On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-358-04.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2006
Before Judges Stern, Collester and Sabatino.
J.M.B. is a fifty-five-year-old divorced man who was serving a state prison term of five years for tampering with a witness, N.J.S.A. 2C:28-5a(1), and an additional one year consecutive term for violation of a previously imposed probation. Before J.M.B.'s release, the Attorney General filed a petition for his civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -.38, (SVPA). An order was entered temporarily committing J.M.B. to the Special Treatment Unit (STU) pending an initial commitment hearing. Two clinical certificates were annexed which identified J.M.B. as a sexually violent predator under the SVPA. The commitment hearing began on July 9, 2004 and concluded on July 12, 2004. Judge Serena Perretti placed her decision on the record on July 20, 2004, and entered a judgment committing J.M.B. to the STU for treatment pending a review hearing in one year. The commitment has since been extended. Defendant appeals from Judge Perretti's initial judgment of commitment.
To be deemed a sexually violent predator under the SVPA, the individual must have been convicted, adjudicated delinquent, or found not guilty by reason of insanity, of a "sexually violent offense" or declared incompetent to stand trial for such an offense. N.J.S.A. 30:4-27.26. The statutory definition of a "sexually violent offense" is contained in N.J.S.A. 30:4-27.26(a) and (b). Subsection (a) lists the following offenses: aggravated sexual assault; sexual assault; aggravated criminal sexual contact; sexual contact; certain forms of kidnapping and felony murders; attempts to commit those enumerated acts; and all criminal offenses with substantially the same elements as those offenses. N.J.S.A. 30:4-27.26(a). Subsection (b) is a catchall provision to include "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b). It does not matter when the offense was committed as long as it qualifies as a predicate offense under the SVPA. In re Commitment of P.Z.H., 377 N.J. Super. 458, 466 (App. Div. 2005).
In addition to the determination that a person committed a sexually violent offense, the State must prove that the person is a threat to the health and safety of others because he or she "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. Our Supreme Court has interpreted the statute to require the State to establish by clear and convincing evidence that it is "highly likely" the person will re-offend in the reasonably foreseeable future. In re Commitment of W.Z., 173 N.J. 109, 120, 130-31 (2002).
The State put forth proof as to several incidents leading to convictions it asserted were sexually violent offenses under N.J.S.A. 30:4-27.26(b). The first incident took place on April 20, 1977 and involved children ages ten, twelve, and fourteen. J.M.B. was arrested by the Stafford Township Police Department and charged with contributing to the delinquency of a minor, intimidation, and threat to kill. He gave the police a statement in which he admitted that he picked up ten-year-old R.J. and took him to a wooded area where he attempted to tie him to a tree but then took him home. R.J. told police J.M.B. threatened to kill him if he told anyone. In his statement J.M.B. said he did not recall, but conceded he said it. J.M.B. said he later picked up the two other boys and drove them to his house to play pool. He tied up one in the bedroom, binding his hands and feet, and untied him about fifteen minutes later when the boy began to cry. He also admitted to serving alcohol to the boys and selling marijuana to one of them. He denied having sex with any of the boys, but admitted he got sexual gratification from tying up young males. He told police he only ties up male juveniles and had done so approximately twenty times, starting when he was in grade school.
J.M.B. was indicted in Ocean County for two counts of threat to kill, one count of contributing to the delinquency of a minor, and one count of distribution of marijuana to a juvenile. On August 19, 1977 he pleaded guilty to contributing to the delinquency of a minor and threat to kill. He was sentenced to an indeterminate term at the Youth Reception and Correction Center, suspended, and one year probation with a special condition to continue psychiatric treatment. The remaining charges were dismissed. The judge gave the following reasons for the sentence: "Although this is a serious series of offenses, this young defendant appears to have completely changed his lifestyle, and is making good progress with his psychiatric counseling."
The second incident leading to conviction took place on October 7, 1981. Fifteen-year old E.H. reported to the Warren Township police that he had been hitchhiking to school when he was picked up by a man he later identified as J.M.B. E.H. said that J.M.B. asked him if he wanted to get "high." When E.H. said yes, he got into J.M.B.'s car, and they drove to a dead-end where they got out and entered nearby woods. E.H. said J.M.B. grabbed him by the hair when he wasn't looking, threw him to the ground, pulled out a knife, held it to his throat, and told him to lay on his stomach. E.H. wrestled with J.M.B., broke free, and ran to a nearby house for help. The police were called, and J.M.B.'s car was stopped nearby. E.H. suffered a throat wound requiring five stitches. J.M.B. was indicted in Somerset County for second-degree aggravated assault and criminal restraint.
