On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-490-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Gilroy.
The State appeals from the order of the trial court dismissing its petition for the civil commitment of R.F. under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The court found that the State had not met its burden of proving, by clear and convincing evidence, that R.F. suffers from a mental defect or psychiatric condition that renders him likely to commit a sexually violent act. After carefully reviewing the record developed before the trial court, and in light of prevailing legal standards, we reverse.
We derive the following facts from the record developed before the trial court.
R.F. committed his first sexual crime in May 2004, three months before his eighteenth birthday. His victim was a twelve-year-old girl identified here as A.M. R.F. admitted to sexually assaulting A.M. in a bathroom. He placed his hand over the victim's mouth to prevent her from calling out, and threatened to choke her if she made any noise. R.F. then lifted the child's shirt, licked her stomach and breasts, removed her pants after placing her in the bathtub, and attempted to penetrate her anally with his penis. R.F. was unable to complete the assault only because A.M.'s sister knocked on the door.
He committed his second sexual crime two months later. In July 2004, R.F. sexually assaulted a thirteen-year-old girl identified here as J.W. According to J.W., R.F. assaulted her while the two were in a wooded area in the back of a residence known as the "club house." R.F. forced J.W. to the ground, pulled on her pants and underwear, covered her mouth when she attempted to scream, vaginally penetrated her, and ejaculated on her body. J.W. told the police that R.F. held a knife near her throat and threatened her not to tell anyone.
When questioned by the police, R.F. admitted to vaginally penetrating J.W. He claimed that the sexual act was consensual, with J.W. being the one who initiated the encounter. They had been together for three days before the incident. According to R.F.'s mother, at the time of these occurrences, R.F. had been diagnosed as suffering from Bi-polar Disorder and Attention Deficit Hyper-Activity Disorder (ADHD). He was taking Adderall, one 10 mg dose per day for the ADHD, and Depakote, 1500 mg per day for the Bi-polar Disorder.
The police charged R.F. with aggravated sexual assault, sexual assault, criminal sexual contact, endangering the welfare of a child, and possession of a knife for an unlawful purpose.*fn1
Because he was on probation for unrelated offenses, R.F. was also charged with violation of probation. While in the county jail awaiting trial on these charges, R.F. was charged with aggravated assault against a corrections officer.
Given R.F.'s psychiatric disorders, the trial court ordered an independent evaluation to determine his competency to stand trial. On February 7, 2005, psychologist Peter D. Paul, Ph.D. examined R.F. at the Dwyer-Keogh Correctional Facility. In a report dated February 15, 2005, Dr. Paul found R.F. competent to stand trial.
On March 24, 2005, R.F. pled guilty, pursuant to a negotiated agreement with the State, to two counts of third-degree endangering the welfare of a child, and one count of aggravated assault. When asked by the court to provide a factual basis for his guilty plea to the endangering the welfare of a ...