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State v. N.G.

November 28, 2005


On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-05-0434-I.

The opinion of the court was delivered by: Winkelstein, J.A.D.




Submitted November 10, 2005

Before Judges Conley*fn1, Weissbard and Winkelstein.

Defendant, N.G., appeals from his eight-year sentence to the Adult Diagnostic and Treatment Center (ADTC). To sentence a defendant to the ADTC, a judge must find that the defendant's offending conduct was characterized by a pattern of repetitive, compulsive behavior. See N.J.S.A. 2C:47-1 to -10 (the Act). On appeal, defendant's primary argument is that the Act is unconstitutionally vague for failing to provide a legal definition of repetitive and compulsive behavior. Alternatively, he argues that even if the Act is not unconstitutionally vague, the State failed to establish that his conduct can be so characterized. We are not persuaded by either argument. Consequently, we affirm.

This is what happened. On February 2, 2004, defendant, then forty-eight years old, pleaded guilty to one count of first-degree aggravated sexual assault (count one) and one count of second-degree sexual assault (count five). The factual basis for his plea was: on one or more dates between December 8, 1991, and December 8, 1997, he committed one or more acts of sexual penetration upon his niece, Y.B., who was less than thirteen years old at the time, by inserting his finger into her vagina; and, between May 1, 1992 and December 31, 1995, he touched the buttocks of another niece, C.B., who was also less than thirteen years old. Defendant admitted he acted for purposes of his own sexual gratification. His plea was in exchange for a term of ten years on count one and a concurrent five year term on count five. Pursuant to that plea, count two, second-degree sexual assault; count three, third-degree endangering the welfare of a child; and count four, first-degree aggravated sexual assault, were dismissed.

Thereafter, defendant moved to vacate his plea because he had not been advised that he could potentially face civil commitment at the end of his prison sentence under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See State v. Bellamy, 178 N.J. 127, 140 (2003) (failure to inform a defendant that guilty plea to a predicate offense under SVPA could expose him to civil commitment at the expiration of his prison term is grounds for withdrawal of guilty plea). Ultimately, in exchange for defendant's agreement to withdraw his motion to vacate his plea, the State agreed to an eight-year term, to be served at the ADTC if the court determined that defendant's criminal conduct was repetitive and compulsive. To that end, on September 24, 2004 and October 29, 2004, Judge Heimlich conducted a Horne*fn2 hearing, where the following facts were elicited.

The State's expert was Dr. Kenneth McNiel, a clinical psychologist employed as a consultant at the ADTC. He had prepared over a thousand reports to determine whether a person was a repetitive and compulsive sex offender; he also served as an expert witness in that regard approximately thirty times.

Dr. McNiel interviewed defendant and administered tests to him. Dr. McNiel explained that while no test exists to determine if an individual's sexual behavior is repetitive and compulsive, the health care professionals at the ADTC use the common English language definitions; "repetitive" meaning "something that happens more than once," and "compulsive" meaning "an irresistible urge to perform some irrational behavior."

During Dr. McNiel's interview, defendant admitted he touched Y.B.'s vagina two or three times during the course of one evening. He ascribed his actions to alcohol intoxication. He denied Y.B.'s claim that he compelled her to perform fellatio upon him, that he fondled her, or made her masturbate him over a period of four years, when she was ages five through nine. He also blamed alcohol for his urge to touch C.B.'s buttocks. He denied, also, her account that he had massaged her buttocks for over the two years when she was ages nine through eleven.

Dr. McNiel concluded that defendant's conduct was "characterized by a repetitive and compulsive pattern of sexual behavior." He opined that defendant was a good candidate for treatment at the ADTC and would be better-off there than in state prison.

The defense presented expert testimony from Dr. Jonathan Mack, a licensed psychologist, who had performed several hundred insanity, competency and diminished capacity evaluations for the public defenders of New Jersey and Philadelphia, as well as for private defense attorneys. Dr. Mack had testified as ...

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