On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-1214-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Baxter.
A.W., a juvenile, appeals from an adjudication by a Family Part judge finding him delinquent, having committed acts that, if he were an adult, would constitute aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and attempted aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and 2C:5-1a. On appeal, A.W. presents the following arguments:
POINT I A.W.'s STATEMENT WAS TAKEN IN VIOLATION OF HIS RIGHT AGAINST SELF-INCRIMINATION AND THE SPECIFIC ADDITIONAL RIGHTS AFFORDED TO JUVENILES, NECESSITATING SUPPRESSION AND REVERSAL.
POINT II DR. PELLICCIA's TESTIMONY REGARDING K.P.'s HEARSAY ALLEGATIONS OF SEXUAL ABUSE WAS NOT ADMISSIBLE AND IMPROPERLY BOLSTERED K.P.'s CREDIBILITY DENYING A.W. A FAIR TRIAL.
A.W. does not challenge the judge's determination that he is subject to Megan's Law or his sentence of three years of probation with outpatient counseling.
A bench trial was conducted in this matter, at which testimony was offered by the female victim, K.P.; examining physician Dr. Francis Pelliccia; K.P.'s mother, E.R.; Assistant Prosecutor Scott Peterson; the person who interviewed K.P. and A.W., Detective Janet Lopez; and A.W.
E.R. testified that, at 10:00 p.m. on November 21, 2008, upon returning upstairs to her apartment from the laundromat where she was employed, E.R. observed her daughter, K.P., covered with a blanket with the zipper of her pants lowered. When E.R. asked K.P. what she was doing, K.P. responded that she was touching herself because that is what her cousins A.W. and J. would do. She then related that J. would touch her and, on many occasions, while clothed, would lay on top of her, and that A.W., on more than one occasion, penetrated her vagina with his finger and then licked his finger. On one occasion, A.W. had also asked K.P. to lick or suck his penis, but that she had refused. At the time of trial, in May 2009, A.W. was thirteen; K.P. was six.
K.P. confirmed that when she was four and five, A.W. would take off his pants and underwear, expose his penis, and ask her to suck it, but she had not complied. She also confirmed that A.W. had, on more than one occasion, removed her clothes, digitally penetrated her, stopping only when she said it hurt, and then removing and sucking his finger. K.P. testified that, while clothed, J. had more than once lain on top of her, grinding his pelvis into hers.*fn1
Dr. Pelliccia, a pediatrician and consultant child abuse expert, met with and examined K.P. on December 23, 2008. At trial, the doctor testified that K.P. gave a history of having been "touched" in the genital area, but had not bled. The examination that was then conducted was normal as, Dr. Pelliccia stated, greater than ninety percent were. She testified:
That [there was] a normal exam does not mean nothing happened. It does not confirm abuse and it does not deny abuse. It's ...