On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-527-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Cuff and Simonelli.
S.S. appeals from the June 10, 2009 judgment involuntarily committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. S.S. argues that the State failed to prove by clear and convincing evidence that he is a sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.*fn1 We disagree and affirm.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26; see also N.J.S.A. 30:4-27.25.
"[T]he State must prove that threat ["to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts"] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." [In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]
The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the person-to-be-committed will re-offend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Aggravated sexual assault is considered a sexually violent offense. Ibid. In this case, S.S. was convicted of three counts of aggravated sexual assault of A.R., age eight, L.R., age eleven, and P.F., age eight, and of kidnapping P.F.*fn2 He, thus, is considered a sexually violent predator.
At the May 29, 2009 hearing, the State's psychiatric expert, Pogos Voskanian, M.D., testified that S.S. suffers from a mental abnormality which predisposes him to sexually re-offend, that is, pedophilia aroused to underage girls and paraphilia NOS (aroused to rape). Defendant also has a personality disorder NOS with very strong antisocial traits, which include lack of empathy and remorse, violation of others, disregard for the law as evidenced by his prior criminal history,*fn3 and telephone scotologia based on his conviction for making obscene telephone calls to women. These abnormalities combined to significantly elevate the risk that defendant will re-offend. This risk is magnified by defendant's significant substance dependence which would lead to further inhibition and impaired judgment. The doctor also noted that defendant committed the third aggravated sexual assault while on bail for the first two assaults, which establishes his inability to refrain from committing further offenses. The doctor further noted that defendant scored between an eight or nine on the Static 99 test, which places him in a group of those highly likely to re-offend. His report, which was admitted into evidence, noted that defendant scored a sixteen on the MnSOST-R test, which also places him in a group of those highly likely to re-offend in the near future.
Dr. Voskanian concluded that defendant's condition predisposes him to sexual violence, and he will not be able to control his sexual impulses if released into the community in his current condition. The doctor also concluded that defendant has a high risk to sexually re-offend in the foreseeable future unless confined to the STU.
S.S. testified but presented no expert evidence.
Judge McLaughlin found that the State had established by clear and convincing evidence that S.S. is a sexually violent predator, he has serious difficulty in controlling his sexually harmful behavior, and it is highly likely he will not control that ...