On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 253-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Baxter.
J.Z.M. appeals from a September 13, 2007 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He was initially committed to the STU on a temporary order of commitment on June 20, 2002. At the initial hearing on September 18, 2002, the judge continued his commitment. We reversed that order on appeal, finding that the testimony of the State's single witness impermissibly relied on hearsay. We remanded for a new commitment hearing that took place on October 4, 2005, at which time J.Z.M.'s commitment was again continued. We affirmed that order on appeal. While the first appeal was pending, an annual review hearing was conducted on September 10, 2003, and the judge ordered the continued commitment of J.Z.M. He did not file an appeal from that judgment. His commitment was again reviewed and continued on August 2, 2006. The most recent hearing, and the subject of this appeal, was held on September 13, 2007. We affirm.
J.Z.M.'s predicate offense is a November 15, 1999 conviction for a December 12, 1997 second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). On the day in question, thirty-nine-year-old J.Z.M., who was deaf and mute, met M.S., who also had language impairments. After smoking cocaine, the two went to his house where J.Z.M. choked her by applying his full weight on her neck with his forearms so that she could not breathe. He then sexually assaulted her. J.Z.M. was sentenced to a five-year term of imprisonment.
J.Z.M.'s sexual assault of M.S. was preceded by a September 22, 1993 conviction for an August 16, 1992 aggravated sexual assault on a woman whom he accosted at knife point on a street. J.Z.M. forced her to a nearby secluded area where he repeatedly vaginally penetrated her for more than three hours against her will. He was sentenced to a five-year prison term as a result of that August 16, 1992 attack.
In addition to his two sexual assault convictions, J.Z.M. was convicted of two other violent crimes. The first was an October 14, 1998 aggravated assault conviction for slashing a female, K.W., with a broken bottle. The second was an October 13, 1999 conviction for stalking and terroristic threats arising out of an incident where he entered a warehouse, grabbed a woman and threatened to kill her. The victim was K.W., the same woman who was the victim of the October 14, 1998 conviction. For these two crimes, he was sentenced to two concurrent five-year prison terms with a parole ineligibility period of eighteen months. When J.Z.M. was on the verge of maxing out on his sentence for the December 12, 1997 attack on M.S., the State petitioned for J.Z.M.'s involuntary civil commitment as a sexually violent predator.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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(b). "[T]he State must prove
[a] threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
During the September 13, 2007 hearing that is the subject of this appeal, the State presented the testimony of Dr. Michael McAllister, a psychiatrist. McAllister diagnosed J.Z.M. as suffering from: (1) paraphilia, NOS; (2) a history of alcohol, cocaine and opiate abuse; (3) personality disorder, NOS; (4) bilateral hearing loss and mutism; and (5) borderline intellectual functioning.*fn1
McAllister also opined that the diagnosis of malingering should be added to J.Z.M.'s diagnoses. He explained that it was apparent J.Z.M.'s confusion was contrived because it was only when J.Z.M. was describing his sex offense issues that he became evasive and confused.*fn2 As to the paraphilia, a disorder that is marked by sexual urges or behavior toward those who do not consent, McAllister observed that J.Z.M.'s history of two sexual assault convictions that involved "coercive sexual acts" justified that diagnosis. Next, McAllister explained that the diagnosis of personality disorder was justified by J.Z.M.'s lengthy history of criminal behavior, lack of respect for the rights of others, pleasure in exploiting and manipulating others, lack of concern for the perspective of others, lack of respect for the rule of law, impaired conscience development, impulsivity, and difficulty in establishing and maintaining long-term relationships.
When asked to describe J.Z.M.'s attitude toward, and participation in, treatment, McAllister responded that J.Z.M. "clearly demonstrates a resistance to treatment." He explained that J.Z.M. "has not demonstrated a consistent, active participation in treatment . . . nor a positive ...