On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-475-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Lihotz.
Appellant K.J. (appellant or K.J.) appeals from his involuntary civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38. In this appeal, appellant raises a number of constitutional and evidentiary arguments as well as asserting that the State failed to establish by clear and convincing evidence that he was properly classified as an SVP. We conclude that his arguments are without merit and affirm.
These are the relevant facts adduced from the record. In November 1988, appellant engaged in a course of criminal behavior that formed the factual underpinnings of his later incarceration and commitment as an SVP.
On November 9, 1988, appellant attacked J.C., a forty-five year old woman in a parking lot at Upsala College. He raped the victim in a car and then demanded money, claiming a crack addiction. After driving the victim in her car for approximately five minutes, appellant exited the vehicle.
That same night, appellant attacked another female victim, T.L., whom he grabbed by the neck. He attempted to pull off her clothes, but the twenty-one year old victim punched him in the face, slipped out of her coat and escaped.
Again, that same night, a sixty-year-old woman, was entering her car at Upsala College when K.J. grabbed her from behind and pulled her between two cars. The victim screamed for help, which attracted the attention of a security guard, and appellant fled the scene.
On November 15, 1988, D.K., a fifteen-year-old female was walking to a park when appellant approached her and walked with her to the park. In the park, appellant grabbed her, kissed her and picked up a piece of glass, which he used to force her on her knees. Appellant told the victim he would kill her and forced her to perform fellatio, after which he fled.
The next day, a twenty-seven year old woman, A.J., was in her apartment with her infant child when she heard a knock at the door. Appellant told her that he lived next door and had a package for her. When she opened the door, appellant pushed his way inside and held a knife over her baby, saying that if she did not shut up he would kill them both. After forcing the victim to undress and while the victim held her baby, appellant raped her. The victim reported to police that she could smell alcohol on appellant's breath.
Later in the evening of that same day, a thirty-seven year old female, S.C., was exiting her car at Upsala College when appellant pushed her back inside, telling her not to scream, and that she would be okay because he had done the same thing to another girl a couple of days before. Appellant brandished a knife and forced the victim to remove her pants. While doing so, she managed to unlock the passenger side door and fall out of the car. She ran screaming through the parking lot, and K.J. chased her for approximately thirty feet before abruptly stopping and quickly walking away. Like the prior victim, she reported that appellant had alcohol on his breath.
On November 21, 1988, the twenty-seven-year old victim, A.J., saw appellant walking by her apartment; she contacted the police, and when they arrived she identified appellant as the man who assaulted her. Appellant was arrested, and police located clothing worn during the attacks, as well as one knife.
At the time of his arrest, appellant explained that he could not remember the details of the attack against this victim and that his severe cocaine addiction had escalated in the months prior to the offense. He claimed that his addiction caused him to seek sexual intercourse and sexual contact.
With respect to this attack, appellant was indicted for:
(1) first degree aggravated sexual assault and robbery; (2) second degree sexual assault and burglary; (3) third degree terroristic threats and possession of a weapon (knife) for an unlawful purpose; and (4) fourth degree unlawful possession of a weapon. Following a jury trial in December 1989, appellant was convicted. Prior to sentencing, he was examined by Mark Frank, Ph.D., the principal clinical psychologist at the Adult Diagnostic and Treatment Center (ADTC) to determine his eligibility for sentencing in accordance with the New Jersey Sex Offender Act. N.J.S.A. 2C:47-1 to -10.
Frank noted that appellant "denied any wrongdoing whatsoever with regard to" the attack. Although he admitted to previously confessing to the crime, he claimed that his confession was coerced. Throughout Frank's exam, appellant maintained his innocence, suggesting the incident was a case of mistaken identity.
Frank explained that this offense was, at the time, appellant's only known conviction of a sexual nature. However, he noted that, while in custody, additional charges had been brought against appellant, which appellant alleged was because "the authorities [were] trying to 'hit [him] with every similar crime in that area.'" During the exam, appellant admitted "that cocaine tends to make him feel sexually aroused," although he claimed he could control his feelings. However, he stated that he once came close to forcing sexual activity on a woman, but stopped himself and was not aroused by thoughts of sexual coercion.
