On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-194-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Graves.
R.J.A. appeals from a June 8, 2007 order of the Law Division continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, for a term of one year, a new hearing to be held on May 1, 2008. After reviewing the record in light of the contentions advanced on appeal, we affirm.
R.J.A. has a history of violent sexual offenses. The sexually violent offense for which R.J.A. is currently committed to the STU occurred on December 2, 1995, while he was on parole for two prior sexual assaults. In the 1995 attack, R.J.A. struck and forcibly raped a former girlfriend, M.C., also the mother of one of his children. The two previous sexual assaults happened in 1988 when R.J.A. forcibly raped two other females, one an adult stranger and the second a thirteen-year-old runaway. The second 1988 sexual assault occurred while R.J.A. was out on bail for the first sexual assault. In addition to sexually violent propensities, R.J.A. also has two prior convictions for assault and one for theft, and admits to both drug and alcohol addictions.
For the 1995 sexual assault of M.C., R.J.A. was sentenced to an eight-year term, with a five-year parole bar, to be served at the Adult Diagnostic and Treatment Center. Before completing his sentence, the State filed a petition to have R.J.A. civilly committed pursuant to the SVPA. R.J.A. was temporarily committed to the STU on August 30, 2001, and was ordered committed to the STU after a final hearing on September 18, 2001. Shortly after being committed to the STU, R.J.A. was placed on the restricted activities program for meeting his latest rape victim, M.C., who used false identification to gain access to the treatment facility. R.J.A. knew it was wrong to continue seeing M.C. but refused to cut ties with her until right before his first review hearing in 2002.
The initial review hearing was held on November 18 and December 2, 2002, at which time the court ordered that R.J.A. remain in the STU. Specifically, Judge Perretti found that R.J.A. "has great difficulty controlling his impulses, particularly his impulses relative to his sexual behavior" and "that it is highly likely that he will recidivate without further care and treatment." She concluded that he continues to be a sexually violent predator, suffering from abnormal mental condition and personality disorder.
R.J.A. appealed the December 2002 order, and we affirmed. In the Matter of the Commitment of R.J.A., No. A-2089-02T2 (App. Div. June 27, 2005). We noted that the State's proofs established that R.J.A.'s diagnosis at the time of commitment was "paraphilia NOS (non-consent), alcohol and cocaine dependence, sexual sadism and antisocial personality disorder[,]" id. at 3; that R.J.A.'s initial diagnosis had not changed, and now also included impulse disorder NOS and depressive disorder NOS; that his predisposition for sadistic sex placed him in a high risk category for recidivism, id. at 4; and that R.J.A. is a "power and anger" rapist who uses rape as a means of venting anger out on the victim. Id. at 4. We further noted that even R.J.A.'s expert admitted that R.J.A.'s Static-99 score indicated he was at high risk to reoffend. Id. at 5. Thus, all of the experts had then agreed that R.J.A. needed more treatment and that he was still at high risk to reoffend, particularly given the fact that two of his previous rapes occurred while he was out on bail or parole. Id. at 5-6. We, therefore, affirmed the court's finding that R.J.A. would be highly likely to recidivate if released and that he continued to be a sexually violent predator. Id. at 10-11.
Subsequent review hearings were held on May 15 and 21, 2004 and February 23, 2006, at which times R.J.A. continued to be deemed a sexually violent predator in need of confinement. The latest review hearing, which is the subject matter of this appeal, took place on May 15 and 21, 2007, at the conclusion of which Judge Freedman, on June 8, 2007, ordered R.J.A.'s continued confinement. At this hearing, Drs. Luis Zeiguer and Robert Carlson testified for the State. Both experts again confirmed R.J.A's previous diagnosis of paraphilia NOS (non-consent) and polysubstance dependence, now in sustained institutional remission. In addition, Dr. Carlson diagnosed R.J.A. with antisocial personality disorder.*fn1
R.J.A. had related to Dr. Zeiguer different versions of the three rape offenses than he had previously provided to others and different versions than the victims' actual accounts. He said he knew the first female he raped and she had invited him to her brother's house to do crack-cocaine. In contrast, the victim reported that R.J.A. was a stranger, and there is no evidence in the police report that she ever offered to take R.J.A. to her brother's house or that her brother is a drug dealer. R.J.A. also said he knew his thirteen-year-old victim, and that she presented herself as an adult, which directly contradicts the investigation report of the incident.
Lastly, R.J.A. reported to Dr. Zeiguer that on the night he attacked M.C., the two of them had arranged to meet at the bar, he became angry when she tried to leave without him, and he lost his memory and could no longer remember the sexual assault clearly. The victim, however, initially reported that when she saw R.J.A. at the bar that night they had no plans to meet there, he became angry when she tried to give a male friend a ride home, and, after a fight, he dragged her into an alley and raped her. Although M.C. later recanted her rape accusation in 2004, the judge hearing R.J.A.'s post-conviction relief (PCR) application concluded that M.C.'s recantation was not credible, finding she suffered from a classic case of battered woman syndrome. Dr. Zeiguer agreed with the PCR judge and found it significant that M.C. only recanted her story after R.J.A. reinitiated contact with her after he was convicted of her rape.
Dr. Zeiguer also found significant the fact that while R.J.A. reported no longer having fantasies about forced sex or violence, he had also failed a similar question on a recent polygraph test. Although R.J.A. said that he misunderstood the ...