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In re Civil Commitment of G.B.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 1, 2009

IN THE MATTER OF THE CIVIL COMMITMENT OF G.B.D. SVP-459-07

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-459-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2009

Before Judges Stern and Lyons.

G.B.D. appeals from an order civilly committing him pursuant to New Jersey's Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the arguments of counsel, the record, and the trial court's oral opinion, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

G.B.D. has a lengthy history which the trial court reviewed during the SVP civil commitment hearing. His record of offenses concerning women and girls commences in 1968.

In 1968, while he was in the Air Force, G.B.D. was charged with an Article 128 assault. According to him, this assault involved a young woman whom he had met at a dance and had called him a name.

In early 1981, G.B.D. was charged with sexual abuse, burglary, and endangering the welfare of a minor, but he asserts that these charges were later dropped.

In March 1982, G.B.D., who was then living in New York, abducted M.R., a twelve-year old girl, from a bus stop by forcefully pulling her into his car and then taking her to his apartment. Once at his apartment, G.B.D. removed M.R.'s clothing and proceeded to perform oral sex on her. G.B.D. then attempted sexual intercourse, and tried to make M.R. perform oral sex on him, but she pulled away. After having M.R. dress, he dropped her off near her home and told her to tell no one what had happened.

In about August 1982, G.B.D. approached an eleven-year old girl, A.E., at an arcade in New York. After playing a video game with her, G.B.D. told A.E. his name was "Danny" and that he would see her again. In about December 1982, G.B.D. again approached A.E., and offered her a ring if she would go back to his apartment with him. Once at his apartment, G.B.D. told A.E. to remove her clothes and get into his bed, where he inserted his finger into her vagina. G.B.D. later took A.E. to lunch before dropping her off near her home.

On a later date, G.B.D. approached A.E. as she was walking to school and convinced her to come with him to his apartment again. At his apartment, he again had her remove her clothes and get into bed, where he proceeded to have sexual intercourse with her. Afterwards, G.B.D. again took her to lunch and gave her a watch.

A.E. later introduced G.B.D. to Y.N., a sixteen-year old girl, and both girls accompanied G.B.D. back to his apartment. There, G.B.D. engaged in sexual intercourse with Y.N., as well as oral sex with A.E. Afterward, G.B.D. drove them back to the community center where he had met them and gave both girls money. When G.B.D. was arrested for these incidents, he offered the arresting officer $250 to let him go.

On February 15, 1983, G.B.D. was indicted in New York on a charge of attempted rape in the first-degree in relation to the incident with M.R. On April 14, 1983, G.B.D. was indicted in New York on several counts of a charge of rape in the second-degree in relation to the incidents with A.E. and Y.N.

In October 1983, G.B.D. received a psychiatric evaluation from Dr. I. Carl Lee in connection with the criminal charges he was then facing. Dr. Lee noted in his report that G.B.D. complained, "I want help." G.B.D. went on to say "I am not here just because of my case. I wanted help for a long time."

On November 29, 1983, G.B.D. pled guilty to sexual abuse in the first-degree in relation to the M.R. incident and to the crime of bribery in the second-degree in relation to the A.E. and Y.N. incidents. He was sentenced on January 11, 1984. On each of these two indictments, he was sentenced to five years probation, which were to run concurrently.

G.B.D. was later arrested in April 1985 and charged with rape, sodomy, and sexual abuse, but according to him, he was found not guilty of the charges.

Then, in the summer of September 1988, G.B.D., who was still living in New York, approached a ten-year old girl, L.B., in the elevator of her New York apartment building on three separate occasions. When he was alone with her in the elevator, G.B.D. touched L.B. on her breasts, buttocks, and vagina over her clothes and threatened to kill her if she told anyone.

G.B.D. was arrested and in October 1991, was charged with six counts of sexual abuse in the first-degree, for which he was convicted in December 1991. As a result of his conviction, he received six concurrent terms of thirty months to five years in prison, from which he was released on parole in March 1995.

G.B.D.'s next incident is the predicate SVPA incident. On July 28, 2001, G.B.D. was on the boardwalk in Atlantic City and approached a group of girls, ages ten to twelve-years old. After talking with the group for a while, G.B.D. eventually went with them to the Terminal Market and bought them drinks and snacks. When the group moved to McClinton Park, G.B.D. tried to lure one of the girls, T.D., to an area behind him so he could try to watch her urinate.

