December 5, 2017
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Indictment No. 15-07-0832.
W. Douard, Assistant Deputy Public Defender, argued the cause
for appellant (Joseph E. Krakora, Public Defender, attorney;
Mark H. Friedman, Assistant Deputy Public Defender, of
counsel and on the briefs) .
M. Liston, Assistant Prosecutor, argued the cause for
respondent (Andrew C. Carey, Middlesex County Prosecutor,
attorney; Susan Berkow, Special Assistant Prosecutor, of
counsel and on the brief).
Judges Reisner, Hoffman, and Mayer.
N.J.R.E. 609, there are different standards for admissibility
of a prior criminal conviction for impeachment purposes,
depending on whether "more than ten years have
passed" since the defendant's conviction
"or release from confinement for it, whichever is
later." N.J.R.E. 609(b)(1). In this appeal, we decide
whether the time period during which a defendant has been
civilly committed pursuant to the Sexually Violent Predator
Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, must be included
in determining the ten-year time period.
that because civil commitment is not confinement
"for" the crime of which a defendant was convicted,
the period of civil commitment must be included in
determining the ten-year time period. The trial court erred in
holding that, for purposes of N.J.R.E. 609(b),
defendant's conviction was not remote because of his
continued confinement to the Special Treatment Unit (STU)
pursuant to the SVPA. The trial court also mistakenly applied
discretion in holding, in the alternative, that if the
conviction was remote under N.J.R.E. 609(b)(1), the State
carried its burden of proving admissibility. Due to the
judge's erroneous ruling, defendant decided not to
testify at his trial. Because defendant was unfairly
prevented from testifying, and the jury might have reached a
different result had defendant testified, we reverse the
conviction and remand the case for retrial.
R.J.M. was previously convicted of first-degree
sexual assault, for which he was sentenced on May 4, 1990. In
2000, after defendant completed his sentence for that
criminal conviction, the State successfully applied to have
him civilly committed under the SVPA. In 2014, while he was a
resident at the STU, defendant was accused of making threats
against one of the corrections officers who staffed the STU,
resisting efforts by other corrections officers to subdue
him, and assaulting several officers. Defendant was indicted
and tried for third-degree terroristic threats, N.J.S.A.
2C:12-3(a), third-degree resisting arrest, N.J.S.A.
2C:29-2(a)(3)(a), fourth-degree obstructing the
administration of law, N.J.S.A. 2C:29-l(b), and fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(5)(h).
trial took place in March 2016 - almost twenty-six years
after his 1990 conviction, and sixteen years after his 2000
release from prison. Prior to the trial, the State applied
for a Sands hearing, seeking permission to impeach
defendant with the 1990 conviction if he testified. The State
argued that defendant's civil commitment should be
treated as "confinement, " within the meaning of
N.J.R.E. 609(b), and thus ten years had not elapsed since the
end of his confinement for his 1990 conviction. The trial
court accepted that construction of N.J.R.E. 609(b). In an
alternate analysis, the trial court reasoned that, even if
the conviction was remote, the seriousness of the crime
outweighed other factors that favored preclusion.
See N.J.R.E. 609(b)(2) (listing factors the court
may consider in deciding admissibility).
not discuss the trial evidence in detail. Corrections Officer
Francis testified that defendant hurled threats and obscene
insults at her, and tried to incite other STU residents to
take his side. She thought she was facing an incipient riot.
She sprayed defendant with pepper spray, and called for
back-up assistance, after he made what she considered a
threatening gesture. The back-up officers testified that
after defendant retreated to his room, they entered in order
to bring him to the shower room and wash off the pepper
spray. They testified that defendant violently resisted their
efforts to put him in handcuffs, and in the ensuing struggle,
he was injured when he hit his head on a bed frame.
declined to testify, because he did not want to face
impeachment with his prior conviction. Defendant's
version of the incident - presented through witness
cross-examination and his attorney's arguments to the
jury - was that he made some offensive comments but no verbal
or physical threats. Defendant contended that Francis was
offended by his insults, and she and her fellow officers
pepper-sprayed him and beat him up as payback.
trial court dismissed the resisting arrest charge at the
close of the State's case. The jury acquitted defendant
of aggravated assault, but convicted him of terroristic
threats and obstruction. Defendant appeals from his
conviction, raising one issue:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE
STATE TO USE DEFENDANT'S REMOTE 19 CONVICTION FOR
AGGRAVATED SEXUAL ASSAULT TO IMPEACH DEFENDANT'S
CREDIBILITY IF HE TESTIFIED. DEFENDANT'S CIVIL COMMITMENT
TO THE SPECIAL TREATMENT UNIT (STU) PURSUANT TO THE SEXUALLY
VIOLENT PREDATOR ACT (SVPA) WAS NOT ...