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In re Civil Commitment of D.S. SVP-403-05

August 11, 2008

IN THE MATTER OF CIVIL COMMITMENT OF D.S. SVP-403-05


On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-403-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 29, 2008

Judges S.L. Reisner and LeWinn.

D.S. appeals from an order entered on June 20, 2006, following his initial commitment hearing, committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

I.

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.

[T]he State must prove that 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," and the State must establish that it is highly likely that the committed person will reoffend by clear and convincing evidence. Id. at 132-34; see also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.

As an adult, defendant pled guilty to two separate charges of sexual assault on young boys. He also had a 1991 juvenile adjudication arising from a sexual assault. In interviews with a psychiatrist, he also admitted to additional sex offenses for which he was not convicted. He further admitted to a significant drug and alcohol problem. Based on his adult convictions, he was sentenced to Avenel as a repetitive and compulsive sex offender, where he was diagnosed with pedophilia. He engaged in some therapy at Avenel, but was assessed as having made poor progress based on his failure to participate fully in treatment.

Testifying for the State, Dr. Michael R. McAllister, a psychiatrist, indicated that he first attempted to interview D.S. in August 2005, but D.S. refused to be interviewed. He again attempted an interview on May 2, 2006, but D.S. left the interview when the doctor began asking him questions about his adolescence. According to Dr. McAllister, while he reviewed the reports of other experts who had previously examined D.S., he arrived at his own diagnosis. He also considered in particular D.S.'s history during his stay at Avenel.

Dr. McAllister opined that an individual who had succeeded in treatment at Avenel would be willing to be interviewed, would be honest, open, and forthright, would demonstrate an understanding of how they came to perform sexual offenses, and would also be able to demonstrate an understanding of . . . how they could control and prevent themselves from engaging in such behaviors.

In contrast, D.S. was "not even able to complete the interview, much less be able to discuss the sexual offense material in an open and honest fashion. . . . He did not act in a way that would be consistent with an individual who would be capable of cooperating in outpatient treatment. . . ." Dr. McAllister also placed weight on D.S.'s history of repetitive sexual assaults on young children, even after he had been prosecuted for such assaults, and thus should have been careful to refrain from such behavior. The doctor ...


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