On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-452-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2009
Before Judges Reisner and Yannotti.
C.E.G. appeals from an order dated September 7, 2007 finding him to be a sexually violent predator and committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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(b). "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Having outlined the applicable law, we turn to the facts of this case. To summarize his history of criminal convictions, from the time he was eighteen to the time he was forty-two, C.E.G. attempted to anally penetrate a three-year old girl in Virginia in 1980; tried to rape a twenty-seven year old female neighbor in 1995; and molested a thirteen-year old boy in 2004. He was also involved in at least two non-sexual offenses in which he was armed with a gun. C.E.G. spent his prison sentence for the 2004 offense in the New Jersey State facility for sex offenders at Avenel (ADTC). While at ADTC, he made little progress in treatment, "did not acknowledge his sexually inappropriate behavior, and he continued to minimize or deny the offenses."
Before C.E.G. was released from ADTC, the State sought to have him civilly committed under the SVPA. C.E.G. refused to be interviewed by either of the State's experts who attempted to evaluate him prior to the SVPA commitment hearing, and he declined to appear at the hearing. The State nonetheless presented testimony from both of those experts, Dr. Evan Feibush, a psychiatrist, and Dr. Brian Friedman, a psychologist.
Dr. Feibush opined that C.E.G. was "an untreated sex offender" who was highly likely to reoffend if released. He diagnosed C.E.G. as having "paraphilia not otherwise specified and personality disorder not otherwise specified with antisocial features." Feibush opined that the length of time over which C.E.G. had committed the offenses was significant, as was C.E.G.'s inability to acknowledge his conduct, and his lack of progress in treatment:
This is an individual who engages in illegal acts on a repeated basis. He is impulsive, he's aggressive, he shows reckless disregard for the safety of others, and there's a lack of remorse. And the repeated behaviors - one of the core features of a personality disorder is the inability to learn from one's mistakes. And . . . [according to C.E.G., he] didn't really commit any of these sexual offenses. They were all mistakes, they were misunderstandings, they were consensual interactions. So if in one's own mind if they've done nothing really wrong, how is one supposed to learn from their mistake?
Feibush also testified that he scored C.E.G as highly likely to reoffend on the Static 99, an actuarial test, although that was only one factor in his overall assessment.
Like Dr. Feibush, Dr. Friedman arrived at a diagnosis based on a review of C.E.G.'s records, because C.E.G. would not talk to him. He also diagnosed C.E.G. as having paraphilia NOS and anti-social personality disorder. In reaching his diagnoses, Friedman considered the length of time over which C.E.G. had been ...