On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-308-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Coburn.
Appellant S.M., forty-eight years of age, appeals from Judge Mulvihill's December 14, 2009 order continuing his involuntary civil commitment in the New Jersey Special Treatment Unit (STU) as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. At oral argument,*fn2 appellant's counsel argued that Judge Mulvihill's findings are not supported by the record. In particular, appellant argues that the State failed to prove by clear and convincing evidence that he was highly likely to re-offend, and he therefore no longer meets the criteria for commitment. We disagree and affirm.
The petition for civil commitment described the following predicate offense: In April 1996, victim R.D. met appellant at a local lounge. As R.D. was walking home through a vacant lot, appellant came up behind her and pulled her into an abandoned house. She screamed for help, but appellant produced a utility blade and told her to stop screaming or he would kill her. A struggle ensued, and appellant raped R.D. before she was finally able to escape. Appellant pled guilty to second-degree sexual assault and third-degree possession of a controlled dangerous substance (CDS), and was sentenced on August 22, 1997, to ten years at the Adult Diagnostic and Treatment Center (ADTC) and community supervision for life.
In addition to the predicate offense, the petition sets forth other crimes committed by appellant. In March 1986, appellant was charged with attempted rape, assault, and criminal possession of a weapon in Erie County, New York. He was sentenced to a prison term not to exceed five years. He was paroled in September 1988, but parole was revoked in June 1989.
In December 1988, appellant was charged with first-degree rape in Buffalo, New York. As a result of a plea agreement, he pled guilty to third-degree attempted burglary and was sentenced to one-and-one-half to three years in prison. The charges stemmed from an incident in which appellant allegedly followed a woman into her apartment, choked her, held her at knifepoint threatening to kill her, and raped her.
In January 1993, appellant was charged with aggravated sexual assault and multiple weapons offenses stemming from an incident in which he raped another woman at knifepoint. He pled guilty to lesser charges and served 548 days in jail.
In March 2003, prior to his release for the predicate offense, the State petitioned for civil commitment pursuant to the SVPA. He was temporarily civilly committed to the STU on March 20, 2003, and after an initial hearing, was committed on April 10, 2003.
Subsequent review hearings were held, and appellant was recommitted by orders of March 29, 2004 and August 1, 2005. We affirmed the latter commitment by our opinion of April 16, 2007, A-6426,04T2, certif. denied, 192 N.J. 74 (2007). A December 20, 2007 recommitment was reversed and remanded for a new hearing before a different judge by our opinion of September 3, 2008, A-2384-07T2. We then affirmed a November 5, 2008 recommitment by our opinion of June 22, 2009, A-1703-08T2.
The review hearing that is the subject of this appeal was conducted on October 8, 2009. Judge Mulvihill rendered an oral opinion on December 14, 2009, and issued an order the same day.
At the hearing, the State presented the testimony of Dr. Dean M. De Crisce, a psychiatrist, who interviewed and evaluated appellant and issued an expert report. Dr. De Crisce testified that appellant exhibits both paraphilia and anti-social personality disorder. He testified that although appellant had made some advances in his treatment programs at STU, he had not "achieved enough treatment and understanding to mitigate these disorders," which affect appellant emotionally, cognitively, and ...