G.B.D. also tried to assist another girl, C.P., with a backflip, but she refused. G.B.D. then put his arm about her waist and put three dollars into the waist of her pants. G.B.D. attempted to get some of the group to ride in his car with him, but they refused. When C.P. went home, she told her father what had happened.

Two days later, C.P. saw G.B.D. in front of her home. He motioned for her to follow him onto the boardwalk. C.P. instead went back into her house and told her father, who went outside and saw G.B.D. C.P.'s father then notified the police, causing G.B.D. to leave the area.

After the police put out a description of G.B.D. and his car, he was arrested just a few days later on August 2, 2001. C.P. and her father both came in and identified G.B.D. in a photo array.

In April 2002, G.B.D. was tried on two counts of third-degree luring, pursuant to N.J.S.A. 2C:13-6. Following a jury trial, he was convicted. He was then sentenced to a term of eight years with a four-year parole ineligibility period on count one, and a term of four years with a two-year period of parole ineligibility on count two, which was to run concurrent.

During his incarceration for his conviction, G.B.D. requested a transfer to the Adult Diagnostic and Treatment Center (ADTC) where he attended treatment. On December 4, 2006, the Center issued a termination report on G.B.D. In the report, it was noted that G.B.D. had problems with discussing his prior sexual offenses, choosing to portray himself in a positive light and/or minimizing his prior behavior as "trying to befriend young girls and being misunderstood." The report indicated that he was classified as a high risk to reoffend by the STATIC 99 assessment and as a moderate risk to reoffend by the MnSOST-R assessment. The report found that he may "meet the criteria for commitment as a Sexually Violent Predator" and recommended he receive screening.

In the section of the report prepared by Dr. Harris, G.B.D. gave an explanation of the events in Atlantic City in which he stated he was trying to develop a friendship with the group of girls, calling it a "grooming process" and that he wanted to eventually have sex with them. Dr. Harris diagnosed G.B.D. as having "Pedophilia, girls, not exclusive, and Antisocial Personality Disorder."

Dr. Harris noted in the report that G.B.D.'s prior offenses ranged from being carefully planned and thought out (the giving of gifts and the like) to being impulsive (grabbing girls off the street or following them into an elevator). He noted that G.B.D. attempted to minimize his behavior, indicating that he was interested in girls fifteen to sixteen-years old. Dr. Harris reported that G.B.D. seemed to believe that was acceptable, as he quoted G.B.D. as stating "[i]t's okay to have sex with a 15 or 16 year old because all you'll get is probation." Overall, Dr. Harris felt G.B.D. was at high risk to reoffend and that the treatment he had received so far was unlikely to mitigate that risk. Dr. Harris recommended that G.B.D. be "transferred to a secure facility for sex offender treatment" at the end of his current sentence.

On May 8, 2007, the State commenced an action for civil commitment of G.B.D. pursuant to the Act. The trial court temporarily ordered G.B.D. be confined as an SVP pending a final hearing initially set for May 30, 2007.

On May 23, 2007, Dr. Luis Zeiguer attempted to conduct an examination of G.B.D. G.B.D., on the advice of his attorney, did not interview with Dr. Zeiguer. In preparing his report, Dr. Zeiguer looked at a number of records regarding G.B.D., including the report of Dr. Harris. Dr. Zeiguer diagnosed G.B.D. as having pedophilia NOS, pedophilia and personality disorder NOS. He found G.B.D. to have a very high risk to reoffend and that there had been no significant mitigation of this risk.

On July 24, 2007, G.B.D. agreed to be interviewed by Dr. Zeiguer, who prepared an addendum to his May report. Dr. Zeiguer did not change his conclusions or opinion after his interview with G.B.D.

On July 25, 2007, G.B.D. was interviewed by Dr. Brian Friedman, who issued a report based on the interview on July 30, 2007. In his report, Dr. Friedman mentioned that G.B.D. had informed him that he was sexually abused when he was six or seven-years old, but Dr. Friedman noted that the Presentence Investigation Report in 2002 indicated there were no such incidents of abuse in G.B.D.'s childhood.

