On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-160-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Graves.
Following service of a sex offender sentence, J.H.M. was committed to the Northern Regional Unit (NRU) in Kearny on June 27, 2001 under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He had periodic reviews thereafter at which the commitment was continued. He now appeals from the June 28, 2007 order continuing the commitment. We affirm.
By way of background, the predicate offense occurred in 1987 when J.H.M. sexually assaulted his wife's niece, which took place when she was a student in the karate school he operated at the time. As a result, on August 30, 1990, J.H.M. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), which is a sexually violent offense pursuant to N.J.S.A. 30:4-27.26(a), and was sentenced to a seven-year term with a two-and-one-half year parole bar, to be served at the Adult Diagnostic and Treatment Center (ADTC).
J.H.M.'s sex crime history actually predates his commission of the predicate offense in 1987. On June 25, 1975, he was charged with two counts of indecent exposure, subsequently pled guilty to one of the counts, and was sentenced on July 16, 1978 to an indeterminate term not to exceed three years at the ADTC. Meanwhile, J.H.M. had also been charged with impairing the morals of a minor, to which he pled guilty on May 3, 1978, admitting to forcing his six-year old stepdaughter to fellate him at least once monthly over a period of several months. J.H.M. was sentenced to an indeterminate term not to exceed three years at ADTC, to run concurrent to the sentence imposed on the July 16, 1978 conviction for indecent exposure. He was discharged to Yardville on June 5, 1981 and paroled on April 1, 1982.*fn1
J.H.M.'s sex crimes did not cease with commission of the predicate offense. Approximately eighteen months after his 1995 release from the ADTC on the 1987 sexual assault conviction, J.H.M. was arrested on January 22, 1997 and charged with stalking an eleven-year old girl, and failing to register as a sex offender. He was found guilty by jury trial of the former and pled guilty to the latter. In March 1999, J.H.M. received an aggregate sentence of three years, upon completion of which, on February 26, 2001, the State petitioned for his involuntary civil commitment pursuant to the SVPA. At the time, J.H.M. was diagnosed with pedophilia, inadequate personality disorder, and personality disorder, NOS.
In an unpublished opinion, we affirmed the June 27, 2001 order of initial involuntary civil commitment, finding that "the record [of the April 23, May 3 and 23, and June 26, 2001 hearings] amply supports the commitment under the SVPA for the reasons given by Judge Freedman in his extensive opinion of June 26, 2001, enhanced by the finding after remand that the State's evidence 'met by clear and convincing evidence the standard enunciated by the Supreme Court in [In re the Commitment of W.Z., 173 N.J. 109 (2002)].'" In re the Commitment of J.H.M., No. A-3208-02T2 (App. Div. December 9, 2003) (slip op. at 13- 14). Thereafter, following a review hearing on December 18, 2006, the Law Division determined that J.H.M. continued to be a sexually violent predator in need of involuntary civil commitment and, therefore, ordered that he remain confined to the NRU.
Following the next scheduled review hearing on June 25, 2007, which is the subject matter of this appeal, Judge Perretti reached the same conclusion, namely that J.H.M. continued to be a sexually violent predator in need of commitment. At that hearing, Dr. Howard Gilman testified for the State, and Dr. Jeffrey Singer testified on behalf of J.H.M. In essence, Dr. Singer opined that J.H.M.'s "risk for sexual offense recidivism is within the low moderate range[,]" based in part on J.H.M.'s considerable control of his behavior since his arrival at the NRU; advancing age (fifty-nine years old); compromised medical condition; treatment gains; polygraph results; and the fact that while operating his karate school, there was only one reported victim although ample opportunity was presented for J.H.M. to have molested many more. In contrast, Dr. Gillman concluded that J.H.M. continues to be at high risk to sexually reoffend based in part on his actuarial score on the Static-99; his history of repeated sexual offending and general antisocial behavior, including pedophilic sexual interactions with girls; and his lack of progress in treatment. As to the latter, Dr. Gillman reported:
[J.H.M.]'s progress in sex offender specific treatment over the past six years has been spotty. Although at times he has been judged to do well by his treatment team, there are indicators that [J.H.M.]'s progress in treatment has been less than robust. These include continued denial of two of his sexual convictions; changing stories regarding his admitted sex offenses; emotionally "empty" self-endorsement of himself as a pedophile, but more robust denial of pedophilic arousal; a poor understanding of his sex offense cycle; a deviant arousal scenario that was crafted in significant part by his wife; and, an inability or refusal to admit to deviant sexual drives outside of his two admitted sexual crimes.
In discrediting Dr. Singer's opinion, Judge Perretti specifically reasoned:
Both in his testimony and in his report he calls attention to the fact that [J.H.M.] was married and had sex with adult women. Dr. Singer acknowledges that pedophilia can be non-exclusive; however, he uses this relationship ...