On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-463-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Cuff and C.L. Miniman.
B.L. appeals from an order of involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
B.L. pled guilty to second degree sexual assault on January 23, 1995; the victim was a fourteen year old girl. B.L. was sentenced to a ten-year period of imprisonment. He was paroled on February 24, 1997, violated parole, and returned to prison on May 27, 1997. Released from prison on June 28, 1998, B.L. was arrested and charged with sexual assault, criminal restraint and theft on October 27, 1999. His victim was a young woman, aged seventeen. He pled guilty to second degree sexual assault and sentenced to ten years in prison. Defendant served the last two years of this term of imprisonment at the Adult Diagnostic and Treatment Center.
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. "[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 133-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
In anticipation of the completion of his term, B.L. was evaluated for civil commitment pursuant to the SVPA. On June 14, 2007, one week before the expiration of his second term of imprisonment, the State filed a petition for civil commitment. B.L. was temporarily committed to the STU pending a final hearing. This hearing occurred on January 24, 2008, and February 1, 2008. At this hearing, the State presented the testimony of Howard Gilman, M.D., and Brian Friedman, Psy.D. B.L. offered no witnesses.
In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually violent offense. Ibid. In this case, it is uncontested that B.L. pled guilty in 1994 and 1999 to sexual assault, and these convictions serve as the predicate acts in support of the petition for involuntary civil commitment.
Dr. Gilman diagnosed B.L. as a sexual sadist. Sexual sadism is sexual arousal to cause pain or excessive fear in the victim or someone else and is considered a paraphilia. He reported that B.L. acknowledged sexual sadism in his past. Dr. Gilman also related that B.L. believes that he no longer has sadistic arousal. Dr. Gilman explained, however, that he did not accept this self-assessment because B.L. "described enjoying these activities in a much more convincing way than he described being over it." Moreover, Dr. Gilman stated that sexual sadism is a paraphilia and "a true paraphilia... is something that is generally well ingrained within personality, and it tends to be enduring."
Dr. Gilman also found multiple substance dependence in a forced institutional remission, anti-social personality disorder, and mild mental retardation. The doctor explained that research suggests that substance abuse creates a risk factor for re-offense because the substances have the ability to impair judgment, reduce inhibition, and escalate violence.
Dr. Gilman opined that B.L. posed a high risk to sexually re-offend because he was confused about his sexual arousal patterns, his ongoing sexual sadism and his ability to control that arousal pattern. The doctor also noted B.L.'s multiple sex offenses, emphasizing that the offense that formed the basis of his second conviction occurred one month after arrest on another sexual offense.*fn1 Dr. Gilman noted that the Static 99 test score of plus 5 was not an accurate assessment of risk in this case.
The State also produced Dr. Friedman, a psychologist. Following a lengthy interview and completion of psychological testing, Dr. Friedman concluded that B.L. functions at a somewhat higher level than suggested by intellectual testing that places his I.Q. in the low 70s. He noted that B.L. acknowledges the sexual offenses that formed the basis of the two convictions and the sadistic elements to his arousal pattern. He reported that "a number of the comments he made [about these ...