On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-290-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Coburn.
Appellant, C.P., now fifty-one years of age, appeals from Judge Mulvihill's July 23, 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 was highly likely to commit a crime of sexual violence if not confined to the STU.*fn1 We disagree and affirm.
Appellant's history reflects a longstanding pattern of sexual and other criminal offenses. On July 8, 1974, appellant was arrested and charged with breaking and entry, larceny, making obscene telephone calls and soliciting sexual acts. On November 7, 1974, he was sentenced to one year of probation and was required to attend counseling. On February 4, 1980, appellant was charged with burglary, and on October 31, 1980, he was sentenced to one year of probation and fined. On April 16, 1981, he violated probation which resulted in continued probation, and subsequently, he violated probation a second time which resulted in a custodial sentence of three months. Further, on November 26, 1983, appellant was charged with harassment and fined.
On January 30, 1984, appellant met C.M. in a bar, and after C.M. left the bar in her vehicle, appellant followed her in his vehicle and ran her off the road. Appellant yanked C.M. out of her car by her hair and threw her into his car, and threatened her and restricted her from escaping. He then proceeded to rape and sexually assault C.M. Afterwards, appellant told C.M. that he was going to tie her up in a cellar for three days, but after he took her into his house, C.M. was able to escape and notified the police.
Appellant was arrested and charged with kidnapping in the first degree, criminal restraint in the third degree, terroristic threats in the third degree, and three counts of aggravated sexual assault in the third degree.*fn2 After initially pleading not guilty to these charges on March 12, 1984, appellant retracted his plea on March 22, 1984, and pleaded guilty to kidnapping in the first degree, terroristic threats in the third degree and one count of aggravated sexual assault in the first degree. On August 3, 1984, appellant was sentenced to twenty years at the Adult Diagnostic and Treatment Center (ADTC) for the kidnapping conviction, a concurrent four-year prison term for the terroristic threats conviction, and a concurrent fifteen-year prison term for the aggravated sexual assault conviction. However, the judgment of conviction was subsequently amended on May 8, 1985, because the sentencing judge had intended to sentence appellant to twenty years for the aggravated sexual assault conviction with a twenty-year concurrent term for the kidnapping conviction, and these changes were made.
Appellant was transferred to East Jersey State Prison after nineteen months at the ADTC because he refused to participate in treatment at the ADTC. He completed his maximum sentence at East Jersey State Prison and was released from there on November 15, 1994. However, on October 8, 1996, A.S. was beaten and stabbed by appellant, who also attempted to sexually assault her. A.S., a self-employed masseuse, had gone to appellant's residence after he requested her services in response to a newspaper advertisement. While being massaged, appellant pulled a knife from under a pillow and began to choke and threaten A.S. A.S. was able to leave after scaring appellant into thinking that he might be caught, but had lost a lot of blood from knife wounds on her hand and needed forty-seven stitches and plastic surgery.
Appellant was subsequently arrested and on September 15, 1997, pleaded not guilty to aggravated assault, aggravated assault with a deadly weapon, possession of a weapon for unlawful purposes, unlawful possession of a weapon, certain persons not to have weapons, attempted aggravated sexual assault, criminal restraint, and terroristic threats. However, on November 3, 1997, appellant retracted his plea and pleaded guilty to aggravated assault in the second degree and attempted aggravated sexual assault in the second degree. These convictions were the result of the commission of sexually violent offenses as defined in N.J.S.A. 30:4-27.26. On February 6, 1998, appellant was sentenced to two concurrent nine-year prison terms to be served at the ADTC, and was sentenced to Community Supervision for Life.
Prior to maxing out his sentence on or about January 4, 2003, the State filed a petition seeking appellant's civil commitment pursuant to the SVPA. After reviewing the State's petition, the court found probable cause to believe that appellant was a sexually violent predator and issued a temporary commitment order on December 20, 2002, authorizing his transfer to the STU pending a final hearing. A final hearing was held on May 14, 2003, and on the same day, the court found that the State's evidence established that appellant was a sexually violent predator and, as a result, the court ordered that he be remanded to the STU. Subsequent review hearings were held on May 5, 2004, November 9, 2004, August 16, 2005, August 10, 2006, May 30, 2007, and June 5, 2007, wherein the court found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU.
Appellant appealed the court's decision of June 26, 2007. We affirmed on January 15, 2008, No. A-5851-06T2. A review hearing was subsequently held on July 9 and 23, 2009, wherein the court found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant now appeals the court's decision of July 23, 2009.
At the July 9, 2009 hearing, the State presented the testimony of Dr. Rosemarie Stewart, a psychologist, who testified that appellant refused to participate in an interview with her and the rest of the Treatment Progress Review Committee (TPRC) to assess his progress in treatment. Nevertheless, Dr. Stewart testified that she was able to render her opinion within a reasonable degree of certainty based on a review of various documents, including police reports and past psychological and psychiatric evaluations, as well as from speaking with appellant's treatment providers. Dr. Stewart diagnosed appellant with sexual sadism, paraphilia NOS, depressive disorder and anxiety disorder, alcohol dependence, and abuse of cannabis and cocaine. She testified that appellant's depressive and anxiety disorders, as well as his drug and alcohol ...