On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No.04-07-1119.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Parker and Lyons.
Defendant Carlos Henriquez appeals from a judgment of conviction entered on October 26, 2006 after a jury found him guilty of second degree sexual assault, N.J.S.A. 2C:14-2b; and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to an aggregate term of thirteen years subject to six years parole ineligibility. We affirm. Defendant had a relationship with the victim's mother over a period of several years. The victim, D.A., who is now sixteen years old, was between five and six when defendant moved into the house. He moved out when D.A. was twelve. In November 2003, D.A. began to cry while playing with her cousin, J.R. She confided in J.R. that defendant was "touching her, like bothering her." J.R. wanted to tell her mother or older sister, but D.A. insisted she remain silent. In March 2004, D.A. told her best friend and insisted she not tell anyone.
A week later, on March 24, 2004, D.A. started crying in class and was brought to the school nurse who observed her "hysterical, crying, sobbing, upset, extremely nervous." The child's parents and sister were called to the school and the Division of Youth and Family Services (DYFS) was contacted. D.A. was subsequently questioned by a detective from the Hudson County Prosecutor's Office. She was medically examined and found to have bruising and other abnormal changes in the anal area. Dr. Francis Pelliccia, the doctor who examined the child, stated that the report did not conclusively indicate child abuse "but in the context of everything else . . . could be a result of trauma." The doctor noted, however, that the child was a "consistent historian" and her reporting was consistent with the physical findings."
In this appeal, defendant argues:
THE TRIAL COURT ERRED IN CONCLUDING [J.R.] WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601. (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT TESTIMONY FROM THE SCHOOL NURSE WHICH IMPERMISSIBLY AND INDIRECTLY CORROBORATED THE VICTIM'S TESTIMONY REGARDING HER ALLEGATIONS AGAINST THE DEFENDANT. (PARTIALLY RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
Defendant argues for the first time on appeal that the trial court should not have allowed D.A.'s cousin, J.R., to testify because she was not competent under N.J.R.E. 601. Defendant maintains that the child was not sufficiently questioned on voir dire as to her understanding of the truth. J.R. was then twelve years old and in the seventh grade. After she was sworn, J.R. was questioned by the prosecutor as to her understanding of the truth.
Q: [J.R.], What you just did when you raised your hand, do you know what you were doing then?
A: Swearing to tell the truth.
THE COURT: You're going to have to speak up, ma'am. It's much too low.
THE COURT: Kind of yell if you would so we can all hear you.
A: I was swearing to tell the truth and nothing but the truth.
Q: Okay and what does that mean to you? What happens if you don't tell the truth?
Q: You don't know? Okay. Is it good or bad to tell the truth?
Q: Okay and is it good or bad to tell a lie?
Q: And are you going to tell us the truth today?
Q: Do you know someone named [D.A.]?
Q: How long have you known her?
Q: Okay and what kind of relationship do ...