On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-202-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Appellant F.D. appeals from a July 29, 2009 order continuing his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA or the Act), N.J.S.A. 30:4-27.24 to -27.38. More specifically, appellant, who was originally committed in 2001, asserts that the trial judge erred in finding that the State had proved by clear and convincing evidence that appellant was likely to commit a crime of sexual violence if he did not remain in the STU. We affirm.
The issue before us is limited. 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 trial judge must assess "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the petitioner 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, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The same standard applies when reviewing a continuation of the commitment. In re Civil Commitment of E.D., 353 N.J. Super. 450, 454-55 (App. Div. 2002) (citing State v. Fields, 77 N.J. 282, 296 (1978)).
Appellant has an extensive history of committing patterned sexual offenses and other non-sexual crimes. The record reflects six sex-related arrests, five of which resulted in convictions.
In his first offense, appellant was arrested and charged on November 2, 1976, and later convicted on May 6, 1977, of carnal abuse and abduction and was sentenced to an eight year prison term with a five year parole disqualifier. The victim was appellant's former girlfriend. Appellant, the victim and her three children were in appellant's car; he was driving the four individuals home after a night of drinking. Reportedly, the victim began to call him "stupid" when he became lost, igniting his wrath, causing him to drive to a nearby park and order the victim and the children to exit the car and then drive away. Appellant denied sexually assaulting the victim, but admitted he "'would have slapped and raped her' if her children were not in the car."
In his second offense, appellant was arrested and charged on December 17, 1981, for sexual assault and robbery. On March 18, 1982, the charges were subsequently downgraded in the municipal court. The age and gender of the victim is unknown, as is the final disposition.
In his third offense, appellant was arrested and charged on August 4, 1982, with sexual assault, a charge that was eventually dismissed. The age and gender of the alleged victim are unknown.
In his fourth offense, appellant was arrested and charged on July 23, 1998, with resisting arrest and unlawful possession of a knife; he pled guilty to both charges. This charge involved an attack of a female victim who testified that appellant had pulled a knife on her in a parking lot, punched her and then raped her. Appellant stated that he was so drunk at the time of the incident that he did not know what had happened. Appellant was ultimately convicted of the resisting arrest and unlawful possession of a knife charges on February 13, 1990, and was sentenced to nine months imprisonment. However, despite the victim's allegations, appellant was never charged with any sexual offense.
In his fifth offense, the predicate offense for which the State moved for commitment to the STU, appellant, on April 17, 1997, was arrested and charged with criminal sexual contact, criminal restraint, aggravated sexual assault, terroristic threats, possession of a firearm for an unlawful purpose and unlawful possession of a firearm. Appellant pled guilty to criminal sexual contact and criminal restraint and was convicted on both counts on June 2, 1997, and sentenced to a term of three years. This conviction arose out of a January 10, 1997 incident during which appellant approached his victim, an adult female, while she was standing in front of a building and asked her for change. While conversing with the victim, appellant grabbed her by the neck, allegedly pointed a gun at her and forced her to perform oral sex on him. Appellant then forced the victim to the ground, removed her clothing and vaginally penetrated her with his penis. The victim testified that after appellant ejaculated inside her twice, he proceeded to strike her on the head with the gun several times before eventually fleeing the scene. At the time of his arrest, appellant was on parole for a 1995 conviction for receiving stolen property. Appellant denied that he had or used a gun during the incident.
In his sixth offense, appellant was convicted on February 2, 2001, of criminal sexual contact and aggravated assault, and was sentenced to a term of eighteen months. The victim in the case and her girlfriend, a friend of appellant, visited appellant at his apartment one evening. The three were drinking alcohol throughout the night. At one point, the victim fell asleep and her girlfriend left the apartment, leaving the sleeping victim alone with appellant. The victim later awoke to appellant attempting to remove her pants. When she told him to stop, he grabbed her throat and forced her to ...