On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-123- 00.
Before Judges King, Cuff and Wecker.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 14, 2002
The only issue on this appeal is whether the State established the requisite predicate act, an adjudication of a sexually violent assault necessary for a civil commitment under the Sexually Violent Predators Act (SVPA), specifically, N.J.S.A. 30:4-27.26. This section defines a sexually violent predator as a
[A] person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment. [Id. (emphasis added).]
Appellant contends that he was never properly adjudicated a delinquent for a predicate offense in the earlier proceedings against him. We agree, reverse and vacate the commitment of appellant under the SVPA. Appellant's purported guilty plea as a juvenile, age fifteen, to sexual assault was ineffective and did not constitute an adjudication of a predicate offense under the SVPA.
Appellant, J.D., was born on January 9, 1976. In 1989 J.D. was arrested for the sexual assault of a girl age six. The charge was amended to simple assault and J.D. was ordered to attend sex offender counseling.
In May of 1991 J.D.'s mother requested that he receive a psychological evaluation. Dr. John Belton diagnosed J.D. with pedophilia. Dr. Belton sent a report to the Division of Youth and Family Services (DYFS) in which he stated that J.D.'s progress was slow and he was in denial of his sexually acting-out behavior, despite three separate episodes since he began receiving therapy.
On July 24, 1991 J.D. sexually assaulted M.K., a girl age six, in the hallway of her apartment building. J.D. approached M.K. and told her to look out the window. As M.K. looked out the window, J.D. began to "hump" her from the rear. At this time a neighbor looked from her peep-hole, saw what J.D. was doing, and opened her door. She asked J.D. what he was doing but he did not respond and walked away.
J.D. was arrested on July 26, 1991. On August 10, 1991 his mother was told that a formal complaint was filed. She informed investigators that J.D. was receiving out-patient sex offender counseling. In January of 1992 Dr. Belton referred J.D to the Catholic Charities-Family Growth's Sex Offender's Program in Hamilton Township. J.D. was evaluated by Catholic Charities' psychiatrist, Dr. Southwick, who diagnosed J.D. with an Adjustment Disorder with mixed disturbance of emotions and conduct, possible Impulse Control Disorder and temporal lobe epilepsy. Dr. Southwick determined that J.D.'s behavior was threatening to his family and neighborhood children. Dr. Southwick recommended that J.D. be placed in a residential treatment facility.
On March 9, 1992 J.D. received a second psychiatric evaluation, by Dr. Raymond Schweibert of the Youth Emergency Services (YES). Dr. Schweibert diagnosed J.D. with Conduct Disorder Solitary Aggressive Type, Oppositional Defiant Disorder and Pedophilia. On March 13, 1992 J.D. sexually assaulted S.M.J., a female age fourteen. J.D. approached S.M.J. in the hallway of Trenton Central High School and grabbed her buttocks. When S.M.J. hit J.D. on the arm, he knocked her down and began to bite at her nose.
On March 17, 1992 J.D. appeared without counsel before Judge Noden to enter a plea to delinquency complaint Docket No. FJ-11- 769-92E, the "humping" of the girl age six on July 24, 1991 in the apartment hallway. The complaint alleged that on July 24, 1991 the appellant committed "an act of sexual assault . . . in violation of N.J.S.A. 2C:14-2(b)" by "intentionally rubbing his groin area on the anal area" of the victim, age six, "with the intent to sexually gratify himself." During the hearing, this pertinent part of the dialogue occurred between Judge Noden and J.D.:
THE COURT: We're here so you can enter a plea to one complaint that charges you with sexual assault involving a six-year old female back on July 24th, a Wednesday, at the middle of the day. Is that true or not true?
THE COURT: Do you want to explain briefly – for instance, who is I believe six-year old [M.K.] who is that person to you?
THE COURT: What happened?
THE WITNESS: I was at work ...