On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-550-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Hayden.
R.O., a sixty-five-year-old man who was imprisoned from 1977 to 2009 for sexually-related crimes, appeals from a June 22, 2010 final order of civil commitment, pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he raises the following issues for our consideration:
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE, THAT R.O. WOULD BE "HIGHLY LIKELY" TO COMMIT FUTURE ACTS OF SEXUAL VIOLENCE IF NOT CONFINED; A NECESSARY ELEMENT FOR COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT.
THE STATE FAILED TO ESTABLISH BY CLEAR AND COVINCING EVIDENCE THAT R.O.'S MENTAL ABNORMALITIES PRESENTLY PREDISPOSE HIM TO SEXUALLY REOFFEND IF RELEASED FROM THE STU.
DR. CANATARO'S RELIANCE ON AN ACTUARIAL INSTRUMENT THAT IS NO LONGER USED BY THE STU BECAUSE IT IS AN INACCURATE PREDICTOR OF SEXUAL RECIDIVISM, RENDERS HER OPINION UNRELIABLE, UNCLEAR, AND UNCONVINCING.
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.O. IS HIGHLY LIKELY TO RECIDIVATE BECAUSE THE STATE'S EXPERTS' OPINIONS WERE BASED LARGELY ON UNGUIDED CLINICAL JUDGMENT.
The record reflects a lengthy history of sexual deviance on the part of R.O. At the age of twelve, R.O. sent three obscene letters to a female neighbor and, several days later when the neighbor's house was empty, he entered the dwelling, placed the woman's clothes on her bed and set fire to them. He was charged with arson, sending obscene literature, and malicious mischief, but released to his parents' custody with a recommendation that he receive psychiatric treatment. His parents did not comply with the recommendation then, or when a similar recommendation had been made after R.O. set a fire in his family's basement at the age of nine.*fn1
When R.O. was thirteen years of age, he lured a neighbor's sixteen-year-old daughter into the basement of his home and hit her on the head with an iron frying pan, knocking her unconscious. Although R.O. then ran, rather than assaulting the girl further, he stated that the offense was sexually motivated. He was admitted to Friend's Hospital for psychiatric treatment in September 1960, and was discharged with improvement in March 1961. In August 1961, R.O. was arrested on charges of malicious use of the telephone on evidence that he would call random women whose names he learned from their wedding announcements and threaten to kill them if they did not do what he wanted. R.O. masturbated while making the calls. Following his detection, R.O. was again psychiatrically treated.
At age fifteen, R.O. was once more charged with making obscene and threatening telephone calls and was placed in the Youth Study Center from September to December 1962, after which time he was transferred to the Philadelphia State Hospital and later discharged with improvement. Six months after his discharge, R.O. was again charged with malicious use of the telephone and placed in the Philadelphia State Hospital, where he was diagnosed as suffering from a "sociopathic personality disturbance, sexual deviation."
Upon his release, R.O. was placed at Horizon House, but was given a long-term leave in January 1969. Within one month, he was again making obscene and threatening telephone calls, and he was placed on probation for one year.
In 1972, R.O. was arrested on charges of attempted assault with a dangerous weapon and threats to kill. It appears that, at the time, R.O. was working at an auto repair shop. When he was sent to pick up a female customer whose car was being repaired, R.O. threatened the woman and her five-year-old child with a knife and told the woman he would kill her if she did not do what he wanted. Although R.O. eventually released the woman and her child unharmed, he admitted that he had planned to rape her. R.O. was acquitted of the charges stemming from the incident in July 1973 by reason of insanity as the result of his statements that he had acted in response to auditory command hallucinations - statements that R.O. later admitted were untrue and had been uttered to avoid prison. R.O. was confined to Trenton State Hospital.
R.O. committed the predicate offense on June 2, 1976 when he was thirty years of age. In the early morning hours of that day, he entered a Dunkin' Donuts shop brandishing a starter pistol. He then tied up a male baker and a female waitress, and he kidnapped another waitress, took her to a state forest, and raped her. R.O. was convicted and sentenced to thirty years in custody on charges of kidnapping, armed kidnapping, rape, armed rape, assault with intent to rape, and armed assault. After evaluation, he was found to have "displayed [a] repetitive and compulsive pattern of behavior that reflects ...