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State v. E.R.

Superior Court of New Jersey, Law Division, Camden

February 7, 2019

STATE OF NEW JERSEY, Plaintiff,
v.
E.R., Defendant.

          Alexander Levin, Assistant Prosecutor, for plaintiff (Mary Eva Colalillo, Camden County Prosecutor, attorney).

          Edward Crisonino, attorney for defendant.

          POLANSKY, J.S.C.

         PROCEDURAL HISTORY

         Under Indictment Number 2549-08-15, defendant E.R.[1] is charged with the following offenses: first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1) (Count One); second-degree sexual assault in violation of N.J.S.A. 2C:14-2b (Count Two); and second-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a (Count Three).

         The State has filed a motion seeking to admit the statements that the mother of the victim made to a physician pursuant to N.J.R.E. 803(c)(4). The two-year-old child did not make any statements to the physician. The issue before the court is whether statements made to a treating physician by someone other than the patient are admissible under the Rules of Evidence. There are no New Jersey cases that address this question. Therefore, this is an issue of first impression before the court.

         STATEMENT OF FACTS

         The State alleges that on April 24, 2015, A.C. picked up her two-year-old daughter, R.R., the alleged victim, pursuant to a custody agreement with R.R.'s father, defendant E.R. After she arrived home with R.R., A.C. gave her daughter a bath and later observed what she described as a green yellowish discharge on R.R.'s panties and took R.R. to the hospital.

         R.R. was treated at the hospital and tested positive for gonorrhea. While being treated at Cooper Hospital, Dr. Stephanie Lanese of the N.J. C.A.R.E.S. Institute provided a consultation. Dr. Lanese prepared a report documenting her medical evaluation of R.R. and her recommendations for treatment. The doctor's report states, "prior to proceeding with the examination, I attempted to speak with [R.R.] with mom present, but she would not talk to me." The patient, a two-year-old child, did not provide any statement to the physician.

         The mother advised the physician that after picking up the child and bringing her home, she went to bathe the child. At that time, the child was not wearing panties. After bathing the child, the mother put panties on the child as she was dressing. Later when the child went to use the bathroom, the mother noticed a discharge on these panties. The mother reported that she had not seen the child for approximately three months prior to this visit.

         Based upon her examination and evaluation, Dr. Lanese reported that gonorrhea is a sexually transmitted disease which is unlikely to be transferred through accidental or innocent means. The doctor further concluded that the normal incubation time for gonorrhea is between two and fourteen days, with a discharge presenting between three and seven days after the disease is contracted. Additionally, the history provided by the mother indicated that the mother did not have gonorrhea during her pregnancy or when the child was born. The doctor concluded that the child had contracted gonorrhea within a week or two of her visit to the hospital.

         Based upon the report of this physician, detectives obtained consent to obtain body exemplars and urine samples from the five males residing at the defendant's residence. This is the residence where the child had been living. Defendant was the only resident who tested positive for gonorrhea. Subsequently during questioning by detectives, defendant admitted to contact between his penis and the child's vagina.

         LEGAL ANALYSIS

         A. New Jersey Standards for Admitting Statements Made for the Purpose of ...


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