On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 464-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and LeWinn.
M.O. appeals from the November 29, 2007 judgment of the Law Division civilly committing him to the New Jersey Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). For the reasons that follow, we affirm.
Tried to a jury in 1982, M.O. was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5)(a); and third-degree threat to kill, N.J.S.A. 2C:12-3(b). The facts underlying the conviction were that defendant, along with a cohort, forced then-sixteen-year-old M.F. into a van where they raped and sodomized her, compelling her to submit by threatening to kill her. On July 27, 1982, defendant was sentenced to an aggregate term of forty years with a twenty-year parole ineligibility period; defendant's sentence was "scheduled to max out . . . on or about July 11, 2007."
On June 21, 2007, the State filed a petition to civilly commit M.O. under the SVPA. A hearing was held on November 26, 27 and 29, 2007, at the conclusion of which Judge Serena Perretti rendered a decision from the bench committing M.O. to the STU.
The evidence adduced at the hearing may be summarized as follows. During his twenty-five years in prison, M.O. incurred twenty-three disciplinary infractions; between 1998 and 2006, M.O. received five disciplinary infractions for exposing his genitals to female corrections officers while masturbating and, on one occasion, deliberately exposing himself in an attempt to "be transferred to a more appropriate prison."
Dr. Howard Gilman, a psychiatrist, testified on behalf of the State. M.O. had refused all of Dr. Gilman's attempts to interview him until just before the hearing when he submitted to a fifteen-minute interview. Dr. Gilman stated that he was able to prepare a report based upon documents, including M.O.'s presentence report and the evaluations of other mental health professionals who had interviewed defendant. Dr. Gilman testified that he did not rely on the opinions and diagnoses of these other professionals in rendering his diagnoses, but rather referred to those documents for historical background.
Based upon his review of documents, the nature of M.O's offense in 1982, as well M.O.'s prison disciplinary record, which included several sexually-related infractions, Dr. Gilman diagnosed M.O. with antisocial personality disorder that would "affect him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence[.]" He based this opinion upon M.O.'s "history of sexual acting out and sexual offenses . . . ," and testified that "[t]he fact that he's continued to show these symptoms in . . . sexual ways up until as recently as . . . even less than a year ago . . . says to me that . . . [M.O.] is unable to control his sexual behavior and his sexual violence."
Dr. Gilman noted that M.O.'s antisocial personality was further exacerbated by his "mild mental retardation" and described M.O.'s behaviors as being consistent with his diagnosis, since "anti-social refers to a problem with comporting . . . [oneself] to . . . expectations and legal constraints. . . . They tend to be impulse-ridden."
Dr. Gilman opined that M.O.'s risk of sexually re-offending, unless confined to a secure facility for treatment, was "high[,]" and explained that based upon [M.O.'s] history, that is a sexual assault, although it was many, many years ago, but his more recent history of sexually expressing his anger and frustration, possibly having an exhibitionist diagnosis, coupled with his anti-social personality disorder, and his mild mental retardation, and his lack of treatment for sex offending behavior, I think altogether conspire to have his risk high.
Dr. Gilman scored M.O.'s risk factor as seven on the Static-99 scale, which he described as "the highest-risk category, which is 6 or above." The doctor used the Static-99 as "a confirming ...