On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-460-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Lisa and Alvarez.
Appellant, Y.C.M., appeals from Judge Freedman's August 27, 2007 order committing him to a secure facility as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the State failed to prove by clear and convincing evidence that he is subject to commitment under the SVPA. He further argues, for the first time on appeal, that evaluations prepared by non-testifying experts were hearsay, did not comply with N.J.R.E. 703, and should not have been admitted in evidence. We reject these arguments and affirm substantially for the reasons expressed by Judge Freedman in his thorough and well reasoned oral decision of August 27, 2007.
Appellant was born on August 4, 1966, and he is now forty-two years old. He was convicted of two sexual offenses, by virtue of his guilty pleas on October 25, 1990.
The first offense occurred on April 22, 1989, when appellant was twenty-two years old. His victim was a forty-two year-old woman who was a stranger to him. It was dark outside, and appellant was walking the streets. When he saw the victim, L.C., she was walking to work. Appellant immediately thought of raping her. He followed her and grabbed her from behind. L.C. began to scream, and appellant admonished her to stop or he would break her neck.
He dragged her into an alley and demanded she remove her pants. He instructed her: "Get down on your knees, bend over, you're going to get it up the butt." He was unsuccessful in his efforts to penetrate her anally. He then pushed her to the ground so she was laying on her back. He pulled her sweater up over her face and fondled and kissed her breasts. He then engaged in vaginal intercourse with her, during which he said, "You're going to have my baby tonight," and he demanded that L.C. tell him how "good" he was.
Throughout the assault, appellant had his arm around L.C.'s neck and his hand over her mouth. Appellant completed the sexual assault to ejaculation. He then stole $20 and some jewelry from L.C. He ordered her to stay on the ground and not to move. He left the scene. L.C. immediately sought help and reported that she had been raped. However, the identity of her assailant did not become known until after appellant's next offense, when appellant revealed his involvement with L.C. to law enforcement authorities.
The second offense resulting in conviction occurred about seven months later, on January 1, 1990, when appellant was twenty-three years old. His victim was a thirteen-year-old girl, B.H., who was known to him. Appellant was walking with B.H., accompanying her to the hospital where she wished to seek evaluation for a problem she was having with her eye. Appellant suggested a shortcut behind a building under construction. In that location, appellant threw B.H. to the ground, ripped off her clothing, and struck her several times in the head and face with his fist. Appellant told B.H. he would kill her if she moved.
He engaged in forced vaginal intercourse with B.H. for nearly an hour. He later forced B.H. up against a tree and unsuccessfully attempted to penetrate her from behind. In the course of the assault, appellant vaginally penetrated B.H. with the tip of an umbrella, later admitting he did this to inflict pain on B.H. When B.H. attempted to leave, appellant again struck her in the head several times, knocking her to the ground and telling her if she told anyone about the assault he would kill her. According to B.H., appellant attempted to break her neck and, on several occasions during the course of the assault, choked her, cutting off her breathing. During the course of the assault, appellant also digitally penetrated B.H.'s vagina. B.H. was able to get away when a passing car caused a distraction. She went to the hospital emergency room and immediately reported the rape and identified her assailant.
With respect to L.C., appellant pled guilty to first-degree aggravated sexual assault and third-degree criminal restraint. With respect to B.H., he pled guilty to first-degree aggravated sexual assault, third-degree criminal restraint, and third-degree terroristic threats. Based upon a psychological evaluation, it was determined that appellant's sexual conduct was repetitive and compulsive, thus qualifying him for sentencing under the purview of the New Jersey Sex Offender Act.
He was sentenced on March 31, 1991 to consecutive terms of fifteen years imprisonment for each of the two sets of offenses, to be served at the Adult ...