On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0813.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010
Before Judges Carchman and Messano.
By leave granted, the State appeals from an order denying its pre-trial motion to admit certain out-of-court statements made by the child victim in this sexual assault case, seven-year-old J.N. After consideration of the record and applicable legal standards, we reverse and remand the matter to the trial judge for further proceedings consistent with this opinion.
Defendant was indicted by the Middlesex County grand jury and charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Pursuant to N.J.R.E. 803(c)(27) (the Rule), the State sought to admit statements J.N. made to prosecutor's investigator James Patrick Kelly and to her mother, C.O. The rule provides in relevant part:
Statements by a child relating to a sexual offense. A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal . . . proceeding if
(a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; . . . . [N.J.R.E. 803(c)(27).]
The required Rule 104 hearing took place over two days separated by several months.
Kelly, an investigator with the prosecutor's office since 1990 and assigned to the sexual abuse unit since 2006, testified that on February 10, 2008, he was contacted by Perth Amboy police detective Ken Puccio. Puccio told him that C.O. had contacted the police to report J.N.'s allegations regarding defendant. In short, on February 9, J.N. was staying with her sister, F.A., who lived with defendant. J.N. claimed that while she was asleep, defendant took her from the bedroom, placed her on a couch, removed his pants and hers, and digitally penetrated her vagina. Kelly interviewed C.O. at the prosecutor's office child advocacy center and obtained her consent to interview J.N. He testified regarding the procedure he used to interview the child, and a digital video recording of his interview of J.N. was played for the judge.*fn1
C.O. also testified at the hearing. At the time of the events, her boyfriend, someone she identified only as Leo, stayed with her and J.N. on weekends. C.O. testified that she worked the evening of February 9 into the early morning hours of February 10 and left J.N. in the care of her oldest daughter, H.A.; unbeknownst to her, however, that daughter brought the child to F.A.'s house.
C.O. picked up J.N. at F.A.'s house at 1:00 p.m. on the afternoon of February 10. She suspected something was wrong because J.N. was "sitting like still" on the sofa when she arrived. C.O., J.N., and Leo went to lunch and returned to their home around 4:00 p.m. J.N. went "straight to [her] room and . . . under her blanket . . . ." C.O. expressed concern about the child's behavior to Leo and asked him to talk to J.N. He went to the child's room.
C.O. claimed that J.N. trusted Leo and "called him daddy." However, J.N. would not tell Leo what was wrong. He left for work at 6:00 p.m., and between thirty minutes and an hour later, J.N. came into C.O.'s room. The child was "shaking," and said, "I need to tell you something, but I'm afraid." After her mother consoled her, J.N. revealed that defendant had "touched her." C.O. called her other daughter, K.A., who ...