[T]here was no evidence to be able to conclude that the present offense forms part of a repetitive, compulsive pattern of deviant sexual behavior. This offense is, in fact, the only known occasion when [K.J.] has actually engaged in such behavior.
Should he be convicted of the similar pending charges, there will be a factual basis to conclude that his deviant sexual behavior is repetitive. At present, the preponderance of evidence necessary for a finding of sexual compulsion is lacking. Consequently, [K.J.] is not eligible for sentencing under the purview of the New Jersey Sex Offender Act.
Subsequently, appellant was sentenced to an aggregate term of thirty-six and one-half years in prison for the crimes involving A.J. We affirmed K.J.'s conviction but, because the trial court failed "to articulate, in detail, a basis for imposing consecutive sentences and a term of parole ineligibility with respect to the presumptive sentence," we remanded. Appellant was re-sentenced to an aggregate term of thirty-five years in prison.
In the interim, in September 1990, appellant pled guilty to: (1) first degree robbery; (2) second degree attempted aggravated sexual assault, second degree attempted sexual assault, and second degree sexual assault; (3) third degree terroristic threats and two counts of third degree possession of a weapon for an unlawful purpose; and (4) fourth degree unlawful possession of a weapon. These guilty pleas were for the other offenses that we have described.
In July 2007, appellant, who was forty-three years old, and serving his sentence at Riverfront State Prison, was evaluated by Christie L. Kokonos, Psy.D., as part of a SVP risk assessment. Kokonos concluded that although appellant did not meet the criteria for a standard mental health commitment, he nonetheless met the criteria for diagnosis as a "repetitive sex offender." She noted that, during his interview, appellant's speech was clear, and his thinking was logical. Kokonos stated that "[h]e was able to recognize his need for both continue[d] substance abuse treatment, as well as sex offender specific treatment." She concluded that "[he] does not meet the diagnostic criteria for a mental health civil commitment."
Kokonos utilized two tests to assess appellant's recidivism risk. He scored on the MnSOST-R, which placed him "in the HIGH RISK category for recidivism within a sample population of sexual offenders over a six year period." On the Static 99, appellant scored , which similarly placed him in the high risk category, with a thirty-nine percent likelihood of reconviction in five years, forty-five percent in ten years and fifty-two percent in fifteen years.
When asked about his crimes, K.J. stated that "due to his extensive drug use at the time  he used poor judgment . . . ." He admitted having sex with the victims but claimed a prior relationship with them. He also sought to excuse some of his conduct as related to a victim absconding with drugs and money.
He later admitted that he was stressed at the time of the attacks and was coping through drug use. He stated that he usually felt angry and resentful when refused sexually but felt "powerful and emotionally relieved" during a sexual assault. Although he claimed he felt remorse and guilt following the assault, he admitted that he "cannot promise that it will not happen again." He was concerned with how to cope with life pressures on his release from prison, as well as what might happen "if those kinds of thoughts and urges come back." He expressed a desire to enter sex offender specific treatment so he could have support and someone to talk to.
K.J. also admitted that he had "deviant sexual thoughts and urges." Although he claimed this was due to drug use, he also admitted "to feeling entitled to sex and to becoming extremely angry and resentful if sex with him was declined." Appellant reported that it was possible for him to become so enraged that he would "just take it."
Kokonos found that appellant "clearly meets [the] criteria as a repetitive sex offender." Based on his admissions regarding thoughts, urges and concern about control, she concluded that he suffered "from a form of sexual psychopathology which is both repetitive and compulsive in nature." Although she found that his willingness to participate in treatment was a positive indicator for the potential success of such treatment, she determined that he met the criteria for possible SVPA civil commitment.