When reviewing G.B.D.'s prior sexual offenses, he provided Dr. Friedman with different versions of several of the events. During the 1982 incident with M.R., G.B.D. told Dr. Friedman that he had an ongoing sexual relationship with the girl for nine months, and that it was not a random incident as she reported. During the interview, Dr. Friedman asked G.B.D. if he was still aroused by young girls, and he responded "[y]es. . . as long as they have tits," and went on to explain that he liked girls when they had large breasts.

G.B.D. also gave a substantially different version of the 2001 events in Atlantic City than had been given by the girls involved. When Dr. Friedman asked G.B.D. if he would have sexually molested any of the girls if he could have gotten them into his car, he responded "[n]o . . . because until she says yes I do not touch her." Dr. Friedman noted in his report that this "obviously places responsibility on a minor to make that choice, when they cannot consent to such behavior."

When Dr. Friedman asked G.B.D. about his statements to Dr. Harris regarding having sexual interactions with fifteen or sixteen-year old girls, he denied having made that statement. At several points in the interview, G.B.D. told Dr. Friedman that he only had inappropriate sexual behavior during the period of 1982 through 1988.

Dr. Friedman diagnosed G.B.D. with pedophilia, paraphilia NOS, hebephilia, and personality disorder NOS, with antisocial and narcissistic traits. Dr. Friedman found that these traits all "predisposes [G.B.D.] toward committing a sexually violent act as defined by New Jersey's Sexually Violent Predator Act." Dr. Friedman reviewed G.B.D.'s risk of reoffending, noting his score on the STATIC-99 test, as well as pointing out factors that increased his risk to reoffend. Based on his examination, Dr. Friedman concluded that G.B.D. was "highly likely to engage in future acts of deviant sexual behavior as defined by the SVP statute if released into the community at this time."

The commitment hearing was not held until August 2, 2007, following a request for an adjournment by G.B.D. At the trial, both Dr. Friedman and Dr. Zeiguer testified on behalf of the State. G.B.D. presented no witnesses.

During his testimony at trial, Dr. Friedman talked about how G.B.D. portrayed all his victims as having over-developed breasts for their age. Dr. Friedman felt that this was another way G.B.D. minimized his behavior, trying to portray that the girls all looked older than their actual ages.

Dr. Friedman also expressed his opinion that G.B.D. was lying when he claimed that in all his prior incidents it was the young girls that approached him first. Dr. Friedman stated that it was more likely that G.B.D. was seeking out situations where he would be near young girls, and was just trying to downplay "the predatory nature of [his] behavior."

Dr. Friedman repeated his diagnosis of G.B.D. that he had made in his report, that he suffered from pedophilia, paraphilia NOS and hebaphilia.

In Dr. Zeiguer's testimony, he expressed much of what he placed in his report on G.B.D. Dr. Zeiguer indicated he still held the opinion he expressed in his report, that G.B.D. suffered from pedophilia and "personality disorder with antisocial and narcissistic features."

On August 6, 2007, the trial court rendered its decision. The trial court reviewed G.B.D.'s prior convictions and other prior history. When discussing the 1982 incident involving M.R., the trial court noted the differences in the girl's version of the event and what G.B.D. had told Dr. Friedman regarding the event. The trial court accepted that there appeared to be evidence to support G.B.D.'s version of the events, but still found that he had committed a "sexually violent offense" against M.R. by his own admission.

When reviewing the evidence regarding the 1988 incident with L.B., the trial court noted that when G.B.D. discussed the incident with Dr. Friedman, he admitted it had happened "pretty much" as L.B. described, but instead stated she had agreed to allow him to touch her over her clothing in exchange for money. However, the trial court also noted that G.B.D. had denied the allegations in 1988, and told police that following a treatment program he had been part of, "he only talked to young girls" and "that's as far as it goes."

The trial court then reviewed the predicate offense, noting:

[t]he respondent, after a jury trial, was convicted on two counts of attempt to lure or entice a minor into a motor vehicle, a crime of the third-degree, in violation of N.J.S.A. 2C:13-6. This statute is not listed specifically in the S.V.P. Act as a sexually violent offense. However, there is no doubt that it is considered a sexual offense by the Legislature.

