On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-175-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
D.C. appeals from the October 27, 2006 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. D.C. was initially committed to the STU on September 28, 2001. D.C.'s commitment has been reviewed and continued on two prior occasions.
The predicate offenses are two convictions of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1), and one count of sexual assault, contrary to N.J.S.A. 2C:14-2b, to which D.C. pled guilty in 1989. The victim was the ten-year old daughter of a friend. D.C. was sentenced to a twenty-year term of imprisonment subject to a ten-year period of parole ineligibility and was committed to the STU pursuant to the SVPA following completion of his minimum mandatory term.
D.C. has a history of sexual offenses that predate the 1989 predicate offenses. In 1964, D.C. was arrested and adjudicated delinquent for exposing himself to a seven-year old girl, removing her pants and placing his hand between her legs. In 1967, D.C. was arrested and charged with open lewdness. The victim was a seven-year old girl. He had pulled into a secluded area, removed her undergarments, exposed himself and attempted to engage in intercourse with her. In this episode, he held the child by knifepoint. He was convicted and sentenced to an indeterminate term not to exceed three years.
In 1975, D.C. was arrested and charged with assault with intent to rape and attempted rape. The victim was a physically frail young woman. D.C. was convicted and received an indeterminate term not to exceed three years. On May 21, 1980, D.C. was arrested and charged with sexual assault. The victim was a twenty-one-year old mentally challenged woman. On May 8, 1981, he was convicted of criminal sexual contact and sentenced to eighteen months probation conditioned on a six-month county jail term and was required to obtain psychiatric counseling.
Between November 1978 and August 1985, D.C. was arrested and charged with assault and battery, interfering and creating a disturbance, simple assault, terroristic threats, and sexual assault. All charges were dismissed or "no-billed," except the simple assault charge of which he was convicted.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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." N.J.S.A. 30:4-27.26. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Since commitment at the STU, D.C. has carried the following diagnoses: pedophilia (sexually attracted to girls, not limited to family members), paraphilia NOS, nicotine and alcohol dependence, and personality disorder with anti-social features. The personality disorder is manifested by a long-term maladaptive pattern of behavior. Since his confinement, D.C. has also suffered from numerous physical ailments, including laryngeal cancer, a myocardial infarction, and a stroke. In early 2006, his physical condition suggested to staff that he should be transferred to a skilled nursing facility. By October 2006, however, D.C.'s physical condition had improved remarkably and staff had ruled out a transfer to a nursing facility.
In October 2006, Dr. Michael McAllister, a psychiatrist, reported that the Static-99 measure was 6. At this level, D.C. is considered highly likely to reoffend. Dr. McAllister also opined that "there has been no change in [D.C.'s] progress in sexual offender treatment or his motivation for such treatment. He has not made any recent attempt to further his sexual offender treatment." The record confirms that D.C. failed to attend any group sessions from February through mid-June. Thereafter, his attendance was sporadic.
At the October 24, 2006 hearing, Dr. McAllister stated that D.C.'s impulsive behavior and his unwillingness to cooperate with treatment, his lack of concern for his victims, his chronic alcohol abuse, and his history of pedophilia and paraphilia combine to predispose him to sexually reoffend. In addition, Dr. McAllister testified that he did not believe that D.C.'s age mitigated the risk. He opined that individuals who victimize children and other vulnerable persons tend to reoffend, ...