On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-183-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
This appeal addresses two issues. First, W.A., a thirty-two-year-old male, appeals from a February 24, 2011 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. As to that issue, W.A. does not challenge thefinding of the Law Division, and we affirm. In addition, however, W.A. challenges the failure of STU to transfer him to the Therapeutic Community pursuant to a June 25, 2010 order of the Law Division. As to that issue, we remand the matter to the Law Division.
Even though W.A. does not challenge the merits of the continuance of his civil commitment, we deem it appropriate to address the merits of the issues raised by the review hearing.
The issue before us is limited. 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(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 W.A.'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).
These are the facts adduced from the record. On May 6, 1993, W.A. assaulted a female acquaintance, S.W., (the victim) after she refused his initial advances. When the victim attempted to leave, W.A. struck her in the head with a flashlight twice, threatened to kill her and demanded she "take off [her] clothes." He then struck the victim two more times and forced her to "perform fellatio on him and to submit to vaginal and anal sexual intercourse." He used the flashlight to penetrate her.
W.A. was arrested the following day. After charges were filed, W.A. pled guilty to two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), one count of aggravated assault, N.J.S.A. 2C:12-1(b)(1); and one count of conspiracy, N.J.S.A. 2C:5-2. In June 1995, W.A. was sentenced to time served in county jail.
During the period between his March 1994 plea and his June sentencing, W.A. committed another sexual assault; the victim in this assault was his twelve-year-old cousin. With the girl's family upstairs, W.A. found her in the basement of her home,approached her from behind, threw a coat over her and choked her to the ground. The girl said, "rape me, but don't kill me," at which time W.A. subjected her to vaginal intercourse. W.A.'s half-brother then came down to the basement and the victim told him that W.A. sexually assaulted her. He then notified the victim's aunt of the assault. The aunt called the police. W.A. was arrested, and officers "observed that the front zipper of his pants was open and protruding from the open zipper was his penis." W.A. later pled guilty to aggravated assault, N.J.S.A. 2C:12-1(b)(1); endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and criminal restraint, N.J.S.A. 2C:13-2. He was sentenced to ten years in prison with three years of parole ineligibility.
The State filed a petition for civil commitment pursuant to the SVPA in June 2001. By order of the Law Division, W.A. was conditionally committed to the Special Treatment Unit in July 2001. W.A. appealed, and we affirmed. In re Civil Commitment of ...