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In re Civil Commitment of R.B. SVP-520-09

November 22, 2010

IN THE MATTER OF THE CIVIL COMMITMENT OF R.B. SVP-520-09.


On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-520-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 10, 2010

Before Judges Axelrad and J. N. Harris.

Appellant R.B. appeals from the February 2, 2009, order that committed him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

Appellant's criminal history reflects a longstanding pattern of sexual and other violent offenses, in this State and elsewhere. In February 1998, appellant was convicted in New York of first-degree attempted sexual abuse, New York Penal Law § 110 and § 130.65(3), and was sentenced to a term of one to three years incarceration. Within twenty-four hours of being released on parole, appellant was accused, again in New York, of another sexual assault. In June 2000, he was convicted of third-degree rape, New York Penal Law § 130.25(2), and sentenced to eighteen months to three years in prison. After being released on parole for this second offense in 2004, appellant was charged with failing to register as a sex offender in New York City, New York Correction Law § 168-t, a misdemeanor charge to which he entered a plea of guilty. Appellant was subsequently sentenced to a term of six months incarceration.

Appellant's criminal activities neither ended there nor were they confined to New York. In November 2005 -- although originally indicted for aggravated assault, N.J.S.A. 2C:12-1(b)(7); burglary, N.J.S.A. 2C:18-2; and terroristic threats, N.J.S.A. 2C:12-3(b) -- appellant was convicted of the crime of burglary and sentenced to four years incarceration in New Jersey. Appellant's prison stay was not uneventful. He was adjudicated on at least five occasions of committing the following prohibited acts as an inmate: indecent exposure, N.J.A.C. 10A:4-4.1(.053), and making sexual proposals or threats to another, N.J.A.C. 10A:4-4.1(.052).

In January 2009, the State filed a petition for civil commitment pursuant to the SVPA. The State presented only one witness at the hearing that was conducted in February 2009, psychiatrist Dr. Sarah Gleacher, M.D. Appellant elected not to testify or call witnesses on his behalf. Dr. Gleacher reviewed appellant's history and archival records, but was unable to interview appellant for more than a brief encounter because he refused to speak with her.

At the hearing, Dr. Gleacher recounted her analysis of appellant's discovery file, prison records, police reports, and background information. After a comprehensive review, lacking only an interview with appellant, Dr. Gleacher concluded that appellant "suffers from a mental abnormality which predisposes him to sexual[ly] reoffend." Specifically, appellant was diagnosed as suffering from "paraphilia NOS" and an "anti-social personality disorder." Noting that these two conditions were not likely to spontaneously remit, Dr. Gleacher ultimately opined that appellant would have "serious difficulty controlling his sexual offensive behavior" and displays a "high risk to sexually reoffend in the foreseeable future if not committed . . . for treatment."

Judge Philip M. Freedman rendered a comprehensive oral opinion, which canvassed the documentary record and outlined in detail the court's findings regarding Dr. Gleacher's testimony and opinions. The court described Dr. Gleacher's view of appellant as that "he's an untreated, repetitive sex offender," noting that the record "clearly support[ed] her view." Moreover, the court held that "I don't think there's any question that [appellant] would be committing similar offenses, both sexual and non-sexual, but definitely committing similar sexual offenses very quickly if he were released." Accordingly, Judge Freedman found that "the State has met its burden and that [appellant] should be committed." A review date was set for January 2010.

On appeal, appellant raises the following two points for our consideration:

POINT I:

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.B. IS A SEXUALLY VIOLENT PREDATOR AND AT PRESENT THE RISK OF RECIDIVISM IS AT A ...


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