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State v. R.J.M.

Superior Court of New Jersey, Appellate Division

February 9, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
R.J.M., Defendant-Appellant.

          Argued December 5, 2017

         On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-07-0832.

          John 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) .

          David 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).

          Before Judges Reisner, Hoffman, and Mayer.

          OPINION

          REISNER, P.J.A.D.

         Under 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[1] 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.

         We hold 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.[2] 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.

         I

         Defendant R.J.M.[3] 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).

         Defendant's 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[4] 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).

         We need 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.

         Defendant 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.

         The 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[90] 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 ...

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