The court went on to review G.B.D.'s interaction with the group of young girls on the boardwalk that led to his conviction under N.J.S.A. 2C:13-6.

The trial court found that: there is no question from the conviction that the respondent was using money and small presents and promises of presents in order to establish a relationship with these little girls. There is further no question that he invited them generally to go for a ride in his car and specifically to drive with him to Wildwood. . . . [G.B.D.] discussed the happenings in Atlantic City with Dr. Roger Harris whose termination report is [State's] Exhibit-15. He claimed that the six girls approached him and asked for money, and told him that they were hungry and wanted to buy chips and water. According to him, he refused [to give the girls] money, but accompanied them to the store for the chips. Some got candy and ice cream. Respondent acknowledged to Dr. Harris, "I was aroused to the young girls. I wanted the friendship to continue and I wanted the arousal to continue. It was a grooming process and eventually I would have sex with them. I am aroused to giving young girls oral sex if they have tits. I like 13- to 14-year-old girls. I want them to have big tits."

It is clear that the respondent was grooming these children for sexual purposes. And if [C.P.] had not become suspicious and reported to her father who reported his actions to the police, we all have a pretty good idea what would have happened. . . .

In view of respondent's acknowledgement to Dr. Harris, in view of the facts established at the criminal trial as recited by the Appellate Division, and in view of the respondent's pattern over many years, it is concluded that . . . the crimes in Atlantic City are sexually violent offenses based on the circumstances of the case. . . .

This respondent is unquestionably the predator for whom the S.V.P. was enacted.

The trial court then reviewed G.B.D.'s requested transfer to the ADTC and his treatment there. Based on the reports of G.B.D.'s time at ADTC, the court found that it was "clear that the respondent did not profit substantially from his transfer and treatment at A.D.T.C. inasmuch as he continues to minimize his offenses in New Jersey and apparently denies offending behavior in New York where he has been convicted of sexually violent offenses."

The trial court then turned to the testimony of Dr. Friedman. The court noted Dr. Friedman's diagnosis of G.B.D. as possessing "pedophilia and paraphilia N.O.S. for hebaphilia." The court accepted Dr. Friedman's diagnosis of pedophilia and "personality disorder N.O.S. with anti-social and narcissistic traits," but did not accept the diagnosis of paraphilia.

The court indicated that Dr. Friedman found G.B.D. to be a high risk for reoffending. The court reviewed Dr. Freidman's testimony on how he evaluated G.B.D.'s level of risk, stating that:

Dr. Friedman points out that the respondent had offended on probation for earlier sex offense convictions, possesses a diagnosable [sic] sexual deviation, continued sex offending into his 50's, and had a history of conflict in intimate relationships. According to the testimony, these are all factors which have been empirically established as escalators of risk. In addition, the respondent has a personality structure that includes a feeling of entitlement to meet his own needs regardless of harm caused to others.

At the conclusion of its review of Dr. Friedman's testimony, the court indicated that "[i]t is noteworthy that this respondent, in spite of sex offender treatment, had deliberately and knowingly put himself into high risk situations as he went about his grooming behavior with the group of girls including the two for which the conviction resulted."

The court then went over the testimony of Dr. Zeiguer. Of key focus to the court was Dr. Zeiguer's reasons for considering the Atlantic City conviction as a sexually violent offense. . . .

Although there was no reported contact with the genitals of any of the young girls that respondent was pursuing, the doctor points out that the respondent did touch them, pointing out that he tied the shoe of one child, put money in the pants of another, and helped one girl by holding her at the waist while she was attempting to perform a back flip.

In addition, he points out that some of the girls were resistant to his attentions throughout; however, he returned the following day in "relentless pursuit." He invited them to go for a ride in his car, particularly to Wildwood. It is noted that the respondent told Dr. Friedman as follows: "I asked him if he would have sexually molested one of the girls if - - if he got them into his car. And he replied, 'No, because until she says yes, I do not touch her.'" He then stated that he felt confident that at the last minute, he would have "fought it off" and stopped.

The court then reiterated the comments G.B.D. had made to Dr. Harris regarding his arousal to the girls and his desire to continue the grooming process in order to have sex with them. The court further noted Dr. Zeiguer's testimony regarding G.B.D.'s consistent grooming behavior in his past offenses.

