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In re Civil Commitment of D.H.S.

March 11, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF D.H.S. SVP-262-02


On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 262-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2008

Before Judges Parrillo and Baxter.

D.H.S. appeals from the September 24, 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 August 13, 2002. His commitment has been previously reviewed and continued on September 6, 2002 and February 8, 2005. We affirm.

The predicate offense was an October 18, 1987 aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). A detailed entry in D.H.S.'s treatment record contains his August 8, 2007 description of that offense. According to D.H.S., on the night in question he felt rejected and "castrated" because both of his girlfriends refused to engage in sexual relations with him. He ran into a male friend and the two got high on PCP and robbed some gas stations. They then went to strip clubs to "lay low." D.H.S. recalled thinking that "someone was going to pay today." At the strip clubs, after watching several lap dances, D.H.S. became sexually aroused but was asked to leave because he was too young. He viewed this as another rejection, and he felt "inadequate and angry."

As D.H.S. and his friend entered his apartment building, D.H.S. saw a twenty-eight-year-old woman with whom he was infatuated. As she stepped into the elevator, D.H.S. reached up and turned out the light while his accomplice was wrestling with the victim trying to pull her pants down. While still feeling "pissed off," D.H.S. admitted that he pulled out his penis, stood over her and told her "to get it right." At this point, she had stopped fighting, and D.H.S. engaged in forcible vaginal intercourse. Afterward, his accomplice also sexually assaulted her. When asked, D.H.S. denied taking a bottle from the victim's bag and hitting her over the head with it, although police found a large pool of blood in the elevator and blood on D.H.S. On April 6, 1990, D.H.S. was sentenced to a twenty-year term of imprisonment with a ten-year period of parole ineligibility for that October 18, 1997 sexual assault.

On April 6, 1990, D.H.S. was also sentenced to a concurrent twenty-year prison term for the gas station robberies that he committed on the same night that he and his accomplice committed the aggravated sexual assault in question.*fn1 When D.H.S. was on the verge of maxing out on the two sentences that had been imposed on April 6, 1990, the State petitioned for his involuntary civil commitment as a sexually violent predator.

D.H.S.'s conviction on the predicate offense of aggravated sexual assault was preceded by a long history of juvenile adjudications of delinquency. In the year 1984 alone, he was adjudicated delinquent of the following charges: simple assault, robbery, burglary, joyriding and receiving stolen property. The next year, he was adjudicated delinquent of five separate burglaries, followed by an attempted robbery in 1986.

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 24, 2007 hearing that is the subject of this appeal, the State presented the testimony of Dr. Howard Gilman, a psychiatrist. When asked for his opinion about how D.H.S. was progressing in treatment, Gilman answered "D.H.S. goes to treatment which is good. He speaks in treatment on occasion which is good. But he has had some notable problems in treatment. . . . [H]e's refused to attend arousal reconditioning." When Gilman questioned D.H.S. about that refusal, D.H.S. maintained that he had no need to change his arousal pattern because his arousal pattern is not deviant. D.H.S. denied any pedophilic, sadistic or other sexual deviance.

Gilman also described the results of the Static-99 testing that he administered to D.H.S. on June 18, 2007, reporting that D.H.S. received a score of , which placed him at "high" risk of reoffending. When asked if anything in the treatment records or in his interview ...


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