On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-461-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Cuff and Simonelli.
The State appeals from the August 29, 2007 order dismissing its petition to civilly commit E.S. under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. It argues that the trial court abused its discretion in determining that E.S. should be released.*fn1
Under the SVPA, the State must prove by clear and convincing evidence that the person whose commitment it seeks, "has been convicted . . . of a sexually violent offense . . . and 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. Clear and convincing evidence is that which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations. State v. Hodge, 95 N.J. 369, 376 (1984). The standard is as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . [T]he State must prove that threat 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.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
E.S., now age thirty-five, has an extensive criminal history dating to his adolescence. He has five drug-related convictions, and one conviction for aggravated assault, sexual assault, simple assault and kidnapping.
In 1991, E.S. was charged with sexual assault after his former girlfriend accused him of rape. E.S. denied raping his former girlfriend. He claimed that the sexual intercourse was consensual and that the former girlfriend accused him of rape because he refused to give her money. A grand jury no-billed E.S. for this offense and the charge was dismissed.
In October 1992, E.S. was charged with sexual assault, criminal sexual assault, criminal restraint and simple assault, after another former girlfriend accused him of raping her. He admitted that he continued to have sexual intercourse after his former girlfriend told him to stop. He pled guilty to sexual assault and simple assault. All other charges were dismissed. E.S. received a five-year sentence on the sexual assault charge, and a concurrent six-month sentence on the simple assault charge. Prior to his sentencing, Kenneth L. McNiel, Ph.D., the principal clinical psychologist at the Adult Diagnostic and Treatment Center, examined E.S. and concluded as follows:
Based on the results of this evaluation, there is no evidence to indicate a pattern of repetitive and compulsive sexual behaviors. Based on available information, it appears that sexual behaviors in this case were related more to antisocial and situational factors than to compulsive sexual urges. Overall clinical impression is of an insecure individual with pronounced antisocial tendencies, who may well be more severely emotionally disturbed than he has reported during this evaluation, based on test responses and clinical presentation.
In 1998, E.S. was charged with kidnapping, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, terroristic threats, criminal restraints, stalking, possession of a weapon for unlawful purposes, unlawful possession of a weapon, witness tampering and possession of an imitation firearm for an unlawful purpose after another former girlfriend accused him of rape. E.S. denied that he raped the former girlfriend and claimed that the sexual intercourse was consensual. He pled guilty to second degree kidnapping. All other ...