On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-455-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, R. B. Coleman and Lyons.
This matter came before us on an emergent application by the State, seeking a continuation of a temporary stay of the portion of a September 20, 2007 order of the Law Division that directed the discharge of J.W. from his continued civil commitment as a sexually violent predator under the Sexually Violent Predator Act, N.J.S.A. (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We extended the stay, pending appeal and expedited oral argument. We now reverse the order of discharge and remand the matter for periodic reviews under the SVPA.
On September 22, 1981, defendant and an accomplice forced a woman into her own vehicle at knife point. They then drove her to a secluded area where they took turns vaginally raping her and performing other sexual acts. They stole the woman's money and departed in her car, after dropping her off. On January 27, 1982, defendant J.W. pled guilty to aggravated sexual assault, N.J.S.A. 2C:14-2(a), and armed robbery, N.J.S.A. 2C:15-1. In accordance with the terms of his plea agreement, J.W. was sentenced to two concurrent ten year prison terms with three years of parole ineligibility.
After serving three years on that sentence, defendant was released on parole. While still on parole in 1987, defendant was arrested and charged with kidnapping and rape. In this second incident, J.W., operating with a different accomplice, pushed an eighteen-year-old female into a car and drove again to a secluded area. They forced this woman to perform fellatio on them and alternated vaginally raping her. After a trial, the jury found defendant guilty of aggravated sexual assault, N.J.S.A. 2C:14-2(a), kidnapping, N.J.S.A. 2C:13-1b(1), and conspiracy, N.J.S.A. 2C:5-2. On December 18, 1987, the court sentenced defendant on the aggravated sexual assault count to twenty years in prison, with ten years parole ineligibility. On the kidnapping charge, defendant was sentenced to a consecutive term of fifteen years in prison. The conspiracy count was merged. That judgment was later amended to excise the ten-year parole disqualifier.
The term of defendant's sentence was set to expire in 2007. However, in April 2007, the State moved for the civil commitment of defendant under the SVPA. J.W. was temporarily committed to the Special Treatment Unit (STU) on March 13, 2007, pending a hearing. That hearing, which occurred on September 17, 2007, resulted in the September 20, 2007 order from which the State has appealed.
At the hearing, two witnesses testified for the State, Dr. Evan Feibusch and Dr. Brian Friedman. Dr. Feibusch diagnosed defendant with antisocial personality disorder. Dr. Feibusch noted that J.W., while [civilly] committed, was not involved in sex offender treatment. The doctor noted that when defendant was questioned about his previous sexually violent behavior, he minimized the degree of harm instilled in the first victim and denied ever raping the second victim. Defendant continued to express his professed belief that the second victim consented to accompanying him and his accomplice and consented to all sexual contact.
Regarding defendant's medical state, Dr. Feibusch testified that defendant had peripheral vascular occlusive disease and was status post-aortic valve replacement. According to Dr. Feibusch, defendant may experience some leg pain when exerting significant amounts of energy due to these conditions. Defendant's condition may also decrease his risk to sexually re-offend to some degree, but Dr. Feibusch, nevertheless, found that J.W. presented a high risk to re-offend.
Dr. Freidman diagnosed defendant with paraphilia, not otherwise specified (NOS), and a personality disorder with antisocial traits. He believed defendant engaged in such sexually deviant activity to satiate specific sexual fantasies. Defendant's desires did not dissipate as a result of his prison term. Dr. Freidman agreed that defendant had a high risk to sexually re-offend.
The judge rendered her decision orally from the bench on September 18, 2007. She found that "[t]here is no question about the respondent's having been convicted of sexually violent offenses as defined by the Statute." She took note of Dr. Feibusch's diagnosis of antisocial personality disorder accompanied with "methampehtamine dependence, and cocaine dependence, both in controlled environment, alcohol abuse and borderline intellectual functioning." She also noted that the doctor "deem[ed] the risk of re-offense to be highly likely." In spite of the doctors' opinions, however, she characterized defendant's medical conditions, namely hepatitis C, migraines, post-aortic valve replacement and peripheral vascular occlusive disease, as "serious health problems." Expressing the reasons for her decision, the judge stated:
The Court [was] clearly convinced that there, respondent suffers from abnormal mental conditions and personality disorders that predispose ...