On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-367-04.
The opinion of the court was delivered by: Sabatino, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Collester and Sabatino.
Following three days of hearings, the trial court on February 16, 2005 issued a final order civilly committing R.Z.B. to the Special Treatment Unit (STU) for the treatment of persons pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from that order on various grounds. We affirm.
R.Z.B. has a long history of involvement in criminal and sexually inappropriate conduct. His sexual issues date back to the age of sixteen*fn1 , when he was molested by an adult stranger claiming to be a photographer. Since that time, he has had a lengthy criminal record spanning over three decades, beginning with convictions in the New York state courts in the early 1980s.
In 1981 R.Z.B. brought a thirteen-year-old boy and a fourteen-year-old boy to his apartment in The Bronx, New York and engaged them in oral sex. He also made one of those children take pictures of him performing sex with the other. In that same year, R.Z.B. admitted to the mother of a different nine-year-old boy that he had performed oral sex on her son.*fn2
After being charged with these offenses in the New York courts, R.Z.B. pled guilty in 1983 to sodomy in the second and third degrees. He was sentenced by the New York court to two consecutive five year periods of probation.
In 1985 R.Z.B. was again arrested in New York for committing sodomy with three boys between the ages of eleven through fourteen. This led to R.Z.B. being found guilty of two counts of sodomy in a trial by jury. However, that conviction was reversed on appeal in 1987 and remanded. He then pled guilty to one count of sodomy for the same charged conduct and was sentenced to one to three years in prison. That term was extended further because the 1985 sodomy offenses occurred while he had been on probation. R.Z.B. was paroled in New York in January 1992.
In June 1993 R.Z.B. and relatives of an acquaintance named E.F. purchased a house in Bayonne, New Jersey. R.Z.B. and E.F. occupied separate portions of the basement of that home. The two men placed an advertisement in the newspaper inviting boys between the ages of fifteen-and-a half and seventeen-and-a-half to perform construction work on the house. The Bayonne police were notified in that same month of a possibility of illegal activity in the house. The police placed the house under surveillance.
From June through September 1993 R.Z.B. repeatedly brought groups of underprivileged male youths from The Bronx to his Bayonne house. The youths went with R.Z.B. to a nude beach at Sandy Hook, and would sometimes stay over the night. R.Z.B. showered with the boys, and had them play games in which he encouraged them to strip.
During this time frame Detective Robert Hoever, an undercover agent with the New Jersey State Police, established a personal relationship with R.Z.B. As part of his undercover investigation, Hoever arranged with R.Z.B. and E.F. to exchange $25,000 for photographic slides of child pornography. On September 9, 1993, R.Z.B. made such an exchange of thirty-one slides, which he had brought to Bayonne from New York. Eight of the slides showed a young boy with an erection. Upon viewing the slides, Bayonne law enforcement officers entered the home and arrested R.Z.B. and E.F.
Following the arrests, FBI agents found several sexually explicit videotapes in the Bayonne residence. A search of R.Z.B.'s other house in Mount Vernon, New York uncovered other sexually explicit tapes. One videotape, made in the basement of the Bayonne house, showed R.Z.B. frolicking with two seventeen-year-old boys, naked and in various stages of sexual arousal. Another videotape seized in Mount Vernon depicted a twelve-year-old boy and a fourteen-year-old boy engaged in sexually explicit conduct. A third videotape showed a thirteen-year-old boy nude on the beach and focused on his genital area. The evidence also included an audiotaped telephone conversation in which R.Z.B. persuaded a twelve-year-old boy to be filmed naked, by taking advantage of the boy's desire for a new bicycle.*fn3
R.Z.B. and E.F. were subsequently indicted in the United States District Court for the District of New Jersey. The indictment charged R.Z.B. with conspiracy to induce underage persons to cross state lines to engage in sexually explicit activity illegal under a state statute and to engage in sexually explicit conduct to produce a visual depiction to be transported across state lines, all in violation of 18 U.S.C.A. §§ 2423 and 2251(a). Defendant was additionally charged with conspiracy to transport, receive, distribute, possess, and ship such depictions in violation of 18 U.S.C.A. §§ 2252(a)(1), 2252(a)(2), and 2252(a)(4)(B).
At R.Z.B.'s ensuing federal trial in April 1995, the Government's proofs showed that several of the young men who had been lured to R.Z.B.'s house in Bayonne were under the age of eighteen and, therefore, minors. However, the Government did not prove that those youths were under the age of sixteen. That lack of proof was problematic as to one aspect of the federal indictment, which charged R.Z.B. under 18 U.S.C.A. § 2423 with conspiracy to transport persons under the age of eighteen across state lines to commit a sexual offense contrary to a state statute. The pertinent state statute on that count, N.J.S.A. 2C:14-1 to -3, only makes such conduct with a minor, as described in the indictment, a crime if the victim is under sixteen. Because none of the victims of sexual activity lured to New Jersey were proven to be under the age of sixteen, the Government could not establish that R.Z.B. had transported, or had conspired to transport, minors across state lines to violate that pertinent state criminal law. However, there was substantial proof adduced as to several of the remaining charges in the indictment that did not hinge upon the age requirements of the state statute.
