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In re Civil Commitment of W.Y.H.

November 18, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF W.Y.H. SVP 361-04


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 361-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 27, 2008

Before Judges Carchman and Simonelli.

W.Y.H. appeals from the February 28, 2008 judgment continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to-27.38. We affirm.

In 1973, W.Y.H. pled guilty in North Carolina to assault with intent to commit rape and armed robbery of a sixty-nine-year-old woman. In 1995, W.Y.H. was convicted of sexually assaulting and endangering the welfare of his nine-year-old niece.

W.Y.H. was adjudicated a sexually violent predator and committed to the STU on September 23, 2004. He appealed and we affirmed. In re Civil Commitment of W.Y.H., No. A-2028-04T2 (App. Div. March 9, 2007). Judge Perretti held a review hearing on February 28, 2008, and ordered W.Y.H. to remain committed to the STU. This appeal followed.

At the review hearing, the State presented the expert testimony of Evan Feibusch, M.D., a forensic psychiatrist. Dr. Feibusch attempted to evaluate W.Y.H. prior to the hearing, but W.Y.H. refused to participate.*fn1 W.Y.H. has also refused to engage in any treatment and will not discuss his sex offense issues. He maintains his innocence for both convictions and insists that his appeals will exonerate him.

From Dr. Feibisch's review of numerous documents and historical information, he diagnosed W.Y.H. as suffering from pedophilia and a personality disorder NOS with antisocial traits.*fn2 The doctor opined in his report that:

The diagnosis of pedophilia means that the individual has experienced recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child over a period of at least 6 months. The person must have acted on the urge or it has caused marked distress or interpersonal difficulty. [W.Y.H.'s] most recent conviction involves sexual activity or attempted sexual activity with his niece when she was between the ages of 8 and 10. This occurred while he was on parole for a prior sex offense. In my opinion, this is indicative of the presence of sexual urges and qualifies [W.Y.H.] for the diagnosis. The presence of Pedophilia predisposes [W.Y.H.] to acts of sexual violence.

....

I have also diagnosed [W.Y.H.] with Personality Disorder, NOS with Antisocial Traits. [W.Y.H.] has a long-standing pattern of problematic behavior characterized by difficulties with perception of himself, interpersonal functioning, control of his impulses, engaging in unlawful behaviors, and lack of remorse.

Dr. Feibusch also noted W.Y.H. had a score of 5 on the Static 99, which placed him in the moderate high risk category as compared to other male sex offenders. However, the doctor opined that treatment has not moderated W.Y.H.'s risk, that he participates in treatment but does not apply treatment principles to himself,*fn3 that he does not acknowledge committing these significant offenses, and that his approach has been to attempt to return to the community via legal means. The doctor concluded "with a reasonable degree of medical certainty that [W.Y.H.] suffers from a mental ...


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