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State ex rel J.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 19, 2008

STATE OF NEW JERSEY IN THE INTEREST OF J.W., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Middlesex County, FJ-12-557-07; FJ-12-551-07; and FJ-12-1605-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 22, 2008

Before Judges Cuff and Fisher.

J.W., a juvenile, was adjudicated delinquent for conduct which, if committed by an adult, would constitute lewdness, N.J.S.A. 2C:14-4b(1), and sexual assault, N.J.S.A. 2C:14-2b (Complaint No. FJ-12-551-07); three counts of resisting arrest, N.J.S.A. 2C:29-2a (Complaint No. FJ-12-557-07); and terroristic threats, N.J.S.A. 2C:12-3b (Complaint No. FJ-12-1605-07).*fn1 At the disposition, the judge merged the lewdness adjudication with the sexual assault adjudication and imposed a three-year maximum penalty. On the resisting arrest adjudications, J.W. received a two-year maximum penalty concurrent to the penalty imposed for sexual assault. On the terroristic threat adjudication, the judge imposed a maximum penalty of six months to be served consecutive to the three-year term for sexual assault. He was committed to the care, custody and control of the Juvenile Justice Commission for an aggregate term of three years and six months. The judge also imposed special conditions including anger management, restitution in the amount of $3000 upon verification of damages, and Megan's Law notification and HIV/AIDS testing. The appropriate fines, penalties, and assessments were also imposed.

On appeal, the juvenile raises the following argument:

POINT I

THE TESTIMONY OF OFFICER OLES, WHEREIN HE TESTIFIED TO WHAT DISPATCH REPORTED THAT THE CHILD SAID IN HIS TELEPHONE CALL WAS INADMISS[I]BLE AS THE CHILD WAS AVAILABLE TO TESTIFY, HAD NOT BEEN PREVIOUSLY CROSS-EXAMINED, AND THE STATEMENTS WERE TESTIMONIAL IN NATURE. BASED ON CRAWFORD v. WASHINGTON, THIS ERROR DENIED DEFENDANT HIS RIGHT TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL. (U.S. Const., Amends V, VI, XIV; N.J. Const. (1947), Art. I, paras. 1, 9 and 10.) (Not Raised Below).

This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comment.

The charges and subsequent adjudication arose from an incident in a public park. Two women and a young boy encountered J.W. in the park. The women observed the juvenile approaching them, saw his shorts pulled below his hips, and then realized that the juvenile's penis was visible and he was masturbating.

One of the women used her cell phone to contact the police. Her call was answered by a non-Spanish speaking officer. The woman then used the young boy to convey to the officer her observations in English. At the hearing, the officer who responded to the scene related the message he received from dispatch, which contained the report of the young boy. The child did not testify; however, both of the women who encountered the juvenile in the park did so.

We need not determine whether the officer's repetition of the dispatch message of the boy's report is barred by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). Admittedly, the officer's account of the information received from this dispatcher was hearsay. Here, however, the judge had the benefit of the testimony of both women who had observed J.W., including the woman who initiated the phone call to police. Each woman was subject to cross-examination. In short, the State presented substantial non-hearsay laden evidence of the juvenile's behavior. There is no basis to disturb this adjudication.

Affirmed; remanded for correction of Order of Commitment.


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