In April 1995 the federal jury found R.Z.B. guilty of sexual exploitation of children; interstate transportation of child pornography; receipt, distribution and reproduction of child pornography; possession of child pornography and conspiracy. The jury's verdict was factually supported in particular by evidence that R.Z.B. had enticed the two seventeen-year-old boys to make a sexually explicit video, and then carried that videotape across state lines from New Jersey to New York.
During R.Z.B.'s federal sentencing, the district judge specifically observed, among other things, that R.Z.B. was "attracted to boys and youths." R.Z.B. was sentenced to 121 months in federal prison, followed by three years of probation. Further, the district judge ordered R.Z.B. to "participate in a mental health program for evaluation and/or treatment if directed by the [United States] Probation Office," mandating that he was to "remain in treatment until satisfactorily discharged and with the approval of the [federal] Probation Office." Standard provisions of R.Z.B.'s federal probation also required him to remain in New Jersey within the judicial district of the court and to not associate with any person convicted of a felony.
R.Z.B.'s motion for reconsideration of his sentence was denied. His appeal to the United States Court of Appeals for the Third Circuit was unsuccessful.
While housed in the federal penitentiary in Butner, North Carolina, R.Z.B. enrolled in a Sex Offender Treatment Program in November 2000. He was discharged from that program three months later because of "inappropriate" materials that had been found by corrections staff among his possessions.
R.Z.B. was released from federal prison on September 25, 2002 and began living in Union City. He registered as a sex offender, pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19. In 2003 R.Z.B. filed a motion in the Law Division seeking to be removed from the Megan's Law registry. That motion was denied, a disposition we affirmed in 2005. See In re Registrant R.B., 376 N.J. Super. 451, 474 (App. Div.), certif. denied, 185 N.J. 29 (2005).
In September 2003 R.Z.B. violated the terms of his federal parole by traveling out of New Jersey on two occasions that month to The Bronx, New York, and by socializing with E.F., a convicted felon. R.Z.B. was found guilty of these violations by the federal judge who had originally sentenced him. R.Z.B. consequently was returned to federal custody on January 12, 2004, and was sent to a federal correctional facility at Fort Dix for three months. The district judge specified that upon R.Z.B.'s completion of his additional punishment for the parole violations, he would no longer have to serve a further term of supervised release.
Shortly before R.Z.B.'s scheduled release from federal custody on the parole violations, the New Jersey Attorney General began the process of seeking his civil commitment under the SVPA. The Attorney General arranged for two psychiatrists to interview and evaluate R.Z.B. in federal prison for that purpose. Those interviews produced expert reports indicating that R.Z.B. suffered from paraphilia NOS, (Not Otherwise Specified), pedophilia and personality disorder NOS. The experts opined that R.Z.B. was highly likely to reoffend if released into the community. On April 6, 2004, the Law Division temporarily ordered R.Z.B.'s civil commitment to the STU, pending a full commitment hearing. R.Z.B. was released from federal custody on his scheduled federal release date of April 9, 2004, and was immediately placed in the STU under State supervision.
Apparently seeking the intervention of the federal judge who had sentenced him, R.Z.B. wrote a letter*fn4 to the district judge, informing the judge that the New Jersey Attorney General was pursuing R.Z.B.'s civil commitment as a sexually violent offender. The district judge responded to R.Z.B. in a letter dated May 14, 2004. In that letter, the judge noted that he had given R.Z.B. a sentence significantly below the pertinent federal sentencing guidelines for what the judge characterized as R.Z.B.'s "technical violations" of parole. The district judge further commented:
My reason [for the below-guidelines sentence] was that it was evident to me that you were fully able to lead a constructive life and that you did not pose any danger to under-age persons. This conclusion was based upon my continuing involvement in your case since its inception in 1994, your gainful employment during your period of release, your successful therapy with Dr. Martinez, your successful passing of a lie detector test and other evidence that you had had no involvement with under-age persons and that your sexual orientation was being directed into appropriate channels.
Nonetheless, the district judge advised R.Z.B. that the federal court lacked the authority to intercede in the State's proceedings under the SVPA:
The proceedings which the State of New Jersey brought against you are not within my jurisdiction.
The district judge did, however, offer R.Z.B. access to pertinent materials from his ...