On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-192-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
A.R., a 47-year-old male, appeals from an October 27, 2010 order of the Law Division, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
The issue before us is limited. An involuntary civil commitment may 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(b).
[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 trial judge must address A.R.'s "present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend 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).
A.R. has been convicted of three predicate sexual offenses. The first offense took place on October 15, 1982, when N.I., an adult female and a stranger to A.R., was walking home after parking her car, saw A.R. step out from behind some bushes with his pants pulled down to his ankles and expose his genitals to N.I. A.R. then reached out and grabbed N.I.'s buttocks and said, "Give me your pussy!" The victim proceeded to scream and A.R. pulled up his pants and ran. N.I. ran home, called the police, and A.R. was apprehended shortly thereafter. Pursuant to a plea agreement, A.R. pled guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) and was sentenced to one year of probation conditioned on serving thirty days in the Cumberland County Jail.*fn1
The second offense occurred on March 16, 1983, when A.R. sexually assaulted D.F., an adult female limited in her cognitive capacities. A.R. and two accomplices approached D.F., forced her into an isolated barn, removed her clothing and proceeded to engage in vaginal and anal intercourse with the victim. As a result, A.R. was arrested on April 20, 1983 and charged with aggravated sexual assault, sexual assault, and terroristic threats. A.R. claimed then and still claims that D.F. never said "no," screamed or cried, and that A.R. thought that the sexual intercourse was consensual. To the contrary, D.F. stated that she was screaming because of the pain she was experiencing from the anal intercourse. Pursuant to another plea agreement, A.R. was sentenced to an indeterminate term not to exceed seven years.
The third and final offense was discovered on July 19, 1985, when the Division of Youth and Family Services (DYFS) contacted police regarding a possible aggravated sexual assault involving a seven-year-old female. According to DYFS, the victim, D.R., had contracted gonorrhea after being sexually assaulted by A.R., her uncle. D.R. informed police that A.R. had "put his dick in my pussy." On December 4, 1986, A.R. pled guilty to two counts of sexual assault, one count of aggravated sexual assault, and two counts of endangering the welfare of a child. As a result of these convictions, A.R. was sentenced to an aggregate sentence of twelve-year imprisonment concurrent to the sentence he was then serving.
On August 8, 2001, the State filed a petition to declare A.R. as a sexually violent predator, N.J.S.A. 30:4-27.28. Subsequently, A.R. was temporarily committed to the Special Treatment Unit (STU) in Kearny, New Jersey. An initial commitment hearing was held on January 4, 2002, and A.R. was committed to the STU for a period of one year. Subsequent reviews were held, and A.R.'s commitment was continued in each of those reviews.
The present review was conducted on October 19, 2010. During the civil commitment hearing, Judge Philip M. Freedman considered expert testimony from psychiatrist Marta Scott, M.D., and psychologist Rosemarie V. Stewart, Ph. D. First, Scott reviewed A.R.'s psychiatric, sexual and medical history along with his substance abuse problems. Scott's report detailed two suicide attempts and a history of substance abuse problems with heroin, cocaine, marijuana and alcohol. In addition, Scott noted that initially A.R. was making some progress because ...