The third incident took place a month later, while J.M.B. was free on bail on the Somerset County indictment. On November 8, 1981, sixteen-year-old A.C. reported to the East Brunswick Police Department that he had been kidnapped at about two o'clock that afternoon by a man who he later identified as J.M.B. He explained that he had been walking along the sidewalk to his friend's house when a car pulled alongside him. The driver asked for directions to Edison and requested that A.C. point out the route on a map he kept in the glove box. As A.C. leaned into the car, he was hit on the head with a blunt object and lost consciousness. When he awoke, he was in a strange house, tied and gagged with his eyes taped, his hair taped together in places, and his mouth glued shut with Crazy Glue. After a substantial period of time, from one to three hours, the man removed the gag and told A.C. he would let him go only if he agreed to let the man cut his hair; otherwise he could remain there, tied up. A.C. agreed, and the man ripped out some of his hair and cut the rest with scissors. He then cut the ropes off but left A.C. blindfolded while he drove him to a building near Route 1 where he let him go. After A.C. identified his picture in a photo lineup, J.M.B. was arrested. He admitted the facts given by A.C. were essentially correct.
J.M.B. pleaded guilty to the Middlesex County indictment charging kidnapping and aggravated assault on A.C. and was sentenced on April 26, 1982 to fifteen years for kidnapping and a concurrent ten-year term for aggravated assault. The sentencing judge called the offenses "depraved" and said J.M.B. was a danger to society who was likely to offend again. He added, "It is most unfortunate that the sex offenders act does not apply to him. I think he should have the benefit of that treatment." Later J.M.B. pled guilty to the Somerset County indictment for the criminal restraint of E.H. The aggravated assault charge was dismissed, and J.M.B. received a five-year sentence concurrent to the Middlesex County sentence.
After serving five years in state prison, J.M.B. was eligible for parole. The Parole Board referred him for an examination at the Diagnostic and Treatment Center in Avenel to assess the extent of J.M.B.'s pathology and the level of risk if paroled. Dr. Philip Witt performed that evaluation on November 18, 1986. During the interview, J.M.B. acknowledged his pattern of finding an adolescent male, incapacitating him, tying him up, and pulling out his hair. He denied any sexual acts with the victims, however, he admitted he found their bondage to be sexually exciting. Dr. Witt advised the Board that while J.M.B. had been in psychotherapy at Leesburg State Prison, he had not dealt directly with modifying his deviant sexual arousal pattern, and so he was still at risk to commit additional offenses and was a poor candidate for parole. J.M.B. maxed out on his sentence.
The third incident took place on July 12, 1989. J.M.B. was arrested in Warren County and charged with kidnapping, aggravated assault, and criminal sexual contact. The arrest was the result of a statement by twenty-year-old F.S., who said he met J.M.B. about nine months before when he was hitchhiking. He told J.M.B. that he was living day-to-day, and J.M.B. offered to help by giving him $100. F.S. told police that he and J.M.B. then engaged in bondage behavior over a period of six months.
J.M.B. would handcuff, gag, and blindfold F.S. on a regular basis, and would threaten the twenty-year-old to prevent him from speaking with the police. In the final bondage encounter, F.S. said J.M.B. tied his hands and ankles and placed him on a pool table, where he blindfolded, gagged, and handcuffed him.
J.M.B. then taped F.S.'s hair and tied the other end of the restraint to a beam in the ceiling. When F.S. objected, J.M.B. threatened him with a stun gun. He began to cut F.S.'s hair and told F.S., "I'll cut all your hair off or I'll hang you like I did before." F.S. also told police that "sometimes [J.M.B.] used to try to touch my private parts, and I'd push his hands away." J.M.B. was arrested and indicted for kidnapping, criminal restraint, terroristic threats, possession of a weapon for unlawful purposes, aggravated assault, and criminal sexual contact, which was his first and only charge for a sexual offense.
On January 10, 1991 J.M.B. pleaded guilty to criminal restraint in the third degree, terroristic threats in the third degree and possession of a weapon for unlawful purposes. The other charges, kidnapping in the first degree, aggravated assault in the third degree, and criminal sexual contact in the fourth degree, were dismissed at sentencing. On March 1, 1991 J.M.B. was sentenced to seven years with two and one-half years parole ineligibility to New Jersey State Prison. He maxed out on this sentence on April 29, 1994.
Several months after his release, in December 1994, J.M.B. met fifteen-year-old S.S. at a Christmas party. J.M.B. was living in Pennsylvania at that time. S.S. was on furlough from Ranch Hope Program, where he was ordered after juvenile proceedings in the Family Court. He told J.M.B. he was unhappy there and wanted to live with him, and J.M.B. encouraged S.S. to run away from Ranch Hope. He wrote to S.S. and sent him money on occasion. On June 17, 1995, S.S. began another furlough and was scheduled to return to Ranch Hope on July 5, 1995. Instead, S.S. fled his house through a second-floor window to avoid being taken back. He called J.M.B. the next day and asked him to come get him in New Jersey.
