On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-330-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Miniman.
R.Q. has appealed from the March 17, 2009 decision and order of Judge Mulvihill finding by clear and convincing evidence that he continues to be a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment; continuing his commitment to the State of New Jersey Special Treatment Unit; and scheduling a further review hearing on March 10, 2010. On appeal, R.Q. argues that the State failed to meet its burden of proof. We affirm.
On December 21, 1999, four-year old S.C. told her mother that her uncle, R.Q., had forcefully grabbed her, brought her into his bedroom and sexually molested her while masturbating. R.Q. admitted the incident to S.C.'s mother and admitted to S.C.'s grandmother that he had assaulted the child on numerous occasions. At the time of these events, R.Q., who was born in January 1980, was nineteen years of age. He was charged with three counts of sexual assault and one count of endangering the welfare of a child. On January 31, 2000, R.Q. pled guilty to a single count of second-degree sexual assault. He was evaluated at the Adult Treatment and Diagnostic Center (ADTC) and was found to be a repetitive and compulsive sexual offender. R.Q. was sentenced to four years in the ADTC. He maxed out on his sentence on July 7, 2003.
In July 2003, proceedings were commenced by the State, pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, to have R.Q. committed to a State Special Treatment Unit (STU) for care and treatment as a sexually violent predator. Following the termination of his prison sentence, R.Q. was temporarily committed to the Special Treatment Center Annex in Avenel, New Jersey, pursuant to N.J.S.A. 30:4-27.28, and after a hearing conducted pursuant to N.J.S.A. 30:4-27.29, R.Q. was found to be a sexually violent offender under the SVPA, and his commitment was continued.
The record also reflects that, in 2003, while still incarcerated in the ADTC, R.Q. was charged by the Mercer County Prosecutor's office with two counts of aggravated sexual assault, two counts of sexual assault, and one count of endangering the welfare of a minor, arising from R.Q.'s acts of fellatio with an eleven-year-old deaf boy that R.Q. had met as the result of his employment as a bus aide at the school for the deaf that the boy attended. R.Q. pled guilty to one count of first-degree aggravated sexual assault, and he was sentenced to time served with no probation on the understanding that he had already been civilly committed pursuant to the SVPA.
Review hearings pursuant to N.J.S.A. 30:4-27.35 were held on September 15, 2004, March 23, 2005, September 20, 2005, March 30, 2006, September 30, 2006, September 20, 2007, and, most recently, on March 17, 2009. At the March 2009 hearing, testimony was given by psychiatrist Marta Pek Scott, and her report and the annual review report of the Treatment Progress Review Committee (TPRC)*fn1 were admitted as direct evidence. Additionally the notes of R.Q.'s treatment were admitted as a foundation for the experts' opinions.
Dr. Scott interviewed R.Q. for one hour on March 10, 2009. Her testimony and report were based on that interview, together with documents reviewed by her pertaining to R.Q.'s offense and treatment. Dr. Scott testified that when she questioned R.Q. about his prior sexual offenses, he admitted to what he had to because it was on the record. However, R.Q. denied that he had threatened his niece, whereas she said that he had done so, and he only admitted to one incident with the eleven-year-old boy, whereas the boy claimed that R.Q. had performed fellatio on five separate occasions. In connection with allegations that he was sexually involved with another committee at the STU, R.Q. replied only that "[w]e haven't gotten caught yet." He did, however, admit to a three-year affair with an inmate at the ADTC, thereby, according to the TPRC, demonstrating an ability and willingness to break the rules. According to Dr. Scott, R.Q.'s admissions showed that he had made "some progress" and that he had accepted some responsibility for what had occurred.
However, she found that it would be "very important" for R.Q. "to fully come to understand and take responsibility for" his conduct in order to derive benefit from the treatment offered to him.
Dr. Scott noted additionally that R.Q. had recently admitted that there was a "possibility" the he was attracted to children. This, the doctor found, suggested that R.Q. had started to make some progress toward a general understanding of the full extent of his deviant sexual arousal, and that his tentative admission was "a very important first step" in starting the work that R.Q. would need to do to be released from the STU. According to Dr. Scott, "without realizing his deviant arousal and attraction to children, he cannot engage in any meaningful way in treatment."
Additionally, Dr. Scott noted R.Q.'s juvenile criminal history, consisting of charges of simple assault and false public alarm on December 15, 1992, simple assault on July 13, 1993 and aggravated assault on October 20, 1995. While at the ADTC, he had been charged with threatening a corrections officer with bodily harm and with refusing to undress and enter a hospital observation room. R.Q. also had a lengthy history of angry outbursts at the STU. According to the TPRC report, R.Q. had been noted to "respond with 'rageful' anger and disrespect around group members and therapists, upon the slightest confrontation" regarding his alleged sexual relationship with another committee. However, R.Q. told the TPRC that his anger was "better than it had been" and ...