On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-197-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Coburn.
Appellant, J.L.N., now forty-eight years of age, appeals from Judge Mulvihill's December 14, 2009 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, appellant argues that the State failed to prove by clear and convincing evidence that he is highly likely to reoffend unless confined to the STU and that he should have been granted a conditional discharge as recommended by his psychological expert.*fn1 We disagree and affirm.
On October 12, 1982, K.S. notified the Asbury Park Police that appellant had entered her apartment and sexually assaulted her. K.S. stated that appellant, her former paramour, entered her apartment uninvited and carried her upstairs against her will, where he forced her to have sex. After K.S. notified the police, appellant was arrested and charged with aggravated sexual assault, sexual assault, burglary, and making terroristic threats.
On November 3, 1982, A.T. notified the Avon police that appellant had sexually assaulted and robbed her. Appellant had entered A.T.'s home while she was sleeping and forced her at knifepoint to have sex with him. He also stole $1,514 worth of items from A.T.'s home. Appellant was arrested the next day and charged with burglary, two counts of aggravated sexual assault, armed robbery, and criminal restraint.
On February 15, 1983, appellant pled guilty to aggravated sexual assault charges arising out of both incidents, and armed robbery. On April 22, 1983, he was sentenced to an aggregate term of thirty-six years with an eighteen-year parole disqualifier. In 1994, the parole disqualifier was reduced to fifteen years. The aggravated sexual assault convictions constituted sexually violent offenses as defined in N.J.S.A. 30:4-27.26.
On August 30, 2001, prior to appellant's release from prison, the State filed a petition seeking appellant's civil commitment pursuant to the SVPA. An order for a temporary commitment at the STU was entered on September 6, 2001. A final hearing was held on April 10, 2002, and on April 23, 2002, the court found that appellant was a sexually violent predator and ordered that he be remanded to the STU.
After a review hearing on January 15, 2003, the court found that appellant continued to be a sexually violent predator and ordered his continued commitment. Appellant appealed and we affirmed on October 1, 2004. No. A-2743-02T2. A subsequent review hearing was held on April 28, 2003. The court again found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant appealed, A-5263-02T2, but later withdrew the appeal.
After a March 16, 2004 review hearing, the court found that appellant's risk of recidivism had decreased and directed the STU to develop a conditional discharge plan. Over the ensuing months, appellant was allowed increasing levels of unsupervised movement in the community. Appellant was released from the STU under a conditional discharge order on September 22, 2004. Appellant's conditional discharge was subsequently revoked and he was recommitted to the STU. In our November 21, 2006 opinion affirming the revocation order, we described the circumstances culminating in the revocation:
Less than two weeks later, the State sought to revoke J.L.N.'s conditional discharge on the grounds that he had violated several of its provisions, notably by leaving the State, not reporting to parole and failing to reside at the approved residence. After hearing the evidence, Judge Freedman denied the State's petition [to rescind the conditional discharge] finding that the evidence of violation was insufficient. The judge did, however, order increased restrictions including imposing a curfew and limiting his place of residence to the marital home. A month later, at the request of his parole officer, J.L.N. was ordered to be placed on 24-hour electronic monitoring. On April 19, 2005, the State made an ex parte application for an order to apprehend J.L.N. and return him to custody based on alleged violations of the conditional release order. Witness testimony presented by the State in support of that application included allegations that J.L.N. had beaten his wife and that his wife's safety was at risk, and that the therapist who had reported this violence to the court could also be in peril. The State contended that the physical aggression toward his wife indicated that he was again entering a sex offense cycle.
Based on that testimony, Judge Perretti granted the State's application to return J.L.N. to the STU pending a hearing. Prior to that hearing, which began on May 11, 2005, the State filed an amended petition for civil commitment setting forth in detail the factual ...