On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 515-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges C.L. Miniman and LeWinn.
J.T.M. appeals from the June 10, 2009 order civilly committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). We affirm.
In August 2005, appellant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); and third-degree aggravated assault causing bodily injury, N.J.S.A. 2C:12-1(b)(7) (count four). Pursuant to a negotiated plea agreement, appellant pled guilty to count one amended to second-degree sexual assault by physical force or coercion, N.J.S.A. 2C:14-2(c)(1), and to count four; count one was further amended to third-degree for sentencing purposes.
In giving his factual basis for the plea, appellant acknowledged that he had been "drinking pretty heavily" at the time of the offense but stipulated that the facts as set forth in the police reports, including the victim's statement, were true. Those facts established that at the time of the offense appellant was employed by a cleaning service that contracted to work in the victim's apartment building. He gained entry into the victim's apartment, choked her into unconsciousness and then had sexual intercourse with her; while unconscious, the victim defecated. At the time, appellant was in the Intensive Supervision Program (ISP) and wore an electronic monitoring bracelet; he had been placed in ISP after serving a sentence for eluding in 2004.
Appellant was evaluated at the Adult Diagnostic and Treatment Center to determine if he was eligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (SOA). The evaluation concluded that there was "insufficient psychological evidence" to determine if his offense was "part of a repetitive compulsive pattern of criminal sexual behavior"; therefore, appellant was not eligible for sentencing under the SOA.
On March 30, 2007, appellant was sentenced to an aggregate term of four years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. In his statement of reasons for the sentence, the judge noted that appellant's "unaddressed mental health and substance abuse issues make him dangerous. Unless there is a substantial change in attitude, [he] is highly likely to reoffend. [He] does not accept personal responsibility --shortcomings are blamed on others. [He] lacks honesty."
On November 25, 2008, the State petitioned to have appellant civilly committed under the SVPA. The commitment hearing was held on May 27, 2009, and we summarize the evidence adduced at that hearing as follows.
Dr. Brian Friedman, a psychologist, and Dr. Pogos Voskanian, a psychiatrist, testified on behalf of the State. Both experts had personally interviewed appellant and reviewed numerous documents in his record, including prior evaluations, his criminal history and victims' statements. In response to an objection by appellant's attorney, the judge admitted both experts' reports "subject to [the] normal hearsay proviso."
Voskanian testified that in discussing the predicate offense, appellant admitted to having sex with the victim but claimed that it had been "consensual" and that he "did not use any physical force"; the victim had reported a rape only because "her husband walked in." Appellant provided no explanation for the strangulation marks found on the victim and did not recall her defecating. Voskanian characterized the predicate offense as "particularly brutal" based on the victim's injuries and because her loss of bowel control indicated "extreme fear, extreme stress . . . and . . . significant physical violence."
Voskanian reviewed documents relating to appellant's prior arrests and convictions. These included an arrest in North Carolina in 2001 for burglary and attempted rape, for which appellant pled guilty to the lesser charges of breaking and entering and assault on a female; the police report stated that appellant had broken into the apartment of a sleeping fifty-three-year-old woman and was sexually molesting her when she awoke and he left. In 2004, appellant was convicted of an eluding charge that stemmed from his forced entry into a woman's apartment; he pushed and dragged her to the floor and fled when her screams alerted neighbors who called the police. Voskanian opined that the predicate offense in 2005 and the prior offenses in 2001 and 2004 were "very similar," involving assaultive behavior toward women. The doctor also noted that appellant minimized his conduct on each occasion.
Voskanian reviewed appellant's psychological history, including all prior evaluations; the doctor's stated purpose for this review was "to develop a three-dimensional view" of appellant. Voskanian diagnosed appellant with anti-social personality disorder. With respect to his diagnosis of any mental abnormalities that would predispose appellant to sexually reoffend, the following colloquy ensued on direct examination:
Q Doctor, did you ultimately conclude that he suffers from mental abnormality which predisposes him to sexual re-offense?
Q And is that your diagnosis . . . [in] your report, your Axis 1 diagnosis, for consideration ...