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In re Civil Commitment of K.J.W.

February 1, 2010

IN THE MATTER OF THE CIVIL COMMITMENT OF K.J.W., SVP-359-04.


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-359-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 12, 2010

Before Judges Parrillo and Lihotz.

K.J.W. appeals from an August 11, 2008 judgment ordering his continued involuntary civil commitment in the Special Treatment Unit (STU) in Kearny as a sexually violent predator (SVP), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. K.J.W. was initially committed to the STU on March 18, 2004. We affirmed that order and the subsequent orders continuing his commitment entered March 7, 2005, and March 6, 2007.

Prior to the hearing resulting in the order under review, K.J.W. declined, on two occasions, to meet with the State's psychiatrist. When trial commenced, K.J.W. stated he changed his mind, agreed to participate in the evaluation and requested the hearing be adjourned. That request was denied. At the close of evidence, the court ordered K.J.W.'s continued commitment. K.J.W. urges reversal, suggesting the evidence submitted at that hearing failed to satisfy the statutory criteria. We affirm.

Under the SVPA, the involuntary civil commitment of an individual may be ordered when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32(a). An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "has been convicted . . . of a sexually violent offense . . . and 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. The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

With these standards in mind, we review K.J.W.'s criminal history and the expert testimony presented by the State at the commitment hearing.

After being waived from juvenile to adult court, K.J.W. pled guilty to two counts of aggravated sexual assault while armed, N.J.S.A. 2C:14-2a(4), attempted aggravated sexual assault while armed, N.J.S.A. 2C:5-1, 2C:14-2a(4), armed robbery, N.J.S.A. 2C:15-1, and armed burglary, N.J.S.A. 2C:18-2. A November 12, 1993 evaluation, pursuant to N.J.S.A. 2C:47-1, concluded K.J.W. was not a repetitive and compulsive sex offender. On June 22, 1995, K.J.W. was sentenced to an aggregate term of fifteen years incarceration with a seven-anda-half-year period of parole ineligibility.

The predicate offense occurred on May 19, 1992, when fifteen-year-old K.J.W. broke into the apartment of twenty-four-year-old D.U. and "ransacked" her home while she was away. Early the next morning, K.J.W. returned to D.U.'s home and found her in a bedroom asleep with her two young children. K.J.W. entered the bedroom, grabbed D.U. by the hair and dragged her, at knife-point, from her bed to the living room. Holding the knife to her throat, K.J.W. forced D.U. to disrobe, and he then attempted vaginal and anal intercourse. Thereafter, K.J.W. forced D.U. to perform fellatio.

After threatening to hurt her if she called the police, K.J.W. left D.U.'s apartment, only to return fifteen minutes later, again wielding a knife. K.J.W. demanded money and jewelry. D.U. surrendered two gold necklaces and "five or six dollars." K.J.W. then repeated his threats of harm to D.U. and her children and fled. During this second confrontation, K.J.W. mentioned the ...


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