NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1579-12W.
Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor and Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for appellant State of New Jersey (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano and Ms. do Oteiro, of counsel and on the brief).
Alton D. Kenney argued the cause for juvenile respondent J.T. (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Mr. Kenney, on the brief).
Before Judges Yannotti and Harris.
The State appeals from an order entered by the Family Part on August 8, 2012, dismissing the complaint against the juvenile, J.T. For the reasons that follow, the appeal is dismissed.
In February 2012, a complaint was issued, charging J.T. with acts that, if committed by an adult, would constitute first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1), and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). The complaint alleged that on May 1, 2010, J.T. had performed an act of fellatio upon R.H., who was thirteen-years old at the time.
On March 13, 2012, the Family Part judge conducted a status conference in the matter, and defense counsel asked whether the judge was going to conduct a N.J.R.E. 803(c)(27) hearing prior to the trial to determine whether R.H.'s out-of-court statements were admissible under 803(c)(27). The judge stated that he usually handles the 803(c)(27) hearings "within the context of the trial unless there's some indication that [he] should do them pretrial." The judge noted that this would be a bench trial and he preferred not to hear the testimony twice. Defense counsel stated that, if the judge wanted to "do it all the same day, same day is fine."
A scheduling conference was held on May 30, 2012. The judge inquired whether there were any 803(c)(27) issues, and defense counsel responded that he had previously asked that these issues be considered "pretrial" but the judge had indicated that it was his "practice to do it the day of the trial." The judge stated, "We'll do a 104 hearing as part of [the trial]."
The parties appeared for the trial on July 31, 2012. The judge stated that he recalled they were "going to do the 803(c)(27) hearings first" and then we'll "go from there." Defense counsel stated that this was not his recollection but the assistant prosecutor said that this was "exactly" his "understanding."
The following colloquy ensued between the court and the attorneys:
THE COURT: Well normally what I do is take the testimony of the State's witnesses. If there is some other kind of motion, I conduct a 104 hearing in the same context as the trial.
So [what] I'm saying is, I'm not saying we're going to have two different trials.
[DEFENSE COUNSEL]: No, what I'm —
THE COURT: What I thought, I thought you had requested that we focus in on the 803(c)(27) first.
[DEFENSE COUNSEL]: Well I did Your Honor. But the first witness that's ...