On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-398-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
Appellant, R.Z.H., appeals from a November 15, 2005 judgment committing him to the State of New Jersey Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he raises the following two points for our consideration:
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.Z.H. IS A SEXUALLY VIOLENT PREDATOR IN NEED OF CIVIL COMMITMENT.
POINT II: R.Z.H. SHOULD HAVE BEEN DISCHARGED SUBJECT TO CONDITIONS AS THE COURT DEEMS NECESSARY TO INSURE THE PROTECTION OF THE COMMUNITY OR ALLOWED TO ENTER A PROGRAM WHICH WOULD INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.
We conclude that appellant's arguments are without merit and affirm.
A criminal defendant who has been convicted of a predicate offense to the SVPA may be subject to an involuntary civil commitment when he "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. To warrant commitment, the State must prove 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 Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address the individual's "present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. The State must establish "by clear and convincing evidence . . .
that it is highly likely that the person . . . will reoffend." Id. at 133-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Here, the State has met its burden.
Appellant is forty-eight years old. He has a lengthy criminal record. In 1978, he sexually assaulted a twenty-six-year-old mentally challenged man, throwing the victim to the ground, punching him in the face and side, and attempting to sodomize him. The victim suffered rectal bleeding as a result of the assault. When appellant was arrested, he told the police that he had sodomized the man on a prior occasion.
Appellant pleaded guilty to sodomy and received a suspended sentence to Yardville Youth Reception and Corrections Center, with three years probation. He underwent a psychiatric examination at Avenel Adult Diagnostic and Treatment Center in 1979. Based on testing, his I.Q. was estimated at sixty-seven - within the "[m]ildly [r]etarded range of intellectual functioning." The examiner concluded that "[t]here is no clinical evidence that the incident is part of a ...