On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP 220-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodríguez and C.L. Miniman.
J.N. appeals from an order for continued commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends that the State failed to prepare a discharge plan in accordance with a court order and that the judge erred in not enforcing that order, citing In re Commitment of J.J.F., 365 N.J. Super. 486 (App. Div.), certif. denied, 179 N.J. 373 (2004). He asserts that the State did not provide testimony from his treatment team and, thus, the State did not meet its burden of proof. J.N. argues that his expert was focused on the here and now, unlike Pogos Voskanian, M.D., who looked at where J.N. was twenty years ago. Finally, J.N. contends that the hearing was fundamentally unfair because the judge displayed animosity to his lawyer.
The State disputes any violation of the court order respecting a discharge plan and notes that J.N. bore the burden of presenting such plan because the treatment team does not believe that J.N. is ready for discharge. It argues that testimony from Dr. Voskanian alone, even though he was not a member of the treatment team, was sufficient under In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). Finally, the State asserts that it is not fair to attack the judge now when the issue was not raised below. We affirm in all respects.
J.N. is a serial rapist with a long-standing pattern of sexual and criminal offenses. He was arrested and charged with raping a fifteen-year-old girl on December 20, 1966, at a time when he was nineteen years old. The charge, however, was nobilled. Nine months later, on August 21, 1967, he robbed and raped an adult female. He pled not guilty but failed to appear for trial and on June 20, 1968, his file was marked "inactive" by order of the assignment judge. On March 16, 1971, J.N. was arrested and charged with larceny and was given a five-year suspended sentence at Yardville on March 24, 1972. The untried inactive rape and robbery charges were dismissed and J.N. was placed on probation for two years.
On July 8, 1974, he stepped through an open door into an apartment occupied by a sixteen-year-old girl and her family. He demanded money and ultimately threatened to rape the teenager. After digitally penetrating her, she pleaded with him to leave and told him that she would get more money. When she did so, he fled from the house. He pled not guilty to the charges. While they were pending, he escaped from Holmsburgh Prison and committed several more offenses.
First, on October 9, 1975, he stuck a pair of scissors at L.B. and forced her into a residence on Spruce Street in Philadelphia, raped her and forced her to perform fellatio. He was arrested that day and charged with rape and involuntary deviant sexual intercourse, among other offenses. He was found guilty by a jury on February 9, 1976, and was sentenced to a term of one to two years for the rape conviction and five years probation for the other offenses. He served less than a year.
In November 1976 J.N. was arrested in New Jersey for breaking and entering, but the charges were dismissed. He was also charged with escape and pled guilty on February 14, 1977.
He also entered a plea of guilty to assault with intent to a rape on some 1973 charges. He was sentenced to Yardville for an indeterminate term with a maximum of nine years for assault with intent to rape and to an indeterminate term with a maximum of five years for his conviction of escape. The sentences ran concurrently and he was paroled on April 26, 1978.
On November 8, 1978, J.N. was arrested and charged with sexual assault and carnal abuse. His parole was revoked but he was again paroled on January 17, 1979. The sexual offense charges were no-billed on January 22, 1979.
On June 26, 1979, J.N. was arrested and charged with rape while armed and rape. His parole was again revoked, but the charges were dismissed on July 28, 1981. He was also charged with burglary and larceny on November 23, 1981, but the disposition of the charges is unknown.
The predicate offenses involve three separate rapes, on February 5, April 11 and April 12, 1982. Each of the rapes involved use of a weapon and demands for money. The first victim was raped vaginally seven times over a four-hour period. She was also compelled to perform fellatio four times and J.N. performed cunnilingus twice. The second victim was forced to perform fellatio and then vaginally raped once. J.N. then performed cunnilingus. The third victim was raped in the presence of her two small children. J.N. also forced her to perform fellatio and digitally penetrated her rectum. J.N. pled guilty to three counts of aggravated sexual assault on three separate indictments and on September 30, 1983, J.N. was sentenced to ADTC for three concurrent twenty-year prison terms. He was paroled on November 19, 1994.
Seven months after J.N. was paroled, he assaulted a woman sitting in the rear passenger seat of her vehicle waiting for her husband at the train station. Her infant daughter was with her. J.N. jumped into the car, slammed the door and demanded money. He placed the woman in a headlock and shouted that he wanted more money. At that point the woman's husband walked out of the train station and saw his wife struggling with J.N. in the rear seat. J.N. saw the husband running to the car and he exited the vehicle and began to run. He was apprehended shortly thereafter and on August 3, 1995, he pled guilty to robbery in the second-degree. On October 6, 1995, he was sentenced to a ten-year prison term with three and one-half years of parole ineligibility.
With an expected release date of December 27, 2001, the State filed a petition for involuntary civil commitment. J.N. was temporarily committed on October 12, 2001, and on July 17, 2003, the judge entered a judgment of commitment. J.N.'s commitment was reviewed and continued on February 10, 2004, December 2, 2005, July 25, 2006, and September 26, 2007. J.N. has appealed from the last continuation of his commitment.
Three witnesses testified at the September 12, 2007, review hearing, one for the State on direct, Dr. Voskanian; one for the defense on direct, Daniel Greenfield, M.D.; and one for the State on rebuttal, Nicole Paolillo, Psy. D. Dr. Voskanian reviewed treatment records for the period from July 3, 2006, through shortly before the date of the hearing. Dr. Voskanian testified that J.N. had admitted to committing the two crimes which had been no-billed, including the rape of the fifteen-year-old girl. J.N. told Dr. Voskanian that he enjoyed putting fear into females that he raped and that the primary purpose of knocking on doors was not to rob, but to rape. In prior interviews J.N. had claimed that the primary motive was robbery. J.N. was sixty years old at the time of the interview.
J.N. abused alcohol and reported that he had a verbally abusive childhood. His mother would tell him that she wished she had flushed him down the toilet when he was born and said that he would never amount to anything. He explained that he raped women because he felt unloved and, when he was violent, he would visualize himself as a newborn being flushed down the toilet. He stated that, because he felt like shit, it ...