On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP 531-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012
Before Judges Fisher and Nugent.
G.S. appeals from the February 19, 2010 judgment ordering his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
The SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32(a). An involuntary civil commitment can follow service of a sentence when a defendant "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. As the Supreme Court observed in In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71, cert. denied, __ U.S. __, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009), "[t]he Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators."
To involuntarily commit a sexually violent predator, the State must prove "the individual poses 'a threat to the health and safety of others'" because of his or her likelihood to engage in sexually violent acts due to a "'serious difficulty in controlling his or her harmful behavior such that it is highly likely'" that he or she will reoffend. Id. at 571 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)). "Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (first alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).
G.S., now age forty-six, has a sexual criminal history that began in May 1991 when he kidnapped a woman at gunpoint, forced her into a parked vehicle, drove her to an apartment, and repeatedly raped her. For those offenses, he pled guilty on April 16, 1992, to fourth-degree sexual contact and was sentenced to four years probation with psychological counseling. Thereafter, he violated his probation, pled guilty to the violation, and was sentenced to continued probation. He subsequently violated his probation again and was sentenced to a prison term of nine months.
Meanwhile, at midnight on July 2, 1994, G.S. was walking with an acquaintance when he grabbed her arm, pulled her into the walkway of a school, and raped her. For that offense he pled guilty to aggravated criminal sexual assault on June 9, 1995, and was subsequently sentenced to serve five years at the Adult Diagnostic and Treatment Center (ADTC) at Avenel.
On June 30, 2003, G.S. committed the predicate offense that resulted in his involuntary commitment. While working as a painter and custodian at an apartment building, G.S. broke into the apartment of a twenty-seven-year-old woman, held a knife to her throat, and threatened to kill her. He "told her to '[l]ay on the floor and open [her] legs[.]'" As G.S. began to remove his pants, the victim fled. On October 8, 2003, G.S. pled guilty to attempted aggravated sexual assault and burglary. He was sentenced on February 26, 2004, to an aggregate term of seven years at the ADTC, subject to an eighty-five percent period of parole ineligibility.
On May 29, 2009, the State filed a petition seeking G.S.'s civil commitment under the SVPA. Judge James F. Mulvihill conducted a final commitment hearing. During the hearing, the State presented the testimony of Dr. Sean McCall, a psychologist, and Dr. Pogos Voskanian, a psychiatrist. The State also presented thirty-five exhibits. G.S. declined to appear for the hearing, so his attorney was unable to present his testimony.
McCall testified first. He had met with G.S. on February 9, 2010, and reviewed various court documents, civil commitment petitions and orders, presentence reports, ADTC reports and evaluations, and other materials. He tried "to examine these sources in order to see if there are themes that emerge or [to] look for generalizations about [G.S.'s] functioning that [he] can then compare with the interview . . . ." McCall also reviewed G.S.'s sexual offense history and non-sexual criminal offense history. Regarding the 1991 offense, McCall pointed out that G.S. had offended while on probation for an aggravated assault and a disorderly persons offense, and he stated that research indicates "that failure under supervision is a robust predictor of recidivism." G.S. committed numerous assaults during the one crime, which McCall said was due to the fact that G.S. had never before been more aroused than during this non-consensual act.
As for the 1994 offense, McCall pointed out that the act was not spontaneous, but intentional. In addition, the fact that it was committed while on probation indicated that G.S. had not learned his lesson, or that perhaps his ...