On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-373-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 11, 2007
Before Judges Wefing, Parker and Lyons.
R.R.R. is a forty-one-year-old man who was serving a state prison term of seven years for second degree kidnapping and third degree theft. Before his release, the Attorney General filed a petition for R.R.R.'s civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. R.R.R. now appeals from a January 19, 2006 order finding that he is a sexually violent predator and ordering that he be committed to the Special Treatment Unit, pursuant to the SVPA. We affirm.
A short recitation of the pertinent facts is essential to our analysis. R.R.R. was born on July 25, 1966. On January 8, 1986, R.R.R. and two other individuals abducted a thirty-two year-old woman, J.D., as she was walking to her car. As she was unlocking her car, one of the men came up to her with a gun and told her to get into the car. All three men entered the car and J.D. was told to drive off. Subsequently, J.D. was told to get into the back seat, where two of the men raped her. The third man, identified as R.R.R., attempted to rape J.D., but was unable to do so and stopped, stating that she "got him mad." After driving around, deliberating whether to shoot J.D., the men told her to leave the car. One of the men threw J.D. a dollar.
On October 31, 1986, R.R.R. was convicted by a jury of one count of first-degree kidnapping in violation of N.J.S.A. 2C:13-1(b); one count of first-degree robbery in violation of N.J.S.A. 2C:15-1; and three counts of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(3) [collectively, the "1986 Conviction"]. He was sentenced to twenty years imprisonment for the kidnapping conviction. R.R.R. was also sentenced to fifteen years for the robbery conviction, ten years for two of the aggravated sexual assault convictions, and fifteen years imprisonment for one of the sexual assault convictions, all to run concurrently with the kidnapping conviction. He was paroled in 1993.
On May 25, 1996, while a parole absconder, R.R.R. was arrested again. He was charged with first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2 and second-degree kidnapping in violation of N.J.S.A. 2C:13-1. The seventeen year-old victim, S.A., claimed that on May 8, 1996, R.R.R. approached her while she was walking on the street. After S.A. informed R.R.R. that his advances were not welcome, he grabbed the victim and placed his hand over her mouth. R.R.R. threatened to "blow her head off" if she did not comply with his demands to allow him to sexually assault her. She complied. R.R.R. then raped S.A.
Later, when shown a group of photographs of possible suspects by the police, S.A. began sobbing and crying when she saw R.R.R.'s black and white photograph. She informed the officer that R.R.R. was the person who raped her.
R.R.R. subsequently pled guilty to second-degree kidnapping and received a seven-year term of incarceration ["1996 Conviction"]. The sentencing judge indicated on the record at the plea hearing that the kidnapping charge was downgraded to a second-degree offense and the sexual assault charges were dropped. The seven-year term would run concurrently with the parole violation. According to the record, the statement of S.A. to the police was annexed to the pre-sentence report (PSR). In that statement, S.A. details the sexually violent nature of the assault. At R.R.R.'s July 16, 1996 plea hearing, R.R.R. was asked one question by his attorney:
Q: [R.R.R.], I call your attention to the 8th of May of this year in the city of Newark. At that time and place did you hold one -- an individual, age 17, with the initials S.A. against her will and prevent her from leaving with the intent to assault her?
To that question, R.R.R. responded, "Yes." After establishing that R.R.R. had moved the victim from one location to another, the court found a sufficient factual basis to sustain a kidnapping conviction pursuant to N.J.S.A. 2C:13-1.
R.R.R. was sentenced on October 17, 1996 for the kidnapping offense, the parole violation, and an unrelated theft charged. In referring to the PSR which included S.A.'s detailed statement of her sexual assault, R.R.R.'s counsel stated that the only correction to the PSR was to strike an arrest in Montclair that R.R.R. said did not occur. After the court noted that correction, R.R.R.'s counsel said, "[o]ther than that, it's accurate."
R.R.R. has told several different versions of his interactions with S.A. R.R.R. has claimed that he was dating S.A. and had consensual sex with her. R.R.R. has also asserted that there was some confusion since there are two people named S.A. Later, R.R.R. claims that he broke off his platonic relationship with S.A. when he discovered that she was seventeen years-old, which was illegal or against his personal code. He asserts that S.A. falsely claimed that she was raped because she was seeking revenge for ending their relationship by forcing her to leave his car by some unspecified means. These accounts vary strikingly from S.A.'s statement to the police annexed to the PSR describing a violent sexual assault by a stranger.
While R.R.R. was still incarcerated for the 1996 Conviction, the Attorney General filed a petition on May 18, 2004, to civilly commit him under the SVPA. The State attached two clinical certifications in support of its application, one prepared by Donald Reeves, M.D. and one prepared by Vasudev N. Makhija, M.D., both psychiatrists employed by Central Medical Services, the healthcare entity that provides medical services to State Prison inmates.
In his certification dated May 18, 2004, Dr. Reeves found, based on personal examination and review of R.R.R.'s medical, criminal, and other history, that R.R.R.'s Personality Disorder NOS predisposed him to commit acts of sexual violence. As a result of his Personality Disorder NOS, [R.R.R.] has serious difficulties controlling his harmful sexual behavior such that it is highly likely that he will not control his sexually violent behavior and will re-offend.
According to Dr. Reeves, R.R.R. scored a 7 on the Static-99, which is "associated with a group of offenders who exhibit a 52% probability of re-conviction for a sexual offense within 15 years of release."
As part of his evaluation, Dr. Reeves considered the 1996 police report, among other documents, to obtain R.R.R.'s personal history. The 1996 police report contained a summary of S.A.'s account of the assault. Although he was not convicted of a sexually violent offense in 1996, Dr. Reeves stated that R.R.R. "denies he committed the offense. I do not believe him."
Dr. Makhija also examined R.R.R. Based on that clinical examination and a review of various medical and criminal records and reports, including a PSR and a victim statement, Dr. Makhija certified that he diagnosed R.R.R. with Personality Disorder NOS with Antisocial Features and that R.R.R. suffers from a mental abnormality (as defined by the Act) or personality disorder that makes the person likely to engage in act of sexual violence if not confined to a secure facility for control, care and treatment.
Based in part on these certifications, the court found on May 27, 2004, probable cause to believe that R.R.R. was a sexually violent predator (SVP) in need of commitment and temporarily committed him to the State of New Jersey Special Treatment Unit (STU), pending a final hearing on the matter.
On September 20, 2004, the court heard and denied R.R.R.'s May 24, 2004 motion to dismiss. The initial commitment hearing was held on December 9, 2004, December 5, 2005, January 9, 2006 and January 17, 2006. On January 19, 2006, the court read its opinion into the record finding R.R.R. a sexually violent predator and ordering that he be committed to the STU, pursuant to the SVPA. R.R.R. now appeals from the trial court's order signed January 25, 2006.
Following submission of his appeal, R.R.R. moved to supplement the record, pursuant to Rule 2:5-5(a). On September ...