On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-237-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Lisa and Lihotz.
Appellant, G.L.M., appeals from Judge Freedman's March 16, 2007 order continuing his civil commitment in a secure facility as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the judge erred in continuing his commitment because the State failed to prove by clear and convincing evidence that he was subject to continued commitment as a sexually violent predator. In particular, appellant argues that he has made sufficient progress in his sex offender treatment to render him less than highly likely to re-offend, and he therefore no longer meets the criteria for commitment.*fn1
We reject this argument and affirm substantially for the reasons set forth by Judge Freedman in his comprehensive oral opinion of March 16, 2007.
Appellant is now fifty-two years old. He is the subject of two convictions for sexual offenses perpetrated against three victims. On October 24, 1980, appellant interacted with a nineteen-year-old stranger. He pulled out a knife and directed her to go into her house with him. He attempted to engage in vaginal intercourse with her but was unable to obtain an erection. He forced her to perform fellatio upon him, after which he threatened that if she reported the incident he would return and cause her harm.
On November 24, 1980, appellant accosted a twenty-one-year-old acquaintance. At knife point, he again unsuccessfully attempted to engage in forced vaginal intercourse. He then masturbated in front of the victim. The victim reported that appellant had engaged in a similar act with her four to five months earlier, but she failed to report it.
Appellant pled guilty to one count of first-degree aggravated sexual assault and one count of second-degree attempted aggravated sexual assault with respect to these incidents. He was sentenced on July 2, 1981 to fifteen years imprisonment, to be served at the Adult Diagnostic and Treatment Center (ADTC). Appellant began serving his sentence at the ADTC, but, by 1986, he persistently refused to participate in treatment. As a result, in 1987, he was transferred out of the ADTC and served the remainder of his sentence in general population. He was released on December 17, 1990.
Seven months later, on July 19, 1991, appellant committed the predicate offense. He was living in a household in which he had custody of his fourteen-year-old niece. While alone with her, he grabbed her, pulled down her pants, threw her to the floor and forcibly engaged in vaginal intercourse with her. The victim eventually was able to push appellant off of her. She ran into the bathroom to wash her genital area, after which she ran to the kitchen and armed herself with a kitchen knife. Appellant attempted to restrain her from leaving, but she succeeded, cutting appellant's hand in the process, and was able to run to a neighbor's house and report the crime.
On November 18, 1992, appellant pled guilty to first-degree aggravated sexual assault. Appellant was examined psychologically and determined to be ADTC-eligible, but he expressed his refusal to serve his sentence there. The judge acceded to appellant's wishes and directed that he serve his sentence in general population. Appellant was sentenced to sixteen years imprisonment with a six-year parole disqualifier.
In anticipation of appellant's likely release, the State filed a petition in March 2002 seeking his commitment under the SVPA. An order for temporary commitment was entered on March 21, 2002. Appellant has remained confined at the Special Treatment Unit (STU) since then. In addition to his initial hearing, he has been the subject of five review hearings. On two occasions, appellant stipulated his eligibility for continued confinement. On two other occasions, after contested hearings, continuing commitment orders were entered and appealed to this court. In our opinion of June 21, 2004, A-3538-02T2, we affirmed the December 4, 2002 order of continuing commitment. By our opinion of February 7, 2006, A-6691-04T2, we affirmed the August 5, 2005 order of continuing commitment. The review hearing that is the subject of this appeal was conducted on March 13, 2007, and resulted in Judge Freedman's order of March 16, 2007, the date on which he rendered his oral opinion.
At the hearing, the State presented the testimony of Dr. Vivian Shnaidman, a psychiatrist, who testified regarding her psychiatric evaluation of appellant and her written reports, which were placed in evidence, and Dr. Brian Friedman, a psychologist, who testified concerning the Treatment Progress Review Committee (TPRC) annual review report dated July 21, 2006, which he prepared and which was also admitted in evidence. Appellant presented the testimony of Dr. Timothy P. Foley, a psychologist, regarding his evaluation of appellant, and his ...