On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-231-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Parrillo.
M.L.E. appeals from a March 30, 2006 judgment ordering his continued commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We have thoroughly reviewed the record, and we find appellant's arguments lacking in merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.
M.L.E. is a forty-four year old pedophile with a history of sexually violent behavior dating back to 1988. The predicate sexual offenses for which he was convicted and sentenced to a ten-year prison term are second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, involving his then-girlfriend's twelve-year old daughter. These offenses occurred on August 8, 1994, only two years after M.L.E.'s August 1992 parole from a seven-year sentence imposed as a result of M.L.E.'s 1990 guilty plea to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, involving a former girlfriend's five-year old daughter.
Prior to his release from prison on the predicate sexual offense sentence, the State moved for M.L.E.'s civil commitment under the SVPA. Finding probable cause to believe that he was a sexually violent predator in need of commitment, the court temporarily committed M.L.E. to the STU on February 13, 2002 and following an initial hearing, a final order of commitment was entered on July 1, 2002. A review hearing was held one year later, resulting in a June 9, 2003 order for M.L.E.'s continued commitment. M.L.E. appealed and we affirmed, finding his arguments without merit, R. 2:11-3(e)(1)(E), and that "M.L.E. has not made the necessary progress in treatment. . . ." In re Commitment of M.L.E., A-5278-02T2 (App. Div. April 14, 2005) (slip op. at 2).
At the March 30, 2006 review hearing, which is the subject of this appeal, Dr. Vivian Schneidman, a psychiatrist, testified on behalf of the State. Although M.L.E. refused to participate in the clinical evaluation, Dr. Schneidman was nevertheless able to evaluate his current risk to sexually reoffend based on her thorough review of M.L.E.'s entire treatment record. Based on that evaluation, Dr. Schneidman diagnosed M.L.E. with pedophilia, polysubstance abuse and personality disorder, NOS, with antisocial traits. Pedophilia, she explained, cannot be cured and predisposes M.L.E. to commit acts of sexual violence. Moreover, his personality disorder enables M.L.E. to act out on his pedophilia and the substance abuse acts as a disinhibitor as well.
According to Dr. Schneidman, M.L.E. is also a "treatment refuser," who has never meaningfully participated in sex offender treatment and consequently has not progressed while at the STU beyond the lowest phase of the five-phase treatment program. Consequently, treatment thus far has not mitigated M.L.E.'s risk to reoffend, which Dr. Schneidman found to be "very high." And, although M.L.E.'s actuarial results indicate a less than high-risk, Dr. Schneidman nevertheless found the scores an unreliable measurement of M.L.E.'s actual risk since M.L.E.'s results would have been ever lower after his first sexual offense, yet he sexually reoffended. Indeed, M.L.E.'s history of sexually violent behavior in the community, even after incarceration on a prior sex offense and being on parole, demonstrates his propensity to commit acts of sexual violence.
At the conclusion of the hearing, Judge Perretti, crediting Dr. Schneidman's unrefuted testimony, found that M.L.E. was a sexually violent predator requiring continued commitment. The judge reasoned:
[The treatment team] report[s] he has no insight into his sexual assault cycle, no insight over his deviant arousal pattern, had not demonstrated any . . . insight into his release prevention plan, had no[t] shared his version of the index offense, and indeed denied committing either the index or the prior offenses. However, it's noted that he did enter a guilty plea to the first of his two sex offenses, which involved a first degree aggravated sex offense against a six-year-old girl.
There has been no treatment whatsoever accepted by [M.L.E.] He has been, indeed, from the very beginning of [these] notes in May of 2003 . . . a treatment refuser. There is no question about that. The notes clearly speak for themselves.
[M.L.E.] in addition to the predisposition of pedophilia, has the personality disorder that enables him to act on his deviance. The primary criteria of the personality is acting with disregard to the rights of others. So it can be seen how the ...