On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-441-06.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 13, 2010 - Decided Before Judges Lisa and Reisner.
Appellant K.H., now fifty-six years of age, appeals from Judge Freedman's May 13, 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 first sexual offense for which appellant was convicted was an aggravated sexual assault. The victim, R.E., was appellant's half-sister. On October 2, 1984, appellant, then 30 years old, pled guilty to the offense.
Appellant admitted to having sexual intercourse with R.E., knowing her to be younger than thirteen years old at the time. There were multiple incidents of fellatio and intercourse over a period of approximately one-and-one-half years. On January 11, 1985, appellant was sentenced to ten years imprisonment to be served at the Adult Diagnostic Treatment Center (ADTC). Appellant refused treatment at the ADTC and was transferred to the general prison population. He was paroled in March 1988.
In 2000, appellant was charged with sexual assault, endangering the welfare of a child, and criminal sexual contact. On June 6, 2001, he pled guilty to an amended charge of attempted sexual assault. During the plea hearing, appellant admitted that he attempted to sexually penetrate M.R. on the second floor of his bagel shop. At the time of the assault, appellant was forty-five years old and M.R., one of his employees, was fourteen years old. Appellant was sentenced on September 28, 2001, to five years imprisonment with a five-year parole disqualifier. Appellant was evaluated at the ADTC and determined to be in need of sex offender treatment. He again refused treatment at the ADTC.
Appellant's convictions constituted sexually violent offenses as defined in N.J.S.A. 30:4-27.26. The Attorney General filed a petition on September 18, 2006, seeking to civilly commit appellant pursuant to the SVPA. The court ordered appellant's temporary commitment on September 25, 2006. Subsequently, a hearing took place and the court entered a judgment of commitment on January 18, 2007. We affirmed that decision. In re Civil Commitment of K.H., No. A-3469-06 (App. Div. October 6, 2008). On April 20, 2009, a consent order was entered continuing appellant's civil commitment, based on his stipulation that the State's proofs established by clear and convincing evidence that he continued to be a sexually violent predator in need of involuntary civil commitment.
The review hearing that is the basis of this appeal was held on May 5 and 11, 2010. Judge Freedman rendered his decision on May 13, 2010, and issued his order on the same day. At the hearing, the State presented the expert testimony of Dr. Alberto M. Goldwaser, a psychiatrist, and Dr. Shawn McCall, a psychologist. Appellant offered the testimony of Brian Nolan, an advocate representative with the Office of the Public Advocate, with regard to a discharge plan. Dr. Timothy Foley, a psychologist, also testified on behalf of appellant.
Dr. Goldwaser diagnosed appellant with paraphilia non-consent, hebephilia, cannabis dependence and personality disorder with anti-social and narcissistic features. He opined that appellant lacked necessary self-control and required further treatment because he still denied having a problem. He further opined that appellant's diagnosed conditions predisposed him to sexual violence and created a serious difficulty for him to control his sexually offending behavior.
On two occasions, Dr. Goldwaser scored appellant as a "3" on the Static-99 test, indicating appellant was in the medium-low category of risk to commit a new sexual offense. However, Dr. Goldwaser otherwise characterized appellant's risk to sexually reoffend as high, if he was not recommitted for continued treatment. In order to reduce that risk, Dr. Goldwaser noted that appellant needed to take responsibility for his behaviors and develop empathy for his victims. According to Dr. Goldwaser, appellant was not addressing the repetitive and compulsive aspect of his deviance; until he stopped denying his sexual deviance, he could not reduce his risk.
Dr. McCall was a member of the Treatment Progress Review Committee (TPRC) that most recently evaluated appellant. The TPRC recommended that appellant continue in phase three of treatment at the STU. Dr. McCall noted that appellant engaged in treatment through his attendance and participation, but expressed concerns about how invested he was in genuinely making real changes in his life. Also, once appellant could show he truly internalized the treatment concepts, the TPRC would consider advancement. According to Dr. McCall, appellant was unable to demonstrate the necessary transparency about his condition and understanding of his sexual history. Appellant also did not have a firm understanding about what a victim is, how he victimized others or the nature of his deviant arousal. He appeared to perceive no problem with his arousal to young girls.
Dr. McCall scored appellant a "2" on the Static-99 test, placing him in a low-moderate range for reoffending. He diagnosed appellant with paraphilia, hebephilia, personality disorder with anti-social features, alcohol abuse, cannabis dependence, and nicotine dependence.
Brian Nolan met with appellant and prepared a discharge plan for him. Nolan testified generally that appellant would have the support of his brother and another friend in the community, and the promise of employment at a pizzeria in Asbury Park. Also, appellant would have options available to him for continuing sex offender treatment, ...