On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-439-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Defendant K.B. appeals from a March 27, 2007 order directing his commitment for treatment as a sexually violent predator at a Special Treatment Unit (STU) in Avenel and fixing a date for further review on March 12, 2008. We affirm.
The State filed its original Petition for Civil Commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.28, on August 22, 2006. The parties agreed to the filing of an amended petition on January 31, 2007. A full hearing was conducted on March 27, 2007, before Judge Serena Perretti.
At the time of the State's motion for civil commitment, defendant was incarcerated for an offense committed on June 27, 2001 in Pleasantville. He was charged and convicted of three counts of fourth degree sexual assault, N.J.S.A. 2C:14-2b, one count of lewdness, N.J.S.A. 2C:14-4, and three counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a. In addition to these charges, K.B. was convicted on May 20, 2002 of failure to register as a sex offender.
Defendant has had a lengthy legal history dating back to 1975. In 1975, defendant was convicted by a California jury of rape and perversion against an adult female. In 1983, in Philadelphia, Pennsylvania, defendant was charged with two counts of indecent exposure and five counts of open lewdness. He was found guilty of all seven counts, and he received a sentence of one to two years in county jail. In 1984, K.B. was again charged with and found guilty of indecent exposure and given a one to two-year sentence of incarceration in Philadelphia County Jail. Just ten days after that charge, defendant was found guilty of disorderly conduct and sentenced to one month in jail. On May 12, 1984, K.B. also was charged with simple assault, terroristic threats, rape, indecent assault, indecent exposure, incest and corruption of a minor, to which he pled guilty and received a four to twenty-year prison term. The State introduced, as hearing exhibits, records of all of these prior dispositions.
The State also presented the testimony of two witnesses at the hearing: Dr. Michael R. McAllister, a State psychiatrist, and Dr. Natalie Barone, a psychologist. Dr. McAllister attempted to interview defendant on three separate occasions. On the first attempt, defendant made some brief voluntary statements, but otherwise declined to be interviewed. At the second scheduled interview, defendant accused the doctor of lying and left the room before the interview began. On the third attempt, defendant yet again declined an interview but commented about how the witnesses at his trial had lied.
Because defendant refused to be interviewed, Dr. McAllister based his psychiatric evaluation on historical data and past conduct. From those records and from his brief interactions with defendant, he diagnosed defendant with paraphilia, "a sexual perversion." The doctor also diagnosed K.B. with exhibitionism, voyeurism and pedophilia. He likewise suffered from personality disorder NOS in that he had a lengthy history of sexual offenses and the pattern of sexual offense charges that go beyond those convictions indicate attitudes of willingness and enjoying of exploiting others attitude or an entitlement to sex regardless of the experience or harm to others, his repeated crimes involving children involve -- reflect a failure to emotional maturity, failure to develop psychological maturity, and enjoyment out of exploiting children without regard to the consequences.
Dr. McAllister also determined that K.B. had an alcohol and marijuana dependency based on facts contained in interviews and reports prepared by other doctors. For all the above reasons, the doctor concluded that defendant would be "a severe risk to sexually re-offend if he were at liberty."
K.B. also indicated that he was "unwilling to participate in an interview" with Dr. Barone. Dr. Barone was, nonetheless, able to do a risk assessment of sexual recidivism. To prepare her report, she used information relating to K.B.'s criminal history, witness statements, details of offenses and previous psychological and psychiatric evaluations. After performing a risk assessment, Dr. Barone scored K.B. as an eight. She explained "an eight would place [K.B.] . . . with a high level of risk for being reconvicted of a new sex offense." To arrive at this score, she conducted an in-depth analysis of K.B.'s twenty-six year history of sexual offenses. Dr. Barone believed that age could not be considered a mitigating factor because defendant continued to commit offenses well into his fifties.
Dr. Barone concluded that defendant meets the diagnostic criteria for paraphilia NOS, non-consensual and exhibitionism but, unlike Dr. McAllister, she ruled out pedophilia. Like Dr. McAllister, Dr. Barone classifies defendant as an alcohol abuser and notes that on a personality assessment inventory conducted by a previous doctor, K.B. reported alcohol as being a source of problems in his life. K.B. was twice arrested for DUI. Both doctors found defendant to have had ...