In October 2007, the State filed a petition to commit appellant under the SVPA. It included two clinical certifications by Neal Brandoff, D.O., and Marina Moshkovich, M.D. Brandoff had interviewed appellant, and based on appellant's difficulty controlling his sexual impulses, Brandoff concluded that there was significant risk K.J. would reoffend. During the interview, appellant denied any deviant fantasies or behaviors, but Brandoff noted that appellant had previously acknowledged concerns about controlling such thoughts or behaviors in the future. Brandoff pointed out that appellant committed five offenses within a one-month period, less than one month after he had been placed on probation for an unrelated charge of aggravated assault with a knife and was "desperate enough" to attack one victim in his own apartment complex as well as revisit the same scenes (Upsala College parking lot). On more than one occasion, appellant had used the same language with different victims.
Brandoff also was concerned with appellant's explanation that he only had two victims, and they were not really victims. Rather, they were women who supplied him with sex in exchange for drugs, and disputes arose about how much of each should be exchanged. Brandoff noted that although appellant told Frank he never forced sex on anyone, he now admitted that "in trading 'drugs for sex' he may have crossed the line of force."
Brandoff ran the same test protocol as previously administered and found that based on appellant's scores, he was in the same high risk group as that determined by Kokonos. Critically, Brandoff noted that although appellant was upset to hear of the possibility of civil commitment when he was so close to release, he had no empathy for his victims. Brandoff concluded that appellant suffered from numerous disorders, including: (1) impulse control disorder; (2) paraphilia not otherwise specified (NOS); (3) polysubstance dependence; and (4) antisocial personality disorder. He found that appellant had serious difficulty controlling his sexual impulses resulting in "significantly elevated risk that he will sexually reoffend."
Moshkovich also interviewed appellant. Based on the interview and appellant's scores on two actuarial tests, she, like Brandoff, concluded that K.J. had significant difficulty controlling his sexual impulses and was highly likely to reoffend. Her findings paralleled Brandoff's, and her conclusion was similarly consistent.
On October 19, 2007, the court found probable cause to conclude that appellant was an SVP. It temporarily committed him to the Special Treatment Unit (STU) pending a final hearing.
At the final hearing, the State presented testimony from Brian Friedman, Psy.D., and Pogos Voskanian, M.D. Appellant presented no evidence.
Friedman attempted to interview appellant on January 29, 2008, but appellant refused to be interviewed. Nonetheless, Friedman prepared an evaluation, in which he concluded, relying on reviewed records and actuarial assessments, that appellant presented a high risk of re-offense if released. He further determined that appellant suffered "from four psychiatric conditions, two of which qualify as mental abnormalities as defined by" the SVPA; appellant met the statutory criteria for civil commitment as an SVP.
Friedman explained that he relied on the original discovery material in order to understand the offenses and appellant's behavior during commission and prior reports in order to "get an idea about how [K.J.] presented to others in the past" He clarified, however, that he did not rely on the diagnoses of other evaluators. Instead, he considered them only to the extent that a prior evaluator may have reached a diagnosis he had not, in which case he would "rethink and wonder maybe why that was there" and would "take a look through to . . . [see] if there's something that maybe I was missing."
In reviewing appellant's offenses, Friedman noted that all of them "occurred within an eight-day period of time." He determined that the offenses taken together constituted a rape spree. He detailed his reasons for his conclusion including limited consideration of indictments that were dismissed as these incidents fit within the pattern of other charged offenses.
Friedman diagnosed K.J. with paraphilia NOS, non-consent, a disorder which qualifies as a mental abnormality under the SVPA. Although appellant's offenses were committed over a brief period of time, Friedman concluded that it is incredibly obvious that [he] suffers from a deviant arousal pattern involving sexual arousal to course of sexual behavior. This is a compulsive arousal pattern as well as evidenced by offending multiple times in the same day. This escalation in a matter of a week to eventually raping a woman  holding a crying baby at knifepoint and being able to reach the point of ejaculation in a very short period of time, according to the victim, and not experiencing that as aversive is highly suggestive of this deviant arousal pattern.
Friedman further explained that "[t]he only reason [K.J.] ceased acting on his sexually deviant behavior was criminal apprehension, and based on the level of compulsivity he displayed, it is almost certain he would have continued enacting his deviant sexual urges with non-consenting partners until he was apprehended." There was "no indication that [K.J.] decided [his behavior] was horribly wrong and he had to stop on his own." Friedman ...