NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2083-10.
Joseph E. Krakora, Public Defender, attorney for appellant K.B. (Michael C. Wroblewski, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent State of New Jersey (Nidara Rourk, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Axelrad and Haas.
K.B., a sixteen-year-old juvenile at the time of the offense, appeals from an adjudication of delinquency for an offense that, if committed by an adult, would have constituted aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5) and (7). On appeal, K.B. contends the court erred in finding him guilty of N.J.S.A. 2C:14-2(a)(7) when he was not charged with that offense, the State failed to prove a violation of either subsection, and the thirty-month placement was excessive. Based on our review of the record and applicable law, we exercise original jurisdiction, modify the judgment of the trial court to enter an adjudication reflecting the lesser-included offense of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and remand for a new disposition.
In juvenile delinquency complaint FJ-09-2083-10, filed April 23, 2010, K.B. was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), and second-degree conspiracy, N.J.S.A. 2C:5-2, for having penile-vaginal sex with fourteen-year-old D.J. Three other juveniles were also charged in connection with a subsequent sexual assault of D.J. the same day, and all four juveniles were tried together. D.O., K.S.,  and A.B. were charged with aggravated sexual assault of D.J. and conspiring with each other to lure her into the bathroom for the purpose of sexually assaulting her. D.O. was adjudicated delinquent of aggravated sexual assault by anally penetrating D.J. with his penis in the presence of A.B. and K.S. in the bathroom, but was acquitted of the conspiracy charge. K.S. and A.B. were each adjudicated delinquent of the lesser-included offense of simple assault on D.J.
At the conclusion of trial, the judge found the State proved beyond a reasonable doubt that K.B. committed an act of first-degree aggravated sexual assault on D.J. pursuant to N.J.S.A. 2C:14-2(a)(5) and (7). He dismissed the conspiracy charge as insufficiently charged, and dismissed the unrelated theft of services charge. On January 19, 2011, he imposed a disposition of a concurrent thirty-month placement with the Juvenile Justice Commission for sexual assault and probation violation, with a term of post-incarceration supervision equivalent to one-third of the term, N.J.S.A. 2A:4A-44(d)(5). K.B. was further required to register as a Megan's Law offender. Mandatory fines and fees were also imposed. K.B. appealed.
At trial, the State presented the testimony of D.J., her twelve-year-old girlfriend K, a sexual assault nurse examiner, forensic scientists, and detectives. None of the juveniles testified or presented witnesses on their behalf. The following facts are derived from the trial testimony.
D.J. testified that on April 20, 2010, she was hanging out after school with K and a third girl near Montgomery Gardens in Jersey City. K told her that K.B. wanted to talk to her. The girls went into K.S.' apartment and D.J. talked to K.B. in a room. He asked her if she was a virgin, to which she replied "yes." Afterwards, they all went outside, sat on a bench, and talked for a few hours with other people. D.J. then went upstairs with K and two other girls to buy Roman candles from K.S., and a group of people joined them in the apartment.
K.S. told her his brother wanted to talk to her. She followed K.B. into the bathroom and sat on the sink. The door was closed. It was dark but she could see a little bit from a light coming from the kitchen. "He then put [her] on the floor and he pulled [her] pants and panties" halfway down her legs, a little below her knees. He then "put his dick in [her] pussy." She did not want him to do this and he hurt her; while he was doing this she did not say anything because he had his hand over her mouth, although she made noises that were like "moaning and screaming put together." This happened for five or six minutes, until she ...