On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-496-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2011
Before Judges Alvarez and Nugent.
K.A.H. appeals from a December 9, 2008 judgment committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record in light of the contentions advanced on appeal, we affirm.
K.A.H. asserts that the commitment judge erred because the State's proofs did not amount to clear and convincing evidence that he is a sexually violent predator within the meaning of the statute. He also asserts that the judgment violates the ex-post facto clause of the United States Constitution because he spent years in prison without being afforded sex offender treatment "while the State now apparently contends his purported condition is treatable." K.A.H. reasons that the Department of Corrections' (DOC) failure to provide him with treatment while he was imprisoned means he must be discharged from commitment.
The scope of appellate review of a judgment of civil commitment is exceedingly narrow. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). We "only reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have also recognized that "committing judges under the SVPA are specialists in the area, and [that] we must give their expertise in the subject special deference." In re Civil Commitment of T.J.N., supra, 390 N.J. Super. at 226. An appellate court should give the "'utmost deference'" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., supra, 339 N.J. Super. at 459 (App. Div. 2001) (quoting Fields, supra, 77 N.J. at 311). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. (citing Fields, supra, 77 N.J. at 311). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
To summarize the proofs, on July 17, 2003, K.A.H., who is now fifty-two years old, was sentenced to seven years in state prison, subject to eighty-five percent parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. That sentence was imposed pursuant to his guilty pleas to four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b).*fn1 The offenses arose from K.A.H.'s ongoing sexual molestation of his girlfriend's daughter from the time the child was six until she was eleven, including forcible vaginal intercourse. The offending behavior stopped only after the child's mother and K.A.H. ended their relationship subsequent to a domestic violence incident.
When assessed at the Adult Diagnostic Treatment Center (ADTC) prior to his sentence, K.A.H. completed the written portion of the evaluation but refused to participate in the interview portion of the process. Hence no determination could be made as to whether his conduct was repetitive and compulsive. See N.J.S.A. 2C:47-1 and -2. At sentencing, the trial judge told K.A.H. that he had the right, "on a biennial basis," to request a transfer to ADTC after a "psychological examination." See N.J.S.A. 2C:47-3(f). This option was clearly explained and K.A.H. confirmed that he was not interested in completing his sentence at Avenel but preferred to serve it at state prison.*fn2
K.A.H. never requested a transfer. K.A.H. completed the seven-year sentence imposed in 2003 immediately prior to commitment.
On May 18, 1992, K.A.H. had been sentenced to ten years in prison after pleading guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). K.A.H. did cooperate with that ADTC evaluation and, when interviewed, acknowledged a long history of criminal behavior, and alcohol and drug abuse, commencing when he was thirteen years of age. He reported being placed in a residential facility at age fourteen for being "social[ly] maladjusted." K.A.H. also disclosed that he had attempted to open the safe in the residential facility with a sledge hammer. He claimed he purchased his first gun at age fifteen, and was subsequently involved in a shooting. K.A.H. also disclosed that he shot someone in the leg as retaliation for the person striking his daughter. No charges resulted from either incident. Additionally, he claimed to have been actively involved in the drug trade, from which he made "good money, lots of money."
The incident which resulted in K.A.H.'s 1992 sentence occurred in 1990 when he was employed as a janitor at a Ramada Renaissance Hotel. The victim, twenty-seven-year-old E.E., reported that as she entered a public bathroom, she noticed K.A.H. standing in the doorway with a cleaning cart. He pushed her into a bathroom stall, kissing her and fondling her, while pulling her dress up around her waist. K.A.H. vaginally raped E.E. and forced her to fellate him. After he left, the victim immediately reported the assault. When questioned, K.A.H. claimed that E.E. had sexually assaulted him, or alternatively, that she consented. Although when evaluated K.A.H. was found to be a repetitive sexual offender, since his responses indicated an overall pattern of poor impulse control, exploitation, and violence towards women, he was not found to be compulsive and was not recommended for sentencing to Avenel.
K.A.H.'s first adult criminal offense occurred in 1985 when his former girlfriend charged that while the two were in a wooded area, he raped her and forced her to fellate him. At the time, they had been drinking, arguing, and were in the course of ending their relationship. K.A.H. eventually pled guilty on December 4, 1985, to an amended second-degree aggravated assault. He was sentenced to seven years imprisonment, and was actually on parole on the date of the Ramada hotel assault, resulting in a violation of parole.
K.A.H.'s convictions for sexual assault in 2003 and 1992 are predicate offenses enumerated in the statute making defendant eligible for commitment under the SVPA. N.J.S.A. 30:4-27.26. "The Act defines 'sexually violent predator' in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person ...