NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-504-08.
Joseph E. Krakora, Public Defender, attorney for appellant G.R. (Thomas G. Hand, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
In this consolidated appeal, G.R. appeals from the April 2, 2009 order of the Law Division that committed him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and the March 24, 2010 order that continued his commitment following an annual review hearing. He contends the State failed to prove by clear and convincing evidence that he was a sexually violent predator at his initial commitment hearing in 2009. In the second appeal, G.R. contends the State failed to sustain its burden of proof in the review proceeding because it relied on inadmissible hearsay and unproven allegations, and the court erred in crediting the State's expert witnesses because their testimony was based, in part, on a non-conviction offense.
We do not address G.R.'s challenges to the initial commitment hearing as we deem them moot. The only relevant issue is whether G.R. currently meets the statutory prongs for civil commitment under the SVPA. See In re Civil Commitment of E.D., 183 N.J. 536, 550-51 (2005) (holding that the "standard of proof and the burden of meeting it at each periodic review hearing must be identical to that required in the initial proceeding [to commit]") (internal quotation marks and citation omitted). We disagree with G.R.'s challenges to the review hearing and affirm the orders in both appeals.
G.R. is a forty-three-year-old convicted sexual molester of adult women. He also has been convicted of a multitude of non-sexual offenses including possession of a CDS, possession of a prohibited weapon and devices, robbery, receiving stolen property, simple assault, theft, criminal mischief, and aggravated assault with a deadly weapon.
On December 1, 1997, G.R. was charged with sexually assaulting a fourteen-year-old girl. The girl explained to police that she had asked G.R. for directions and offered him a ride. She reported that he threatened her with a screwdriver, pulled her hair, hit her, and assaulted her sexually. However, she only made the accusation after she was found by police sleeping in a stolen car. G.R. admitted to having sex with her but maintained it was consensual. On February 6, 1998, the charge was no billed.
On May 24, 2005, G.R. committed the first of two predicate offenses, when he sexually assaulted L.B., an adult female. The victim claimed she had just met G.R. when he proposed hanging out and getting "high together." She reported that after they arrived at the pier, G.R. brought up the idea of trading sex for drugs. However, the victim was not interested, so she started to walk away from him, and in response G.R. grabbed, punched, and choked her unconscious, removed her clothes, and orally, anally, and/or vaginally raped her.
One week later, on May 31, 2005, G.R. beat and raped a twenty-two-year-old female. The victim admitted she had asked G.R. for a "hit" of his crack pipe, and he told her to wait until they got to the beach. After arriving at the beach, he punched her in the head twice, put her in a headlock, and forced her to fellate him. At some point G.R. ripped off her clothes. The victim then threw sand in his face and attempted to flee, but G.R. caught her and raped her vaginally and anally.
On January 30, 2006, G.R. pled guilty to two counts of second-degree sexual assault, and the other charges were dismissed as part of a plea agreement. On May 3 and June 22, 2006, G.R. was evaluated at the Adult Diagnostic and Treatment Center (ADTC) by Dr. Donna LoBiondo, Ph.D., a psychologist. Dr. LoBiondo concluded that G.R.'s behavior was "clearly repetitive" but there was "insufficient evidence from interview, testing, and reviewed documentation that [G.R.]'s criminal sexual behavior qualifies as compulsive under the Sex Offender Act." The psychologist found G.R. "likely committed these offenses out of a sense of entitlement and desire to gratify himself at the expense of others, consistent with his antisocial orientation."
G.R. was sentenced on September 1, 2006. He received two concurrent, four-year custodial terms subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On June 2, 2008, Dr. Christie L. Kokonos, Psy.D., a psychologist, evaluated G.R. and concluded that G.R. met "the criteria for referral as a repetitive and compulsive violent sexual offender who requires formal treatment prior to being released back into society." She recommended the State consider pursuing civil commitment under the SVPA before G.R. was released from jail.
In September 2008, the State filed a petition for civil commitment pursuant to the SVPA. On September 24, 2008, a temporary order of commitment was entered. G.R.'s initial commitment hearing was held before Judge John McLaughlin on March 23, 2009. At the hearing, Dr. Howard Gilman, M.D., a psychiatrist, and Dr. Rosemarie V. Stewart, Ph.D., a ...