On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP- 477-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2010
Before Judges Axelrad and R. B. Coleman.
Defendant P.W.B. appeals from a June 2, 2008 order directing his commitment for treatment as a Sexually Violent Predator (SVP) at a Special Treatment Unit (STU) and setting a date for further review on May 18, 2009. We affirm.
The State filed its original Petition for Civil Commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.28, on November 14, 2007. Hearings were conducted before Judge Philip M. Freedman on May 19 and 29, 2008. At the time of the State's motion for civil commitment, defendant was incarcerated, serving a forty-year sentence with twenty years of parole ineligibility. Defendant's incarceration arose from multiple charges of sexual assault to which defendant pled guilty on March 20, 1987.
The charges result from four separate incidents.*fn1 On May 8, 1986, defendant broke into the home of a seventy-five-year-old woman and sexually assaulted her. Police responding to a call from a neighbor of a burglary in progress at the residence, found and apprehended the defendant. In a statement to police, defendant stated he was under the influence of crack cocaine and did not remember assaulting the victim. Defendant was subsequently released on bail.
On July 19, 1986 at 7:50 a.m., while on bail, defendant sexually assaulted a twenty-year-old woman at gunpoint. In addition, on August 29, 1986, defendant dragged an eighteen-year-old female acquaintance into Chancellor Avenue Park at knifepoint, forced her to have intercourse and threatened to kill her if she told anyone. On September 12, 1986, defendant approached an eighteen-year-old woman and forced her at knifepoint into Chancellor Avenue Park where he sexually assaulted her twice. Defendant claims he was intoxicated on crack cocaine during all of these crimes.
At defendant's sentencing hearing on August 11, 1988, the court recommended, but did not sentence, defendant to be confined and treated at the Adult Diagnostic and Treatment Center (ADTC). In December 2004, defendant was transferred to ADTC for treatment. He was assigned to a level one psychoeducational group, Understanding and Controlling Sexual Deviance. After the first few sessions, defendant stopped attending. After speaking with his attorney a couple weeks later, defendant re-entered the program. Initially, he was placed on the fast-track-process group but was later removed once it was determined his release date was later than previously thought.
After failing the written examination for the group, defendant passed an oral version of the same test and was moved to a level two psychoeducational group, Understanding Sexual Assault. Defendant failed the final examination for this group and had to repeat the group. In December 2005, defendant was placed in a level three process group. At the group meetings, defendant discussed the details of his offenses. Defendant claimed not to remember many details due to his high level of intoxication. He also described his crimes markedly different from the official record. Any inconsistencies pointed out by other group members had little effect on defendant. Defendant refused to attend the Substance Abuse psychoeducational group and believes he does not have a drug problem. This issue was of notable concern to the ADTC staff, considering his reliance on intoxication as an excuse for his offenses.
In defendant's termination report, ADTC staff determined defendant was at a moderate to high risk of recidivism and that his risk level was not mitigated by his limited progress in treatment. The report described defendant's motivation and participation in his treatment as "uneven." It also noted that defendant continued to adamantly deny the majority of information detailing his crimes. The report recommended defendant be screened for commitment as an SVP.
At the May 19, 2008 hearing, the State presented the testimony of Howard Gilman, M.D., who testified that he attempted to interview defendant on two occasions, but that defendant declined. Because defendant refused to be interviewed, the doctor based his psychological evaluation on historical data and past conduct. From those records and from his brief interactions with defendant, Dr. Giles diagnosed defendant with paraphilia not-otherwise-specified (paraphilia NOS), which is an abnormal sexual arousal pattern unable to be clearly categorized. Dr. Gilman testified that he considered defendant's paraphilia NOS to be coupled with sadistic traits, because the defendant seemed to be aroused by threatening his victims with weapons. The doctor also diagnosed defendant with multiple substance abuse dependence, based on defendant's admitted use of cocaine and alcohol, and antisocial personality disorder. Dr. Gilman testified that these conditions do not spontaneously remit and they increase the risk of recidivism. For those reasons, Dr. Gilman opined that defendant would be "at high risk to sexually re-offend if not civilly committed for continued treatment."
At the hearing on May 29, 2008, the State presented the testimony of Rosemarie Vala Stewart, Ph.D., concerning her forensic evaluation of defendant. Dr. Stewart testified defendant also declined to interview with her, and he refused any psychometric testing. Consequently, Dr. Stewart testified she based her diagnosis on a review of, among other things, police documents, judgments of conviction, ADTC notes and disciplinary reports from the Department of Corrections. She diagnosed defendant with paraphilia NOS (non-consent), crack cocaine dependence, alcohol abuse and personality ...