On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-146-00.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Coburn and S.L. Reisner.
This appeal presents the issue whether the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, authorizes the commitment of a sex offender following completion of a prison sentence for an offense that is not a predicate offense under the SVPA. We hold that current incarceration for an SVPA index offense is not a prerequisite for commitment under the SVPA. The SVPA authorizes commitment where the defendant was convicted of a predicate offense in the past, and where the State proves by clear and convincing evidence that the defendant currently meets the definition of a sexually violent predator and currently presents a high risk of committing another sexually violent offense if released.
We discuss the facts in some detail, because they illuminate our conclusion about the proper construction of the SVPA. P.Z.H had prior convictions in 1965 and 1975 for "carnal abuse" of young girls. In the 1965 incident, he committed carnal abuse on a twelve-year old developmentally disabled girl. The 1975 incident involved a nine-year old girl. He also has a long history of drug and theft offenses.
P.Z.H. committed the predicate offense in 1981, when he molested a four-year old girl. Medical evidence indicated that the child "had been penetrated and that her hymen was damaged." P.Z.H. was convicted of sexual assault, N.J.S.A. 2C:14-2b, and in 1982, he was sentenced to twenty years in prison, with a ten year period of parole disqualification. Because he was found to be a repetitive and compulsive sex offender, P.Z.H. served a portion of his sentence at Avenel. He was released from prison in 1993. In 1994, he was found guilty in municipal court of harassing three young girls. He was sentenced to a total of sixty days in the county jail.
In 1998, he was convicted of failing to register under Megan's Law, N.J.S.A. 2C:7-2 to -19, as well third-degree possession of a controlled dangerous substance. These are not predicate offenses under the SVPA. See N.J.S.A. 30:4-27.26. He was sentenced to eighteen months in prison. During his incarceration, P.Z.H. told a nurse at the South Woods prison that he could not wait to be released because he had an eight-year old niece who was the perfect age to sit on his lap.
The State sought to commit P.Z.H. under the SVPA in 2000, when he was about to be released. The petition was supported by clinical certificates from Dr. Liberatore and Dr. Kaldany, both of whom attested that P.Z.H admitted to them that he had molested between thirty and fifty young girls over his lifetime. P.Z.H. told Dr. Liberatore that he "is a pedophile." He admitted to Dr. Kaldany that he would "always have fantasies about young girls," and "you can't fight these urges." Dr. Kaldany reported that P.Z.H. claimed "the young girls were seductive with him and perpetuated his behavior." Following a plenary hearing in 2001, the trial judge concluded that P.Z.H. was a sexually violent predator and ordered that he be committed under the SVPA; P.Z.H. did not appeal his initial commitment. Nor did he appeal a May 15, 2002 determination continuing his commitment.
This appeal arises from P.Z.H.'s second review hearing, held on December 2 and December 9, 2002. At that hearing, the State presented testimony from Dr. Stanley R. Kern, a psychiatrist who interviewed P.Z.H. in November 2002, and Dr. Gregory Gambone, a clinical psychologist. Dr. Kern testified that P.Z.H. had not yet discussed his uncharged offenses (the thirty to fifty prior molestations of young girls) in the therapy groups at the Special Treatment Unit (STU), and that such discussion would be an important part of his therapy. He also had not completed certain significant therapy programs, such as "Family of Origin." Dr. Kern further testified that in his interview with P.Z.H., he "minimized his [index] offense." He also told Dr. Kern that "there was no violence in my crimes. I molested them [the young girls]. And there was anger in the molestation. And then he said it was a game, it was pleasurable to them."*fn1 Dr. Kern concluded that these statements indicated "that [P.Z.H.] has no understanding of the effect upon the victim. There's no victim empathy at all." Dr. Kern testified that victim empathy is important "to prevent re-offending." He testified that P.Z.H. also had an inadequate understanding as to why he molested young girls, and that he could not progress in therapy without this understanding. P.Z.H also admitted that at the STU he would become aroused when he saw young girls on television.
Dr. Kern testified that when he asked P.Z.H. about his plans if released, P.Z.H. made no mention of obtaining therapy after release. Dr. Kern inferred, from the fact that P.Z.H. was not compliant with treatment for his life-threatening kidney problems,*fn2 that he was also not likely to comply with sex offender therapy if released. Dr. Kern diagnosed P.Z.H. with pedophilia and anti-social personality disorder, and concluded that he had "little volitional control," that he presented "a fairly high risk to re-offend," and that "his mental condition makes it seriously difficult for him to control his . . . sexually violent behavior." Dr. Kern also characterized P.Z.H. as presenting a "high danger" to re-offend. Dr. Gambone, a member of ...