On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-318-03.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2006
Before Judges Wefing, C. S. Fisher and Yannotti.
M.L.V. appeals from temporary and final orders of commitment entered by the Law Division pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA or the Act). We affirm.
We begin our consideration of the appeal with a brief statement of the relevant facts, drawn from the record of the final commitment hearing. M.L.V.'s record dates to April 1971, when he was fifteen years old. In January 1973, M.L.V. was sentenced to a juvenile detention facility after he caused substantial damage to six new cars. He was paroled in August 1973 and in October 1973, while on parole, M.L.V. and a friend abducted a 19-year old woman in a parking lot, forced her into her car at knife point and drove several miles to a wooded area, where they forced the woman to remove her clothing and raped her. After the assault, M.L.V. and his accomplice drove south with their victim. Two days later, the victim was able to seek assistance. M.L.V. and his accomplice were arrested in Virginia. M.L.V. was returned to the juvenile detention facility. He was released in February 1975.
On August 14, 1976, M.L.V. broke into the apartment of J.M., a 64-year-old deaf mute woman. He was wearing a stocking over his head to conceal his identity. J.M. was asleep on the couch. M.L.V. awakened J.M. and forced her to go to the bedroom, where he tied her wrists and ankles to the bedposts. M.L.V. cut off J.M.'s clothes with a knife and raped her. When M.L.V. heard noises from a nearby apartment, he removed J.M.'s restraints, stole $75 from her purse and fled.
A few weeks later, on September 3, 1976, M.L.V. entered S.O.'s apartment. M.L.V. was wearing a stocking on his head but S.O. recognized him and called him by name. M.L.V. pointed a knife at S.O. and told her not to scream. M.L.V. allowed S.O. to go to the kitchen to feed her young child, but he kept one hand on her and, according to S.O., repeatedly ran the knife across her face. When S.O. screamed and tried to pull away, M.L.V. punched her in the face and fled.
M.L.V. was arrested and charges were filed respecting the incidents involving J.M. and S.O. M.L.V. pled guilty of the rape while armed of J.M. He also pled guilty to breaking and entering S.O.'s apartment with intent to steal while armed. M.L.V. was sentenced to an indeterminate sentence of up to thirty years at the Adult Diagnostic and Treatment Center (ADTC) for the rape; a term of nine to ten years for the armed portion of the rape charge; a three to five-year term for breaking and entering with intent to steal; and two to three years for the armed portion of the breaking and entering charge.
M.L.V. escaped from the ADTC in August 1979 but he was captured and returned to that facility the following month. While out of confinement, M.L.V. and an accomplice committed a robbery. M.L.V. was convicted and sentenced to a twelve-year term for robbery, which was made concurrent to the previously imposed sentences. In March 1993, M.L.V. was released on parole after having been incarcerated for sixteen years.
In 1995, M.L.V. picked up a female hitchhiker. M.L.V. said that the woman agreed to perform oral sex and engage in sexual intercourse for money. M.L.V. paid the agreed upon price but the hitchhiker refused to engage in sexual intercourse and refused to return the money, which she claimed to have dropped outside the building where M.L.V. had taken her. M.L.V. said that he tied the woman's wrists and he went outside to look for the money. The woman escaped and called the police. The charges arising from this incident were downgraded to simple assault. M.L.V. pled guilty and he was sentenced to time served. Although M.L.V. had violated the conditions of his parole, the Parole Board (Board) did not revoke M.L.V.'s parole at this time.
On February 2, 1997, M.L.V. was arrested for burglary. While this charge was pending, M.L.V. was arrested for soliciting a prostitute who was in fact an undercover police officer. He pled guilty to a disorderly persons offense and was fined. A panel of the Board revoked M.L.V.'s parole and he was returned to the ADTC for evaluation, after which the panel re-affirmed its decision to revoke parole. Subsequently, in 1999, M.L.V. was convicted of the burglary and was sentenced to a concurrent four-year term. M.L.V. did not file an administrative appeal from the panel's decision to revoke parole until November 2000. The Board entertained the untimely appeal and upheld the panel's decision.
M.L.V. appealed the revocation of his parole to this court and, by opinion filed on September 30, 2002, we remanded the matter to the Board for reconsideration. M.L.V. v. N.J. State Parole Board, No. A-5103-00T3 (App. Div. September 30, 2002). In our opinion, we noted that the standards governing the revocation of parole of a sex offender committed to the ADTC were set forth in State v. Dalonges, 128 N.J. Super. 140, 148-49 (App. Div. 1974), where we stated that:
[T]he parole of a sex offender cannot properly be revoked unless the reason for revocation is based at least in part upon the finding by the Parole Board and based upon a determination by the Diagnostic Center founded on adequate medical reasons, that defendant's violation of parole reflects emotional or behavioral problems as a sex offender and evidences that he is incapable of making any acceptable social adjustment in the community because of such problems and in fact requires further specialized treatment as mandated by N.J.S.A. 2A:164-5.
We remanded the matter to the Board for a new evaluation and to reconsider whether revocation was warranted under Dalonges.
M.L.V. was subsequently evaluated by Mark Frank, Ph.D. (Frank), who concluded that the three prongs of the Dalonges test for parole revocation had not been met. Frank found that that M.L.V.'s parole violation did, in fact, reflect his emotional and behavioral problems as a sex offender. However, Frank found that there was insufficient evidence upon which to conclude that M.L.V. is incapable of making an acceptable social adjustment. Frank further found that, although M.L.V. required further specialized sex offender treatment, continued custodial supervision was not required. Based on Frank's findings, the Board issued a decision dated January 22, 2003 continuing M.L.V.'s parole and directing his release from confinement upon the submission of an acceptable community plan.
In conformity with standard procedures, M.L.V. was evaluated at the ADTC prior to his release. On March 27, 2003, Emili Rambus, Psy.D. (Rambus) issued a "termination report" which recommended that M.L.V. participate in certain ADTC treatment programs. Rambus noted that while M.L.V.'s score on the Static 99 suggested he is at a high ...