On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FJ-16-207-088.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Rodríguez and Yannotti.
D.M., a fifteen-year-old male, was adjudicated a juvenile delinquent for engaging in conduct, which if committed by an adult would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1). The judge initially imposed a three-year custodial sentence, however, the judge suspended the custodial sentence and placed D.M. on two years probation, conditioned on counseling, Megan's Law requirements, school attendance, curfew and seventy-five hours of community service. Two months later, after the judge received a violation of probation complaint, the judge imposed a two-year custodial term and vacated the probationary term.
The proofs revealed that on July 14, 2007, D.M. and his five-year-old male cousin, R.G., who refers to D.M. as "DeeDee," were in the latter's apartment. D.M. lives with his mother. D.M.'s mother asked the boys to help carry the groceries to her apartment. Thereafter, D.M.'s mother left the boys watching T.V. and she returned to R.G.'s apartment. D.M. and R.G. remained in D.M.'s bedroom.
From this point their stories diverge. According to D.M., R.G. was on the bed watching a pornographic movie. D.M. turned off the television. R.G. grabbed D.M. by the genitals. D.M. pushed R.G. towards the bed and left to take a shower. After taking a shower, D.M. told R.G. to leave the bedroom. D.M. put on a tank top and shorts. The two boys then left the apartment via the fire escape and D.M. went to a friend's party. D.M. stayed at the party talking to a girl and R.G. returned to the downstairs apartment.
D.M. later went to his cousin's apartment, where he heard R.G. ask his mother if he could go to the party. When the mother answered no, R.G. started crying. D.M. left.
R.G.'s mother testified that when R.G. came downstairs, R.G. asked her if he could take a shower. R.G.'s mother found the request unusual. She asked him why he wanted to take a shower. R.G. stated he wanted to tell his mother two things, "[t]he first thing was R.G. and D.M. watched nasty movies and the second thing was I sucked Dee-Dee's [penis] and Dee-Dee suck[ed] my [penis]."
D.M. returned to R.G.'s apartment and was confronted by his uncle, who asked if something happened with R.G. D.M. asked the uncle what he had done. The uncle hit D.M. and D.M.'s grandmother called the police. The police transported D.M. to the youth detention center.
R.G.'s mother took him to the hospital, where an examination was conducted. The examiner revealed no evidence of penetration.
Prior to trial, the judge conducted an evidentiary hearing, pursuant to N.J.R.E. 104(a) and 803(c)(27), to determine the admissibility of a videotaped statement of R.G., conducted by Passaic County Prosecutor's Child Interview Specialist, Francine Raguso.
Raguso interviewed R.G. two weeks after the alleged incident at the Child Advocacy Center. R.G. was accompanied by his mother. Raguso asked R.G.'s mother to tell him that she would be talking with him and it was really important that he tell her the truth. Raguso testified that she did not ask R.G. if he knew the difference between a truth and a lie because research showed it was not beneficial to ...