Submitted May 16, 2017
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Union County, Docket No. FJ-20-209-15.
E. Krakora, Public Defender, attorney for appellant D.M.
(Seon Jeong Lee, Designated Counsel, on the briefs).
H. Park, Acting Union County Prosecutor, attorney for
respondent State of New Jersey (Milton S. Leibowitz, Special
Deputy Attorney General/Acting Assistant Prosecutor, of
counsel and on the briefs).
Judges Reisner, Koblitz and Sumners.
appeals from a May 29, 2015 adjudication of delinquency for
acts which, if committed by an adult, would constitute
third-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a). The dispositional order imposed a three-year
probationary term, N.J.S.A. 2A:4A-43(b)(3), treatment at an
outpatient residential placement program, and full compliance
with sex offender requirements pursuant to Megan's Law,
N.J.S.A. 2C:7-1 to -11. The trial judge found that the State
did not prove the sexual behavior between fourteen-year-old
D.M. and his eleven-year-old alleged victim, "Zane,
" involved sexual penetration. Coercion was not alleged
or found. Based on those findings, using the appropriate
principles of statutory construction, an adjudication of
delinquency against a child for endangering the welfare of
another child less than four years younger based on sexual
contact is not sustainable and we therefore reverse.
was charged with delinquency for conduct occurring between
April 1 and August 20, 2014, which, if engaged in by an
adult, would constitute first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(1).
conducting an N.J.R.E. 104(a) hearing, the trial judge
admitted into evidence Zane's out-of-court disclosures
pursuant to N.J.R.E. 803(c)(27) (permitting hearsay testimony
by a child under the age of twelve "relating to sexual
misconduct committed with or against that child" if the
court finds "there is a probability that the statement
is trustworthy"). The following facts were developed at
the hearing and subsequent trial.
Zane and his younger brother, Za.Y., who was nine years old,
spent time when not in school in the area where their mother,
L.Y., operated her hair salon. Zane and Za.Y. played across
the street from the salon in the playground behind a school
with their friend, R.R., who was fifteen years old at the
time and lived a few doors away from the salon. R.R. and D.M.
had been friends for several years. R.R. introduced D.M. to
Zane at the playground. D.M. is approximately three and
one-half years older than Zane. During April 2014, D.M. was
fourteen years old.
her adult daughter, N.C., N.C. 's boyfriend, Zane, Za.Y,
and E.B., L.Y.'s boyfriend's seven-year-old son were
at L.Y.'s house one evening in August 2015. Zane and
Za.Y. were in their shared upstairs bedroom with E.B. L.Y.
went to "check on the boys." Upon entering the
room, she observed Za.Y. sleeping on the top section of the
bunkbed, and Zane and E.B. sitting together on the bottom bed
in an odd arrangement. Although she initially left, L.Y.
shortly returned and observed that Zane's shorts were
"twisted." L.Y. angrily asked Zane "what
[were] you doing?" Zane initially denied any wrongdoing.
L.Y. then asked E.B. what was going on. E.B. told L.Y. that
"[Zane] was doing nasty things" including
"rubbing his penis on him." L.Y. yelled at Zane,
"popped" Zane on the buttocks, and asked him
repeatedly where he learned this behavior. Zane answered,
"the boy did it to me."
to N.C., she came upstairs and her mother, L.Y., sounded
"furious." N.C. found her mother in her bedroom
crying and yelling at her brother, Zane. N.C. took Zane to
the downstairs bathroom, hugged Zane as he was crying, and
told him he "shouldn't be in bed with another little
boy." N.C. asked him three times, "where did he get
that from?" Zane responded, "someone did that to
him." Zane then told N.C. that D.M. "made him suck
his penis . . . and [D.M.] told [Zane] to put his penis in
his anus." Zane said he had not told his family because
"he was scared of what everyone would think." L.Y.
testified, and N.C. confirmed, that Zane stated he was afraid
"daddy's going to kill me" and his brothers and
father "would think he was gay."
Walter Johnson of the Union County Prosecutor's Office,
Special Victims Unit, testified that he conducted a
one-on-one video-recorded interview with Zane sometime
mid-morning on the day following this incident.
video recording,  Johnson asked Zane "do you know why
you're here today?" Zane responded, "Yeah"
and, "[c]ause I did something." Zane was initially
unresponsive, until Johnson assured Zane that he was
"not in any trouble[, ]" after which he asked Zane
revealed two interactions two weeks apart with D.M. while
they were at the playground. Zane said that, at D.M.'s
request, Zane "sucked [D.M.'s] thingy." Zane
further stated to Johnson that the sexual activity with D.M.
occurred at the playground in a stairwell after it "got
dark" and their friends and Za.Y. left. According to
Zane, both he and D.M. were standing while Zane performed
fellatio on D.M. for only "two seconds." Zane also
claimed he did not know any other name for the part he
referred to as "thingy, " and that D.M. did not
touch any other part of Zane's body. Zane said,
"[i]t made [him] feel weird."
Zane originally denied that D.M. had touched him during this
second incident, he later stated that D.M. "touched
[him] on [his] butt" with D.M.'s "thingy."
Zane stated that D.M. told him to take off his clothes and he
tried to put it in, but Zane told him to stop because
"[i]t kind of hurt." At trial, Zane testified that
it was during the first incident that D.M. attempted to
anally penetrate him.
asked Zane if "something like [the D.M. incident]
happened with anyone else[, ]" and Zane confirmed that
it happened with E.B., his mother's boyfriend's
seven-year-old son, after Zane asked E.B. "to suck his
thingy[, ]" and E.B. complied. Zane told Johnson that
"[l]ast night" was the only time that Zane had ever
done that with E.B., and that nothing else occurred between
told Johnson that he told both L.Y. and his father,
"everything [he] told [Johnson]."
father was in the courtroom as a "support person"
during Zane's testimony. In addition to his disclosures
regarding the two incidents with D.M. in the playground
stairwell, Zane testified at trial about another incident
when he and D.M. walked to D.M.'s house. The first time
he told anyone about this third incident was one week before
trial "because [he] didn't remember it" before
then. According to Zane, D.M. asked Zane if he could
"[p]ut his thing in [Zane's] mouth again, " for
which Zane complied. Zane did not recall when this occurred.
When questioned about the incidents in the park, and asked
whether D.M. told him or "politely ask[ed]" him to
stay, Zane responded: "He asked me." Zane denied
D.M. forced him or threatened him, although he said the
interaction made him feel uncomfortable and "weird"
and he did not like it.
cross-examination, Zane admitted that he used the video and
messaging chat application, "Oovoo, " to contact
D.M. Zane confirmed that one night at 10:29 p.m. he messaged
D.M. Although he refused to read the message aloud, he
acknowledged he wrote to D.M., "So 69, let me C-U-R
cock." D.M. did not respond, although Zane tried to call
him again. Zane also testified on cross-examination that he
knew what "cock" and "69" meant, and that
his older friend R.R. had previously shown him
"dirty" pictures on R.R.'s smartphone. Zane
also said that when discovered with E.B., his mother
"popped" him for the first time in his life.
stated that the night he was discovered having E.B. perform
fellatio on him was not the first time he engaged in that
behavior with E.B. Zane admitted to three sexual encounters
with the seven-year-old. Zane said he ...