A day or two later, J.M.B. met S.S. in Gloucester City and they traveled to J.M.B.'s residence in Pennsylvania. The next day J.M.B. told S.S. that if he could tie him up, he would give him $70 if S.S. was able to remove the restraints. S.S. agreed. J.M.B. then tied the fifteen-year-old's hands behind his back and tied his hands and feet together. When S.S. protested because J.M.B. began to attach the rope to his neck, J.M.B. threatened to use an apparatus with straps and a ball in the middle to gag him. S.S. said that at one point J.M.B. touched his penis but stopped when S.S. told him not to touch him.
J.M.B. then played a male bondage video on the television while he watched S.S. attempt to remove the bindings. At another time, J.M.B. tied S.S.'s hands and feet and offered S.S. $20 if he could free himself from the bindings. When S.S. was able to do so, J.M.B. offered him another $20 if he could tie S.S. again and then tightly bound him. S.S. said each time J.M.B. would tie him up, J.M.B. would sit in front of him and watch him try to remove the bindings.
On July 20, 1995, S.S. and J.M.B. were found together in Stroud Township, Pennsylvania. J.M.B. was arrested on December 4, 1995 and charged in Camden County with interference with the custody of a committed person, a fourth-degree offense. He entered a guilty plea to the charge. On February 16, 1996 he was sentenced to five years probation. However, on June 25, 1999, his probation was revoked for his failure to remain arrest-free. He was sentenced to one year in New Jersey State Prison to be served consecutively with the Camden County sentence for interference with the custody of a committed person.
On April 3, 1997, J.M.B. was arrested and charged with harassment of nineteen-year-old W.S. W.S. told police that he had known J.M.B. for three weeks when he went to J.M.B.'s rented room because J.M.B. told him he was going to "initiate" him.
W.S. consented to having his hands and feet bound, but when J.M.B. placed electrical tape over his eyes and a wet rag in his mouth, he asked J.M.B. to stop. J.M.B. continued, taped the rag over W.S.'s mouth, and guided him to a bed. W.S. demanded to be untied. J.M.B. complied, and took him home where W.S. told his mother. She called the police and the harassment charge was filed. The charge was subsequently downgraded in municipal court to a violation of the local loitering ordinance. J.M.B. pleaded guilty and was fined $400.
On September 9, 1997, J.M.B.'s car was stopped by a Westville police officer for a motor vehicle violation. While speaking to J.M.B., the officer saw handcuffs in the car and arrested J.M.B. When the car was searched the police found chains, a rope with a "hangman's knot", several pairs of thumb cuffs, belts used for bondage, and other such items. He was charged with illegal possession of handcuffs, N.J.S.A. 2C:39-3(k), driving while suspended, and driving an uninsured vehicle. The record in this matter does not indicate a disposition.
On April 7, 1999, J.M.B. was stopped by the Evesham Township Police Department and arrested on an outstanding traffic warrant, as well as driving with an expired license. The police searched the vehicle and found in the trunk 100 photographs of gagged and bound boys or young men between the ages of fifteen and twenty-two. The photos had been taken between July 1998 and February 1999, and the police were able to identify eight of the males.
After receiving Miranda*fn1 warnings, J.M.B. gave an oral statement that was recorded and transcribed. He admitted taking the photographs, but he declined to give the names of the young males. He said they were all willing participants to the bondage. He said the pictures were taken in his room or in the basement of the carwash where he worked. He acknowledged giving them beer. The pictures showed the young males blindfolded and arranged in different poses with their hands and feet bound in different positions. One of the photographs showed what appeared to be an erect penis next to a boy's mouth. J.M.B. maintained that the object was not an actual penis but a "butt plug" purchased at an adult book store. He added that the blindfolded subjects were unaware of the presence of the butt plug. Taped to some of the photographs were locks of hair apparently taken from the young men. J.M.B. called the pictures his "trophies."
J.M.B. was charged with three counts of harassment, one count of contempt, and three counts of luring and enticing a child. He was remanded to the county jail in lieu of bail. While in jail he made many collect calls to J.R., one of the boys in the photographs. When J.M.B. was released on bail it was with the condition that he have no contact with the victims. Nonetheless, J.M.B. called J.R. at his home to dissuade him from testifying. He asked J.R. if he was going to show up at his trial, adding that if he and the others in the picture did not show up, there would be no evidence against him. In a later call to J.R., J.M.B. asked "if he was for him or against him."
J.M.B. was then arrested and charged with tampering with a witness, N.J.S.A. 2C:28-5(a)(1). His bail was revoked. Following a motion to suppress in October 1999, the motion judge suppressed the photographs as evidence because they had been seized by the police without a warrant. After the order ...