On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-26-99.
Before Judges King, Wecker and Fuentes
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The State appeals from an order of the Law Division conditionally discharging respondent V.A. from his commitment under the Sexually Violent Predator Act (SVPA). N.J.S.A. 30:4- 27.24 to 27.38. Based on the record before us, we are satisfied that the conditions imposed under the discharge plan releasing V.A. into the community do not provide the gradual de-escalation of restraints required under In re the Commitment of E.D., 353 N.J. Super. 450 (App. Div. 2002). We therefore vacate the order of discharge and direct the Department of Human Services to develop and implement a comprehensive program of intermediate levels of restraints for individuals committed under the SVPA. The ultimate goal of such a program would be the individual's full discharge into the community.
V.A. is a forty-one year old man with a long and persistent history of sexual offenses. On June 12, 1984, he was arrested and charged with two counts of sexual assault and two counts of criminal sexual contact on a thirteen-year-old girl. V.A. gained access to the victim's residence by subterfuge and while there, fondled and kissed the child and attempted to have sexual intercourse with her. Pursuant to a plea agreement, V.A. pled guilty to one count of third degree criminal sexual contact, N.J.S.A. 2C:14-3a, and was incarcerated for a five-year term. Approximately one week after his release from prison, V.A. became involved with a fourteen-year girl, whom he later married. This child was a friend of V.A.'s thirteen-year-old victim. He was initially charged with a sexual offense but the charges were dismissed when V.A. produced a copy of the marriage certificate. The record does not disclose the subsequent history or the current state of the marriage.
In 1994, V.A. was arrested and charged with aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse, naming his four-year-old niece as the victim of those offenses. V.A. admitted that while baby-sitting, he touched the child's buttocks and vagina. In 1995, pursuant to a plea agreement, defendant pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and was sentenced to a seven-year prison term at the Adult Diagnostic and Treatment Center (ADTC) as a compulsive and repetitive sexual offender. N.J.S.A. 2C:43-7. *fn1
On May 5, 1999, prior to his release from the ADTC, V.A. was civilly committed to the Ann Klein Forensic Center pursuant to the provisions of N.J.S.A. 30:4-27.10(c) and R. 4.74-7. These proceedings were instituted by the State as a stopgap measure since V.A. was scheduled to be released from the ADTC before the effective date of the SVPA. On November 9, 1999, the State filed a petition seeking V.A.'s continued commitment under the SVPA. The court temporarily committed V.A. to the Department of Human Services Special Offenders Unit (STU) and ordered that a final hearing on V.A.'s continuing need for involuntary commitment as a sexually violent predator be held on November 24, 1999.
The initial commitment hearing did not take place until January 20, 2000. V.A. stipulated that the State's proofs established, by clear and convincing evidence, that he was a sexually violent predator in need of commitment. The court remanded him to the STU and directed that he receive the appropriate care and treatment.
The first review hearing took place on July 9, 2000. V.A. again stipulated that he was in need of continued treatment and commitment. A second review hearing was conducted on February 6, 2001. At the conclusion of the State's presentation, the court concluded that V.A. remained a sexual predator in need of treatment in a confined setting. Two subsequent review hearings each resulted in V.A.'s continued commitment.
On August 1, 2002, a fourth review hearing was conducted. The State presented the testimony of psychiatrist Dr. Stanley Kern and forensic psychologist Dr. Donna Lobiondo, both on the staff of the STU. Dr. LoBiondo interviewed V.A. on July 22, 2002 and prepared a report which was admitted into evidence. She concluded that V.A. still required inpatient sex-offender treatment and remained at risk for recidivism.
Treatment progress thus far has been insufficient to lower [V.A.'s] reoffense risk. Contributory risk factors include inadequate anger control, inadequate mastery of relapse prevention concepts, continuing tendency toward cognitive distortion, and sexual identity issues. This examiner agrees with [V.A.'s] opinion that he has more work to do regarding his arousal to young adolescent females.
Based upon a review of available records and interview data, it is my professional opinion that [V.A.] continues in need of sex offender treatment, and that he still meets the statutory criteria . . . for commitment as a Sexually Violent Predator.
Dr. LoBiondo diagnosed V.A. with hebephilia, a sexual and functional arousal to adolescents; poly-substance dependence in remission; and anti-social and narcissistic personality traits with the potential for full blown anti-social personality disorder. V.A. has also shown confusion about his sexual identity, expressing homosexual fantasies as a means of coping with inappropriate sexual ideation involving children. Dr. LoBiondo opined that the cumulative effect of ...