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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 23, 2009
Before Judges Axelrad and Espinosa.
R.R.R. was committed 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, in January 2006. This court affirmed that order in an unpublished opinion, In re the Commitment of R.R.R., No. A-2663-05 (App. Div. October 2, 2007), and certification was denied by the Supreme Court, 193 N.J. 586 (2008). Following his first review hearing pursuant to N.J.S.A. 30:4-27.35, appellant was adjudged to be a sexually violent predator in continued need of involuntary civil commitment. He appeals from that order.*fn1
The pertinent facts regarding appellant's criminal convictions are set forth in detail in our prior opinion and need not be repeated here at length. Appellant was convicted in 1986 of first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1; and three counts of first-degree aggravated assault, N.J.S.A. 2C:14-2a(3). He was sentenced to twenty years imprisonment for the kidnapping conviction and concurrent terms for the other offenses and released on parole in 1993. He was arrested in 1996 while a parole absconder on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2; and second-degree kidnapping, N.J.S.A. 2C:13-1. He pled guilty to the kidnapping charge and was sentenced to seven years imprisonment to run concurrent to his parole violation. Each of the convictions from 1986 and 1996 arose from an allegation by a victim who was a stranger to R.R.R., taken from a public street, and threatened with violence before being sexually assaulted. In the 1986 offense, appellant acted with two co-defendants in the abduction and group rape. In the 1996 offense, he acted alone. Although he pled guilty to the 1996 charge, appellant has given divergent descriptions of his contact with the victim in the 1996 conviction which have included a claim that he had consensual sex with her.
At the review hearing, the State produced the testimony of Carlos Voskanian, M.D., a psychiatrist who had evaluated appellant prior to the hearing. Dr. Voskanian reviewed previous reports for R.R.R.'s presentations of his offenses, his sexual pathology and denial of sexual pathology, and the consistency of his statements. While he considered the reasons given for diagnoses included in the reports reviewed, he testified that he ultimately formed his own opinion.
Dr. Voskanian testified that the circumstances of appellant's two offenses indicated the presence of a persistent pathology. The facts that appellant was on parole and acted alone in the second offense were significant to Dr. Voskanian as reflecting appellant's disregard for the law, his urge to commit the offense and his daring in committing it without the support of a co-defendant. He saw no significant findings in terms of a psychiatric condition but testified that appellant dissociates the physical act of rape from his mental state of committing the rape. Dr. Voskanian stated that appellant's various versions of the second offense, ranging from outright denial to gross minimization, showed that "[h]e is not concerned about treatment or understanding himself or dealing with his issues, but he's strictly interested in presenting his case in a legally correct manner." In effect, appellant denied having any sexual pathology.
Dr. Voskanian noted that appellant was defiant toward treatment and had only started to come to treatment in the last few months before the hearing. The treatment notes assessed appellant very poorly for his progress. Appellant acknowledged to Dr. Voskanian that he had not made much progress and that, therefore, he believed it was appropriate for him to be in Phase 2 of treatment.
Dr. Voskanian diagnosed appellant as having paraphilia NOS and personality disorder NOS with antisocial features. Dr. Voskanian explained his reasons for a diagnosis of paraphilia NOS:
We have a history of two rapes, we have a second rape which was done after serving time and being under supervision, which points to strong urge to commit the second offense. Therefore, ...