On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-428-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
Appellant L.S. seeks review of an order the Law Division entered on August 3, 2006, directing his civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). The order followed a hearing at which two unrebutted mental health experts testified that appellant, who had just completed his prison terms for two violent sexual offenses, met the criteria for commitment under the SVPA. We affirm.
The two sexual offenses that led to appellant's incarceration and his present civil commitment were rather close in time and similar in nature. Both crimes involved appellant taking an adult female victim to an isolated area by a waterfront, and then forcing her to have vaginal and oral sex.
The record indicates that the first offense occurred in Elizabeth on or about June 17, 1988. On that date, appellant encountered a twenty-one-year-old woman, V.P., when she was riding her bicycle. He went down to the waterfront with her.
After drinking a few beers, appellant began to tear V.P.'s clothes off. When she resisted, he punched her in the head. He then forced V.P. to have vaginal sex and perform fellatio upon him. Appellant then pedaled away on the victim's bicycle. She fled the scene and was taken by passing motorists to a nearby hospital.
Appellant was subsequently arrested and charged with second-degree sexual assault and robbery. In September 1989, he pled guilty to both offenses. The criminal judge sentenced him in February 1990 to ten years in prison on the sexual assault, plus a concurrent seven-year term on the robbery.
While appellant was out on bail on the indictment involving V.P., he committed another brutal sex crime with a second female victim, B.W., on or about April 5, 1989. On that occasion, appellant met B.W., who was then age thirty-five, at an after-hours bar. He then took B.W. down to the waterfront at about 5:30 a.m. Once there, appellant raped her vaginally and orally.
He then pulled out a kitchen knife and began to stab B.W. repeatedly in her legs, back and chest. The record indicates that she was stabbed more than fifty times, although the exact count is uncertain. She pretended that she was unconscious. At that point, appellant left. B.W. crawled to her brother's house, and was taken by ambulance to a hospital, where she remained for a week.
Appellant was arrested for the attack on B.W. one month later. He was indicted for attempted murder, aggravated sexual assault, aggravated assault, and the possession of a weapon for an unlawful purpose. He pled guilty to these charges, and received a twenty-year prison sentence on the attempted murder and a concurrent fifteen-year term on the aggravated sexual assault. The other crimes merged.
Shortly before appellant reached his parole date, the State filed a petition in April 2006 to have him civilly committed under the SVPA. The petition was accompanied by two clinical certificates from psychiatrists, who attested that appellant is a sexually violent predator in need of confinement. Based on this showing of probable cause, appellant was temporarily committed to the Special Treatment Unit ("STU") pending a hearing.
The hearing was conducted before Judge Serena Perretti on August 2 and 3, 2006. The State presented testimony from two mental health experts: Evan Feibusch, M.D., a psychiatrist,*fn1 and Natalie Barone, Psy.D., a psychologist. Both doctors had attempted to examine appellant, but he refused to cooperate with them. From their review of the pertinent records, Doctors Feibusch and Barone each concluded that appellant suffers from a mental abnormality that makes him highly likely to commit more acts of sexual violence if he is not kept in a secure facility.
Appellant did not testify at the hearing or produce any competing expert.
In her bench opinion at the end of the hearing, Judge Perretti summarized the testimony of Dr. Feibusch as follows:
Dr. [Feibusch] diagnosed [L.S. with] paraphilia NOS, not otherwise specified, non-consenting type, alcohol abuse and personality disorder, not otherwise specified, with antisocial traits. . . .
He bases the diagnosis on [L.S.'s] criminal history, which demonstrates a conspicuous lack of regard for the rights of others. ...