On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2771-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
J.B. appeals from an April 28, 2010 adjudication of delinquency on one count of sexual assault, N.J.S.A. 2C:14-2(c), and one count of criminal sexual contact, N.J.S.A. 2C:14-3(b), for which the judge sentenced him to a three-year term of non-custodial probation and required him to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23. On appeal, J.B. raises the following claims:
I. THE TRIAL COURT'S DENIAL OF THE SUPPRESSION MOTION WAS ERROR BECAUSE J.B. WAS NOT AFFORDED THE OPPORTUNITY TO CONSULT WITH COUNSEL PRIOR TO GIVING HIS STATEMENT.
II. THE TRIAL COURT'S DENIAL OF THE SUPPRESSION MOTION WAS ERROR BECAUSE J.B. DID NOT GIVE THE STATEMENT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY.
On April 29, 2009, a psychologist from Kearny High School notified the Kearny police that one of the school's sixteen year old students, T.A., reported that on April 27, 2009, she had been sexually assaulted by a seventeen year old male student, J.B. Kearny police notified the Hudson County Prosecutor's Office of T.A.'s allegations, and Detective Mark Groninger, of the Hudson County Prosecutor's Office, interviewed T.A., her mother and her eight-year-old sister, M.A.
T.A. told police she had been friendly with J.B. for one or two years prior to the incident, but had never been romantically involved. T.A. reported that on April 27, 2009, after walking her home from school, J.B. came into her house, and sat on the couch approximately ten to twelve feet from her, while she exercised on a stationary bicycle. Shortly thereafter, T.A.'s mother left to go to the laundromat, leaving T.A., M.A. and J.B. alone in the house.
T.A. told Detective Groninger that shortly after she stepped off the exercise bicycle, J.B. pulled her onto his lap, and hugged her tightly. At the hearing on J.B.'s motion to suppress his oral statement, T.A. described what happened next:
And at first I didn't do anything, I didn't struggle because I thought at that point like okay, you know, its just a hug . . . . I didn't take it too seriously. But then when I asked him to let me go, he didn't and then he just . . . kept his grasp around me [in] . . . the middle of [my] stomach.
And from there I thought -- I began to think okay, like what's going on. And then he started saying something about oh, give into temptation . . . and that struck -- that appeared to be as very weird because I did not know what he was like referring to. . . .
He -- well, since he was already sitting behind me, he kind of like -- he penetrated me with his finger first from behind and after that I remember that he groped my left breast.
T.A. explained that after J.B. inserted his finger into her vagina, he forced her down to the floor and ...