On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-196-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
G.M. appeals from a July 13, 2009 judgment continuing his involuntary commitment to the Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
G.M. is a forty-seven year old male with a history of criminal behavior and sexually violent conduct. In the 1980s, G.M. was arrested and convicted, on separate occasions, for burglary, larceny, and simple assault. G.M.'s sexual offense history began in 1989, with his arrest for sexual assault, although that charge was later dismissed for unknown reasons. On May 24, 1989, G.M. was again charged with sexual assault. The victim was a six-year old who had been left in G.M.'s care. Allegedly, G.M. came out of the shower with a towel on, removed his towel, and began masturbating in front of the child, trying to put his penis in her mouth. It was also reported that on a separate occasion, G.M. touched the child's breasts over her clothing. On December 17, 1990, the charges were dismissed.
On November 12, 1992, G.M. was arrested and charged with aggravated sexual assault, sexual assault, criminal sexual contact, child abuse, and endangering the welfare of a child. The incident involved two infant girls, ages three and one, whom G.M.'s girlfriend was baby-sitting. The three-year old alleged that G.M. placed his finger inside her vagina, and attempted to touch the one year old until the child began to cry. On December 9, 1993, G.M. pled guilty to third-degree child abuse, and was sentenced to three years in prison.
The predicate offense for which G.M. is currently committed related to an October 24, 1997 arrest for aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse. When G.M.'s victim, his daughter, was discovered to have venereal warts at age eight, she admitted that she had been sexually abused by G.M. four years earlier, in 1993.
According to the victim, she was lying on her mother's bed reading a book when G.M. took off his clothes, pulled off the victim's pants, and penetrated her vagina and anus with his penis. When the victim began to cry, G.M. placed a sock in her mouth. G.M. also ejaculated in his daughter's mouth. The victim was fearful of reporting the incident because G.M. had told her he would "send her to the moon" if she told anyone. On September 16, 1998, G.M. pled guilty to second-degree sexual assault, and was later sentenced to a five-year term, to be served at the Adult Diagnostic and Treatment Center (ADTC), and to community supervision for life.*fn1
At the expiration of his sentence on September 13, 2001, the State moved for G.M.'s commitment under the SVPA. A temporary order of commitment was entered on September 6, 2001, followed by an order of commitment on July 8, 2002. A review hearing was held on March 14, 2003, at the conclusion of which the Law Division found that G.M. continued to be a sexually violent predator and ordered that he remain confined to the STU. G.M. appealed from this judgment, but the appeal was eventually dismissed. Subsequent annual review hearings have resulted in the continuation of G.M.'s commitment.
The present appeal arises out of G.M.'s most recent review hearing, which occurred on July 13, 2009, at the close of which the trial judge continued G.M.'s involuntary commitment. In anticipation of the hearing, reports were prepared by the State's experts. Dr. Howard Gilman, a psychiatrist, and Dr. Christine Zavalis, a psychologist. G.M. refused to be interviewed by Dr. Gilman, so Dr. Gilman relied upon documents customarily used by experts in the field in rendering his medical opinion. Dr. Gilman found that G.M. "has a number of risk factors for sexual reoffending. These include a personality disorder with antisocial features; a history of sexual reoffending; pedophilia; and, alcohol dependence." Additionally, Dr. Gilman found that G.M. "has made little to no use of sex offender specific treatment over the last 10 years" and is "currently on treatment refusal status." Dr. Gilman determined that G.M. "continues to be at high risk for sexual reoffending" and that, in his opinion, G.M.'s commitment should be continued.
At the hearing, Dr. Gilman testified that G.M. suffers from alcohol abuse, which renders him more likely to re-offend, since he was "drinking during the time of each of his sexual assaults" and has refused to attend substance abuse programming while at the STU. Dr. Gilman also found that "the fact that [G.M.] continues to have an untreated alcohol dependence, which has been controlled simply by his environment . . . is a risk factor for re-offending . . . since he has not attended treatment and presumably doesn't have the tools to remain abstinent of alcohol should he leave."
As for his sexual deviance, G.M. refused treatment for seven months prior to the hearing, and, prior to refusing treatment, G.M. made "little to no progress[,]" never passing "Phase-2 of treatment . . . and had been doing poorly in that treatment." In fact, G.M. has been demoted to ...