dissenting.
The sole issue raised on the State’s appeal is whether the trial court's ruling that the State had exercised due diligence in its effort to locate the child victim of defendant’s sexual molestation represented a sound exercise of discretion. The Court holds that the trial court erred. I disagree, and therefore dissent.
The question before us focuses on Evidence Rule 63(33)’s “tender years” exception to the hearsay rule. The Evidence Rule is quoted in full in the majority opinion, ante at 494, 626 A.2d at 67. In pertinent part the Rule permits the introduction into evidence of hearsay statements made by a child under twelve years of age who has allegedly been the victim of a sexual offense if the proponent of the statement meets certain conditions — here, that “the child is unavailable as a witness and there is offered admissible evidence corroborating the act of *505sexual abuse.” For purposes of that Rule the term “unavailable as a witness” includes the circumstance that “the proponent of the statement is unable, despite due diligence, to procure the attendance of the witness.” Evid.R. 62(6)(d).
In this case the corroborating evidence of the act of sexual abuse is provided in lurid detail in defendant’s confession, the admissibility of which is nowhere challenged on appeal. Defendant’s account of his assault on six-year-old J.G. reads as follows:
Q. Describe the circumstances surrounding the aggravated sexual assault on [J.G.] that happened approximately 12 weeks ago in the camper located in the back yard of 159 Mary Street, Cookstown, NJ.
A. Got off of work a half a day. Went to Henry’s liquor store. Bought two bottles of liquor. Drank two bottles of liquor before I went back to the trailer. It was about four or five. [J.G.] asked me to go out and play. I said no because her mom did not want her outside. She went up to the top of whatever you call those things. I was watching T.V. She asked to come down to watch T.V. Took off my work clothes because they were dirty. Layed on the couch on the right-hand side. She gave me head twice. Then I played around a little bit.
Q. What did you mean when you said she gave you head twice?
A. She put my dick in her mouth and sucked on it and after ten minutes I pushed her head away and came.
Q. How did [J.G.] know how to give you oral sex?
A. She has watched dirty tapes with her mom and myself and everyone else. Q. Did you ejaculate in her mouth?
A. No. I pushed her head away.
Q. Did she give you oral sex again?
A. Yea. About fifteen minutes later she sucked on it again for about four or five minutes and then I told her to stop.
Q. Did you ejaculate the second time she gave you oral sex?
A. No.
Q. What do you mean when you said, “Then I played around a bit”?
A. I put my hands in her pants.
Q. Did you penetrate her vagina?
A. No, Sir.
Q. What part of her body did you touch when you put your hands in her pants?
A. Her pussy, I guess.
Q. Who was home when this occurred?
*506A. Just me, [J.G.] and her brother and sister were asleep.
Q. Were you babysitting the children on this evening?
A. Yes, Sir.
Q. Did you in any way force her to perform oral sex upon you?
A. No, Sir.
Q. Why would she do it to you?
A. Because I asked her to.
Because the foregoing confession standing alone could not support defendant’s conviction, the State sought to buttress the confession through the victim’s hearsay statements to her friend G.H. and to Ms. Rudd, a social worker with the Division of Youth and Family Services. But, as we have seen, the admissibility of those hearsay statements itself turns on corroborating proof of the act of sexual abuse, namely, the confession. Therefore, defendant’s confession performs double duty: it serves as evidence of defendant’s guilt, and it corroborates other evidence of guilt, i.e., the hearsay statements. In short, the case involves cross-corroboration.
The second — and in this case critical — requirement for admissibility of G.H.’s and Ms. Rudd’s testimony concerning what J.G. had told them is that the State prove J.G.’s unavailability. The Court’s opinion contains the assistant prosecutor’s representation of her office’s considerable efforts to locate J.G. See ante at 491-493, 626 A.2d at 65-66. I can add nothing to the court’s recital of the State’s attempt to find the victim; I simply appraise that attempt differently. I would hold that the trial court properly exercised its discretion in concluding that the State had sought with due diligence to locate and procure the attendance of J.G. Although I hasten to acknowledge that the question is a close one and that I might well have decided it differently in the first instance, my doubts nevertheless are not so grave as to permit me to join the Court’s implicit conclusion that no reasonable trial court could have found due diligence in the circumstances presented.
Rather than speculate at length on other steps the State might have taken, the trial court focused on what measures the *507State had in fact pursued, and found them adequate for purposes of application of the Evidence Rule. As the State points out, few clues suggested the possible whereabouts of J.G. and her mother. Letters sent to two possible addresses in New Jersey were undeliverable. The prosecutor then communicated with the Welfare Board, which provided a possible forwarding street address in Houston, Texas. When the Houston police followed up on that lead, they too came up empty-handed. Without a street address or even a city in which J.G. might be living, the State had little to go on.
Those facts serve to distinguish this case from the only two New Jersey “unavailability” cases cited by the Court. In State v. Roman, 248 N.J.Super. 144, 590 A.2d 686 (App.Div.1991), cited ante at 498, 626 A.2d at 69, the authorities knew where the witness was located but made no attempt to secure her appearance for trial after the witness had refused to honor a subpoena. In State v. Hamilton, 217 N.J.Super. 51, 524 A.2d 1281 (App.Div.), certif. denied, 108 N.J. 581, 531 A.2d 1355 (1987), cited ante at 499, 626 A.2d at 70, a case (unlike this one) in which “[t]he proofs against defendant * * were less than overwhelming,” 217 N.J.Super. at 55, 524 A.2d 1281, the Appellate Division concluded that the State had simply acquiesced in the refusal to cooperate exhibited by those who might have information concerning the missing witness’s whereabouts. Ibid.
Moreover, another significant feature plays a role in the determination of the State’s “diligence” in tracking down a witness: the prosecutor’s discretion in allocating resources. In this day of fierce competition for the law-enforcement dollar, courts should be slow to substitute their judgment for that of a prosecutor in the determination of the missions to which limited resources should be devoted. In this case the State had no concrete information concerning J.G.’s actual location or her mother’s receipt of State or federal assistance; therefore I would not, on appellate review, characterize as “mistaken” the trial court’s exercise of discretion, given the prosecutor’s deci*508sion not to send law-enforcement personnel on what could reasonably be viewed as a futile assignment.
The trial court was sensitive to the foregoing concerns, as evidenced by its ruling:
THE COURT: Well, with the benefit of hindsight, I’m sure it can be argued that had they * * * continued their investigation further, maybe they could have located the mother and child some year or more prior to the trial, but I can’t really fault the Prosecutor for this. The Prosecutor did what any Prosecutor has done. They carry the file through the stages — the ordinary stages of the plea, the pretrial conference and it’s not really until shortly before trial or when trial is scheduled that the Prosecutor makes a serious effort to contact witnesses.
Now, here apparently the Prosecutor’s Office was told some almost two years before that the mother and daughter had gone underground and that an attempt had been made to locate them in Texas through contacting the Texas Police Department down there with the results that we’ve already discussed. I don’t think that I have anything before me that suggests that they would have found the mother and child had they continued further two years before. So I have no choice but to find — to make the same finding, that for the purposes of the statute, that the child is unavailable.
I would reverse and remand to the Appellate Division for consideration of defendant’s other points, which that court did not reach because of its disposition of the appeal.
For affirmance — Justices GARIBALDI, HANDLER, POLLOCK, O’HERN, and STEIN — 5.
For reversal — Justice CLIFFORD and Chief Justice WILENTZ — 2.