On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-486-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Graves.
Defendant R.M. appeals from an order civilly committing him after being found a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, R.M. argues that evidentiary errors, most importantly the admission of hearsay evidence through the "backdoor" of N.J.R.E. 703, were error and warrant reversal. Because neither the experts nor the judge considered the challenged evidence, we affirm.
We adduce the following facts from the record. On December 31, 1991, R.M., a retired New York City police officer, was on duty as an armed, uniformed ConRail police officer. M.C., a seventeen-year-old female, was in Dunkin Donuts with her two friends. R.M. asked the group to leave after they threw napkins over the counter. After M.C. drove her friends home, she was cut off by another driver, and an altercation ensued. Both drivers left the scene uninjured in their automobiles. R.M., following in his unmarked police car, observed the encounter, but did not intervene.
M.C. was alone in her vehicle when R.M. stopped her by using his flashing light. R.M. told M.C. that she was under arrest for assault and put her in the rear seat of his vehicle. R.M. drove for approximately half an hour, taking M.C. to an isolated location. R.M. told M.C. that if she allowed him to search her, he would let her go. He instructed her to remove the leg of her jeans, then held her arms and legs down and vaginally raped her in the back seat, ejaculating in her vagina. After the rape, he drove her back to her car and stated that raping her was "easier than going through the hassle of doing the paperwork for arresting [her]."
R.M. was arrested thereafter, and indicted for first-degree kidnapping, first-degree aggravated sexual assault, and second-degree official misconduct. At trial, R.M. admitted that he had lied to investigators, signing a false sworn statement, because:
I knew that I had had sex with the [M.C.]. I made up stores about different things in order to justify my pants and everything else and the semen in the car. Like I said, I had to keep something for my own defense because if they knew everything whatever happened, the truth, they would probably try to twist it around.
The jury convicted R.M. on all counts, and he was sentenced to a term of twenty years in prison.
The investigation leading up to trial also revealed other facts. Police spoke with several prostitutes in the area, two of whom identified R.M. from a photograph as having approached and harassed them. In a forensic evaluation written by Brian Friedman, Psy. D., Dr. Friedman summarized the information:
One prostitute, J.P., reported that she was with a "John" when [R.M.] pulled them over. [R.M.] told the "John" to leave and told J.P. to get into the rear seat of his unmarked patrol car. [R.M.] reportedly told J.P. that he picks up prostitutes in Newark after they get paid by a "John," and then the prostitute would "take care of him."
J.P. offered [R.M.] oral sex, but he requested that they meet later that night. [R.M.] picked J.P. up at 2:30 a.m. and the two drove for some time while [R.M.] kept telling her that he wanted to get laid.
J.P. became frightened and commented that she "might be dirty" and was awaiting an AIDS test, as which point [R.M.] reportedly told her that he would see her another night. Another prostitute, L.T., reported that [R.M.] was following her and told her to get into the backseat of his unmarked police car; L.T. had just finished a "date" with a "John." [R.M.] reportedly questioned L.T. about her activities, wrote down her name and address, and searched her pockets and lifted up her shirt (exposing her breasts) to see if she had anything underneath. After letting L.T. go, [R.M.] continued following her. L.T. went into another vehicle and performed oral sex on a "John," and when she exited the van she again saw [R.M.] walking toward her with a flashlight. L.T. went into her residence at this time. In addition to these two prostitutes who identified [R.M.] in a photo array, numerous other prostitutes had made complaints to police about a police officer in an unmarked vehicle being involved with prostitutes.
R.M.'s ConRail police lockers were also searched, and the following items were discovered:
Locker #1: police issued equipment (i.e., gun holster, handcuffs, uniforms); 1 "Celebrity Sleuth" pornographic magazine, 2 "Celebrity Skin" pornographic magazines; 2 "Lips" pornographic magazines; 3 loose pages of pornographic magazine pictures; 1 nylon cord formed into a noose; 5 sealed condoms. Also found in the locker was 1 brown briefcase containing black leather gloves; 1 tube of H & R lubricating jelly; numerous pornographic photographs; one pair binoculars; 2 flashlights; several folded, white paper towels; camera pouch containing additional handcuffs and integrity seals; FOP member shield; folding knife; 5 folding maps; snap pouch containing 9 sealed condoms and 4 sterile alcohol wipes; Conrail paperwork and forms; 1 "Fling" pornographic magazine; 1 "Gent" pornographic magazine. In the pocket of a black uniform jacket were numerous pieces of paper listing street names (some crossed off), license plate numbers, people's names, and addresses.
No charges were filed regarding the statements of J.P. or L.T., and there was no evidence of any sexual activity with either of them.
R.M. was not found eligible for sentencing to the Adult Diagnostic and Treatment Center (ADTC), and served the majority of his sentence at Riverfront ...