On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP- 480-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2009
Before Judges Baxter and Alvarez.
T.H.M. appeals from his civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record and the applicable law, we affirm.
Judge Perretti's thorough and well-reasoned forty-page oral decision was rendered on April 22, 2008, after three days of hearings. T.H.M. is twenty-three years old and has been in treatment at the New Jersey Special Treatment Unit (STU) since December 2007. He was transferred there from the Adult Diagnostic and Treatment Center (ADTC) after the completion of his sentence for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1).
As required by N.J.S.A. 2C:47-1, T.H.M. was evaluated at the ADTC by Jeffrey C. Singer, Ph.D., on December 29, 2004 and again on March 16, 2005 to determine prior to sentence "whether [his] conduct was characterized by a pattern of repetitive, compulsive behavior" and to assess his "amenability to sex offender treatment and willingness to participate in such treatment." Initially during the evaluation, T.H.M. insisted he only had sex with the victim of the aggravated sexual assault "[t]wo or three times," significantly fewer than the number alleged by the child. While describing the assaults, T.H.M. said he "couldn't stop," "felt bad," and "knew that it was wrong . . . but  couldn't control" himself. Despite knowing his conduct was "wrong" and experiencing guilt after each assault, T.H.M. was unable to resist his compulsive sexual urges. Dr. Singer found T.H.M. to be an offender whose conduct was "characterized by a pattern of repetitive, compulsive behavior," willing to participate in and amenable to sex offender treatment. Accordingly, he was sentenced to the ADTC pursuant to the New Jersey Sex Offender Act, N.J.S.A. 2C:7-1 to -11.
The child victim, ten-year-old J.C., was the younger sister of T.H.M.'s best friend. When it was discovered the child had contracted a sexually transmitted disease and a yeast infection, she disclosed to an aunt that T.H.M. forced her to have sex on more than ten occasions and that she feared him. She said during the encounters he covered her mouth so she would not scream and threatened to have her physically assaulted if she were to report the incident. T.H.M., then seventeen, was initially charged as a juvenile but waived to adult court. He entered a guilty plea to aggravated sexual assault, and was sentenced in accord with the terms of the plea agreement to five years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on September 24, 2004.
T.H.M. was first charged with sexual assault when he was thirteen years old after he allegedly attempted to engage in anal intercourse with A.J., an eight-year-old child. T.H.M. was only adjudicated delinquent of simple assault, but was nonetheless required to attend juvenile sex offender counseling while on probation. T.H.M. has never admitted engaging in any sexual act with A.J.
In the four years between the simple assault adjudication and the conviction for first-degree aggravated assault, T.H.M. was charged with juvenile delinquency on several occasions. The offenses included criminal mischief, terroristic threats, aggravated assault, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. Most were dismissed; however, he was sentenced to a six-month probation extension for violating his probation, and a criminal mischief complaint triggered an "intake services conference," a form of juvenile diversion.
As T.H.M. approached the end of his imprisonment at ADTC, Jennifer Gambuti, LCSW, and Cori Feiner-Escoto, Psy.D., prepared a termination report dated July 23, 2007. They noted that T.H.M. rarely discussed his offense and that his participation in program activities was poor. While at ADTC, he was disciplined on April 12, 2007 for engaging in anal sex with another inmate, and was disciplined again on July 18, 2007 for the same offense. Despite perceiving T.H.M. to have acquired only a "very basic understanding of relapse prevention strategies necessary to prevent reoffense," Gambuti and Dr. Feiner-Escoto felt his "risk level" did not require screening for civil commitment.
On December 5, 2007, Roger M. Harris, M.D., a psychiatrist, prepared an ADTC termination report arriving at the opposite conclusion. T.H.M. initially told Dr. Harris that he only had one sexual encounter with J.C., but later acknowledged having two or three. He explained that his attraction to her began when she was eight or nine years old and characterized it as "greater, stronger, and overpowering. . . ." T.H.M., then twenty-one, told Dr. Harris that he was attracted to girls between ten and eighteen. He later amended this statement by saying he was attracted to girls between ten and twenty-five years old. After interviewing T.H.M. and reviewing his records, Dr. Harris diagnosed him with the following: pedophilia, girls, non exclusive; cannabis abuse, in remission in an institutional setting; conduct disorder, by history; and antisocial personality disorder. T.H.M. scored a six on the Static-99 test, placing him in a category of men at high risk to reoffend.
Dr. Harris considered T.H.M. to meet the criteria for involuntary civil commitment and recommended that when his sentence ended, that he be transferred to a secure facility for treatment specific to sex offenders. On December 18, 2007, a probable cause hearing was conducted as to whether T.H.M. was a sexually violent predator in ...