## RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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. Rob ertson, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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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 fro m 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

of fenses.

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 perfo rm 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 sent enced 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. H e

was sentenced to a four year prison term , and was also s ubject to
the special sentence of CSL , N.J.S.A. 2C:43

- 6.4. He was released

on October 4, 2001.3 A

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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. 2 C: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 h eld a hearing on the motion. Dr. R. 1 w as 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

as sign 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 an d

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

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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 SUP ERVISION.

The a micus c uriae 2 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 Lawyer s of N ew J ersey to appear as amicus curiae and file a brief, but not participate in oral argument.5 A

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At the outset, we note t he judge 's reference to Dr. R
. ' s
prior testimony in an unrelated matter two year's prior in vites

such questions of impropriety and partiality that we are compelled

to vacate and remand to a different judge.
We recognize t he 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, a pplying a plain error standard to consider

whether an error is "clearly capable o f producing an unjust

result," Rule 2:10

- 2 , we cannot ignore the taint associated with

the apparent pre determination 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 impression s of Dr. R.'s credibi lity from a previous case

because it demonstrated inherent bias , even as a n aside, when
reject ing Dr. R.'s current assessment of R.J. T he 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 the6 A

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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.