The court noted Dr. Zeiguer's testimony regarding his diagnosing G.B.D. with pedophilia and "personality disorder with anti-social and narcissistic features." One specific point noted by the court was that "[t]he anti-social personality disorder combines with the pedophilia to increase the respondent's risk" to reoffend. The court also reviewed Dr. Zeiguer's testimony regarding G.B.D.'s repeated offenses following prior therapy and that the treatment received after his voluntary transfer to ADTC had been "for a relatively short period of time" and did not seem to have been particularly effective.

The court concluded by stating that:

[t]he evidence presented by the state was clear and convincing and not contradicted. The court is clearly convinced that the respondent is a sexually violent predator, suffering from abnormal mental conditions and personality disorders, particularly pedophilia and personality disorder N.O.S. with anti-social and narcissistic traits, which combine to predispose him to commit sexually violent acts.

The conditions influence his cognitive, emotional and volitional functioning so as to predispose him to do so. And it is highly likely that he will recidivate within the foreseeable future if not committed for care as a sexually violent predator.

On appeal, G.B.D. presents the following arguments for our consideration:

POINT I.

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT G.B.D. IS A SEXUALLY VIOLENT PREDATOR AND THAT THE RISK OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY COMMITMENT.

POINT II.

G.B.D. SHOULD BE DISCHARGED SUBJECT TO CONDITIONS AS THE COURT DEEMS NECESSARY TO INSURE [SIC] THE PROTECTION OF THE COMMUNITY OR ALLOWED TO ENTER A PROGRAM WHICH WOULD INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.

At the outset, we note that our review of a civil commitment is very limited. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We "must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Commitment of J.M.B., 395 N.J. Super. 69, 90 (App. Div. 2007), aff'd, ___ N.J. ___ (2009). We may only modify a reviewing judge's determination where it finds a "clear abuse of discretion." In re Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006), certif. denied, 190 N.J. 255 (2007) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

Our Supreme Court has recently summarized the elements necessary in order for a person to be deemed a sexually violent predator and civilly committed.

In commitment proceedings, the State must demonstrate by clear and convincing evidence that the individual poses "a threat to the health and safety of others if he or she were found . . . to have serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 130 (2002). Put succinctly, "[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct." State v. Bellamy, 178 N.J. 127, 136 (2003).

In order to trigger application of the provisions of the SVPA, a person must first be deemed a "sexually violent predator." N.J.S.A. 30:4-27.27(a). A "sexually violent predator" is defined as: a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and 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.]

A "sexually violent offense," in turn, carries two definitions:

(a) aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of subsection c. of N.J.S.A. 2C:13-1; criminal sexual contact; felony murder pursuant to paragraph (3) of N.J.S.A. 2C:11-3 if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or another state; or

(b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense. [Ibid.]

The Act creates a two prong "loss of control" analysis.

W.Z., supra, 173 N.J. at 126-32. The first prong is that the individual has committed a "sexually violent offense," which serves as "proof of past sexually violent behavior. . . ." Id. at 127. A "sexually violent offense" can be found in one of two ways under the SVPA. It can be one of the enumerated offenses listed in N.J.S.A. 30:4-27.26(a), or, it can be "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b).

The second prong is the requirement of a "mental abnormality or personality disorder" that makes a person likely to engage in sexual violence if not securely confined. N.J.S.A. 30:4-27.26(b). A "mental abnormality" is defined as "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26. As G.B.D. indicates in his brief, "personality disorder" is not defined by the statute.

Our Supreme Court has found that while "the Legislature intended that there be a 'loss of control' requirement in the SVPA[,] [t]he language of the statute does not impose a requirement of complete loss of control. . . ." W.Z. supra, 173 N.J. at 128. In addition to the "loss of control" analysis, our Supreme Court has indicated that the phrase, "likely to engage in acts of sexual violence," requires a showing by the State of the present danger to recidivate by the individual.

Id. at 131-33.

In the present matter, the trial court clearly followed the required analysis under the Act and relevant case law. The court reviewed G.B.D.'s prior convictions in New York, which clearly met the definition of a "sexually violent offense."

