On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1741-09 and FJ-20-1833-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012 - Before Judges Payne and Reisner.
Juvenile, A.J.F., age seventeen, appeals from adjudications of delinquency, finding that he committed acts that, if committed as an adult, would constitute first-degree aggravated sexual assault on a four-year-old girl, A.R.G., N.J.S.A. 2C:14-2a(1), and third-degree endangering the welfare of A.R.G., N.J.S.A. 2C:24-4a. He also appeals his sentence, which consisted of commitment to the Training School for Boys for an indeterminate term not to exceed three years, subject to recall after one year, on the aggravated sexual assault, and a concurrent term of two years on the endangering disposition. Both sentences were to be served concurrently with a three-year commitment for armed robbery - an act of delinquency occurring while the present matter was pending, which is not a subject of this appeal.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN RULING A.R.G. COMPETENT TO TESTIFY AT TRIAL BECAUSE THE REQUIREMENTS OF N.J.R.E. 601(b) WERE NOT SATISFIED.
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT EXCESSIVELY DETAILED TESTIMONY FROM A.R.G.'S GRANDMOTHER UNDER THE FRESH COMPLAINT EXCEPTION TO THE HEARSAY RULE (NOT RAISED BELOW).
THE COURT ERRED IN FAILING TO MERGE THE ADJUDICATION OF DELINQUENCY FOR ENDANGERING WITH THE ADJUDICATION OF DELINQUENCY FOR AGGRAVATED SEXUAL ASSAULT BECAUSE A.G.F. HAD NO LEGAL DUTY OR RESPONSIBILITY TO CARE FOR A.R.G.
THE COURT MISAPPLIED ITS DISCRETION IN IMPOSING DISPOSITION DUE TO ITS IMPROPER FINDINGS OF AGGRAVATING FACTORS AND ITS FAILURE TO FIND APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).
The State concedes that the endangering disposition should have been merged with that for aggravated sexual assault. Thus, the matter must be remanded for correction of the disposition. Otherwise, we affirm.
The record discloses that, in March 2009, A.R.G. told her maternal grandmother repeatedly, while her grandmother was driving home from church with her in Georgia, that V.J. and A.J.F., a friend who lived with V.J. at the home of A.R.G.'s paternal grandmother, "had done this to me." Although the child did not articulate what "this" was, she demonstrated by "making a humping motion and grabbing herself in the backseat."*fn1
According to the grandmother, once home, A.R.G. continued to speak of what had occurred. The grandmother testified that A.R.G. stated: "V.J. had touched me right here." The grandmother continued: "She said that A.J.F. did, too. Her words were, he did that to me too. Constantly pointing to [herself,] touching [herself]."
The grandmother immediately attempted to contact the child's mother and father to tell them what had occurred. On the following day, the grandmother reached A.R.G.'s parents by telephone and, after she gave the phone to A.R.G., the grandmother heard her tell them that V.J. had touched her on her "thing."
A.R.G.'s mother also testified at trial. In her trial testimony, the mother said that, while on the telephone, A.R.G. had stated that both V.J. and A.J.F. "were humping on her and doing sexual things to her." Upon A.R.G.'s return to New Jersey, she told her mother that A.J.F. "was humping on her, touching her sexually, and that he put his tail in her mouth." The mother confirmed that A.J.F. would have had the opportunity to sexually assault ...