presence of Christine, N.M. allegedly "fell" after getting out of the bathtub. When Christine returned home, defendant and his brother . . . who was also present in the house, told her about the alleged fall. Some small bruises were noticeable, so Christine called Community Medical Center to inquire as to what she should do. She was told to just watch the child carefully for certain neurological symptoms and to bring him in only if his condition appeared to worsen.
The following day, while N.M. was at his grandparents' house, his grandfather [Christine's father] noticed the bruises on the child's head, and more photos were taken. The grandparents then kept N.M. at their home for several days after this incident, having argued with their daughter Christine about defendant abusing the child but Christine still not believing that he had inflicted those injuries.
On October 16, 2002, while [Christine's sister] was baby-sitting, defendant arrived to pick him up and bring him home. N.M. became visibly upset at the realization that he was going to leave his aunt's house with defendant, and he said he didn't want to go home with "Ryan." Defendant became upset at the child's failure to call him "Daddy," and an argument ensued between defendant and [the aunt]. [The aunt] accused defendant of being an abuser and refused to hand the child over to him. The police were summoned to the house and, upon their call to Christine to inquire whether defendant had her permission to take the child, N.M. was sent home with defendant. Neither [the aunt] nor his grandparents saw N.M. again until the night of October 18, 2002.
On the morning of October 18, Christine left N.M. in the care of defendant when she went to work, altering her usual routine of bringing him to [her sister's] house. She testified that when she returned in the early evening, N.M. was sitting in the darkened living room watching television. After getting herself settled, she approached N.M. and screamed out loud when she noticed a big red mark on the back of his neck. There were also marks or discolorations under his eyes.
N.M. was taken to the emergency room at Community Medical Center, where a doctor who examined the child immediately called DYFS and other authorities to report his suspicion that N.M. had been abused.
Miriam Nurudeen, the "first response" DYFS worker who was sent to the hospital to investigate, arrived at the child's room about the same time as [the grandparents]. The child was crying and begging his grandparents to take him home with them.
Ms. Nurudeen asked [Christine's parents] to leave the room so that she could talk to N.M. alone, which is standard procedure when a DYFS representative is attempting to ascertain if a child has been abused.
Once the grandparents were gone, Ms. Nurudeen asked N.M. what had happened to him. He said that he fell in his room, and he wanted to go home to grandma. She then asked him if anybody had beaten him. The child responded, "Dad ...