On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-335-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Parrillo and Sabatino.
This is an appeal from an order involuntarily committing H.T.G., pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. H.T.G. contends that his commitment under the SVPA was punitive, a violation of his right against double jeopardy and thus unconstitutional. He also asserts that the State failed to produce an appropriate expert witness and that the judge erred in finding him highly likely to reoffend. We disagree and affirm essentially for the reasons expressed by Judge Freedman in his bench opinion of February 14, 2005.
H.T.G. graduated from the University of Havana, Cuba with a medical degree in 1967. He immigrated to the United States in 1972 and completed a pediatric residency, after which he opened a solo practice in Newark consisting largely of Medicaid eligible patients.
H.T.G. began sexually assaulting his child patients sometime in 1988. On May 6, 1994, he was convicted of the April 21, 1993, sexual assault of Y.C., endangering, and hindering apprehension, for which he received an aggregate fifteen-year term of imprisonment with five years of parole ineligibility.
Y.C., an eight-year-old girl, had been brought into H.T.G.'s office for an eye examination. At the time, H.T.G. had entered into an agreement with the Department of Human Services by which he agreed to have a Licensed Practical Nurse (LPN) present for the entire duration of all examinations conducted by him of Medicaid recipients, in lieu of suspension, pending the resolution of allegations of sexual abuse in a prior indictment. In a darkened room, without the presence of an L.P.N., H.T.G. reached under Y.C.'s skirt, spread her legs, fondled her vagina, pulled out his penis, and ejaculated on the child's clothing.
Y.C.'s mother, who had been in the darkened room, inquired after the examination as to what the wet substance was on her daughter's clothing. H.T.G. responded that it was his tears.
H.T.G.'s wife requested Y.C.'s mother not to report the incident, however, she refused.
Following his jury conviction, H.T.C. pled guilty to multiple earlier sexual assaults of three other child patients, F.O., R.A., and M.M. F.O., a twelve-year-old boy, was sexually assaulted by H.T.G. on several occasions in 1988 when H.T.G. forced his tongue into F.O.'s mouth, fondled his penis, buttocks, and chest, and had F.O. touch his penis. On several occasions in 1990 and 1991, H.T.G. fondled, kissed, and digitally penetrated R.A., a fourteen-year-old girl. Between 1990 and 1991, H.T.G. molested M.M. five times when she was ten and eleven years of age. H.T.G. put his penis in M.M.'s mouth, placed her hand on his penis, licked her breast and vagina, and, on one occasion, ejaculated on her face. He also paid M.M. fifteen to twenty dollars and asked her not to tell anyone.
Prior to the completion of his sentence, H.T.G. was evaluated for a pre-release risk assessment by Dr. Richard Mucowski, Ph.D., and Dr. Vasudev Makhija, M.D. Both doctors recommended commitment under the SVPA. On the eve of H.T.G.'s scheduled release, the State filed its application for civil commitment to the Special Treatment Unit (STU), which resulted in a temporary order of commitment.
H.T.G.'s initial hearing for permanent commitment was held over a four-day period. The following testimony was presented. Dr. Luis Zeiguer, a psychiatrist, diagnosed H.T.G. with Paraphilia Not Otherwise Specified (NOS) with an attraction to children that met the criteria for Pedophilia under the Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV). He found that H.T.G. had Personality Disorder NOS with narcissistic traits, and focal and generalized seizures. He reported that ...