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In re Civil Commitment of B.N.

Superior Court of New Jersey, Appellate Division

June 18, 2013

IN THE MATTER OF THE CIVIL COMMITMENT OF B.N., SVP-564-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 30, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-564-10.

Joan D. Van Pelt, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Van Pelt, on the brief).

David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DaCosta, on the brief).

Before Judges Axelrad, Sapp-Peterson and Haas.

PER CURIAM

B.N. appeals from the July 23, 2010 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. He contends the court erred by improperly allowing testimony on hebephilia, his trial counsel was ineffective because counsel did not request a pretrial hearing on the admissibility of evidence of hebephilia and the State failed to sustain its burden of proof. We affirm.

I.

B.N. is a forty-five-year-old convicted sexual molester of pubescent girls. He has an extensive criminal record, dating back to when he was a juvenile. His prior court history shows six juvenile offenses, including escaping twice from Jamesburg. As an adult, his non-sexual convictions included damaging property, resisting arrest, assault, and possession of marijuana. In 1992, he was convicted of armed robbery and arson, and sentenced to concurrent seven-year terms, and was re-incarcerated after violating parole. He also had two domestic violence incidents against his wife.

In February 2000, B.N. was arrested and charged in a twenty-count indictment for sexual offenses involving six victims (four girls and two boys) for conduct beginning in 1998. The charges primarily related to his sexual assaults against his daughter M.N. and her best friend C.P. starting when the girls were around thirteen years old and continuing numerous times per week over a two-year period. B.N. admitted the sexual contact, which included fellatio, cunnilingus and vaginal intercourse, as well as supplying the young girls with alcohol, marijuana, cocaine and heroin.

C.P. described B.N. initiating sexual contact with her when she was having a sleepover with his daughter; C.P. was sleeping and B.N. started rubbing her buttocks and between her thighs. She reported that at another sleepover, B.N. digitally penetrated her. Sexual assaults then became a regular occurrence. C.P. also reported that during one occasion when B.N. had been kicked out of his house and was residing with his mother, she walked in on him and C.P. "sleeping together, " called him a child molester, and he punched his mother in the face. C.P. further reported that B.N. also threatened to kill her and once he kicked and punched her in the face. On another occasion, he choked her to the point of unconsciousness because he thought she had been with another man.

B.N. took pornographic pictures of C.P. and had his daughter take pictures of him having sex with C.P. He also made a sex video of himself and C.P. During this time, B.N. was also sexually assaulting M.N. On occasion, he had sex with both girls at the same time. According to the police investigation, K.R., also thirteen at the time of the assaults, reported B.N. twice performed cunnilingus on her and digitally penetrated her in the presence of C.P. and M.N. He also forced K.R. to masturbate him. B.N. threatened to kill K.R. if she told anyone.

B.N. pretended to be the parent of another friend of his daughter's, T.P., also around thirteen years old, by calling her school in order for her to leave early. He supplied her with marijuana and alcohol, and had sex with C.P. in her presence. He asked T.P. to fellate him but she refused.

The fifth and sixth victims were two young boys. During this time, B.N. watched pornographic movies with his ten-year-old son and the son's friend and ordered K.R., M.N. and C.P. to dance naked for them, directing his son to touch their breasts.

Following B.N.'s arrest for the above crimes, he was released on bail in October 2000 and sexually assaulted M.N. on two separate occasions by forcing her to perform fellatio and engage in vaginal intercourse. She reported that B.N. threated to kill her and she was frightened of him.

B.N.'s predicate convictions under the SVPA consisted of guilty pleas he entered to three counts of the indictment – first-degree aggravated sexual assault against M.N., N.J.S.A. 2C:14-2(a); second-degree sexual assault against C.P., N.J.S.A. 2C:14-2(c); and second-degree endangering the welfare of a child (C.P.), N.J.S.A. 2C:24-4(b)(2), for which he was sentenced on August 13, 2001 to ten years in prison. Charges relating to K.R., T.P., his son and his son's friend were dismissed as part of the plea bargain. At the same time, he simultaneously pled guilty to first-degree aggravated sexual assault against M.N. for the 2000 incident under an accusation and was sentenced to a concurrent fifteen-year custodial term. Although he was not separately charged, B.N. later reported that he had also sexually assaulted M.N. in the back seat of the car while he was being driven home following his release on bail. While incarcerated, B.N. sent a letter to his daughter requesting she send him pictures of herself in her bra and panties.

II.

On March 19, 2010, the State filed a petition for civil commitment pursuant to the SVPA, supported by clinical certificates. Psychiatrist Marina Moshkovich, M.D. diagnosed him with Pedophilia NOS (adolescent girls, non-exclusive), Depressive Disorder NOS, Polysubstance Dependence (in institutional remission), and Antisocial Personality Disorder. During a two-day trial, the State presented the testimony of psychologist Doreen Stanzione, Ed.D. and psychiatrist Roger Harris, M.D. while B.N. presented the testimony of psychologist Christopher Lorah, Ph.D. All of the experts interviewed B.N. and reviewed the type of documents relied on by professionals in their fields, ultimately formulating independent opinions. At the conclusion of the trial on July 22, 2010, ...


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