On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-13-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
T.A.R. appeals from an August 11, 2009 judgment continuing his involuntary civil 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. At oral argument before us, T.A.R. argued the State failed to produce sufficient evidence that he currently poses a danger as a result of a mental abnormality or personality disorder, which makes him likely to engage in further acts of a sexually violent nature. We disagree and 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 T.A.R.'s criminal history and the expert testimony presented by the State at the commitment hearing.
T.A.R., now age fifty, was incarcerated following a 1994 guilty plea and conviction for two counts of second-degree sexual assault against his daughter, for which he was sentenced to two concurrent eight-year prison terms. T.A.R. was ordered to serve his sentence at the Adult Diagnostic and Treatment Center (ADTC) in Avenel. T.A.R.'s temporary civil commitment was ordered on September 29, 1999. Final judgment was entered on May 16, 2001, which T.A.R. appealed. We reversed and remanded for the trial court's consideration of the newly announced standards in In re Commitment of W.Z., 173 N.J. 109 (2002). Commitment was ordered, and T.A.R. became one of the first committees in the STU. The judgment of commitment has been reviewed and confirmed on December 18, 2000; May 14, 2001; May 7, 2002; May 2, 2003; April 14, 2004; March 28, 2005; March 3, 2006; March 8, 2007; and February 13, 2008, which was affirmed on appeal.
A review hearing was held on February 5, 2009, and the court ordered T.A.R.'s continued civil commitment. T.A.R. filed a notice of appeal. However, when he sought a transcript for purposes of appeal, it was discovered "the [tape] machine must have been broken and it wasn't transcribed." Given that six months had passed since that hearing, the State consented to vacate the prior judgment. This appeal challenges the judgment entered following trial on August 11, 2009.
The facts surrounding the predicate offense are these. The child victim disclosed to a teacher and cousin that she had been sexually abused by T.A.R. on numerous occasions between 1983 and 1986. When the victim was age three, T.A.R began to "rub her vagina on the outside" when bathing her. At age four, the abuse escalated. T.A.R. began "touching the victim's vagina with his penis" and eventually engaged in intercourse. In her statement to police, the victim described "gray pudding came out of his penis and stayed on him." The assaults ceased sometime in 1985 only because the child and her mother moved out of state. However, in 1986, T.A.R. again assaulted his daughter each of the six times she visited with him. The victim detailed these assaults, explaining T.A.R. took both of their clothes off, then began to "rub her vagina with his hands" and perform vaginal intercourse.
T.A.R. also has an extensive non-sexual criminal history, including shoplifting, breaking and entering, burglary, theft, receiving stolen property, larceny, contempt of court, violations of probation, and drug-related offenses. Between 1976 and 1993, he had twenty-one juvenile and adult arrests in at least two states. In 1990, he was charged with his first sexual offense in Sampson County, North Carolina, where he received a three-year suspended sentence and three years of probation, after molesting the ten-year old daughter of a girlfriend. T.A.R. initially denied the incident but, while in treatment, has twice admitted his conduct to interviewing psychiatrists, including a 1999 interview when he stated the victim was "playing with him and he went ...