IN THE MATTER OF THE CIVIL COMMITMENT OF W.O., SVP-569-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-569-10.
Joseph E. Krakora, Public Defender, attorney for appellant W.O. (Alison Perrone, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Theodore Martens, Deputy Attorney General, on the brief).
Before Judges Fuentes, Simonelli and Haas.
W.O. appeals from the September 9, 2010 judgment involuntarily committing him 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.
Under the SVPA, the State must prove by clear and convincing evidence that the person whose commitment it seeks, "has been convicted . . . of a sexually violent offense . . .and 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. The standard is as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.
[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
W.O. is a thirty-nine-year-old convicted sex offender. On July 8, 1997, while he was on parole for a drug offense, W.O. sexually assaulted a twenty-six-year-old woman after breaking into her apartment. He grabbed the victim by the neck, threw her to the floor, punched her, and penetrated her vaginally before ejaculating inside her. W.O. pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. On July 12, 1999, he was sentenced to a nine-year custodial term, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release; community supervision for life; and mandatory sex offender therapy. This was W.O.'s predicate sexually violent offense for civil commitment under the SVPA.
W.O. was later released on parole. On April 30, 2007, W.O. approached a ten-year-old girl, showed her a dildo, and asked her "Is it big?" The next day, he approached a ten-year-old girl, stated "Can I ask you a question, is this big?, " and then exposed his penis to her. One day later, W.O. approached two other girls, ages nine and eleven, and, when they turned to look back at him, pulled down his pants and exposed his penis to them. All of these incidents occurred during the day. In addition to being ...