On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-378-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Coburn.
Appellant S.J., fifty-eight years of age, appeals from Judge McLaughlin's December 16, 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, appellant's counsel argued that Judge McLaughlin'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 reoffend, and he therefore no longer meets the criteria for commitment.*fn2 We disagree and affirm.
The petition for civil commitment described the following predicate offense: On October 16, 1985, appellant entered the residence of twenty-two-year-old victim C.E. in Edison. Appellant proceeded to rape C.E. at gunpoint, stole some money, confined C.E., her mother, and her mother's four-year-old grandson in the closet, and left the residence. Appellant was charged with aggravated sexual assault, armed robbery, burglary, three counts of criminal restraint, terroristic threats, and possession of a weapon for an unlawful purpose. He was found guilty by a jury and sentenced to twenty-five years in prison.
While incarcerated, appellant was convicted in August 1990 of fourth-degree criminal sexual contact stemming from a May 1986 charge that he exposed himself to fifty-one year old J.Z. He was sentenced to time served, approximately 1571 days. Also while in prison for the predicate offense, he was convicted of escape and sentenced in October 1990 to a term concurrent with the sentence for the predicate offense.
In addition to the above offenses, the petition sets forth appellant's extensive prior criminal history. In November 1974, he was found guilty of simple assault and fined. In November 1976, he was sentenced to one year in jail for a California robbery. In October 1977, he was charged and convicted of receiving a stolen vehicle and sentenced to eighteen months plus probation. That sentence was deferred until 1980, and he was given leave to seek reconsideration of the sentence. However, in December 1979, he violated probation on a breaking and entering conviction which occurred in September 1978, and was sentenced to eighteen months plus probation. Furthermore, from 1979 to 1980, appellant was convicted of and received various sentences for breaking and entering, atrocious assault, and threatening to take a life.
In October 2004, 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 by order of October 1, 2004. He was then committed by order of May 23, 2005 and his commitment was continued by order of May 4, 2006. We affirmed both of those orders by our single opinion of April 26, 2007. A-4994-04T2 and A-5771-05T2. Appellant's commitment was continued by order of January 11, 2008, and we affirmed that order by our opinion of June 20, 2008. A-2510-07T2. We then affirmed a December 23, 2008 order of continued commitment by our opinion of June 19, 2009. A-2463-08T2.
The review hearing that is the subject of this appeal was conducted on December 9, 2009. Judge McLaughlin rendered an oral opinion on December 16, 2009, and issued an order the same day.
At the hearing, the State presented the testimony of Dr. Indra K. Cidambi, a psychiatrist who interviewed appellant and prepared an expert report. Dr. Cidambi testified that appellant is not meaningfully engaged in his treatment at STU in that he "has difficulty seeing himself as a sexual predator." She said he suffers from mental abnormalities which predispose him to sexually reoffend. She diagnosed him with paraphilia, exhibitionism (relating to his urges to expose himself to women), drug and alcohol abuse, and "personality disorder NOS with antisocial features." The combined effect of these disorders, according to Dr. Cidambi, is to impair appellant's emotional, volitional, and cognitive capacities, making him "highly likely to sexually re-offend, if not confined to this structured treatment." She opined that he has not made sufficient progress in treatment to "control his acting out on these disorders." Dr. Cidambi's report is consistent with her testimony.
The State also presented the testimony of Dr. Nicole Paolillo, a psychologist and author of the report of the Treatment Progress Review Committee (TPRC). Dr. Paolillo diagnosed appellant with paraphilia NOS, exhibitionism, alcohol abuse, and personality disorder NOS (with antisocial/psychopathic traits). She testified that there is a "significant disparity between [the TPRC's] perspective on [appellant] and his own perspective on himself," and that appellant "does not acknowledge a meaningful sexually deviant arousal." She testified that appellant is in need of more treatment at STU. Appellant presented no witnesses on his behalf.
Judge McLaughlin's oral opinion reviewed the documentary and testimonial evidence. He concluded that the State proved by clear and convincing evidence that appellant suffers from mental abnormalities and personality disorders which "cause him serious difficulty controlling his largely sexually violent behavior, such that it is highly likely that he will re-offend in the ...