On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-772-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall.
C.K. appeals from an adjudication of delinquency for conduct that would constitute aggravated sexual assault, N.J.S.A. 2C:14-2a(1), if C.K. were an adult. The juvenile complaint was based on an allegation made by C.K.'s next-door neighbor, Z.M. The five-year old Z.M. reported that at C.K.'s direction, he licked C.K.'s penis twice. C.K. was thirteen years old at the time. The matter was tried to a judge of the Family Part, who found that the State had proven the charge. The judge denied C.K.'s motion for a new trial and imposed an indeterminate eighteen-month term in the custody of the Juvenile Justice Commission at the State Home for Boys but suspended the sentence for three years conditioned upon C.K.'s completion of counseling and probation. The judge also required C.K. to pay a $30 VCCB assessment and a $15 LEOTEF assessment.
On Sunday evening, September 12, 2004, the K family and the M family had dinner together in the Ms' backyard. The plans were made earlier that afternoon. At Z.M.'s request, Mrs. M authorized the child to extend the invitation to the Ks. Mr. K accepted on behalf of his wife, his father-in-law, his son C.K. and C.K.'s older sister, Cy.K.
According to Z.M.'s parents, their son liked to play with C.K. whenever he could and looked up to the older, athletic boy, who had a lot of friends. Z.M.'s brother J.M. was only two years old. Although Z.M. went to school in a different town during the school year and in the summer, he had playmates closer to his own age in the neighborhood. Those playmates were C.B. and J.B. The Bs lived in the third house from the Ms' house. There was one house in between the Bs' house and the Ks' house. None of the backyards between the Bs' and the Ms' were separated by fences.
The Ks have a trampoline and a hot tub in their backyard. The hot tub is enclosed in a gazebo-like structure with tinted windows and a door with a spring-operated closing mechanism. The Bs have a swing set with a slide, a fireman's pole, a climbing net, rings, a ladder and a small fort. The fort is enclosed on three sides and has a roof.
The dinner was planned for five o'clock. Fifteen minutes before that hour, Mr. K saw Mr. M sitting outside with a beer and left his home to join him. He took his dogs with him. Near the appointed hour, Mrs. K, her father, C.K. and Cy.K. arrived, and Mrs. M brought appetizers to the table on the patio.
Because Z.M. and J.M. were feeding the dogs olives, Mr. K took the dogs back to his yard and tied them on his deck. While Mrs. M returned to the house to complete preparations for the meal, the others sat around the patio table. Z.M. poked Cy.K. in the arm with a toothpick, which he continued to do despite her protestations and Mrs. M's directions. The M children had been on C.K.'s trampoline in the past, and Mrs. K asked her son to take the younger boys to the trampoline to burn off some of their energy.
C.K. complied. According to C.K., he did not mind playing with the children, but he would have preferred to stay at the table with the adults and his older sister.
Z.M. was able to get on and off the trampoline by himself, but J.M. needed C.K.'s help. No one was permitted on the trampoline with shoes. According to C.K., he helped both children with their shoes when they got on and off the trampoline. Z.M. said he took his shoes on and off by himself.
During the first session on the trampoline, the boys played a game called "racecar," which involves running around the outer edge of the jumping area and tagging the person ahead of you. After about fifteen minutes, J.M. tired of the game and asked C.K. to play hide-and-seek.
C.K. lifted J.M. off the trampoline, but Z.M. did not want to leave. According to C.K., Z.M. said "f--- you." C.K. told Z.M. that if he played one game of hide-and-seek he could get back on the trampoline. Z.M. volunteered to count and seek.
C.K. and J.M. ran to the Bs' yard, where J.M. stopped in front of the fireman's pole and covered his face with his hands. C.K. stood next to him. Z.M. finished counting, saw J.M. and C.K. and ran toward them. Z.M. then went to the Bs' backdoor to see if C.B. and J.B. could come out to play. The younger children were not permitted to come outside.
Mr. K, who was seated at the table in a spot where he could see the back of the Ms' house, his own patio and the trampoline, heard the creaking of the trampoline springs and the laughter of the children. When things got quiet, he looked over and saw Z.M. standing near the trampoline and J.M. and C.K. jogging toward the Bs' property. He saw J.M. and C.K. stop near the swing set, and Z.M. run toward them. When he looked back, the children were near the Bs' backdoor.
The boys were called to dinner. As they ate, C.K. and his grandfather discussed the Yankees and the Red Sox. After the boys finished eating, Mrs. K again asked C.K. to take them to the trampoline. This ...