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In re Civil Commitment of F.P.N.

June 26, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF F.P.N. SVP-302-03


On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-302-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: June 2, 2008

Before Judges A.A. Rodríguez and C.L. Miniman.

F.P.N. appeals from an order for continued commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. F.P.N. contends that this is a psychologically complicated case due to his long history of developmental delay, mental retardation, attention-deficit disorder and bipolar disorder. He asserts that the State did not meet its burden of proof and its expert did not establish a nexus between his diagnoses and the risk of sexual violence. We affirm.

F.P.N. was first civilly committed on June 20, 2003, and that commitment was reviewed by us and affirmed on December 17, 2004. On February 22, 2006, an order was entered continuing his involuntary civil commitment, which we affirmed on October 12, 2006. The relevant facts are recited in our opinion reviewing the initial commitment.

The predicate offense involved multiple sexual acts with two runaway girls, who were fourteen and fifteen years old, over the course of a weekend, both in a motel and at F.P.N.'s house. At the time, F.P.N. was twenty-three years of age and on probation from an earlier conviction of endangering the welfare of a minor. J.P.N. was charged with two counts each of sexual assault, endangering the welfare of a child and criminal sexual contact. He was also charged with distributing a controlled dangerous substance, unlawful possession of a weapon, possession of a weapon for unlawful purposes and criminal restraint.

On January 22, 1996, J.P.N. pled guilty to two counts of sexual assault in the second degree, distributing a controlled dangerous substance in the fourth degree and criminal restraint in the third degree. He was sentenced to two concurrent ten-year prison terms for the sexual assault and lesser concurrent terms for the balance of the charges to which he pled. He was sentenced to community supervision for life. The sentencing judge recommended an Avenel evaluation.

Defendant has a long history of sexual assaults beginning on July 2, 1989, when he was an inpatient at the Carrier Foundation. On that day he assaulted a thirteen-year-old girl and, when she reported it to some of her friends, they too stated that J.P.N. had also touched their breasts, buttocks and vaginal areas by the pool. On July 2, 1989, J.P.N. also assaulted a fifteen-year-old girl in the pool by kicking her in the vagina and trying to grab her breasts. On the same day J.P.N. assaulted a seventeen-year-old girl who was in the pool by poking her vagina with his finger. J.P.N. pled guilty to criminal sexual contact on May 16, 1990.

Defendant was next involved in a sexual assault on a ten-year-old girl between September 1991 and March 25, 1992, when the police responded to a call from the Division of Youth and Family Services, which had received an anonymous tip that a ten-year-old girl had been sexually abused. The ten-year-old reported to the police that J.P.N. and his brother had been sexually assaulting her and that J.P.N. had done so about ten times. Subsequently, the victim recanted her statement regarding J.P.N. Despite the victim's recantation, J.P.N. pled guilty to endangering the welfare of a child in the fourth-degree and was sentenced to two years probation.

On June 18, 1994, the police responded to a call that J.P.N. had been making sexual advances to three children, two were thirteen years old and one was fourteen years old. These three girls were subjected to the same type of behavior in a swimming pool as were the patients at the Carrier Clinic. At the time of these assaults, J.P.N. was on probation for the 1992 conviction of endangering the welfare of a child. J.P.N. pled guilty to a violation of probation and on July 10, 1995, he pled guilty to three counts of criminal restraint in the fourth-degree. He was sentenced on September 29, 1995, to an indeterminate term at the Youth Correctional Institution in Yardville not to exceed eighteen months.

While at Yardville, J.P.N. was charged with aggravated assault with a weapon, threatening to kill and possession of a weapon for unlawful purposes. The charge was downgraded to harassment and J.P.N. was fined. While there, he had multiple institutional violations: "refusing to obey; interfering with count and abus[ive]/obscene language to staff; sexual proposals and threats; possession not authorized; destroy/alter/damage government property; possession/introduction of a weapon and threat of bodily harm."

Defendant received his second review of commitment on February 7, 2008. The State presented the testimony of one witness, Evan Feibusch, M.D., a psychiatrist who testified for the State. He testified that his report was prepared in the ordinary course of business and ...


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