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In the Matter of the Civil

December 17, 2010

IN THE MATTER OF THE CIVIL COMMITMENT OF D.H.S. SVP-262-02.


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-262-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 13, 2010

Before Judges Lisa and Reisner.

Appellant D.H.S., now forty years of age, appeals from Judge McLaughlin's April 9, 2010 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 New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the State failed to prove by clear and convincing evidence that he is highly likely to reoffend if not confined to the STU. We disagree and affirm.

The petition for civil commitment described the following predicate offense: On October 18, 1987, appellant and an accomplice pushed N.C. into the elevator in the lobby of a building. Appellant pushed the buttons for the elevator to go up, and the accomplice held N.C. Appellant then disconnected the elevator light, and N.C. was told to "[g]ive it up." N.C. was punched in the stomach, forced to the floor, and her jeans, pantyhose and underwear were removed. Both men vaginally raped N.C. and one of the men forced his penis into her mouth. N.C. was struck with a beer bottle in the head several times, and she was robbed.

On August 7, 1989, appellant pled guilty to multiple offenses arising out of the incident, including two counts of aggravated sexual assault. The same day, he also pled guilty under a separate indictment to first degree robbery, second degree aggravated assault, and weapons offenses. On April 6, 1990, appellant was sentenced for the October 18, 1987 offenses to twenty years imprisonment with a ten-year period of parole ineligibility. On the same day, he was sentenced to a concurrent twenty-year term for the offenses in the separate indictment.

In addition to the predicate offense, appellant was also charged with sexually assaulting S.L. on May 21, 1989. The complaint charged him with aggravated sexual assault, armed robbery and criminal restraint. According to S.L., appellant and two other men approached her on the street. One of the men placed a gun to her neck and she was dragged to a vacant lot. One of the men forced her to fellate him and the man with the gun vaginally raped her. These charges were dismissed pursuant to the plea agreement when appellant pled guilty to the offenses we have previously described.

Appellant had a significant juvenile history that predated the predicate offense. In 1984, he was adjudicated delinquent of assault, robbery, burglary, joyriding, and receiving stolen property. In 1985, he was adjudicated delinquent of five separate burglaries. In 1986, he was adjudicated delinquent of attempted robbery.

In 2002, the State petitioned for appellant's involuntary civil commitment as a sexually violent predator. On August 13, 2002, an order was entered temporarily committing appellant to the STU, followed by a September 6, 2002 order of commitment, after an initial hearing, which we affirmed. In re Civil Commitment of D.H.S., No. A-907-02 (App. Div. July 16, 2004). Subsequent review hearings prior to the one now before us resulted in February 8, 2005 and September 24, 2007 orders of continued commitment, which we affirmed. In re Civil Commitment of D.H.S., No. 4337-04 (App. Div. October 25, 2005), certif. denied, 188 N.J. 491 (2006); In re Civil Commitment of D.H.S., No. A-0824-07 (App. Div. March 11, 2008).

The review hearing that is the subject of this appeal was conducted on March 16 and 25, 2010. Judge McLaughlin rendered an oral decision on April 5, 2010, and issued his order on April 9, 2010. At the hearing, the State presented the expert testimony of Dr. Marta Scott, a psychiatrist, and Dr. Jamie Canataro, a psychologist.

Dr. Canataro testified that in the past two years, appellant had changed his attitude and begun to actively engage in treatment, completing a number of modules. However, he had also been recommended to repeat other modules. She said he was cooperative and wanted to do what is necessary to advance in treatment. However, appellant continued to minimize the 1987 offense, and did not grasp the ability to apply relapse prevention skills to his situation.

Dr. Canataro noted that the Treatment Progress Review Committee (TPRC) recommended continued treatment, retaking of the relapse prevention 3 module, and joining the therapeutic community. Appellant scored an eight on the Static-99 test, which is designed to predict the likelihood of recidivism of sexual offenders. That placed appellant in the category of offenders who are a high risk to sexually reoffend in the reasonably foreseeable future. Dr. ...


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