                          RECORD IMPOUNDED

                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0098-17T1


IN RE REGISTRANT R.J.
_________________________

           Argued July 16, 2018 – Decided August 3, 2018

           Before Judges Whipple and Suter.

           On appeal from Superior Court of New Jersey,
           Law Division, Somerset County, Docket No. ML-
           05-18-0014.

           Michael C. Woyce argued the cause for
           appellant R.J. (Murphy & Woyce, attorneys;
           Michael C. Woyce, on the brief).

           Kimberly Savino French, Assistant Prosecutor
           argued the cause for respondent State of New
           Jersey (Michael H. Robertson, Somerset County
           Prosecutor, attorney; Kimberly Savino French,
           of counsel and on the brief).

           Law Offices of Jeffrey S. Mandel, LLC,
           attorneys for amicus curiae Association of
           Criminal Defense Lawyers of New Jersey
           (Jeffrey S. Mandel, of counsel and on the
           brief).

PER CURIAM
     Appellant R.J. appeals from the trial court's June 26, 2017

order   denying      his     application       to    be    removed     from   community

supervision for life (CSL) under N.J.S.A. 2C:43-6.4(c).

     On December 8, 2016, R.J. moved for removal from Megan's Law

Registration and           CSL.    R.J. has a lengthy, serious criminal

history.        At   age    eighteen,   he     was    convicted        of   robbery   and

sentenced to a youth correctional facility.                       He was subsequently

arrested for terroristic threats, sexual assault, and drug related

offenses.

     By 1980, R.J. moved on to kidnapping, rape, sodomy, and

lewdness after he lured several women to his home under the guise

of being a model photographer.                 Once they were at his home, he

prevented them from leaving and forced them to perform sexual

acts, including sodomy. He was sentenced to twelve years in prison

on the sodomy charge, with the lesser charges running concurrently.

That same year, he was also sentenced in New York for sodomy.

     On February 5, 1999, R.J. was convicted of second-degree

sexual assault by force/coercion, stemming from a 1997 arrest.

Similar    to    his   1980       offense,     R.J.       lured    a   victim   to    his

"photography studio" and forced her to perform sexual acts.                            He

was sentenced to a four year prison term, and was also subject to

the special sentence of CSL, N.J.S.A. 2C:43-6.4.                       He was released

on October 4, 2001.

                                           2                                    A-0098-17T1
         On December 8, 2016, R.J. moved to: terminate registration

as   a    sex    offender,   N.J.S.A.   2C:7-2(f);      terminate   community

notification,        N.J.S.A.   2C:7-2(f);   and   be    removed    from   CSL,

N.J.S.A. 2C:43-6.4(c). He withdrew his first two requests, leaving

only removal from parole supervision for life.             On March 1, 2017,

the court held a hearing on the motion.                 Dr. R.1 was the sole

witness presented.

         At the beginning of the hearing, the trial judge mentioned

he remembered Dr. R. from a prior, unrelated matter.                   Dr. R.

testified about his evaluation of R.J. and ultimately opined R.J.

should be released from CSL because he posed a low threat to the

safety of others if released.

         The trial judge denied R.J.'s motion on June 14, 2017, and

issued a written decision.        In pertinent part, the opinion stated:

                Dr. [R.] last testified before this [c]ourt
                in Hunterdon County on May 6, 2015, as a
                defense expert in forensic and clinical
                psychology in a termination of parental rights
                case.   Similar to the extant matter, Dr.
                [R.'s]    opinion    rests     upon    factual
                underpinnings which often lack verification,
                fail to include relevant information, and/or
                assign greater or lesser probative value than
                warranted by the facts.       Based upon the
                [c]ourt's observations of Dr. [R.'s] demeanor
                during the course of his testimony, including
                his persistent, "no risk/low risk" mantra,
                despite   [R.J.'s]   extensive   violent   and

1
   We use initials to identify the expert for reasons that are
apparent below.

                                        3                              A-0098-17T1
              deceptive criminal history, the [c]ourt finds
              him to be a marginally credible witness.

The   judge     thoroughly   detailed       his   additional   reasoning   for

rejecting Dr. R.'s testimony in its twenty-nine page opinion. This

appeal followed.

      R.J. raises the following issues on appeal:

              POINT I: THE TRIAL COURT INAPPROPRIATELY
              RELIED ON TESTIMONY IN AN UNRELATED MATTER TWO
              YEARS PRIOR IN A SEPARATE COUNTY IN MAKING
              CREDIBILITY FINDINGS OF THE EXPERT DENYING
              R.J. DUE PROCESS.

              POINT II: REGISTRANT MET THE FIRST CRITERIA
              FOR RELEASE FROM COMMUNITY SUPERVISION FOR
              LIFE, N.J.S.A. 2C:43-6.4(C) AS HE HAS NOT BEEN
              CONVICTED OF A CRIME SINCE HIS LAST RELEASE
              FROM CUSTODY, A PERIOD GREATER THAN FIFTEEN
              YEARS.

              POINT III: THE SECOND CRITERIA FOR REMOVAL
              REQUIRES R.J. TO PROVE BY A PREPONDERANCE OF
              EVIDENCE THAT HE IS NOT LIKELY TO POSE A THREAT
              TO THE SAFETY OF OTHERS IF RELEASED FROM
              SUPERVISION.

              POINT IV: THE TRIAL COURT ERRED IN NOT
              TERMINATING R.J.'S COMMUNITY SUPERVISION AS
              REQUIRED BY N.J.S.A. 2C:43-6.4(C) WHERE R.J.
              PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT
              HE WAS NOT LIKELY TO POSE A THREAT TO THE
              SAFETY OF OTHERS IF RELEASED FROM SUPERVISION.

      The amicus curiae2 raises the following issue on appeal:

              WHILE JUDGES CAN MINIMIZE OR REJECT EXPERT
              TESTIMONY FOR VARIOUS REASONS, IT IS PLAIN

2
   By order of January 11, 2018, we granted the motion of the
Association of Criminal Defense Lawyers of New Jersey to appear
as amicus curiae and file a brief, but not participate in oral
argument.

                                        4                             A-0098-17T1
            ERROR TO MAKE CREDIBILITY FINDINGS BASED IN
            PART ON A WITNESS' TESTIMONY FROM AN UNRELATED
            PRIOR PROCEEDING.

     At the outset, we note the judge's reference to Dr. R.'s

prior testimony in an unrelated matter two year's prior invites

such questions of impropriety and partiality that we are compelled

to vacate and remand to a different judge.

     We   recognize   the   judge,      in   his   written    decision,     fully

summarized the expert's testimony, including the actuarial risk

assessments, the psychosexual evaluation, and detailed the cross-

examination    of   Dr.   R.,   which   rigorously    challenged     Dr.      R.'s

findings.     However, applying a plain error standard to consider

whether an error is "clearly capable of producing an unjust

result," Rule 2:10-2, we cannot ignore the taint associated with

the apparent predetermination of a witness's credibility based on

testimony from a prior proceeding beyond the record.

     Put simply, it was unfair to R.J. for the judge to comment

upon impressions of Dr. R.'s credibility from a previous case

because it demonstrated inherent bias, even as an aside, when

rejecting Dr. R.'s current assessment of R.J.                The judge's prior

assessment was not based on something either party knew about or

which they could have become aware because the prior case was a

Family Division matter with a closed record.            Moreover, since the




                                        5                                 A-0098-17T1
doctor was the only witness to testify in R.J.'s case, the error

clearly had the capacity to produce an unjust result.

    Vacated and remanded to a different judge for a new hearing

consistent with this opinion.   We do not retain jurisdiction.




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