In In re Commitment of J.M.B., ___ N.J. ___ (2009), the Supreme Court reviewed the analysis required in determining whether a predicate offense, which is not specifically set forth in subsection (a) of N.J.S.A. 30:4-27.26, falls within subsection (b) of that statute. A court may consider the underlying circumstances that led to the qualifying prior conviction. In doing so, the court stated "[w]hen that conduct is substantially equivalent to the sexually violent conduct encompassed by the offenses listed in subsection (a), then that prior conviction may provide the predicate for a commitment application under subsection (b)." J.M.B. at ___, (slip op. at 13).

In this case, G.B.D. was charged with luring pursuant to N.J.S.A. 2C:13-6. We note at the outset that that statute is in a chapter headed "Kidnapping and Related Offenses." To be found guilty of luring, one must be found beyond a reasonable doubt to have lured or enticed a child into a motor vehicle, structure, or isolated area with a purpose to commit a criminal offense with or against the child. N.J.S.A. 2C:13-6(a). To secure a conviction under this statute, "it is not enough to identify the defendant as a person in a car who beckons a child." John C. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:13-6 (2008). The State must prove that the defendant had a purpose to commit a criminal offense with or against the child. State v. Covell, 157 N.J. 554, 560 (1999).

In this case, the trial court clearly noted that during G.B.D.'s interview with the doctor, he stated that he was grooming the girls and, further, that he indicated he was aroused by young girls and that he would have had sex with them if they had said "yes" to him, even though they were statutorily incapable of such consent.

The underlying conduct here certainly was akin to kidnapping and sexual assault, which are specific predicate offenses in N.J.S.A. 30:4-27.26(b). The conduct here was certainly within the penumbra of these specified offenses set forth in subsection (a).

The court carefully went through the facts based on G.B.D.'s convictions of attempt to lure or entice a minor into a motor vehicle, including statements he made regarding the incident to Drs. Harris and Friedman. This finding by the trial court that the 2001 conviction was a "sexually violent offense" as defined in the Act was carefully determined, and, in accordance with J.M.B.

The trial court further carefully reviewed the testimony of the State's two qualifying experts in determining whether G.B.D. suffered from an a "mental abnormality or personality disorder." Reviewing first the testimony and opinion of Dr. Friedman, the court accepted his diagnosis of pedophilia and "personality disorder N.O.S. with anti-social and narcissistic traits," a diagnosis supported by Dr. Zeiguer's diagnosis. The court further addressed Dr. Friedman's testimony about evaluating G.B.D.'s risk to reoffend, which led the court to note G.B.D. allowed himself to be placed "into high risk situations" despite previous "sex offender treatment."

The court noted that Dr. Zeiguer also found that the treatment G.B.D. had received at ADTC was not adequate to significantly lessen his risk to reoffend. Both doctors concluded that G.B.D. was highly likely to reoffend and the trial court accepted that finding after examining the substantial credible evidence in support of that conclusion. Further, the trial court couched its concluding statements in terms that spoke to the present danger that G.B.D. would recidivate if not committed under the Act.

G.B.D. asserts that even if he has been found a SVP under the Act, the trial court should have considered a conditional release as opposed to civil commitment. However, this is a misapplication of existing case law.

When an individual is found to be an SVP under the Act, a trial court has no "authority to place the [individual] in a less restrictive facility." In re Commitment of J.J.F., 365 N.J. Super. 486, 498-99 (App. Div.), certif. denied, 179 N.J. 373 (2004) (quotations omitted). Indeed, "conditional discharge is not an option" when an individual is found to be an SVP. Id. at 498. We have stated that only when a court no longer finds an individual to be an SVP, may the court order a conditional release. In re Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002), rev'd on other grounds, 183 N.J. 536 (2005).

N.J.S.A. 30:4-27.32(a) provides that if a court finds an individual is in need of commitment as a sexually violent predator, "it shall issue an order authorizing the involuntary commitment of the person to a facility designated in the custody, care, and treatment of sexually violent predators." The court, therefore, has no discretion once it makes the finding on the initial commitment that an individual is a sexually violent predator. It is only when a court finds that a person is no longer a sexually violent predator that a court may consider conditional discharges. E.D., supra, 353 N.J. Super. at 453.

Consequently, for the reasons set forth above, and after reviewing the arguments of counsel, the record, and the trial court's oral opinion, we affirm.

20090401

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